Petition — Blanton v. United States

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IN THE

Supreme Court of the United States

October Term, 1983

Leonard Ray Blanton,

Petitioner,

United States of America,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN S. McLELLAN

124 Commerce Street

Kingsport, Tennessee 37660

(615) 247-7136

Counsel of Record for Petitioner

NEAL P. RUTLEDGE

6201 Crathie Lane

Washington, D.C. 20816

Co-Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

Against the backdrop of massive,

adverse pretrial publicity, was the

abbreviated voir dire conducted herein

violative of Petitioner's rights to a

trial before a fair and impartial jury

contrary to the guaranties of the Fifth

and Sixth Amendments to the United States

Constitution?

PARTIES TO PROCEEDINGS

IN THE COURT BELOW

The United States, as Plaintiff-

Appellee, and Petitioner Leonard Ray

Blanton plus Clyde Edward Hood, Jr. and

James M. Allen, as Defendants-Appellants,

were the only parties to the proceeding

in the United States Court of Appeals for

the Sixth Circuit below.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...-ccccccccccces i

PARTIES TO PROCEEDINGS BELOW ....... i

TABLE OF CONTENTS ...---ccccccsccecs ii

TABLE OF AUTHORITIES .....---4-- oooe) Lid

OPINIONS BELOW ...--ceeccneccecccces 2

JURISDICTION ...cceece ccc cencerccees 3

CONSTITUTIONAL PROVISIONS INVOLVED.. 3

STATEMENT OF THE CASE ....-eececeees 3

REASONS RELIED UPON FOR GRANTING

THE WRIT “ne ee eeeneeeeneeneteeeneneeneeet ee 9

CONCLUSION .cccccccccecccccccesccses 25

CERTIFICATE OF SERVICE ...cccccccccce 26

APPENDIX:

Appendix A--Judgment of the U.S.

Distriét Court for the Middle

District of Tennessee below ...... la

Appendix B--Judgment and Opinion

of the U.S. Court of Appeals for

the Sixth Circuit below .......... 4a

Appendix C--Judgment and Opinion

of the U.S. Court of Appeals En

Banc for the Sixth Circuit below.. 33a

TABLE OF AUTHORITIES

CASES CITED:

Aldridge v. United States,

BUS Usbs SOU cecceses vesesee

In re Murchison, 349 U.S.

EOS CR a wes be thot bn bede ‘

Page

14,24

Irvin v. Dowd, 366 U.S. 717 .. 12,16,24

Marshall v. United States,

/ *§ > ee pee

Patriarca v. United States,

402 F.2d 314 (1968), cert.

den. 393 U.S. 1022 (1969) ..

Pointer v. United States,

151 i 396 re fee feeeeerTes © © &

Reynolds v. United States,

5 if SO Belo pee

Sheppard v. Maxwell,

LT ota ee Ce? neces ew .

Silverstone v. United

States, 400 F.2d 627

6 *enreieneeeeeneeeeeneeeeee

Swain v. Alabama,

gS ee

United States v. Blanton,

et al, 700 F.2d 298 (1983)..

United States ex rel Bloeth

v. Denno, 313 F.2d 364, cert.

den. 372 U.S. 978 (1963) ...

iii

2,4a

CASES CITED: Page

United States v. Bryant,

471 F.2d 1040 (1972),

cert. den. 409 U.S.

pee Gis yo) eee ice 18

United States v. Caldwell,

543 F.2d 1333 (1974), cert.

den. 426 U.S. 1087 (1976)... 18

United States v. Davis,

SUS Wea Lee CAPTE). tetodcecs 16

United States v. Dellinger,

472 F.2d 340, cert. den.

410: U.B. STIS (2FFS) cicecevesr 17,24

United States v. Hawkins,

658 F.2d 279 (1981) ....-4-- 17

United Statés v. Johnson,

SUS Fuad LEG ceacce ‘eeeeers o° 19,23

United States v. Liddy,

509 F.2d 428 (1974) ........ 18

CONSTITUTION & STATUTES:

Fifth Amendment, United

Staves ComMsts Secs cccssvec i,3,15,20

Sixth Amendment, United

States Constitution ........i,3,15,20,24

T.C.A. § 39-802 ...ccccccccvee 5, 6

T.C.A. § 57-3-210(b) (1) ...... 5

T.C.A.'§ 57=-3-210(£) wc cceee 5

18 U.S.C. §§ 2, 1342 .....0ee. 3, 4, 6

CONSTITUTION & STATUTES:

18 U.S.C.

28 U.S.C.

§§ 2, 1951

& Sra. «ss

§ 1254(1)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No.

LEONARD RAY BLANTON,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, Leonard Ray Blanton,

prays that a Writ of Certiorari issue to

review the judgment of the United States

Court of Appeals for the Sixth Circuit in

United States of America v. Leonard Ray

Blanton, Clyde Edward Hood, Jr. and

James M. Allen, No. 80-30253, entered

on the 28th day of September, 1983.

OPINIONS BELOW

The judgment of conviction of the

United States District Court for the

Middle District of Tennessee, dated

August 14, 1981, is unreported and is ,

reprinted here as Appendix A hereto.

The opinion of a panel of the United

States Court of Appeals for the Sixth

Circuit reversing the conviction,

rendered February 11, 1983, is reprinted

here as Appendix B hereto and is reported

at 700 F.2d 298. The opinion of the

Court of Appeals upon a Petition for

Rehearing En Banc reinstating the

conviction is reprinted here as

Appendix C hereto and is not yet

reported.

JURISDICTION

The final judgment of the Court of

Appeals en banc was filed September 28,

1983. Jurisdiction to review the

judgment of the Court of Appeals is

conferred upon this Court by 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution:

Amendment V: No person shall

be * * * deprived of life, liberty

Or property without due process

of law * * *

Amendment VI: In all criminal

prosecutions, the accused shall

enjoy the right to a speedy and

public trial, by an impartial

jury x *

STATEMENT OF THE CASE

Petitioner was charged in an indict-

ment issued October 29, 1980, with eight

counts of mail fraud [18 U.S.C. §§ 2,

=3-

1341], one count of violating the Hobbs

Act [18 U.S.C. §§ 2, 1951], one count of

conspiracy [18 U.S.C. § 371], and two

counts of tax evasion and filing a false

tax return, the latter two counts being

subsequently severed.

On March 12, 1981, a superseding

indictment issued, adding an additional

mail fraud count.

The essence of the offenses imputed

to Petitioner was thatyhe, while serving

as Governor of the State of Tennessee,

directed that liquor licenses be awarded

to political friends, an object allegedly

accomplished by appointing two of the

three Commissioners of the Alcoholic

Beverage Commission, which has exclusive

jurisdiction respecting the issuance of

liquor licenses in Tennessee. The evi-

dence against Petitioner was virtually,

if not exclusively, a videotaped

deposition of,one Jack Ham, an immunized

witness who had received a liquor license

during Petitioner's tenure as Governor

‘and who had allegedly agreed to give

Petitioner a portion of the profits of

his liquor store, i.e., 20% of such

profits. It was conceded that Ham made

no payments to Petitioner. Respondent

nevertheless contended that a sale of oil

stock by Petitioner to Ham for $23,000.00

represented a "payment” since the price

paid by Ham for such oil stock was

allegedly in excess of its market value,

an issue of fact which was vigorously

disputed by Petitioner.

On the theory that this scheme

violated Tennessee's liquor laws against

public officials having an interest in a

liquor store [T.C.A. § 57-3-210(b) (1)

(1980)], or an undisclosed interest in a

liquor store [T.C.A. § 57-3-210(f) (1980)],

and the bribing of public officials [T.C.A.

§ 39-802 (1975)], a federal charge was

leveled that the acts constituted a

conspiracy to defraud the United States

by the use of the mails in furtherance of

Petitioner's alleged scheme to violate

Tennessee law [18 U.S.C. § 371]; and when

coupled with mailings by the Tennessee

Alcoholic Beverage Commission respecting

notices of hearing and the like consti-

tuted mail fraud in that the citizens of

Tennessee were deprived of the honest

services of a government official

[18 U.S.C. §§ 2, 1341], and further

violated the Hobbs Act [18 U.S.C. §§ 2,

1951) in the light of the position of the

Petitioner as Governor of Tennessee.

As the panel opinion herein, adopted

in pertinent part by the majority opinion

of the Court below, noted [App. B., p. 8a]:

The trial [in Nashville] was

preceded by massive publicity about

the case in Nashville, Tennessee,

and throughout the state, as one

would expect in the trial or a

former governor. The record con-

tains over 240 articles from

Nashville newspapers adverse to

defendants. There are approximately

160 articles which appeared in the

six months preceding the trial about

the instant prosecution, the prosecu-

tion of Blanton's brother, and the

prosecution of former Blanton aides.

There are more than seventy-five

See also Irvin v. Dowd, supra, and

Marshall v. United States, 360 U.S. 310.

As the Court said in Dowd:

No doubt each juror was sincere when

he said that he would be fair and

impartial to petitioner, but

psychological impact requiring such

a declaration before one's fellows

is often its father. Where so many,

so many times, admitted prejudice,

such a statement of impartiality can

be given little weight. As one of

the jurors put it, ‘You can't forget

what you hear and see.‘ ***

366 U.S., at 728.

The Fifth Circuit in United States v.

Davis, 583 F.2d 190, 197 (C.A. 5, 1978),

noted that a juror "is poorly placed to

make a determination as to his own

impartiality. Instead, the trial court

should make this determination."

- 16 «

The Fifth Circuit reached a similar

conclusion in United States v. Hawkins,

658 F.2d 279, 282-85 (C.A. 5, 1981). And

the Second Circuit, sitting en banc, in

United States ex rel Bloeth v. Denno,

313 F.2d 364, 371-73, cert. den. 372 U.S.

978 (1963), held that jurors’ assurances

of impartiality despite opinions formed

by pretrial publicity were totally

insufficient and that a change of venue

was accordingly constitutionally required.

The Ninth Circuit in Silverthorne v.

United States, 400 F.2d 627, 637-40 (1968),

held that where every juror had some

knowledge of the case, the jurors’

assurances of impartiality were insuffi-

cient and that the jurors should have

been questioned individually.

The Seventh Circuit in United States

v. Dellinger, 472 F.2d 340, 367-70, cert.

den. 410 U.S. 970 (1973), similarly found

o 39 «

juror assurances inadequate, as did the

First Circuit, albeit in dicta (see

Patriarca v. United States, 402 F.2d 214,

318 (C.A. 1, 1968), cert. den. 393 U.S.

1022 (1969).

In United States v. Caldwell,

543 F.2d 1333, 1345-46 (D.C. Cir., 1974),

cert. den. 423 U.S. 1087 (1976), the

District of Columbia Circuit noted that

in certain circumstances jurors' assur-

ances of impartiality were insufficient,

while pointing out that it had not found

a case where the District Court

procedures employed in such Circuit were

inadequate. See, e.g., United States v.

Liddy, 509 F.2d 428, 436-37 (D.C. Cir.,

1974), where veniremen who indicated they

might have formed an opinion were

questioned individually; and United

States v. Bryant, 471 F.2d 1040, 1044

imeGe Care 1972), Gort. Gon. 469 0.8.

» 18 <

1112 (1973), where again individual

questioning was conducted of veniremen

who responded affirmatively to general

questions.

Thus, the panel opinion [App. B,

p. 18a] correctly concluded that:

This survey of the cases from nearly

every circuit suggests less defer-

ence to a juror's assessment of his

impartiality than the Sixth Circuit

implied was appropriate in Johnson

(United States v. Johnson), 584 F.2d

148. It appears that the Second,

Fifth, Ninth and Eleventh Circuits

would reverse in a case like the one

at bar. Dicta from the First and

District of Columbia Circuits indi-

cate they would reverse. The Third,

Seventh, and Tenth Circuits expressed

suspicion of jurors' assurances of

impartiality, but the facts in the

cases from those circuits differ too

much from the instant case to

determine how those courts would

ultimately rule *** (Emphasis

supplied.)

Again, as the panel opinion notes:

No court has approved of questioning

as limited as the questioning inthis

case where there was substantial

pretrial publicity. The questioning

here can be considered limited only

as it relates to the effect of the

= 19 -

pervasive publicity, and the extent

and depth of the individual tales-

men's exposure to the massive

publicity; otherwise the voir dire

was admirably conducted by trial

court. . [App. B, p.19a.]

We suggest that a consideration of

the totality of the voir dire here

involved will persuade that the question-

ing of the veniremen to determine the

impact upon them of the massive pretrial

publicity was totally insufficient and

that the majority decision of the Court

of Appeals would have the effect of

sanctioning a deprivation of Petitioner's

Fifth Amendment right to due process and

Sixth Amendment right to an impartial

jury.

And where, as here, the selection of

a jury in a manner appropriate to’ the

circumstances of a particular case is

essential to the vindication of a

defendant's Fifth and Sixth Amendment

rights--a recurring question tied to

= 20 «

rights constitutionally guaranteed--this

is a decision which must yield to the

viewpoints expressed by other Circuits

involving the same issue.

3. The Court of Appeals’ opinion

would impose the burden of proving

prejudice upon Petitioner while effec-

tively foreclosing Petitioner's right to

ascertain prejudice.

The superficial voir dire had herein

developed no information from which

defense counsel could determine whether

or not to challenge a particular juror

for cause. This information was simply

not determinable from the voir dire

employed. Defense counsel was armed

with no more than the “official question-

naire" containing extremely basic

Petitioner, in fact, had so little

information on which to base his

challenges that, in desperation, he hired

a clairvoyant to supply at least some

basis for exercising his choices.

- i «

information respecting prospective jurors.

This prejudice was exacerbated by the

refusal of the Trial Judge to ask questions ‘

concerning the impact of prejudicial

pretrial publicity requested both by

defense counsel on repeated occasions and,

indeed, by the government, which urged

the Court "to do some more voir dire on

publicity." [R. 101; see App. C, pp. 47a,

63a, 64a.)

Thus, it is a perfect non sequitur

for the Court of Appeals to hold on the

one hand that Petitioner had not demon-

strated prejudice on the part of the

jurors while approving a procedure that

effectively precluded Petitioner from so

doing.

4. Petitioner's right of peremptory

challenge was impaired by the voir dire

procedure utilized by the Trial Court.

As a result of a lack of information,

« 22 =

Petitioner was required to exercise the

peremptory challenges the Trial Court had

granted absolutely blindly. It mattered

little whether the Trial Judge accorded

Petitioner 15 or 50 peremptory challenges.

The paucity of information available to

defense counsel operated to impair and

deny Petitioner the right to peremptory

challenges which, under the holdings of

this Court, is reversible error without

any additional showing of prejudice--

prejudice being presumed. See Pointer v.

United States, 151 U.S. 396; Swain v.

Alabama, 380 U.S. 202, at 219. As this

Court said in Swain:

The denial or impairment of this

right is reversible error without

a showing of prejudice.

380 U.S., at 219.

Indeed, the Sixth Circuit had

previously so held in United States v.

Johnson, 584 F.2d 148, thereby joining

« $3 «

the viewpoint of the Seventh Circuit in

United States v. Dellinger, 472 F.2d 340

(C.A. 7, 1972).

As we have heretofore demonstrated

in accordancé with the opinions of this

Court and the views of other Circuits, it

is recognized that a fair trial ina fair

tribunal is guaranteed by the Sixth

Amendment and, at the same time, is a

basic requirement of due process. In re

Murchison, 349 U.S. 133, 136 (1955).

The Court of Appeals' duty "to

independently evaluate the voir dire

testimony of the impaneled jurors," as

required by Irvin, supra, at 723, and

Aldridge v. United States, 283 U.S. 308,

310, was an impossibility since the

truncated nature of the voir dire did not

produce testimony regarding the impact of

prejudicial pretrial publicity upon the

attitudes of the veniremen and silence to

« 94 «

the general question of prejudice was

taken as an affirmative representation of

impartiality.

As Judge Damon Keith, concurring in

the dissenting opinion of Judge Engel,

stated:

I am, frankly, at a loss to explain

why the en banc court has approved

this voir dire. There are no cases

on point which approve questioning

so limited as what was permitted in

this case. The majority opinion

establishes an unwise and dangerous

precedent which tampers with basic

rights. *** [App. C, p. 96a.]

CONCLUSION

The foregoing decisions and arguments

demonstrate that a Writ of Certiorari

should issue to review the judgment of

the Sixth Circuit Court of Appeals.

Respectfully submitted,

John S. McLellan

Neal P. Rutledge

Attorneys for Petitioner

Nov., 1983

» 25 «

CERTIFICATE OF SERVICE

I hereby certify that three copies

of the foregoing Petition for Writ of

Certiorari were served by mail [by hand

Gelivery]) this ___ day of November,

1983, upon the Honorable Rex E. Lee,

Solicitor General, United States Depart-

ment of Justice, Washington, D.C. 20530,

counsel for Respondent.

Of Counsel

« 96 «

APPENDIX

APPENDIX A

JUDGMENT AND PROBATION/COMMITMENT ORDER

OF THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF TENNESSEE,

NASHVILLE DIVISION

UNITED STATES OF AMERICA

Vv.

LEONARD RAY BLANTON

Docket No. 80-30253 Deft. #1

August 14, 1981

Counsel: Defendant appeared with

counsel John S. McLellan.

Plea: Defendant pled Not Guilty.

Verdict: There being a verdict of

Guilty as to counts 1 through

ll.

Finding & Judgment: Defendant has been

convicted as charged of the offenses of

Title 18, United States Code, Sections 371,

1341 & 1951.

The court asked whether defendant had

anything to say why judgment should not be

pronounced. Because no sufficient cause

to the contrary was shown, or appeared to

the court, the court adjudged the defendant

guilty as charged and convicted and

ordered that: The defendant is hereby

committed to the custody of the Attorney

General or his authorized representative

for imprisonment for a period of three (3)

years on each of Counts 1 through ll. It

is further ADJUDGED that the terms of

imprisonment on each count are to run

concurrently with the other.

It is further ADJUDGED that the

defendant is fined the sum of $1,000 on

each count, for a total fine of $11,000.

Defendant to remain on present bone

pending appeal.

Additional Conditions of Probation: In

addition to the special conditions of

probation imposed above, it is hereby

ordered that the general conditions of

probation set out on the reverse side of

this judgment be imposed. The Court may

change the conditions of probation,

reduce or extend the period of probation,

and at any time during the probation -

period or within a maximum probation

period of five years permitted by law,

may issue a warrant and revoke probation

for a violation occurring during the

probation period.

Commitment Recommendation: The court

orders commitment to the custody of the

Attorney General and recommends,

(no recommendation)

Signed By: /s/ Bailey Brown

BAILEY BROWN

United States District

Judge

Date: August 14, 1981

Filed: 12:00 P.M. August 14, 1981

JULIA B. CROSS, CLERK

By: /s/ Jeana Hoset

Deputy

APPENDIX B

RECOMMENDED FOR FULL-TEXT PUBLICATION

See, Sixth Circuit Rule 24

JUDGMENT AND OPINION IN

No. 81-5643

No. 81-5644

No. 81-5645

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNrTep STATES OF AMERICA,

Plaintiff-Appellee, eee ieee

v. United States District

LeonarD Ray BLANTON, (81-5644) | Court for the Middle

Criype Epwarp Hoop, Jr., (81-5645) District of Tennessee.

James M. ALLEN, (81-5643)

Defendants-Appellants.

Decided and Filed February 11, 1983

Before: Encer, and Kerrn, Circuit Judges; and Grson,

Senior Circuit Judge. °

Gusson, Senior Circuit Judge. Defendants appeal their con-

victions for acts relating to the issuance of retail liquor licenses

in Tennessee during the administration of the former governor

of Tennessee, defendant Leonard Ray Blanton.

* Honorable R. Gibson, Senior Circuit J United States

Court of Appeals the Eighth Circuit, sitting by

2 United States v. Blanton, et al. Nos. 81-5643, etc.

I. Facts

The three defendants are Blanton, who served as governor

of Tennessee from January, 1975 to January, 1979, James M.

Allen, who was a special consultant to the governor for the

first six months of the Blanton administration and had served

as Blanton’s campaign manager, and Clyde Edward Hood,

who was a special assistant to the governor from January,

1975 to November, 1977. Defendants were charged on Octo-

ber 29, 1980, in a twelve-count indictment with eight counts

of mail fraud, (18 U.S.C. §§ 2, 1341 (1976) ), one count of

violating the Hobbs Act (18 U.S.C. §§ 2, 1951 (1976) ), and

one count of conspiracy (18 U.S.C. § 371 (1976) ). Blanton

alone was charged with two counts of tax evasion and filing

a false tax return. (26 U.S.C. §§ 7201, 7206(1) (1976)). On

March 12, 1981, a superseding indictment was issued adding

one mail fraud count. The tax counts against Blanton were

severed. The essence of the charges was that defendants

used their positions to see that friends of Blanton would

receive retail liquor licenses from the Tennessee Alcoholic

Beverage Commission (ABC) and that one person paid Blan-

ton for receipt of his license.

The most important evidence against defendants was the

videotaped deposition of Jack Ham. Ham was an immunized

witness who was the recipient of a liquor license during

Blanton’s tenure and who allegedly agreed to give Blanton

a cut of the profits in violation of state law. Ham had

contributed $1,000 to the Blanton campaign.

Blanton's role in the scheme allegedly was that he di-

rected that liquor licenses be awarded to political friends

or persons like Ham who offered a cut of the profits. He

allegedly accomplished this by appointing two of the three

commissioners of the ABC, including the chairman, S. J. King,

and the comiission was therefore able to appoint Blanton

allies as director and assistant director of the ABC. Blanton

allegedly agreed to an illegal twenty percent cut of the

Nos. 81-5643, etc. United States v. Blanton, et al. 3

profits of Ham’s liquor store, with the payment coming in

the form of Ham's purchase of allegedly worthless oil stock

from Blanton for $23,000.' (This method of payment re-

sulted in tax savings to Ham.) Blanton also allegedly ap-

proved a transfer of Ham's liquor license to a more lucrative

location.

Allen was alleged to have been in charge of determining

the awarding of liquor licenses even though he had no position

at the ABC. He allegedly helped set up an illegal ownership

of a liquor store involving the ABC chairman and he at-

tempted to acquire a concealed interest in a liquor store under

the guise of a lucrative consulting contract (only one pay-

ment was made under the contract). He allegedly was

responsibile for hiring a new ABC assistant director to help

control the ABC even though Allen was not even a state

employee at the time, and he instructed the assistant director

to recommend the transfer of Ham’s license to a better location

and recommend against the transfer of other persons’ licenses

to that area.

Hood allegedly planned to acquire an interest in two liquor

stores in contravention of various state laws and he received a

share of the profits of some of the newly licensed liquor stores.

He allegedly told the director of the ABC who Blanton’s

friends were so that the director would recommend to the

ABC that those persons receive licenses. He allegedly helped

accomplish the transfer of Ham’s license by talking to ABC

chairman King and by suggesting a particular person as the

assistant director who would persuade the other Blanton ap-

pointee on the commission. Finally, he allegedly suggested

that Ham pay Blanton’s share of the profits by buying the

worthless oi] stock (although he later advised against the

purchase ).

1A total of $38,000 was allegedly paid for the oil] stock. In addition

to the $23,000 for Blanton's cut of the ae store profits, Ham and

his nephew, Bert Ham, paid another $15,000 as a finder’s fee for

Blanton’s help in getting a loan on a housing project they were

4 United States v. Blanton, et al. Nos. 81-5643, etc.

The scheme violated Tennessee's laws against an ABC com-

missioner having an interest in a liquor store,? public officials

having an interest in a liquor store,? undisclosed interests in

liquor stores, and bribing of public officials.5 The federal

charge was that the acts (1) constituted a conspiracy to

defraud the United States by use of the mails in furtherance

of defendants’ scheme to violate Tennessee law (18 U.S.C.

§ 371), (2) when coupled with mailings, constituted mail

fraud by defrauding the citizens of Tennessee of the honest

services of the government officials (18 U.S.C. §§ 2, 1341),

2Tenn. Code Ann. §57-1-108(a) (1980) provides: “[Njo person

shall be employed in any capacity by the commission, if such person

shall have any interest... in any... retail dealer licensed as

such in the state of Tennessee.”

3 Tenn. Code Ann. § 57-3-210(b) (1) (1980) provides:

No wholesaler’s or retailer’s license shall be issued to a person

who is a holder of a public office... .. It shall be unlawful for

any such person to have any interest in such wholesale or retail

business, directly or indirectly, either proprietary or by means

of any loan, mortgage, or lien, or to participate in the profits of

any such business(.]

4Tenn. Code Ann. §57-3-210(f) (1980) provides: “It shall be

unlawful for any person to have ownership in, or participate, either

directly or indirectly, in the profits of any wholesale or retail business

licensed under this chapter, unless his interest in said business and

wee extent and character thereof shall appear on the applica-

eres

$ Tenn. Code Ann. § 39-081 (1975) provides:

Any person who corruptly offers, promises, or gives to any

executive... officer... any gift, gratuity, or thing of value,

with intent to influence his act, vote, opinion, decision, or

judgment, on any matter, cause, or proceeding which may be

then pending, or which may be by law brought before him in

his official pater shall, on conviction, be imprisoned in the

penitentiary .

Tenn. Code Ann. § 39-802 (1975) provides:

Any executive ... officer who corruptly accepts, or agrees to

accept, any gift or gratuity, or thing of value... under an

agreement or with an understanding that his vote, opinion,

or judgment is to be given in any particular manner, or upon

any particular side of any question or proceeding which is, or

may by law be brought, before him in his official capacity, or

that, in such capacity, he is to make any particular a ge

shall, on conviction, be punished by imprisonment in

penitentiary ....

Nos. 81-5643, etc. United States v. Blanton, et al. 5

and (3) violated the Hobbs Act (interference with commerce

by threats or violence) (18 U.S.C. §§ 2, 1951).

The testimony of the chief prosecution witness, Jack Ham,

was videotaped pursuant to Fed. R. Crim. P. 15(a) because

of Ham’s poor health. The videotape was edited and played

for the jury at the trial. The government obtained Ham’s

testimony offering him immunity from federal prosecution

and civil tax liability, and the state agreed not to prosecute

Ham. The ABC agreed that it would not revoke Ham’s lucra-

tive liquor license on the basis of truthful statements he made

in judicial proceedings.

The trial was preceded hy massive publicity about the case

in Nashville, Tennessee, and throughout the state. as one

would expect in the trial of a former governor. The record

contains over 240 articles from Nashville newspapers adverse

to defendants. There are approximately 160 articles which

appeared in the six months preceding the trial about the

instant prosecution, the prosecution of Blanton’s brother, and

the prosecution of former Blanton aides. There are more than

6 Most of the very negative publicity came shortly after the indict-

ment: “Blanton Faces 12 Counts,” Oct. 30, 1980; “Enlist Blanton’s

Aid in Obtaining Licenses for Future Profits,” Oct. 30, 1980; “Allen's

Influence Had Wide Impact,” Oct. 30, 1980; “Hood’s Success, Woes

Laid To Misdirected Talent,” Oct. 30, 1980; “Blanton-Era Investiga-

tions Span 5 years,” Oct. 30, 1980; “Blanton Faces Two Federal Court

Trials.” Nov. 21, 1980. Not all of the articles were negative:

“Blanton’s Defense Said Good,” Nov. 6, 1980; “Friends Eye Legal Fund

for Blanton,” Nov. 1, 1980. Two months before trial there were

articles on the criminal activities of Blanton aides: “Former ABC

Head Enters Guilty Plea,” Feb. 23, 1981; “Ex-Blanton Aide Enters

Guilty Plea,” Feb. 25, 1981; “ABC Probing Blanton Associate’s

License After Kickback Admission," Feb. 26, 1981. The month before

the trial began the superseding indictment was issued, prompting

more publicity: “Blanton, 2 Aides Indicted Again,” Mar. 12, 1981.

As late as four days before trial articles linked Blanton to improper

pardons of state inmates: “Tapes Link Blanton to 30 Commutations,”

Apr. 16, 1981; “Taylor on Tape Links Ray Blanton To Clemency.

Deals,” Apr. 15, 1981. Blanton’s brother Gene was also in the news

shortly before trial because of alleged improprieties: “Gene Blanton

To Be Accused of Not Telling $72,000 Income,” Mar. 24, 1981; “Gene

Blanton Bought Autos With Business Funds, Says Frensley,” Apr. 16,

1981. Most of the other articles dealt with procedural aspects of

pretrial proceedings.

6 United States v. Blanton, et all. Nos. 81-5643, etc.

seventy-five other articles which appeared while Blanton was

governor concerning his administration.? There are another

twenty-two articles on the deposition of Jack Ham, the last

of which appeared four months before the beginning of the

trial. A large part of the original indictment was published

verbatim in the Nashville newspapers. There was also an

offer of proof concerning the testimony of news directors of

three Nashville television stations about the pretrial publicity.

There can be no doubt that there was an extraordinary amount

of pretrial publicity concerning this case and other cases in-

volving officials of the Blanton administration and some of

Blanton’s relatives.

Jury selection began on” April 20, 1981. Testimony in

the case began on April 22, 1981, and was concluded on May

29, 1981. Closing arguments and jury instructions were com-

pleted on June 2, 1981. The court dismissed three mail fraud

counts and the Hobbs Act count as to Allen. The jury de-

liberated until June 9, 1981, and found Blanton guilty on all

eleven counts. It found Allen guilty on all the counts the

court had not dismissed (six mail fraud counts and one con-

spiracy count). It found Hood guilty on six mail fraud

counts and the conspiracy count, but it found him not guilty

on the other three mail fraud counts and the Hobbs Act

count. Blanton was sentenced to three years and fined

$11,000. Allen was sentenced to two years and fined $14,000.

Hood was sentenced to eighteen months and fined $14,000.

7Most of these articles dealt with patronage in the Blanton

administration and the pardon of prisoners, including the pardon or

commuting of sentences of 52 prisoners, 23 of them murderers.

SSome of the articles were entitled: “Ham Details Meetings

With Blanton,” Dec. 6, 1980; “Ham States Hood was ‘Silent Partner,’”

Dec. 7, 1980: “Ham Threatens TV Cameramen Outside Courthouse.”

Dec. 10, 1980: “Ham Admits Riches, Refutes Testimony On Pay to

Blanton,” Dec. 18, 1980.

Nos. 81-5643, etc. United States v. Blanton, et all. 7

II. Adequacy of Voir Dire

The most difficult issue concerns the adequacy of the voir

dire on the subject of pretrial publicity.

A. Conduct of the Voir Dire

The trial court conducted the voir dire en masse. It seated

a group of veniremen in the jury box and directed questions

at that group, but instructed the rest of the veniremen in the

courtroom to listen to and pay attention to the questions as the

questions would apply equally to all those selected. During

the course of the voir dire the trial court pointed out that the

case had been the subject of considerable media attention. It

commented that it was sure that all the veniremen had heard

about the case, and that some of them may have formed a

tentative opinion concerning the probable guilt or innocence

of the defendants: The court then said to the veniremen:

[T]he test is, will you be able to put from your minds

whatever you may have seen and heard, and any opinion

which you may have tentatively reached, and then to

decide this case solely on the facts as you determine them

to be, on the sole basis of the evidence which will be

adduced in this trial after application of the appropriate

law?

One juror was excused because she indicated she could not be

impartial. As new veniremen entered the jury box to replace the

ones who were excused for whatever reason, the trial court

would ask them essentially the same question on pretrial

publicity. It usually said it wanted to “particularly empha-

size” the point. Out of ninety-two veniremen examined, a total

of thirteen were excused because they indicated they had an

opinion or prejudice they could not put aside. Of these

thirteen, four linked their prejudice to pretrial publicity. Seven

of these thirteen were excused when they said they had an

opinion, without the court inquiring into the nature or strength

10a

8 United States v. Blanton, et al. Nos. 81-5643, etc.

of the opinion or whether it could be put aside. Twenty-nine

other veniremen were excused for cause for other reasons and

the parties excused twenty-eight others with their peremptory

challenges.

Defendants contend that the voir dire was inadequate to

detect prejudice from the pretrial publicity and therefore

violated their rights to due process and an impartial jury as

guaranteed by the fifth and sixth amendments. See Ristaino

v. Ross, 424 U.S. 589, 595 n.6 (1976). They also argue that

the voir dire was inadequate to allow the intelligent use of

their peremptory challenges to remove persons suspected of

bias, and therefore their right to peremptory challenges under

Fed. R. Crim. P. 24(b) was impaired.

B. Scope of Review.

We must first determine the proper scope of review. We

have held “the court’s determination about the questions to be

put to the jury will not be disturbed without a clear showing

of abuse of discretion.” United States v. Blount, 479 F.2d 650,

651 (6th Cir. 1973). See also United States v. Anderson, 562

F.2d 394, 396 (6th Cir. 1977). (“Traditionally, a wide latitude

of discretion is accorded the trial court in the selection of

jurors.”) The trial court is accorded this discretion because

demeanor plays an important part in the determination of

impartiality, and the adequacy of the voir dire is not easily

subject to appellate review. Rosales-Lopez v. United States,

451 U.S. 182, 188 (1981). A trial court’s assessment of the

force of a venireman’s opinion or its finding of impartiality

should be set aside only where the error is manifest. Irvin v.

Dowd, 366 U.S. 717, 723-24 (1961); Haney v. Rose, 642 F.2d

1055, 1060 (6th Cir.), cert. denied, 452 U.S. 908 (1981).

On other hand, the federal rules limit that discretion by the

“essential demands of fairness.” United States v. Johnson, 584

F.2d 148, 155 (6th Cir. 1978), cert. denied, 440 U.S. 918

(1979); Aldridge v. United States, 283 U.S. 308, 310 (1931)

lla

Nos. 81-5643, etc. United States v. Blanton, et al. 9

Furthermore, in the case of a federal defendant, the court

can presume prejudice in some instances, in contradistinction

to a state habeas petitioner who must demonstrate prejudice.

Goins v. McKeen, 605 F.2d 947, 951, 951 nn.7 & 8 (6th Cir.

1979); see Marshall v. United States, 360 U.S. 310, 312-13

(1959) (per curiam). “A fair trial in a fair tribunal is a basic

requirement of due process.” In re Murchison, 349 U.S. 133,

136 (1955). When appropriate, as in highly publicized cases,

it is “the duty of the Court of Appeals to independently evalu-

ate the voir dire testimony of the impaneled jurors.” Irvin

v. Dowd, 366 U.S. at 723. As noted in Johnson:

{T]he ‘essential function of voir dire is to allow for the

impaneling of a fair and impartial jury through questions

which permit the intelligent exercise of challenges by

counsel.’ A.jtrial court commits reversible error if, by

unduly restricting voir dire, it substantially impairs the

peremptory challenge right. Where veniremen have been

exposed to prejudicial publicity, the nature and degree

of that exposure is certainly a matter of legitimate con-

cern to a defense attorney in deciding on peremptory

challenges.

584 F.2d at 155 (citations omitted).

C. Removal for Cause.

The first part of defendants’ argument is that the voir dire

was inadequate to determine which veniremen should have

been excused for cause. The trial court undoubtedly applied

the right test: Whether the veniremen could lay aside their

impressions or opinions and render a verdict based on the

evidence presented in court. Irvin, 366 U.S. at 723; Johnson,

584 F.2d at 154. The dispute in this case is whether the pro-

cedure was adequate to determine if the veniremen could lay

aside any opinions they had formed about the case. In other

words, to what extent could the court rely on the veniremen’s

l2a

10 United States v. Blanton, et al. Nos. 51-5643, etc.

assurances of impartiality. Cases from the Supreme Court

and federal circuit courts given different indications as to

the answer to that question.

This court implied in Johnson that a court can accept a

juror’s assurances of impartiality when deciding whether to

excuse a venireman for cause. In Johnson, the trial court

had asked the veniremen whether they had heard or read

about the case. Most were questioned individually and were

asked when and where they heard about the case. The venire-

men assured the court that their prior knowledge would not

affect their ability to render an impartial verdict. After noting

this information, the Sixth Circuit said that the veniremen

could not have been challenged for cause because it was suf-

ficient that the veniremen could lay aside preconceptions. 584

F.2d at 155, 155 n.16. On the other hand, we have cited the

Supreme Court's pronouncement that “the juror’s assurances

that he is equal to this task cannot be dispositive of the

accused's rights.” United States v. Giacalone, 588 F.2d 1158,

1163 (6th Cir. 1978), cert. denied, 441 U.S. 944 (1979),

quoting Murphy v. Florida, 421 U.S. 794, 800 (1975). In

Giacalone the court found the voir dire adequate because the

voir dire did not indicate a hostility on the part of the jurors

toward the defendant. Id. In Goins the court held that the

jurors’ assurances of impartiality were insufficient in the cir-

cumstances presented. 605 F.2d at 953 (6th Cir.). However,

Goins can be distinguished on the basis that it dealt with

publicity during a trial, which creates a greater threat of

prejudice. Id. at 952; see Sheppard v. Maxwell, 384 U.S. 333,

354-55 (1966) (trial court's failure to take precautions against

influence of pretrial publicity alone not a denial of due process

except when considered in setting of trial publicity ).

We cannot consider Johnson dispositive of the instant case

because the court did not state that the assurances of the

veniremen that they would be impartial was alone sufficient.

In Johnson, unlike the instant case, there was individual ques-

tioning and there were inquiries into when and where the

l3a

Nos. 81-5643, etc. United States v. Blanton, et al. ll

veniremen were exposed to the publicity. Therefore we will

examine the cases from the Supreme Court and other circuits.

The underlying concern with veniremen making their own

assessment of their impartiality was expressed by Chief Justice

Marshall when he faced the problem of pretrial publicity as

the presiding judge at the trial of Aaron Burr in 1807. Chief

Justice Marshall noted that a person will be excused for cause

because of his relationship to the parties or because of personal

prejudice, even if he promises to make his decision based

solely on the evidence. The law will not trust such a person.

United States v. Burr, 25 F. Cas. 49, 50 (No. 14,692g) (CC. Va.

1807 ). Chief Justice Marshall queried: “Is there less reason to

suspect him who has prejudged the case, and has deliberately

formed and delivered an opinion upon it? ... He will listen

with more favor to that testimony which confirms, than to that

which would change his opinion.” Id.

The problem of veniremen assessing their own impartiality is

most acute when the circumstances command a presumption

of partiality on the part of the venire. The Supreme Court has

acknowledged that this presumption can arise when the pub-

licity is highly sensational or inflammatory, as opposed to fac-

tual and straightforward. Murphy v. Florida, 421 U.S. 794,

802 (1975); United States v. McNally, 485 F.2d 398, 403 (8th

Cir. 1973), cert. denied, 415 U.S. 978 (1974). Murphy also

said that the effect of prejudicial publicity is indicated by the

number of veniremen who have an opinion as to the defendant's

guilt. The court felt that twenty persons with opinions out

of seventy-eight veniremen showed that the community was not

poisoned with sentiment against the defendant. Murphy, 421

U.S. at 803.

What most courts consider the most important element in

determining whether a presumption of prejudice should arise

is the strength of the venireman’s opinion which he is asked to

set aside. Chief Justice Marshall stated:

l4a

12 United States v. Blanton, et al. Nos. 81-5643, etc.

[Ljight impressions which may fairly be supposed to

yield to the testimony that may be offered, which may

leave the mind open to a fair consideration of that testi-

mony, constitute no sufficient objection to a juror; but

that those strong and deep impressions which will close

the mind against the testimony that may be offered in

opposition to them, which will combat that testimony,

and resist its force, do constitute a sufficient objection to

him.

... The question must adways depend on the strength

and nature of the opinion which has been formed.

25 F. Cas. at 51 (emphasis added).

In the leading pretrial publicity case the Supreme Court

said there can be a presumption of partiality in some cases:

“(T]he test is ‘whether the nature and strength of the opinion

formed are such as in law necessarily . . . raise the pre-

sumption of partiality. The question thus presented is one of

mixed law and fact... .” Irvin, 366 U.S. at 723, quoting

Reynolds v. United States, 98 U.S. 145, 156 (1878).

Courts differ on the extent to which a trial court can rely on

a juror’s assessment of his impartiality. As stated above, we

implied in Johnson that a juror can assess his own impartiali'y.

But Giacalone cited Murphy, where the Supreme Court stated

in dicta: “(T}he juror’s assurances that he is equal to this task

cannot be dispositive of the accused's rights, and it remains

open to the defendant to demonstrate ‘the actual existence of

such an opinion in the mind of the juror as will raise the

presumption of partiality.” 421 US. at 800, quoting Irvin, 366

U.S. at 723. And in Irvin the Court said:

No doubt each juror was sincere when he said that he

would be fair and impartial to petitioner, but the psy-

chological impact requiring such a declaration before

one’s fellows is often its father. Where so many, so

many times, admitted prejudice, such a statement of im-

partiality can be given little weight.

15a

Nos. 81-5643, etc. United States v. Blanton, et al. 13

346 U.S. at 728. On the other hand, the Supreme Court has

said that the representation of a federal employee juror that he

will be impartial in a federal case must be credited. Dennis v.

United States, 339 U.S. 162, 170-71 (1950).

Most of the other circuits disapprove of relying on jurors’

assurances of impartiality, although the strength of that disap-

proval varies. In three circuits, reliance on juror’s assurances

was disapproved under facts very similar to the instant case.

The Fifth Circuit observed: “The juror is poorly placed to

make a determination as to his own impartiality. Instead the

trial court should make this determination.” United States v.

Davis, 583 F.2d 190, 197 (5th Cir. 1978). The court in Davis

said that because publicity raised a significant possibility of

prejudice, “[t]he court should have determined what in par-

ticular each juror had heard or read and how it affected his

attitudes toward the trial, and should have determined for

itself whether any juror’s impartiality had been destroyed.” Id

at 196. The court said that separate examination of jurors is

preferable, but not necessarily required. Id. at 196-97. Finally,

the court recommended a procedure for trial courts to follow:

An acceptable procedure is described in U.S. v. Hyde,

448 F.2d 815 (CA5, 1971), cert. denied, 404 U.S. 1058,

.. Which dealt with publicity during the course of trial.

Even though we held that the publicity was not preju-

dicial, we were critical of the trial court’s asking the jury

as a whole if anyone was exposed to publicity that would

prevent him from impartially deciding the case. We said:

[T]his Circuit has determined that it is for the court,

not the jurors themselves, to determine whether

their impartiality has been destroyed by any prejudi-

cial publicity they have been exposed to. Therefore,

when there has been publicity that would possibly

prejudice the defendants case if it reached the

jurors, the court should first ask the jurors what in-

formation they have received. Then it should ask

about the prejudicial effect and it should make an

l6a

14 United States v. Blanton, et al. Nos. 81-5643, etc.

independent determination whether the juror’s im-

partiality was destroyed.

Id. at 197. See also United States v. Hawkins, 658 F.2d 279,

282-85 (5th Cir. 1981). The Second and Ninth Circuits came

to similar conclusions regarding a juror’s ability to assess his

own partiality. United States ex rel. Bloeth v. Denno, 313 F.2d

364, 371-73 (2nd Cir. in banc), cert. denied, 372 U.S. 978

(1963) (jurors’ assurances that they could render an impartial

verdict despite opinions formed by pre-trial publicity insuffi-

cient to show impartiality; change of venue constitutionally

required ); Silverthorne v. United States, 400 F.2d 627, 637-40

(9th Cir. 1968) (relies on Bloeth, supra; when every juror

had some knowledge of case and almost thirty percent had

opinions as to defendant’s guilt, jurors’ assurances of impar-

tiality insufficient; jurors should have been questioned indi-

vidually ).

The Seventh Circuit has also found jurors’ assurances inade-

quate, but in the case in which it did so the trial court did not

emphasize the importance of putting aside the publicity be-

fore asking a general question on impartiality, as did the trial

court in the instant case. United States v. Dellinger, 472 F.2d

340, 367-70 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973).

Two circuits have stated in strong language, but in dicta,

that a juror’s assurances are insufficient. In a case where the

defendant waived an objection to the composition of the jury,

the First Circuit stated: “[A] single question posed to the

panel en bloc, with an absence of response, achieves little or

nothing by way of identifying, weighing, or removing any

prejudice from prior publicity.” Patriarca v. United States,

402 F.2d 314, 318 (1st Cir. 1968), cert. denied, 393 U.S. 1022

(1969). The court added that the jurors should have been

questioned individually to determine the kind and degree of

the exposure to the case, the effect of the exposure, and the

extent to which the state of mind was immutable or subject

to change from evidence. Id.

17a

Nos. 81-5643, etc. United States v. Blanton, et al. 15

The District of Columbia Circuit has acknowledged in dicta

that under some circumstances relying on jurors’ assurances

of impartiality is insufficient, but the court has not yet found a

case where the district court procedures were inadequate.

United States v. Caldwell, 543 F.2d 1333, 1345-46 (D.C. Cir.

1974), cert. denied, 423 U.S. 1087 (1976) (no objection by

defendants to district court procedure; individual questioning

of jurors who had heard about the case); United States v.

Liddy, 309 F.2d 428, 436-37 (D.C. Cir. 1974), cert. denied, 420

U.S. 911 (1975) (individual questioning of veniremen who in-

dicated they might have formed an opinion on the case);

United States v. Bryant, 471 F.2d 1040, 1044 (D.C. Cir. 1972),

cert. denied, 409 U.S. 1112 (1973) (individual questioning of

veniremen who responded affirmatively to general questions ).

Two other circuits have cited Murphy for the proposition

that jurors’ assurances of impartiality are not dispositive, but

in both of those cases the procedures were found to be ade-

quate. United States v. Provenzano, 620 F.2d 985, 995 (3rd

Cir.), cert. denied, 440 U.S. 899 (1980) (publicity not preju-

dicial ); Brinlee v. Crisp, 608 F.2d 839, 845-46 (10th Cir. 1979),

cert. denied, 444 U.S. 1047 (1980) (individual questions on

pretrial publicity; minimal publicity; relatively few veniremen

had opinions).

This survey of the cases from nearly every circuit suggests

less deference to a juror’s assessment of his impartiality than

the sixth Circuit implied was appropriate in Johnson, 584 F.2d

148. It appears that the Second, Fifth, Ninth and Eleventh®

Circuits would reverse in a case like the one at bar. Dicta

from the First and District of Columbia Circuits indicate they

would reverse. The Third, Seventh, and Tenth Circuits ex-

pressed suspicion of jurors’ assurances of impartiality, but the

facts in the cases from those circuits differ too much from the

instant case to determine how those courts would ultimately

9The Eleventh Circuit follows the law of the old Fifth Circuit.

Bonner v. City of Prichard, 661 F.2d 1206, 1207 (1981).

18a

16 United States v. Blanton, et al. Nos. 81-5643, etc.

rule. No court has approved of questioning as limited as the

questioning in this case where there was substantial pretrial

publicity. The questioning here can be considered limited only

as it relates to the effect of the pervasive publicity, and the

extent and depth of the individual talesmen’s exposure to the

massive publicity; otherwise the voir dire was admirably con-

ducted by trial court.

In another case from this circuit, the court discussed a juror’s

assessment of his impartiality in the context of his ability to

accept the proposition of law that a defendant is presumed

innocent. The trial court refused to ask the veniremen whether

they could accept that proposition and the Sixth Circuit re-

versed for this refusal. Blount, 479 F.2d at 651. However, the

concurring judge in Blount felt that the trial court did enough

by asking the jurors whether they would accept the charge of

the court on the law as it applied to the evidence. Id. at 652.

The trial court’s questioning was less extensive here than

in any of the cases from other circuits which found the ques-

tioning adequate. No inquiry was made of the veniremen

about the extent of their exposure to the case, although the

amount of coverage may have made the trial court’s assump-

tion that everyone had heard about the case correct. Never-

theless, the answers to this question would have shed light on

the credibility of other answers.

More important, the trial court did not ask the veniremen

whether any had formed an opinion about the case. The num-

ber of persons answering affirmatively could have indicated

the extent to which the minds of persons in the community

had been “poisoned” by the publicity. See Murphy, 421 U.S.

at 803. If only a few persons said they had opinions, the trial

court may have excused all of the veniremen so indicating. De-

pending on the number of persons responding affirmatively,

further questioning may have been necessary to determine

whether the opinions were light tmpressions or strong and

deep impressions. See United States v. Burr, 25 F. Cas. at 51.

19a

Nos. 81-5643, etc. United States v. Blanton, et al. 17

The voir dire here was not sufficient to determine the

percentage of veniremen who had a preconceived opinion,

Murphy, 421 U.S. at 803, and it was not sufficient to determine

the strength of the opinions. The publicity was not such that it

was inherently prejudicial. It was massive and pervasive,

but mostly factual and some of it was as critical of defendants’

chief accuser as it was of defendants. Therefore, questions

about who held opinions would not necessarily have been

futile; there might have been only a small number of venire-

men holding opinions.

Admittedly, questioning as to the strength of opinions may

have had to be done individually because of the possibility

of contaminating the other veniremen. However, other circuits

have acknowledged that individual questioning will at times

be necessary. See, e.g., Patriarca, 402 F.2d at 318 (1st Cir.);

Silverthorne, 400 F.2d at 639 (9th Cir.). See also, ABA

Standards Relating to Fair Trial and Free Press, § §-3.5 and

commentary (Approved Draft 1978). On the other hand, trial

courts may be under constitutional restrictions not to shut out

the press and public from voir dire proceedings, In re United

States ex rel. Pulitzer Publishing Co., 635 F.2d 676, 679-80

(Sth Cir. 1980) (Gibson, J., concurring), raising questions

about the propriety of calling a veniremen to the bench for

individual questioning.

While the issue of voir dire as it relates to obtaining an im-

partial and unbiased jury is often a close one, entailing the

balancing of competing considerations, we here are driven to

the conclusion that there was insufficient questioning of the

veniremen to be able to conclude that they were impartial

notwithstanding the massive pretrial publicity; and thus the

defendants’ fifth amendment right to due process and sixth

amendment right to an impartial jury were violated.

20a

18 United States v. Blanton, et al. Nos,.81-5643, etc.

D. Peremptory Challenges.

Another and further question arises in connection with the

peremptory challenges. Even assuming that the voir dire met

the constitutional standards, there remains the question of

whether the voir dire was so inadequate that it impaired the

right to exercise peremptory challenges under Fed. R. Crim.

P, 24(b). ;

The Supreme Court has recognized the importance of per-

emptory challenges: “(P]eremptory challenge is a necessary

part of trial by jury. . . . [T]he challenge is ‘one of the

most important of the rights secured to the accused... .’”

Swain v. Alabama, 380 U.S. 202, 219 (1965), quoting Pointer

v. United States, 151 U.S. 396, 408 (1894). Voir Dire is essen-

tial in permitting the intelligent use of peremptory challenges,

and the impairment of the peremptory challenge right is re-

versible error without a showing of prejudice. Id. at 219;

Johnson, 584 F.2d at 155 (6th Cir.) (a trial court commits

reversible error if by unduly restricting voir dire, it substan-

tially impairs the peremptory challenge right). On the other

hand, the purpose of the peremptory challenge is to obtain an

impartial jury, not one sympathetic to a party's position. C.

Wright, Federal Practice and Procedure § 381, at 332-33

(1982).

This court has stated that a party has a right to have a ques-

tion asked during voir dire if an anticipated response would

afford the basis for a challenge for cause. Blount, 479 F.2d at

651. Where veniremen have been exposed to prejudicial pub-

licity, the nature and degree of the exposure is certainly a

matter of legitimate concern to a defense attorney in deciding

upon peremptory challenges. Johnson, 584 F.2d at 155. In the

interest of expediency, “trial courts can ordinarily restrict voir

dire on the subject of pre-trial publicity to the questioning of

veniremen on the sources and intensity of exposure and the

juror’s ability to disregard the publicity in reaching a verdict.”

Id. The court in Johnson found the voir dire adequate because

2la

Nos, 81-5643, etc. United States v. Blanton, et al. 19

the defense had failed to establish a foundation for inquiry

into recollection of prejudicial matter. Id. at 156.

According to Johnson, the voir dire can be limited to ques-

tions on (1) sources of exposure, (2) intensity of exposure,

and (3) a venireman’s ability to disregard the publicity. Id. at

155. The trial court only asked questions in the third area.

And, according to Irvin, this is the ultimate issue. 366 U.S. at

723. Viewed thusly, perhaps the first two questions are irrele-

vant once the third one is answered However, we find this

reasoning deficient, in ignoring two factors: (1) answers to the

first two questions could help a trial court assess the credibility

of a venireman’s assurance that he could disregard the pub-

licity, and (2) such information is certainly necessary to make

an intelligent and meaningful use of the peremptory chal-

lenges.

The trial court’s questioning did not help the defense coun-

sel with peremptory challenges because an affirmative response

to the question it asked would require the venireman he ex-

cused for cause. Information on whether a venireman had an

opinion he felt he could put aside or the extent and nature of

the publicity he encountered could have assisted defense

counsel. In this case, we think the failure to ask such ques-

tions is an “impairment” requiring reversal. The fact that the

court excused veniremen who said they had an opinion did

not cure the deficiency in the questioning. That information

was volunteered; it did not come in response to the court's

questions. Therefore veniremen who held opinions might have

gone undetected.

The implication in Johnson is that the failure to ask questions

on the sources and intensity of exposure to pretrial publicity is

an impairment of the peremptory challenge right. Likewise,

the Third Circuit has stated that the parties have a right to

some surface information which might furnish a basis for an

intelligent exercise of peremptory challenges based on a lack

of impartiality. United States v. Segal, 534 F.2d 578, 581 (3rd

Cir. 1976); accord United States v. Baldwin, 607 F.2d 1295,

22a

20 United States v. Blanton, et al. Nos. 81-5643, etc.

1297 (9th Cir. 1979). The Seventh Circuit also requires that

the questions be more than conclusory; they must allow for

intelligent exercise of peremptory challenges. Dellinger, 472

F.2d at 367-68.

On the other hand, an “impairment” of the peremptory chal-

lenge right could be seen as limited to situations where the

number of challenges is effectively reduced when a trial court

erroneously fails to excuse veniremen for cause. See C. Wright,

Federal Practice and Procedure § 384, at 371, 371 n.5 (1982).

However, we agree with the implication in Johnson that the

voir dire should provide some surface information so the par-

ties can use their peremptory challenges in an intelligent or

purposeful manner.

In the instant case, where their was substantial, even mas-

sive pretrial publicity, the voir dire should have been exten-

sive enough to allow defendants to learn which veniremen

were most exposed to publicity, from what sources that

exposure came, and who held opinions. That information would

have helped defendants detect suspected biases and use their

peremptory challenges accordingly, helping to insure an im-

partial jury. The defendants had no information which would

cause them to suspect biases which either were not strong

enough for disqualification for cause or were not evident

enough for the court to believe disqualification was in order.

The lack of such information was an impairment of the per-

emptory challenge right, and would of itself require reversal.

We are not unmindful of the trial court’s finding that the

“jury selected is as fair and impartial a jury as could be ob-

tained” and that a trial judge must be accorded considerable

latitude and allowed a range of flexibility in impaneling a petit

jury. Also we note that an appellate court will not interfere

with the jury selection process absent an abuse of discretion.

Blount, 479 F.2d at 651; United States v. Owens, 415 F.2d

1308, 1315 (6th Cir. 1969), cert. denied, 397 U.S. 997 (1970);

Silverthorne, 400 F.2d at 638. Although the trial court’s finding

might be correct, there is no way on this record to probe that

23a

Nos. 81-5643, etc. United States v. Blanton, et al. 21

finding since the record is silent on the extent of the venire-

men’s exposure to the pretrial publicity and the depth and

extent of their personal reactions to the massive publicity. We

conclude as a matter of fairness that the court should have

probed into the effect of the publicity upon the prospective

jurors, both for challenges for cause and for the exercise of

peremptory challenges.

III. Prosecutorial Misconduct

Our conclusion on the voir dire issue requires reversal and

a remand to the district court for a possible retrial. However,

one of the issues raised by defendants could require outright

dismissal. Defendants argue that there was prosecutorial mis-

conduct requiring dismissal of the indictment. They argue

alternatively that Jack Ham’s testimony should have been

suppressed because of the prosecutorial misconduct. We hold

that the prosecutors’ conduct does not warrant dismissal of the

indictment. For purposes of guidance on remand, we point out

that we find no error in the trial court’s failure to suppress

Ham’s testimony.

Defendants argue that there were several types of prosecu-

torial misconduct. The first alleged misconduct is the govern-

ment’s procuring of an agreement from the ABC not to revoke

Ham’s liquor license on the basis of truthful statements he gave

at judicial proceedings.'"° Ham wanted this agreement be-

10 The executive director of the ABC wrote a letter to an Assistant

United States Attorney on April 23, 1980, saying:

It would be my recommendation in any future [ABC] pro-

ceedings that no punitive action by the [ABC] be taken inst

this individual [Jack Ham] or any license he might hold, in-

cluding revocation of ABC retail license, because of his truthful

testimony before the Grand Jury or future judicial proceedings

in either the Federal or State Court’s systems.

This letter was written without the knowledge of the ABC commis-

sioners. The United States Attorney’s office later contacted the three

ABC commissioners, and they all stated orally that they did not intend

to revoke Ham's license based on the manner in which it was obtained.

24a

22 United States v. Blanton, et al. Nos. 81-5643, etc.

cause fraudulent acquisition of a license is grounds for revoca-

tion of the license.'' The government convinced ABC officials

that the best interests of all concerned would be served if

Ham did not have to fear losing his license because of his

testimony. Defendants argue that this agreement was im-

proper in two ways. The first is that the agreement constituted

mail fraud because under the agreement ABC officials were

forgoing a statutory duty to investigate fraudulently obtained

licenses.‘ The second is that the agreement violated 18

U.S.C. § 201(h) (1976), which prohibits the giving of some-

thing of value in exchange for testimony.'*

We find defendants’ claim to be without merit. First, the

government committed no fraud by encouraging the ABC not

to revoke Ham’s liquor license. The government wanted the

11 Tenn. Code Ann. § 57-3-104(c) (1980) provides:

[The ABC] shall have and exercise the following functions,

duties and powers, to wit:

(2) To refuse to issue a license or permit if, upon

investigation, it finds that the applicant for a license or

12 See note 11, supra.

Nos. 81-5643, etc. United States v. Blanton, et al. 23

ABC to forgo revocation, and the ABC agreed to do so. State

law does not require revocation,’* so the decision regarding

Hams license did not interfere with any statutory duty on the

ABC’s part. The only duty which apparently was not adhered

to was that of requiring the licensee to show cause why his

license should not be revoked. However, the government did

not ask the ABC to forgo this procedure. Perhaps if a

“show cause” hearing had been held, the ABC would have

allowed Ham to keep his license because of its prior commit-

ment. Forgoing what could have been a futile hearing was not

part of the promise the ABC made to the government. The

government did not do anything to defraud the state of Ten-

nessee of the fair and honest services of the ABC.

Likewise, we find no violation of § 201(h). The purported

“thing of value” — a liq: ~~ license __ was not offered by the

government. The ABC director believed that the public in-

terest would be served by exposure of possible corruption in

the ABC during the Blanton administration. Admittedly, the

government encouraged the ABC to adopt this viewpoint. But

there was no evidence that it had anything at its disposal other

than the power of persuasion; there is no evidence of any

coercive power on the government's part. Therefore, the offer

cannot be said to have come from the government.

Furthermore, even if the ABC were merely the agent of the

government, the government did not “give” a thing of valuc.

There was merely the preservation of the status quo. Regard-

less of whether or not Ham cooperated with authorities, the

ABC could have allowed Ham to keep his license. We do not

characterize the ABC’s failure to exercise a discretionary power

the “giving” of a thing of value. Therefore, the trial court

properly declined to exercise its supervisory powers to dismiss

the indictment or suppress Ham’s testimony.

Defendants also allege prosecutorial misconduct in the

government's not telling the grond jury about the ABC agree-

14 See note 11, supra.

26a

2 United States v. Blanton, et al. Nos. 81-5643, etc.

ment. Ham appeared before the grand jury twice. The first

time no mention was made of the ABC agreement. The second

time the grand jury was told that the United States Attorney’s

office would inform the ABC of Ham’s cooperation, but it was

told that the ABC had already indicated a willingness to forgo

action on Ham’s license.

We also find this claim to be without merit. Although the

government could have given a more complete description of

its agreement with Ham, its failure to do so was not the type

of extreme conduct required for dismissal of the indictment.

See United States v. Nembhard, 676, F.2d 193, 199 (6th Cir.

1982). Furthermore, the government is under no duty to

provide evidence which would be favorable to the defendant,

United States v. Ruyle, 524 F.2d 1133, 1135-36 (6th Cir. 1975),

cert. denied, 425 U.S. 934 (1976), such as by undermining the

credibility of government witnesses. United States v. Trass,

644 F.2d 791, 796-97 (9th Cir. 1981). Therefore, the trial court

neither had to dismiss the indictment nor suppress Ham’s testi-

mony; the courts are and should be reluctant to interfere in

the executive functions of the prosecutor in making presenta-

tions to a grand jury.

Blanton alleges other prosecutorial misconduct in not telling

the grand jury that Ham admitted lying about a $5,000 payoff

to Blanton as well as other matters, and in not trying to resolve

a conflict in testimony between Jack Ham and another govern-

ment witness, Jack Ham’s nephew, Bert. We again find no

misconduct.

Blanton is wrong in asserting that the grand jury was not told

about Ham’s lying as to the $5,000 payment. The grand jury

was fully informed that Ham believed he was mistaken about

making the $5,000 payment to Blanton. This payment was not

included in the indictment. As to other purported lies, Ham's

statement that he told government representatives that he was

lying is contradicted by the government representatives. The

evidence of prosecutorial misconduct in this regard is insuf-

27a

Nos. 81-5643, etc. United States v. Blanton, et al. 25

ficient to warrant dismissal of the indictment or suppression of

the evidence.

The testimony of Bert Ham contradicted Jack’s in that Bert

said Jack skimmed profits and Jack denied the allegations.

Blanton argues that one of the government witnesses, either

Jack or Bert, had to be lying, and the government therefore

violated the due process clause by presenting a witness it knew

was lying. Blanton relies on United States v. Basurto, 497

F.2d 781, 785 (9th Cir. 1974), for the proposition that a party

need not stand trial on an indictment based on material per-

jured testimony. But in this case the perjury was not material;

it was collateral to the issue of Blanton’s guilt. Also, the gov-

ernment could not in this proceeding adjudicate who was

truthful; it properly left the matter to the jury to resolve.

Bert’s testimony undercut the credibility of the government’s

chief witness, Ham. If Bert was the perjuror, the testimony

only unfairly hurt the government’s case. If Jack Ham did skim

profits, the government weakened his credibility by presenting

Bert’s testimony. We fail to see how the conflict harmed

Blanton; indeed, it may have helped him. Therefore, there was

no prosecutorial misconduct warranting dismissal of the indict-

ment or suppression of Ham’s testimony."

15 Defendants alleged another instance of prosecutorial misconduct

in a separate appeal from an order of the court below. That appeal

stemmed from the revocation of Ham’s immunity during the course of

the trial The government revoked Ham’s immunity after concluding

that Ham lied when he denied skimming profits. On May 16, 1981,

almost one month into the trial, the government revoked Ham’s

immunity and Ham was indicted two days later. After the trial,

Ham successfully sought to have the indictment dismissed on the

basis that the immunity revocation was improper. Evidence adduced

at a hearing on Ham’s motion to dismiss indicated that the indict-

ment might have been a ploy by the government to show the jury

that Ham was being forced to obey his immunity agreement. De-

fendants felt this revelation was new evidence of prosecutorial mis-

conduct and sought a new trial. The trial court lacked jurisdiction to

grant a new trial because the instant appeal had already been filed,

and the court refused to certify to this court that it was inclined to

grant the motion. The trial court made that ruling because defense

counsel insisted that the jury be told about the indictment and the

indictment would not help the government’s case. Defendants ap-

pealed the trial court’s refusal to certify, which was consolidated

with the instant appeal for purposes of oral argument. We disposed

28a

26 United States v. Blanton, et all. Nos. 81-5643, etc.

IV. Other Issues.

Our conclusions on the voir dire and prosecutorial miscon-

duct issues dispose of the case. However, some of the other

issues raised on appeal by defendants could reappear at a re-

trial, so we will address those issues.

A. Change of Venue.

Only Blanton and Allen moved, pursuant to Fed. R. Crim.

P. 21(a), for a change of venue, and only Blanton appeals on

this issue. Blanton specifically moved for a change of venue

from the Middle District of Tennessee to the Eastern District

of Tennessee. The trial court denied both defendants’ motions.

A grant or denial of a change of venue motion is a matter

within the discretion of the trial judge. United States v. Eth-

eridge, 424 F.2d 951, 967 (6th Cir. 1970), cert denied, 400 U.S.

993, 1000 (1971), cert. dismissed sub. nom. Bostic v. United

States, 402 U.S. 547 (1971). A more thorough voir dire on the

publicity issue would have better shown whether there was a

need for a change of venue. The court had the power to

change the venue to a lo@Mtion outside Tennessee even though

Blanton specifically requested the Eastern District of Ten-

nessee. Fed. R. Crim. P. 21(a). If, on remand and after at-

tempting voir dire, the district court should conclude that a

change of venue is still necessary in order to accord the de-

fendants a fair trial, it is free to order a change of venue at

that time. Johnson, 584 F.2d at 154 (6th Cir. 1978). How-

ever, the record before us does not show that a more inquisi-

tive voir dire would necessarily be insufficient to protect de-

fendants’ right to an impartial jury.

B. Severance of Hood.

Hood appeals the trial court’s denial of his motion to sever

ee Soe ee oo ees eee,

finding the trial court’s order unappealable. United States v 1

No. 82-5091 (M.D. Tenn. Jan 10, 1983).

29a

Nos. 81-5643, etc. United States v. Blanton, et al. 27

pursuant to Fed. R. Crim. P. 14. Hood argues that the voir

dire was insufficient for the trial court to determine whether

juror prejudice toward Blanton would prejudice Hood.

The decision to grant or deeny a severance is a matter of

discretion for the trial court. Etheridge, 424 F.2d at 967. A

more thorough voir dire on the publicity issue would reveal

whether there was any prejudice against Blanton that the

jurors could not put aside and it might reveal whether such

prejudice would affect Hood. However, the nature of the

case does not appear to be such that negative attitudes toward

Blanton would necessarily affect Hood. Indeed, Hood was ac-

quitted on three counts on which Blanton was found guilty.

Even with the voir dire as conducted, there was not enough

evidence from other sources to show prejudice toward Hood

which would require severance.

C. Jury Instructions.

Defendants Allen and Hood make two complaints about the

jury instructions. The first is that the court erred in charging

the jury that the government did not violate the law prohibit-

ing the bribing of witnesses (18 U.S.C. § 201(h)) by obtain-

ing the commitment from the ABC regarding Jack Ham’s

liquor license. As we stated in Section III, this was a correct

statement of the law. Therefore, we find no error in this in-

struction.

Defendants also complain of the instruction that the alleged

scheme to violate Tennessee liquor laws (those prohibiting

office holders and public employees from having an interest

in liquor stores and prohibiting concealed interests) would

be a scheme’ to defraud.'® Defendants argue that the jury

16 The trial court described the state laws which were allegedly

violated and then said: “The defendants deny that they or either of

them entered into a scheme to violate such liquor laws. We charge

you that a scheme or plan to violate these laws in this manner

would be a scheme to defraud.”

30a

28 United States v. Blanton, et al. Nos. 81-5643, etc.

should have been permitted to decide for itself whether de-

fendants’ acts constituted a scheme to defraud because this was

a question of fact for the jury.

We believe the instruction was proper. It did not remove

from the jury the determination of an essential matter. The

district court merely defined a scheme to defraud, and it did

so by saying that the scheme alleged to have been conducted

would be a scheme to defraud under the mail fraud statute.

Other circuits have approved instructions that define a scheme

to defraud in the context of the facts of the case. United States

v. Bush, 522 F.2d 641, 651, 651 n.10 (7th Cir. 1975), cert.

denied, 424 U.S. 977 (1976); see United States v. Rowe, 56

F.2d 747, 749 (2nd Cir.) (Hand, J.), cert. denied, 286 U.S.

554 (1932).

D. Exclusion of Testimony.

Finally, Blanton argues the trial court made incorrect evi-

dentiary rulings in limiting the testimony of some of his wit-

nesses. Blanton called fifteen witnesses who were prepared to

testify that Blanton was free from corruption; most of these

witnesses were members of his cabinet. Blanton wanted to

call these witnesses to rebut the allegation in the indictment

that Blanton was out to defraud the citizens of Tennessee of

the honest services of their governor. The court allowed one

person to so testify, but ruled that the testimony of the other

witnesses would be limited to showing how little of Blanton’s

time was devoted to ABC matters and how little time he

would have had to devote to these matters. The court felt

the questioning desired by Blanton would allow the govern-

ment to bring up corruption in areas other than the ABC, and

this could prejudice the other defendants. The court also felt

that the questions would not be relevant because the court

intended to charge the jury to consider only corruption in the

ABC, and it did so.

The trial court weighed the probative value of the evidence

3la

Nos. 81-5643, etc. United States v. Blanton, et al. 29

against its danger of unfair prejudice pursuant to Fed. R. Evid,

403 and concluded that the testimony should be limited to

certain areas. A trial court’s evidentiary ruling will be dis-

turbed on appeal only when there is a grave abuse of discre-

tion. United States v. Jenkins, 525 F.2d 819, 824 (6th Cir.

1975). The court’s weighing was reasonable and clearly not an

abuse of discretion.

V. Conclusion

It is fundamental in our system of justice that a defendant

has the right to a trial by an impartial jury. A prominent de-

fendant has no greater right than any other citizen. But in a

highly publicized case steps must be taken that would not be

necessary in the ordinary case to ensure that the defendant

stands trial before a group of impartial jurors. The right to

an impartial jury is so important that we require that the

record show that adequate steps were taken to make sure the

jurors were unbiased. We reluctantly conclude that the

trial court did not ask sufficiently adequate questions to be

able to find that the jurors could put aside opinions they might

have formed as a result of the massive publicity. The ques-

tioning was insufficient to detect biases in this case so that

counsel could make a reasonable and intelligent use of their

peremptory challenges. The extent and depth of the venire

exposure to the massive and lengthy publicity was not probed,

resulting in an impairment of defendants’ rights to a fair and

impartial jury as shown on the record.

The convictions are reversed and the case remanded to the

district court for further proceedings.

32a

APPENDIX C

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

JUDGMENT AND OPINION IN

No. 81-5643

No. 81-5644

No. 81-5645

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

- APPEAL from the

; United States District

LEONARD Ray BLANTON, (81-5644) Court for the Middle

Ciype Epwarp Hoop, Jr., (81-5645) | District of Tennessee.

JaMes M. ALLEN, (81-5643)

Defendants-Appellants.

Decided and Filed September 28, 1983

EN BANC

Before: Epwarps, Chief Circuit Judge, Livery, ENceL,

KerrH, KENNEDY, MARTIN, JONES, Contre, KauPANSKY and

WELLForp, Circuit Judges. °

Epwarps, Chief Circuit Judge, delivered the opinion of the

court in which Livety, Contre, Krupansky and WELLForD,

Circuit Judges joined. Kennepy, Circuit Judge, concurred in

the majority opinion and filed a special concurring opinion

(p. 34). Encex, Circuit Judge, filed a dissenting opinion in

which Martin and Jones, Circuit Judges concurred (pp.

* Honorable Gilbert S. Merritt disqualified himself from the en banc

hearing of this case.

33a

2 United States v. Blanton, et al. Nos. 81-5643-45

35-60). Kerru, Circuit Judge, concurred with Judge Engel’s

dissent and filed a separate dissenting opinion (pp. 61-64).

Epwarps, Chief Circuit Judge. In this case this circuit is re-

quired to review en banc the claims of the former Governor of

Tennessee and two associates that they have been deprived of

a fair jury trial. Their principal claim is that inadequate pro-

tective measures were employed by the trial judge in the

jury selection process to guard them against the prejudicial

effect of massive adverse pretrial media publicity.

We believe that we can and should accept much of the able

work accomplished by the panel’ which first heard this case.

We shall therefore dea] afresh and in detail only with the

principal claim stated above upon which the original panel

agreed with appellants and ordered a new trial.

This claim we now subdivide into three questions and pro-

vide our answers:

1) Did the District Judge employ the best procedure possible

in his voir dire examination of the prospective jurors in

this case?

Probably not.

2) Did the trial judge abuse the broad discretion vested in

him by the rulings of the Supreme Court of the United

States in his impaneling of this jury?

No.

3) Did the voir dire examination of jurors suffice to produce

an impartial jury and fundamentally fair trial?

Yes.

We accept the original panel's statement of facts:

The three defendants are Blanton, who served as gov-

' The original panel consisted of Circuit Judges Albert J. el

and Damon J. Keith of this Court, and Chief dieiee Emeritus Fie

Gibson (now Senior Judge of the Eighth Circuit) who wrote

panel opinion

34a

Nos. 81-5643-45 United States v. Blanton, et al. 3

ernor of Tennessee from January, 1975 to January, 1979,

James M. Allen, who was a special consultant to the

governor for the first six months ot the Blanton adminis-

tration and had served as Blanton’s campaign manager,

and Clyde Edward Hood, who was a special assistant to

the governor from January, 1975 to November, 1977.

Defendants were charged on October 29, 1980, in a

twelve-count indictment with eight counts of mail fraud,

(18 U.S.C. §§ 2, 1341 (1976)), one count of violating

the Hobbs Act (18 U.S.C. §§ 2, 1951 (1976) ), and one

count of conspiracy (18 U.S.C. § 371 (1976)). Blanton

alone was charged with two counts of tax evasion and

filing a false tax return. (26 U.S.C. §§ 7201, 7206(1)

(1976) ). On March 12, 1981, a superseding indictment

was issued adding one mail fraud count. The tax counts

against Blanton were severed. The essence of the charges

was that defendants used their positions to see that

friends of Blanton would receive retail liquor licenses

from the Tennessee Alcoholic Beverage Commission

(ABC) and that one person paid Blanton for receipt of

his license.

The most important evidence against defendants was

the videotaped deposition of Jack Ham. Ham was an

immunized witness who was the recipient of a liquor

license during Blanton's tenure and who allegedly agreed

to give Blanton a cut of the profits in violation of state

law. Ham had contributed $1,000 to the Blanton cam-

paign.

Blanton's role in the scheme allegedly was that he di-

rected that liquor licenses be awarded to political friends

or persons like Ham who offered a cut of the profits. He

allegedly accomplished this by appointing two of the

three commissioners of the ABC, including the chairman,

S. J. King, and the commission was therefore able to

appoint Blanton allies as director and assistant director of

the ABC. Blanton allegedly agreed to an illegal twenty

percent cut of the profits of Ham’s liquor store, with the

payment coming in the form of Ham's purchase of

35a

United States v. Blanton, et al. Nos. 81-5643-45

allegedly worthless oil stock from Blanton for $23,000."

(This method of payment resulted in tax savings to

Ham.) Blanton also allegedly approved a transfer of

Ham's liquor license to a more lucrative location.

Allen was alleged to have been in charge of determin-

ing the awarding of liquor licenses even though he had

no position at the ABC. He allegedly helped set up an

illegal ownership of a liquor store involving the ABC

chairman and he attempted to acquire a concealed in-

terest in a liquor store under the guise of a lucrative con-

sulting contract (only one payment was made under the

contract). He allegedly was responsible for hiring a new

ABC assistant director to help control the ABC even

though Allen was not even a state employee at the time,

and he instructed the assistant director to recommend

the transfer of Ham’s license to a better location and

recommended against the transfer of other persons’ li-

censes to that area.

Hood allegedly planned to acquire an interest in two

liquor stores in contravention of various state laws and

he received a share of the profits of some of the newly

licensed liquor stores. He allegedly told the director of

the ABC who Blanton’s friends were so that the director

would recommend to the ABC that those persons receive

licenses. He allegedly helped accomplish the transfer of

Ham's license by talking to ABC chairman King and

by suggesting a particular person as the assistant director

who would persuade the other Blanton appointee on the

commission. Finally, he allegedly suggested that Ham

pay Blanton’s share of the profits by buying the worthless

oil stock (although he later advised against the pur-

chase).

The scheme violated Tennessee's laws against an ABC

1A total of $38,000 was y paid for

vag nt 3,000 for Blanton’s cut of

Pp Ham is nephew, Bert

a finder’s fee for Blanton's help in getting a loan on

project they were building.

36a

Nos. 81-5643-45 United States v. Blanton, et al. 5

commissioner having an interest in a liquor store,? public

officials having an interest in a liquor store,? undisclosed

interest in liquor stores,* and bribing of public officials.5

The federal charge was that the acts (1) constituted a

conspiracy to defraud the United States by use of the

mails in furtherance of defendants’ scheme to violate

Tennessee law (18 U.S.C. §371), (2) when coupled

with mailings, constituted mail fraud by defrauding the

citizens of Tennessee of the honest services of their gov-

ernment officials (18 U.S.C §§ 2, 1341), and (3) violated

2 Tenn. Code Ann. § 57-1-108(a) (1980) provides: “[N]o per-

son shall be employed in any capacity by ah commission, if

such person shall have any interest . in any . . retail dealer

licensed as such in the state of Tennessee.”

3 Tenn. Code Ann § 57-3-210(b)(1) (1980) provides:

No wholesaler’s or retailer's license shall be issued to a

person who is a holder of a public office . . It shall be

unlawful for any such person to have any interest in

such wholesale or retail business, directly or indirectly,

either proprietary or by means of any loan, mortgage, or

lien, or to participate in the profits of any such business[.]

4Tenn. Code Ann §57-3-210(f) (1980) provides: “It shall

be unlawful for any person to have ownership in, or cipate,

either directly or indirectly. in the profits of any whol e or

retail business licensed under this chapter, unless his interest

in said business and the nature, extent and character thereof

shall appear on the application... .”

$ Tenn. Code Ann. § 39-081 (1975) provides:

Any person who corruptly offers, promises, or gives to

any executive... officer . any gifts, gratuity, or thing

of value, with intent to influence his act, vote, opinion,

decision, or j ent, on any matter, cause, or

ing which may then _ or which may be by law

brought betere him in his capacity, onak. on con-

viction, be imprisoned in the penitentiary .

Tenn. Code Ann. § 39-802 (1975) provides:

Any —— ae ans — a . .

—- oy" any or fw ref or thing o ue

. under an agreement or an understanding that

37a

United States v. Blanton, et al. Nos. 81-5643-45

the Hobbs Act (interference with commerce by threats

or violence) (18 U.S.C. §§ 2, 1951).

The testimony of the chief prosecution witness, Jack

Ham, was videotaped pursuant to Fed. R. Crim. P. 15(a)

because of Ham's poor health. The videotape was edited

and played for the jury at the trial. The government ob-

tained Ham’s testimony offering him immunity from fed-

eral prosecution and civil tax liability, and the state

agreed not to prosecute Ham. The ABC agreed that it

would not revoke Ham’s lucrative liquor license on the

basis of truthful statements he made in judicial proceed-

ings.

The trial was preceded by massive publicity about the

case in Nashville, Tennessee, and throughout the state,

as one would expect in the trial of a former governor.

The record contains over 240 articles from Nashville

newspapers adverse to defendants. There are approxi-

mately 160 articles which appeared in the six months

preceding the trial about the instant prosecution, the pro-

secution of Blanton’s brother, and the prosecution of

former Blanton aides. There are more than seventy-five

6 Most of the very negative publicity came shortly after the

indictment: “Blanton Faces 12 Counts.” Oct. 30, 1980; “Enlist

Blanton's Aid in Obtaining Licenses for Future Profits,” Oct.

30, 1980; “Allen’s Influence Had Wide Impact,” Oct. 30, 1980;

“Hood’s Success, Woes Laid To Misdirected Talent,” Oct. 30

1980; “Blanton-Era Investigations on 5 years,” Oct. 30, 1980;

“Blanton Faces Two Federal Court Trials,” Nov. 21, 1980. Not

all of the oe were negative: “Blanton’s Defense Said

Good,” Nov. “Friends Eye Legal Fund for Blanton,”

Nov. 1, 1980. yA -y- months before trial there were articles on

the criminal activities - 4 Blanton aides: “Former ABC Head

before the trial the su ae indictment was issued,

rompting more publicity: “Blanton, Aides Indicted Again,”

ar. 12, 1981. is tee os Seay Gene before trial articles ed

ton’s Sones was also in the news shortly before trial

because of alleged im et “Gene Blanton To Be Accused

of Not Telling $72, . 24, 1981; “Gene Blanton

38a

Nos. 81-5643-45 United States v. Blanton, et al. 7

other articles which appeared while Blanton was gov-

ernor concerning his administration.” There are another

twenty-two articles on the deposition of Jack Ham, the

last of which appeared four months before the beginning

of the trial. A large part of the original indictment was

published verbatim in the Nashville newspapers. There

was also an offer of proof concerning the testimony of

news directors of three Nashville television stations about

the pretrial publicity. There can be no doubt that there

was an extraordinary amount of pretrial publicity con-

cerning this case and other cases involving officials of

the Blanton administration and some of Blanton’s rela-

tives.

Jury selection began on April 20, 1981. Testimony in

the case began on April 22, 1981, and was concluded on

May 29, 1981. Closing arguments and jury instructions

were completed on June 2, 1981. The court dismissed

three mail fraud counts and the Hobbs Act count as to

Allen. The jury deliberated until June 9, 1981, and found

Blanton guilty on all eleven counts. It found Allen guilty

on all the counts the court had not dismissed (six mail

fraud counts and one conspiracy count). It found Hood

guilty on six mail fraud counts and the conspiracy count,

but it found him not guilty on the other three mail fraud

counts and the Hobbs Act count. Blanton was sentenced

to three years and fined $11,000. Allen was sentenced to

two years and fined $14,000. Hood was sentenced to

eighteen months and fined $14,000.

Bought Autos With Business Funds, Says Frensley,” Apr. 16,

1981. Most of the other articles dealt with procedural aspects

of pretria] proceedings.

minietsetion and Gus pasen of poiaaeen intiedinns te paste

8 United States v. Blanton, et al. Nos. 81-5643-45

QUESTION 1.

Did the trial judge employ the best procedure possible

in his voir dire examination of the prospective jurors in

this case?

Probably not.

The only way this question can fairly be answered is to

read the entire content of the juror voir dire, which fills 289

pages of this trial record. We believe that every judge on the

en banc court has performed this task — although obviously

differences of interpretation remain. We cannot reprint the

entire voir dire, but we can reprint the panel's statement of

facts concerning it:

The trial court conducted the voir dire en masse. It

seated a group of veniremen in the jury box and directed

questions at that group, but instructed the rest of the

veniremen in the courtroom to listen to and pay atten-

tion to the question: as the questions would apply equally

to all those selected. During the course of the voir dire

the trial court pointed out that the case had been the

subject of considerable media attention. It commented

that it was sure that all the veniremen had heard about

the case, and that some of them may have formed a ten-

tative opinion concerning the probable guilt or innocence

of the defendants: The court then said to the veniremen:

[T]he test is, will you be able to put from your

minds whatever you may have seen and heard, and

Nos. $1-5643-45 United States v. Blanton, et al. gy

question on pretrial publicity. It usually said it wanted

to “particularly emphasize” the point. Out of ninety-two

veniremen examined, a total of thirteen were excused

because they indicated they had an opinion or prejudice

they could not put aside. Of these thirteen, four linked

their prejudice to pretrial publicity. Seven of these thir-

teen were excused when they said they had an opinion,

without the court inquiring into the nature or strength

of the opinion or whether it could be put aside. Twenty-

nine other veniremen were excused for cause for other

reasons and the partics excused twenty-eight others with

their peremptory challenges.

If we total the disqualifications which resu'ted from mea-

sures taken by the trial judge to secure an impartial jury, we

find that 70 out of a total of 92 veniremen were excused.

Accepting as we do appellant's contentions that they had

been the subject of massive publicity — much of it negaive —

we believe the initial trial judge in this case had a more

serious problem than my colleagues in dissent tend to recog-

nize, that he recognized the problem to a greater extent than

they credit to him, and that he took some very significant

measures to deal with it, to which they fail to give sufficient

weight.

Governor Blanton ran for and was elected to the highest

10 United States v. Blanton, et al. Nos. 81-5643-45

read this record, he decided deliberately to avoid such re-

exposure and reemphasis.

He di’ repeatedly ask the following question, addressed

specifically to the nine jurors then seated in the jury box and

phrased to fit specific circumstances of the lengthy voir dire

examination:

[T]he test is, will you be able to put from your minds

whatever you may have seen and heard, and any opinion

which you may have tentatively reached, and then to

decide this case solely on the facts as you determine

them to be, on the sole basis of the evidence which will

be adduced in this trial after application of the appropri-

ate law?

In varying language he repeated this question 18 additional

times. The voir dire record, we believe, indicates that he was

sensitive to every suggestion of prejudice which came either

from jurors’ answers or defense counsel suggestion, and in most

instances responded with free use of his power to excuse a

juror for cause. He exercised that power 42 times.

The trial judge acted on the assumption that all potential

jurors in this case had been subjected to some portion of the

massive media coverage concerning the defendants in this

case. He apparently assumed that media coverage inevitably

would have had some prejudicial impact and that the best he

could do would be to persuade the individual members of the

venire to disclose any biases derived therefrom along with

any associations which might have a prejudicial effect. The

critical question in this case is whether this approach, when

considered together with the added precautionary measures

taken by the judge, was within his judicial discretion and was

so exercised as to produce an impartial jury.

The author of this opinion was initially persuaded by Judge

Gibson's opinion for the panel that reversible error had been

committed by denial of either judicial or defense examination

42a

Nos. §1-5643-45 United States v. Blanton, et al. ll

of individual jurors concerning specific instances of possibly

prejudicial media influence. The factors which changed that

opinion and which account for affirmance by a majority of the

en banc court were: 1) careful reading of this record, 2)

appreciation of the difficulty of preventing prejudicial error

resulting from repetition during jury selection of media com-

ment about defendants or from possible prejudicial statements

from members of the venire as they were questioned about

such comment, 3) appreciation of the sensitivity of the trial

judge to any hint of bias and his free use of his power to

excuse members of the venire from jury service in the interest

of securing an unbiased jury, 4) the availability of the ques-

tionnaires to the defense as an important tool available to the

defense for investigation of the venire, 5) the substantial in-

crease in number of peremptory challenges which the trial

judge approved and finally, 6) the fact that the trial judge

found specifically (and with substantial record support) that

» the result achieved in this jury selection process was a fair

and impartial jury.

A major aspect of appellants’ claim of prejudice in the voir

dire examination concerned pretrial publicity which pertained

to other prosecutions of aids or relatives of Governor Blanton.

In particular, some of these charges were to the effect that

the Governor's aids were selling pardons to convicted criminals

in the last days of the Blanton administration. At one point,

the U.S. Attorney joined in a request for additional voir dire

presumably related to this specific problem. While the trial

judge denied the motions at that time, shortly thereafter, he

addressed the prospective jurors as follows:

THE COURT: Ladies and gentlemen, I have talked a

lot about pretrial publicity that has occurred in connec-

tion with this case, the fact that you probably have read,

heard things about the case. I have not discussed with

you the possibility that you may have been familiar

with some of the publicity that surrounded Mr. Blanton

at the end of his term of office as governor. It seems

43a

12 United States v. Blanton, et al. Nos. 81-5643-45

probable if you were in this State and area at this time

that you read and saw and heard something about the

circumstances.

Do any of you have recollection of any facts or cir-

cumstances which would cause you either to be inclined

to hold that against Mr. Blanton, or on the other hand,

to feel that he had been unfairly dealt with and should

have been vindicated? We are going back a fair period

of time.

But I ask you carefully to search your memories and

your consciences on that point. And I ask you as a

follow-up to that, does any of you remember anything

concerning the circumstance under which Mr. Blanton

left the governor's office which would in any way affect

your judgment in this case or render you incapable of

being completely fair and impartial concerning him and

his part in this case?

While in this statem .t the trial judge avoided repeating

the drainatic headlines which appeared above some of the

news stories concerning the pardon sale charges, it seems

obvious to us that the members of the venire both understood

and responded to his concern. We believe this response is doc-

umented in the voir dire examinations recorded in Appendix

pp. 1537-1728. All of these pages merit careful attention of

any reviewing authority.

Why, then, have we indicated that his handling of the voir

dire may not have been wholly adequate? The answer is that

we do not wish to imply disapproval in this Circuit of all

requests for individual questioning of jurors out of the pres-

ence of the entire venire, whether accomplished in chambers

or at the bench. In many trials a limited number of defense

questions, preférably submitted through the court with waiv-

er by the questioner of any prejudicial effect of the answer,

could be appropriate. We recognize that such a procedure in

itself would invite immediate problems and attendant risks

44a

Nos. 81-5643-45 United States v. Blanton, et al. 13

as a result of the presence of the media. But we would not

rule out the possibility that adequate warnings could be given

to jurors not to expose themselves to the news media during

the course of the trial and deliberations. This might be ac-

companied by warnings to the press of possible hazards of

mistrial due to some printing or broadcasting of voir dire pro-

ceedings at a time preceding the announcement of the jury

verdict. In many — indeed, most — cases, such measures could

be effective. The trial judge obviously did not think they

w6uld be here.

As the dissenting opinion points out, the strategy employed

by the trial judge in this case is unique. We do not recom-

mend it for emulation unless under similarly extreme circum-

stances. These would include at least 1) charges generating

great public concern, 2) statewide media saturation both

before and during trial, and 3) then only if the voir dire is

conducted by a trial judge as experienced in and as sensitive

to the competing legitimate interests of the individual de-

fendants and the state as proved to be true in this case.

Every criminal trial is, of course, at least to some degree

unique. We do not seek to undertake the impossible task of

specifying exactly how this trial judge (or any future one)

should have employed his judicial discretion.

QUESTION 2

Did the trial judge abuse the broad discretion vested in

him by the rulings of the Supreme Court of the United

States in his impaneling of this jury?

We answer this question with a definite “No.”

The United States Supreme Court has not established any

per se rule which it requires trial judges to follow in the voir

dire of a jury venire. See Rosales-Lopez v. United States, 451

U.S. 182 (1981); Murphy v. Florida, 421 U.S. 794 (1975);

Beck v. Washington, 369 U.S. 541 (1962); Irvin v. Dowd, 366

45a

14 United States v. Blanton, et al. Nos. $1-5643-45

U.S. 717 (1960). These opinions emphasize the necessity of

the exercise of trial judge discretion concerning the problems

actually confronting him. In only one of these cases, Irvin v.

Dowd, supra, did the United States Supreme Court reverse a

conviction due to an unfair trial resulting from massive media

pretrial publicity.

As noted above the trial judge in this case was faced with a

problem. There was certain to be extraordinary publicity cov-

erage of the jury selection process, with the potential of prej-

udicial error creeping into the trial itself either in the court-

room or in media coverage. The repeated reading to the en-

tire venire of the most dramatic newspaper headlines (those

accusing the Blanton administration of selling pardons for

example) could have had an arguably serious prejudicial

effect. Even if he had (as suggested above) waited until

the very end of the selection process and then put the ques-

tions concerning prior media contact to each juror individual-

ly, he could not be certain that some juror or jurors would not

read or hear about on television the very questioning from

which they had been screened and about which they had

been admonished. Abuse of judicial discretion simply does

not fit this trial judge’s handling of this difficult trial. See

dialogue below:

Selected examoples of the trial judge's handling of the

voir dire

I have been designated to come down and participate

in this trial because all of the federal judges in Tennessee

have recused themselves from participating.?. They asked

to be excused from participating in this trial because each

2 Actually all of the U.S. District Judges in the Middle District

of Tennessee had disqualified themselves. After completion of the

selection of the jury, the first trial judge in this case was forced to

recuse himself due to the tragic sudden illness and subsequent death

of his wife. He was replaced by a US. Circuit Judge from the West-

ern District of Tennessee who completed the tria

46a

Nos. 81-5643-45 United States v. Blanton, et al. 15

of them felt that there might be some reason that either

he could not be completely fair and impartial, or that

the public, and perhaps the parties themselves, the at-

torneys or other people, might feel that they could not

be completely fair.

The only reason I mention that to you now is to in-

dicate that if judges very freely and frankly remove

themselves from the participation in a trial, if in the

course of this inquiry any reason occurs to you why

perhaps you could not be fair, you should have no re-

luctance whatever in indicating that fact to the Court.

The questions to be asked may indicate to the Court

or to counsel some reason that any one of you might

have difficulty in being fair in this case. And perhaps

even more importantly, this inquiry mov indicate to you

yourself some reason why you might have difficulty being

fair and impartial. It may be perhaps very likely some-

thing you have never thought about yourself. But there

may be a suggestion contained in a question that will

cause you to say, “Perhaps | would have difficulty being

fair.” And in fairness and honesty to the parties, indicate

that fact to the Court. And of course, you will be ex-

cused from any further duties in the matter.

Ladies and gentlemen of the venire, while the ques-

tions at this particular stage of the procedure are di-

rected primarily to the 12 persons seated in the jury box,

I also ask that cach of you listen carefully to all of the

questions that are asked so that if at some later stage of

the proceeding you are asked to occupy a seat in the

jury box, it will not be necessary to repeat all of the

questions which will be asked.

In that regard and for that purpose, | ask whether all

of you can hear me. The ladies and gentlemen there in

the back of the courtroom, are you having any difficulty

hearing at all? I take it that the public address system

is making it possible for you to follow the proceedings.

47a

16 United States v. Blanton, et al. Nos. 81-5643-45

Ladies and gentlemen, if you have an affirmative

answer to a question, if there is some suggestion made.

in a question that you know a person or you have a

feeling about a given matter, raise your hand and in-

dicate that circumstance to the Court. We will then

probably follow up on that question.

And I urge you to be extremely careful in answering

any question that may be put to you. Answer only the

precise question asked. Do not volunteer anything be-

yond the scope of the question itself. And again, I ask

that you listen carefully to the question and then limit

your answer precisely to answering the question, without

volunteering any additional information or any additional

opinion, anything of that nature.

For instance, if you are asked if you know a given

witness and you say, “Yes.” And you are asked if the

fact that you know that person would make you more

apt to believe him or disbelieve him, answer that ques-

tion simply yes or no. Do not say, “I would never believe

him because I know him to be a liar.”

Put it in that form. You may consider that a little

strong, but prospective jurors have made statements like

that. And the remedies that are required after a state-

ment like that is made in the courtroom are strenuous

ones. So please don't volunteer any additional informa-

tion, and particularly, express any opinions that you

have not been asked to express.

Obviously, ladies and gentlemen, it woul! be difficult

for you to be fair and impartial if you knew any of the

parties well. And I therefore introduce them to you in

the order that they are named in the indictment.

At this point the trial judge identified the defendants and

those associated with the prosecution and the defense as

counsel.

In the same general context, ladies and gentlemen, I

48a

Nos. 81-5643-45 United States v. Blanton, et al. 17

recognize that partially because of the fact that these

defendants held such offices, this entire matter has

been the subject of attention of the news media. I am

sure that all of you have at some time read something

about this case in the newspapers, have heard something

concerning it on the radio at some time, or have even

seen cr heard reference to it on television at some time.

Similarly, it is entirely likely that some of you may have

formed some tentative opinion concerning the probable

guilt or innocence of some of the persons involved, in-

cluding these defendants. However, the test to be ap-

plied in determining your qualifications to sit as jurors

is not whether you have heard something about the case

from the news media or whether you have formed any

kind of a tentative opinion based on such reports. Rather

— and‘I put this in the form of a question — the test is,

will you be able to put from your minds whatever you

may have seen and heard, and any opinion which

you may have tentatively reached, and then to decide

this case solely on the facts as you determine them to be,

on the sole basis of the evidence which will be adduced

in this trial after application of the appropriate law?

I take it from your silence that none of you feel that

he or she has been prejudiced by what you may have

heard or seen.

Yes, ma'am?

JUROR NO. 1 (SHEILA GIBSON): _ I have been

sitting here listening to you. And I am not sure that I

would be impartial. I do have somewhat of an idea,

from the things I have read and heard.

THE COURT: Thank you very much. You may be

excused.

49a

1s United States v. Blanton, et al. Nos. S1-5643-45

QUESTION 3

Did the voir dire examination of jurors suffice to produce

an impartial jury and a fundamentally fair trial?

The answer to this question is “Yes.”

The trial judge elected to deal with the problem by 1) ex-

tensive questioning concerning prior media impact and juror

associations, coupled with many dismissals based on even

hints of possible prejudice, 2) very substantial increases in the

numer of peremptory challenges available to each defen-

dant (30 in all), and 3) reliance on defendants’ use of detailed

questionnaires concerning all potential jurors coupled with

sensitive responses by the court to any of defendants’ chal-

lenges arising from such use.

What follows are selected illustrations or results of each of

these techniques as the trial judge employed them:

1) Media impact and juror associations.

What follows are excerpts from the 289 page voir dire ex-

amination of jurors:

[THE COURT:] Is there anything in that fact, the

fact that you are a state employee, that would make this

a difficult case for you to participate in?

[POTENTIAL JUROR:| MS. YATES: No, not that

I know of, because nothing has been discussed since I

have been in the Mental Health Department over at

Central State. It has never been mentioned between the

two of us in the office.

THE COURT: Do you hold a civil service position?

MS. YATES: No.

THE COURT: I am not familiar enough with Ten-

nessee structure to perhaps intelligently approach this.

But are you a provisional employee, or what is your

status?

MS. YATES: I am the clerk ordering in the Mainten-

ance Department. I order all the supplies.

50a

Nos. 81-5643-45 United States v. Blanton, et al. 19

THE COURT: But you have no assured tenure in

that position?

MS. YATES: (Shakes head. )

THE COURT: And you are, to put it most bluntly,

you would be subject to discharge without cause; it

that correct?

MS. YATES: No, I am pretty well situated.

THE COURT: But in any event, you do not hold

your position on the basis of any kind of civil service

or any protection?

MS. YATES: No, sir, I am not.

THE COURT: So it is at least conceivable that if

there are any political ramifications that might be at-

tributed to your vote in this case, you might suffer some

consequences, at least theoretically?

MS. YATES: I don’t know about that.

THE COURT: Well, I doubt very seriously if any of

these things would happen, Ms. Yates. But discretion is

the better part of valor. And you will be excused.

What is your name, sir?

JUROR NO. 10 (LARRY G. WILLIAMS): Williams.

THE COURT: Have you heard all the questions that

have been asked here this morning and afternoon?

MR. WILLIAMS: Yes, sir.

THE COURT: Has anything that’s been asked or said

indicate to you any reason why you should not sit as a

juror here?

MR. WILLIAMS: Yes, sir. You mentioned the media.

And the newspaper. That.

THE COURT: You mean you have read them, and

you have formed a conclusion?

MR. WILLIAMS: Yes, sir.

THE COURT: Very well, we appreciate your frank-

ness. -You may be excused. (Tr. 145-46)

. eo .

[THE COURT:] I'l ask all of you, has anything that

has been said, or any question that’s been asked, sug-

gested to any one of you ony reason why there might be

5la

United States v. Blanton, et al. Nos. 81-5643-45

a problem concerning your participation as a fair and

impartial juror? Yes, sir?

ALTERNATE NO. 4 (WOODROW LESTER) Due

to the nature of the trial— I'm a trustee at Temple Baptist

Church in Murfreesboro. And my wife is a bookkeeper

there. And I’m —‘due to the nature of the trial, I may

not be able to make a just judgment concerning my —

concerning the nature of the trial. And it may cause

undue ridicule or embarrassment as far as the church

work goes.

THE COURT: I really don’t particularly understand

why.

MR. LESTER: Well, if— They may give me a, you

know — may give me a hard time about it if some — if

Mr. Blanton and the others were acquitted.

THE COURT: Is this essentially a religious organiza-

tion by which you are employed?

MR. LESTER: Yes, sir. Temple Baptist Church.

THE COURT: Are you suggesting that there is a

religious organization that is not willing to have its em-

ployees participate fully in civic affairs?

MR. LESTER: I'm sure they wouldn't mind me par-

ticipating in it in as far as the trial and jury goes. But

I don’t know about this particular case.

THE COURT: You mean solely on the basis of the

duration of it?

MR: LESTER: No, sir. On the subject matter. Con-

cerning the alcoholic beverages. It's in our church cove-

nant that we don’t—

THE COURT: I misunderstood what you were say-

ing, Mr. Lester. You may be excused. Thank you for your

frankness. (Tr. 251-52)

THE COURT: Mr. Bell, would your answer to any

question that has been asked here today be any different

than the answers of the other five persons seated tenta-

tively as alternate jurors here this morning?

MR. BELL: Yes, it would.

52a

Nos. 81-5643-45 United States v. Blanton, et al. 21

THE COURT: There would be a difference?

MR. BELL: Yes, sir.

THE COURT: What is the difference, sir?

MR. BELL: I have already formed my opinion?

THE COURT: You do have an opinion concerning

the ultimate issues in the case?

MR. BELL: Yes, sir.

THE COURT: Thank you, Mr. Bell. You may be

excused.

Good morning, Mr. Pigg. I'll amend that. Good aft-

ernoon.

Have you been able to hear everything that’s happened

here today? . .

ALTERNATE NO. 2 (JOE H. PIGG? Yes, I have,

Your Honor.

THE COURT: Has anything that’s been said or ques-

tions that have been asked indicated to you any reason

why you could not serve as a fair juror in this case?

MR. PIGG: Your Honor, I would like to be excused

for the reason I've already formed an opinion.

THE COURT: You may be excused.

I'm having a little trouble, reading your name.

ALTERNATE NO. 2 (MARGARET L. KEMNETZ)

Kemnetz.

THE COURT: Kemnetz, thank you. Is the third

letter an “M”?

MS. KEMNETZ: Yes.

THE COURT: All right. Ms. Kemnetz, while you

were seated in the back of the jury room (sic.), were you

able to hear all the statements and questions of the

Court?

MS. KEMNETZ: Yes, sir.

THE COURT: Did anything that's been said or asked

suggest to you any reason why you could not be a fair

juror in this case?

MS. KEMNETZ. Yes, sir. I'm acquainted with Bernie

Weinstein. And I already have formed an opinion.

THE COURT. Wil! the reporter repeat that answer

to the Court?

53a

United States v. Blanton, et al. Nos. 81-5643-45

MS. KEMNETZ: I'm acquainted—

THE COURT: No, I don’t want you to—

THE REPORTER: “I'm acquainted with Bernie

Weinstein. And I already have formed an opinion.”

THE COURT: All right. Thank you very much. You

may be excused. (Tr. 279-81)

THE COURT: In addressing myself to the newly

seated alternates, again we ask whether you have been

able to hear everything that’s been said here this morn-

ing. Have you heard all the statements of the Court and

all the questions that have been asked?

On the basis of what you have heard, do you now feel

— do you know of any reason why you perhaps could not

be a fair and impartial juror in this case?

Mr. Hibbett?

ALTERNATE NO. 1 (EUGENE HIBBETT) Yes,

sir. I don’t think I would be a good candidate for either

side: I know many—

THE COURT: Don't express any opinions. Do you

know persons who are involved in the case?

MR HIBBETT: Yes.

THE COURT: You indicated for either side.

MR. HIBBETT: That's right.

THE COURT: But in any event, your own personal

feeling, Mr. Hibbett, is that you — it would be difficult

for you to be fair and impartial if you were asked to

serve, on the basis of your knowledge of some of the

people involved?

MR. HIBBETT: Yes.

THE COURT: Thank you very much, sir. You may

be excused.

THE COURT: Ms. Meehan?

ALTERNATE NO. 1 (NANCY L. MEEHAN) Yes,

sir.

THE COURT: Have you heard everything that’s

been said?

MS. MEEHAN: Yes, I have.

54a

Nos. 81-5643-45 United States v. Blanton, et al. 23

THE COURT: Is there anything that suggested to

you any reason you could not be a fair and impartial juror

in this case?

MS. MEEHAN: Two reasons. One, I'm waiting ap-

proval on my application to the police department. Two,

I've already formed an opinion.

THE COURT: What was the second one?

“ MS. MEEHAN: I've already formed an opinion on

the outcome.

THE COURT: Very well. Thank you, Ms. Meehan.

You may be ex

THE COURT: Good morning, Mr. Hicks. Have you

heard everything that’s happened here this morning?

ALTERNATE NO. 1 (WILLIAM M. HICKS) Yes,

sir.

THE COURT: Has any of it suggested any reason

why you couldn't serve fairly and impartially in this

case?

MR. HICKS: I'm a long-time friend of one of the

witnesses, Mayor Richard Fulton. He and I were raised

up practically together.

THE COURT: You grew up with Mr. Fulton?

MR. HICKS: Yes, sir.

THE COURT: Do you have a continuing contact

with him?

MIR. HICKS: Yes. We went all the way through

school together. Known him since childhood.

THE COURT: Do you think the fact that you know

him and continue to be a close friend of his, would that

make it difficult for you to participate in this case?

MR. HICKS: I'm afraid. Your Honor, it would.

THE COURT: Very well. You may be excused.

Mr. Alexander, have you heard everything that’s hap-

today?

ALTERNATE NO. 1! (JAMES HL ALEXANDER )

* Yes, sir

THE COURT. Have any of the statements of the

Court or questions indicated to you any Treason why

if vou were seated as an alternate, and then were re-

55a

United States v. Blanton, et all. Nos. 81-5643-45

quired to serve as a member of the Jury itself, that you

could not be fair?

MR. ALEXANDER: Well, yes, sir, Your Honor.

THE COURT: I don’t understand. You mean, yes,

there is a reason? Or you—

MR. ALEXANDER: Yes, sir.

THE COURT: What is that reason?

MR. ALEXANDER: Well—

THE COURT: Don't state an opinion, sir. Do you

know somebody, or—

MR. ALEXANDER: I'm acquainted with Bob Fren-

sley.

THE COURT: And because of that acquaintanceship

or friendship, whatever it is, —

MR. ALEXANDER: Friendship.

THE COURT: — you feel it would be embarrassing

or difficult for you to participate in this case? It that

what you're saying to the Court?

MR. ALEXANDER: Well, not necessarily embarras-

sing. But I have respect for him. And I take his word on

anything he says.

THE COURT: So that you would be inclined to give

greater weight to his testimony than perhaps to some

other person who testifies whom you do not know?

MR. ALEXANDER: Yes, sir.

THE COURT: Thank you, Mr. Alexander. You may

be excused.

Good morning, Mr. Miller. Have you been able to hear

all the questions and statements?

ALTERNATE NO. 1 (WALTER KENNETH MIL-

LER) Yes.

THE COURT: Has anything suggested to you any

reason that you would have trouble being fair if selected

as a juror?

MR. MILLER: Due to the extent of the coverage

of the press, I have already formed an opinion. I feel

like I would be an affected witness.

THE COURT: Very well, you may be excused.

(Tr. 263-67 )

56a

Nos. §1-5643-45 United States v. Blanton, et al. 25

Judge Engel’s dissent criticizes the voir dire as consisting

of “a single question eliciting only a juror assurance (through

silence ) of impartiality.” [dissent at p.3] As can be seen from

excerpts of the transcript, however, the voir dire was much

more extensive than indicated by the dissent. We believe that

the trial judge did succeed in securing the cooperation of the

jurors in disclosing possible bias. We also believe that he

reacted quickly and effectively to protect defendants from any

such bias.

2) Peremptory Challenges

Under the applicable rule, Federal Rules of Criminal Pro-

cedure 24(b), the government was entitled to six peremptory

challenges and the three defendants were entitled to ten. The

defendants sought an additional twenty challenges, ten for

each defendant, and the government objected. The trial judge

granted defendants’ request. Only one of the defendants used

all peremptory challenges.

While we recognize that appellants contend in this case

that their use of peremptory challenges was hampered by their

inability to explore each juror's contact with media expres-

sions prior to trial, we also are profoundly aware that the most

searching cross-examination personally conducted by a lawyer

for a defendant might not suffice to bring into the trial record

a secretly held bias on the part of a juror against a particular

defendant. It is, of course, in part for that reason that twelve

jurors are chosen and the verdict of guilt must be unanimous.

The trial judge's grant of so many additional peremptory chal-

lenges, coupled with the information supplied as to each

prospective juror in the official questionnaire, contributes sub-

stantially to our conclusion that in sum total the jury voir

dire as conducted was within the discretion of the trial judge.

3) The Questionnaires

As indicated above, each juror in the entire venire was asked

to and did furnish answers to the official questionnaire, which

is produced on the following page.

57a

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Nos. 81-5643-45 United States v. Blanton, et al. 27

THE LAW OF THIS CASE

The fundamental standard of review of a trial judge’s con-

duct of a voir dire examination is set forth in the most dra-

matic case@Where the Supreme Court has dealt with the

central question of this case.

In Irvin v. Dowd, 366 U.S. 717, 722-24 (1960), the Supreme

Court, with Justice Tom Clark writing for the Court, said as

follows:

In essence, the right to jury trial guarantees to the

criminally accused a fair trial by a panel of impartial,

“indifferent” jurors. The failure to accord an accused a

fair hearing violates even the minimal standards of due

process. In re Oliver, 333 U.S. 257; Tumey v. Ohio, 273

U. §. 510. “A fair trial in a fair tribunal is a basic re-

quirement of due process.” In re Murchison, 349 U. S.

133, 136. In the ultimate analysis, only the jury can

strip a man of his liberty or hie life. In the language of

Lord Coke, a juror must be as “indifferent as he stands

unsworne.” Co. Litt. 155b. His verdict must be based

upon the evidence developed at the trial. Cf. Thompson

v. City of Louisville, 362 U. S. 199. This is true, regard-

less of the heinousness of the crime charged, the appar-

ent guilt of the offender or the station in life which he

occupies. It was so written into our law as early as 1807

by Chief Justice Marshall in 1 Burr's Trial 416 (1807).*

“The theory of the law is that a juror who has formed

an opinion cannot be impartial.” Reynolds v. United

States, 98 U. S. 145, 155.

It is not required, however, that the jurors be totally

ignorant of the facts and issues involved. In these days

te ie testimony tha h may leave the

—y fo 8 tir consi sc ofthat testimony, constitute

no a juror

a, = h will c mind against the testi-

— a, i. in tion to them: which wi

its force, do constitute a

sufficient objection to ,

59a

United States v. Blanton, et al. Nos. 81-5643-45

of swift, widespread and diverse methods of communica-

tion, an important case can be expected to arouse the

interest of the public in the vicinity, and scarcely any of

those best qualified to serve as jurors will not have

formed some impression or opinion as to the merits of

the case. This is particularly true in criminal cases. To

hold that the mere existence of any preconceived notion

as to the guilt or innocence of an accused, without more,

is sufficient to rebut the presumption of a prospective

juror’s impartiality would be to establish an impossible

standard. It is sufficient if the juror can lay aside his

impression or opinion and .render a verdict based on the

evidence presented in court. Spies v. Illinois, 123 U. S.

131; Holt v. United States, 218 U. S. 245; Reynolds v.

United States, supra.

The adoption of such a rule, however, “cannot foreclose

inquiry as to whether, in a given case, the application of

that rule works a deprivation of the prisoner's life or

liberty without due process of law.” Lisenba v. California,

314 U. S, 219, 236. As stated in Reynolds, the test is

“whether the nature and strength of the opinion formed

are such as in law necessarily . . . raise the presumption

of partiality. The question thus presented is one of

mixed law and fact ....” At p. 156. “The affirmative of

the issue is upon the challenger. Unless he shows the

actual existence of such an opinion in the mind of the

juror as will raise the presumption of partiality, the juror

need not necessarily be set aside .... If a positive and

decided opinion had been formed, he would have been

incompetent even though it had not been expressed.” At

p. 157. As was stated in Brown v. Allen, 344 U. S. 443,

507, the “so-called mixed questions or the application of

constitutional principles to the facts as found leave the

duty of adjudication with the federal judge.” It was,

therefore, the duty of the Court of Appeals to independ-

ently evaluate the voir dire testimony of the impaneled

jurors.

The rule was established in Reynolds that “[t)he finding

60a

Nos. 81-5643-45 United States v. Blanton, et al. 29

of the trial court upon that issue [the force of a prospec-

tive juror’s opinion] ought not be set aside by a reviewing

court, unless the error is manifest.” 98 U. S., at 156.

We find no “manifest” error in the trial judge's ruling on the

impartiality of this jury. Indeed the contrast between Irvin

v. Dowd, supra and our instant case is very great. In the Irvin

case, Justice Clark pointed out:

Here the “pattern of deep and bitter prejudice” shown to

be present throughout the community, cf. Stroble v. Cali-

fornia, 343 U.S. 181, was clearly reflected in the sum total

of the voir dire examination of a majority of the jurors

finally placed in the jury box. Eight out of the 12 thought

petitioner was guilty. With such an opinion permeating

their minds, it would be difficult to say that each could

exclude this preconception of guilt from his deliberations.

In our present case no juror who helped determine the case

expressed a pretrial conviction of appellants’ guilt.

Infinitely closer to our present case are the facts and law

in a case written for the U.S. Supreme Court by Justice Clark

— the same Justice who wrote the Irvin v. Dowd opinion.

In Beck vy. Washington, 369 U.S. 541, 555-58 (1962), Justice

Clark said:

As in his grand jury attack, petitioner makes no claim

that any particular petit juror was biased. Instead, he

states the publicity which prevented the selection of a

fair grand jury also precluded a fair petit jury. He argues

that such a strong case of adverse publicity has been

proved that any jury selected in Seattle at the time he was

tried must be held to be presumptively biased and that

the trial court's adverse rulings on his motions for a

change of venue and for continuances were therefore in

error. Of course there could be no constitutional infirmity

in these rulings if petitioner actually rece‘ved a trial by an

impartial jury. Hence, our inquiry is addressed to that

subject.

6la

United States v. Blanton, et al. Nos. 81-5643-45

Petitioner's trial began carly in December. This was

nine and one-half months after he was first called before

the Senate Committee and almost five months after his

indictment. Although there was some adverse publicity

during the latter period which stemmed from the second

tax indictment and later Senate hearings as well as from

the trial of petitioner's son, it was neither intensive nor

extensive. The news value of the original “disclosures”

was diminished, and the items were often relegated to

the inner pages. Even the occasional front-page items

were straight news stories rather than invidious articles

which would tend to arouse ill will and vindictiveness.

If there was a campaign against him as petitioner infers,

it was sidetracked by the appearance of other “labor

bosses” on the scene who shared the spotlight.

The process of selecting a jury began with the exclusion

from the panel of all persons summoned as prospective

jurors in the November 12 trial of Dave Beck, Jr. In addi-

tion, all persons were excused who were in the courtroom

at any time during the trial of that case. Next, the mem-

bers were examined by the court and counsel at length.

Of the 52 so examined, only eight admitted bias or a

preformed opinion as to petitioner's guilt and six others

suggested they might be biased or might have formed

an opinion — all of whom were excused. Every juror

challenged for cause by petitioner's counsel was excused;

in addition petitioner was given six peremptory chal-

lenges, all of which were exercised. Although most of the

persons thus selected for the trial jury had been exposed

to some of the publicity related above, each indicated

that he was not biased, that he had formed no opinion as

to petitioner's guilt which would require evidence to re-

move, and that he would enter the trial with an open

mind disregarding anvthing he had read on the case.

A study of the voir dire indicates clearly that each

juror’s qualifications as to impartiality far exceeded the

minimum standards this Court established in its earlier

62a

Nos. 81-5643-45 United States v. Blanton, et al. 31

cases as well as in Irvin v. Dowd, 366 U. S. 717 (1961),

on which petitioner depends. There we stated:

“To hold that the mere existence of any precon-

ceived notion as to the guilt or innocence of an

accused, without more, is sufficient to rebut the pre-

sumption of a prospective juror’s impartiality would

be to establish an impossible standard. It is suffi-

cient if the juror can lay aside his impression or

opinion and render a verdict based on the evidence

presented in court.” Id., at 723.

We cannot say the pretrial publicity was so intensive

and extensive or the examination of the entire panel re-

vealed such prejudice that a court could not believe the

answers of the jurors and would be compelled to find bias

or preformed opinion as a matter of law. Compare Irvin

v. Dowd, supra, at 723-728, where sensational publicity

adverse to the accused permeated the small town in

which he was tried, the voir dire examination indicated

that 90% of 370 prospective jurors and two-thirds of those

seated on the jury had an opinion as to guilt, and the

accused unsuccessfully challenged for cause several per-

sons accepted on the jury. The fact that petitioner did

not challenge for cause any of the jurors so selected is

strong evidence that he was convinced the jurors were

not biased and had not formed any opinions as to his

guilt. In addition, we note that while the Washington

Supreme Court was divided on the question of the right

of an accused to an impartial grand jury, the denial of

the petitioner's motions based on the bias and prejudice

of the petit jury did not raise a single dissenting voice.

“While this Court stands ready to correct violations of

constitutional rights, it also holds, that ‘it is not asking

too much that the burden of showing essential unfairness

be sustained by him who claims such injustice and seeks

to have the result set aside, and that it be sustained not

as a matter of speculation but as a demonstrable reality.’ ”

63a

32 United States v. Blanton, et al. Nos. 81-5643-45

United States ex rel. Darcy v. Handy, 351 U. S. 454, 462

(1956). This burden has not been met.

This circuit has adopted the above Irvin v. Dowd standard

in the following language:

“The constitutiona! standard of fairness requires that a

defendant have ‘a panel of impartial, “indifferent jurors.” ’

Irvin v. Dowd, 366 U.S. at 722 [81 S.Ct. at 1642}.”

Murphy, supra, [421 U.S.] at 799, 95 S.Ct. at 2035. It is

not necessary that the jurors be totally ignorant of the

facts and issues involved. Irvin, supra, at 722, 81 S.Ct. at

1642.

To hold that the mere existence of any preconceived

notion as to the guilt or innocence of an accused,

without more, is sufficient to rebut the presumption

of a prospective juror’s impartiality would be to es-

tablish an impossible standard. It is sufficient if the

juror cen lay aside his impression or opinion and

render a verdict based on the evidence presented in

court. (citations omitted ).

Id. at 723, 81 S.Ct. at 1642.

(Citations omitted. )

During the voir dire, Juror Yell was asked if there was

any reason she might be unable to return an unbiased

and unprejudiced verdict. She answered “No.” At the

hearing after the trial, she indicated that the conversa-

tion she overheard had no bearing on her decision. Al-

though a juror’s assurance of impartiality is not dispositive

of petitioner's rights, a trial judge’s finding of impartiality

should be set aside only upon a showing that prejudice

is manifest. Irvin, supra, 366 U.S. at 723, 81 S.Ct. at 1642.

Haney v. Rose, 642 F.2d 1055, 1059-60 (6th Cir. 1981).

Under this legal precedent it is significant that, following

the veir dire examination, [udge Peck denied further motions

regarding the conduct of the voir dire saying:

64a

Nos. 81-5643-45 United States v. Blanton, et al. 33

[Flor whatever it is worth, I have the view that the Jury

that has been selected is as fair and impartial a Jury as

could be obtained. (Tr. at 291)

We now hold, both for the reasons set forth above and for

one additional reason set forth below, that the trial judge did

not abuse his discretion in the handling of jury selection in

this trial.

Defendants have adduced no proof that this was a biased jury.

At the en banc hearing of this case, the author of this

opinion asked lead counsel for Governor Blanton whether

there was evidence of jury bias. The response was made

wholly in relation to one juror and cited evidence which we

deem quite inconclusive. We have searched this record for

any other such evidence pertaining to periods before, during,

or posttrial and have found none.

For the reasons set forth above, we believe that the jury

selection process, although not perfect, was nonetheless both

fair and effective in that it resulted in an impartial jury.

We find no merit as to other issues, and in this regard adopt

the panel opinion’s dispositions for the reasons stated therein.

The judgment of the District Court is affirmed.

65a

34 United States v. Blanton, et al. Nos. 81-5643-45

Kennepy, Circuit Judge. I write separately only to high-

light what I consider to be the significant fact that defense

counsel never complained to the District Court about the

group-nature of the inquiry of the first group of prospective

jurors into whether they could lay aside any impressions or

opinions that they may have formed and render a verdict

based solely on the evidence presented in court. Defense

counsel did unsuccessfully assert a right to participate in the

voir dire examination. There is no evidence, however, that

defense counsel ever requested ah individual voir dire by

the judge on the question of the jurors’ ability to lay aside

any impressions or opinions that they may have formed*

Moreover, there is every indication on the record that the

trial judge would have complied with such a request had

it been made. Whenever a prospective juror indicated that

she or he had formed some opinion concerning the guilt or

innocence of the defendants, the trial judge made further

inquiry into that juror’s ability to lay aside the opinion. Also,

whenever a new juror was called to replace someone who

had been excused, the trial judge inquired into her or his

ability to render a verdict based solely on the evidence

presented in court. At no point did defense counsel request

that the original veniremen be individually questioned on

that issue. Accordingly, defendants should not now be heard

to complain that group voir dire examination was insufficient

to produce an impartial jury and a fundamentally fair trial.

66a

Nos. 81-5643-45 United States v. Blanton, et al. 35

ENGEL, Circuit Judge, dissenting.

The en banc opinion today establishes a new rule of law

governing jury selection in federal trials involving widespread

pretrial publicity.

That new rule is that where inflammatory pretrial publicity

is pervasive, inquiry into an individual juror’s knowledge and

predisposition is superfluous. The only necessary inquiry, ac-

cording to the majority, is whether the juror believes in his

own mind that he can lay aside such knowledge and pre-

conceived notions and decide the case only upon the evidence

presented. The en banc opinion further imposes upon the de-

fense the burden of proving prejudice although the trial court

effectively precluded ;any meaningful inquiry needed to es-

tablish it. These propositions overrule established precedent. I

therefore respectfully dissent.

I remain completely satisfied with the careful analysis and

scholarship of Judge Gibson in the original panel decision,

United States v. Blanton, 700 F.2d 298 (6th Cir. 1983).' That

opinion fully discusses the law and policies concerning the

adequacy of voir dire in cases of widespread pretrial pub-

licity. These additional comments supplement Judge Gibson’s

67a

36 United States v. Blanton, et al. Nos. 81-5643-45

permitted to be put to the prospective jurors, either indi-

vidually or as a group, concerning the sources of publicity

they had been exposed to or the content of such sources

they might have remembered.

Judge Gibson’s opinion makes clear that although habeas

corpus review of jury selection is judged solely on a consti-

tutional standard, see United States ex rel. Darcy v. Handy,

351 U.S. 454, 462 (1956) (defendant must show bias not

as a matter of speculation, but as a demonstrable reality),

review of federal prosecutions also rests on the reviewing

court's supervisory power. See Marshall v. United States, 360

U.S. 310 (1959) (per curiam); Murphy v. Florida, 421 U.S.

794 (1975). Thus, in federal cases involving “pervasive” pre-

trial publicity, prejudice is presumed. Murphy, 421 U.S. at

798-99; see also, Irvin v. Dowd, 366 U.S. 717, 723 (1961);

Goins v. McKeen, 605 F.2d 947, 951 nn. 7 & 8 (6th Cir. 1979).

Once prejudice is so established, it is the trial judge’s duty to

assess each potential juror’s impartiality — i.e., his ability to

lay aside his impression or opinion and render a verdict based

on the evidence. Reynolds v. United States, 98 U.S. 145, 155

(1878). Finally, it is “the duty of the Court of Appeals to

independently evaluate the voir dire testimony of the im-

paneled jurors.” Irvin, 366 U.S. at 723 (emphasis added).

The heart of the issue in this appeal is how much informa-

tion the voir dire must elicit concerning the source and con-

tent of a venireman’s knowledge of the case in order that

the trial court and, on review, the court of appeals may assess

jury impartiality effectively. Judge Gibson's opinion relies on

the established principle that “[t)he juror’s assurances that he

is equal to this task [of laying aside preconceptions] cannot

be dispositive of the accused's rights... .” Murphy v. Florida,

421 U.S. 794, 800 (1975). That same principle has guided our

circuit in United States v. Ciacalone, 588 F.2d 1158, 1163

(6th Cir. 1978), cert. denied, 441 U.S. 944 (1979), and Goins

v. McKeen, 605 F.2d 947, 952-53 (6th Cir. 1979).

68a

Nos. 81-5643-45 United States v. Blanton, et al. 37

To my knowledge, no court of appeals has ever before af-

firmed a conviction in a case of widespread and inflammatory

pretrial publicity when the entire voir dire concerning pu»

licity consisted of a single question eliciting only a juror as-

surance (through silence) of impartiality:

[T]he test is, will you be able to put from your minds

whatever you may have seen and heard, and any opinion

which you may have tentatively reached, and then to

decide this case solely on the facts as you determine

them to be, on the sole basis of the evidence which will

be adduced in this trial after application of the appropri-

ate law?

App. 1487.

As both the en banc opinion and Judge Gibson’s panel opin-

ion make clear, the above question was preceded by frequent

admonitions specifically cautioning the jurors to refrain from

disclosing any further information bearing on possible bias,

either as to source or as to content:

And I urge you to be extremely careful in answering

any question that may be put to you. Answer only the

precise question asked. Do not volunteer anything be-

yond the scope of the question itself. And again, I ask

that you listen carefully to the question and then limit

your answer precisely to answering the question, without

volunteering any additional information or any additional

opinion, anything of that nature. .

(emphasis added). App. 1468-69. Similar precautions were

repeated throughout the entire voir dire. See, e.g., 1479-80,

1506-07. In addition the trial judge on several occasions

chided (albeit gently) jurors whose answers or comments

threatened to disclose any specific knowledge or opinion. See,

e.g., App. 1550, 1578, 1579.

It is singularly curious that the reason the trial judge ap-

parently felt that more specific questioning was unnecessary

69a

38 United States v. Blanton, et al. Nos. 81-5643-45

was that he assumed that the entire venire had been exposed

to the pretrial publicity which even the en banc majority

admits was “massive.” En banc Op. at 6, ante, quoting 700

F.2d at 302. From this undeniable fact, the trial judge and

the en banc majority were led to the totally erroneous con-

clusion that it was therefore unnecessary to inquire into the

particular knowledge of any individual juror or the source

from which that knowledge was derived. This conclusion

directly conflicts with our circuit’s holding in Goins v. McKeen,

605 F.2d at 952-53.

In Goins v. McKeen, our court indicated that juror exposure

to inflammatory publicity — such as that so plainly spread

upon this record — “render{s] the circumstances inherently

prejudicial and . . . a violation of petitioner's constitutional

right to trial by an impartial jury may be presumed.” Id. at

954. In contrast, the trial court here assumed that assurances

gained from silence were sufficient to overcome that pre-

sumption. The en banc opinion thrusts the burden upon the

defense to prove prejudice even though it has been presump-

tively established under the law. Compare En banc Op. at 31,

ante, with e.g., Murphy, 421 at 798-99.

The en banc decision is completely inconsistent with Judge

Celebrezze’s opinion in United States v. Johnson, 584 F.2d

148 (6th Cir. 1978), cert. denied, 440 U.S. 918 (1979). In

Johnson, we set out the proper voir dire procedure concern-

ing pretrial publicity. Although trial judges have broad discre-

tion in conducting voir dire, we recognized that “this discre-

tion is limited by the ‘essential demands of fairness.’” Johnson,

584 F.2d at 155, citing, Aldridge v. United States, 283 U.S.

308, 310 (1931). Fairness requires that the veniremen not

only be questioned about their ability to disregard pretrial

publicity but also that they be questioned concerning “the

sources and intensity of [their] exposure” to the pretrial pub-

licity. Johnson, 584 F.2d at 155.

70a

Nos. 81-5643-45 United States v. Blanton, et al. 39

In Johnson, our court also addressed the circumstances in

which the use of “content” questions is appropriate. “Content”

questions request the prospective juror to “recite everything

he remembers about the topic of inquiry.” Id. at 156 n.17. In

the context of pretrial publicity, a “content” question would

be asked to determine what a prospective juror remembered

about a specific article. Although “the better practice is for

the court to ask content questions of any juror who has been

exposed to pretrial publicity which the court knows to be of

clear prejudicial potential,” id. at 156 n.19, we need not con-

sider the issue of content questioning since defendants were

never given an opportunity to discover the sources of what

the prospective jurors had read or seen. The trial judge thus

violated the fundamental rule that veniremen must be ques-

tioned concerning “the sources and intensity of [their] ex-

posure” to pretrial publicity. Id. at 155. “Content” questions

need be asked only where “the nature of juror exposure to

. . . prejudicial material is not apparent from responses to

. more general [e.g., source] questions,” id. at 156, but

questions concerning the sources of exposure are never dis-

pensable.

As the en banc opinion acknowledges, the pretrial publicity

was massive. It would in fact be difficult to find a criminal

case in which the extent of publicity was so carefully chron-

icled and the objections to an abbreviated voir dire so clearly

and fully preserved. The Appendix includes 610 pages of de-

tailed newspaper accounts of the events leading to the trial of

these defendants. The en banc opinion is simply not faithful to

the record in suggesting that some articles containing favorable

material somehow neutralized the adverse publicity. It was

devastating. The publicity concerning Governor Blanton and

the other defendants in this appeal was not confined to the

matters involved in the trial. The articles covered not only

the entire range of the defendants’ alleged activity but also

implicated the defendants in the alleged cr

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