# Petition — Blanton v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0648%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1099 ## Text 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 ii 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 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 16 15 18 23 14 13 17 23 2,4a 17 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 iv CONSTITUTION & STATUTES: 18 U.S.C. 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 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 largepart 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 pre- trial publicity. There can be no doubt that there wasan extraordinary amount of pretrial publicity concerning this case and other cases involving officials of the Blanton administration and some of Blanton's relatives. The selection of a jury commenced on April 20, 1981, with the Trial Court conducting the voir dire en masse. The testimony commenced in the case April 22, 1981, and concluded May 29, 1981. The jury deliberated until June 9, 1981], and found Petitioner guilty on all eleven counts. Petitioner was sentenced to three years and was fined $11,000.00. Upon appeal to the United States Court of Appeals for the Sixth Circuit, a panel consisting of The Honorable Albert Engel and The Honorable Damon Keith, Circuit Judges, and The Honorable Floyd Gibson, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation, reversed Petitioner's conviction, concluding that the Trial Court inadequately probed the opinions jurors might have formed as a result of the massive, intense publicity which had preceded the trial, operating to impair Petitioner's right to a fair and impartial jury "as shown on the record." [App. B, p. 32a) The government responded with a Petition for Rehearing En Banc, which was granted April 7, 1983. The decision of the Court of Appeals, consisting of Chief Circuit Judge Edwards and nine Circuit Judges, reversed the panel, with Circuit Judges Engel, Martin, Jones and Keith eis © REASONS RELIED UPON FOR GRANTING THE WRIT l. The decision of the Court of Appeals is in tonflict with prior expressions of this Court which disapprove unduly restricted voir dire where the veniremen have been exposed to prejudicial publicity. The Conduct of the Voir Dire We adopt the panel's description of 1 =/ Circuit Judge Keith filed a separate dissenting opinion [App. C, pp. 93a-96al, Circuit Judge Kennedy filed a separate concurrence in the majority opinion [App. C, p. 66a]. the voir dire, which was adopted by the majority opinion of the en banc Court of Appeals: 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 » 16 - box to replace the ones who were excused for whatever reason, the trial court would ask them essen- tially the same question on pretrial publicity. It usually saidit 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 preju- dice to pretrial publicity. Seven of these thirteen were excused when they said they had an opinion, without the court inguiring 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 parties excused twenty-eight others with their peremptory Challenges. [App. C, pp. 40a, 4la.] To read the lack of detail in such voir dire is to realize its total inadequacy in terms of detecting prejudice on the part of prospective jurors as the result of exposure to hostile pretrial publicity. For what the Trial Court did was to address the venire en masse in a packed Courtroom with a general question relating to pretrial publicity and to - il «- thereafter accept the silence of the veniremen as an assurance of impartiality. The Trial Court refused to ask or to permit the asking of any comparable questions in relation to the exposure of the veniremen to pretrial publicity, their knowledge concerning the case, opinions formed as to the guilt or innocence of the Petitioner as the result of such exposure and the intensity of any such opinions. And this despite the recognition by the Trial Judge that: "It is entirely likely that some of you have formed a tentative opinion concerning the probable guilt or innocence of some of these defendants.” [R. 56.] This abbreviated voir dire ignores the teaching of Irvin v. Dowd, 366 U.S. 717, at 723, where this Court said in relevant part: - 12 - (Tlhe ‘essential function of voir dire is to allow for the impaneling of a fair and impartial jury through questions which permit the intelli- gent exercise of challenges by counsel.' A trial court commits reversible error if, by unduly restricting voir dire, it substan- tially 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 concern to a defense attorney in deciding on peremptory challenges. And certainly in deciding upon challenges for cause. For in circumstances such as those here presented, where the trial was conducted in the wake of massive adverse pretrial publicity, there was a constitu- tional demand for “searching questioning" of prospective jurors conducted as an alternative to prior restraint of publication when pretrial publicity creates a substantial risk of juror prejudice. Sheppard v. Maxwell, 384 U.S. =— 333, 354-55 (1966); Reynolds v. United States, 98 U.S. 145, 156 (1878); Aldridge v. United States, 283 U.S. 308, 310. This requirement has been imposed by this Court in balancing the constitutional concepts of a free press against a fair trial in prior restraint cases. As Circuit Judge Engel put it in his dissenting opinion: To my knowledge, no court of appeals has ever before affirmed a convic- tion in a case of widespread and inflammatory pretrial publicity when the entire voir dire concerning publicity consisted cof a single question eliciting only a juror assurance (through siience) of impartiality: = Emp.iiasis supplied) [App. C, p. 693a.] Thus, the dissenting opinion of Judge Engel states that: 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 = 14 - inflammatory pretrial publicity is pervasive, inquiry into an individual juror's knowledge and predisposition is superfluous. *** The en banc opinion further imposes upon the defense the burden of proving prejudice although the trial court effectively precluded any meaningful inquiry needed to establish it. *** [App. C, p.67a.]} Thus, the procedure countenanced by the Court of Appeals is at once in the teeth of principles established by this Court and flouts Petitioner's right to a reasonable opportunity to secure a disinterested jury--a right guaranteed by the Fifth and Sixth Amendments to the United States Constitution. 2. The decision of the Court of Appeals conflicts with the uniform federal appellate view that a juror may not determine his own lack of partiality. This Court recognized in Murphy v. Florida, 421 U.S. 794 (1975), that: *** (T]he juror's assurance that he is equal to this task (of laying aside impressions ocr opinions) 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.' 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 3/ 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 3/ 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 la 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 2a 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 3a 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 4a 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 5a 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 6a 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 .... 7a 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. 8a 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. 9a 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 n 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 4 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 6 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 of z : Q i; a z I 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 mi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0648%3A1. Public record. Not legal advice.