[COMPLEX CASE]
ORAL ARGUMENT HAS BEEN SCHEDULED FOR FEBRUARY 1, 1995
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________________________
NO. 90-3211
______________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx, III, et al.,
Defendant-Appellants.
_______________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________________
FINAL JOINT BRIEF FOR APPELLANTS
________________________________________________
JENSEN E. BARBER, ESQ.
400 Seventh Street, NW #400
Washington, DC 20004
Counsel for Emanuel W. Sutton
JOSEPH R. CONTE, ESQ.
601 Pennsylvania Avenue, NW
Washington, DC 20004
Counsel for Jerry R. Millington
DANIEL E. ELLENBOGEN, ESQ.
717 D Street, NW #400
Washington, DC 20004
Counsel for xxxxxxx xxxxxxx, III
ELISE HALDANE, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for James Antonio Jones
A.J. KRAMER
Federal Public Defender
NEIL JAFFEE, ESQ.
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D.C. 20004
Counsel for Keith E. Cooper
STEVEN R. KIERSH, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Melvin D. Butler
* ADDITIONAL COUNSEL ARE LISTED ON REVERSE SIDE
LEONARD L. LONG, ESQ.
1818 11th Street, NW #100
Washington, DC 20007
Counsel for John Monford
LEROY NESBITT, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for Tony Lewis
G. GODWIN OYEWOLE, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Bernice H. McCraw
ROBERT E. SANDERS, ESQ.
7125 16th Street, NW
Washington, DC 20012
Counsel for Armaretta B. Perry
DAVID B. SMITH, ESQ.
526 King Street #213
Alexandria, VA 22314
Counsel for David W. McCraw
RULINGS, AND RELATED CASES
I.PARTIES AND AMICI:
A.Names of Parties Below and on Appeal
This appeal arises from a criminal trial in which the lead defendant, xxxxxxx xxxxxxx, III, was convicted of engaging in a continuing criminal enterprise involving drug trafficking and he, as well as his ten co-defendants, were convicted of conspiring to distribute and possess with the intent to distribute large quantities of cocaine and cocaine base and related offenses occurring over approximately a four-year period.
The names of the parties in the trial below are:
Plaintiff-Appellee: United States of America.
Defendants-Appellants: xxxxxxx xxxxxxx, III, Tony Lewis, James Antonio Jones, a/k/a Tonio, Jerry Millington, Keith Cooper, a/k/a Cheese, David McGraw, Melvin Butler, Bernice Hillman McGraw, a/k/a Niecy, John Monford, a/k/a Johnny, Armaretta B. Perry, and Emanuel Sutton, a/k/a Mangie. There are no amici.
II.RULINGS UNDER REVIEW:
This is an appeal from judgments of the district court (Honorable Charles R. Richey), adjudging appellants guilty after a trial on CCE, drug conspiracy, and related charges. In this appeal, appellants seek review of the district court's rulings denying their motions for change of venue (July 13 and September 9, 1989) and to suppress wiretap evidence (August 28, 1989), and ordering that the jury be anonymous and sequestered (August 25, 1989). None of these rulings has been reported. In addition, appellants seek review of the trial judge's apparent and actual bias against the defense, which occurred throughout the proceedings, as well as his numerous rulings sanctioning non-disclosure by the prosecution of discoverable evidence and materials and restricting cross-examination of key government witnesses. Once again, none of the district court's rulings upon which the arguments relating to bias, discovery violations, and cross-examination restrictions are based, has been reported.
III.RELATED CASES:
The appeals of nine criminal defendants who were jointly indicted with the appellants in this case but tried separately are pending before this court, as follows:
No. 90-3222United States v. Willie Childress
No. 90-3223United States v. Columbus Daniels
No. 90-3224United States v. Rachelle xxxxxxx
No. 90-3225United States v. Robert Hardy
No. 90-3226United States v. Ronald Morgan
No. 90-3227United States v. Constance Perry
No. 90-3228United States v. Melvin Stewart
No. 90-3229United States v. Jeffrey Thompson
No. 90-3230United States v. Raynice Thompson
The Court has ordered that these appeals be consolidated but has not yet set a briefing schedule.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________________________
NO. 90-3211
______________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx, III, et al.,
Defendant-Appellants.
_______________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________________
JOINT BRIEF FOR APPELLANTS
________________________________________________
1. Whether the trial court's use of an anonymous jury was an abuse of discretion where there was no showing of the defendants' ability or predilection to improperly influence the jury, where the court failed to make any factual findings or to consider less drastic alternatives, and where the court's explanation to the jury of its anonymity heightened the prejudice to the defendants.
2. Whether the court abused its discretion in denying the defendants' motion for change of venue without a hearing and in conducting an unfair jury selection process where the case involved inflammatory pretrial publicity which was instigated by the government.
3. Whether the cumulative effect of the trial judge's critical comments, hostile manner, intimidating tactics, unwarranted contempt findings, and unequal treatment of the defense and prosecution adversely influenced the jury and deprived defendants of their constitutionally protected right to a fair and impartial trial.
4. Whether the combined effect of restrictions on cross-examination of key prosecution witnesses and non-disclosure of discoverable evidence deprived defendants of their rights to confrontation and due process of law.
5. Whether the court erred in denying without a full hearing defendants' motion to suppress wiretap evidence where the supporting affidavit omitted a full and complete statement of other investigative procedures tried, the government failed to prove that the interceptions were necessary, and the authority of the specially designated assistant attorney general who authorized the filing of the application lapsed because of a change in attorney general.
6. Whether the individual errors at trial, taken together, combined to deprive defendants of a fundamentally fair trial.
Pertinent statutes and rules are set forth in the addendum to this joint brief.
This court has jurisdiction pursuant to 28 U.S.C. § 1291 over this direct appeal of final judgments in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.
(i) Course of Proceedings and Disposition Below
On or about May 15, 1989, a federal grand jury returned a thirty-nine count indictment charging xxxxxxx xxxxxxx, III and twenty-eight codefendants with various violations of the federal drug statutes and related charges, including operation of a continuing criminal enterprise by xxxxxxx and several armed offenses by xxxxxxx and three other defendants. Prior to trial, the district court (Honorable Charles R. Richey) ordered a severance of defendants and counts. The final retyped indictment, which charged the eleven defendants in this case in twenty-three counts, included the CCE violation, drug conspiracy (all defendants), substantive drug offenses, and criminal forfeiture of certain real and personal property.
Trial commenced before the district court and the first anonymous jury empaneled in the District of Columbia. The anonymous jurors were also sequestered throughout the trial and deliberations. On December 6, 1989, the jury returned verdicts finding all defendants guilty on all counts but one (Jones was acquitted of the substantive drug offense in Count Four). The individual verdicts and sentences were as follows:
xxxxxxx xxxxxxx III. Count One -- Guilty of engaging in a continuing criminal enterprise, 21 U.S.C. §§ 848, 853. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Five -- Guilty of unlawfully employing a person under Eighteen years of age, 21 U.S.C § 845b. Count Eleven -- Guilty of interstate travel in aid of racketeering, 18 U.S.C. § 1952(a)(2). Counts Fourteen, Fifteen, Sixteen, Eighteen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 17, 1990, the district court imposed sentences of mandatory life without parole on Count One, life without parole on Counts Two and Five, 60 months (concurrent) on Count Eleven, and 48 months (concurrent) on Counts Fourteen, Fifteen, Sixteen, and Eighteen.
Melvin Butler. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Fifteen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 4, 1990, the court sentenced Mr. Butler to 405 months on Count Two, and 48 months on Count Fifteen (concurrent).
Emanuel W. Sutton. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Twenty -- Guilty of distribution of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 18 U.S.C. § 2. Count Twenty-one -- Guilty of unlawfully employing a person under Eighteen years of age, 21 U.S.C. § 845b.
On September 6, 1990, the court sentenced Mr. Sutton to 320 months on Counts Two and Twenty-one, and 240 months on Count Twenty (concurrent).
James Antonio Jones. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Four -- Not guilty of possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a) and (b)(1)(C).
On September 5, 1990, the court imposed a sentence of life without parole on Count Two.
Jerry Millington. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Thirteen -- Guilty of interstate travel in aid of racketeering, 18 U.S.C. § 1952(a)(2).
On September 5, 1990, the court sentenced Mr. Millington to 405 months on Count Two, and 60 months on Count Thirteen (concurrent).
Tony Lewis. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Eleven -- Guilty of interstate travel in aid of racketeering, 18 U.S.C.
§ 1952 (a)(2). Counts Sixteen, Eighteen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 6, 1990, the court imposed a sentence of life without parole on Count Two, five years each on Count Eleven, and four years on Counts Sixteen and Eighteen (all concurrent).
Keith E. Cooper. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Six -- Guilty of distributing cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 18 U.S.C. § 2. Count Seven -- Guilty of unlawfully employing a person under 18 years of age, 21 U.S.C. § 845b. Count Eight--Guilty of distributing a quantity of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Count Nine -- Guilty of possessing with intent to distribute 50 or more grame of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Count Ten -- Guilty of unlawfully employing a person under 18 years of age, 21 U.S.C. § 845b.
On September 6, 1990, the court sentenced Mr. Cooper to 320 months on Counts Two, Seven, Nine and Ten, and 240 months on Counts Six and Eight (all concurrent).
Bernice Hillman McCraw. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Seventeen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 4, 1990, the court sentenced Ms. McCraw to 235 months on Count Two and 48 months on Count Seventeen (concurrent).
David McCraw. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Nineteen -- Guilty of distribution of 500 or more grams of cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii)(II).
On September 4, 1990, the court sentenced Mr. McCraw to 292 months on Counts Two and Nineteen (concurrent).
John Monford. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846.
On September 5, 1990, the court sentenced Mr. Monford to 405 months on Count Two.
Armaretta Perry. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Three -- Guilty of maintaining a premises for an unlawful purpose, 21 U.S.C. § 856. Count Seventeen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 4, 1990, the court sentenced Ms. Perry to 405 months on Count Two, 240 months on Count Three and 48 months on Count Seventeen (all concurrent).
In addition, the jury found a basis for the forfeiture of real property located at 1009 Peconic Place, Upper Marlboro, Maryland, 14518 London Lane, Bowie, Maryland, a 1986 Chevrolet Corvette, and assorted personal property.
All defendants filed timely notices of appeal. Their appeals were consolidated pursuant to this court's order.
The defendants were charged in a superseding indictment with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 841 (a)(1), (b)(1)(A)(ii)(II), (b)(1)(A)(iii), and as well as related drug offenses. Four of the original defendants (three of whom were tried in this case) were charged with homicide and related offenses. The lead defendant, xxxxxxx xxxxxxx III, was charged with engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. §§ 848, 853.
In orders dated August 4 and August 7, 1989, the district court severed the case by defendants and counts. Eleven defendants were tried in this case; all homicide and related charges were severed.
Overwhelming publicity accompanied the arrests, pretrial proceedings and trial of the case. Defendants' written motions for a change of venue were denied on July 13, 1989 and September 9, 1989. The defendants' renewed oral motions for a change of venue were denied during jury selection.
On August 25, 1989, the court ordered, sua sponte, that the jury would be anonymous and sequestered throughout the trial.
At the trial, which began on September 18, 1989, the government introduced evidence to document its theory that xxxxxxx xxxxxxx III was the kingpin of a sophisticated drug distribution network whose members consisted of his family and friends. According to that evidence, Californian Melvin Butler arranged for cocaine to be delivered to Washington, D.C. (11/1/89 Tr. 209-231) in exchange for cash which was delivered to him in Los Angeles by courier. (10/20/89 Tr. 20-24, 49-51; 11/9/89 Tr. 42-47) Witnesses testified that Tony Lewis joined xxxxxxx on trips to California and in sending cash across the continent. (10/20/89 Tr. 36-38; 10/27/89 Tr. (p.m.) 140-144; 11/2/89 Tr. 11-12)
According to the testimony of cooperating witnesses, the cocaine arrived from in the D.C. area by courier, where it was picked up by xxxxxxx brother-in-law David McCraw and others. (11/1/89 Tr. 216-217) The drugs were stored at various locations, including the home of brother-in-law Jerry Millington. (10/3/89 Tr. (p.m.) 40-41) Family members David McCraw, Bernice Hillman McCraw and Armaretta Perry packaged the cocaine into retail units. (9/29/89 Tr. 79-80, 82, 112-113; 10/16/89 Tr. 124, 170; 10/24/89 Tr. 22)
According to the cooperating individuals and police officers who made observations, the packaged cocaine was then taken to the "Strip"--a two-block area located on Morton and Orleans Streets in northeast Washington, D.C. Street sellers and supervisors included Keith Cooper, Emanuel Sutton, John Monford, James Antonio Jones and Jerry Millington. (9/20/89 Tr. 46-48, 56-57, 64; 9/21/89 Tr. 119, 161-163, 168-169; 9/22/89 Tr. 52-55, 159, 162-163; 9/25/89 Tr. 82, 84; 9/27/89 Tr. 32-33; 10/3/89 Tr. (p.m.) 45-46, 50, 62; 10/4/89 Tr. 63-64; 10/16/89 Tr. 133-134, 139-140)
To prove its case, the government relied upon the contents of court-ordered wiretaps, police observations and undercover purchases, executed search warrants, tax returns of certain defendants and the testimony of a number of informants who ranged from addicted cocaine purchasers to the prosecution's "star witness," Alta Rae Zanville, who acted as a general factotum to the xxxxxxx family until her arrest on unrelated cocaine distribution charges in December, 1988. Following her arrest, she continued her activities, but consented to the taping of her conversations with xxxxxxx xxxxxxx and his associates. (10/19/89 Tr. 140-147; 10/20/89 Tr. 16-19, 26-27, 36-38, 49-51, 56-59, 72, 82-86) James Mathis and Royal Brooks, self-styled transcontinental drug couriers who became government witnesses, described cross-country trips between Washington, D.C. and the transfer of large sums of money for multi- kilogram quantities of cocaine (11/1/89 Tr. 209-235, 11/9/89 Tr. 4-7, 40-66, 87-94) James Minor, a childhood friend of David McCraw, described deliveries of cocaine and drug transactions on the "Strip." (9/29/89 Tr. 96-98, 105-106; 10/16/89 Tr. 101-104, 131-132, 158-159)
Defendants' trial was a progression of errors, each error damaging standing alone, but lethal as a whole. The defendants had been targets of adverse media publicity throughout the five-month period between their arrest and the commencement of trial. The print and media publicity contained references to extensive drug dealing and violent activity by the "xxxxxxx organization." The media coverage, much of which was engineered by the prosecution, was so pervasive that it was improbable that any prospective juror could have been untouched by it. Knowing this, the trial judge should have granted a change of venue to a district which was not saturated with prejudicial pretrial publicity.
Instead, the district court, in the absence of any evidence of possible jury tampering or corruption and without conducting a hearing or making any findings, impaneled the first anonymous jury ever to sit in the District of Columbia. To make matters worse, the trial was presided over by a judge who consistently favored the prosecution in his rulings while criticizing, disparaging, and threatening defense counsel, both in the presence and absence of the jury. Compounding this, the trial court permitted the government to ignore its obligation to disclose certain evidence and other materials and restricted cross-examination of key prosecution witnesses. Moreover, the court erroneously admitted into evidence recordings of telephone conversations which were illegally intercepted by the government. Finally, the aggregate and cumulative impact of the various errors summarized above denied defendants the fundamentally fair trial to which they are entitled. Therefore, their convictions should be reversed.
I.
THE TRIAL COURT'S USE OF AN ANONYMOUS JURY WAS AN ABUSE OF DISCRETION WHERE THERE WAS NO SHOWING OF THE DEFENDANTS' ABILITY OR PREDILECTION TO IMPROPERLY INFLUENCE THE JURY, WHERE THE COURT FAILED TO MAKE ANY FACTUAL FINDINGS OR TO CONSIDER LESS DRASTIC ALTERNATIVES, AND WHERE THE COURT'S EXPLANATION TO THE JURY OF ITS ANONYMITY HEIGHTENED THE PREJUDICE TO THE DEFENDANTS.
Shortly after the defendants' motions for a change of venue
were denied without a hearing on July 13, 1989, the government
filed a "Motion for Protective Order and Sealing of Portions of
the Juror Questionnaire." [A. I. 203-209]
The motion requested
that the court seal portions of the juror questionnaire and order
that defense counsel not share any identifying information in the
juror questionnaires with their clients. The court granted the
government's motion on the same date.
[A. I. 210]
On July 26, 1989, the defendants filed a motion to reconsider the court's order of July 17, 1989. [A. I. 211] At the hearing on the motion, the government made known its position on the need for an anonymous jury:
MR. ANDARY: We would submit there is only one alternative to the procedure we are asking for and that is sequestration and we think this is a much fairer alternative.
THE COURT: The alternative to what you are seeking is try the case before an anonymous jury, which is being done right now in New York in the federal court.
MR. ANDARY: That is another alternative.
THE COURT: It has been done, and it is being done in the Eastern and Southern District, so- called "mother" court.
MR. ANDARY: That, we would submit, that is not necessary if we take simple precautions. (8/9/89 Tr. 745) (emphasis added)
The court concluded the hearing without further comment on the issue. (8/9/89 Tr. 755)
On August 25, 1989, the court ordered, sua sponte, that the jury would be sequestered and anonymous. A memorandum opinion citing precedents for use of anonymous juries followed on August 30, 1989. [A. I. 252-254] Defense objections to the anonymous jury were ignored by the court. (9/11/89 Tr. 1892-93)
When the prospective jurors arrived to fill out the juror questionnaires, they were advised that pursuant to "a common practice followed in many cases in the Federal court," their names and identities were being kept in confidence. [A. I. 251-261] The media soon exposed this fiction. On the second day of jury selection, a prospective juror stated
PROSPECTIVE JUROR: I have heard that this is like a precedent, not having everyone's name, this is the first time they ever used numbers. . . . I saw that on TV.
(9/12/89 Tr. 2100)
During jury selection, two prospective jurors wrote notes to the court regarding their concerns about anonymity. [A. IV. 283-284] Another wrote that s/he could not be fair in the presence of "such tight security and what that security, in my mind, stands for." [A. IV. 282]
Although this is an issue of first impression in this jurisdiction, other circuits have held that the standard is abuse of discretion. See United States v. Crockett, 979 F.2d 1204, 1215-17 (7th Cir. 1992) (trial court enjoys substantial discretion in empaneling an anonymous jury so long as there is strong reason to believe jury needs protection and reasonable precautions are taken to minimize any prejudicial effects on defendant).
The Sixth Amendment guarantees to criminal defendants the right to a fair trial by an impartial jury. The presumption of innocence is an essential component of a fair trial. Estelle v. Williams, 425 U.S. 501, 503 (1976). To protect that right, this court has taken a "stringent view of any action which creates an appearance of danger in a trial." Dorman v. United States, 435 F.2d 385, 398 (D.C. Cir. 1970).
When a judge conducts a trial in a way that can only impress upon the jury the dangerousness of the men on trial, this impartial search for truth aborts. Therefore, the judge should be at pains not to act precipitately.
Id. at 398.
"As a matter of law and virtually immemorial custom, public trials have been the essentially unwavering rule in ancestral England and in our own Nation." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 593 (1980) (Brennan, J., concurring). The rule was admeasured in United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980). The Second and Third Circuits have adopted the use of anonymous juries in a number of cases -- all of which involve notorious narcotics conspiracies operated by criminal syndicates. See, e.g., United States v. Scarfo, 850 F.2d 1015, 1021-26 (3d Cir.), cert. denied, 488 U.S. 910 (1988) (reviewing the history of anonymous jury selection); United States v. Barnes, 604 F.2d at 140-141 (rejecting proposition that jurors must disclose identities in all cases).
Recognizing that the use of anonymous juries poses a significant risk of erosion of the presumption of innocence, those courts which have approved the use of anonymous juries have held that "there must be first, strong reason to believe the jury needs protection," before the court empanels an anonymous jury. See United States v. Thomas, 757 F.2d 1359, 1365 (2d Cir. 1985), cert. denied, 474 U.S. 819 (1986), cited in United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990). "[T]he impaneling of an anonymous jury -- and its impact on the presumption of innocence -- must therefore receive close judicial scrutiny and be evaluated in the light of reason, principle and common sense." United States v. Thomas, 757 F.2d at 1363.
A district court should not empanel an anonymous jury without "(a) concluding that there is strong reason to believe the jury needs protection and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected." United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991). In United States v. Millan-Colon, 834 F. Supp. 78, 83-84 (S.D.N.Y. 1993), the court noted that the mere fact that defendants were charged with crimes involving a narcotics enterprise, money laundering and violence was not sufficient to justify using an anonymous jury without some suggestion that there had been jury tampering, juror intimidation or some interference with the judicial process. See also United States v. Vario, 943 F.2d 236, 241 (2d Cir. 1991) (error to empanel an anonymous jury based on the mere allegation that the defendant has substantial ties to organized crime figures), cert. denied, 112 S. Ct. 882 (1992). In United States v. Melendez, 743 F. Supp. 134, 136-139 (E.D.N.Y. 1990), the court rejected a request for an anonymous jury notwithstanding serious allegations of racketeering, violence and narcotic violations, but ordered partial restrictions on information disclosed based on alleged threats to codefendants.
Recently, in Commonwealth v. Angiulo, 415 Mass. 502, 615 N.E.2d 155 (Mass. 1993), the Supreme Court of Massachusetts reversed a conviction where the erroneous use of an anonymous jury was compounded by misconduct of the trial judge in examining jurors outside the presence of counsel and the defendant. Although the court rejected the use of an anonymous jury on statutory grounds applicable to defendants charged with crimes punishable by death or life imprisonment, it provided guidance in future cases by requiring that no anonymous jury be empaneled "unless the trial judge has first determined on adequate evidence that anonymity is truly necessary and has made written findings on the question." 615 N.E.2d at 171. The district court in this case failed to comply with either of these requirements.
In cases where anonymous juries have been empaneled, courts uniformly have required a demonstration of a genuine and realistic likelihood that the defendants have the means to tamper with the jury and will, in fact, tamper with it. See United States v. Locascio, 6 F.3d 924, 930, 947 (2d Cir. 1993) (wiretap revealed that defendants discussed schemes for interfering with judicial process and that they were pro-active with regard to jury tampering and witness intimidation), cert. denied, 114 S. Ct. 1645 (1994); United States v. Crockett, 979 F.2d at 1215-1217; United States v. Thomas, 757 F.2d at 1362. In addition, a finding of genuine media interest and likelihood of extensive media coverage is required. See United States v. Vario, 943 F.2d at 240 (history of tampering with juries in other cases coupled with extensive media coverage of case); United States v. Eufrasio, 935 F.2d 553, 558-559 (3d Cir. 1991) ("Mafia" defendants in high profile conspiracy trial which received extensive media coverage); United States v. Persico, 832 F.2d 705, 717 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988) (history of witness tampering and extensive media coverage).
In the extraordinary event that a court decides to empanel an anonymous jury, it should tell the jurors why they will be anonymous in such a way as to minimize the effect of anonymity on their perception of the defendants. The suggested contents of the instruction diverge by circuit. The Second Circuit has held that the district court should tell the jury that the reason for anonymity is to insulate the jury from media publicity and not refer to any potential danger of tampering from the defendants. United States v. Locascio, 6 F.3d at 947. The Third Circuit has held that the district court should be "frank with the jury" and should instruct the jurors that the purpose of anonymity is to dispel any worries about personal safety that the jurors may harbor since the trial involved members of organized crime even though the court does not believe that there is "the slightest reality" to any "feeling of insecurity" that the jurors may have. United States v. Scarfo, 850 F.2d at 1028.
C.Where There Was No Showing of Need for Anonymity, the Court Abused Its Discretion in Making the Jury Anonymous
Anonymous juries have been employed almost exclusively in
cases involving highly sophisticated crime syndicates -- the
"mafia" and "La Cosa Nostra" -- in which the defendants
previously had demonstrated that they were ready, willing and
able to tamper with jurors.
See United States v. Crockett, 979
F.2d at 1216; United States v. Thomas, 757 F.2d at 1362-1363. In
each of the aforesaid cases, the government presented the court
with some evidence of the defendant's history of jury tampering.
In this case, the lack of evidence supporting a conclusion that
the defendants had the inclination to influence a juror was
matched by a total paucity of proof that the defendants had the
ability to tamper with a member of the jury. The court did not
make factual findings in support of its decision to empanel an
anonymous jury simply because there were no facts of record from
which to make findings.
Defendants recognize that the charges in this case were serious and carried substantial penalties. However, because federal sentencing provisions -- mandatory minimum statutory penalties combined with Sentencing Guidelines -- require lengthy sentences for even low-level drug offenders, the potential penalty in a case is not a significant consideration in determining whether an anonymous jury is necessary. Moreover, the more serious the charges and possible penalties in a case, the more important it is for the defense to be able to conduct a full voir dire and for the trial court to insure that the jury's opinion of the defendants is not tainted by the use of an anonymous jury. In fact, in the most serious cases -- involving capital offenses -- the law requires pre-trial disclosure of names and addresses of all prospective jurors. See 18 U.S.C. § 3432. Defendants facing life imprisonment and sentences exceeding a quarter of a century should, at a minimum, receive such information at the time of jury selection.The arbitrariness of the order to use an anonymous jury is further demonstrated by the fact that the district court refused to conduct a hearing on the issue. Immediately prior to the voir dire, defense counsel opposed the use of the anonymous jury and, on behalf of all defendants, moved that they be heard on the issue. The district court ignored the motion. (9/11/89 Tr. 1892-1893). While a hearing has not been required in every case as a matter of law, it is highly recommended. United States v. Eufrasio, 935 F.2d at 574. However, because the district court in this case decided sua sponte to use an anonymous jury and thereby substantially burden a fundamental right, a hearing was essential. A hearing would have allowed for a full and rational consideration of the need for an anonymous jury and avoided the arbitrariness of the court's unilateral decision.
D.The Court's Use of the Most Restrictive Alternative In A Case Where Either Sequestration or a Change of Venue Would Have Solved the Problem of Media Influence Was An Abuse of Discretion
If the sole criterion for use of an anonymous jury were media attention, this case undoubtedly would qualify. However, in this circuit, two well-established procedures for dealing with media attention have stood the test of time: sequestration and a change of venue. In a recent high publicity case which received national attention, United States v. Barry, 938 F.2d 1327 (D.C. Cir. 1991), the jury was sequestered, but not anonymous. Similarly, in United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc), cert. denied, 431 U.S. 933 (1977), the jury was simply sequestered. As a result of a change of venue, the second trial of United States v. Antonelli, Crim. #78-00175 (GAG) (D.D.C.), took place in Philadelphia.
Sequestration alone would have sufficed to insulate the jury from the inevitable media coverage which was likely to attend the trial of the first group of xxxxxxx defendants. There is nothing in the record that in any way suggests that representatives had or could have had improper contact with jurors. If the district court nevertheless believed that there was a danger of improper contacts between representatives of the media and the jurors, sequestration without anonymity would have adequately averted that danger. Alternatively, a change of venue would have solved the problems raised by the pre-trial publicity. Rather than considering either of these less restrictive alternatives, and without conducting a hearing or even providing the parties with an opportunity to research, brief, and argue the issue, the court ruled by fiat.
The arbitrariness of the decision is also demonstrated by failure of the district court adequately to consider whether a less restrictive alternative to absolute anonymity was available. Even if the district court had properly concluded that anonymity was necessary after duly considering the facts, it should have considered practical means of rationally fashioning the extent of the anonymity so that the intrusion on the constitutional rights of the defendants would have been as minimal as possible. See, e.g., United States v. Melendez, 743 F. Supp. at 135 (first names and street addresses of jurors withheld but surnames, general locations of residence and types of employment revealed).
E.The Explanations Given to the Jury Regarding Their Anonymity Were False and Misleading and Could Only Result In A Belief that the Jurors Were Anonymous Because They Were Endangered By the Defendants
After the jurors were told at the time they filled out their questionnaires, that anonymity was "common in federal courts," the court somewhat inconsistently advised three panels during voir dire that because of the
. . . close scrutiny and legitimate interest by the press and others in this case, and in order to avoid any outside or extra-judicial pressures or conduct which might affect the integrity of the right to a trial by jury process, the court has decided to sequester the jury . . . (9/11/89 Tr. 1902; see also 9/11/89 Tr. 1960; 9/13/89 Tr. 2242-43)
Moreover, in its final instructions the court informed the jurors that, "just like the fact that your anonymity has been preserved and that you've been sequestered, [the court is] going to ask the marshal to be with you during the luncheon recess, not because nobody [sic] mistrusts you but to protect you." (12/1/89 Tr. 93-94)
Despite the court's efforts to mislead the jury into believing that their anonymity was intended to keep the press away from them, they were well aware of (and many jurors noted) the extraordinary security precautions and personnel, the large number of defendants in the courtroom, and the bullet-proof plexiglass barrier, behind which sat the defendants' families, friends, and the press. The message was not subliminal.
The court's statements did not in any way explain that anonymity was necessary to protect the privacy of the jurors from the media (Second Circuit approach) or from the defendants from whom there was no known possibility of danger to the jurors (Third Circuit approach). Since the statements mentioned merely juror privacy as the reason for anonymity, the jurors were left to speculate as to whether the district court was really using anonymity because the jurors were in personal danger or because it had decided that the defendants were guilty.
Although the court's instruction referred to media publicity as a reason for anonymity and sequestration, it did so in the conjunctive to "outside or extra-judicial pressures that might affect the integrity of the right to trial". The jurors were not told affirmatively that there was no threat to their personal safety or that the only reason for anonymity and consequent sequestration was media publicity. Instead, the court's preliminary instruction, coupled with its comment during its final instruction implying that the jurors' anonymity was to "protect" them, sent a clear message that the court believed that there were or could be threats to their personal safety from the defendants. That message can only be deemed to have "cast the defendant[s] in an unfavorable light." United States v. Thomas, 757 F.2d at 1364.
The court failed to provide to the jury any clear guidance in the form of a credible explanation and non-inflammatory instruction as to the reason that they were anonymous. Under the circumstances, the jurors could only draw negative and adverse inferences from the fact that their identities were shielded from the defendants. Because it is unlikely that the jurors could have impartially weighed the evidence presented at trial without the taint created by their anonymity, the defendants were denied their right to a fair trial.
F.The Court's Refusal to Allow the Defense Access to Residential Information About the Prospective Jurors Denied the Defense an Opportunity to Exercise Their Peremptory Strikes Intelligently
In furtherance of its anonymity order, the court allowed the parties to ascertain the quadrant of the city in which the prospective jurors resided, but did not allow inquiry into the neighborhood or exact address. Since the defendants could not determine the type of neighborhood (drug-ridden, orange-hatted or barred) in which the prospective jurors lived, their ability to make effective use of their peremptory strikes was severely eroded. "The principal value of the peremptory is that it helps produce
fair and impartial juries. J.E.B. v. Alabama, 114 S. Ct. 1419, 1431 (1994) (O'Connor, J., concurring).
For centuries, Anglo-American jurisprudence has recognized the importance of a person's residence to his sense of self and his place in the community. In order to determine whether a prospective juror can be fair, it is essential for the trial attorney to determine whether the area in which the juror lives is drug-ridden (Clifton Terrace), infamous as a result of a notorious homicide (Acker Street, N.E.), or has been the subject of extraordinary rehabilitation efforts (Queen's Stroll). In some areas of this city, the police are considered to be protectors and guardians of the public; in others, police officers are considered to be predators, and inspire such mistrust that citizens will avoid them like the plague. Lacking the information, counsel was unable to explore the biases and prejudices of the prospective jurors during the voir dire process. Had the information been available, counsel would have been in a position at least to suggest to the court a line of inquiry on issues which could be material to the case. See Aldridge v. United States, 283 U.S. 308 (1931); United States v. Tutino, 883 F.2d at 1133; United States v. Barnes, 604 F.2d at 137.
Knowing the quadrant where the prospective juror resides is of little value in determining whether to exercise a peremptory challenge. In the northeast quadrant alone, residential neighborhoods span the spectrum from the houses in protected and well-policed sections of Capitol Hill to student housing in the
areas of Catholic and Gallaudet Universities to public housing in
the area of Nannie Helen Burroughs Avenue. See United States v. Gibbons, 602 F.2d 1044, 1053 (2d Cir. 1979) (Oakes, J., dissenting), cert. denied, 444 U.S. 950 (1979) (knowing someone is from Manhattan insufficient to provide knowledge of community in which prospective juror lives). Experienced criminal defense attorneys maintain a professional interest in the events in various sections of the city. To deprive them of the information regarding the jurors' residences was to depreciate the value of the peremptory challenges allotted to the defense.
This was the first trial ever held in the District of Columbia in which an anonymous jury was empaneled. For the first time here, defendants in a criminal case did not know the names, residences, or places of employment of their fellow citizens who sat in judgment of them. Such an extreme and extraordinary measure which impairs the right to exercise peremptory challenges -- heretofore employed by other courts in a handful of cases in which a real threat of jury tampering existed -- was unnecessary in this case because there was no indication of jury corruption and sequestration alone would have sufficed to insulate the jury from the media. The trial judge could not have made a finding of necessity because there was no evidence to support such a finding. It is no wonder that the record is barren of any findings on this issue.
Given the charged atmosphere of this trial -- extremely tight security coupled with extensive media interest -- it blinks reality to assume that the jurors were not aware that the actual reason for their anonymity was to protect them from the defendants. Thus, the judge's attempt to hide his belief that the defendants posed a threat to the jurors' safety by stating that anonymity was a standard procedure only made matters worse. The presumption of innocence could not withstand such a heavy burden.
Affirming the use of an anonymous jury in this case would set a terribly dangerous precedent because anonymity simply was not necessary to protect the jurors from harm or improper influence. Moreover, the trial judge did not conduct a hearing on the issue, made no findings in support of his decision, and failed to take reasonable precautions to minimize the effect of the jurors' anonymity on their collective perception of the defendants, whose fate they were sworn to decide. Finally, the district court failed to balance the defendants' fundamental due process right to a fair trial with any perceived interest in empaneling an anonymous jury. In holding that a newspaper was entitled to the names and addresses of the veniremen and women in a high profile criminal trial, Circuit Judge Widener stated in words particularly applicable to this case:
We recognize the difficulties which may exist in highly publicized trials such as the case being tried here and the pressures upon jurors. But we think the risk of loss of confidence of the public in the judicial process is too great to permit a criminal defendant to be tried by a jury whose members may maintain anonymity. If the district court thinks that the attendant dangers of a highly publicized trial are too great, it may always sequester the jury; and change of venue is always possible as a method of obviating pressure or prejudice.
In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).
For each of these reasons, this court should reject resoundingly the use of an anonymous jury in this case and remand the case for a new trial before a public jury.
II.
THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANTS' MOTION FOR CHANGE OF VENUE WITHOUT A HEARING AND IN CONDUCTING AN UNFAIR JURY SELECTION PROCESS WHERE THE CASE INVOLVED INFLAMMATORY PRETRIAL PUBLICITY WHICH WAS INSTIGATED BY THE GOVERNMENT.
On April 15, 1989, with a shower of publicity, the United
States initiated the arrests of xxxxxxx xxxxxxx III and his
codefendants. The media was present at the booking of some
defendants, [A. III. 110 Exhibit C]
, and televised the arrest of
one defendant. (8/7/89 Tr. 378)
Three days after the arrests began, then U.S. Attorney Jay B. Stephens held a press conference on the front steps of the Courthouse. Mr. Stephens announced that "xxxxxxx's group distributed 20 to 50% of the cocaine coming in. It was a closely knit family organization with enforcers, runners, lieutenants and money counters." [A. III. 26] Less than a week later, the Washington Post ran a lengthy front page story describing Mr. xxxxxxx as a flashy drug lord who lured the youth of the city into drug dealing with all-expense-paid trips to the Superbowl and to championship prize fights, Mercedes-Benz automobiles, $5,000 a week salaries and Dom Perignon champagne at local nightclubs. According to the article, his enforcers, wearing black jumpsuits, shot rival drug dealers on behalf of the organization. The reporter stated that several law enforcement officials, speaking on condition of anonymity, were the sources of the allegations contained in the story. [A. III. 34]
Nightly coverage on local television show City Under Siege and the local news continued for weeks, and included a four-hour special on Nightline, "The Divided City," on April 27, 1989, during which John Thompson, Georgetown University's basketball coach, discussed this case and the cocaine overdose of Maryland basketball star Len Bias. Stories about a meeting between Coach Thompson and xxxxxxx xxxxxxx III permeated the press. [A. III. 87-88; "Videotapes"]
Two motions for change of venue, filed July 13, 1989, were
summarily denied that same date.
[A. III. 81]
Throughout July and August, the media continued to focus on the effects of cocaine trafficking on the citizens and economy of Washington. Hoya basketball star John Turner's basketball scholarship was withdrawn due to his association with xxxxxxx xxxxxxx III. [A. III. 136-138] His subsequent arrest on drug charges provided the occasion for a second round of stories connecting him to Mr. xxxxxxx. [A. III. 145-148] In a front page story, "Dying Young in DC," the Washington Times described the wholesale slaughter of juveniles in drug-related incidents. The dead youngsters included Donnell Winley, a sixteen-year-old alleged member of xxxxxxx's organization. [A. III. 150-157] The deaths of witnesses in drug cases, and death threats to witnesses, provided a recurrent theme. [A. III. 156-157, 173-175] Stories about lavish lifestyles of drug dealers in general, and xxxxxxx defendants in particular, pervaded the pretrial coverage. [A. III. 141-142, 160-162] Concomitantly, bombings by Colombia's cocaine cartels, which resulted in offers by the Bush administration to send troops to South America, were being given heavy coverage by the press. [A. III. 164-168, 185, 188-191, 194-195, 201-202, 217-220]
On August 25, 1989, the court announced, sua sponte, that the xxxxxxx jury would be sequestered and anonymous. (See Point I) The anonymous jury order created an issue of first impression in the District of Columbia. The Washington Times reported that:
One police official who requested anonymity said sequestering the jury is a precautionary measure taken by the judge in light of the drug-related violence in this city. This guy (Mr. xxxxxxx) might be responsible for several homicides . . . (Joint Motion, ex. dated 8/28/89)
[A. III. 248]
In the wake of the anonymity order, the government's
manipulation of the media escalated. On August 31, 1989, in a
Washington Times story titled "Gangland killings in D.C. emulate
Capone-era style", unnamed area investigators said "the most
notorious D.C. gang with Capone-like tendencies is the xxxxxxx
xxxxxxx-Tony Lewis organization that has been linked to as many as
30 homicides
and hundreds of thousands of dollars in drug
trafficking. The article went on to link the xxxxxxx defendants
to the notorious Crips gang in Los Angeles, the Colombian
cartels, and the death of 16-year-old Donnell Winley. Finally,
the story announced that the xxxxxxx defendants were an offshoot
of the 8th 'n H Crew, which broke up after ten members went to
trial for the slaying of Catherine Fuller (who was fatally
assaulted in 1984 after a metal pole was inserted in her anus).
[A. III. 260]
Eight days before jury selection began, the Washington Post began a three-part series which described the government's case in lurid detail. [A. III. 278-287, 301-305] On September 3, 1989, the first article, "Making a Link to the Colombian Source," featured a front page picture of bombed offices in Colombia. It went on to describe the meeting between "flashy" 22-year-old xxxxxxx xxxxxxx III and Melvin Butler, a member of the Crips gang, who established the connection between the Colombian drug cartel and the cocaine distributed by the xxxxxxx organization. On September 4, 1989, the Post featured the seizure in Missouri of 1,102 pounds of cocaine with "Cali" (Colombian cartel) markings and its connections to xxxxxxx xxxxxxx III and Melvin Butler. Again, interviews with unnamed officials, as well as affidavits of federal officers, were the sources of the story. Finally, on September 5, 1989, the newspaper described the street distribution operation in the District of Colombia, and repeated the information that DC police attributed 30 murders to the xxxxxxx organization. Jay Stephens was quoted: "It resembled the traditional organized crime, of La Cosa Nostra." [A. III. 303]
On September 6, 1989, the defense filed its Joint Motion for Reconsideration of Change of Venue, appending 98 cocaine-related news articles that had been published since the earlier motions were filed and denied in July. Nineteen of the stories related directly to the xxxxxxx case. Once again, the motion was denied without a hearing on September 9, 1989. [A. IV. 229]
Jury selection was conducted by the court with occasional
input of counsel. Prior to jury selection, prospective jurors
filled out questionnaires, at which time they were advised that
they would be anonymous. [A. I. 258-261]
The court's Order
regarding jury selection was issued September 5, 1989. [A. III.
126-129] On September 8, 1989 (the Friday before jury selection
was to begin and the day that the completed juror questionnaires
were to be released to the defense), the court summoned the
attorneys at 5:35 p.m. to announce that the court personally had
reviewed 101 of the completed questionnaires and had dictated
twenty suggested strikes for cause. (9/8/89 Tr. 1824-1825) The
defense objected to striking any prospective juror for cause
without having an opportunity to review and compare the
questionnaires and to consult with the defendants. The court
responded "All right. You win. . . . I tried to help you, but
if you don't appreciate it, you are on your own." (9/8/89 Tr.
1829). The issue was resolved after counsel suggested that the
twenty prospective jurors in question be placed on call subject
to counsel's review of the questionnaires.
On September 11, 1989, the court commenced a four-day voir
dire process in the secured courtroom which was assigned for the
duration of trial. During jury selection, and prior to the
sequestration of the anonymous jury, Mr. Stephens was quoted on
television as stating that this case represented the government's
attempt to send a message to the children of Washington, D.C.
(9/12/89 Tr. 2071) Despite the court's earlier assurance that
individual voir dire would occur in instances in which the
prospective jurors had heard about the case in the media or had
formed opinions about it (9/5/89 Tr. 1610), by the second day of
jury selection the court refused to allow individual voir dire
regarding media and drug issues.
See, e.g., 9/12/89 Tr. 2146
et seq. (court refused to ask questions regarding drug usage by
siblings and former boyfriend, and interrupted questions about
media to ask whether juror could put it aside); 9/12/89 Tr. 2188,
et seq. (where juror's nephew overdosed in area of Northeast,
D.C. where defendants allegedly distributed drugs, court
complimented juror on intelligence, facial expressions and dress,
said it assumed juror could put all those things aside, and
precluded further questioning); 9/12/89 Tr. 2214 (where juror's
cousin overdosed and drugs harmed close member of family, request
for individual voir dire denied); 9/13/89 Tr. 2370 (where juror
read about case and was not sure he could be fair, court denied
individual voir dire); 9/13/89 Tr. 2378 (where juror knew about
Crips gang, court denied voir dire regarding opinions based upon
what he read in newspapers); 9/13/89 Tr. 2381 (where juror knew
about Crips because he had seen it in a movie, court precluded
further individual voir dire, repeating that "this is not a
psychiatric examination").
On the second day of jury selection (September 12, 1989),
the court refused to strike a prospective juror who expressed
fear.
Thereafter, four prospective jurors in succession
advised the court that they could not be fair in view of the
media stories, security measures, reports of killings and number
of defendants on trial. (9/12/89 Tr. 2107-2116) The defense
then unsuccessfully renewed its motion for change of venue.
(9/12/89 Tr. 2133) Citing the Herculean efforts of the court,
and noting that the President of the United States, political
leaders, clergymen and the "great national media" had all taken
strong positions on drugs, the judge advised the panel that their
job was to put all of that information aside in order to decide
the case on the facts. (9/12/89 Tr. 2163- 2166) Over objection,
the court repeatedly told the panel that this would be an
extremely interesting case, and that they would be the
beneficiaries of attractive accommodations. (9/13/89 Tr. 2284)
The standard of review for denial of a change of venue is abuse of discretion. United States v. Chapin, 515 F.2d 1274, 1287 (D.C. Cir.), cert. denied, 423 U.S. 1015 (1975). However, "[t]he responsibility for passing on a claim for change of venue or delay in a trial because of prejudicial pretrial publicity calls for the exercise of the highest order of sound judicial discretion by the trial court." Ehrlichman v. Sirica, 419 U.S. 1310, 1312 (1974) (emphasis added).
B.The Trial Court's Denial of Defendants' Motions for Change of Venue From the District of Columbia Where the Publicity Was Sensational, Adverse and Voluminous Deprived Them of A Fair Trial Before An Impartial Jury
The Constitution guarantees every criminal defendant a fair trial before an impartial jury. U.S. Const. amend. V and VI; Singer v. United States, 380 U.S. 24, 36 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963), Jones v. Gasch, 404 F.2d 1231, 1234 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968).
A fair and impartial jury is a quintessential component of a fair trial. In the final analysis, the liberty of a defendant is entrusted exclusively to the jury. Therefore, each juror must be "indifferent as he stands unsworne." Lord Coke, Co Litt 155b, cited in Irvin v. Dowd, 366 U.S. 717, 722 (1961); Chandler v. Florida, 449 U.S. 560 (1981).
A trial court's ability to insure these incontrovertible rights to a criminal defendant is particularly challenged where the media has made inflammatory pretrial presentations in the court of public opinion. "Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. 333, 362 (1966).
The Federal Rules provide a mechanism for transfer of criminal cases to another judicial district
if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district. Fed. R. Crim. P. 21(a).
In order to make the determination that prejudicial publicity may prevent a fair trial, the trial court need only satisfy itself that there exists a reasonable likelihood of unfairness. "A showing of actual prejudice shall not be required." ABA standards on change of venue, Section 3.2(c).
In deciding whether the trial court should have granted a motion for a change of venue in this case, this court must examine the totality of circumstances surrounding the trial to determine whether it was fundamentally fair. Murphy v. Florida, 421 U.S. 794, 799 (1975). That analysis must include consideration of the pervasive negative publicity concerning the parties and issues in this case, the trial court's refusal to hold an evidentiary hearing on the motion for change of venue and the conduct and results of the jury selection process itself. The two standards which guide the totality of circumstances analysis are the "presumed prejudice" and "actual prejudice" standards. These standards are derived from a defendant's due process and Sixth Amendment rights to be tried by an impartial jury. Irvin v. Dowd, 366 U.S. at 722. If the trial court is unable to seat an impartial jury because of prejudicial pretrial publicity, due process requires the court to grant a motion for a change of venue. See Groppi v. Wisconsin, 400 U.S. 505 (1971); Rideau v. Louisiana, 373 U.S. at 727.
2.Jury prejudice was presumptive where the pretrial publicity concerning the case was continuous from the time of the arrests to the time of trial, was wildly inaccurate and wholly prejudicial and where the government deliberately inflamed the media coverage of the case.
Jury prejudice is presumed from pretrial publicity when such publicity is sufficiently prejudicial and inflammatory and has saturated the community where the trial was held. See Coleman v. Kemp, 778 F.2d 1487, 1490 (llth Cir. 1985) (inflammatory pretrial publicity so pervasive as to create presumed prejudice in trial of defendant charged with murdering six members of family in small rural community), cert. denied, 476 U.S. 1164 (1986).
Although the presumed prejudice principle is rarely
applicable, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554
(1976), it should be applied to the extreme situation in this
case for several reasons. First, the pretrial publicity was
sufficient to prejudice the most detached citizen to be found in
the city. The media attributed thirty murders to the
organization, whose leaders were depicted as "drug lords" who
lived hard, fast and high on the hog. According to the press,
the street-level dealers were making $5,000 a week. Thus, the
publicity was extremely negative and highly inflammatory.
Secondly, the government's consistent violations of Local Rule
308(b)
poisoned the community during the five months which
elapsed between the arrests and trial. The United States
Attorney's well-attended press conference was conducted on the
front steps of the Courthouse, where he faced cameras and
Constitution Avenue as he violated the document for which the
street was named.
Immediately prior to jury selection, he
compared the defendants to members of "La Cosa Nostra" and
announced that the trial was being staged as a morality play for
children. Without a shred of evidence, the media linked the
defendants to the truly ghastly murder of Catherine Fuller, the
manner of which had not faded from the minds of the citizenry.
The nature of the charges and arrests in this case undoubtedly would have sparked a degree of media attention.
The government, however, deliberately fanned the media flame, singeing the mind and memory of each prospective juror in the city. Only "local and federal authorities" provided the information which appeared in the front page newspaper stories at the time of the arrests. The government had become "a conscious participant in trial by newspaper." Stroble v. California, 343 U.S. 181, 201 (1952) (Frankfurter, J., dissenting). After the four-hour Nightline broadcast, the media admitted in an article that the "coverage has begun to have an impact all its own." (Washington Post, 5/7/89, Motion for Change of Venue, Exhibit A).
Over fifty years ago, the Supreme Court stated that "legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper." Bridges v. California, 314 U.S. 252, 271, (1941), cited in Sheppard v. Maxwell, 384 U.S. at 350. Those well-known standards, now enhanced by television, did not deter the United States Attorney or the law enforcement officials.
Moreover, the court's unilateral decision to empanel the city's first anonymous jury exacerbated the problems created by the virulent publicity in this case and insured that jurors would believe that they were in need of protection. The court's conclusion that anonymity was necessary irrevocably tipped the scales against the defendants, because given the extensive publicity surrounding the case, any reasonable juror could only conclude that the reason for anonymity was for his or her own protection from the notorious and dangerous defendants. (See Point I)
Thus, the publicity surrounding this trial was sufficiently inflammatory to be presumptively prejudicial. See Isaacs v. Kemp, 778 F.2d 1482, 1484 (llth Cir. 1985), cert. denied, 476 U.S. 1164 (1986) (prejudice presumed where statements of accomplice describing the murders were known in the community and one juror had sat through three trials of others charged in the crime); United States v. Williams, 523 F.2d 1203, 1208-09 (5th Cir. 1975) (intense pretrial publicity and prejudicial closing argument by prosecutor, taken together, deprived defendant of fair trial).
The nature and extent of the publicity differed from the press which has attended the high-profile political trials in this district. See, e.g., United States v. North, 910 F.2d 843 (D.C. Cir.), cert. denied, 111 S.Ct. 2235 (1991); United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 656 (1992); United States v. Barry, 938 F.2d 1327 (D.C. Cir. 1991); United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc), cert. denied, 431 U.S. 933 (1977). Although the political trials generated substantial publicity, no Watergate or Iran-Contra defendant was alleged to have murdered citizens, amassed millions of dollars as a result of illicit drug transactions, or participated in an organization akin to the Mafia. Nor was the pre-trial publicity generated in the notorious murder case, United States v. Sampol, 636 F.2d 621, 680-681 (D.C. Cir. 1980), analogous to this case. Although the publicity in Sampol was substantial, it occurred during three distinct periods -- at the time of the murders in 1976, the indictment in 1978, and a week prior to the trial in 1979. The trial of the defendants in this case, in contrast, began within five months of the arrests. The pre-trial publicity was sensational, adverse and unabated throughout the entire period.
If jurors are exposed to highly prejudicial information sufficient to result in an unfair trial, the conviction may be reversed in the exercise of the Court's supervisory power. Murphy v. Florida, 421 U.S. at 797, citing Marshall v. United States, 360 U.S. 310 (1959) (case reversed although jurors who saw prejudicial publicity said they could be fair); Coppedge v. United States, 272 F.2d 504 (D.C. Cir. 1959), cert. denied, 368 U.S. 855 (1961).
C.The Trial Court's Manner of Conducting the Jury Selection Process Eliminated the Possibility of A Fair Appraisal of The Actual Prejudice of the Entire Jury Panel
During the voir dire examination, the trial court has a
final independent opportunity to consider the effects of
prejudicial pretrial publicity and the possibility of empaneling
a fair and impartial jury. See United States v. Chapin, 515 F.2d
at 1285-86.
In this case, the trial court, well aware of the pretrial publicity and community prejudice, reacted by empanelling an anonymous jury without consultation with the parties. In an effort to streamline the voir dire process, he administered a juror questionnaire to the prospective jurors. [A. IV. 1-19] The fallacy in the trial court's plan emerged during the jury selection process, when it became apparent that many of the prospective jurors had heard about the case and formed opinions about it. In response, the court made lengthy statements about the requirement that each prospective juror put aside any negative opinions about publicity, drugs, the Crips gang, etc., and then asked complex questions that had the effect of preventing jurors from approaching the bench. When a few jurors did approach the bench, the judge refused to ask follow-up questions or to allow individual voir dire of those jurors who had indicated knowledge of the case. The result was a jury selected in accordance with the trial court's stated premise:
We tried the Watergate defendants, the Oliver North case, Albert Fall, way back in the Teapot Dome scandals, in the Harding administration or some of the other more highly publicized trials in this jurisdiction, as well as in others. The final answer to that can only be determined after the voir dire process is completed that the Court is satisfied that we can obtain a fair and impartial jury, which the Court believes will still be possible. (9/12/89 Tr. 2066-67)
Furthermore, the jury selection procedures employed by the
trial court relating to matters of pre-trial publicity and juror
opinions about the issues involved in the case were structured to
avoid revelations of possible prejudice on the part of the
prospective jurors.
See Jordan v. Lippman, 763 F.2d 1265, 1281
n.19 (llth Cir. 1985) ("general inquiries as to impartiality,
when directed to the group as a whole, are unlikely to elicit
admissions of partiality."); United States v. Davis, 583 F.2d
190, 196 (5th Cir. 1978) (where nature of pretrial publicity
raises significant possibility of prejudice, due process requires
more than general questions to venire as group regarding ability
to render impartial verdict).
The trial court's general questioning of the jury panel as
to exposure to publicity and its inadequate follow-up questions
were insufficient to determine whether actual prejudice existed,
and as in Davis, 583 F.2d at 196-198, requires reversal of the
defendants' convictions. See also Jordan v. Lippman, 763 F.2d at
1274-1281; United States v. Hawkins, 658 F.2d 279, 282-285 (5th
Cir. 1981); United States v. Dellinger, 472 F.2d 340, 374 (7th
Cir.), cert. denied, 410 U.S. 1970 (1973); Silverthorne v. United
States, 400 F.2d 627, 635-640 (9th Cir. 1968), cert. denied, 400
U.S. 1022 (1971). Although the court did ask some of the
prospective jurors a few questions regarding their exposure to
pretrial publicity, the substance and scope of the examination
was highly restricted.
Moreover, the court improperly limited
the jurors' responses to questions concerning their knowledge of
the case. In short, the trial court failed to conduct a
searching and sensitive voir dire on the issue of pretrial
publicity which was necessary under the extraordinary
circumstances of this case.
Admonitions to the jury to unring the bell such as those
pronounced by the court during voir dire, are useless.
". . .
[I]t is like the Mark Twain story of the little boy who was told
to stand in a corner and not to think of a white elephant."
United States v. Leviton, 193 F.2d 848, 868 (2d Cir. 1951)
(Frank, J., dissenting), cert. denied, 343 U.S. 946 (1952).
D.The Limitation of Voir Dire Unfairly Restricted the Defendants' Exercise of Peremptory Challenges
"Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently." J.E.B. v. Alabama, 114 S. Ct. at 1429. Peremptory challenges have a constitutional foundation, in that they are an important "means to the constitutional end of an impartial jury and a fair trial." Georgia v. McCollum, 112 S.Ct. 2348 (1992). The importance of peremptory challenges was recognized in Pointer v. United States, 151 U.S. 396 (1894), reiterated in Stilson v. United States, 250 U.S. 583, 586 (1919) ("one of the most important rights secured to the accused") and given heightened vitality in Swain v. Alabama, 380 U.S. 202 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S. 79 (1986), when the Court acknowledged that "the denial or the impairment of [this] right is reversible error without a showing of prejudice." 380 U.S. at 219.
The trial court has broad discretion to determine the most effective method of conducting voir dire examination as long as the purpose of peremptory challenges is preserved. Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion) (adequate voir dire necessary for judge to discover bias in prospective jurors and for counsel to exercise peremptory challenges intelligently). This discretion, of course, is subject to the essential demands of fairness. United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983); United States v. Brooks, 670 F.2d 148, 152 (llth Cir.), cert. denied, 457 U.S. 1124 (1982). The standard for determining whether the trial court's exercise of its discretion meets the essential demands of fairness is whether the procedure used for testing juror impartiality created "a reasonable assurance that prejudice would be discovered if present." United States v. Holman, 680 F.2d 1340, 1344 (llth Cir. 1982). Where the voir dire procedure derogates a defendant's right to exercise his challenges, the case should be reversed, irrespective of prejudice. United States v. Ricks, 776 F.2d 455 (4th Cir. 1985) (drug conspiracy convictions reversed).
In this instance, by consistently denying the defense the opportunity to obtain basic and highly relevant information, the court deprived the defendants of the information necessary to exercise their peremptory challenges in an enlightened fashion.
The trial court committed numerous errors in its rulings relating to the extensive publicity surrounding this case and the jury selection process itself. Some of the errors, such as denying the motion for a change of venue and refusing to permit individual voir dire of jurors who were exposed to pretrial publicity, are sufficient, by themselves, to warrant a new trial. Moreover, the cumulative effect of all of the errors committed by the court compels reversal of the defendants' convictions and necessitates a new trial. See United States v. Freeman, 514 F.2d 1314, 1318 (D.C. 1975) (reviewing court must weigh "cumulative impact" of numerous trial errors), vacated, 598 F.2d 306 (D.C. Cir. 1979). Ordering a new trial now that the massive publicity has subsided, with a public jury, and full and unrestricted voir dire would entitle the defendants to receive what is guaranteed to them by law -- a fair trial by an impartial jury.
III.
THE CUMULATIVE EFFECT OF THE TRIAL JUDGE'S CRITICAL COMMENTS, HOSTILE MANNER, INTIMIDATING TACTICS, UNWARRANTED CONTEMPT FINDINGS, AND UNEQUAL TREATMENT OF THE DEFENSE AND PROSECUTION ADVERSELY INFLUENCED THE JURY AND DEPRIVED DEFENDANTS OF THEIR CONSTITUTIONALLY PROTECTED RIGHT TO A FAIR AND IMPARTIAL TRIAL.
The defendants in this case were denied their fundamental right under the Due Process Clause to a trial before an unbiased judge. This venerable right is recognized and developed in a long line of cases that hold that due process will not tolerate actual bias or even the appearance of bias. "A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness . . . . '[J]ustice must satisfy the appearance of justice.'" In re Murchinson, 349 U.S. 133, 136 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)).
Thus, a trial judge must maintain a disinterested and neutral position and avoid creating even the appearance of partiality. United States v. Logan, 998 F.2d 1025, 1028-29 (D.C. Cir. 1993); United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir.), cert. denied, 439 U.S. 835 (1989); United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969); Billeci v. United States, 184 F.2d 394, 403 (D.C. Cir. 1950). A judge's demeanor, conduct, and behavior during a trial must never indicate to the jury that the judge believes the accused to be guilty. In this regard, the appearance of bias alone can be grounds for reversal even if the trial judge is, in fact, impartial. Bollenbach v. United States, 326 U.S. 607, 612 (1946). In the instant case, the trial judge was actually biased against the defense and created the appearance of partiality by his unequal treatment in the jury's presence of the prosecution and defense -- his one-sided rulings, his explicit verbal threats and attacks on defense counsel, and his more subtle voice intonations and facial expressions combined to impermissibly influence the jury.
Over a century and a half ago, the Supreme Court recognized the danger of undue judicial influence on jury verdicts. See, e.g., Carver v. Jackson, 29 U.S. (4 Pet.) 1, 4 (1830). Before the turn of the century, the Court recognized that the manner in which a judge addresses a jury can have an undue influence on its decision-making process. Starr v. United States, 153 U.S. 614, 625-26 (1894). Thus, although appellate courts are understandably reluctant to reverse a conviction on the basis of a few isolated, arguably prejudicial actions by a trial judge, particularly in a long and complex trial like this one, both the Supreme Court and this Court have reversed convictions where the trial judge's conduct impermissibly influenced the jury and deprived the accused of a fair trial. Quercia v. United States, 289 U.S. 466, 469 (1933) (conviction reversed where trial judge indicated that he disbelieved defendant's testimony); Starr v. United States, 153 U.S. at 625-26 (conviction reversed where trial judge expressed indignation at crime with which accused was charged and urged jury to vindicate and uphold the law); United States v. Wyatt, 442 F.2d 858, 861 (D.C. Cir. 1971) (conviction reversed where trial judge's extensive examination of defendant and alibi witnesses may have influenced jury); Salley v. United States, 353 F.2d 897, 899 (D.C. Cir. 1965) (conviction reversed where trial judge made improper comments to defense counsel both in and out of jury's presence); Young v. United States, 346 F.2d 793, 795-96 (D.C. Cir. 1965) (conviction reversed where trial judge continuously interrupted defense counsel during cross-examination of essential government witnesses and severely criticized defense counsel at bench conferences which jury may have overheard); Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964) (conviction reversed where trial judge extensively examined witnesses and made prejudicial comments); Blunt v. United States, 244 F.2d 355, 365-66 (D.C. Cir. 1957) (conviction reversed where trial judge extensively examined defense witnesses and made argumentative comments); Peckham v. United States, 210 F.2d 693, 701-03 (D.C. Cir. 1953) (conviction reversed where trial judge's comments and participation in witness examination demonstrated lack of impartiality); Butler v. United States, 188 F.2d 24, 25-27 (D.C. Cir. 1951) (conviction reversed where trial judge refused to permit defense counsel to state basis of objection to court's gesticulations and facial expressions during jury charge); Billeci v. United States, 184 F.2d at 401-02 (conviction reversed where intonations and gestures of trial judge during jury charge were prejudicial).
Like each of the appellants in the cited cases, these defendants must now look to an appellate court to vindicate their right to a fair trial before an unbiased judge. Because the trial judge in this case lacked impartiality and sent a clear, albeit perhaps unintended, message to the jury that he believed the defendants were guilty, their convictions must also be reversed.
The determination of whether the trial judge's behavior was so prejudicial that it deprived the defendants of a fair trial is essentially a legal question subject to de novo review. United States v. Logan, 998 F.2d at 1029.
B.The Trial Judge's Behavior Prejudiced the Defense
This was a long and difficult trial. The pretrial hearings in the case took some eleven days and the trial lasted almost three months. The transcript of the proceedings exceeds 20,000 pages. The trial atmosphere was tense as the courtroom was heavily guarded and often filled with spectators and press personnel. The jury was anonymous and sequestered throughout the trial. Given that backdrop, in order to guarantee the defendants a fair trial it was essential that the trial judge actually be and appear to be impartial, dispassionate, and non-argumentative, thereby creating "that indefinable but knowable ambiance of evenhanded judicial disinterest and respect for the dignity of individuals [that is a] component[ ] of a fair trial." Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.), cert. denied, 115 S. Ct. 215 (1994).
Instead, the district judge exhibited a deprecatory and antagonistic attitude toward the defense from the very beginning of the trial. This attitude was displayed in the court's critical remarks, hostile actions, and threats to impose sanctions upon defense counsel, both in the presence and absence of the jury. By his conduct -- both verbal and nonverbal -- the judge unmistakably conveyed to the jury that he favored the prosecution and that he believed in the defendants' guilt. Instead of receiving a fair jury trial, the defendants in this case were given a trial before a jury that was adversely influenced by a biased judge.
1. Unequal Treatment of Defense and Prosecution
The trial judge's partiality to the prosecution and his often antagonistic attitude toward the defense is evident in the record from the outset of the proceedings. For example, during a colloquy with one defense counsel at a pretrial hearing, the trial judge commented that "[the jury] will like me better than you, you wait and see." (9/5/89 Tr. 1512) This half-prediction, half-warning is evidence of the court's intention to pit itself against the defense in the eyes of the jury. Such a mismatch obviously has disastrous consequences for the defense because even the slightest hint of partiality by the trial judge has a significant impact on the jury. See Billeci v. United States, 184 F.2d at 402.
The judge's influence over the jury was enhanced by his inappropriate comments, such as referring to the jurors as his "dear friends" and stating "[b]less each and every one of you." (9/18/89 Tr. 40; 9/21/89 Tr. 12) Thus, by currying favor with the jury while demonstrating his partiality to the prosecution, the court effectively biased the process against the defense.
On numerous occasions throughout the trial, the court failed to treat both sides equally and fairly, to the detriment of the defense. For example, in its "Trial Order," the court mandated that evidentiary objections not be argued in the presence of the jury but that the basis for objections be stated in open court followed by a request to approach the bench to argue the objection in more detail if "absolutely essential." [A. I. 263] Although