United States v. Bass

                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                       _______________________

                             No. 92-7744
                       _______________________


                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                               versus

                        GEORGE MICHAEL BASS,

                                                  Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
_________________________________________________________________
                        (December 14, 1993)


Before GOLDBERG, JONES, and DUHÉ, Circuit Judges

EDITH H. JONES, Circuit Judge:

          In the very early morning hours of February 23, 1992,

Cameron Parish deputies answered a disturbance call at a motel in

Cameron, Louisiana.   While at the motel, the deputies ran a check

on a 1991 Ford Crown Victoria with Mississippi license plates and

learned that the car belonged to Mrs. Modene Hudson, an "involun-

tarily missing person."   The deputies stopped the car and arrested

the driver -- defendant/appellant George Michael Bass -- when he

failed to produce a driver's license. At the sheriff's department,

Bass signed a waiver of rights form and admitted to deputies that

he had stolen Mrs. Hudson's car.
            Bass was subsequently indicted for interstate transpor-

tation of a stolen vehicle in violation of 18 U.S.C. §2312 (Supp.

IV 1992) and for interstate transportation of stolen firearms in

violation of 18 U.S.C. §§922(i) (1988) and 924(a)(2) (Supp. IV

1992).   The morning before trial, the district court denied the

defendant's motion to suppress his confession.                 The government put

on its entire case by the end of the same day.                 The next morning,

the district court learned that two of the jurors had seen a

newspaper account of the trial.          After a separate voir dire of the

two jurors in chambers, the court denied defendant's motion for a

mistrial,   but     ultimately    excused    one   of    the    two   jurors   from

deliberations.

            The jury found Bass guilty on both counts, and he appeals

his conviction on two grounds.         First, Bass complains of a Miranda

violation by the deputies.         Second, Bass urges that the district

court abused its discretion in refusing to grant a mistrial based

on the highly prejudicial nature of the newspaper article read by

the two jurors.      Review of the defendant's arguments leads us to

affirm his conviction.

                                        I.

            After    hearing     the   testimony    of    the    Cameron   Parish

deputies and of the defendant, the district court denied the motion

to suppress Bass's confession.           The court concluded that it was

satisfied that Bass's confession "was voluntarily made with an

understanding by the defendant of his Miranda rights."                         Bass

disagrees, contending that he was never properly informed of his


                                        2
Miranda rights and the deputies continued their questioning despite

his       invocation   of   the   right       to   counsel.    The   defendant's

contentions, however, are without merit.

               Deputies Constance and Nunez testified that Bass was read

his Miranda rights at the time of arrest.                Constance, Nunez, and

deputy Sellers also testified that Bass was read his Miranda rights

a second time at the sheriff's department and was asked to sign a

waiver of rights form.        According to the deputies, Bass refused to

sign the waiver of rights form because of some confusion regarding

his right to counsel as explained on the form.                Specifically, Bass

was concerned about his ability to obtain counsel at any time.1

However, once this confusion was cleared up and Bass was read his

rights for a third time, he signed the waiver of rights form and

confessed to stealing Mrs. Hudson's car.2              While this statement was

      1
          The source of the confusion was the waiver of rights form
and its attempt to summarize -- albeit inartfully -- a defendant's
rights upon arrest. The form provided in relevant part:

               Before we ask you any questions, you must understand your
               rights. You have the right to remain silent. Anything
               you say can be used against you in court. You have the
               right to talk to a lawyer for advice before we ask you
               any questions, and to have him with you during
          questioning. You have this right to the advice and
          presence of a lawyer even if you cannot afford to hire
               one. We have no way of giving you a lawyer, but one will
               be appointed for you, if you wish, if and when you go to
               court. If you wish to answer questions now without a
               lawyer present, you have the right to stop answering
               questions at any time. You also have the right to stop
               answering at any time until you talk to a lawyer.

(emphasis added).
      2
          The deputies testified that -- in response to his concern
over the waiver of rights form -- Bass had been told he could
request counsel at any time.

                                          3
being written out by deputy Nunez, Bass invoked his right to

counsel.

             Bass testified to a very different series of events at

the sheriff's department.      Bass maintains that when he looked at

the waiver of rights form and did not fully understand his right to

counsel as described in the form, he requested the presence of an

attorney.3     Notwithstanding this request, the deputies allegedly

persisted in questioning him and eventually obtained his signature

on a waiver of rights form.

             The district court resolved these conflicting versions in

favor of the deputies. While recognizing that the waiver of rights

form could cause some confusion, the court concluded that Bass was

"provided an adequate explanation of his rights and was explicitly

advised at least three times that he did not have to answer ques-

tions without an attorney present."

             We must give credence to the credibility choices and

findings of fact of the district court unless they are clearly

erroneous.     See U.S. v. Restrepo, 994 F.2d 173, 183 (5th Cir.

1993).     However, the ultimate issue of voluntariness is a legal

question, subject to de novo review.     See id.   Bass focuses on the

former issue and urges us here to make credibility determinations

opposite to those of the district court -- namely to credit his

testimony at the suppression hearing.      Because we cannot say that

the district court's credibility choices and fact findings are


    3
             Bass did testify that his Miranda rights were read to him
on arrest.

                                   4
clearly erroneous, we must decline the defendant's invitation to

credit his testimony.             II.

          On September 11, 1992 -- the second and final day of

trial -- an article appeared in the morning edition of the local

newspaper ostensibly discussing the defendant's federal trial.

Unfortunately, the piece disclosed that Bass had been charged with

capital murder in the death of Mrs. Hudson and described some of

the circumstances   surrounding    her     brutal     death.4   This   brief

article noted that Bass, having allegedly strangled Mrs. Hudson,

stole her 1991 Ford Crown Victoria and drove it to Louisiana.             The

alleged theft and transport of the car to Louisiana formed part of

the basis for his federal prosecution.

          Once informed of the newspaper article, the district

court examined separately in chambers each of the jurors who

indicated that they had seen it.         Counsel for both parties were

present during and participated in the voir dire of the two jurors,

Carter and Seale.

          Juror Carter admitted she did not know of the pending

capital murder charge against Bass before reading the article.

Notwithstanding   this,   the   juror    --   under    examination   by   the

district court and counsel for the government -- maintained that

the article would not affect her ability to make a decision based

solely on the evidence at trial.        After instructing her to refrain


     4
          The newspaper article failed to explicitly mention that
Bass was charged with capital murder in state court.      Bass was
subsequently tried and convicted on the capital murder charge, and
he is presently in prison.

                                   5
from mentioning the article to the other jurors, the district court

called in juror Seale.

           Juror    Seale   was   not     quite    as   unequivocal    in     her

responses. Specifically, when counsel for the government asked the

juror if she understood that her decision was to be based on

evidence produced at trial, Seale responded:             "Yes, I understand

that.   I just wish I hadn't read it, you know, because --".                  The

court again instructed the juror not to discuss the article with

any other juror.

           In his discussion with counsel in chambers, the district

court noted that he was "favorably impressed with what [he] ...

perceived as an objectivity on the part of both of these ladies and

what appeared to me to be candor and frankness."              Thus, based on

his examination of the jurors, the court denied the defendant's

motion for a mistrial.       However, in an "abundance of caution,"

motivated by the somewhat equivocal response of juror Seale, the

district court decided to name her an alternate and excuse her

prior to deliberations.     Also, as part of his general instructions

to the jury, the district court instructed the jury that they "must

consider only the evidence presented during the trial."

           The determination of whether publicity during the trial

is so prejudicial as to require a mistrial is within the sound

discretion of the district court.          See Marshall v. United States,

360 U.S. 310, 312 (1959) (per curiam); United States v. Goodman,

605 F.2d 870, 882 (5th Cir. 1979).        An abuse of discretion standard

is   especially    appropriate    where   the     district   court    finds   it


                                     6
necessary to voir dire the jurors as a result of the publicity.5

The voir dire of jurors to gauge the nature and scope of prejudice,

if any, from mid-trial publicity necessarily involves credibility

determinations based in part on juror demeanor.                See Patton v.

Yount, 467 U.S. 1025, 1038 n.14 (1984).            The abuse of discretion

standard reflects the fact that the district court is in the best

position to make such determinations.

           In urging that the district court abused his discretion

in   denying    the   motion   for   mistrial,    Bass   contends   that     the

information contained in the newspaper article was presumptively

prejudicial and that no juror could have put the information out of

mind and reached an impartial verdict.           We disagree.

           This court has previously addressed the problem of mid-

trial publicity breaches in United States v. Williams, 568 F.2d 464

(5th Cir. 1978).      In Williams, a television newscast reported that

the defendants had been convicted in a previous trial on the same

charges,   but    that   a   new   trial   had   been    ordered   because    of

"erroneous testimony."         Id. at 470.       Five jurors knew of the

broadcast and two of the five had actually seen all or part of it.

See id.        Compared to the facts before the Supreme Court in

Marshall, where newspaper articles indicated that the defendant had

been convicted of other crimes and reached at least seven of the

jurors, see Marshall, 360 U.S. at 310 - 11, the Williams panel



      5
          The formula for determining if a voir dire is required
because of mid-trial publicity is set out in United States v.
Herring, 568 F.2d 1099, 1104-05 (5th Cir. 1978).

                                       7
concluded that the mid-trial publicity there was "perhaps even more

damaging" than in Marshall.          See Williams, 568 F.2d at 470.

          The   court    in     Williams     focused    on    the   "degree         and

pervasiveness   of    the      prejudicial     influence."             Id.      More

specifically,   the    court    emphasized     the     extent     to    which       the

prejudicial information was probative of guilt.              See id.      The court

noted that it was "hardpressed to think of anything more damning to

an accused than information that a jury had previously convicted

him for the crime charged."            Id. at 471.           Thus, because the

prejudicial   information      was    more   probative       of   guilt      than   in

Marshall, the court -- following Marshall -- reversed and remanded

for a new trial.6     See id.

          Notwithstanding the potential prejudicial impact of the

newspaper article on the two jurors in this case, however, we do

not believe that Marshall and Williams mandate a reversal of Bass's

conviction.     First, in Marshall and           Williams the prejudicial

information had to do with the defendants' convictions of other

crimes, whereas here, the article stated that Bass was charged with

-- not convicted of -- capital murder.           In short, the information




     6
      The Supreme Court in Marshall granted a new trial "[i]n the
exercise of our supervisory power to formulate and apply proper
standards for enforcement of the criminal law in the federal
courts." Marshall, 360 U.S. at 313. The use of supervisory power
in this context is meant to provide more protection against
prejudice than the constitutional standard. See Williams, 568 F.2d
at 469.

                                       8
contained in the article is significantly less probative of guilt

than in the two leading cases.7

          Further, the prejudicial influence here -- if any -- is

much less pervasive than in Marshall and Williams where the adverse

publicity reached a large portion of the jury.              Only two out of

twelve jurors here had read the article, and since juror Seale was

excused prior to deliberations, only juror Carter was potentially

prejudiced.

          Finally,     it   may   also     be   argued   that   some   of   the

information in the article read by jurors Seale and Carter --

namely that Mrs. Hudson had been killed -- had already been

intimated during the course of trial.           At least three times during

this brief, two-day trial, references were made to the owner of the

stolen car as "involuntarily missing."            But most important, the

information conveyed by the article could not have been more

prejudicial on the counts for which he was standing trial than

Bass's confession of theft.

          Recognizing that mid-trial publicity cases each turn on

their "special" facts, see Marshall, 360 U.S. at 312, we cannot say

that under these circumstances the district court abused his

discretion in allowing the jurors to continue to deliberate,

especially    given   his   careful,     face-to-face    assessment    of   the

jurors' demeanor and credibility.          Given this factual setting, the

district court's repeated admonition to disregard everything not

    7
     Arguably the article is not probative of guilt at all. At a
minimum, the article is not directly probative of guilt as to the
federal offenses for which he was being prosecuted.

                                       9
heard in court was sufficient.   In short, the district judge acted

well within his discretion.

                                 III.

          For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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