UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-7744
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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
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(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.
10