United States v. Beckner

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 94-30587
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD L. BECKNER,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court
For the Middle District of Louisiana
__________________________________________________

November 20, 1995

Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA, Circuit
Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Donald L. Beckner appeals his conviction for four

counts of wire fraud, in violation of 18 U.S.C. § 1343, and one

count of perjury, in violation of 18 U.S.C. § 1623. We reverse and

remand.

I

Beckner was a prominent Baton Rouge attorney and a former

United States Attorney for the Middle District of Louisiana. Sam

Recile, a New Orleans real estate developer, retained Beckner to

defend an injunctive action brought against Recile by the

Securities and Exchange Commission. The SEC alleged that Recile
had engaged in securities fraud by issuing fraudulent mortgage

notes in order to raise capital for the "Place Vendome" shopping

mall project. In violation of a preliminary injunction, Recile

continued to issue these mortgage notes during the pendency of the

SEC suit. Recile was subsequently indicted by a federal grand

jury. In connection with the grand jury proceedings and in

connection with discovery in the SEC suit, time sheets concerning

Beckner's representation of Recile were subpoenaed. Beckner

testified to the grand jury that he had produced all subpoenaed

time sheets. An associate in Beckner's law firm, however, found

several of Beckner's time sheets relating to Recile's mortgage

notes in an office trash can, and turned them over to the FBI.

Another of Beckner's associates informed authorities that Beckner

had knowingly aided and abetted Recile's fraudulent practices.

Beckner was indicted for wire fraud, obstruction of justice, and

perjury. His first trial ended in a hung jury, and a mistrial was

declared. In a second trial, a jury found Beckner guilty of four

counts of wire fraud and one count of perjury. The jury found

Beckner not guilty of the obstruction of justice charge. The

district court sentenced Beckner to thirty-seven months in federal

prison.

II

A

Beckner argues that the district court erred by denying his

motion for extended voir dire examination during the jury selection

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process. Both Beckner and Recile were the subject of extensive

media coverage regarding Place Vendome. Reports of Beckner's first

trial were featured prominently in local newspapers and on local

television. At Beckner's second trial, both Beckner and the

Government moved the district court to conduct individualized voir

dire of prospective jurors concerning pretrial publicity. The

district court denied both motions, and instead questioned

prospective jurors about pretrial publicity as a group.

We review a district court's determination of the scope and

method of jury voir dire for abuse of discretion. FED. R. CRIM. P.

24(a); United States v. Rodriguez, 993 F.2d 1170, 1176 (5th Cir.

1993). The district court's discretion includes the decision

whether jurors should be questioned collectively or individually.

United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). We

will find an abuse of discretion when there is insufficient

questioning to allow defense counsel to exercise a reasonably

knowledgeable challenge to unqualified jurors. Rodriguez, 993 F.2d

at 1176.

A defendant's right to an impartial jury includes the right to

an adequate voir dire to identify unqualified jurors. Morgan v.

Illinois, 504 U.S. 719, 729-30, 112 S. Ct. 2222, 2230, 119 L. Ed.

2d 492, 503 (1992). In United States v. Davis, 583 F.2d 190 (5th

Cir. 1978), we examined the elements of an adequate voir dire when

the jury venire has been exposed to potentially prejudicial

pretrial publicity. Because jurors exposed to pretrial publicity

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are in a poor position to determine their own impartiality, we held

that district courts must make independent determinations of the

impartiality of each juror. Id. at 198. Though we refused to

establish an inflexible rule, we described an acceptable procedure

for district courts to follow when making such a determination:

the district court should ask jurors what information they have

received, ask responding jurors about the prejudicial effect of

such information, and then independently determine whether such

information has tainted jurors' impartiality. Id. at 197.1 While

examination of each juror out of the presence of the other

prospective jurors is sometimes preferable, it is not necessarily

required. Id. at 196-97.

In United States v. Gerald, 624 F.2d 1291 (5th Cir. 1980),

cert. denied, 450 U.S. 920, 101 S. Ct. 1369, 67 L. Ed. 2d 348

(1981), we refused to reverse a conviction on Davis grounds, where

the record contained no specific evidence of pretrial publicity.

1
We note that in Mu'min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899,
114 L. Ed. 2d 493 (1991), the Supreme Court examined the adequacy of a state
trial court voir dire concerning pretrial publicity. The Supreme Court held that
the trial court's denial of the defendant's motion to question jurors about the
contents of news reports did not violate the defendant's Sixth Amendment right
to an impartial jury. Id. at 1908. In reaching its holding, the Court noted
that it enjoys greater latitude in setting standards for voir dire in federal
courts according to its supervisory powers than in setting standards for voir
dire in state courts according to the Fourteenth Amendment. Id. at 1904. The
Supreme Court cited our holding in Davis for the proposition that the Fifth
Circuit has required content inquiries in pretrial publicity cases "in some
circumstances." Mu'min, 500 U.S. at 426, 111 S. Ct. at 1905-06. The Court
further noted that Federal Circuits, like the Fifth Circuit, that have imposed
content-inquiry requirements have done so in the exercise of supervisory powers.
Id. at 427, 111 S. Ct. at 1906; id. at 447 n.6, 111 S. Ct. at 1917 n.6 (Marshall,
J., dissenting). Thus, the Supreme Court's holding in Mu'min does not abrogate
our holding in Davis that, where pretrial publicity creates a significant
possibility of prejudice, the district court must make an independent
determination of the impartiality of jurors. Davis, 583 F.2d at 198.

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We stated that "defense counsel must see that the record reflects

the nature and extent of the publicity so that the appellate court

may . . . initially determine whether the publicity was

prejudicial." Gerald, 624 F.2d at 1298. In United States v.

Hawkins, 658 F.2d 279 (5th Cir. 1981), we reversed multiple

convictions on Davis grounds, where the district court refused to

question potential jurors individually. We identified the proper

Davis inquiry as "whether the method of voir dire adopted by the

district court is capable of giving reasonable assurances that

prejudice would be discovered if present." Hawkins, 658 F.2d at

283 (internal quotation marks and citations omitted). Thus, we

will reverse a conviction because of pretrial publicity if the

defendant can establish (1) that pretrial publicity about the case

raised a significant possibility of prejudice, and (2) that the

district court's voir dire procedure failed to provide a reasonable

assurance that prejudice would be discovered if present. United

States v. Chagra, 669 F.2d 241, 249-50 (5th Cir.), cert. denied,

459 U.S. 846, 103 S. Ct. 102, 74 L. Ed. 2d 92 (1982).2

2
In United States v. Flores, 63 F.3d 1342 (5th Cir. 1995), we recently
held that the district court did not abuse its discretion by first questioning
jurors as a group about the death penalty, and then individually questioning
jurors who came forward with answers suggesting bias. We noted that we were
unsure whether the defendant also meant to challenge the voir dire on pretrial
publicity. Id. at 1354 n.9. Nonetheless, we stated that, where the district
court's "group questioning . . . elicited a large number of responses and
. . . the court followed this up with thorough individual questioning of the
responding jurors," there was no abuse of discretion. Id. Nothing in Flores,
however, alters the appropriate standard for determining the adequacy of voir
dire questioning on pretrial publicity, as established by Davis and its progeny.
District courts may use collective questioning to identify jurors for which
further individual questioning is necessary. Chagra, 669 F.2d at 253 n.15.
However, district courts may not, through use of any type of questioning, deflect
their responsibility to make an independent determination of the impartiality of

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 1

We first must determine whether the record in Beckner's case

contains sufficient evidence of pretrial publicity to raise a

significant possibility of prejudice.3 Prior to his second trial,

Beckner filed a motion for extended voir dire examination.

Attached to the motion, Beckner submitted forty-eight newspaper

articles from the local newspaper and a video tape of excerpts from

eight local television news broadcasts. Some of the articles focus

exclusively on Sam Recile and the failure of the Place Vendome

project. Most of the submitted articles and news broadcasts,

however, focus on Beckner specifically. Although many are merely

jurors. Hawkins, 658 F.2d at 285.

3
We have not previously formulated a standard or list of factors to
determine when pretrial publicity creates a significant possibility of prejudice.
Compare Hawkins, 658 F.2d at 284-85 (finding significant possibility of prejudice
from 40 submitted newspaper articles and television news transcripts, many of
which highlighted drug-related nature of the charges, speculated about
defendant's connection to violent acts, and reported guilty pleas and sentences
of other defendants) with United States v. Colacuracio, 659 F.2d 684, 689 (5th
Cir. 1981) (finding no significant possibility of prejudice from two submitted
newspaper articles, one of which connected the defendant to organized crime and
prostitution, and one of which labeled the defendant a "vice lord"), cert.
denied, 455 U.S. 1002, 102 S. Ct. 1635, 71 L. Ed. 2d 869 (1982). As we have
stated in another context, every claim of potential jury bias due to publicity
turns on its own facts. See United States v. Aragon, 962 F.2d 439, 444 (5th Cir.
1992) (reversing conviction for district court's failure to conduct voir dire
concerning mid-trial publicity). However, cases addressing potential jury bias
due to publicity regularly rely on such factors as the amount of the publicity,
the time period between the publicity and the trial, the inclusion of
inadmissible evidence, reports of guilty pleas of co-defendants, and the
inflammatory nature of the publicity. See, e.g., Salemme v. Ristaino, 587 F.2d
81, 88 (1st Cir. 1978) (finding no threat of unfair trial where five years passed
since publicity); United States v. Holman, 680 F.2d 1340, 1348 (11th Cir. 1982)
(finding no significant prejudice where article contained only data admissible
at trial); Aragon, 962 F.2d at 444-46 (finding significant prejudice where
article contained defendant's prior convictions); Davis, 583 F.2d at 196 (finding
significant possibility of prejudice where media coverage included violent
backgrounds of defendant "and his confederates").

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objective reports of the status of his case, several of the

articles and television news broadcasts are more problematic.

Newspaper articles connected Beckner to Sam Recile when Recile

pleaded guilty to wire fraud charges and again when Recile was

sentenced. When a mistrial was declared in Beckner's first trial,

the U.S. Attorney was quoted on television and in the newspaper as

stating that eleven of twelve jurors were prepared to find Beckner

guilty on several counts. The media linked the possibility of a

retrial with Beckner's political connections)) whether the

impending replacement of the U.S. Attorney who had served under the

Bush Administration with the U.S. Attorney nominated by the Clinton

Administration would eliminate the possibility of a retrial of

Beckner, who himself served as U.S. Attorney under the Carter

Administration. Beckner was retried only five months after many of

these reports were either published or broadcast. Thus, on this

record, we conclude that the pretrial publicity in Beckner's case

was sufficient to raise a significant possibility of prejudice.

2

We must next determine whether the district court's voir dire

in Beckner's case provided a reasonable assurance that prejudice

would be discovered if present. As we have previously stated,

"[T]he clear teaching of Davis is that, when a significant

possibility exists that a juror will be ineligible to serve because

of potentially prejudicial publicity, it is the obligation of the

district court to determine whether that juror can lay aside any

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impression or opinion due to the exposure." Hawkins, 658 F.2d at

285. Jurors are in a poor position to make determinations as to

their own impartiality. Davis, 583 F.2d at 197. The district

court in Beckner's case devoted great attention to pretrial

publicity in its voir dire of prospective jurors. However, the

district court did not ask jurors what information they had read,

heard, or otherwise received as a result of such publicity. Nor

did the district court ask jurors how any such information had

affected their attitudes or perceptions of the case. The district

court did ask the panel whether anyone had been so affected by

pretrial publicity that he or she could not be completely fair and

impartial.4 None of the prospective jurors responded.5 By allowing

jurors to decide their own impartiality, the district court failed

to fulfill its obligation under Davis to make an independent

4
The district court inquired:
Does anybody feel that, up to this point in time, they have in any
way been affected by any news coverage, so that they could not be
absolutely satisfied within themselves that they would be able to
give this matter a completely fair and impartial hearing at your
hands, in your good hands when you are the members of the jury in
this case? Does anybody feel that anything they either have read,
seen on the tube, or heard from people talking about it, an article
in the paper or a news coverage on the television or whatever, would
in any way affect their ability to be completely fair and impartial
in hearing and deciding this case? I thank you.
The district court repeated this question in slightly different words several
times during the course of the voir dire. For a complete recitation of the
relevant excerpts from the transcript of the district court's voir dire, see
Appendix, attached.
5
Beckner objected to the voir dire at a bench conference immediately
following the voir dire. Counsel stated, in part, "The one thing we are
concerned about, a juror is not qualified or in the position of determining his
or her own impartiality, when faced with pretrial publicity exposure. The
questions that the Court asked, although going into pretrial publicity, left it
up to the individual member of the jury whether or not they had been prejudiced
by it. We think United States versus Davis specifically mandates the Court to
do otherwise. And we incorporate our memos that we filed previously with the
Court in our objection."

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determination of the impartiality of each juror. Thus, we conclude

that the district court's voir dire was insufficient to provide a

reasonable assurance that prejudice would be discovered if

present.6

Beckner has demonstrated both that pretrial publicity in his

case gave rise to a significant possibility of prejudice and that

the district court's voir dire did not afford a reasonable

assurance that prejudice would have been discovered if present.

Thus, we hold that the district court abused its discretion by

failing to make an independent determination of the impartiality of

each juror.

B

Beckner also alleges that the district court erred by not

6
We note the similarities between the voir dire inquiry in Beckner's
case, see supra note 4, and the voir dire inquiries found insufficient in Davis
and Hawkins:
"Now, all of you have had some exposure in the media to this case.
To what extent have you been exposed to this publicity, this
exposure by the media? Has such publicity affected your ability to
render a fair and impartial verdict in this case and has there been
any effect on your ability to listen to the evidence and base a
verdict solely on the evidence? And if there has been any
impairment or if you have reached any preconceived feeling or notion
about what happened or any circumstances about this that would tend
to cause you to favor one side or the other in this case, please
raise your hand at this time. I take it that by your silence none
of you feel that you would be prejudiced against the defendant and
for the Government and vice versa. All right."
Davis, 583 F.2d at 196 n.5.
"If any of you have heard about this case, or have read about it in
the newspaper, or heard it on TV or the radio, or have talked with
anyone, which has caused you to form an opinion as to the guilt or
innocence of the Defendants, and if that is such an opinion as would
affect you if selected as a Juror, may I see your hand?
. . . .
I presume then, that none of you know enough about the case or heard
enough about it that you feel that it would keep you from being a
fair and impartial Juror or would affect or influence your verdict."
Hawkins, 658 F.2d at 282.

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giving a requested jury instruction on attorney-client confidences,

that the record contains insufficient evidence to support the wire

fraud convictions, that the record contains insufficient evidence

to support the perjury conviction, and that the district court

erred in its application of the Sentencing Guidelines. Since we

reverse Beckner's conviction because of the district court's

insufficient voir dire, we need not reach these issues.

III

Accordingly, we REVERSE Beckner's conviction and REMAND to the

district court.

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 APPENDIX

The relevant portions of the transcript of the district court's

voir dire are as follows:

What I want to get into now a little bit is the
affect (sic), if any, that any prior publicity in
connection with this matter may have had on any of you
all. For indeed, there has been some discussion of this
case in the press, in the newspaper, on the tube, I
suppose on the radios, though I have no knowledge of
that. But it's clear to me that there have been some
references as late as today in the Advocate and some
references as late as today in the television news
programs that this matter was coming on for trial. We
would begin jury selection today. Indeed, certain of
that-- some of that press coverage goes into some details
with respect to prior events that may have taken place in
connection with the matter as it involves the U.S.
contentions against Mr. Beckner. The purpose of this
question is to first ask you all, I want you to think
about this carefully as with all the other questions I
put to you. Does anybody feel that, up to this point in
time, they have in any way been affected by any news
coverage, so that they could not be absolutely satisfied
within themselves that they would be able to give this
matter a completely fair and impartial hearing at your
hands, in your good hands when you are the members of the
jury in this case? Does anybody feel that anything they
either have read, seen on the tube, or heard from people
talking about it, an article in the paper or a news
coverage on the television or whatever, would in any way
affect their ability to be completely fair and impartial
in hearing and deciding this case? I thank you.
Does anybody feel that the contentions set forth in
the press with respect to the fact that the matter is one
that has been dealt with in connection with the Recile
trial and, indeed, other trials, would you all feel that
in any way that affects your ability as the jury in this
case, to make a fair and square determination of the
outcome of this case on the facts as you find them to be
in the course of this trial?
Does anybody have any trouble limiting their
consideration of this case to those circumstances? In
other words, what I am trying to be sure of, my friends,
that the jury that is picked to ultimately decide this
case is not affected by any other series of events,
circumstances, outcomes, determinations of guilt or not
guilty, as the case may be, have any inability to agree

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with respect to any other proceedings, but will concern
themselves solely and only with the trial of this matter
in the course of this trial, in this courtroom, under the
facts that this jury finds as being the facts to be dealt
with in the ultimate decision that only you all can make
as to how this case comes down? Does anybody have any
trouble with the absolute condition that I will impose,
that is built in, essentially, through all of the
discussions that I have had with you, that you must
concern yourself only with what is developed in the
course of this trial as it has to do with your ultimate
determination in the course of this trial as to the
contentions made by the Government relative to Mr.
Beckner? Anybody have any trouble limiting their
consideration on that basis?
What will take place, so you will know what I am
talking about, is, we will be trying a matter with
respect to certain aspects, may have, in some instances,
been dealt with in some respects prior to this. But what
we are going to be concerned about, my friends, you and
I, is the absolute total impartial consideration of the
case as it is presented in these next few days that we
are together in this courtroom with respect to those
facts that are developed in the course of this trial and
only that. And barring all other circumstances or other
considerations, does anybody have any trouble with our
dealing with it in that context?
. . . .
Well, I expect a lot of you, as we review all of
this, I don't think in any way a misplaced expectation,
I can tell by your experiences that you are following
along with what I say and that we are together on it.
Does anybody feel that anything that they have read up to
now or heard or seen on the tube, will in any way affect
their ability to be completely fair and impartial in
hearing and deciding this case? Does anybody feel that
they have something other than a passing knowledge of the
media coverage? Has anybody found themselves, for
whatever reason, in some way more heavily influenced by
what they read or heard up to now, than would be the
normal situation if you were simply coming to work and
somebody was asking you about the case? In other words,
does anybody feel that they have anything more than the
usual expressions from the tube, from the paper, from the
radios, et cetera, about this matter or does anybody feel
that it has influenced them unduly to where there is some
notion on their part as to how the case must ultimately
come out or more likely come out because of any press
coverage as I discussed? The underlying consideration
that all of us must bring, we could ask slightly

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different questions about, you know, for another hour.
The overriding consideration is fairness. The absolute
necessity to be completely fair and impartial in hearing
this case, to have the evidence that is adduced in the
course of this trial to be the 100% foundation for your
ultimate decision as to the outcome of the case and not
be affected by anything other than what you, the jury,
who is going to decide the case, have heard and
determined in the course of the trial. Anybody have any
trouble with that at all?

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