United States v. Montgomery

772 F.2d 733
Court of Appeals for the Eleventh Circuit·Decided September 27, 1985·No. No. 84-3520·Published·Cited by 21 cases

Opinion

RONEY, Circuit Judge:

Early on the morning of Easter Sunday, 1984, eight members of the group “Pershing Plowshares,” which is opposed to the production and spread of nuclear weapons, cut through a fence surrounding the Martin-Marietta Aerospace Corporation’s defense plant in Orlando, Florida. Entering a building within the compound, they hammered and poured blood onto both nuclear and conventional missile launchers and components belonging to the United States Army, hung banners and distributed pictures and documents condemning nuclear weapons around the scene, and remained on the premises singing and praying until they were taken into custody. The incident caused an estimated $23,266 in actual damages.

Convicted of depredation of United States Army property in excess of $100, 18 U.S.C.A. § 1361, and conspiracy, 18 U.S. C.A. § 371, they contend on appeal that the trial judge inadequately questioned jurors at voir dire on pretrial publicity, improperly denied dismissal of two jurors for cause, and erred in excluding evidence to support affirmative defenses of necessity and international law. We affirm.

After indictment, defendants entered not guilty pleas and waived counsel, although they accepted the services of attorneys in an advisory capacity. Following a six-day trial and a jury verdict, the court sentenced each defendant to three years imprisonment on the first count and five years probation on the second count to be served consecutive to the term of imprisonment, and ordered each defendant to make restitution of $2,908, an amount constituting a one-eighth share of the actual damage to Army property.

Defendants first claim that during voir dire the trial judge failed to question the potential jurors sufficiently to ascertain the effect of pretrial publicity on their ability to render an impartial verdict based solely on the evidence. The trial court did not abuse the considerable discretion with which it is vested. Although defendants were not permitted to question the jurors individually, the trial judge questioned the jurors both collectively and individually, and invited the defendants to submit to the court specific questions. “Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct voir dire." Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981); see also United States v. Tegzes, 715 F.2d 505, 507 (11th Cir.1983); United States v. Brunty, 701 F.2d 1375, 1378-79 (11th Cir.), cert. denied, 464 U.S. 848, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983).

Where there has been substantial pretrial publicity concerning a criminal case, it is not required that the jurors be wholly ignorant of the facts and issues involved. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Rather, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. at 723, 81 S.Ct. at 1643; see also United States v. Williams, 568 F.2d 464, 468-69 & 469 n. 11 (5th Cir.1978); Calley v. Callaway, 519 F.2d 184, 205-06 (5th Cir.1975), cert. denied,. 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976).

When it became apparent that most members of the panel had previously heard of the case, the court asked each juror individually whether he or she would be [736]*736able to set aside what he or she had read or heard and base a verdict solely on the evidence. The jurors who responded negatively were struck for cause; and every juror who served eventually answered that question affirmatively. Although the judge did not ask specifically what each juror had read or heard, United States v. Davis, 583 F.2d 190, 196-97 (5th Cir.1978), the voir dire was adequately thorough and searching to enable the court to determine whether the jurors were impartial and to permit the defendants to decide when to exercise their challenges, both for cause and peremptory. United States v. Basca-ro, 742 F.2d 1335, 1350-51 (11th Cir.1984).

Defendants are not in a good position to complain of the effect of pretrial publicity that they actively sought and cultivated. The whole purpose of their actions was to generate publicity for their cause. One photograph showing the eight defendants at the scene of the crime and another showing a blood-spattered missile launcher panel were released to the newspaper by the defendants themselves. Prior to voir dire, the trial court took notice that some or all of the defendants had recently discussed the case on local radio and television programs. Defendants’ convictions are not reversible because of pretrial publicity.

Defendants claim that jurors Young and Satterfield should have been excused for cause, and that they should not have been forced to exercise peremptory challenges to exclude them from the jury. Juror Satterfield admitted exposure to pretrial publicity, expressed that he was “disturbed” by the destruction of property, and initially indicated that he had formed an opinion that would prevent him from being impartial. After further questioning by the trial court, however, Juror Satterfield indicated his disapproval of the act would not prevent him from according defendants the presumption of innocence and basing a verdict solely on the evidence and the law. Defendants opposed Juror Young because of his employment with the Air Force, which they claim does substantial business with Martin-Marietta. He also informed the court that he would render a guilty verdict only if the Government could prove its case against the defendants. “The decision whether to excuse a juror for cause is entrusted to the discretion of the trial judge.” United States v. Tegzes, 715 F.2d at 509; see United States v. Butera, 677 F.2d 1376, 1384 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983). Defendants have shown no abuse of discretion by the trial judge in denying their motions to exclude these jurors for cause.

Defendants’ most interesting claim is that the trial judge erred in excluding evidence offered to establish the affirmative defenses of necessity and international law. In order to establish the justification defense of necessity, defendants must show, among other things, that they had no reasonable alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm. United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980); United States v. Gant,

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United States v. Montgomery
772 F.2d 733 (Eleventh Circuit, 1985)