JOSEPH ROBERT PROVENZANO, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-170

   In the Supreme Court of the United States

   October Term, 1986

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The fifth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that he was denied a fair trial because the
jury was prejudiced by newspaper articles published during the course
of the trial.

   1. Following a jury trial in the United States District Court for
the Eastern District of Louisiana, petitioner was convicted on one
count of racketeering, in violation of 18 U.S.C. 1962(c);  one count
of conspiring to engage in racketeering, in violation of 18 U.S.C.
1962(d);  five counts of mail fraud, in violation of 18 U.S.C. 1341;
and one count of using a facility of interstate commerce to further
racketeering activity, in violation of 18 U.S.C. 1952(a)(3).  He was
sentenced to seven and one-half years' imprisonment and fined $50,000.
 /1/

   The court of appeals described the conduct that was the basis for
these convictions by observing that petitioner "was the kingpin of a
Louisiana crime organization involved in, among other transgressions,
arson, extortion, and mail fraud" (Pet. App. A4).  Two of petitioner's
co-defendents asked him "to burn down a competitor's lounge, requests
resulting in two seperate arsons" (ibid.).  Other co-defendants'
requests for assistance from petitioner culminated in arson and other
forms of destruction of property (ibid.).

   On December 5, 1984, the third day of petitioner's trial, an
article discussing the trial appeared on the first page of an interior
section of a New Orleans newspaper.  The article mentioned that
petitioner previously had been convicted for assaulting a government
witness.  Petitioner's counsel brought the article to the district
court's attention and requested a voir dire of the jury, or, in the
alternative, the declaration of a mistrial.  The court "delivered a
strong, lengthy warning (to the jury) to avoid media coverage of the
trial." Pet. App. A13.  The court then asked the jurors whether they
had read the article in the newspaper.  Three jurors responded that
they had read the article;  those jurors were questioned by the
district judge.  Ibid.

   The district judge asked the first juror, Valerie Bailey, whether
she had noticed any reference in the article to petitioner's prior
conviction.  She said that she had not.  The judge then questioned the
other two jurors without referring to petitioner's prior conviction.
Both jurors indicated that they had simply glanced at the article and
that it would not affect their impartiality.  The district judge
returned all three jurors to service and the trial resumed.  Pet. App.
A13, A14.

   The next morning, the district judge and counsel asked juror Bailey
whether she had discussed with the other jurors her conversation with
the judge.  Bailey said that she told the jurors that the judge had
asked her about the newspaper article;  she stated that she had not
discussed the contents of the article with her fellow jurors.  The
court then excused juror Bailey at the request of the prosecution,
recalled the jury, and again admonished the jurors to avoid all media
accounts of the trial.  Pet. App. A13-A14.

   One week later, on December 12, a second article concerning
petitioner's trial appeared in the newspaper;  the article again
referred to petitioner's prior conviction.  The district court denied
petitioner's request for another voir dire of the jury, but again
cautioned the jury to avoid all news coverage of the trial.  Pet. App.
A16.

   2. The court of appeals unanimously affirmed petitioner's
convictions, rejecting petitioner's claim that he was deprived of a
fair trial because the newspaper articles influenced the jury (Pet.
App. A13-A18).  /2/

   The court concluded that the exposure of three jurors to the first
newspaper article did not deprive petitioner of a fair trial, because
none of the three jurors became aware of petitioner's prior conviction
as a result of the article.  The jurors' "(f)ailure to see reference
to (petitioner's) earlier conviction (was) completely understandable,"
the court of appeals noted, "because discussion of the conviction
occupied but one short paragraph in a lengthy article.  Other, much
more detailed passages chronicling the trial's progression dominated
the article." Pet. App. A14.

   The court of appeals observed that the district judge had mentioned
petitioner's prior conviction during his conversation with juror
Bailey and that "(h)er return with knowledge of the conviction gleaned
from the judge's questioning created the possibility of jury
contamination" (Pet. App. A15).  The court found no such
contamination, however, because -- based upon its review of the record
-- it concluded that "Mrs. Bailey did not mention the conviction to
the other jurors" during the short time that she remained on the jury
(id. at A16).

   The court of appeals also rejected petitioner's claim that the
district court erred by refusing to conduct a second examination of
the jury following the publication of the second news article.  It
stated that a district court must consider two factors in determining
whether midtrial publicity requires a voir dire of the jury.  First,
the court must determine whether the news material in question is
"innately prejudicial";  second, the court "must ascertain the
likelihood that the publicity has in fact reached the jury" (Pet. App.
A16).

   The court of appeals found that the article's reference to
petitioner's prior conviction was prejudicial but concluded that the
chance that the jury was influenced by the news article was
"minuscule," because the trial court "had warned the jury against
reading about the trial at least twice" before the article was
published (Pet. App. A17-A18).  The court also noted that the article
was not a "headline item," although it did appear on the front page of
an interior section, and that "(t)he inadmissible information -- the
prior conviction -- again constituted one small paragraph at the end
of the medium-length article" (id. at A18).  Finally, the court
observed that the jury's not guilty verdicts with respect to two of
the charges against petitioner "indicates a fair-minded consideration
of the case against him.  The not guilty verdicts reinforce our belief
that the media coverage did not lead to the deprivation of
(petitioner's) right to an impartial jury" (ibid.).

   The court of appeals panel denied petitioner's petition for
rehearing and issued a short per curiam opinion addressing the issues
raised in the petition (Pet. App. A26-A27).  /3/ It observed that the
district court had failed to follow the procedural guidelines set
forth in United States v. Herring, 568 F.2d 1099 (5th Cir. 1978),
relating to claims that a jury has been tainted by midtrial publicity.
 The court of appeals noted that the district court was required to
make an inquiry to determine the likelihood that the damaging material
has in fact reached the jury.  Pet. App. A26.  It stated that the voir
dire in the present case "fell somewhat short of the neutral kind that
Herring recommends" because the district judge mentioned petitioner's
prior conviction to one of the jurors (id. at A27).  /4/ Although the
district judge's actions were for that reason "technically improper,"
the court of appeals concluded "upon review of the entire record" that
the error "was insufficient to constitute grounds for reversal"
(ibid.).

   3. Petitioner renews (Pet. 4-6) his assertion that he was deprived
of a fair trial because the jury was influenced by the news articles
mentioning his prior conviction.  The decision of the court of appeals
rejecting this claim is correct and does not conflict with any
decision of this Court or another court of appeals.  Further review of
petitioner's fact-bound claim is not warranted.

   Petitioner plainly is incorrect in asserting (Pet. 4) that "(t)he
instant case involves publicity during trial * * * (that) rises to the
level of a constitutional violation." This Court has determined that
"(t)he constitutional standard of fairness requires that a defendant
have 'a panel of impartial, "indifferent" jurors'" (Murphy v. Florida,
421 U.S. 794, 799 (1975) (citation omitted)).  The question is whether
a juror "can lay aside his impression or opinion and render a verdict
based on the evidence presented in court" (Irvin v. Dowd, 366 U.S.
717, 723 (1961)).  There simply is no evidence in this case indicating
that any of the jurors were biased against petitioner.  His
constitutional claim therefore must fail.

   This Court has invoked its "supervisory power to formulate and
apply proper standards for enforcement of the criminal law in the
federal courts" to reserve a conviction on the ground that the
defendant was prejudiced by the jury's exposure to midtrial publicity
(Marshall v. United States, 360 U.S. 310, 313 (1959)).  The Court
ordered a new trial in that case because the record indicated that
seven jurors had read newspaper articles published during the trial
reporting that the defendant had previously been convicted of offenses
similar to the charges that were the subject of the trial (id. at
311-312).

   The court of appeals correctly concluded that a similar exercise of
supervisory authority is not warranted in the present case.  Although
three jurors saw one of the newspaper articles, there is no evidence
that any of the jurors learned of petitioner's prior conviction as a
result of that article.  /5/ As this Court has observed, the trial
court "has a large discretion in ruling on the issue of prejudice
resulting from the reading by jurors of news articles concerning the
trial * * * (and) each case must turn on its special facts" (Marshall
v. United States, 360 U.S. at 312).  In view of the absence of any
evidence that the jurors learned of petitioner's prior conviction, the
district court did not abuse its discretion by refusing to declare a
mistrial in this case.

   Nor, as petitioner suggests (Pet. 6), should his conviction be
reversed because the district court did not strictly follow procedures
established by the Fifth Circuit relating to claims of midtrial
publicity.  See United States v. Herring, 568 F.2d 1099 (5th Cir.
1978).  The district judge's errors were his failure to give the
appropriate cautionary instruction and his reference to petitioner's
prior conviction during the questioning of juror Bailey.  However, the
district judge did administer cautionary instructions, and he excused
juror Bailey before the prejudicial information spread to other
members of the jury.  The court of appeals thus correctly concluded
that "(r)ehearing of (petitioner's case) would serve no useful
purpose" because the trial court's actions were no more than
"technically improper" (Pet. App. A26-A27).  /6/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1986

   /1/ The jury acquitted petitioner on two additional counts of using
a facility of interstate commerce in furtherance of racketeering.

   /2/ The court of appeals also rejected petitioner's challenges to
certain evidentiary rulings made by the district court (Pet. App.
A18-A22, A23-A24).

   /3/ Petitioner's suggestion for rehearing en banc also was denied.

   /4/ The court of appeals also noted (Pet. App. A26-A27) that the
district court's instructions to the jury to avoid media accounts of
the trial did not conform to its guidelines, but it acknowledged that
the district court "did suggest that the jury avoid such information"
(id. at A27).

   /5/ The juror who became aware of petitioner's prior conviction as
a result of the district court's questioning was excused from service
on the jury.

   /6/ Petitioner erroneously suggests (Pet. 6) that the court of
appeals' decision rests upon an application of the harmless error
doctrine.  In fact, as we have discussed, the court of appeals
addressed the merits of petitioner's claim and found no evidence of
jury prejudice.  What the court of appeals found to be harmless was
the district court's failure to comply with the procedural guidelines
previously established by the court of appeals.  Since the district
court's deviation from the guidelines was merely "technical," the
court of appeals properly declined to reverse petitioner's
convictions.