MARSHALL v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
Argued March 25-26, 1959.
Decided June 15, 1959.
At a jury in a Federal District Court in which petitioner was convicted of unlawfully dispensing certain drugs without a prescription from a licensed physician, in violation of 21 U.S.C. 331 (k), the judge refused to permit the Government to introduce evidence that petitioner had previously practiced medicine without a license; but some of the jurors saw and read newspaper articles alleging that he had a record of two previous felony convictions and reciting other defamatory matters about him. Upon being questioned, each of these jurors assured the judge that he would not be influenced by the news articles and that he could decide the case only on the evidence of record. Held: The harm to petitioner that resulted when prejudicial information denied admission into evidence was brought before jurors through newspapers requires that a new trial be granted. Pp. 310-313.
258 F.2d 94, reversed.
George J. Francis argued the cause for petitioner. With him on the brief were Omer Griffin and Frances De Lost.
James W. Knapp argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Anderson and Beatrice Rosenberg.
Petitioner was convicted of unlawfully dispensing a number of dextro amphetamine sulfate tablets, a drug within the scope of 21 U.S.C. 353 (b) (1) (B), without a prescription from a licensed physician, which resulted in misbranding and violation of 21 U.S.C. 331 (k). The Court of Appeals affirmed, one judge dissenting, 258 F.2d 94. The case is here on a petition for certiorari, 28 U.S.C. 1254 (1), which we granted because of doubts [360 U.S. 310, 311] whether exposure of some of the jurors to newspaper articles about petitioner was so prejudicial in the setting of the case as to warrant the exercise of our supervisory power to order a new trial. 358 U.S. 892 .
Petitioner never took the stand; nor did he offer any evidence. A government agent testified that he was introduced to petitioner as a salesman who had difficulty staying awake on long automobile trips and that on two occasions he obtained these tablets from petitioner. Petitioner asked the trial judge to rule there was entrapment as a matter of law. The judge refused so to hold and submitted the issue of entrapment with appropriate instructions to the jury. Cf. Masciale v. United States, 356 U.S. 386 . The Government asked to be allowed to prove that petitioner had previously practiced medicine without a license, as tending to refute the defense of entrapment. The trial judge refused this offer saying, "It would be just like offering evidence that he picked pockets or was a petty thief or something of that sort which would have no bearing on the issue and would tend to raise a collateral issue and I think would be prejudicial to the defendant."
Yet during the trial two newspapers containing such information got before a substantial number of jurors. One news account said:
The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251 . Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain [360 U.S. 310, 313] to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution's evidence. Cf. Michelson v. United States, 335 U.S. 469, 475 . It may indeed be greater for it is then not tempered by protective procedures.
In the exercise of our supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts (Bruno v. United States, 308 U.S. 287 ; McNabb v. United States, 318 U.S. 332 ) we think a new trial should be granted.