1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-22-1997

Barry v. Bergen Cty Probation

Precedential or Non-Precedential:

Docket

96-5577

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Recommended Citation

"Barry v. Bergen Cty Probation" (1997). 1997 Decisions. Paper 247.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/247
Filed October 22, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5577

MICHAEL C. BARRY

v.

BERGEN COUNTY PROBATION

DEPARTMENT, Hackensack, N.J.;

ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

 Bergen County Probation Department,

 Peter Verniero, Attorney General

 of New Jersey,

 Appellants

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 94-cv-03258)

Argued August 12, 1997

BEFORE: STAPLETON, GREENBERG and COWEN,

Circuit Judges

(Filed October 22, 1997)

 Peter Verniero

 Attorney General of New Jersey

 Arthur S. Safir, Esq. (argued)

 Deputy Attorney General

 Richard J. Hughes Justice Complex

 Trenton, NJ 08625

 Counsel for Appellants

 David M. Quirk, Esq. (argued)

 11 Seymour Street

 Montclair, NJ 07042

 Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.
This is an appeal from a judgment of the district court,

dated August 7, 1996, granting petitioner-appellee Michael

C. Barry's petition for a writ of habeas corpus. The district

court held that it had subject matter jurisdiction to

consider Barry's petition because his community service

obligation constituted custody for purposes of habeas

corpus review pursuant to 28 U.S.C. S 2254(a). The district

court further held that, because the media coverage at

issue had the potential to prejudice one or more jurors, the

trial judge's failure to voir dire the jurors violated Barry's

Sixth Amendment right to a fair trial. In addition to

granting the petition, the district court ordered that Barry

be released from his community service obligation. The

district court made no provision for the State to retry Barry.

Respondents-appellants, the Bergen County Probation

Department and Peter Verniero, the Attorney General of

New Jersey (collectively, "the State"), contend that the

district court erred in its determination that Barry was "in

custody" for habeas corpus purposes and that the media

coverage potentially prejudiced the jury. Moreover, the State

argues that the district court erred by releasing Barry from

his community service sentence without providing the State

with an opportunity to retry him.

We hold that Barry was "in custody" for purposes of 28

U.S.C. S 2254(a) when he was resentenced in 1993 to 500

hours of community service. We further hold that the media

coverage at issue did not have the potential to prejudice the

jury. Accordingly, the judgment will be reversed, and we

need not consider whether the district court erred by failing

to provide the State with an opportunity for retrial.

 2

I. 

Dr. Michael Barry served as medical director of the Fort

Lee Stress Relief Clinic. During its brief period of operation,

845 patients generated 2,429 visits and 2,337 prescriptions

for the drug Quaalude. Nearly every prescription was for

forty-five tablets, regardless of a patient's prior history.

Barry and a number of codefendants were indicted by the

State of New Jersey on: sixteen counts of dispensing the

drug Quaalude not in good faith in the course of

professional medical practice, in violation of N.J. STAT. ANN.

SS 24:21-9, :21-15 (West 1997), :21-19(a)(1), :21-19(b)(3)

(repealed by L.1987, c. 106, S 25, operative July 9, 1987)

(West 1997), and 2C:2-6 (West 1995); three counts of

dispensing Quaalude and Diazepam, in violation of those
same statutes; one count of maintaining a drug resort, in

violation of N.J. STAT. ANN. SS 24:21-21(a)(6), :21-21(b) (West

1997), and 2C:2-6; and one count of conspiracy to dispense

the drug Quaalude not in good faith in the course of

professional medical practice and to maintain a drug resort,

in violation of N.J. STAT. ANN. SS 24:21-24(a) (West 1997),

and 2C:5-2 (West 1995). The trial, which lasted almost five

months, commenced on January 4, 1982.

On February 18, 1982, the trial court became aware of

two newspaper articles that appeared in the Herald

Dispatch. The court admonished the jury:

 There are just a few things I must call to your

 attention, and one of them is that there have been

 articles in the newspaper and they have been called to

 my attention, about this case.

 It's also been called to my attention that the articles

 are not accurate. I am not critical of the articles in any

 sense, that's none of my business what's in the article,

 but it is our business to ask you not to read them.

 Remember I said at the outset that you as the jury in

 this case are the judges. You will be the judges in the

 trial. You'll be the sole and final judges in this trial and

 you'll have to decide this case based solely on the

 evidence that you see and you hear that takes place in

 this courtroom. I will continue to ask you, and if I don't

 forget, I will be telling you this every day, I will remind

 3

 you not to read the newspapers. If you see anything

 anywhere close that has anything to do with this case,

 don't read it, don't let anybody attempt to discuss the

 case with you, don't discuss the case even among

 yourselves. Keep an open mind until you heard [sic] all

 sides, the entire case, not just the State's case, but the

 defendants' side and the law as given by the Court at

 the end of the trial, but as I said, there are articles,

 some of it is on the front page here, and there may be

 something on the TV.

App. at 138-39. At the conclusion of the proceedings that

day, the trial court reminded the jury of its earlier

admonition regarding the press.

As the trial continued, the court repeatedly cautioned the

jury to refrain from discussing the case with anyone or

reading anything in the newspapers even tangentially

related to the case. On March 17, 1982, the trial court

instructed the jury at the conclusion of the proceedings
that day:

All right. I think it's a good time to recess.

 But before we do, members of the jury, you will recall

 from time to time I have been cautioning the jury not

 to discuss the case, and not to read anything that

 might in any way have any effect on you as, as it

 pertains to this case. And I would just remind you once

 again, would you please continue to follow those same

 instructions.

 And, I think more and more now you can realize the

 importance of what I said, that ultimately you will have

 to decide this case solely and you will have to solely on

 the evidence that you see and you hear in this

 courtroom. And, if you read something elsewhere or if

 someone talks to you or even if you talk among

 yourselves, it would be very, very hard for you to

 remember whether you heard it in the courtroom or

 you read it somewhere or whether it was evidence in

 this case.

 So, it is -- nor if you should see something, don't

 read it. If someone wants to talk to you, don't let them

 4

 talk to you about the case. And, you will remember

 that this has to do with this case and this was the

 evidence in this case because some [sic] have to decide

 it solely on the evidence that you see and hear in the

 courtroom.

App. at 145-46.

On April 20, 1982, approximately two weeks before the

jury received the case, the trial court issued the following

admonition to the jury regarding an upcoming television

program:

 There is another thing that I must call to your

 attention, also. It's come to my attention that a

 television program is to be televised on Channel 4,

 NBC, on Tuesday evening, that's today, which may

 address topics which have been either examined or

 referred to here incourt [sic] . . . . I'm not going to tell

 you about a program and then tell you not to look at

 it, but I have to do it that way, because you might

 come on it by chance. So, the best way to do it is to tell

 you about it and then tell you not to look at it, whether

 someone reminds you and says you know, I saw
 something, tell them not to talk about it. So, I'm going

 to ask you not to view the program, and further, I

 would ask, if possible, that the program not be

 watched by other members of your family, if possible,

 or if that's not done, that you not discuss or be present

 during any discussion with either your family or

 friends . . . .

App. at 156-57. The following day, the court asked the

jurors if anyone had viewed the television program in

question, and no one answered in the affirmative.

On May 13, 1982, the trial judge, at the conclusion of the

entire case, charged the jury as follows:

 Each defendant is entitled to have his case

 determined from his or her own acts and statements

 and the other evidence in the case which may be

 applicable to him or to her. And you're here to

 determine the guilt or innocence of the accused from

 the evidence before you and you are not called upon to

 5

 return a verdict as to the guilt or innocence of any

 other person or persons.

App. at 172. The jury received the case and commenced

deliberations that afternoon.

In the morning of May 14, 1982, during jury

deliberations, counsel for one of Barry's codefendants

brought to the court's attention that a newscast that had

been broadcast on WINS radio the previous evening

concerned hearings in Washington on methaqualone usage.

A recording of the story was transcribed for the record:

 "At a Senate Labor and Human Resources

 Subcommittee hearing, Republican Senator Paula

 Hawkins says 90% of the sleeping pills also called the

 love drug is [sic] supplied illegally to young people in a

 two billion dollar a year business."

 Now the recording has the following statement from

 Senator Hawkins'[s] testimony, "Under the guise of

 affording legitimate medical services these clinics

 provide a ready and accessible source of

 pharmaceutical Quaaludes, primarily for white collar

 young adults. The procedure is apparently quite

 simple. Bring between seventy five [sic] and two

 hundred dollars in cash, fill out a brief personal history

 form, claim personal or job problems and trade the
 cash for a prescription of thirty to forty-five

 Quaaludes."

 The broadcast thencontinues [sic], "Now Senator

 Hawkins has introduced a bill to ban Quaaludes as a

 so-called controlled substance. Hawkins says at least

 130 people died from the drug last year. The Drug

 Enforcement Administration says Quaaludes [are]

 second in popularity among young people only to

 marijuana."

App. at 201.

Counsel also brought to the court's attention an article in

that day's Bergen Record entitled "Federal Drug Agency

Targets Stress Relief Clinics." According to counsel, the

articles concerned

 6

 stress clinics and how they operate in a manner so

 that a drug can be given out to young people who are

 then abusers. They refer to people coming in paying

 $125 for a fifteen to twenty minute visit to a stress

 clinic in order to receive Quaalude prescriptions.

App. at 178. The Record has the largest circulation in

Bergen County. Counsel then requested that the court voir

dire and sequester the jurors and the court instruct them

not to read that day's issue of the Bergen Record. The

request was denied. However, the court instructed:

 You shouldn't read about the case . . . . You shouldn't

 listen to the radio about anything that might pertain,

 not only about this case but anything that might

 pertain to anything relating to something that might

 pertain to a related matter. And you shouldn't read

 anything that might pertain to a related matter that

 might affect you in this case.

 So if you see or even think it might pertain to

 something, put it aside. Don't read about it. Because

 you have to decide this case solely on the evidence

 that's been presented in this case . . . and not on

 something that you heard on the radio or that you've

 seen or that you will see, and there may be something

 in the newspaper and I have to continuously guard

 against that. And it never fails but that just at the time

 when jurors are deliberating that some always thinks

 [sic] something will be in the newspaper, something is

 in the newspaper that they think might affect you in

 your deliberations.
 . . . So would you keep that in mind, not to read

 anything. If you read a newspaper -- I can't keep you

 from reading newspapers, but if something appears in

 the newspaper that might affect you in this case, you

 see the problems it creates.

App. at 203-04.

After lunch that same day, counsel for one of Barry's

codefendants advised the court that an alternate juror was

seen reading the Bergen Record. Counsel moved for a

mistrial or dismissal of the alternates; both motions were

 7

denied. The court stated: "The record will show there are no

newspapers in the deliberating room." App. at 217. At the

end of the day, the court again instructed the jury:

 I would ask that you not read or listen to what's on the

 radio or on the TV, and I don't know if there'll be

 anything on, but it just so happens that usually

 something does happen at atime [sic] like this, that

 something appears on the TV or on the radio which

 deals with perhaps substances that might be related or

 connected in some way with things that might remind

 you of this case. . . .

 And it's so important that you bear in mind that in

 deciding this case you should not in any way be

 influenced by anything other than . . . what you've

 seen in the case . . . particularly something as I say,

 that appears in a newspaper article or on the radio.

 I would, therefore, urge you very, very strongly, if you

 could stay away from reading even a headline that

 might indicate anything like that. Don't even get

 anywhere near anything like that.

App. at 221-22.

On May 17, 1982, counsel for one of Barry's

codefendants brought to the court's attention two

newspaper articles: one about the case itself from the May

15 issue of the Hudson Dispatch, with a six-column banner

headline reading "Mistrial Denied in Fort Lee Pill Pushing

Case," which reported sidebar conversations that someone

had leaked to the press, and one from the May 16 issue of

the Bergen Record entitled "New Jersey Weighs Ban Against

Quaaludes," which mentioned Barry and other defendants

and erroneously reported that they were linked to a stress
relief center in Atlantic City that was under investigation.

Counsel moved for the court to instruct the jurors not to

read the newspapers at all and to voir dire them to

determine whether any had seen the article. The motion

was denied. At the end of the day, the court again

instructed the jury:

 [A]gain, I would ask you please, please don't read

 anything -- and it's difficult for me to say don't read

 8

 any newspaper because I'd like to ask you not to do

 that, not to read and not to listen to TV and not to

 listen to any radio, but I guess that's asking too much

 for me to ask you to do that. I'd like to ask you to do

 that but, again, I will caution you, please don't read

 anything that might have the slightest -- if you see any

 kind of a headline that might have anything to do with

 any type of controlled dangerous substance or anything

 that might have anything to do with any kind of a case,

 even remotely, obviously you shouldn't be looking at it

 or reading it. . . . And similarly, don't listen to anything

 on the radio or TV.

App. at 247-48.

On May 18, 1982, the court again instructed:

 Don't read anything in the newspapers that in any

 way, shape or form might affect you in any possible

 way because it is important that you decide this case

 based on the evidence you've seen and heard or the

 lack of evidence in the case. . . . [D]on't permit anyone

 to discuss this case with you either on the telephone,

 newspaper, radio, TV, et cetera.

App. at 255.

On May 19, 1982, the court instructed the jury "not to

read, listen, not to let anyone discuss the case with you."

App. at 262.

On May 20, 1982, shortly after the jury resumed

deliberations at 9:15 a.m., counsel brought to the court's

attention an article in that day's issue of the Bergen Record

with a six-column headline reading "Stress Center Jury

Replays Drug User's Testimony." Although the State

disputes that the jurors could have seen the paper because

it usually comes out after 9:30 a.m., defense counsel

represented to the court that he bought the paper

"downstairs" in the courthouse before the jury began
deliberating that day. Counsel again requested a voir dire of

the jury, which request was denied. Later, the court

instructed:

 [O]nce again, I would caution you that you are not to

 read anything in the newspapers. If any articles appear

 9

 in the newspapers -- and the fact that articles appear

 in the newspapers, even though they may be allegedly

 a rehash of what occurs in court, you shouldn't read

 anything because the fact that something appears, it is

 not for the jury to read at all. You should rely only on

 the testimony, the evidence that was heard in court

 and not what you read in the newspaper and not what

 you hear outside of court as I've indicated earlier.. . .

 [D]o not read anything about the case. . . . I have to

 explain the importance of it to you and not to permit

 anyone to discuss the case with you, not to read

 anything, not to listen to anything that in any way

 might have some bearing on this case, that might

 influence you in the case.

App. at 272-73. Throughout most of the deliberations, the

jury was sequestered during lunch breaks and supervised

by a court officer during recess.

On May 24, 1982, Barry was found guilty on seventeen

of the twenty-one counts. He was sentenced to concurrent

three-year probationary terms on each of the seventeen

counts, contingent upon his completion of a 180-day jail

term, and fined, in the aggregate, $85,425. He appealed his

conviction, requesting that he be represented on appeal by

a court-appointed attorney. The state court rejected this

request and subsequently dismissed his appeal for lack of

prosecution. His petition for certification to the New Jersey

Supreme Court was denied.

Barry filed a petition in the district court pursuant to 28

U.S.C. S 2254 for a writ of habeas corpus. He asserted that

he was indigent and entitled to court-appointed counsel to

prosecute his state appeal. The district court dismissed the

petition for failure to exhaust state remedies. We vacated

and remanded. Barry v. Brower, 774 F.2d 1150 (3d Cir.

1985) (table). The district court thereafter granted Barry's

petition, and we affirmed with instructions to the district

court to order that Barry be released from state custody

unless the state court entered an order within thirty days

reinstating his state appeal and appointing counsel. See

Barry v. Brower, 864 F.2d 294 (3d Cir. 1988).
Subsequently, the Superior Court of New Jersey,

Appellate Division, affirmed Barry's conviction. In the

 10

portion of the opinion that addressed the issue we face in

this appeal, the court wrote:

 When a trial court is presented with a post-

 impanelment voir dire motion based upon the potential

 jury exposure to trial publicity, the court must employ

 a two-part inquiry. First, the court should determine if

 the disseminated information has the capacity to

 prejudice the defendant. If so, the court should then

 determine whether there is a realistic possibility that

 such information may have reached one or more of the

 jurors. "Relevant considerations include the extent,

 notoriety, and prominence of the media coverage, with

 particular reference to the aspects found particularly

 prejudicial by the Court."

 "The procedure of questioning an impaneled jury

 when prejudicial publicity threatens the fairness and

 integrity of a defendant's trial should not be invoked

 begrudgingly." Similarly, however, the existence of

 some publicity relating to the defendant or the

 proceedings will not automatically require that the

 judge hold a voir dire.

 In an appropriate case, an alternative to

 sequestration exists in the judge's issuance of "clear

 and definitive" instructions to the jury not to read or

 listen to media reports of the trial, and to decide issues

 only on the evidence presented in court. Where

 cautionary instructions are appropriate and properly

 given, there is a presumption that jurors acted in good

 faith in following those instructions. Even where

 several jurors have been exposed to a media report

 about the case, a mistrial need not be directed if the

 report does not mention any defendants by name and

 the judge instructs the jury that the report had nothing

 to do with the defendants.

 Where juror prejudice is alleged, it is within the

 discretion of the trial judge to determine whether relief

 should be granted. On appeal, we will not reverse a

 discretionary decision of the trial judge unless we are

 satisfied that a manifest denial of justice resulted

 below. Here, we have carefully reviewed all allegations

 11
 of juror prejudice and find them clearly to be without

 merit. We are satisfied that no manifest denial of

 justice has occurred.

 Regarding the articles concerning the case which

 appeared in the Bergen Record and the Hudson

 Dispatch, we note that nothing in the record indicates

 the jurors actually or probably read them or heard

 prejudicial media reports. Under these circumstances,

 we find no prejudice resulting in a manifest denial of

 justice occurred.

State v. Barry, No. A-720-82T4, slip op. at 84-86 (N.J.

Super. Ct. App. Div. Nov. 22, 1991) (per curiam) ("App. Div.

Op.") (quoting State v. Bey, 112 N.J. 45, 86, 89, 548 A.2d

846, 867, 869 (1988)) (citations omitted). The New Jersey

Supreme Court denied a petition for certification.

Following the state court affirmance of his conviction,

Barry was ordered to pay the fine. When he failed to do so,

a motion seeking to hold him in contempt was filed by the

Bergen County Probation Department. Concluding that

Barry was unable to pay the fine, the state court entered an

amended Judgment of Conviction, which ordered Barry, in

lieu of paying the fine, to perform 500 hours of community

service. Barry's probation supervision ended on or about

February 1, 1993.

This petition for a writ of habeas corpus pursuant to

S 2254 was filed in the district court on July 12, 1994,

when Barry was still obligated to complete his community

service under the direction of the Morris County Probation

Department. The petition named as respondents the Bergen

County Probation Department and Peter Verniero, the

Attorney General of New Jersey. His petition raises several

issues, including whether the trial judge violated his Sixth

Amendment rights by refusing to voir dire the jury during

its deliberations concerning possible prejudice arising from

media coverage of the case.

The district court granted the petition, ordering that he

be released from community service. It also held that his

community service obligation constituted custody for

habeas corpus purposes. In addition, the district court held

that the media coverage during jury deliberations could

 12

have potentially prejudiced one or more jurors and,

therefore, the trial court's failure to voir dire the jury was
an error of constitutional magnitude. The district court

determined that the remaining claims had no merit. This

appeal followed.

The State raises three issues in this appeal. First, was

Barry "in custody" pursuant to 28 U.S.C. S 2254(a)?

Second, did the trial court's failure to voir dire or sequester

the jury after becoming aware of the media attention the

case received violate Barry's Sixth Amendment right to have

his case tried by an impartial jury? Finally, did the district

court err by failing to give the State the opportunity to retry

Barry? We raise sua sponte the issue of whether, assuming

Barry is "in custody," either of the respondents is his

"custodian" for purposes of S 2254(a).

II.

Our appellate jurisdiction is pursuant to 28 U.S.C.

SS 1291 and 2253. The district court determined it

unnecessary to engage in any fact finding. Accordingly, we

exercise plenary review over the district court's grant of

habeas corpus. United States v. Cleary, 46 F.3d 307, 3019-

10 (3d Cir. 1995); Lesko v. Owens, 881 F.2d 44, 50 (3d Cir.

1989). This standard is derived from the purpose of a

reviewing court in a habeas proceeding, which is to review

state cases " `for violations of federal constitutional

standards.' " Lesko, 881 F.2d at 50 (quoting Milton v.

Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178

(1972)).

III. 

A. Custody

The first issue in this appeal is whether Barry was "in

custody" for purposes of S 2254(a) when he was

resentenced in 1993 to 500 hours of community service.

Section 2254(a) provides that federal courts have

jurisdiction to entertain an application for habeas relief

only if a petitioner is "in custody" in violation of the laws,

treaties, or Constitution of the United States. This

 13

requirement "is designed to preserve the writ of habeas

corpus as a remedy for severe restraints on individual

liberty." Hensley v. Municipal Court, 411 U.S. 345, 351, 93

S. Ct. 1571, 1574 (1973). In making a custody

determination, a court looks to the date that the habeas

petition was filed. See Carafas v. LaVallee, 391 U.S. 234,

238-40, 88 S. Ct. 1556, 1559-61 (1968).
Barry argued, and the district court agreed, that

S 2254(a)'s custody requirement was satisfied because

Barry was subject both to " `significant restraints on [his]

liberty' . . . which were `not shared by the public

generally,' " Dist. Ct. Op. at 6 (quoting Jones v.

Cunningham, 371 U.S. 236, 240, 242, 83 S. Ct. 373, 376,

377 (1963)), and " `some type of continuing governmental

supervision.' " Id. (quoting Tinder v. Paula, 725 F.2d 801,

803 (1st Cir. 1984) (citing Spring v. Caldwell, 692 F.2d 994,

997-98 (5th Cir. 1982))). The State contends that the

district court's conclusion is erroneous for two reasons.

First, Barry's community service was imposed in lieu of his

$85,000 fine, and his failure to complete community service

would have resulted, at most, in the reimposition of the fine

(or the proportional remainder thereof), rather than

incarceration. Therefore, the State argues, Barry's case is

indistinguishable from cases holding that the mere

imposition of a fine is insufficient to constitute custody.

Second, the State maintains that Barry was not subjected

to the type of continuing governmental supervision usually

associated with custody. In particular, the State points out

that Barry took almost three years to complete his service,

and that he had the ability to choose both the type of

assignments as well as a specific schedule for completing

these assignments. We conclude that the state has read

S 2254(a)'s custody requirement too narrowly.

While early Supreme Court decisions held that

incarceration was required before a defendant was "in

custody" for habeas corpus purposes, see Hensley, 411

U.S. at 350 n.8, 93 S. Ct. at 1574 n.8, the Hensley Court

noted that these decisions have not been cited by more

recent Supreme Court decisions and "may no longer be

deemed controlling." Id. Instead, the meaning of "custody"

has been broadened so that, in the S 2254(a) context, it is

 14

no longer limited to physical custody. See Justices of the

Boston Mun. Ct. v. Lydon, 466 U.S. 294, 301, 104 S. Ct.

1805, 1810 (1984) (pretrial release on personal

recognizance constitutes custody); Hensley, 411 U.S. at

349-51, 93 S. Ct. at 1573-75 (release on personal

recognizance pending execution of sentence constitutes

custody); Jones, 371 U.S. at 240-43, 83 S. Ct. at 375-77

(parole tantamount to custody); see also Barry, 864 F.2d at

296 (probation constitutes custody for habeas corpus

purposes).

Despite this "subtle shift[ ]" in the custody requirement,

see Lefkowitz v. Fair, 816 F.2d 17, 19 (1st Cir. 1987),

courts continue to recognize that this custody requirement
is designed "to limit the availability of habeas review `to

cases of special urgency, leaving more conventional

remedies for cases in which the restraints on liberty are

neither severe nor immediate.' " Poodry v. Tonawanda Band

of Seneca Indians, 85 F.3d 874, 894 (2d Cir.) (quoting

Hensley, 411 U.S. at 351, 93 S. Ct. at 1575), cert. denied,

___ U.S. ___, 117 S. Ct. 610 (1996). Accordingly, several

courts have held that the imposition of a fine or restitution

does not constitute "custody." See, e.g. , Barnickel v. United

States, 113 F.3d 704, 706 (7th Cir. 1997); United States v.

Michaud, 901 F.2d 5, 7 (1st Cir. 1990) (per curiam);

Dremann v. Francis, 828 F.2d 6, 7 (9th Cir. 1987) (per

curiam). Likewise, several courts have held that the

imposition of certain civil disabilities does not constitute

"custody." See, e.g., Lefkowitz, , 816 F.2d at 20 (revocation

of medical license is not custody); Lillios v. New Hampshire,

788 F.2d 60, 61 (1st Cir. 1986) (per curiam) (fine and

suspension of driver's license is not custody); Ginsberg v.

Abrams, 702 F.2d 48, 49 (2d Cir. 1983) (per curiam)

(petitioner's removal from the bench, revocation of his

license to practice law, and disqualification as a real estate

broker and insurance agent is not custody).

No court has so far determined whether community

service constitutes custody for purposes of S 2254(a).

However, the Court of Appeals for the Ninth Circuit recently

found custody where a petitioner was sentenced to fourteen

hours of attendance at an alcohol rehabilitation program

after being convicted of driving while intoxicated. See Dow

 15

v. Circuit Court of the First Circuit, 995 F.2d 922 (9th Cir.

1993) (per curiam). The court made this determination even

though the petitioner could schedule his service over a

three-day or five-day period. Concluding that this was

sufficient to constitute custody, the Ninth Circuit wrote:

 The sentence in this case, requiring appellant's

 physical presence at a particular place, significantly

 restrains appellant's liberty to do those things which

 free persons in the United States are entitled to do and

 therefore must be characterized, for jurisdictional

 purposes, as "custody." Appellant "cannot come and go

 as he pleases." Hensley, 411 U.S. at 351, 93 S. Ct. at

 1575. Moreover, appellant suffers a greater restraint

 upon his liberty--mandatory class attendance--than

 the restraint suffered by a person who is released upon

 his own recognizance. See id. at 351-53, 93 S. Ct. at

 1574-76.

Id. at 923 (emphasis added).
We find the Dow decision quite compelling and analogous

to this matter. Like the petitioner in Dow, the State did not

monitor or restrict Barry's every act. Moreover, both

petitioners were afforded a certain amount of flexibility to

schedule when they would complete their respective

obligations. Nevertheless, as the Ninth Circuit recognized,

an individual who is required to be in a certain place--or in

one of several places--to attend meetings or to perform

services, is clearly subject to restraints on his liberty not

shared by the public generally.

Moreover, the State's reliance on the so-called "fine-only"

cases does not alter this analysis. The instant case is

readily distinguishable from cases in which courts have

held that a fine-only sentence does not constitute custody,

because such sentences implicate only property, not liberty.

See Hanson v. Circuit Court of the First Judicial Circuit of

Ill., 591 F.2d 404, 407 n.6 (7th Cir. 1979); see also

Lefkowitz, 816 F.2d at 20 ("Habeas jurisprudence has

traditionally been concerned with liberty rather than

property, with freedom more than economics."); Ginsberg,

702 F.2d at 49 (limitations on economic mobility do not

constitute custody). It is also distinguishable from those

 16

cases where the petitioner was barred only from pursuing

certain means of livelihood, see Lefkowitz, 816 F.2d at 20;

Ginsberg, 702 F.2d at 49; Harvey v. South Dakota, 526 F.2d

840, 841 (8th Cir. 1975) (per curiam), rather than, as here,

required to perform a certain type of work.

Equally unavailing is the State's contention that Barry

was not "in custody" because he was not supervised on a

continuous basis. As the Second Circuit recently noted in

Poodry, 85 F.3d at 895, an analogous case involving

banishment from an Indian tribe and reservation,

" `[r]estraint' does not require `on-going supervision' or `prior

approval.' " Id. ("While `supervision' (or harassment) by

tribal officials or others acting on their behalf may be

sporadic, that only makes it all the more pernicious. . .

[because] the petitioners have no ability to predict if, when,

or how their sentences will be executed."). But see

Lefkowitz, 816 F.2d at 19 ("[H]e who seeks the succor of

habeas corpus must be subject . . . `at the least, to some

type of continuing governmental supervision.' "(quoting

Tinder, 725 F.2d at 803)). While there is no suggestion that

the Morris County Probation Community Service Program

officials monitored Barry's every move, they nevertheless

performed an oversight function and actually reported back

to Bergen County Probation officials. See Letter from Peter
N. Brill, Bergen County Probation Officer, to Arthur Safir,

Deputy Attorney General, Appellate Division 2 (August 12,

1994), App. at 126 ("Regrettably I have been informed that

Mr. Barry has been less than cooperative with the Morris

County Probation Community Service Program officials, and

if he fails to cooperate, it is our intention to return the

matter to Judge Moses for further disposition."). This level

of supervision was clearly adequate.

Finally, we are unpersuaded by the State's argument that

Barry was not "in custody" because he did not face

imminent incarceration. Custody is established whenever a

restraint on liberty is either actual or imminent. See

Hensley, 411 U.S. at 351, 93 S. Ct. at 1575; see also

Poodry, 85 F.3d at 894 ("[A] court [must] judge the `severity'

of an actual or potential restraint on liberty." (emphasis

added)). Courts have inquired into the imminence and

inevitability of incarceration in the fine-only cases only

 17

because the fine itself represented no severe restraint on

liberty. For example, the courts in Poodry and Dow, where

the restraints were found to be sufficiently severe, did not

even discuss this factor. But see Lefkowitz, 816 F.2d at 20

("He who seeks the writ must be incarcerated, or under

immediate threat of incarceration, in order to meet the

custody requirement of the habeas statute."). Because we

conclude that Barry's community service obligation

imposed an actual, severe restraint on his liberty, we need

not consider an alternative method for establishing custody,

namely, the threat of imminent or inevitable incarceration.

In sum, we hold that Barry's community service

obligation constitutes custody for habeas corpus

jurisdictional purposes. As part of his 1993 resentencing,

Barry was ordered to perform 500 hours of community

service under the direction of the Morris County

Community Service Program. Although Barry was given

approximately three years to complete this service, as well

as options regarding the type and hours of service, there

can be no doubt that these conditions significantly

restrained his liberty "to do those things which in this

country free [people] are entitled to do." Jones, 371 U.S. at

243, 83 S. Ct. at 377. The district court correctly held that

the community service obligation which Barry was required

to complete constituted custody within the meaning of

S 2254(a).

B. The Proper Respondent(s)

At the time he filed his petition, Barry was under the
supervision of the Morris County Community Services

Program. However, he named as respondents only the

Attorney General and the Bergen County Probation

Department. Because of this discrepancy, we raised sua

sponte whether Barry named the correct respondent(s) and

requested the parties to submit letter briefs on the issue.

See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S.

484, 494-95, 93 S. Ct. 1123, 1129 (1973) ("The writ of

habeas corpus does not act upon the prisoner who seeks

relief, but upon the person who holds him in what is

alleged to be unlawful custody.").

In response to our request, both parties agree that the

state court order of January 13, 1993 transferred Barry's

 18

community service obligation to the Morris County

Probation Community Service Program, and that Barry did

not file his habeas petition until June 12, 1994. However,

they disagree as to the implication of these dates.

Barry contends that the Bergen County Probation

Department, one of the named respondents, did not

relinquish custody of either the case or of Barry himself as

a result of the January 13 order. The order clearly states,

"If this Sentence is not completed, the Fine shall be

reinstated." App. at 123. Accordingly, Barry argues, they

retained oversight and custody. He also points to the letter

dated August 12, 1994 from the Chief Probation Officer of

Bergen County to the Deputy Attorney General, which

states that Bergen County Probation will "return the matter

to Judge Moses for further disposition" if Barry fails to

cooperate with the Morris County Community Service

Program. App. at 125-26. Finally, Barry argues that as the

Attorney General of New Jersey was listed as a respondent,

and as he is the highest ranking law enforcement officer in

New Jersey with overall supervisory authority and

responsibility, he is clearly the custodian of Barry.

The Attorney General's office asserts, by contrast, that

Barry failed to name as a proper party-respondent either

the particular probation officer responsible for his

supervision or the official in charge of the probation agency.

They also point to a letter attached to their response to this

court's questions which explains that Barry was supposed

to meet with a probation officer in Morris County, and once

he had completed his community service obligation, the

case would be closed. The Attorney General's office also

argues that the Attorney General is not the proper

respondent.
We are not persuaded by the State's arguments. The

Advisory Committee Note to Rule 2 of the Rules Governing

Section 2254 Cases in the United States District Courts

("Rules Governing Section 2254 Cases") provides that where

 [t]he applicant is in custody in any other manner

 differing from [jail, prison, or other actual physical

 restraint, or probation or parole] due to the effects of

 the state action he seeks relief from[, t]he named

 19

 respondent should be the attorney general of the state

 wherein such action was taken.

Advisory Committee Note to Rule 2(b), Rules Governing

Section 2254 Cases, 28 U.S.C. foll. S 2254 (1994). This text

appears in the advisory committee note to Rule 2(b),

governing cases where "the applicant is not presently in

custody . . . but may be subject to such custody in the

future[.]" Rule 2(b), Rules Governing Section 2254 Cases,

28 U.S.C. foll. S 2254 (1994). Nevertheless, the text of the

Advisory Committee Note is written in broad language and

is preceded by the explanation that it is "worthwhile to spell

out the various situations which might arise and who

should be named as respondent(s) for each situation."

Advisory Committee Note to Rule 2(b), Rules Governing

Section 2254 Cases; cf. Reimnitz v. State's Attorney of Cook

County, 761 F.2d 405, 409 (7th Cir. 1985) ("The important

thing is not the quest for a mythical custodian, but that the

petitioner name as respondent someone (or some

institution) who has both an interest in opposing the

petition if it lacks merit, and the power to give the

petitioner what he seeks if the petition has merit--namely,

his unconditional freedom.").

The State cites this note but, without explanation,

asserts that the Attorney General was not Barry's

custodian. Based on the plain language of the advisory

committee note, the argument of the State must fail. We

conclude that the Attorney General is properly named as a

respondent in this matter. Moreover, because Bergen

County authorities retained jurisdiction over Barry, they too

were properly named as a respondent here.

IV.

Having determined that the district court did, in fact,

have subject matter jurisdiction to consider Barry's

petition, and that the proper respondents have been

named, we now consider whether Barry's constitutional

right to an impartial jury was violated. The district court
found that Barry's Sixth Amendment right to a fair trial was

violated when the trial judge refused to voir dire the jury,

which may have been exposed to prejudicial media

 20

coverage. The State contends this conclusion is erroneous

for several reasons: (1) the district court's determination

that the media coverage had the potential to prejudice the

jury was ill-founded; (2) even assuming the media coverage

could potentially prejudice the jury, the district court erred

by failing to accord appropriate deference to the state court

finding that "nothing in the record indicates the jurors

actually or probably read them or heard prejudicial media

reports[,]" App. Div. Op. at 85; and (3) even assuming the

jurors were exposed to potentially prejudicial media

coverage, the district court erred by not requiring the

habeas petitioner to demonstrate a higher level of prejudice

than a defendant must show on direct review. Because we

conclude that the media coverage did not have the potential

to prejudice the jury, we need not reach the State's

alternative arguments.

The Due Process Clause of the Fourteenth Amendment

guarantees state criminal defendants the right to a trial by

an impartial finder of fact. See Morgan v. Illinois, 504 U.S.

719, 726, 112 S. Ct. 2222, 2228 (1992); Irvin v. Dowd, 366

U.S. 717, 721-22, 81 S. Ct. 1639, 1641-42 (1961). 1 In both

civil and criminal cases on direct appeal, we

 utilize a three step procedure to determine whether

 publicity during the course of the trial has prejudiced

 the jury. "First, a court determines whether the news

 coverage is prejudicial. Second, if it is, the court

 determines whether any jurors were exposed to the

 coverage. Third, if exposure did occur, the court

 examines the exposed jurors to determine if this

 exposure compromised their impartiality."

_________________________________________________________________

1. The district court and both parties identify this right as stemming

from the Sixth Amendment. This is not strictly correct. The Sixth

Amendment, made applicable to the states via the Fourteenth

Amendment, requires that serious criminal offenses be tried by a jury.

See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447

(1968). The Due Process Clause requires that a factfinder at a criminal

trial, be it a judge or a jury, be impartial. See Morgan, 504 U.S. at 727,

112 S. Ct. at 2229 ("[D]ue process alone has long demanded that, if a

jury is to be provided the defendant, regardless of whether the Sixth

Amendment requires it, the jury must stand impartial and indifferent to

the extent commanded by the Sixth Amendment.").
 21

United States v. DiSalvo, 34 F.3d 1204, 1221-22 (3d Cir.

1994) (quoting Waldorf v. Shuta, 3 F.3d 705, 709-10 (3d

Cir. 1993)); see also Government of the Virgin Islands v.

Weatherwax, 20 F.3d 572, 574-78 (3d Cir. 1994) (utilizing

this framework).

To determine whether publicity during the course of a

trial has prejudiced a jury, we must first consider whether

the news coverage is prejudicial. See DiSalvo, 34 F.3d at

1221 (quoting Waldorf, 3 F.3d at 709-10). We make the

prejudice " `determination on the basis of an objective

analysis by considering the probable effect of the allegedly

prejudicial information on a hypothetical average juror.' "

Waldorf, 3 F.3d at 710 (quoting United States v. Gilsenan,

949 F.2d 90, 95 (3d Cir. 1991)). "The likelihood of

substantial prejudice turns on all of the surrounding

circumstances, the most important being the nature of the

information learned by the jurors and the manner in which

it was conveyed." Government of the Virgin Islands v.

Dowling, 814 F.2d 134, 138 (3d Cir. 1987). The party

claiming prejudice has "the burden of demonstrating the

likelihood of actual prejudice." Waldorf, 3 F.3d at 710.

In two recent cases, we have held certain news

broadcasts and publications to be non-prejudicial. In

DiSalvo, 34 F.3d at 1222, the defendant claimed he had

been prejudiced by news articles that "mentioned that he

had twice been acquitted by federal juries, characterized

him as a `mob lawyer,' [and] made reference to a prior

charge of tax evasion levied against him." We concluded

that the district court was correct in finding that "none of

the publications" at issue "ma[de] reference to the fact that

[the defendant] had committed a crime, had been convicted

of a crime or had acknowledged that he was guilty of any

conduct charged in the indictment." Id. We also noted that

"while the `mob lawyer' characterization was not necessarily

flattering to [the defendant], use of this term is not

sufficiently prejudicial to constitute a violation of [his] Sixth

Amendment rights." Id.

In Gilsenan, 949 F.2d at 92, the appellants contended

that they had been prejudiced by a news article and a

television broadcast concerning a plea agreement ultimately

rejected by the district court. The news reports stated that

 22

the government conceded it had a weak case and that the
appellants maintained their innocence. The reports

criticized the government for attempting to dispose quietly

of a controversial case in which it had little confidence and

noted that the district court rejected the agreement because

it did not provide for incarceration of the appellants. We

held that these reports were not prejudicial from an

objective viewpoint because they cast the government but

not the appellants in a bad light. See also United States v.

DeLarosa, 450 F.2d 1057, 1062 (3d Cir. 1971) (no potential

for prejudice from news story concerning shots fired into

home of government's chief witness where perpetrator was

unknown).

Some of our decisions would appear to be in tension with

the above holdings. In Weatherwax, 20 F.3d at 574, we

found prejudice. The article at issue seriously misquoted

the defendant's testimony to make it appear as if he had

cocked the gun and taken aim before he shot the victim.

The inaccuracies severely undercut the defendant's selfdefense theory. See also DiSalvo, 34 F.3d at 1222 n.16

(distinguishing Weatherwax).

In Waldorf, 3 F.3d at 711, which concerned a trial over

damages resulting from an automobile accident that

rendered the plaintiff a quadriplegic, we found prejudicial a

news story concerning a $30 million verdict rendered for a

plaintiff in another case who was rendered a quadriplegic

after a shooting. We deemed it highly relevant that the

media reports "placed before the jury the very same type of

information the district court had excluded as

inadmissible." Id. at 707. See also United States v. Bertoli,

40 F.3d 1384, 1395 (3d Cir. 1994) (in Waldorf, "the

circumstances posed a serious risk that an extraneous and

inadmissible newspaper article may have vitiated

procedural rulings based on fairness to both sides"). We

also noted that the article involved a "factually similar . . .

case," even though it was "completely unrelated," Waldorf,

3 F.3d at 712 n.7, and that the jury was exposed to it the

night before and the day of its verdict.

In Dowling, 814 F.2d at 135-36, a newspaper article

published during trial revealed that the defendant had

previously been convicted of bank robbery, the same crime

 23

with which he was charged in that case. We concluded that

information concerning the defendant's prior criminal

conduct had the potential for prejudice.

Finally, in United States ex rel. Greene v. New Jersey,

519 F.2d 1356, 1357 (3d Cir. 1975) (per curiam), we held
that information concerning the defendant's attempt to

enter a plea of non vult was prejudicial. The Gilsenan court

distinguished Greene based on the fact that the defendant

in Greene, rather than the state, had initiated plea

negotiations, and that he had been willing to expose himself

to a life sentence by pleading guilty. See Gilsenan, 949 F.2d

at 96-97 n.11.

Based on the foregoing, we conclude that all of the

publications and broadcasts at issue are non-prejudicial.

We observe that the headline of the May 15 article in the

Hudson Dispatch, using the derogatory term "pill pushing,"

and the headline of the May 20 article in the Bergen Record

calling a witness a "drug user," are certainly no more

prejudicial than the use of the term "mob lawyer" in

DiSalvo, 34 F.3d at 1222. Indeed, the terms "pill pushing"

and "drug user" do not directly refer to Barry and are less

prejudicial than "mob lawyer," which we held to be "not

sufficiently prejudicial to constitute a violation of [the

defendant's] Sixth Amendment rights." Id. Likewise, we are

unable to find that Barry was prejudiced by the May 20

article simply because it reported that the trial court denied

a motion for a mistrial. Cf. Gilsenan, 949 F.2d at 95 (no

prejudice by reports that district court rejected proposed

plea agreement).

We also conclude that the Bergen Record article of May

16, which mentioned Barry by name and incorrectly

reported that he had ties to a second stress relief center

that was under investigation, is not prejudicial under the

reasoning of DiSalvo. In DiSalvo, the court held that the

media reports at issue were not prejudicial because they

did not state that the defendant committed a crime, was

convicted of a crime, or acknowledged guilt of any conduct

charged in the indictment. Here, there were allegations only

that Barry had ties to another clinic that was under

investigation, a far cry from stating that he was actually

guilty of or had been convicted of another crime. Further,

 24

the fact that the report was inaccurate adds little. Even

assuming the reports had been accurate, they were not

prejudicial under DiSalvo.

Finally, we conclude that the May 14 WINS radio

broadcast of Senator Hawkins's testimony, and the Bergen

Record article of the same date recounting Senator

Hawkins's testimony, were not prejudicial so as to deny

Barry his Fourteenth Amendment right to an impartial jury.

While the Senator's testimony concerned a factually similar

yet completely unrelated case, the similarity with our
decision in Waldorf ends there. As we observed in Bertoli,

the Waldorf court accorded significant weight to the fact

that the jury was exposed to " `the very same type of

information the district court had excluded as

inadmissible.' " Bertoli, 40 F.3d at 1395 (quoting Waldorf, 3

F.3d at 707). This exposure "may have vitiated procedural

rulings based on fairness to both sides." Id. It is also

important to note that the Waldorf court found it

"significant" . . . that "the jury was exposed to the Queens

verdict both the night before and the very same day that it

reached a verdict on Waldorf 's damage claim." Waldorf, 3

F.3d at 713. Here, no such concerns are present. There is

no suggestion that media coverage of the Senator's

testimony vitiated any of the trial court's procedural

rulings. Moreover, the verdict was rendered ten days after

the reports were broadcast. Waldorf does not assist the

petitioner.

We hold that the district court erred as a matter of law

by concluding that the media coverage at issue had the

potential to prejudice one or more jurors. Because the

media coverage was not prejudicial, we need not consider

the second and third parts of the three-part procedure set

forth in DiSalvo. Nor do we consider whether the district

court erred by failing to provide the State with an

opportunity to retry the petitioner.

V.

The judgment of the district court will be reversed. The

matter will be remanded to the district court with a

direction to dismiss the petition.

 25

STAPLETON, J., Circuit Judge, Dissenting:

On January 13, 1993, Barry pled guilty to violating his

probation by failing to pay an $85,000 fine. The court then

entered an order providing as follows:

 The defendant shall serve five hundred (500) hours of

 Community Service: upon completion of this sentence

 the $85,000.00 Fine previously imposed shall be

 forgiven. If this Sentence is not completed, the Fine

 shall be reinstated.

App. at 123. Barry's term of probation ended one month

later on February 1, 1993.

Barry filed his petition initiating this proceeding on July

12, 1994. As of that date, he had not completed his 500
hours of community service. On August 24, 1994, the

Vicinage Chief Probation Officer responded to an inquiry

from the New Jersey Attorney General's Office as follows:

 If I understand your inquiry correctly, you are

 interested in being advised as to whether or not Mr.

 Barry is currently under Probation supervision. He is

 not, but he is still obligated to perform the fullfive

 hundred hours of community service.

App. at 126.

The foregoing is the sum total of the record information

concerning Barry's status at the time he filed his petition.

On this record, I would hold that he has not carried his

burden of establishing the jurisdiction of the district court

to entertain his petition. See Charles Allen Wright, et al.,

Federal Practice and Procedure, S 3522 at 63-65 (2d ed.

1984).

Section 2254(a) of Title 28 of the United States Code

provides:

 The Supreme Court, a Justice thereof, a circuit

 judge, or a district court shall entertain an application

 for a writ of habeas corpus in behalf of a person in

 custody pursuant to the judgment of a State court only

 on the ground that he is in custody in violation of the

 Constitution or laws or treaties of the United States.

 26

(emphasis added).

It is well settled that a person whose only obligation is to

pay a criminal fine is not "in custody" for purposes of

S 2254. See, e.g., United States v. Watroba, 56 F.3d 28, 29

(6th Cir. 1995); United States v. Segler, 37 F.3d 1131, 1137

(5th Cir. 1994); United States v. Michand, 901 F.2d 5 (1st

Cir. 1990). This is true because such a person's liberty is

not currently restrained, even though there is the potential

that he may be incarcerated in the future if thefine is not

paid. The potential for future incarceration is insufficient

to confer jurisdiction because the person can avoid

incarceration by meeting his obligation and thus holds the

"keys to the prison" in his pocket. See Dremann v. Francis,

828 F.2d 6, 7 (9th Cir. 1987); Tinder v. Paula, 725 F.2d

801, 804 (1st Cir. 1984).

This record does not suggest that Barry's liberty was

restrained when he filed his petition. Unlike a person on

probation, he was apparently free to come and go as he
wished. He was not obligated to secure the consent of a

probation officer when he decided where or how he would

live or what his activities would be on any given day. He

had no unfulfilled sentence hanging over his head that he

might be required to serve at any point. He was simply

required to donate 500 hours of community service of an

unspecified nature on an unspecified schedule.1 If he

should fail to meet this obligation within a reasonable

period of time, his fine would be reinstated pursuant to the

court's order. In the meantime, he held the keys to the

prison in his pocket.

I realize that the Supreme Court of the United States in

recent decades has expanded the concept of "custody" for

purposes of S 2254 beyond physical incarceration. It has

never, however, held anyone to be in "custody" who enjoyed

the freedom that Barry enjoyed at the time he filed his

petition. In my view, he was in a position not materially

different from a person whose only obligation to the state is

the payment of a fine, and I would follow the well-

_________________________________________________________________

1. The government represents that Barry was free to choose the service

he would undertake and the hours of his performance. Appellant's Brief

at 24. Barry does not contest this representation.

 27

established precedent holding that such a person is not "in

custody."

A True Copy:

Teste:

 Clerk of the United States Court of Appeals

 for the Third Circuit

 28