US v. Washington

• Decision Date: 03 February 1993
• Docket Number: No. 2:92-CR-63-01,2:92-CR-63-02 and 2:92-CR-63-05.,2:92-CR-63-01
• Citation: 813 F. Supp. 269
• Court: U.S. District Court — District of Vermont
• Parties: UNITED STATES of America, Plaintiff, v. Jacob WASHINGTON, Robert Hickman and Jerome Washington, Defendants.

813 F. Supp. 269

UNITED STATES of America, Plaintiff, v. Jacob WASHINGTON, Robert Hickman and Jerome Washington, Defendants.

Nos. 2:92-CR-63-01, 2:92-CR-63-02 and 2:92-CR-63-05.

United States District Court, D. Vermont.

February 3, 1993.

John P. Tavana, Gregory L. Waples, Asst. U.S. Attys., Burlington, VT, for plaintiff.

Mark A. Kaplan, Jarvis & Kaplan, Burlington, VT, for defendant Jacob Washington.

Karen Shingler, Burlington, VT, for defendant Robert Hickman.

Bonnie Barnes, Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury, VT, for defendant Jerome Washington.

OPINION AND ORDER

PARKER, Chief Judge.

On August 4, 1992, the defendants and five co-defendants were charged in a 49count indictment with drug and firearms offenses. The drug offenses charged include conspiracy to distribute cocaine, possession of cocaine and distribution of cocaine. Among the firearms offenses charged, the indictment alleges that Jerome Washington used a firearm during a crime of violence, namely, retaliation against potential witnesses. During that incident a young woman was killed and two others seriously wounded. The five co-defendants have pled guilty. The remaining defendants have filed numerous pretrial motions. This Order addresses the motions requesting a change of venue.

I. DEFENDANTS' MOTIONS FOR CHANGE OF VENUE

All three remaining defendants have moved this Court for a change of venue under Rule 21(a) of the Federal Rules of Criminal Procedure. In addition, Robert Hickman has alternatively moved for a transfer of venue under Rule 21(b).

A. Rule 21(a) Motion

Rule 21(a) requires a district court to transfer a criminal proceeding to another district if the court is satisfied that there exists "so great a prejudice against the defendant" in the district where the prosecution is pending "that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district." Fed.R.Crim.P. 21(a). In substance, this rule provides a procedural protection against violations of a defendant's Sixth Amendment rights. "The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975) (citations omitted). The test for a court faced with making a change of venue determination then, is whether it is possible to select a fair and impartial jury. Decisions on such issues are committed to this Court's sound discretion. United States v. Maldonado-Rivera, 922 F.2d 934, 967 (2nd Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2858, 115 L.Ed.2d 1026 (1991).

Defendants contend that there are three factors, each of which has created an impermissibly hostile attitude within the District of Vermont. First, they argue that pretrial publicity has been massive, pervasive and prejudicial. Second they claim that the community is biased against them because they either reside now in New York, or have only recently become residents of Vermont, having moved here from New York. Finally, defendants argue that because Vermont is largely a white community and they are black, racial bias taints the community's attitude about their case. As defendants view it, these impermissible influences within the community have poisoned it and portend an ominous sign to them that no fair and impartial jury could be impanelled. Such influences on community attitude, they argue, require a finding of presumed prejudice. The Government responds that defendants have not carried their burden of establishing the likelihood of prejudice, but that in any event, the Court should only confront such a motion after voir dire.

1. Pretrial Publicity

The memoranda of all the parties on the issue of pre-trial publicity confuses the distinction between the two standards employed by federal courts in determining whether a change of venue is warranted under Rule 21(a). A presumption of prejudice applies when a court finds that the community has been so saturated with inflammatory pre-trial publicity that it pervades the proceedings and overrides notions of fairness in the determination of guilt or innocence. Murphy, 421 U.S. at 798-99, 95 S.Ct. at 2035-36; Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 1419-20, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961). This is the standard defendants request that this Court apply.

Where a presumption of prejudice does not apply, a court should transfer venue in cases where there is a reasonable likelihood that pretrial publicity will be so prejudicial as to prevent a fair trial. Maldonado-Rivera, 922 F.2d at 966-67; Sheppard v. Maxwell, 384 u.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). In its memorandum, the Government did not address the question of whether the application of a presumption of prejudice was warranted in this case; instead, it confined its argument to the second standard, reasonable likelihood of prejudice.

(a) Presumed Prejudice Standard

On the issue of presumed prejudice, it is by now clear that the use of such a presumption is rare, and is reserved for exceptional cases where the influence of the news media negatively pervades the proceedings, either in the community or courtroom. Murphy, 421 U.S. at 798-99, 95 S.Ct. at 2035-36; Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 553-54, 96 S.Ct. 2791, 2800-01, 49 L.Ed.2d 683 (1976); Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). In fact, the Supreme Court has reversed a conviction solely on the basis of presumed prejudice due to pretrial publicity only once, in Rideau v. Louisiana. 373 U.S. at 726-27, 83 S.Ct. at 1419-20. In the Rideau case, the community at large was exposed to a lengthy televised confession which had been taped while the defendant was in custody and without advice of counsel. The confession was aired several times to tens of thousands of people in the community. The Supreme Court held that such broadcasting tainted the community and that any subsequent court proceeding "in a community so pervasively exposed to such a spectacle could be but a hollow formality." Id. at 726, 83 S.Ct. at 1419. The tenets of constitutional due process would not permit a conviction obtained under such circumstances to stand. Id. at 727, 83 S.Ct. at 1420. The Court refused to consider whether in fact there was actual prejudice on the jury, basing its decision instead on a presumption of prejudice from the pre-trial publicity of the confession. Id.

The Supreme Court again considered the issue of presumed prejudice from pretrial publicity in Irvin v. Dowd. 366 U.S. at 723-29, 81 S.Ct. at 1643-46. However, in Irvin, the Court reached its decision to reverse a conviction on a finding of actual prejudice following a review of both the nature of the pretrial publicity and the voir dire examination. Again, a publicized confession had tainted the pretrial atmosphere. The Court found that a "pattern of deep and bitter prejudice shown throughout the community" was "clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box." Id. at 727, 81 S.Ct. at 1645. Noting that eight out of the twelve jurors thought the defendant was guilty prior to hearing any evidence, the Court found actual prejudice and ruled that a finding of impartiality was inconceivable. Id.; see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (massive publicity during and prior to trial coupled with circus type atmosphere at trial created prejudicial circumstances).

More recently, the Eleventh Circuit decided a case solely on the basis of presumed prejudice from pretrial publicity. See Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985). Like the Court in Rideau, the Coleman court, finding a case for presumed prejudice, declined to consider actual prejudice. After an extensive review of the pretrial publicity, which comprised over forty pages of the Court's opinion, the Eleventh Circuit ruled that the totality of circumstances combined to form a picture of a community that was deeply prejudiced as to both guilt and sentence. In that case, an escaped convict was accused of murdering six members of a highly respected family in a tightly knit community. The Court found that the press had "saturated the community with overwhelming evidence of the defendant's guilt." Id. at 1539. Furthermore, a detailed and lengthy eye-witness account of the events surrounding the murders by the brother of the defendant was recounted by the press on so many occasions that it "approached the prejudicial impact of the televised confession in Rideau." Id. at 1539-40. Accordingly, application of the presumed prejudice standard was warranted; any juror's claim that they could be impartial could not be believed. Id. at 1543.

Defendants in this case argue that they are similarly situated to the defendants in the Rideau, Irvin and Coleman cases. I disagree. First and foremost, in all three cases mentioned above, the issue of a highly inflammatory publicized confession, or lengthy and detailed eye-witness account, weighed heavily in the balance. No such confession has been reported here. Furthermore, in the cases involving application of the presumed prejudice standard, press reports have included substantial editorial comment, not simply factual reporting. See e.g., Coleman, 778 F.2d at 1491-1537. In this case however, the record reveals that the press has confined itself to reporting facts without editorial commentary on guilt or innocence.¹ These facts have been gathered either from the public record or from Government press releases which reflect the identity and addresses of the accused persons, and the posture and nature of the case. Quite to the contrary of the defendants' claims, I do not find that these press releases constitute...