Jones v. Gasch

• Decision Date: 08 December 1967
• Docket Number: No. 20951.,20951.
• Citation: 404 F.2d 1231,131 US App. DC 254
• Parties: Clifford JONES, Petitioner, v. Honorable Oliver GASCH, Judge of the United States District Court for the District of Columbia, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

131 US App. DC 254, 404 F.2d 1231 (1967)

Clifford JONES, Petitioner, v. Honorable Oliver GASCH, Judge of the United States District Court for the District of Columbia, Respondent.

No. 20951.

United States Court of Appeals District of Columbia Circuit.

Argued May 24, 1967.

Decided December 8, 1967.

Petition for Rehearing Denied January 31, 1968.

Certiorari Denied April 22, 1968.

COPYRIGHT MATERIAL OMITTED

Mr. Edward P. Morgan, Washington, D. C. with whom Mr. Gerald S. Rourke, Washington, D. C., was on the pleadings, for the petitioner.

Mr. William O. Bittman, of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, for respondent. Asst. Atty. Gen., Fred M. Vinson, Jr. and Mr. Frank Q. Nebeker, Asst. U. S. Atty. entered appearances for respondent. Miss Beatrice Rosenberg and Mr. Paul C. Summit, Attorneys, Department of Justice, were on the pleadings for respondent.

Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges.

Petition for Rehearing En Banc Denied January 31, 1968.

Certiorari Denied April 22, 1968. See 88 S.Ct. 1414.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

On March 17, 1965, petitioner testified before a grand jury in the District of Columbia investigating the affairs of Robert G. Baker. In separate indictments returned on January 5, 1966, Baker was charged with several offenses, and petitioner was accused in three counts of perjury allegedly committed in the course of his grand jury testimony.¹ On March 28, 1966, petitioner, invoking amended Rule 21(b) of the Federal Rules of Criminal Procedure² anticipatorily, moved for a transfer of his case to the District of Nevada,³ wherein he resides,⁴ or to some nearby district and, failing that, for a continuance to a date subsequent to Baker's trial. District (now Chief) Judge Curran denied the motion for transfer, without prejudice, for prematurity, and granted the continuance requested.

The Baker trial ended in a conviction on January 29, 1967, from which an appeal is pending. District Judge Gasch, the respondent here, on February 17, 1967, reheard and on April 11, 1967, denied the motion for transfer, elucidating his reasons in an unpublished opinion. Petitioner now seeks a writ of mandamus, asserting that Judge Gasch ignored a likelihood that prejudicial publicity may adversely affect a trial in the District of Columbia, and that his evaluation of the convenience of the parties and the witnesses, a dominant factor under amended Rule 21(b), was "arbitrary and unfair." The order petitioner desires would either change the venue for trial or direct reconsideration of the motion in the light of criteria responsive to that rule.⁵ We find these contentions unacceptable, and deny the petition.

I

Since our call to test the action on the motion by Rule 21(b) comes so close to its revision, we must apply its present provisions without the benefit of a background of prior judicial interpretation which more usually than not is available. We find, however, that our task is eased when the language of the new rule is consulted in the light of its evolution from the old. Thus our treatment of the issues confronting us has its beginning in history.

The Constitution ordains the trial of offenses against the United States in the state and district of alleged commission.⁶ Surely in general operation "the provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place."⁷ Yet, scarcely a generation ago, the geographical coincidence of the offense and the prosecution left a great deal to be desired in particular instances. Although the Fifth Amendment secures the right to a fair trial,⁸ and the Sixth the right to an impartial jury,⁹ no method of removing the case was then available, even where prejudice in the locality of the crime made an unbiased verdict quite impossible.¹⁰ And in consequence of spatial distribution of the elements of the offense, the Government was frequently presented a choice as to place of trial which almost uniformly was denied to the accused.¹¹

The Criminal Rules, which became effective in 1947, implemented the constitutional mandates¹² but introduced a degree of flexibility of which the accused might optionally avail.¹³ Among the innovations were provisions for inter-or intra-district transfer on motion of the accused upon either of two dissimilar occasions. Rule 21(a) required a change of venue when community prejudice forestalled a fair trial locally.¹⁴ Rule 21(b), in its original form, authorized removal when, but only when, an offense was committed in more than one district or division and the trial judge found that "in the interest of justice" the proceedings should be relocated to another district or division where venue could have been laid.¹⁵ The constitutional rationale for these procedures was the accused's waiver, by his motion for the transfer, of his right to trial where the offense allegedly occurred.¹⁶

The objectives these provisions were designed to achieve are evident. Rule 21(a) was intended to rectify a deficiency in the law by affording the accused an opportunity to avoid provincial emotion so intense as to doom the objectivity of the trial.¹⁷ Judicial constructions of the rule in its original form attested both the high standard it set and the defendant's responsibility to meet it.¹⁸ Rule 21(b) shifted from the Government to the court the discretionary exercise by which the choice of venue would finally be determined.¹⁹ It exacted, too, a demonstration that in honoring the request for transfer the ends of justice would truly be served.²⁰

Both sections of Rule 21 were amended in 1966. Through deletion of previous references to divisions,²¹ transfers under Rule 21(a) are now confined to situations where the accused is able to demonstrate inability to obtain a fair and impartial trial anywhere the court might lawfully sit within the district.²² And the changes made in Rule 21(b) were much more substantial.

As previously stated, Rule 21 in its original form authorized a transfer for reasons other than local prejudice only in multi-venue cases, and then only to a district or division in which venue was also proper. Irrespective of the degree of inconvenience incidental to trial where venue was exclusive, it was not possible to remove the case to a place in which no part of the offense was committed.²³ And in situations where a transfer was permitted, there was no assurance that it would run to the most convenient forum.

It was to avoid just such difficulties, and the harsh results sometimes occasioned, that Rule 21(b) was rewritten. The most significant change was the elimination of the multi-venue requirement; another was the restatement of the governing test.²⁴ Retaining "the interest of justice" and adding "the convenience of parties and witnesses," the 1966 amendment likened the standard in criminal cases to its civil counterpart.²⁵ With these criteria met, the court derived a discretion to transfer to any district, whether or not associated with the offense in any way.

But while the amendment makes transfer a possibility in far more cases through elimination of the venue precondition, it did not otherwise create an essentially new yardstick by which requests for removal are to be judged. No major enlargement of authority to transfer flows from the present specification of "the convenience of parties and witnesses," for that was an important factor in ascertaining "the interest of justice" under the original rule.²⁶ And we find nothing in the history or language of the rule to indicate that "the interest of justice," independently of "the convenience of parties and witnesses," embraces more than its pre-amendment components.

II

Addressing petitioner's first contention, we note that, contrarily to the position taken initially,²⁷ he now concedes that the "prejudice" upon which the motion was partly premised is not of a type or degree as would preclude the drawing of an impartial jury for his trial in this jurisdiction. Nor, as his counsel with commendable candor admits, is it an existing bias, or one which will accrue other than vicariously through Baker. It is, rather, an aura which petitioner feels is likely to arise during the course of his trial, through unfavorable publicity he feels will "inevitably attend" it because of its relationship to the Baker case, which may ultimately involve a sequestration of the jury. He insists that a showing insufficient under Rule 21(a), reliance upon which he disavows, commands respect under Rule 21(b), on which his motion for transfer rests.

Petitioner's bid is grounded on the charge that Judge Gasch gave "no consideration whatever" to this factor, a contention which in turn is based simply on the fact that the judge's opinion delineating his ruling does not mention the subject. We cannot accept this argument. Because the briefs and oral arguments presented to the judge in support of and in opposition to the motion were so largely directed to the matter, it would have been difficult indeed for him to have ignored the point. More importantly, to the extent that the situation remains ambiguous, we abide the presumption that the argumentative submissions were suitably weighed.²⁸ And in any event, the claim of prejudice was not eligible for consideration under Rule 21(b).

We have pointed out that Rule 21(a) was promulgated to supply a method by which an accused victimized by strong community feeling might be relieved through a change of trial venue. The formulation of Rule 21(a) includes an explicit standard to be met in order that there may be a transfer on this account.²⁹ Rule 21(b), on the other hand, is devoted to an entirely different group of independently justified considerations which may support removal — those relating to "the convenience of parties and witnesses." Petitioner, however, would splice the two subdivisions by...