United States v. Marcello

• Decision Date: 01 March 1968
• Docket Number: Crim. A. No. 30888.
• Citation: 280 F. Supp. 510
• Parties: UNITED STATES of America v. Carlos MARCELLO.
• Court: U.S. District Court — Eastern District of Louisiana

280 F. Supp. 510

UNITED STATES of America v. Carlos MARCELLO.

Crim. A. No. 30888.

United States District Court E. D. Louisiana, New Orleans Division.

March 1, 1968.

COPYRIGHT MATERIAL OMITTED

Louis C. LaCour, U. S. Atty., New Orleans, La., Owen Neff, Joseph J. Tafe, Attys., U. S. Dept. of Justice, Washington, D. C., for the Government.

Jack Wasserman, Wasserman & Carliner, Washington, D. C., Michel A. Maroun, Shreveport, La., G. Wray Gill, New Orleans, La., for defendant.

HEEBE, District Judge:

We are faced with a very unusual problem in this case. The events leading to this unique situation, though, are quite simple. On June 1, 1967, a one-count indictment, alleging that the defendant, in violation of 18 U.S.C. § 111, forcibly assaulted and intimidated an FBI agent engaged in the performance of his official duties, was filed against the defendant, Carlos Marcello. Defendant pled not guilty at his arraignment on June 14, 1967, and was given thirty days in which to file pleadings. On July 3, 1967, defendant filed a motion for a change of venue along with ten other motions.¹ All eleven motions were originally scheduled for oral argument on August 4, 1967, but were continued to September 13, 1967, in order to accommodate defense counsel. At that time the motion for change of venue was heard first at the Court's suggestion. It was readily apparent to the Court from the memorandum and exhibits submitted in support of the motion for change of venue, from the oral argument thereon, and from the exhibits offered into evidence at the hearing, that extensive prejudicial publicity existed which would deprive the defendant of a fair and impartial trial in this district. Consequently, the motion for a change of venue was granted, and the hearing terminated.

Not more than ten minutes after the conclusion of the hearing, defense counsel entered the Court's chambers and, to the complete surprise of the Court, made an oral ex parte request for the Court to withdraw its order granting the change of venue which had just been entered. It was somewhat astonishing to the Court, to say the least, for the defendant to move for a change of venue, to argue the motion, and after the motion was granted, to urge the Court to withdraw its order granting the defendant's motion. Nevertheless, the Court suggested that the defendant file a written motion requesting the desired action together with a memorandum in support thereof. On September 14, 1967, the defendant filed the present motion entitled "Motion to Reconsider Order Directing Change of Venue" which was followed by a supporting memorandum. This motion came on for hearing on September 22, 1967, and because of the unique problem it posed, was taken under submission after oral argument.

I.

Before turning to a consideration of the motion to reconsider our previous order granting the change of venue, we wish to briefly consider change of venue in general and the factors which prompted us to grant defendant's initial motion. A motion for a change of venue involves the interpretation and application of Federal Rule of Criminal Procedure 21(a), Title 18 U.S.C., which provides for a change of venue upon the motion of defendant "if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district." (emphasis added) This rule is merely a procedural device designed to preserve and protect the accused's constitutional right to a fair and impartial trial. A fair and impartial trial is perhaps most often endangered by prejudicial publicity. Recent Supreme Court decisions make it clear that the courts must be ever sensitive and finely attuned to the prejudice inherent in adverse publicity and must be vigilant in correcting abuses; it is certain that a conviction obtained in an atmosphere contaminated by such publicity will not stand. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed. 2d 600 (1966); Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed. 2d 663 (1963); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). It is because the defendant should not be required to stand trial amidst an atmosphere tainted with prejudice and thus be dependent upon an appeal to secure his rights that Rule 21(a) offers its protection to him. Although not at issue here, there are two aspects of Rule 21(a) which we think merit comment.

The rule adopts the exact phraseology ("fair and impartial trial") which has evolved as the constitutional guarantee provided by the due process clause and by the Sixth Amendment right to trial by an impartial jury. It might thus appear that the invocation of the rule is to be measured by the same standards applicable to the constitutional guarantee; that is, a change of venue under Rule 21(a) might seem to require the same showing which is necessary to reverse a conviction on the ground that the defendant's right to a fair and impartial trial was violated. This, in turn, coupled with the use of the word "cannot," might be construed as meaning that a change of venue could be granted only when it could be said that a conviction, if obtained, must be reversed on appeal. A strict literal interpretation of Rule 21(a) may support such a view. If so, perhaps a substitute in the rule for the word "cannot" could be suggested because the rule, by its very nature, does not require this nor have the courts required it. It is well to note that the restrictive connotations of the word "cannot" are ameliorated in the rule by the use of the word "satisfied." This may well be the statutory basis for the well-settled rule that a motion for a change of venue is directed to the sound discretion of the court. Bearden v. United States, 320 F. 2d 99, 101 (5th Cir. 1963); Greenhill v. United States, 298 F.2d 405, 411 (5th Cir. 1962); Shockley v. United States, 166 F.2d 704, 709 (9th Cir. 1948); Kersten v. United States, 161 F.2d 337 (10th Cir. 1947). Yet it could hardly be suggested that the vital constitutional right to a fair and impartial trial hinges upon the discretion of a trial judge. This should demonstrably illustrate the difference. The rule is preventative. It is anticipatory. It is not solely curative as is a post-conviction constitutional attack. Thus, the rule evokes foresight, always a more precious gift than hindsight, and for this reason the same certainty which warrants the reversal of a conviction will not always accompany the change of venue. Succinctly, then, it is the well-grounded fear that the defendant will not receive a fair and impartial trial which warrants the application of the rule. Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). As the Supreme Court recently stated in Sheppard v. Maxwell, supra, venue should be changed "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial." (emphasis added) 384 U.S. at 363, 86 S.Ct. at 1522. The many cases which we have examined indicate that this is the federal practice. See United States v. Kline, 205 F.Supp. 637, 639-640 (D.Minn.1962), for example, where this practice was explicitly recognized. It is thus clear that the meaning of Rule 21(a) which a very strict literal interpretation of the statute might suggest contravenes both the nature and the obvious intent of the rule. Further, we have found no indication that any court has ever accepted such a thwarted view of the rule. In fact, we have paused to consider this point only because the bare wording of the rule raises the possibility.

Before turning to the facts of this case, there is another facet of change of venue which we think warrants discussion. A casual reading of some of the cases seems to indicate that the determination of whether or not to grant a change of venue is to be made only at the voir dire. Blumenfield v. United States, 284 F.2d 46, 51 (8th Cir. 1960); United States v. Hoffa, 156 F.Supp. 495, 500 (S.D.N.Y.1957); United States v. Malinsky, 20 F.R.D. 300, 303 (S.D.N.Y. 1957); United States v. Dioguardi, 20 F.R.D. 33, 36 (S.D.N.Y.1956); United States v. Eisler, 75 F.Supp. 634, 639 (D.D.C.1947). The voir dire is definitely one possible time at which to make the determination. It is, however, certainly not required that the determination be made at that time. The rule itself provides that the transfer may be made when the court is "satisfied * * *." Thus, by the very terms of the rule, venue may be changed whenever the court is "satisfied," whether this be at some time prior to the voir dire, at the voir dire, or at the trial itself. Indeed, in at least three cases, the motion for change of venue was granted prior to the voir dire. United States v. Rossiter, 25 F.R.D. 258 (D. Puerto Rico 1960); United States v. Parr, 17 F.R.D. 512 (S.D.Tex. 1955); United States v. Florio, 13 F.R.D. 296 (S.D.N.Y.1952). Loose statements found in cases such as those cited above that the determination of whether or not to grant a change of venue is to be made at the voir dire certainly do not establish any rule of law that the voir dire is the only time at which the determination may be made. They only represent the proposition that in many cases the court will not be satisfied until an examination of the jurors upon the voir dire that the requisite prejudice exists which warrants a change of venue.²

Further, the efficacy of depending upon the voir dire to determine whether substantial prejudice exists has recently been seriously questioned. Comment, Fair Trial v. Fair Press: The Psychological Effect of Pre-Trial Publicity on the Juror's Ability to Be Impartial; A Plea for Reform, 38 So.Cal.L.Rev. 672 (1965). Indeed, as the court...