United States v. Moorhead

• Decision Date: 10 April 1981
• Docket Number: Criminal No. 81-29,Criminal No. 81-30
• Citation: 18 V.I. 431
• Parties: UNITED STATES OF AMERICA, Plaintiff v. JAMES J. MOORHEAD, Defendant GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. JAMES J. MOORHEAD, Defendant
• Court: U.S. District Court — Virgin Islands

18 V.I. 431

UNITED STATES OF AMERICA, Plaintiff v. JAMES J. MOORHEAD, DefendantGOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff v. JAMES J. MOORHEAD, Defendant

Criminal No. 81-30

Criminal No. 81-29

District Court of the Virgin Islands Div. of St. Thomas and St. John

April 10, 1981

Motion by defendant charged with mail fraud, interstate transportation of fraudulently obtained monies, obtaining money by false pretense and embezzlement by a public official for a change of venue on the grounds of prejudicial pretrial publicity. The District Court, Silverlight, J., held that since defendant did not show that the publicity on which his motion was based was so highly prejudicial that a fair trial was precluded in the district fixed for trial, the motion would be denied.HUGH MABE, ESQ., Assistant United States Attorney (Office of the United States Attorney), St. Thomas, V.I., for plaintiff

LEONARD BERNARD FRANCIS, JR., ESQ., St. Thomas, V.I., for defendant

SILVERLIGHT, Judge, Sitting By Designation

OPINION

Defendant James J. Moorhead has been charged with mail fraud (18 U.S.C. § 1341) and interstate transportation of fraudulently obtained monies (18 U.S.C. § 2314); as well as obtaining money by false pretense (14 V.I.C. § 834(2)) and embezzlement by a public official (14 V.I.C. § 1089). He moves the Court for a change of venue from the District Court Division of St. Thomas and St. John to the District Court Division of St. Croix on these charges. Defendant characterizes this request as pursuant to Rule 21 Fed. R. Crim. P. However, that rule concerns change of venue between districts, where-as the transfer requested by the defendant is one within the district of the Virgin Islands and thus this request technically comes under Rule 18 Fed. R. Crim. P.

[1] Defendant points to several newspaper articles published in the Virgin Islands Daily News in March 1981 concerning Mr. Moorhead's arrest as presenting prejudicial publicity which will not allow Mr. Moorhead to obtain a fair trial in St. Thomas. Defendant argues that there are fewer subscriptions to the Virgin Islands Daily News on the Island of St. Croix, and thus it would be a more appropriate place of venue for this trial.

Rule 18 Fed. R. Crim. P. states:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard for the convenience of the defendant and the witnesses and the prompt administration of justice.

Defendant lives on St. Thomas, and it is likely that many of the witnesses will be from St. Thomas; this Court does not anticipate that any witnesses will be from St. Croix. Insofar as the convenience of defendant and witnesses and the prompt administration of justice, St. Thomas is an appropriate forum. The Notes of the Advisory Committee on Rules to Rule 18 state in part, though:

If the court is satisfied that there exists in the place fixed for trial prejudice against the defendant so great as to render the trial unfair, the court may, of course, fix another place of trial within the district (if there be such) where such prejudice does not exist. Cf. Rule 21 dealing with transfers between districts.

The question before the Court then, is whether there is so great a prejudice against the defendant on the island of St. Thomas that he will be unable to obtain a fair trial there.

The language of the Advisory Committee notes to Rule 18 concerning "prejudice so great as to render the trial unfair" is derived from Rule 21(a) Fed. R. Crim. P. Thus, the standards applicable to transfers between districts under Rule 21(a) are also applicable to Rule 18 transfers for prejudicial publicity.

[2] Under Rule 21(a), the defendant has the burden of placing on the record material which will show a reasonable likelihood of prejudicial publicity precluding a fair trial. United States v. Abrahams, 453 F.Supp. 749, 751 (D. Mass. 1978), 1 C. Wright, FEDERAL PRACTICE AND PROCEDURE: Criminal, § 342, at 621-22 & n.18(1969). Defendant has presented to the Court several newspaper articles on which he bases his motion for change of venue; he also claims that comments on the radio by local legislators have prejudiced his opportunity for a fair trial.

[3] Defendant refers the Court to the four part test in 1 C. Wright, FEDERAL PRACTICE AND PROCEDURE: Criminal § 342 (1969) for determining whether change of venue is necessary because of pretrial publicity. As the first part of this test is not met, the Court need not analyze all parts. The first requirement is that publicity be recent, widespread and highly damaging to defendant. The newspaper articles complained of were recent and widespread: but the Court does not find them highly damaging, and does not find their dissemination precludes a fair trial for defendant Moorhead on St. Thomas.

Three of the articles presented to the Court refer directly to Mr. Moorhead; there are several others which deal generally with the topic of public corruption in the Virgin Islands Government. One article is entitled "Ex-Public Works official faces 9 charges of fraud" and was the headline for the March 3, 1981, edition of the Virgin Islands Daily News. This piece is basically a factual account of the charges, their background, and the arrest of Mr. Moorhead. A second piece, presented to the Court without a date, is entitled "Moorhead: Innocent blunder", and presents the explanations of defendant concerning these charges. The third piece, entitled "Taxpayers financed private work", was the headline for the March 23, 1981, Virgin Islands Daily News. This article concerns interviews with Mr. Harthman, on whose land three water storage tanks were built, allegedly with public money diverted by Mr. Moorhead for private use. The piece makes frequent mention of Moorhead and was prompted by the charges filed against him.

While this publicity, including two front page headlines in the largest daily newspaper in the islands, was surely heavy and likely not pleasurable for the defendant, it is not necessarily prejudicial. The articles did present "both sides", though Mr. Moorhead's position does seem less forcefully presented. Nowhere in the articles is Mr. Moorhead's guilt expressly or impliedly stated, nor are the articles inflammatory. This Court is of the opinion that after reading these articles a person could retain an open mind regarding the guilt or innocence of Mr. Moorhead. It follows from this that these articles have not poisoned the entire community such that a transfer from the district of St. Thomas is necessary.

The cases referred to by the defendant in which courts have granted a Rule 21 change of venue motion on the basis of prejudicial publicity have involved publicity much more damaging, inflammatory, and likely to prejudice the entire community against a defendant than what was written here. In Sheppard v. Maxwell, 384 U.S. 333 (1965) the defendant was on trial for murder, and there were extreme and...