United States v. Partin

• Citation: 320 F. Supp. 275
• Decision Date: 16 December 1970
• Docket Number: Crim. A. No. 1876.
• Parties: UNITED STATES of America v. Edward Grady PARTIN.
• Court: U.S. District Court — Eastern District of Louisiana

320 F. Supp. 275

UNITED STATES of America v. Edward Grady PARTIN.

Crim. A. No. 1876.

United States District Court, E. D. Louisiana, Baton Rouge Division.

December 16, 1970.

COPYRIGHT MATERIAL OMITTED

Gerald J. Gallinghouse, U. S. Atty., E. D. La., James D. Carriere, Asst. U. S. Atty., New Orleans, La., for plaintiff.

Edward M. Baldwin, Louis B. Merhige, New Orleans, La., for defendant.

WEST, Chief Judge.

On February 20, 1970, a federal grand jury sitting in New Orleans, Louisiana indicted Edward Grady Partin, the defendant herein, charging him with a violation of Title 18 U.S.C.A. § 1503. The indictment charges that:

"On or about January 16, 1970, in the Baton Rouge Division of the Eastern District of Louisiana, EDWARD GRADY PARTIN wilfully and corruptly did endeavor to influence, intimidate, and impede Wade McClanahan, a witness in the case of United States of America v. Dunham Concrete Products, Inc.; Louisiana Redi-Mix Company, Inc.; Anderson-Dunham, Inc.; Ted F. Dunham, Jr.; and Edward Grady Partin, Criminal Action No. 1842, then pending in the United States District Court for the Eastern District of Louisiana, Baton Rouge Division, in the discharge of his duty as a witness by threatening him with bodily harm and death; in violation of Title 18 U.S.C. 1503."

At his arraignment before this Court on March 20, 1970, the defendant, accompanied by and acting on the advice of his retained counsel, entered a plea of "not guilty" to this offense. The Court granted him a period of twenty days within which to file pretrial motions or other responsive pleadings. On April 9, 1970, he filed eleven such motions, including a: (1) motion to recuse the trial judge, (2) motion for change of venue, (3) motion to dismiss the indictment on the grounds of prejudicial hostility against defendant through newspaper, television and radio publicity prior to and during the grand jury deliberations, (4) motion to dismiss the indictment based on grand jury array, (5) motion for names of witnesses appearing before the grand jury, (6) motion for a bill of particulars, (7) motion to produce all evidence in the possession of the government favorable to the defendant, (8) motion to suppress evidence illegally obtained by wiretapping, (9) motion to preclude government's use of defendant's prior criminal record, (10) motion to enjoin prejudicial publicity and to call the press to chambers for pretrial conference, and (11) motion to permit defense counsel to personally conduct the voir dire examination of prospective petit jurors.

The first of these motions, that to recuse the trial judge, was noticed for hearing on May 1, 1970, separate and apart from each of the other pending motions. Had the motion to recuse been granted, this Court would have been precluded from taking any further action in connection with this case. Title 28 U.S. C.A. § 144. The motion to recuse was denied however. See, United States v. Partin, 312 F.Supp. 1355 (E.D.La.1970). An interlocutory appeal taken from that decision by the defendant was dismissed without written opinion by the United States Court of Appeals for the Fifth Circuit. 432 F.2d 556 (CA 5—1970). The balance of defendant's pretrial motions then came on for a plenary hearing before this Court on June 22, 1970 at which time, after presentation of evidence and oral argument by counsel for both sides, the case was taken under advisement. We proceed now to rule on each of these motions seriatim.

MOTION FOR CHANGE OF VENUE

Under Rule 18, Federal Rules of Criminal Procedure venue in this case lies properly in the Eastern District of Louisiana, being the place or vicinage in which defendant is alleged to have committed the crime for which he stands indicted. Venue in criminal cases involves far more than mere procedural niceties; it is a matter of constitutional import. The Sixth Amendment provides, in pertinent part, that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law * * *." Cf. Art. III, Sec. 2, U.S.Const. If a judicial district is further divided into divisions, however, it is well-settled that criminal defendants do not have the constitutional right to select which division of the district in which their trial will take place. The Constitution speaks only in terms of "States" and "districts," not "divisions." Instead, the court is empowered to fix the place of trial within the appropriate district with due regard for the convenience of the defendant and the witnesses. Rule 18, F.R.Cr.P.; Lafoon v. United States, 250 F.2d 958, 959 (5th Cir. 1958); 1 Wright, Federal Practice and Procedure (Criminal), §§ 301-307 (1969). Accordingly, this case was assigned for trial in the Baton Rouge Division of the Eastern District of Louisiana.

The motion for a change of venue is brought pursuant to Rule 21(a) of the Federal Rules of Criminal Procedure. That rule provides:

"The court upon motion of the defendant shall transfer the proceeding as to him to another district whether or not such district is specified in the defendant's motion 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."

Defendant, Edward Grady Partin, is the business agent and chief administrative officer for the General Truck Drivers, Warehousemen and Helpers of America, Local Union No. 5, a teamsters union local located in Baton Rouge, Louisiana. Despite the seeming innocuousness of his job title, suffice it here to say only that Mr. Partin is a national labor leader of no small reputation. By virtue of that reputation alone, he is often looked to by the news media of this state as a central figure in any controversy arising out of the myriad ills which have recently plagued labor-management relations in Louisiana. Herein in fact lies the alleged difficulty. Defendant contends that for at least six years preceding his indictment in this case, he has repeatedly and unjustly been made the target of adverse publicity by different news media throughout the State of Louisiana, and particularly in Baton Rouge, the State capital. Having been accorded wide notoriety as an alleged "labor-racketeer," he says, has so prejudiced prospective petit jurors in this state against him that it would be impossible for him to receive a fair trial in this case anywhere in Louisiana. In response the government argues that (1) local prejudice and hostility cannot be presumed but must be established through competent evidence, and (2) if defendant does show as a fact that he cannot obtain a fair trial in the Baton Rouge Division of the Eastern District of Louisiana, then the site of the trial should be moved to the New Orleans Division of the same district. It bears repeating here that defendant is contending that he cannot obtain a fair trial anywhere in Louisiana, not just in Baton Rouge. We agree with the defendant when he says that the long history of labor-management unrest in Louisiana, together with speculation about the possible economic consequences for the State as a whole has been the subject of extensive news media coverage for many years. These items after all are of significant public interest. But whether or not the news media have unjustly attributed responsibility for such unrest to defendant alone, and by so doing precluded him from being able to receive a fair trial anywhere in the State is another question entirely.

The burden rests on the defendant to establish a reasonable likelihood of prejudice should he proceed to trial in this district. United States v. Marcello, 280 F.Supp. 510, 513-514 (E.D. La.1968). The burden is substantial. There appear to be only five reported cases in which a motion for a change of venue under Rule 21(a) has been granted. Wright, Federal Courts, § 44, p. 163, fn. 5 (2d Ed. 1970); Cf. 1 Wright, Federal Practice and Procedure (Criminal), § 342, p. 625, fn. 28 (1969). Defendant relies on an exhaustive collection of newspaper clippings which chronicle in some detail specific incidents of labor-management difficulty, including articles about strikes, job shutdowns, bombings, strong-arm tactics, intimidation and the like. He is often mentioned in these articles in connection with these incidents. Being a matter of public record, this Court also takes judicial notice of the fact that defendant is the subject of pending criminal indictments other than the one currently pending in this case. All of these matters have been widely publicized. Defendant relies primarily, however, on the results of what is an obviously self-serving public opinion poll which, according to him, shows the existence of widespread prejudice against him throughout the State. Conducted at his request from October 4 to October 17, 1969, by a management-consultant firm specializing in public opinion survey, Louis, Bowles and Grace, Inc., the poll allegedly encompassed five hundred registered voters, each chosen at random but all domiciled in the nine parish (county) area comprising the Baton Rouge Division of the Eastern District of Louisiana. Thirty-one interviewers, selected and trained by a subsidiary of Louis, Bowles and Grace, Inc., did the questioning. The questions asked were generally designed to elicit from the individuals questioned, who are said to be a representative sampling of prospective petit jurors, whether or not, because of defendant's wide notoriety as an alleged "labor-racketeer," they were so predisposed toward him that they would automatically vote for his conviction if required to serve on a jury before which he was being tried. The use of such a public opinion poll to support a motion for change of venue is not novel and has the "quali...