US v. Moody

• Decision Date: 09 April 1991
• Docket Number: No. 1-90-Cr. 383.,1-90-Cr. 383.
• Citation: 762 F. Supp. 1485
• Parties: UNITED STATES of America, Plaintiff, v. Walter Leroy MOODY, Jr., Defendant.
• Court: U.S. District Court — Northern District of Georgia

762 F. Supp. 1485

UNITED STATES of America, Plaintiff, v. Walter Leroy MOODY, Jr., Defendant.

No. 1-90-Cr. 383.

United States District Court, N.D. Georgia, Atlanta Division.

April 9, 1991.

Louis Freeh and Howard M. Shapiro, Sp. Asst. U.S. Attys., N.D. Ga., for U.S.

Edward D. Tolley, Cook, Noell, Tolley & Aldridge, Athens, Ga., and Donald F. Samuel, Garland & Samuel, Atlanta, Ga., for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER TRIAL VENUE

DEVITT, District Judge, Sitting by Designation.

Introduction

Defendant, charged in a 72-count superseding indictment with, inter alia, the December, 1989 mail-bomb deaths of Eleventh Circuit United States Court of Appeals Judge Robert S. Vance and Savannah alderman and civil rights attorney Robert E. Robinson, moves under Federal Rule of Criminal Procedure 21(a) for transfer of venue claiming there is so much prejudice against him in this district that he cannot obtain a fair trial here. For the reasons set forth below, the court grants defendant's motion to transfer trial venue.

Discussion

Fed.R.Crim.P. 21(a) provides that upon motion of the defendant, the court "shall transfer the proceeding as to that defendant to another district * * * 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 * * * in that district." (emphasis supplied).

Defendant must receive a fair trial consistent with constitutional due process. Sheppard v. Maxwell, 384 U.S. 333, 335, 86 S.Ct. 1507, 1508, 16 L.Ed.2d 600 (1966). Two Fifth Circuit Court of Appeals decisions are helpful in fixing the due process standards to be followed, Pamplin v. Mason, 364 F.2d 1 (5th Cir.1966) and United States v. Williams, 523 F.2d 1203 (5th Cir. 1975). Also, the United States Supreme Court, in the exercise of its supervisory powers, has furnished the court specific guidance on this issue. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).

In Pamplin, Judge John Minor Wisdom reviewed the then-recent five U.S. Supreme Court opinions dealing with prejudicial publicity and fair trial/free press issues,¹ and concluded that the test was no longer "whether prejudice found its way into the jury box at the trial," thus requiring a showing of prejudice at voir dire. Pamplin, 364 F.2d at 5. Judge Wisdom wrote:

As we read the Supreme Court cases, the test is: Where outside influences affecting the community's climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable safeguards, such as change of venue, to assure a fair and impartial trial.

Id.

Williams was an appeal from a criminal conviction in the Northern District of Georgia.

The trial judge held in abeyance the Rule 21(a) change of venue motion pending conclusion of voir dire. Trial proceeded and conviction followed. Upon examination of the entire record the Fifth Circuit granted a new trial based on the intense adverse pretrial publicity and the government's prejudicial closing argument. Williams closely follows the Pamplin decision and quotes extensively from it. Much of the publicity in Williams, tried in Atlanta, was carried in the Atlanta Journal-Constitution. A footnote in the opinion refers to those newspapers, each with a circulation in excess of 200,000, as the "leading newspapers" in the metropolitan Atlanta area and of unquestioned influence. Williams, 523 F.2d at 1205 n. 2 (noting as significant the trial court's description of the Atlanta Journal-Constitution as "covering Dixie like the Dew").

The pertinent ABA Standard for Criminal Justice also recommends ruling on a change of venue motion whenever it is determined there is a substantial likelihood that dissemination of prejudicial material will prevent a fair trial. A voir dire showing is not required. The standard reads:

A motion for change of venue or continuance shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court's own evaluation of the nature, frequency and timing of the material involved. A showing of actual prejudice shall not be required.

ABA Standard for Criminal Justice, 2nd Ed.1980 § 8-33(c).

The court interprets the above authorities to require that a motion for change of venue be granted whenever: (1) the court "is satisfied" of the existence of great prejudice; (2) outside influences affecting the community's opinion as to defendant are "inherently suspect"; (3) there is "reasonable likelihood that prejudicial news prior to trial will prevent a fair trial;" or (4) there is "substantial likelihood" a fair trial cannot be had in the absence of transfer.

Under each of these formulations of the standard, it appears that there exists in this district so great a prejudice against defendant that he cannot obtain a fair and impartial trial here. The defendant, a native of Rex, Georgia, in the Atlanta area, has a substantial criminal record and has had a long-running and continuing quarrel with the courts—particularly the federal courts in the Eleventh Circuit. His record and activities have been widely reported in the Georgia area for many years and particularly since the mail bomb deaths in December, 1989 of Eleventh Circuit Judge Vance and Savannah alderman and civil rights attorney Robinson. Defendant was an early suspect in the case and the publicity about him then increased substantially and much of it became prejudicial to the conduct of a fair trial in the Georgia area. His indictment in this case, filed on November 7, 1990, occasioned another new surge of adverse publicity.

During the investigation of this case, defendant was charged in a separate indictment in the Middle District of Georgia with obstruction of justice and other federal crimes. Because of the wide circulation of prejudicial publicity about him in that district, the presiding United States District Judge granted defendant's Rule 21(a) motion for transfer to another district for trial. Defendant was tried and convicted of these charges in December, 1990. This trial, too, was widely reported in the Georgia media and elsewhere, and in connection with the news stories about it, the upcoming trial in Atlanta on the bombing charges was extensively discussed.

This case has caused wide public interest not only in the south but nationally. The New York Times reported on November 7, 1990, that:

The bombing sent a shudder of fear through the deep south and stirred strong suspicion that racial animosities had motivated them.

Most print news coverage was furnished by the Atlanta Journal and Constitution, but Cox News Service, Knight-Ridder News Service, the American Bar Journal and other services and newspapers originated, and carried, news of these events.

Defendant's former counsel, claiming the indictment charges "... an all-out assault on the federal judiciary" early on moved the disqualification of all federal judges to hear the case and appointment by the Senate Judiciary Committee of an "independent judicial officer" to preside over the trial. While the "Rule of Necessity," United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980), would not permit of such action, all judges of the United States Court of Appeals for the Eleventh Circuit voluntarily recused themselves from the case. All eleven federal district judges and all magistrate judges of the Northern District of Georgia have now done the same. Previously all three judges in the Middle District of Georgia voluntarily recused themselves from defendant's case venued in that district.

The matter properly may be considered an important and unique case. The return of the indictment was announced in Washington, D.C. by Attorney General Dick Thornburgh and FBI Director William S. Sessions, a signal indication of a "big case."² The investigation took eleven months and federal agents spent more than 140,000 hours in their work. The indictment, consisting of 72 counts, has six counts providing punishment of life imprisonment. It is the kind of criminal trial which understandably commands a wide public following, particularly in the region where the crimes were carried out.

The court undertakes to describe briefly some of the prejudicial publicity.³ Even before the indictment was returned, an F.B.I. agent predicted the evidence was so extensive and convincing that defendant Moody would be indicted and convicted. The Atlanta Journal and Constitution reported on November 8, 1990 in an article by Gail Epstein, staff writer, that:

Hours before the indictment, an F.B.I. agent told NAACP Regional Director Earl Shinhoster that `Moody is the guy who did it!, said Mr. Shinhoster: I think they have enough evidence not only to indict, but to convict Moody.' (emphasis supplied).

Statements of this kind violate the principles established by the United States Supreme Court's quintet of fair trial/free press decisions cited in footnote 1, supra and the Department of Justice's own rules prohibiting release of inappropriate information about pending criminal cases. Katzenbach Rules, 28 C.F.R. § 50.2, issued April 16, 1965. Specifically prohibited are "subjective observations" of guilt as described in the above example, and all information likely to influence the outcome of a future trial. § 50.2(b)(2)-(6).

Further violations of defendant's rights are reflected in the Atlanta Journal and Constitution for November 8, 1990. It is reported that:

Much of the evidence against Moody is circumstantial. But investigators say such cases are frequently successful because they are built from interlocking pieces and do not depend on a single

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