US v. Tokars

• Decision Date: 15 December 1993
• Docket Number: Crim. A. No. 1:93-CR-357-ODE.
• Citation: 839 F. Supp. 1578
• Parties: UNITED STATES of America v. Frederic W. TOKARS, a/k/a Fred Tokars, James H. Mason, Anthony A. Brown, a/k/a Al Brown, Jessie H. Ferguson, a/k/a Todd Love Mitchell, a/k/a Todd Love, a/k/a Mitch Love, a/k/a Mitchell Lovett, Aaron Hudson, Alex W. Yancey, and William R. Carter, a/k/a Billy Carter.
• Court: U.S. District Court — Northern District of Georgia

839 F. Supp. 1578

UNITED STATES of America v. Frederic W. TOKARS, a/k/a Fred Tokars, James H. Mason, Anthony A. Brown, a/k/a Al Brown, Jessie H. Ferguson, a/k/a Todd Love Mitchell, a/k/a Todd Love, a/k/a Mitch Love, a/k/a Mitchell Lovett, Aaron Hudson, Alex W. Yancey, and William R. Carter, a/k/a Billy Carter.

Crim. A. No. 1:93-CR-357-ODE.

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

December 15, 1993.

Wilmer Parker, III, Lead Asst. U.S. Atty., Katherine B. Monahan, Asst. U.S. Atty., Atlanta, GA, for Government.

Bobby Lee Cook, Cook & Palmour, Summerville, GA, James J. Froelich, McKenney & Froelich, Jay Lester Strongwater, Strongwater & Cherniak, Atlanta, GA, for Frederic W. Tokars.

Kevin R. Brehm, Mildred Hankins Geckler, Federal Defender Program, Atlanta, GA, for James H. Mason.

Drew Findling, Office of Drew Findling, Atlanta, GA, James L. Feinberg, Office of James L. Feinberg, Detroit, MI, for Jessie H. Ferguson.

ORDER

ORINDA D. EVANS, District Judge.

This criminal case is before the court on objections of Defendants Tokars, Mason and Ferguson to the Report and Recommendation of Magistrate Judge Joel M. Feldman filed November 19, 1993. The Report and Recommendation ("R & R") recommends that the Defendants' motions for change of venue be denied. The R & R determined that pretrial publicity surrounding the instant case has saturated the greater Atlanta community. However, it also finds that pretrial publicity has not been so prejudicial and inflammatory that it should be presumed that a potential jury panel would be prejudiced against the Defendants. Therefore, it is recommended that the court defer ruling on Defendants' motions pending voir dire of prospective jurors.

A hearing was held on December 2, 1993, before the undersigned for purposes of oral argument and to receive certain supplementary evidence tendered by Defendant Mason, reflecting the results of a poll conducted by the Center for Urban Policy Research at Georgia State University. The testimony of Gary T. Henry, Director of the Center was heard and the written poll results were admitted into evidence. Defendants Tokars, Mason and Ferguson presented their arguments urging the court to grant a change of venue.

Briefly stated, this case involves allegations of racketeering, money laundering, drug conspiracy, and various acts of violence including an alleged interstate telephone call to procure the murder of Sara Tokars and the attempted murder of Michael H. Jones. Defendant Tokars is an Atlanta tax and criminal defense attorney who formerly was an Assistant District Attorney. The indictment alleges that he served as the attorney for a criminal enterprise which distributed cocaine and laundered the drug money through night clubs incorporated by Tokars and also through businesses established by Defendant Tokars for his business associate Eddie Lawrence. Defendant Tokars allegedly invested drug money in offshore bank accounts. Defendant Mason is a local businessman who allegedly served as a front for the drug dealers who purportedly were the true owners of the night clubs. Defendant Mason was Defendant Tokars' client. Defendant Ferguson allegedly supplied drugs to the enterprise and tortured and tried to kill Michael Jones who was believed to have taken some of the enterprise's money.

It is alleged that Lawrence hired a hit man to kill Defendant Tokars' wife Sara at Tokars' request. Mrs. Tokars was in fact shot and killed on November 29, 1992. The government's theory is that Sara Tokars' murder was arranged because she had become too knowledgeable about her husband's purported criminal activities and posed a threat to the continued vitality of the enterprise. Defendant Lawrence has pled guilty to aiding in the murder of Sara Tokars in state court and has pled guilty in this court to committing a violent crime in aid of racketeering activity, i.e., the kidnapping and murder of Sara Tokars. Defendant Lawrence states that he hired a hit man, Curtis Rower, at the behest of Defendant Tokars and in the expectation of a large payment from Tokars.

Based on statements of defense counsel, Tokars' contention is that he was not aware that the night clubs were involved in any illegal activity, that he did not knowingly launder any drug money and that he had no part in arranging for his wife's murder. It appears that Mason's defense will be that he did not knowingly participate in any illegal activity. The theory of Ferguson's defense has not been stated at this time.

For the reasons set out in this order, Defendants' motions for change of venue are GRANTED and the instant case will be transferred to the Northern District of Alabama for jury selection and trial.

Defendants' motions are made under Rule 21(a) of the Federal Rules of Criminal Procedure. That rule provides in pertinent part that transfer of venue shall be granted on 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 the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district." Fed.R.Crim.P. 21(a).

The landmark fair trial/free press cases emanating from the United States Supreme Court all involved state trials. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The seminal Supreme Court decision involving this issue in a federal trial, Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (per curiam), states the existence of Supreme Court supervisory power to formulate standards pertinent to cases of prejudicial publicity occurring during a trial, but does not elucidate general standards. Marshall does recognize that a federal trial judge has "a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial," Id. at 312, 79 S.Ct. at 1173. The supervisory power of the Supreme Court in setting standards for change of venue in publicized federal cases was recognized but not applied in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The Court found that the supervisory power did not apply to state habeas cases such as Murphy. Id. at 798, 95 S.Ct. at 2035. Instead, the Court applied constitutional due process standards. See also id. at 804, 95 S.Ct. at 2038 (Burger, C.J., concurring) ("I would not hesitate to reverse petitioner's conviction in the exercise of our federal supervisory powers, were this a federal case ...,"); Rideau, 373 U.S. at 728, 83 S.Ct. at 1420 (Clark, J., dissenting) (disagreeing with the majority's determination that due process required reversal of defendant's conviction on account of prejudicial publicity, but stating that reversal would be warranted if the case had arisen in a federal trial court); United States v. Williams, 523 F.2d 1203, 1209 n. 11 (5th Cir.1975) (noting the existence of an unresolved issue as to whether the trial judge's discretion on a Rule 21 motion is more restrictive than that involved in due process review but finding it unnecessary to address issue); Issacs v. Kemp, 782 F.2d 896, 897 (11th Cir.1986), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986) (Hill & Fay, JJ., dissenting) (dissenting from denial of rehearing en banc and stating, "Were we considering these cases on direct appeal from convictions in a federal court, I have little or no doubt that, in the exercise of our supervisory power, they should be reversed."); United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (MacKinnon, J., concurring in part and dissenting in part) (noting that federal supervisory standards should apply to review of pretrial publicity issue in addition to constitutional due process standard); United States v. Faul, 748 F.2d 1204 (8th Cir.1984), cert. denied, 472 U.S. 1027, 105 S.Ct. 3500, 87 L.Ed.2d 632 (1985) (Lay, C.J., dissenting) (noting that federal supervisory standards should apply to issue of pretrial publicity, not due process standard).

At the present time, Marshall is still binding precedent, although the contours of the holding are unclear. The court has been unable to locate any Eleventh Circuit decision which resolves or clarifies the differences or the applicability of the two foregoing strands of authority to a federal trial. However, there are a number of relatively recent Eleventh Circuit opinions where the constitutional standard of Murphy has been applied in reviewing and affirming convictions in a federal court. See, e.g., United States v. De La Vega, 913 F.2d 861, 865 (11th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2011, 114 L.Ed.2d 99 (1991); United States v. Lehder-Rivas, 955 F.2d 1510, 1523-25 (11th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). In Lehder-Rivas, the appellant's argument concerning the trial court's failure to properly exercise its supervisory powers was rejected in a footnote: "A trial court is required to exercise such power in extraordinary circumstances not presented by this case." Id. at 1525-26 n. 15. Based on the foregoing authority, the court finds that Defendants' motions should be reviewed under the constitutional standard of Murphy v. Florida and also under the supervisory standard of Marshall v. United States.

In its argument against the motions for change of venue, the government has focused on a recent Eleventh Circuit opinion, Devier v. Zant, 3 F.3d 1445 (11th Cir.1993), in which the Court of Appeals denied a petition to set aside a state conviction in a case involving the rape and...