US v. Walker

• Decision Date: 16 May 1995
• Docket Number: No. 94-40058-01-SAC.,94-40058-01-SAC.
• Citation: 890 F. Supp. 954
• Parties: UNITED STATES of America, Plaintiff, v. Raymond B. WALKER, Defendant.
• Court: U.S. District Court — District of Kansas

890 F. Supp. 954

UNITED STATES of America, Plaintiff, v. Raymond B. WALKER, Defendant.

No. 94-40058-01-SAC.

United States District Court, D. Kansas.

May 16, 1995.

Marilyn M. Trubey, David J. Phillips, Office of Federal Public Defender, Topeka, KS, for defendant.

Richard L. Hathaway, Office of U.S. Atty., Topeka, KS, for the U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On November 30, 1994, the grand jury returned a one count indictment against the defendant Raymond B. Walker with possession with intent to distribute 9.8 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1).¹ On February 15, 1995, this court entered a memorandum and order which, inter alia, denied Walker's motion to suppress. See United States v. Walker, 879 F.Supp. 1087 (D.Kan.1995).

On March 28, 1994, the Topeka Capital-Journal published an article titled "Official: Gang leaders charged." In that article, Randy Rathbun, the United States Attorney for the District of Kansas is reported to have said that two leaders of Topeka's two main street gangs are behind bars and were facing prosecution on federal charges. The article indicates that Rathbun identified Raymond B. Walker and Adre C. Rhoiney² as gang leaders. These statements and others about Walker and his gang affiliation were apparently made at a news conference.

This case comes before the court upon the following motions filed by Walker:

1. Motion for gag order (Dk. 34).

2. Motion for change of venue (Dk. 35).

The government has filed a response to the defendant's motions (Dk. 37).

On May 12, 1995, the court conducted a hearing on these motions and took the matter under advisement. At the evidentiary hearing, in addition to a copy of the Topeka Capital Journal, the defendant introduced videotapes/transcripts from the news broadcasts of three local television stations: KSNT News, WIBW-TV and KTKA-TV. The defendant also introduced an audit report for the Topeka Capital Journal and the Nielsen ratings from February 1995. The latter two exhibits were introduced to demonstrate the distribution of the newspaper and the likely viewing audience of the television broadcasts, respectively.

Having considered the briefs and arguments of counsel, the evidence presented, and the applicable law, the court is now prepared to rule.

Motion for Gag Order

In a three-page motion and brief, Walker contends that the statements made by Randy Rathbun on March 27, 1995, indicating that he was the leader of the Topeka Black Gangster Disciples gang jeopardized his ability to obtain a fair trial. Walker requests "an order directing the United States Attorney, his assistants, law enforcement officers, and any other persons associated with the above-referenced case to refrain from making any extrajudicial statements about this case."

The government responds, advancing several arguments in its defense. The government concedes that Rathbun made comments "announcing some of the results of the efforts of the Violent Crime Strike Force." The government's brief then states:

The article mentions the gang affiliations of two individuals, Rhoiney and Walker, and the fact that Walker is facing cocaine charges. Nowhere in the article does the United States Attorney discuss the evidence in the case, any confessions or otherwise, the character of the defendant or the credibility of any witnesses or evidence.

The prosecution acknowledges its obligations under rules governing their conduct and contend that those rules have not been violated. The government contends that the remarks were "made in response to the community concern about gang activity."

In the event that the court would determine that the comments made by Rathbun were inappropriate, the government contends that the defendant has nevertheless failed to demonstrate that a gag order is appropriate.

The government also argues that because the defendant only points to the lone article in the Topeka Capital-Journal, and because that newspaper is "a paper of limited distribution," it is unlikely that the jury pool from which the defendant's jury will ultimately be selected will be comprised of persons of who have actually read the article. The government notes that under D.Kan. Rule 125, jurors for Topeka are selected from several counties.

The government contends that the publicity has not been excessive and that the court should consider less restrictive alternatives to a gag order. The government suggests that voir dire is an excellent method of screening jurors and is an appropriate alternative to a restraining order. The government also indicates that the jury will be instructed to follow the instructions which they are given and that those instructions will inform the jury that they are to base their decision solely on the evidence admitted at trial.

As a final consideration, the government indicates that while it "does not believe that the comments made by the United States Attorney were improper or violated any District Court rules, we would note that no other presentation or news conferences are scheduled on gang activity in general or on Mr. Walker in particular."

Analysis

The court concludes that the defendant has made an insufficient showing to demonstrate that a gag order is appropriate. Because a gag order is a prior restraint on speech, the requirements to demonstrate that such an order is appropriate are particularly rigorous:

An order that prohibits the utterance or publication of particular information or commentary imposes a "prior restraint" on speech. A prior restraint on constitutionally protected expression, even one that is intended to protect a defendant's Sixth Amendment right to trial before an impartial jury, normally carries a heavy presumption against its constitutional validity.

Nebraska Press Assn. v. Stuart, 427 U.S. 539, 570, 49 L.Ed.2d 683, 96 S.Ct. 2791 2808 (1976).

Though the speech of an attorney participating in judicial proceedings may be subjected to greater limitations than could constitutionally be imposed on other citizens or on the press, see Gentile v. State Bar of Nevada, 115 L.Ed.2d 888 501 U.S. 1030, 1073, 111 S.Ct. 2720, 2744 (1991), the limitations on attorney speech should be no broader than necessary to protect the integrity of the judicial system and the defendant's right to a fair trial, see 501 U.S. at 1059-61, 1074-76 111 S.Ct. at 2737, 2745 (a prohibition against attorney statements having a "`substantial likelihood of materially prejudicing an adjudicative proceeding'" is constitutionally permissible, "for it is designed to protect the integrity and fairness of a state's judicial system, and it imposes only narrow and necessary limitations on lawyers' speech"). This Court has stated that before a district court issues a blanket prior restraint, it must, inter alia, "explore whether other available remedies would effectively mitigate the prejudicial publicity," and consider "the effectiveness of the order in question" to ensure an impartial jury. In re Application of Dow Jones & Co., 842 F.2d 603, 611, 612 n. 1 (2d Cir.), cert. denied, 488 U.S. 946 109 S.Ct. 377, 102 L.Ed.2d 365 (1988); see also In re Application of the New York Times Co., 878 F.2d 67, 68 (2d Cir.1989) (per curiam) (vacating district court's "gag" order where there had been no showing, inter alia, that prejudice was likely to result from statements made to the press by counsel).

United States v. Salameh, 992 F.2d 445, 446-447 (2nd Cir.1993). Less restrictive alternatives to an injunction against speech include such possibilities as a change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors. See Application of Dow Jones & Co., Inc., 842 F.2d at 611.

In the case at bar, Walker has not demonstrated that a gag order is appropriate or warranted. Each of the parties are bound by rules of this court and there is no reason to believe that the government will engage in any further conduct which might call into question the propriety of its extrajudicial statements regarding this case. In fact, the government indicates that it currently does not intend to make further statements to the press regarding this case. Moreover, the court believes that less restrictive alternatives, namely a probing voir dire and the use of proper jury instructions, will insure a fair trial in light of the limited pretrial publicity identified by the defendant. See Application of Dow Jones & Co., Inc., 842 F.2d at 609 ("Although often appearing unfair in the eyes of the public, pretrial publicity, `even pervasive, adverse publicity — does not inevitably lead to an unfair trial.' Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976). It should not be overlooked that a jury need not consist of persons entirely ignorant of the case they are about to hear; all that the Constitution requires is a jury that is impartial, one that is capable of fairly deciding on the evidence before it whether defendants are innocent or guilty."). The defendant's motion for a gag order is denied.

Motion for Change of Venue

In light of the prosecution's statements to the press and their publication in the Topeka Capital Journal, coupled with the television coverage, Walker seeks a change of venue to Kansas City, Kansas, pursuant to Fed. R.Crim.P. 21.³ In support of his motion, the defendant argues that the following is the federal standard by which prejudice stemming from pretrial publicity is judged: "That persons who have learned from news sources of a defendant's prior criminal record are presumed to be prejudiced." (quoting Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975) (citing Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959)).⁴ The government opposes the defendant's motion.

Fed.R.Crim.P. 21⁵ provides in pertinent part:

(a) For prejudice in the district. The court upon motion of the defendant shall

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