Opinion
8:00CR83
January 11, 2001
ORDER
Before the Court is defendant Justin J. Allee's Statement of Appeal (Filing No. 114) from Magistrate Judge Thalken's order dated October 26, 2000 (Filing No. 104), denying Allee's motion for a change of venue (Filing No. 82). I have granted James G. Allee's motion to join in the appeal. Since the magistrate's order concerns a nondispositive matter, the order will stand unless it is "clearly erroneous or contrary to law." N.E.L.R. 72.3(d). I have carefully reviewed the record, the magistrate's order, Allee's statement of appeal, the briefs, and the applicable law. I find that the magistrate's order should be affirmed and Allee's appeal should be dismissed.
The defendants are charged in the superseding indictment on several counts including bank robbery and car jacking. (See Filing No. 99.) They move for a change of venue under the Due Process Clause of the United States Constitution and the provisions of Rule 21(a) of the Federal Rules of Criminal Procedure.
Analysis Due Process Clause
The Due Process Clause guarantees the right to a trial by a fair and impartial tribunal. In re Murchison, 349 U.S. 133, 136 (1955). The theory behind the due process clause is that jurors will be impartial and indifferent regardless of the crime charged or the apparent guilt of the accused. Irvin v. Dowd, 366 U.S. 717, 722 (1961). The defendant contends that he cannot receive a fair trial in Nebraska. He asserts that his prior convictions have been widely reported, that he has been described in the media as a murderer and that he has been linked to other crimes not mentioned in the indictment. Relying heavily on the Supreme Court's decisions in Irvin; Rideau v. Louisiana, 373 U.S. 723 (1963); and Sheppard v. Maxwell, 384 U.S. 333 (1966), the defendant argues that the amount of pretrial publicity concerning this case will make it impossible to empanel an unbiased jury.
The Irvin, Rideau and Sheppard cases involved extraordinary amounts of pretrial publicity. In Irvin, the defendant, charged with having committed six murders in a rural community, moved the trial court for a change of venue. The trial court denied the motion. Irvin alleged that in the months preceding his trial, a barrage of intense, inflammatory newspaper reports were unleashed against him, including reports that he had confessed to the murders and offered to plead guilty if promised a 99-year sentence. Curbstone opinions as to Irvin's guilt and what punishment he should receive were even solicited in the streets and later broadcast over local stations. Indeed, "the awaited trial of [Irvin] had become the cause celebre of [the] small community. . . ." Irvin at 725. The Supreme Court, after reviewing the media-related incidents that occurred before the trial, concluded that "the build up of prejudice is clear and convincing." Id.
In Rideau, the Supreme Court found that the media coverage and content were so prejudicial that the defendant was deprived of due process. Rideau at 726-27. Rideau confessed to murder, kidnaping and robbery while in custody. The local television station filmed and then broadcast the confession three times. It was estimated that of the 150,000 people in the community, approximately 97,000 people saw and heard the confession. This all took place before Rideau was even arraigned for the crimes. The Supreme Court reversed Rideau's conviction on the murder charge stating that "due process of law in this case required a trial by a jury drawn from a community of people who had not seen and heard Rideau's televised `interview.'" Id. at 727.
Finally, in Sheppard, a well-known case involving a doctor accused of murdering his wife, the Court held that the failure of the trial judge to shield Sheppard from the inherently prejudicial publicity which saturated the community deprived Sheppard of due process. Sheppard at 362-63. A media frenzy surrounded this case. Prior to trial, numerous newspaper headlines and stories about the case were highly critical and incriminating of Sheppard. The media emphasized Sheppard's personal life, including alleged extramarital affairs. Sheppard wrote articles to the press and made public statements. Police made statements to the press as well. Particularly problematic was a five-hour inquest of Sheppard without his counsel present that was broadcast live just three months before the trial. Id. at 354.
The circumstances present in Irvin, Rideau and Sheppard are clearly absent in this case. The Court reviewed six hours of video tapes of television coverage (Exs. 102, 103 and 104) and more than 100 pages of newspaper coverage (Ex. 105). The Court acknowledges that the media coverage of this case has been substantial. Any trial involving an alleged bank robbery, car jacking and shootings will be the subject of extensive press attention. Undoubtedly, some prospective jurors will be familiar with aspects of this case, but not to the extent that the defendant alleges in his appeal and supporting exhibits. None of the prospective jurors will have been exposed to the totality of the media coverage that the defendant has produced. In addition, although the depiction of the suspects by the press has not been flattering, it does not rise to the level of due process violations present in the trilogy of Supreme Court cases previously discussed.
The defendant has been charged with having committed serious crimes. News accounts concerning the investigation into those crimes are bound to be perceived by those who are exposed to them as "negative." In this case there were repeated warnings that the suspects involved in this case were armed and dangerous. There were also emotional accounts concerning the victims of the shootings. However, it is difficult for a defendant to show that pretrial publicity has been so prejudicial and inflammatory that prospective jurors could not help but be predisposed to a conviction. Snell v. Lockhart, 14 F.3d 1289, 1293 (8th Cir. 1994).
Furthermore, the Eighth Circuit has found that the negative effects of the media are neutralized by the passage of time. See Pruett v. Norris, 153 F.3d 579 (8th Cir. 1998) (recognizing benefits of a seven-month cooling-off period); see also Simmons v. Lockhart, 814 F.2d 504, 510 (8th Cir. 1987) (recognizing that the shock and hostility in a community have dissipated in a trial held eleven months after the original crime). The crimes the defendant is charged with were committed in March of 2000, nine months ago. Most of the media coverage of the case occurred at that time. Since then, interest in the case has diminished considerably. The media coverage was generally professional, factual and accurate. Admittedly, as the trial draws near, media coverage will pick up again. However, at this point, I find that the record does not indicate that the pretrial publicity in this case warrants a pre-voir dire change of venue. As the Supreme Court cautioned in Irvin:
It is not required.
..
that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those most qualified to be jurors will not have formed some impression or opinion as to the merits of the case.Irvin at 722.
"A petitioner must satisfy a high threshold of proof in order to prove inherent prejudice." Pruett, 153 F.3d at 585. I find that the defendant here has not met that threshold.
Rule 21(a) of the Federal Rules of Criminal Procedure
The defendant next argues that although the pretrial publicity in this case may not be so pervasive as to have constitutional ramifications, this Court should exercise its supervisory powers and grant a change of venue under the Federal Rules of Civil Procedure 21(a). This rule provides that:
The court upon motion of the defendant shall transfer the proceeding as to him 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 possibly obtain a fair and impartial trial at any place fixed by law for holding court in that district.
Courts have recognized that the standard for invoking a change of venue under the court's supervisory powers is less stringent than the standard required to establish a constitutional entitlement to a change of venue. See United States v. McNeill, 728 F.2d 5, 9 n. 5 (1st Cir. 1984) ("[I]n the exercise of our supervisory powers . . . we may make a finding of juror bias on a lesser showing of prejudice than would be required under the constitutional standard".). In his brief, the defendant discusses cases in which district courts have granted a petitioner's motion for a change of venue prior to voir dire under Rule 21(a). However, the pretrial publicity surrounding each of the cases cited by the defendant greatly surpassed that which is present in this case. For example, United States v. Tokars, 839 F. Supp. 1578 (N.D.Ga. 1993), involved allegations of racketeering, money laundering, drug conspiracy, and acts of violence. The court found that in the months preceding the trial, "the local newspaper articles and local television reports literally have numbered in the thousands." Tokars at 1581. The court went on to state that "[the] undersigned does not recall a case in the Northern District of Georgia in recent years which has received the level of local publicity as [has] the instant case." Id. at 1582. The publicity in United States v. Moody, 762 F. Supp. 1485 (N.D.Ga. 1991), was also more extreme than that found in this case. In Moody, the defendant was charged with the mail bomb murders of an Eleventh Circuit Court of Appeals judge and an attorney. For obvious reasons, the case received intense local, as well as national, attention.
Here, it is not necessary for this Court to exercise its supervisory powers by granting a change of venue pursuant to Rule 21(a). The defendant failed to demonstrate that it will be impossible for him to obtain a fair and impartial trial in the District of Nebraska. For the reasons previously discussed, I find that the defendant's statement of appeal (Filing No. 114) is overruled.
THEREFORE IT IS ORDERED that:
1) The defendant Justin J. Allee's statement of appeal (Filing No. 114 ), joined by James G. Allee, is dismissed without prejudice to renewal at the time of trial; 2) The order of Magistrate Judge Thalken (Filing No. 104) is affirmed; and 3) Trial in this matter is scheduled for February 5, 2001, at 8:30 a.m.