Opinion
Criminal Action No. 04-355 (CKK).
March 21, 2005
MEMORANDUM OPINION
Currently before the Court are (1) Defendant Aaron Perkins' Motion for Change of Venue due to "exhaustive, detailed, and inflammatory pretrial publicity," Def. Perkins' Mot. at 1; and (2) Defendant Miquel Morrow's Motion for Judicial Relief Regarding Violations of Local Criminal Rule 57.7 Regarding Release of Information. The Government has filed an Opposition that answers these specific motions made by Defendants Perkins and Morrow. After reviewing the parties' briefing and the relevant caselaw, the Court (1) shall deny without prejudice Defendant Perkins' Motion for Change of Venue, and (2) finds Defendant Morrow's motion largely to be moot, and shall deny Defendant Morrow's motion to the extent that it is not moot.
I: BACKGROUND
On November 9, 2004, the Grand Jury in the above-captioned case returned a twenty-one count Superseding Indictment against the six remaining defendants in this case — Miquel Morrow, Lionel Stoddard, Carlos Aguiar, Bryan Burwell, Aaron Perkins, and Malvin Palmer (collectively, "Defendants"). Count I of the Indictment charges all six Defendants with a conspiracy to participate in a Racketeer Influenced Corrupt Organization ("RICO"), in violation of 18 U.S.C. § 1962(d), based upon alleged racketeering acts involving armed robberies of four banks in the District of Columbia (Acts 1-4) and two banks in the District of Maryland (Acts 5-6), as well as three acts involving murder (Acts 7-9). Count II charges all six Defendants with a conspiracy to commit offenses against the United States. Substantive charges involving armed bank robbery (Counts III, VIII, XII, and XVII), using or carrying a firearm during a crime of violence (Counts IV, IX, XIII, XVIII), unlawful possession of a firearm by a felon (Counts V-VII, X-XI, XIV-XVI, XIX), and assault with intent to kill (Counts XX-XXI), are charged against the specific defendants named in those counts. The armed robberies were allegedly accomplished while the Defendants brandished weapons and wore body armor, hoods, masks, bandanas, and heavy clothing to avoid identification. The assaults also involved the use of firearms.
A substantially similar superseding indictment was returned on February 15, 2005, that deleted two of the previous counts, changing the numbering scheme. However, many of the motions concerning the validity of the Indictment were filed prior to this February date, and both the Government and the Defendants refer to the numbering scheme employed by the November 9, 2004 Superseding Indictment in their filings. As such, for purposes of clarity, the Court will refer to the numbering scheme used in the November 9, 2004 Indictment in this Opinion.
II: DISCUSSION
The Court shall deal with the two issues presently before it in sequence, analyzing first Defendant Perkins' arguments demanding that the Court grant his request for a transfer to a "federal district court outside of the Washington, DC/Baltimore metropolitan area" because of prejudicial pretrial publicity within this jurisdiction, Def. Perkins' Mot. at 1, and then turning to Defendant Morrow's request for a Court Order and appropriate sanctions "for past and future violations of Local Rule 57.8 regarding release of information by attorneys in a criminal case," Def. Morrow's Mot. at 1.
A. Defendant Perkins' Motion to Transfer
Defendant Perkins contends that detailed pre-trial publicity within the District of Columbia "has resulted in a feeling of fear, prejudice and bias in the community against Mr. Perkins and his co-defendants that has put Mr. Perkins' ability to receive a fair and impartial trial before a District of Columbia jury in jeopardy." Def. Perkins' Mot. at 1. Defendant Perkins asserts that this case, which involves six co-defendants charged with, inter alia, a RICO conspiracy whose main objective was to rob federally insured banks in the District of Columbia and Maryland, "has been, in fact, one of the most publicized in the District of Columbia's history." Id. at 2. Defendant Morrow, in his motion, attempts to substantiate Defendant Perkins' claim by noting that "[c]ounsel has collected some 19 news items broadcast on radio, TV, the internet, and in the print media throughout the Washington Metropolitan area." Def. Morrow's Mot. at 1, ¶ 1.
In particular, Defendant Perkins focuses on two specific news reports as being unduly prejudicial. First, according to Defendant Perkins, "[d]ue to the intense media interest in this case and the fact that several of the alleged bank robberies were caught on videotape by a local news station, Fox News 5 [has] shown [clips of the robberies] repeatedly for months throughout the metropolitan area." Def. Perkins' Mot. at 2. Second, Defendant Perkins identifies a "WUSA Channel 9, CSI Washington, expose narrated by Reporter Gary Reals" as being "even more prejudicial." Id.; see also Def. Morrow's Mot., Ex. 1 (Videotape of the News Report Entitled "CSI: Washington"). According to Defendant Morrow, this "CSI: Washington" news report was broadcast twice on January 31, 2005, on Channel 9, once during the 6:00 P.M. News and again during the 11:00 P.M. News. Def. Morrow's Mot. at 2, ¶ 6.
Defendant Perkins also identifies other possible media-related sources of potential prejudice in his motion. He notes that "several nightly newscasts during the Summer of 2004" focused on the armed bank robberies charged in the Superseding Indictment. Def. Perkins' Mot. at 4. According to Defendant Perkins, these newscasts described the robbers, whose identities were then unknown, as "brazen" and "extremely dangerous." Id. Furthermore, Defendant Perkins contends that it was well known that "DC Police Chief Ramsey even instructed his officers not to pursue the robbers after several police officers allegedly came under fire from fully automatic weapons used by the bank robbers." Id.
The Court notes that the title of the news report, "CSI Washington," is an homage to the highly-rated CBS television drama "CSI: Crime Scene Investigation," starring William Petersen of "Manhunter" fame, and its many spinoffs. The various "CSI" television shows track the use of forensic science by law enforcement agents in their quest to solve crimes.
The "CSI: Washington" news report opens with Reporter Gary Reals stating that "Prosecutors say that they have DNA, fingerprint and hair" evidence linking the six co-defendants to the crimes charged in the Superseding Indictment. Id. Defendant Perkins identifies four potentially prejudicial comments made during the news report: (1) "Mr. Reals brazenly asserted that the government evidence was `overwhelming'"; (2) the report "referred to DNA found from Mr. Perkins' spit on the getaway car used in one of the robberies," a statement that Defendant Perkins contends is "false and misleading"; (3) as the expose showed the Defendants being brought to the courthouse under heavy armed guard while a U.S. Marshall holding a submachine gun kept watch, Reporter Beals "commented on the `dangerousness' of the defendants and the fact that this additional security was needed to get these dangerous criminals to the courthouse"; and (4) the report "provided a closeup picture of Mr. Perkins drawn by a court artist." Def. Perkins Mot. at 2-3.
The Court has reviewed a tape of the "CSI: Washington" news program submitted as an exhbit to Defendant Morrow's motion.
Given its context, Defendant Perkins finds that "[t]he entire CSI Washington report was designed to portray the defendants as extremely dangerous and implied the evidence presented by the government overwhelming[ly] proved their guilt." Id. at 2. According to Defendant Perkins, "Channel 9 has already tried and convicted Mr. Perkins in the media before his trial can begin," and Defendants are now confronted with a situation where "[d]etails of the Government's case against all the co-defendants, as well as the previously secret particulars regarding the forensic evidence and fingerprint evidence," are now splashed across the evening news and local papers. Id. at 2-3. As such, Defendant Perkins concludes that only a transfer of this case to a venue outside of the Washington, D.C., and Baltimore metropolitan area can provide Defendants with an impartial trial free from bias and undue prejudice. Id. at 1.
While the famed Irish playwright Brendan Behan once observed, "All publicity is good, except an obituary notice," see Sunday Express (London), Jan. 5, 1964, it is quite certain that he was not discussing publicity in relation to an approaching criminal trial. Perhaps recognizing the distinction, Federal Rule of Criminal Procedure 21(a) provides: "Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there." Fed.R.Crim.P. 21(a). "Federal Rule 21(a) `is intended for cases in which prejudice in the community will make it difficult or impossible to select a fair and impartial jury.'" United States v. Edelin, 76 F. Supp. 2d 1, 3 (D.D.C. 1999) (quoting 2 Charles Alan Wright, Federal Practice and Procedure: Criminal § 342 (1982)). Importantly, "[t]he burden is on the defendant to show a reasonable likelihood of prejudice." Id. (citing 2 Charles Alan Wright, Federal Practice and Procedure: Criminal § 342 (1982); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (holding that the burden is on the defendant to show that the juror has such an opinion that will raise a presumption of partiality)).
Under the relevant law, two major problems doom Defendant Perkins' motion to change venue in this case. First, Defendant Perkins' motion is premature. As the D.C. Circuit noted in Jones v. Gasch, 404 F.2d 1231 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L.Ed.2d 286 (1968), "Rule 21 is to be construed in the light of past and contemporary practice respecting claims of local community prejudice." Id. at 1238. Under the Rule 21 analysis, a court should be aware that "[t]ransfer of the proceedings is but one method of combatting [sic] the evil once its existence has been definitely ascertained." Id. However, the evil of prejudicial pre-trial publicity cannot be accurately assessed under after voir dire has occurred. According to the D.C. Circuit, "`[t]he ultimate question' on such a motion `is whether it is possible to select a fair and impartial jury, and the proper occasion for such a determination is upon the voir dire examination.'" Id. (citing Blumenfield v. United States, 284 F.2d 46, 51 (8th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961)). "It is then, and more usually only then, that a fully adequate appraisal of the claim can be made, and it is then that it may be found that, despite earlier prognostications, removal of the trial is unnecessary." Id. (emphasis added); United States v. North, 713 F. Supp. 1444 (D.D.C. 1989) ("Any further consideration of publicity must await the jury's selection."); see also United States v. McDonald, 576 F.2d 1350, 1354 (9th Cir. 1978) (same), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (1978); United States v. Williams, 523 F.2d 1203, 1209 n. 10 (5th Cir. 1975) (same). As such, Defendant Perkins' motion is destined to failure because it is premature: Defendant Perkins simply cannot establish that prospective jurors in this case have been affected by any pre-trial publicity at this point.
Second, the D.C. Circuit has a well-established tradition of disfavoring motions to transfer venue in light of the remedial powers of the voir dire process. See United States v. Haldeman, 559 F.2d 31, 60, 63-64 (D.C. Cir. 1976) (holding that an appropriate voir dire of potential jurors was preferable to a transfer to another venue as a means for dealing with pre-trial publicity), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Jones, 404 F.2d 1238-39 ("Jurors manifesting bias may be challenged for cause; peremptory challenges may suffice to eliminate those whose state of mind is suspect. Frequently the problem anticipated works itself out as responses by prospective jurors evaporate prior apprehensions."); United States v. Poindexter, 725 F. Supp. 13, 37 (D.D.C. 1989) (similar). According to the D.C. Circuit, the conclusion that a fair trial is impossible in this jurisdiction will present itself only in "extreme circumstances." United States v. Edmond, 52 F.3d 1080, 1099 (D.C. Cir. 1995) (citations omitted), cert. denied, 516 U.S. 998, 116 S.Ct. 539, 133 L.Ed.2d 443 (1995); see also United States v. Childress, 58 F.3d 693, 706 (D.C. Cir. 1995) ("Simply put, the standard is high. . . ."), cert. denied, 516 U.S. 1098, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996); see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (noting that prejudice is only inferred in "rare" cases).
The standard to succeed on a motion to transfer venue is so exacting in this jurisdiction because "[t]he mere existence of intense pretrial publicity is not enough to make a trial unfair, nor is the fact that potential jurors have been exposed to this publicity." Childress, 58 F.3d at 706. While the Constitution provides that a defendant is to be judged by "`a panel of indifferent jurors,' those jury members `need not be totally ignorant of the facts and issues involved.'" Id. (quoting Irvin, 366 U.S. at 722). "Rather, `it is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in the court.'" Id. (quoting Irvin, 366 U.S. at 723). The Supreme Court, in Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), refused to presume prejudice ever where a defendant's crime had provoked "substantial" unfavorable publicity — more than would have attended most capital murders because the defendant was an inmate charged with committing murder while on work release and the crime had occurred during a presidential campaign highlighting similar crimes by furloughed inmates. Id. at 428-30. While the Court did presume jury prejudice in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), the defendant in that case was faced the prospect of trial in a rural parish of 150,000 residents after his videotaped murder confession was broadcast on three consecutive nights to audiences of 24,000, 53,000, and 29,000 people. When the Mu'Min Court analyzed the Rideau decision, the Court clearly stressed the difference in the community context; in contrast to the small rural parish in Rideau, the Mu'Min Court focused on the fact that, as here, the defendant's pre-trial publicity was aimed at "the metropolitan Washington statistical area, which has a population of over 3 million and in which, unfortunately, hundreds of murders are committed each year." Mu'Min, 500 U.S. at 429, 111 S.Ct. at 1907.
In this Circuit, numerous courts have denied a defendant's motion to transfer venue in circumstances where negative publicity was far more widespread than in this case. For instance, in the Watergate-related cases, see, e.g., United States v. Chapin, 515 F.2d 1274, 1286-86 (D.C. Cir. 1975), cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975); Haldeman, 559 F.2d at 60, 63-64, and in the cases related to the Iran-Contra Affair, see, e.g., North, 713 F. Supp. at 1444 (D.D.C. 1989); Poindexter, 725 F. Supp. at 37-38, courts within this Circuit concluded that transferring the cases to another venue was unwarranted. As the North court noted, "while some of the public becomes thoroughly engrossed in such a story many do not. They have other more pressing immediate concerns. Rent, jobs, and a myriad of other things." North, 713 F. Supp. at 1444.
In sum, Defendant Perkins' motion is premature and without any demonstrable or specified factual basis demonstrating "inherently prejudicial" publicity in the community. At this time, Defendant Perkins cannot establish that any jury in his case within this jurisdiction must be presumed to be prejudiced. This Court, following long-established tradition and precedent within this Circuit, finds that the voir dire process should be adequate to root out any potential undue prejudice facing Defendant Perkins and his co-defendants, especially given the Court's stated willingness to grant a full and careful inquiry into the level of a potential juror's pre-trial awareness once voir dire begins in this case on April 5, 2005. Moreover, given the level of publicity that this case has received, compared with the levels of press given other cases that have remained within this jurisdiction, the Court notes that it is highly unlikely that Defendants will be able to establish wrongful bias due to prejudicial pre-trial publicity. As such, the Court shall deny without prejudice Defendant Perkins' Motion to Change Venue.
B. Defendant Morrow's Motion for Judicial Relief Regarding Violations of Local Rule 57.7 Regarding Release of Information
Defendant Morrow's motion, rather than focusing on the need for transfer, looks at the events leading up to the airing of "CSI: Washington," and suggests that (1) the Court should "admonish all parties, on the record, not to make any extrajudicial remarks or notifications to the press involving this case throughout the remaining trial and pretrial proceedings," pursuant to Local Criminal Rule 57.7; and (2) "due to extensive publicity, careful individualized jury interrogation as to bias caused by pretrial publicity must be conducted to insure [sic] an impartial panel." Def. Morrow's Mot. at 3, ¶¶ 10-11. Much of Defendant Morrow's motion focuses on possible improprieties by the Government in this case surrounding the January 31, 2005, airing of "CSI: Washington." According to Defendant Morrow, while no press had attended any of the hearings in this matter leading up to January 31, 2005, "[m]embers of the media attended the January 31st hearing with a camera crew, a sketch artist and a news reporter." Id. at 1, ¶ 4. Defendant Morrow implies that the Government tipped off the press as to major developments occurring on that day, as "[a] video of the pre-hearing events filmed the two prosecutors approaching the courthouse" and "[p]rior to the commencement of the hearing one of the prosecutors was engaged in a lengthy conversation with the news reporter." Id. at 1, ¶ 4, 1-2, ¶ 5.
Defendant Morrow suggests that the media became interested in this hearing because they were tipped off by the Government that "the results of DNA testing was in and would be made available to the defense at the January 31, 2005 hearing." Id. at 1, ¶ 3. Tying prosecutors in this case even further to the media, Defendant Morrow claims that much of the information contained in the "CSI: Washington" report must have been garnered from illicit conversations between the Government and the media, as "[m]ost of the information concerning the test results etc [in the news report] [was] not in the public record and was not stated in open court on January 31st." Id. at 2, ¶ 7. Given this circumstantial evidence, Defendant Morrow insinuates that the Government in this case likely violated Local Criminal Rule 57.7, which in relevant part provides:
(3) From the time of arrest, issuance of an arrest warrant, or the filing of a complaint, information or indictment in any criminal matter until commencement of trial or disposition without trial, a lawyer or law firm associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning:
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(iii) The performance of any examination or tests or the accused's refusal or failure to submit to an examination or test;
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(vi) Any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case.
LCrR 57.7(3)(iii) (vi). Given the alleged Government-media interaction in this case, Defendant Morrow suggests that an admonishment and a "careful individualized jury interrogation as to bias caused by pretrial publicity" are in order. Def. Morrow's Mot. at 2-3, ¶¶ 10-11.
While the general thrust of Defendant Morrow's motion is certainly reasonable, the Court concludes that his motion is largely moot; to the extent that the motion is not moot, it is denied. The Court viewed the "CSI: Washington" news report during its initial airing on January 31, 2005, and promptly instigated a conference call with counsel for the Government and all Defendants. During this conference call, while being careful not to find fault with any specific party, the Court directed all counsel to Local Criminal Rule 57.7 and emphasized that it would not tolerate any violations of the rule in this case. In the status conference held on the record on February 24, 2005, the Court reinforced its earlier admonishment to counsel that they should remain within the confines of Local Criminal Rule 57.7. Furthermore, the Court expressed its intention to engage in a careful voir dire inquiry into the level and type of pre-trial publicity to which potential jurors have been exposed. The Court reaffirms that intention in this ruling. As such, the Court concludes that Defendant Morrow's motion is essentially moot.
Upon initial viewing of "CSI: Washington," the Court itself noted that counsel for one of the Defendants was interviewed on camera and made comments as to the quality of the Government's apparent evidence.
Defendant Morrow's motion can be read to go a bit further, however. Defendant Morrow's specific request is for "the court [to] admonish all parties, on the record, not to make any extrajudicial remarks or notifications to the press involving this case throughout the remaining time of the trial and pretrial proceedings." Def. Morrow's Mot. at 3, ¶ 10 (emphasis added). Given the terminology employed, Defendant Morrow appears to be asking for a gag order in this case. A gag order restraining trial participants is constitutional as long as it is properly justified. See, e.g., In re Application of Dow Jones Co., 842 F.2d 603, 610 (2d Cir. 1988), cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988); Radio Television News Ass'n v. United States District Court, 781 F.2d 1443 (9th Cir. 1986). Most courts that have analyzed the issue have required that pretrial publicity pose a "reasonable likelihood" of prejudicing the defendant's right to a fair trial before entering a gag order. See In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984); In re Application of Dow Jones Co., 842 F.2d at 610; Radio Television News Ass'n, 781 F.2d at 1446-47; United States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969); but see United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987) (adopting a "clear and present danger" standard). At least one court has elucidated a three-part test to determine when a gag order is appropriate — "A `gag' order restricting parties and witnesses from making extra-judicial statements about a case may be entered where: (1) there is a clear or serious threat to the fairness of the trial; (2) less restrictive alternatives are not adequate to mitigate the harm; and (3) the order would effectively prevent the threatened danger." Pendini v. Bowles, 940 F. Supp. 1020 (N.D. Tex. 1996) (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 563, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)).
The Court finds that — at this time — there is neither a "reasonable possibility" nor a "clear and present danger" that pretrial publicity has prejudiced the right of the Defendants to obtain a fair trial. Moreover, to the extent that any counsel might have talked to the media in violation of Local Criminal Rule 57.7, thus far it appears as though those conversations were a single, isolated event that has not been repeated since the January 31, 2005 airing of "CSI: Washington." Rather, at this moment, it seems as though the Court's admonishment of counsel and direction to all counsel to Local Criminal Rule 57.7 has proven effective. As such, the Court concludes that less restrictive alternatives to a "gag order" have worked up to this point. Given these factors, the Court finds that the necessary factors to impose a "gag order" are not in place at this time, and such a drastic step is not required. However, the Court does take this opportunity to continue to remind present counsel of their effective obligations under the Local Criminal Rules, and reserves the right to institute more drastic sanctions or judicial action should the problem of attorney-reporter discussions rear its head. To the extent that Defendant Morrow is requesting a "gag order," his motion is denied.
III: CONCLUSION
For the reasons set forth above, the Court (1) shall deny without prejudice Defendant Perkins' Motion for Change of Venue, and (2) finds Defendant Morrow's motion largely to be moot, and shall deny Defendant Morrow's motion to the extent that it is not moot. An Order accompanies this Memorandum Opinion.