Opinion
4:01CR3040.
May 3, 2002
MEMORANDUM AND ORDER ON THE DEFENDANT'S STATEMENT OF APPEAL OF THE MAGISTRATE JUDGE'S ORDER DENYING THE DEFENDANT'S MOTION FOR A CHANGE OF VENUE
Before me is the defendant's Statement of Appeal from Magistrate Judge Piester's order denying the defendant's motion for a change of venue, filing 48. On February 19, 2002, the defendant filed a "Motion for Change of Venue and Request for Evidentiary Hearing and Oral Argument," filing 31. The magistrate judge granted the defendant's request for an evidentiary hearing and oral argument (see filing 37), and a hearing on the defendant's motion was held on March 8, 2002. (See filing 38.) On April 3, 2002, the magistrate judge denied the defendant's motion to transfer venue "without prejudice to its renewal following voir dire examination." (Mem. and Order, filing 46, at 12.) The defendant now appeals the magistrate judge's denial of his motion for a change of venue. (See filing 48.)
The magistrate judge's order concerns a nondispositive pretrial matter within the ambit of 28 U.S.C.A. § 636(b)(1)(A) (West 1993). Therefore the defendant's statement of appeal of the order is authorized by section 636(b)(1)(A), Federal Rule of Civil Procedure 72(a), and NELR 72.3(b). Pursuant to Local Rule 72.3(d), I am to "modify, set aside, or remand to the magistrate judge any nondispositive order or portion thereof found to be clearly erroneous or contrary to law." NELR 72.3(d). See also Fed.R.Civ.P. 72(a) ("The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law."); 28 U.S.C.A. § 636(b)(1)(A) (West 1993) ("A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate [judge's] order is clearly erroneous or contrary to law."). I have reviewed the transcript of the hearing of March 8, the exhibits received at that hearing, the parties' briefs associated with the defendant's statement of appeal, and the applicable law. I find that the magistrate judge's order must be affirmed as modified below.
I. BACKGROUND
As noted by the magistrate judge in his memorandum and order, filing 46, "[t]he defendant, Anthony Steven Wright, a.k.a. Tony Zappa, has been charged with unlawfully and willfully seizing, abducting and kidnapping a juvenile female from Kearney, Nebraska and transporting her across state lines to Montana, in violation of 18 U.S.C. § 1201." (Mem. and Order, filing 46, at 12.) The grand jury subsequently returned a two-count superseding indictment that charged the defendant with: 1) the kidnapping described above; and 2) knowingly using, carrying, and brandishing a firearm in furtherance of that kidnapping in violation of 18 U.S.C. § 924(c)(1)(A). (See Superseding Indictment, filing 15.)
In his motion for a change of venue, the defendant briefly described the "intensive media coverage" in this case. (Def.'s Mot. for Change of Venue and Req. for Evidentiary Hr'g and Oral Argument, filing 31, ¶ 5. See also id. ¶¶ 2-7.) He then argued that "[t]he scope and nature of the pretrial publicity meets the standard for presumed prejudice to the jury pool, which warrants a change of venue to protect Wright's constitutional due process right to a fair trial by an impartial jury guaranteed by the Fifth Amendment to the United States Constitution." (Id. ¶ 8.) In addition, the defendant asserted that "[t]he pretrial publicity further justifies the exercise of the court's supervisory powers to transfer venue." (Id. ¶ 9.) In his brief supporting this motion, the defendant elaborated upon both his "due process" and "supervisory powers" arguments. (See Def.'s Br. in Supp. of Def.'s Mot. for Change of Venue at 5-15.)
Following a hearing on the defendant's motion on March 8, 2002, the magistrate judge decided that the defendant's motion to transfer venue should be denied without prejudice and noted that the defendant might renew his motion after the jury panel has been questioned. (Mem. and Order, filing 46, at 10.) This determination was based on the magistrate judge's conclusion that the "circumstances do not support a finding that a Nebraska jury pool is presumptively prejudicial to defendant's due process rights." (Id. at 9.) However, the magistrate judge's memorandum and order contains no discussion of the defendant's argument that the court should exercise its supervisory powers to transfer venue. (See generally id. See also id. at 1-2 (noting that the defendant's motion argues that "trial in Nebraska would violate the defendant's due process right," but neglecting to mention the defendant's supervisory powers argument).)
The defendant has filed a statement of appeal, filing 48, wherein he argues that there are two separate bases for "revers[ing]" the magistrate judge's order denying his motion to transfer venue. (Def.'s Statement of Appeal of Magistrate Judge's Order, filing 48, at 1.) First, the defendant argues that "[t]he pretrial publicity meets the constitutional standard for presumed prejudice to the jury pool." (Id. ¶ 2.) Second, he argues that "[t]he pretrial publicity also justifies the use of the court's supervisory power to change venue." (Id. ¶ 3.) I shall now analyze each of the defendant's arguments to determine whether the magistrate judge's order, or any portion thereof, is clearly erroneous or contrary to law. See NELR 72.3(d).
II. ANALYSIS
A. Whether the Magistrate Judge's Determination that a Trial in the District of Nebraska Would Not Violate the Defendant's Due Process Rights Was Clearly Erroneous or Contrary to Law
The defendant does not argue that the magistrate judge erred in his apprehension of the law concerning changes of venue based upon the Due Process Clause. (See Def.'s Br. in Supp. of Appeal of the Magistrate Judge's Order Denying Change of Venue [hereinafter Def.'s Br.] at 5.) Instead, the defendant claims that the magistrate judge erred "in his characterization of the news coverage in this case," (Def.'s Br. at 5), and erred in "discounting the survey results" presented by the defendant at the hearing of March 8. (Def.'s Br. at 8.)
The Magistrate Judge's Characterization of the News Coverage
Before embarking on his review of the extensive evidence of news coverage submitted by the defendant, the magistrate judge noted the following:
In assessing a motion for change of venue prior to questioning potential jurors, the court must determine if the media coverage has been "so inflammatory or accusatory as to presumptively create [`]a trial atmosphere that had been utterly corrupted by press coverage.[']" U.S. v. Blom, 242 F.3d 799, 804 (8th Cir. 2001) ([quoting] Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035 (1975)). A court assessing the effect of pretrial publicity must distinguish between largely factual publicity and that which is invidious or inflammatory. U.S. v. Faul, 748 F.2d 1204, 1212 (8th Cir. 1984). Straightforward, factual, and objective reporting, which is neither invidious nor highly sensationalized does not presumptively arouse lingering ill-will or vindictiveness in the local community. U.S. v. Bliss, 735 F.2d 294, 299 (8th Cir. 1984). Such objective reporting does not discuss the defendant as if his guilt were a foregone conclusion, but clarifies that the defendant has been "alleged" or accused of committing the crime. Simmons v. Lockhart, 814 F.2d 504, 509 (8th Cir. 1987)[, cert. denied, 485 U.S. 1015 (1988) and mandate recalled on other grounds, 856 F.2d 1144 (1988)].
I have omitted quotation marks from the preceding sentence because I cannot locate the material identified as a direct quote from United States v. Bliss, 735 F.2d 294, 299 (8th Cir. 1984). Though the sentence should not be designated as a quote, its "spirit" is, nonetheless, appropriately derived from Bliss. See United States v. Bliss, 735 F.2d at 299 ("The earlier publicity concerning Bliss consisted of straightforward, factual, and objective reports, rather than invidious reports tending to arouse lingering ill-will or vindictiveness in the local community.").
(Mem. and Order, filing 46, at 2-3.) As I noted above, the defendant does not argue that the magistrate judge's description of the relevant law is erroneous. (See Def.'s Br. at 5.)
The magistrate judge then proceeded to describe the television news coverage of the events that now form the basis of this case, and concluded that "[c]omparatively little was reported about the actual abduction," that the Kearney television station's coverage was "factual but non-inflammatory," and that the "newscasts did not refer to the defendant with a presumption of guilt, but clarified that he had been `accused' or was `suspected' of committing the crime." (Mem. and Order, filing 46, at 5.) The Omaha television coverage was characterized as "less extensive" and "neutrally presented both in content and tone." (Id. at 6.) The magistrate judge also reviewed the newspaper articles submitted by the defendant, and concluded that although the coverage was "extensive," it was "not at all inflammatory." (Id.) The magistrate judge also noted that "[t]he articles consistently referred to the defendant as a `suspect,' and not as the known perpetrator of the crime." (Id. at 7.) In sum, the magistrate judge concluded that "[t]he news coverage for the crime at issue, while extensive, was not sensationalized, inflammatory, or hostile, but was factual in content." (Id. at 9.)
The defendant argues that these characterizations of the news coverage are erroneous, claiming that the media have "instead inundated the public with sensational accounts of a violent and desperate criminal terrorizing a girl who has become a statewide heroine." (Def.'s Br. at 6. See also id. at 5.) He disputes the conclusion that the news coverage was neutral and non-inflammatory; argues that there have been characterizations of the defendant as a "career criminal" that are unqualified by terms such as "suspected," "accused," or "alleged"; claims that it is untrue that "comparatively little was reported about the actual abduction," (Mem. and Order, filing 46, at 5); and asserts that coverage focusing on the defendant's background is "at least as objectionable" as coverage of the "events." (Def.'s Br. at 6-7.)
I have reviewed the exhibits that were received in the hearing on the defendant's motion to transfer venue, and I conclude that the magistrate judge's characterization of the evidence is, on the whole, not clearly erroneous or contrary to law. The defendant's argument that the media characterized the victim as a statewide heroine is accurate. (See, e.g., Def.'s Ex. 1001 at 289.) It is also true that news articles described the defendant as violent or "desperate." (See, e.g., id. at 135-138.) However, the evidence consists of almost no examples of "invidious reports tending to arouse lingering ill-will or vindictiveness in the local community." United States v. Bliss, 735 F.2d at 299. (But see Def.'s Ex. 1001 at 127 ("Although it remains for a court of law to make it official, there can be no doubt about the guilt of Zappa in kidnapping Sluti. He was seen striking her and forcing her into a vehicle in Kearney and was caught point-blank holding her captive in a Montana cabin. His record of run-ins with the law make it clear that this was a scary guy."). See also id. at 135-138, 294.) The media coverage, while pervasive and not utterly devoid of relatively inflammatory material, was not so prejudicial and inflammatory as to create "a trial atmosphere that [would be] utterly corrupted by press coverage," U.S. v. Blom, 242 F.3d 799, 804 (8th Cir. 2001) (quotingMurphy v. Florida, 421 U.S. 794, 798 (1975)).
In his brief supporting his statement of appeal, the defendant refers me to two cases involving extremely inflammatory and prejudicial pretrial publicity. (See Def.'s Br. at 5.) In the first, Rideau v. Louisiana, 373 U.S. 723 (1963), the pretrial publicity and its effect were described as follows:
On the evening of February 16, 1961, a man robbed a bank in Lake Charles, Louisiana, kidnapped three of the bank's employees, and killed one of them. A few hours later the petitioner, Wilbert Rideau, was apprehended by the police and lodged in the Calcasieu Parish jail in Lake Charles. The next morning a moving picture film with a sound track was made of an `interview' in the jail between Rideau and the Sheriff of Calcasieu Parish. This `interview' lasted approximately 20 minutes. It consisted of interrogation by the sheriff and admissions by Rideau that he had perpetrated the bank robbery, kidnapping, and murder. Later the same day the filmed `interview' was broadcast over a television station in Lake Charles, and some 24,000 people in the community saw and heard it on television. The sound film was again shown on television the next day to an estimated audience of 53,000 people. The following day the film was again broadcast by the same television station, and this time approximately 20,000 people saw and heard the `interview' on their television sets. Calcasieu Parish has a population of approximately 150,000 people.
Some two weeks later, Rideau was arraigned on charges of armed robbery, kidnapping, and murder, and two lawyers were appointed to represent him. His lawyers promptly filed a motion for a change of venue, on the ground that it would deprive Rideau of rights guaranteed to him by the United States Constitution to force him to trial in Calcasieu Parish after the three television broadcasts there of his `interview' with the sheriff. After a hearing, the motion for change of venue was denied, and Rideau was accordingly convicted and sentenced to death on the murder charge in the Calcasieu Parish trial court.
Three members of the jury which convicted him had stated on voir dire that they had seen and heard Rideau's televised `interview' with the sheriff on at least one occasion. Two members of the jury were deputy sheriffs of Calcasieu Parish. Rideau's counsel had requested that these jurors be excused for cause, having exhausted all of their peremptory challenges, but these challenges for cause had been denied by the trial judge. . . .
The record in this case contains as an exhibit the sound film which was broadcast. What the people of Calcasieu Parish saw on their television sets was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff. . . .
In the view we take of this case, the question of who originally initiated the idea of the televised interview is, in any event, a basically irrelevant detail. For we hold that it was a denial of due process of law to refuse the request for a change of venue, after the people of Calcasieu Parish had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged. For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau's trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.Rideau v. Louisiana, 373 U.S. 723, 723-726 (1963) (footnotes omitted). Although the media publicized quotes taken from interviews with the defendant and certain of his family members in this case, the news coverage here is not at all similar to the "kangaroo court proceedings" described in Rideau. Id. at 726.
The second case cited by the defendant in his statement of appeal,Irvin v. Dowd, 366 U.S. 717 (1961), also involved publicity far more prejudicial and inflammatory than that in the case now before me:
Here the build-up of prejudice is clear and convincing. An examination of the then current community pattern of thought as indicated by the popular news media is singularly revealing. For example, petitioner's first motion for a change of venue from Gibson County alleged that the awaited trial of petitioner had become the cause célèbre of this small community — so much so that curbstone opinions, not only as to petitioner's guilt but even as to what punishment he should receive, were solicited and recorded on the public streets by a roving reporter, and later were broadcast over the local stations. A reading of the 46 exhibits which petitioner attached to his motion indicates that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial. The motion further alleged that the newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and that, in addition, the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents. These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess. Finally, they announced his confession to the six murders and the fact of his indictment for four of them in Indiana. They reported petitioner's offer to plead guilty if promised a 99-year sentence, but also the determination, on the other hand, of the prosecutor to secure the death penalty, and that petitioner had confessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted). One story dramatically relayed the promise of a sheriff to devote his life to securing petitioner's execution by the State of Kentucky, where petitioner is alleged to have committed one of the six murders, if Indiana failed to do so. Another characterized petitioner as remorseless and without conscience but also as having been found sane by a court-appointed panel of doctors. In many of the stories petitioner was described as the "confessed slayer of six," a parole violator and fraudulent-check artist. Petitioner's court-appointed counsel was quoted as having received "much criticism over being Irvin's counsel" and it was pointed out, by way of excusing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial the newspapers carried the story that Irvin had orally admitted the murder of Kerr (the victim in this case) as well as "the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Ky."
It cannot be gainsaid that the force of this continued adverse publicity caused a sustained excitement and fostered a strong prejudice among the people of Gibson County. In fact, on the second day devoted to the selection of the jury, the newspapers reported that "strong feelings, often bitter and angry, rumbled to the surface," and that "the extent to which the multiple murders — three in one family — have aroused feelings throughout the area was emphasized Friday when 27 of the 35 prospective jurors questioned were excused for holding biased pretrial opinions. . . ." A few days later the feeling was described as "a pattern of deep and bitter prejudice against the former pipe-fitter." Spectator comments, as printed by the newspapers, were "my mind is made up"; "I think he is guilty"; and "he should be hanged."Irvin v. Dowd, 366 U.S. 717, 725-27 (1961). I recognize that there are a number of similarities between the publicity described by the Court inIrvin and the evidence in this case — perhaps enough to raise the proverbial eyebrow. For example, there is evidence that "curbside opinions" regarding punishments for the defendant were overheard by a reporter (see Def.'s Ex. 1001 at 109 ("At Tex's Cafe, breakfast diners talked of the fortunate break in the case and the great police work. They concocted painful, mock punishments for Zappa. . . .")). Also as in Irvin, the defendant's alleged prior criminal exploits were described by the media. (See, e.g., Def.'s Ex. 1001 at 135-38.) In addition, the defendant was characterized as a "jackrabbit" and "master of escape," (see Def.'s Ex. 1001 at 5, 106), and as a "whipped dog" at the time of his surrender to police (see id. at 103.) The defendant was also identified as the person who surrendered to police at the time of the victim's release. (See id.) However, here there were no reports of any guilty pleas, confessions, admissions, vindictive prosecutors or sheriffs, or criticisms of defense counsel based upon his mere association with the defendant — all of which were present inIrvin. Evidence of a "deep and bitter prejudice" such as that described in Irvin is simply not present here. In fact, it was reported that the victim's parents forgave the defendant. (See Def.'s Ex. 1001 at 205.) The defendant was not characterized as "remorseless and without conscience," Irvin, 366 U.S. at 726, but as a man displaying "humanity." (See Def.'s Ex. 1001 at 75.)
However, unlike Irvin, in the present case the substance of those opinions was not reported, and the article characterizes these unspecified opinions as being offered in jest rather than out of vindictiveness. (See Def.'s Ex. 1001 at 109.)
For the foregoing reasons, I conclude that the magistrate judge's determination that the news coverage "did not create a presumptively prejudicial effect on the pool of available jurors in this jurisdiction" was not clearly erroneous or contrary to law. (Mem. and Order, filing 46, at 10.)
The Defendant's Survey
Next, the defendant argues that the magistrate judge erred by discounting the defendant's survey evidence. (See Def.'s Br. at 7.) The magistrate judge criticized the wording of a key question included in the survey, stating, "The wording of the question was perhaps unfortunate in that it asked the interviewee to make a finding based not only on any evidence, but entirely on the news coverage, or that unspecified part of it `read, seen, or heard' by the interviewee." (Mem. and Order, filing 46, at 8 n. 3.) Then, the magistrate judge appeared to devalue the survey evidence because "the interviewees were never asked if they could set aside what they had `read, seen, or heard' and reach a verdict based solely on the evidence presented at trial." (Id. at 8.) The magistrate judge stated that to require a change of venue, "[t]he ultimate test is whether a juror has been exposed to pre-trial publicity and, if so, whether he or she can set aside any impression or opinion resulting from that exposure and render a verdict based solely on the evidence presented at trial." (Mem. and Order, filing 46, at 8 (quoting United States v. Bliss, 735 F.2d 294, 298 (8th Cir. 1984).)
I agree with the defendant that the magistrate judge erred in discounting the defendant's survey evidence. First, I disagree with the magistrate judge's criticism of the survey question that asked, "Based on what you have read, seen, or heard, please tell me if you think the person arrested for the kidnapping is: [definitely guilty; probably guilty; probably not guilty; definitely not guilty; or would you say you are not sure?]" (Mem. and Order, filing 46, at 7.) As I noted above, the magistrate judge's criticism is based upon his observation that the question did not ask the survey respondents to make a finding based only upon the evidence. (See id. at 8.) However, it is unclear to me why the magistrate judge assumed that the respondents would be privy to any evidence at all. On the contrary, I think it is safe to assume that most respondents could not base their judgment on any evidence, but only upon the pretrial publicity that they were familiar with.
Only those persons who were qualified to answer this particular question were allowed to do so. (See Hr'g Tr., Mot. to Change Venue, filing 49, at 51:1-9.) That is, only those respondents who answered "yes" to a question asking them whether they recalled seeing, hearing, or reading anything about the kidanpping and answered "yes" to a question asking them whether anyone was arrested for the kidnapping were asked the question criticized by the magistrate judge. In order to qualify to answer the magistrate judge's preferred version of the question, respondents would first have to answer "yes" to a preliminary question asking them whether they had seen, heard, or read any evidence in this case. I expect no one surveyed would qualify to answer "yes" to such a question unless he or she were connected with the criminal investigation in some way, which would in turn render that respondent unrepresentative of potential jurors in this case.
Setting aside the fact that the survey respondents were likely not presented with any evidence to base their judgement on, which means they would not have been qualified to answer the magistrate judge's preferred version of the question, it seems to me that the magistrate judge may have misapprehended the showing a defendant must make in order to obtain a pre-voir dire transfer of venue. Relying upon Bliss, the magistrate judge suggested that the survey was deficient due to its failure to ask respondents whether they could set aside the pretrial publicity and reach a verdict based solely on the evidence. (See Mem. and Order, filing 46, at 8.) However, the portion of Bliss relied upon by the magistrate judge concerned the inquiry to be made at the time of voir dire. See United States v. Bliss, 735 F.2d 294, 297-98 (8th Cir. 1984). The Eighth Circuit evaluates motions to change venue according to a "two-tiered analysis."United States v. Blom, 242 F.3d 799, 803 (8th Cir. 2001). The first tier occurs prior to voir dire, where "the question is whether `pretrial publicity was so extensive and corrupting that a reviewing court is required to "presume unfairness of a constitutional magnitude.'" Id. (quoting Pruett v. Norris, 153 F.3d 579, 585 (8th Cir. 1998) (quotingDobbert v. Florida, 432 U.S. 282, 303 (1977))). In other words, at this stage the defendant has an opportunity to demonstrate that jurors are presumed to be prejudiced by the pretrial publicity, and there is no requirement that the defendant also demonstrate that specific jurors are unable to set aside that publicity. Indeed, such a requirement would seem to foil the very concept of a presumption of prejudice. As stated by the Supreme Court:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
The adoption of such a rule, however, `cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law.' Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. As stated in Reynolds, the test is `whether the nature and strength of the opinion formed are such as in law necessarily . . . raise the presumption of partiality. . . .' [Reynolds v. United States, 98 U.S. 145, 156.]Irvin v. Dowd, 366 U.S. 717, 723 (1961).
In Rideau v. Louisiana, 373 U.S. 723 (1963) and Irvin v. Dowd, 366 U.S. 717 (1961), which are discussed in detail above, the pretrial publicity was determined to be so prejudicial that the defendant's due process rights were deemed to have been violated. In these "rare and extreme cases," Blom, 242 F.3d at 803, circumstances are so egregious that prejudice is presumed, and therefore there is no need to proceed to the voir dire stage in that particular venue. See Blom, 242 F.3d at 803-04. The defendants in Rideau and Irvin were not required to demonstrate that jurors could not set aside the prejudicial, inflammatory publicity in order to establish a due process violation. Similarly, I feel that the defendant's survey evidence should be considered in connection with his argument that venue ought to be changed in this case prior to voir dire. Whether or not specific jurors can set aside their prior impressions or opinions is a question that will be revisited later, at the time of voir dire.
Although I have concluded that the magistrate judge erred in discounting the survey evidence, I find that considering this evidence does not change the ultimate determination that the pretrial publicity did not create a presumptively prejudicial effect in this case. The defendant argues that his survey shows that "[o]f those people familiar with the incident, over 60% have already determined that Mr. Wright is `definitely guilty' of kidnapping Anne Sluti, with another 26% believing that he is `probably guilty.'" (Def.'s Br. at 7.) However, these percentages exclude from consideration those persons who could not recall seeing, hearing, or reading about the abduction and those persons who did not answer "yes" when asked whether anyone was arrested for the kidnapping. (See Hr'g Tr., Mot. to Change Venue, filing 49, at 51:1-14.) If those persons are included, the overall percentage of persons who completed the survey who believed that the defendant is "definitely guilty" drops to 36.5%, and the percentage of persons who believed he is "probably guilty" drops to 15.6%. (See Def.'s Ex. 1022 at 10.) Thus, nearly half of the sample of respondents who completed the survey did not have a belief that the defendant was guilty based upon pretrial publicity.
Using the 60% and 26% figures, the defendant argues that "[t]hese numbers are comparable to the statistics in Irvin v. Dowd, where the fact that two-thirds of the jurors thought the petitioner was guilty helped lead to a change in venue." (Def.'s Br. at 7.) Even if I were to use the defendant's numbers, this case is not comparable to Irvin. InIrvin, voir dire examination established that two-thirds of the jurors "finally placed in the jury box," or eight of the twelve actual jurors who decided the case, thought the defendant was guilty prior to trial.See Irvin v. Dowd, 366 U.S. 717, 727-28 (1961). Obviously, we have not yet had voir dire in this case, and we shall endeavor not to finally place jurors in the box who already believe that the defendant is guilty. Steps to ensure against such a result are already underway, and I shall discuss them below. I should also mention that if the voir dire examination in this case does suggest that jurors are prejudiced against the defendant, he may then renew his motion for a change of venue. See, e.g., United States v. Blom, 242 F.3d 799, 804 (8th Cir. 2001).
The defendant also argues that the survey respondents recalled details of the crime, and that this means their opinions will be more difficult to set aside. He states, "For example, forty-two percent of those interviewed for the survey recalled where Ms. Sluti was found after her disappearance from Hilltop Mall. Twenty-six percent of those surveyed remembered that she was gone approximately seven days. Thirty-five percent recalled that Ms. Sluti had a black eye when found." (Def.'s Br. at 8 (citations omitted).) However, the defendant gleaned these figures from the wrong columns of the tables presented in his exhibit. (See Def.'s Ex. 1022 at 7-9.) He should use the column labeled "percent," not "valid percent," to argue percentages "of those interviewed for the survey." (See Hr'g Tr., Mot. to Change Venue, filing 49, at 35:19-36:4 ("The percent column refers to the percent of the total sample. . . .").) The correct figures are: 1) 18.2% of those surveyed recalled where the victim was found; 2) 11.4% recalled that she was gone approximately seven days; and 3) 10.4% recalled that the victim had a black eye when found. (See Def.'s Ex. 1022 at 7-9.) The exhibit also shows that 61.6 of those surveyed either had no recall of any pretrial publicity or could not recall any details of the case accurately. (See id. at 9.) I find that the survey evidence does not establish that prejudice against the defendant should be presumed based upon the pretrial publicity. Therefore, the magistrate judge's ultimate conclusion that the pretrial publicity did not create a presumptively prejudicial effect in this case is not clearly erroneous or contrary to law, despite the failure to consider the survey evidence properly.
B. The Court's Supervisory Power to Change Venue
The magistrate judge's failure to address the defendant's argument that venue should be changed pursuant to Marshall v. United States, 360 U.S. 310 (1959) and Federal Rule of Criminal Procedure 21(a) was clearly erroneous. I shall therefore review the defendant's argument myself and modify the magistrate judge's order to accommodate this new analysis.See 28 U.S.C.A. § 636(b)(1)(A) (West 1993), Federal Rule of Civil Procedure 72(a), and NELR 72.3(d).
Federal Rule of Criminal Procedure 21(a) provides:
The court upon motion of the defendant shall transfer the proceeding as to that defendant to another district whether or not such district is specified in 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.
The Eighth Circuit has recognized that it has "supervisory power to order a new trial in federal cases for reasons that do not amount to a due process violation." United States v. Blom, 242 F.3d 799, 803 (8th Cir. 2001). Thus, it would seem that the standard for determining whether a change of venue is appropriate under this alternate rule is less stringent than the due process standard discussed above.
In support of his argument that venue should be transferred pursuant to Rule 21(a), the defendant first refers me to Marshall v. United States, 360 U.S. 310 (1959). In Marshall, jurors were exposed to prejudicial material during the trial. See id. at 311-12. Therefore, the facts of that case are not comparable to the present one, where the issue is whether pretrial publicity has resulted in "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). However, although Marshall sets forth no specific standard for determining whether venue should be changed pursuant to a court's supervisory powers, the Court did explain that "[t]he 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. Generalizations beyond that statement are not profitable, because each case must turn on its special facts." Marshall v. United States, 360 U.S. at 312 (citation omitted).
The defendant also refers me to United States v. Tokars, 839 F. Supp. 1578 (N.D.Ga. 1993), wherein the court concluded that the decision to transfer venue was "not a close one" under the Marshall standard:
Given the extraordinary degree of pretrial publicity, the difficulty of identifying truly unbiased jurors, the inconvenience of rescheduling the trial should voir dire prove unsuccessful in identifying unbiased jurors, and the availability of a relatively convenient, suitable alternative venue in Birmingham, Alabama, the court finds that change of venue prior to attempting jury selection is clearly warranted.United States v. Tokars, 839 F. Supp. at 1584. Similarly, in United States v. Engleman, 489 F. Supp. 48 (E.D.Mo. 1980), the court relied on prudential considerations such as efficiency and convenience in deciding to transfer venue prior to voir dire:
In some cases, massive publicity may diminish the efficacy of voir dire in screening prospective jurors.
Effective and economic judicial administration is not well served by calling an inordinate and unwieldy number of veniremen to see if an unbiased jury might be obtained, especially when it is already apparent that a substantial chance of intolerable prejudice exists.
Although the government argues for awaiting voir dire, the Court finds that the logistics of trying this case are too great to wait until the eve of trial before reaching a decision on where the trial will be held. If the case is tried in this district (as opposed to another district removed from the intense publicity prevalent here), hotel accommodations must be reserved here promptly for jurors, alternates, their bailiff, and numerous witnesses. Transportation and lodging for witnesses, attorneys, and staff is a major undertaking in terms of planning time, expense, and inconvenience. These logistical problems, together with the problem of obtaining a suitable court facility, when combined with defendants' request for removal to another metropolitan area, severely limit the places to which this case can feasibly be transferred. Regardless of where the trial is held, planning must begin now to avoid extended delay beyond the time constraints imposed by law, and to avoid unnecessary expenditure of public monies in summoning hundreds of qualified veniremen for a panel which, in all likelihood, would not be used. A change of venue during voir dire would immeasurably increase the burden, expense, and inconvenience on all parties and the Court, and would result in unacceptable delay.United States v. Engleman, 489 F. Supp. at 50 (citations omitted). The court also noted that "the wide dissemination of inflammatory publicity shortly before trial has created an atmosphere of pervasive public prejudice so great that it is impossible for the defendants to obtain a fair trial at any place fixed by law for holding court in the Eastern District of Missouri. If the Court did not grant defendants' separate motions for change of venue, this cause would begin with built-in grounds for reversal." Id. at 51.
Finally, the defendant refers me to United States v. Moody, 762 F. Supp. 1485 (N.D.Ga. 1991), wherein the court developed the following test:
[A] motion for change of venue [must] 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.United States v. Moody, 762 F. Supp. at 1487.
I have considered these cases, along with the Eighth Circuit's general teaching that it is preferable to await voir dire before ruling on a motion to transfer venue. See United States v. Blom, 242 F.3d 799, 804 (8th Cir. 2001) (quoting United States v. Green, 983 F.2d 100, 102 (8th Cir. 1992)). I have also considered the evidence in the light of these cases. Although the present case has certainly been well-publicized, I conclude that here there is not "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 [this] district." Fed.R.Crim.P. 21(a). Furthermore, steps have been taken to help ensure that a fair trial will be had without changing the venue to another district. For example, this case has now been scheduled for trial in Omaha instead of Lincoln (see Mem. and Order, filing 46, at 12) and the jury pools for Omaha and Lincoln will be used to prepare the venire in this case. (See Order dated April 5, 2002, filing 47.) In addition, the venire has been refined through the use of a questionnaire that has been sent to prospective jurors. A substantial number of these questionnaires have been returned with responses suggesting that many potential jurors are suitable to participate in voir dire. Thus, as the jury is assembled it may be possible to avoid the time and expense of weeding through clearly biased individuals. The transfer of the trial to Omaha and the use of the questionnaires, along with other measures that will likely be employed at the time of juror selection, will help assure the selection of an unbiased jury. See United States v. Blom, 242 F.3d at 804. Although it is true that waiting until voir dire to revisit the defendant's arguments might result in costs and delays of the sort mentioned in Tokars and Engleman, it seems to me also that significant costs may be avoided if a fair jury may be assembled here as opposed to in another district. Finally, it bears repeating that although the defendant's motion to transfer venue is being denied at this time, his motion may be renewed if he believes that the voir dire testimony of the chosen jurors demonstrates that an impartial jury was not selected. See United States v. Blom, 242 F.3d at 804.
IT IS ORDERED that the Defendant's Statement of Appeal of Magistrate Judge's Order, filing 48, is denied. However, the magistrate judge's Memorandum and Order, filing 46, is modified to incorporate the analyses I have set forth in the memorandum accompanying this order.