532

Rule 21 Transfer for Prejudice in the District

Although a showing of actual prejudice is not a prerequisite for a Rule 21(a) transfer, Estes v. State of Texas, 381 U.S. 532 (1965), reh'g denied, 382 U.S. 875 (1965), there must be a showing of identifiable prejudice, United States v. Hinton, 268 F. Supp. 728 (E.D.La. 1967) for a court to order the transfer of a case to another district under Fed. R. Crim. P. 21. After a motion by defendant under Rule 21(a) is made and once the court is satisfied that a transfer is necessary to insure a fair and impartial trial, the order of transfer may not be revoked by the defendant's change of mind (though the court may have the authority to rescind the transfer in its sound discretion), United States v. Anguilo, 497 F.2d 440 (1st Cir. 1974), cert. denied, 419 U.S. 896; United States v. Marcello, 423 F.2d 993 (5th Cir. 1970), cert. denied, 398 U.S. 959, reh'g denied, 399 U.S. 938 (1970). When a Rule 21(a) motion is made, "the ultimate question 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." United States v. Rewald, 889 F.2d 836, 863, (9th Cir.1989), quoting, United States v. McDonald, 576 F.2d 1350, 1354 (9th Cir.1978), cert. denied, 439 U.S. 830, 927 (1978); Haldeman v. United States, 559 F.2d 31, 63-64, (D.C.Cir.1976), cert. denied, 431 U.S. 933 (1977). "There is no precise rule prescrib[ing] the type of voir dire examination which is necessary to protect against prejudicial pretrial publicity." United States v. Giese, 597 F.2d 1170, 1183 (9th Cir.1979), cert. denied, 444 U.S. 979 (1979). The appropriate scope and detail of voir dire depend on the "level of pretrial publicity and the discretion of the court." Id. at 1183. The court must also be sensitive to prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333 (1965); Estes v. State of Texas, 381 U.S. 532. The court may disregard prospective jurors' assurances of impartiality if there is a well grounded fear that a prejudicial atmosphere would prevent a fair trial; Sheppard v. Maxwell. Although jurors must be impartial, they need not be totally ignorant of the facts. Irwin v. Dowd, 366 U.S. 717 (1961). The Court said in Irwin that with the swift, ubiquitous and diverse means of communication available today one could scarcely expect that "any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases." Furthermore, said the Court: "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Id. at 722-723. See Murphy v. Florida, 421 U.S. 794, 800 (1975); Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993), cert. denied, 114 S.Ct. 1294 (1994); Seattle Times v. U.S. District Court for the Western District of Washington, 845 F.2d 1513, 1517-18 (9th Cir. 1985). The Court's discretion is necessarily broad in the area of pretrial publicity. Indeed a "special deference," is given to trial courts in this area, Patton v. Yount, 467 U.S. 1025, 1038 (1984), and the trial court's finding of impartiality may be overturned only for manifest error. Mu'Min v. Virginia, 500 U.S. 415, 428 (1991); Irvin v. Dowd, 366 U.S. at 723; United States v. Giese, 597 F.2d at 1184 ("Unless a trial judge clearly has erred in his estimation of the action needed to uncover and prevent prejudice from pretrial publicity, an appellate court should not intervene and impose its estimate"). In Mu'Min the Supreme Court displayed its confidence in the ability of trial judges, through the voir dire process, to protect defendants against prejudicial pretrial publicity. The Court said: "Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have its effect, and brings to the evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror." 500 U.S. at 427. Although many cases suggest that voir dire is the proper time for the court to determine the question of whether a fair and impartial trial can be had because of the claim of prejudice against a defendant in a district, there is no requirement that the determination be made at voir dire, and it can be made whenever the court "is satisfied" that it has sufficient information to make the decision. United States v. Marcello, 423 F.2d 993. Cost and time are important considerations when it has to be decided whether or not to transfer a case out of a district. If cost and time are major obstacles, the court may decide against transferring a case even before voir dire. United States v. Engleman, 489 F. Supp. 48, 50 (E.D.Mo. 1980). Nevertheless, voir dire helps to confirm a court's decision and buttress the showing of no abuse in the court's decision. United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), cert. denied, 416 U.S. 936, reh'g denied, 416 U.S. 1000; Bearden v. United States, 320 F.2d 99 (5th Cir. 1963). Dismissal on a showing of prejudicial pretrial publicity caused by the government is not a proper remedy on motion of a transfer, and normally voir dire must be employed to test whether a fair trial can be held in the district, United States v. Abbott Laboratories, 505 F.2d 565 (4th Cir. 1974), cert. denied, 420 U.S. 990.