parte before the court of public opinion and coercing a leaning towards the prosecution's side. Such action by a powerful officer such as is the United States Attorney was prejudicial and must be condemned so that it may not be repeated. This must not be misunderstood. I have always had, and will most likely continue to have, the highest regard for the United States Attorney as a trustworthy gentleman of high principles. I attribute this incident only to inadvertent aberration which may occur to any human being.
However, it is necessary that the trial judge, even if critical of the action by counsel for one side or another, as so often happen in cases, nevertheless, remain neutral, fair and applies the law justly. That was, is and will be my function. And while I set these matters out in detail, it is done to provide a background for the evaluation of the defendants' request for a change of venue and for the further purpose of indicating to the defendants that the trial judge was well aware of many of the occurrences concerning which they complained. Accordingly, judgment must here be made on the facts as they exist and as the law is applicable to them.
Since a second indictment was subsequently presented, which contained six charges encompassing the original ten counts against the three original defendants, while adding another defendant, John Shurina, with sixteen counts, without a motion having been made by the prosecution to dismiss the original indictment, the defendants also complain that they are in effect being exposed to double jeopardy. The question in the first instance then must present itself to the trial judge on whether the prosecution intends to proceed upon both indictments as they would then contain duplicate charges. If it acts on the first indictment, it will have abandoned the second indictment with the additional counts and additional defendant, John Shurina. If it acts on the second indictment, will the three original defendants be prejudiced?
The defendants also contend that the second indictment is premature because if the first indictment is dismissed those same counts in the second indictment would also fail; and in the event the first indictment is dismissed, certain counts on the face of the second indictment occurring prior to August 5, 1976, would be beyond the statute of limitations, including the amount of conspiracy as it applies to overt acts prior to the expiration of the permissible statute of limitations. Because these questions are based upon hypothesis and speculation, I am not required to consider them presently.
At the last argument on the motions, the defendants submitted two voluminous exhibits, stipulated to by the Government as authentic, of a large amount of news articles found in various newspapers throughout the Commonwealth of Pennsylvania concerning this case. These defendants' Exhibits A and B are an accumulation of news articles concerning the same matters circulated about the same time by the wire services or local reporters. I have thoroughly reviewed these two exhibits.
The complaint by the defendants here is that the public action of the prosecution, particularly the United States Attorney, was frivolous, without any substantiation either in fact or law, and that the assertions were so prejudicial to the defendants as to deprive them of their rights to a fair trial in this District Court. These defendants contend that the televised press conferences, particularly, and the information given to the press by the United States Attorney prejudiced their rights to such an extent as to make it impossible for them to receive an impartial trial unprejudiced by anything that the United States Attorney might have said or done as based upon the prosecution's overreaching and bad faith activities.
Most of the publicity, it will be seen, heightens the prosecutorial values as it lowers -- and condemns as already convicted -- the three individual defendants. The publicity was well spread, particularly throughout the 25 counties comprising the Western District of Pennsylvania as it comprises the jurisdiction from which this court's jurors are called and empanelled. It would be from these counties that persons for any retrial of these defendants must be summoned for jury service.
That all publicity did not leave some impact of bias or even conviction in the minds of some persons of this District, may not be dismissed out of hand as being improbable because by our modern method of communication there can never be some likelihood of a recollected and even biased carry-over which would in some manner be unfair in a trial of a defendant. Under such circumstances our courts have held that reason and judicial concern must be left to the trial judge to see to it that defendants receive an unbiased, fair and just trial.
Whether or not, as of the time when a retrial should be rescheduled, the jury wheel would produce any persons who would have become familiar with any of the circulated publicity as of the time before, during and following the first trial of these defendants is problematical. If such persons were to be summoned and they recalled anything of the publicity which might in any way be prejudicial to the defendants, such information would be available to the trial judge and counsel for the parties as of voir dire time and the defendants could then be properly protected. The fact that there had been wide publicity in this case, as in many other cases, is in itself no indication that a fair trial cannot be had. Probably no greater example of that has been shown than recently when the public was deluged by the publicity in the cases of United States of America v. Patricia Hearst, 412 F. Supp. 873 (D.C.Cal.1976) and United States of America v. Haldeman, et al., 181 U.S. App. D.C. 254, 559 F.2d 31 (1976). And even in those cases, their trials were eventually had.
It is quite true that a probable effect of any imprudence on the part of the United States Attorney did in some way prejudice the defendants' rights to a fair trial. The only question is to what extent, then, has it occurred? Considerable time has elapsed since the motion for a mistrial was granted. I have dutifully attempted to not only safeguard the defendants' fair trial but as well I have protected the government's right to re-try its case by requiring the defendants to waive their rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. The time delay has been of benefit to both sides, because the furor raised by the indiscreet and erroneous tactics of the prosecution have sufficiently died down. A better atmosphere will have been created by which a truly fair and proper voir dire may be had.
Directing myself specifically to the defendants' motions, I must base my decision on the law of the case. Any other basis for a decision would only result in futility. In any event, dismissal of the indictments is not the appropriate result upon a motion to dismiss based upon pretrial publicity, at least until a voir dire may be conducted. United States v. Abbott Laboratories, 505 F.2d 565, C.A.4, 1974; United States v. Pfingst, 477 F.2d 177, C.A.2, 1973; United States v. Whiteside, 391 F. Supp. 1385 (D.C.Del.1975); United States v. Archer, 355 F. Supp. 981 (D.C.N.Y.1972). These cases all dealt with prosecutorial misconduct of a sort.
In United States v. Addonizio, 313 F. Supp. 486 (D.C.N.J.1970), aff'd. 451 F.2d 49, C.A.3, 1972, the District Court held that "Even, however, accepting that characterization of the pre-trial publicity herein, this court is not persuaded that that fact alone necessarily precludes the possibility of selecting a fair and impartial jury for the trial of the indictment . . . See Patriarca v. United States, 402 F.2d 314, [C.A.1, 1968], cert. den. 393 U.S. 1022, 89 S. Ct. 633, 21 L. Ed. 2d 567 (1969); United States v. Corallo, 281 F. Supp. 24 (D.C.N.Y.1968)." (at page 493).
In United States v. Haldeman, supra, 181 U.S. App. D.C. 254, 559 F.2d 31, (1976), per curiam, the Court held at pages 61-62:
"We have carefully reviewed the 'Watergate' articles submitted by appellants, and we find that the pretrial publicity in this case, although massive, was neither as inherently prejudicial nor as unforgettable as the spectacle of Rideau's dramatically staged and broadcast confession. It is true that some of the pieces contained in the extensive collection of articles gathered by the appellants are hostile in tone and accusatory in content. The overwhelming bulk of the material submitted however, consists of straightforward, unemotional factual accounts of events and of the progress of official and unofficial investigations. In short, unlike the situation faced by the Court in Rideau, we find in the publicity here no reason for concluding that the population of Washington, D.C. was so aroused against appellants and so unlikely to be able objectively to judge their guilt or innocence on the basis of the evidence presented at trial that their due process rights were violated by the District Court's refusal to grant a lengthy continuance or a change of venue prior to attempting selection of a jury."
This case is somewhat different in one respect from what the Court said in United States v. Haldeman, supra, at page 61, in that the proportion of publicity might vary in our case from that in which the Court found was "straightforward, unemotional factual accounts of events and of progress of official and unofficial investigations." In tune with the current cases of this Circuit and others, it is at least more expedient to wait until a thorough voir dire before a motion to change venue should be entertained. Although not the best way, it is the judicially approved way.
While the defendants argue that a second indictment is premature, it is clearly true, nevertheless, that the government may have two or more indictments pending against a defendant on the same or related charges adding or subtracting pertinent counts. United States v. Ragano, 520 F.2d 1191, C.A.5, 1975; DeMarrias v. United States, 487 F.2d 19, C.A.8, 1973, cert. den. 415 U.S. 980, 94 S. Ct. 1570, 39 L. Ed. 2d 877 (1974); United States v. Wilsey, 458 F.2d 11, C.A.9, 1972; United States v. Garcia, 412 F.2d 999, C.A.10, 1969; United States v. Bowles, 183 F. Supp. 237 (D.C.Me.1968). A second indictment in this case, at this time, is not premature especially when there is an outstanding motion on the first.
All counts in the first indictment occurred within the five year period required by law, the earliest count occurring in March 1971, while the indictment was returned February 25, 1976. The second indictment was returned in August 1976 and if the defense is arguing that Counts 5, 7, 8 and 9 are barred because they happened in April and May 1971, it is no basis for argument. The filing of an indictment tolls the statute of limitations and if a second indictment is filed prior to the dismissal of the first, the counts in the second are timely because the original statute was tolled by the first indictment. United States v. Wilsey, supra; United States v. Garcia, supra; United States v. Feinberg, 383 F.2d 60, C.A.2, 1967; United States v. Powell, 122 U.S.App.D.C. 229, 352 F.2d 705, 1965.
Finally, as for the defendants' argument that overt acts charged in Count 1 would be beyond the statute of limitations, the statute does not begin to run on a conspiracy charge until the date of commission of the last overt act. United States v. Johnson, 165 F.2d 42, C.A.3, 1947, cert. den. 332 U.S. 852, 68 S. Ct. 355, 92 L. Ed. 422 (1948).
Accordingly, the defendants' motions to dismiss both indictments or in the alternative change of venue will be denied without prejudice.
To obviate any indication of bias or partiality on my part for either side or for any parties, and for the purpose of securing to the Government a fundamentally basic vehicle for its prosecution and for the defendants a fundamentally fair and impartial trial on the charges levelled against them in the indictments, I deem it feasible that I withdraw as the presiding judge in this case. I am therefore referring this action back to the Clerk of Court for reassignment to another judge for further disposition of the case.
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