Scranton staff has, no doubt, often gone for lengthy periods without the presence of Mr. McDade. Standing trial in Philadelphia will not disrupt Mr. McDade's business substantially more than any other defendant's business is disrupted by having to defend criminal charges. Wherever the trial takes place, it is the fact of the trial, not its situs, which will be the preoccupying factor tending to distract Mr. McDade from the performance of his congressional business.
As for the rest of the Platt factors, the combined expense to Mr. McDade and the government is not likely to be much different in Philadephia from that in Scranton. Mr. McDade has retained counsel in both locales, as well as counsel from elsewhere, and both of the government's counsel are located in Philadephia. I find Philadephia to be as accessible as, if not more accessible than, Scranton for the defendant, counsel, the potential witnesses, and interested observers. Finally, as to the last factor, this court's docket is current, and even if it were not, this case would get a priority listing under the Speedy Trial Act, 18 U.S.C. § 3161, et seq., since it is a criminal case.
Mr. McDade also argues a special, pragmatic consideration. In order to convict a defendant of a crime, the government must prove venue. United States v. Passodelis, 615 F.2d 975 (3d Cir. 1980). Mr. McDade argues that, since some of the counts of the indictment contain tenuous connections to the Eastern District, the government may have a difficult time proving that Mr. McDade engaged in illegal activity in this district. Therefore, some of the charges against Mr. McDade might have to be dismissed at the close of the government's case, or any convictions might be reversed on appeal. But that is not a consideration for the court at the pretrial stage. For better or for worse, the government has chosen to bring this case in the Eastern District, and it has assumed the jurisdictional risks inherent in that decision. If it fails properly to establish venue for any of the crimes charged, those counts will be dismissed at the appropriate time. If the court wrongly declines to dismiss those counts, the convictions will likely be reversed on appeal. This is so in every criminal case. But, for now, my consideration is whether the government has alleged proper venue. It has. Any concern over proof of venue can be taken up during trial, and should that proof fail, it should ultimately work to the defendant's benefit.
At oral argument, counsel for Mr. McDade brought up another special consideration, one that I regard as having more substance in this case than the litany of change-of-venue criteria just discussed. He argued that Mr. McDade would not get a fair trial in Philadephia because the jury would not give much heed to the character testimony of Mr. McDade's witnesses. Mr. McDade argues that, since Philadelphians consider themselves to be more sophisticated than their neighbors in other parts of the Commonwealth of Pennsylvania, they will not view Mr. McDade's character witnesses, most of whom will hail from small towns in Mr. McDade's congressional district, as knowledgeable, reliable, credible witnesses. According to Mr. McDade, some of these witnesses will be prominent members of their communities, deserving of the jury's highest regard, but a jury full of Philadelphians will give less credence to the testimony of small town leaders than would residents of other small towns.
I do not necessarily accept Mr. McDade's assertion that Philadelphians are, on the whole, closed-minded and condescending.
On the contrary, they strike me as a varied batch. But more significantly, Philadelphia makes up only part of the Eastern District of Pennsylvania. The Eastern District consists of ten counties, many of which are rural and most of which contain small towns. The jury panel in this case will presumably comprise people from all over the Eastern District, thereby containing Philadelphians, rural residents, and small-town natives alike.
In addition, the government points out that it would be equally, if not more, difficult to get a fair jury in the Scranton area, where nearly everyone at least knows of Mr. McDade, and where this case has received plentiful press coverage.
For this reason, the practical effect of this motion is substantial. At oral argument, counsel for Mr. McDade conceded that Mr. McDade would be more likely get a favorable array of prospective jurors when picking from his friends, neighbors, and constituents, than he would in a relatively strange vicinage.
By all accounts, Congressman McDade has worked to some considerable effect to rejuvenate the economy in his congressional district, and that fact has not gone unappreciated on the home front. But just as judge-shopping should be eschewed, so should jury-shopping. There is no suggestion that the defendant could not get a fair trial in the hands of twelve citizens of the Eastern District of Pennsylvania, but there is some suggestion that the government could perhaps get less than a fully unfair trial were the case tried in Mr. McDade's congressional district. It must be remembered that it is not just the defendant, but also the government, that is entitled to a fair trial.
But neither of those factors is the real reason for my ruling. Rather, I have sought to make this venue call on a straight application of established caselaw to the facts of this case. To sum up, I find that venue is proper in the Eastern District of Pennsylvania, and that neither the Platt factors nor the additional arguments raised by Congressman McDade justify transferring this case to the Middle District of Pennsylvania, especially in light of the contiguous proximity of the two districts. Although it is arguably within the discretion of the court to transfer this case, Mr. McDade will not be prejudiced by having to stand trial in Philadelphia, and Scranton would not be a more convenient place to try the case. I conclude that this case is not an appropriate one for my stepping in and divesting the government of its legally proper election of venue.
An Order follows.
AND NOW, this 6th day of May, 1993, upon careful consideration of all the pretrial motions of the defendant, and after argument in open court, the following motions are DENIED:
Motion to Dismiss the Indictment to the Extent that it Contravenes the Speech or Debate Clause
Motion to Dismiss the Indictment for Failure to Plead Adequately the Elements of 18 U.S.C. § 201(c)(1)(B)
Motion to Dismiss Counts I and III for Failure to Plead Adequately the Elements of Conspiracy
Motion for Pretrial Disclosure of Co-Conspirators' Statements and for Pretrial Proof of Connection to the Conspiracy
Motion for Pretrial Standing under Title III to Obtain Evidence Related to Other Conspiracies
Motion to Dismiss Count Five for Failure to Allege the Elements of a RICO Violation
Motion for Bill of Particulars
Motion to Transfer to the Middle District of Pennsylvania
BY THE COURT:
Robert S. Gawthrop, III J.
AND NOW, this 6th day of May, 1993, upon careful consideration of all the pretrial motions of the government, and after argument in open court, the motions are resolved as follows:
Omnibus Motion in Limine is DENIED as unripe. The issues of the admissibility of prosecutorial motive in seeking the indictment, the non-criminal behavior of the defendant on other occasions, specific instances of the defendant's good conduct, and the intent and opinions of other legislators regarding the merits of specific legislation shall be addressed when and if they arise during trial.
Motion in Limine DENIED as unripe. The issue raised in this motion shall be addressed when and if it arises during trial. The papers filed in support and in opposition to this motion shall remain under seal.
Motion to Admit Tape Recordings and Video Recordings is DENIED. The procedure for ascertaining the accuracy of any tapes offered into evidence in this case shall be in accordance with this court's Standing Order on that subject, a copy of which is attached.
Motion for Production of Statements of Witness Pursuant to Fed.R.Crim.P. 26.2 is GRANTED. Pursuant to the agreement of the parties, the defendant shall produce the statements of its witnesses as far in advance of the anticipated beginning of the defense case as the government produces the statements of its witnesses in advance of its case. The parties shall attempt to come to an agreement on the specific amount of time.
Motion for Production of Objects Pursuant to Fed.R.Crim.P. 17(c) is GRANTED. At oral argument, the parties represented to the court that they could come to an agreement on the time for production of the objects. They shall be permitted to do so.
In addition, the parties have filed supplemental motions relating to the production by the defendant of original checks, check stubs, and travel and itinerary binders. After careful consideration of those motions, and after telephone conference, the government's Supplemental Motion for Production of Documents Pursuant to Fed.R.Crim.P. 17(c) is DENIED, and the defendant's Motion to Quash the Subpoena Seeking Production of Documents is GRANTED.*
Finally, it is ORDERED that this case is SPECIALLY LISTED for trial by jury to begin on Monday, June 14, 1993, at 9:30 a.m. For this trial, counsel are, respectfully, attached.
BY THE COURT:
Robert S. Gawthrop, III J.
Procedure for Ascertaining Accuracy of Transcripts of Electronic Tapes
Under the Doctrine of U.S. v. Starks, 515 F.2d 112 (3d Cir. 1975)
1. Copies of electronic recordings intended to be used at trial shall promptly be given to defense counsel, together with proposed transcript.
2. Defense counsel shall promptly review and compare the two to ascertain accuracy.
3. Should there be disagreement on that point - as to whether the words on the transcript accurately set forth what was actually said, and as to the identity of the voices - all counsel, prosecution and defense, shall forthwith convene to listen to the original of the tape, to compare it to the transcript.
4. Should that hearing at first fail to solve aural ambiguities, counsel shall avail themselves of further technology to try to ascertain the truth of what was said. For example, counsel are instructed to use an electronic tape player that can be slowed, so that the sounds on the tape, which often come out in seemingly undecipherable rapid succession, can be fairly deciphered. So also, should counsel wish, they may avail themselves (during off-court time, of course) of the state-of-the-art electronic playback equipment in Courtroom 7B, in an effort to get further clarity. Counsel shall make a good faith effort, without, of course, abandoning their allegiance to their clients, to get these issues resolved without the necessity of court intervention. If deemed necessary, with due regard for due process and fairness, the defendants may be present during this process.
5. Should all that fail, and only should all that fail, counsel shall notify my Deputy Clerk, at 215-597-6271, to set up a hearing - in both senses of the word - for the court to resolve any extant disagreements as to verbal intelligibility or identification. That shall be done within sufficient time, considering the length of tape needing to be heard, and perhaps re-heard, and the number of unresolved objections and disagreements, so as not to delay start of trial.
6. Any other, non-Starks evidentiary objections, such as relevance, hearsay, or confrontation problems under Bruton v. U.S., 391 U.S. 123, 20 L. Ed. 2d 476 , 88 S. Ct. 1620 (1968), or whatever, may then be identified, but generally shall not then be resolved, but shall await resolution during the course of the trial.
Robert S. Gawthrop, III J.