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United States v. Diehl-Armstrong

September 20, 2010

UNITED STATES OF AMERICA
v.
MARJORIE DIEHL-ARMSTRONG



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.

MEMORANDUM ORDER

Presently pending before the Court in this matter is the Defendant's Motion for Change of Venue and Venire and for the Sequestration of Jurors, as set forth in her omnibus pretrial motion [143]. For the reasons set forth below, the motion will be denied without prejudice to be reasserted at the time of voir dire.

I. BACKGROUND

At approximately 2:28 p.m. on August 28, 2003, an individual by the name of Brian Wells entered the PNC Bank at 7200 Peach Street in Erie, Pennsylvania and, after selecting a lolly-pop from one of the teller stations, handed a bank teller a note. As he entered the bank, Wells was in possession of a gun disguised as a walking cane. Affixed to his neck and torso via a metal, locking collar was an improvised explosive device. After Wells handed the note to the teller and showed her the collar bomb under his shirt, the teller gathered approximately $8,702.00 from various cash drawers and provided it to Wells.

Wells then left the bank and retrieved another note from under a rock on the grounds of a nearby McDonalds restaurant. Minutes later, he was stopped in his vehicle by Pennsylvania State Police troopers near the Peach Street entrance to the Eyeglass World parking lot near the bank. As troopers awaited the arrival of a bomb squad, the explosive device detonated, killing Wells.

On September 21, 2003, while investigation of the collar bomb robbery was on- going, Pennsylvania State Police were contacted by one William Rothstein, who informed them that the body of James Roden, the Defendant's then-boyfriend, was being stored in a freezer in Rothstein's garage. Rothstein told police that the Defendant had shot Roden with a 12-gauge shotgun at her Erie home and that she had enlisted Rothstein's help in moving and storing the body. After police officers responded to the call at Rothstein's home, they arrested Defendant and charged her with Roden's murder. In January of 2005 Defendant pleaded guilty but mentally ill to the third-degree murder of Roden and was sentenced to 7-to-20 years of imprisonment.

Meanwhile, the criminal investigation into the August 2003 collar bomb robbery eventually came to focus on the alleged collaborative activities of the Defendant, Rothstein, and their mutual acquaintance Kenneth Barnes. Investigators also began to theorize that Wells may have been, to some extent, a willing participant in the robbery.

The investigation culminated in the July 9, 2007 filing of this criminal indictment, which charges the Defendant and co-Defendant Barnes with conspiracy to commit bank robbery, bank robbery, and using and carrying a firearm during and in relation to a crime of violence. Both Wells and Rothstein (who died of cancer in July of 2004) are seemingly identified in the indictment, through their initials, as unindicted co-conspirators.

In essence, the indictment charges that the Defendant and Barnes, together with the other co-conspirators, planned the robbery such that it would appear that Wells was merely a hostage who had to "unwittingly follow [a] series of instructions in order to perpetrate the robbery and safely deactivate the destructive device." (Indictment ¶ 4.)

It is alleged that the Defendant and other co-conspirators "contrived a series of notes for use in the bank robbery," (id at ¶ 3), first as apparent instructions for Wells and, second, as instructions for employees of PNC Bank to follow in giving Wells the money. The purpose of the collar bomb, it is alleged, was to ensure that Wells would turn over the proceeds of the robbery to the other co-conspirators prior to completing the series of instructions that would allow him to deactivate the bomb. That way, the Government theorizes, if Wells were caught, he would no longer have the money and could claim to authorities that he was a hostage and an unwilling participant in the robbery; if Wells died, he could not be a witness.

According to the indictment, the Defendant, Barnes, and the other co-conspirators met at Rothstein's house at 8645 Peach Street on August 27, 2003 to discuss their plans to rob the PNC Bank the following day. On the afternoon of August 28, it is alleged, the Defendant, Barnes and Rothstein met at a Shell gas station located at 8228 Peach Street. From there, the indictment claims, Rothstein used a pay phone to order two pizzas, directing that they be delivered to a tower site located at the end of a dirt driveway at 8631 Peach Street, just next to his home. The call was made to Mama Mia's Pizzeria, where Wells was then working as a delivery driver.

At approximately 2:00 p.m. on August 28, 2003, Wells and the other co-conspirators allegedly assembled in the area of the tower site whereupon the collar bomb was affixed to Well's neck and torso. The indictment charges that, during the course of the ensuing robbery, the Defendant and Barnes acted as lookouts while sitting in a vehicle parked at a location across from the shopping center where the bank was situated; upon seeing that Wells had been stopped by state police troopers, the two drove away.

The indictment further charges numerous overt acts allegedly committed by the Defendant and/or Barnes in furtherance of the conspiracy. Most notably, it is alleged that, in and around July of 2003, the Defendant solicited Barnes to kill her elderly father and that the proceeds from the bank robbery were intended to be used as a payment to Barnes. It is further alleged that the Defendant killed her live-in boyfriend, Roden, sometime in August of 2003 (but prior to the date of the robbery) in order to keep him from disclosing the bank robbery plan that was then being formulated by the co-conspirators.

II. DISCUSSION

In light of the bizarre events that are alleged to have occurred relative to the August 28, 2003 robbery, there has been considerable media coverage of the story. Defendant contends that the extensive pretrial publicity surrounding this case has rendered the prosecution of this matter in the Erie Division of the Western District of Pennsylvania "grossly unfair to Defendant and oppressive upon the litigants to this matter, their representatives, and witnesses." (Def.'s Pretrial Motions [143] at ¶ 82, p. 14.) By way of relief, she originally requested that either: (1) the trial of this matter be transferred to the Pittsburgh Division of this Court with jurors being drawn either from the Northern District of West Virginia or the Middle District of Pennsylvania or (2) the trial be moved to the Middle District of Pennsylvania using a venire panel drawn from that District. During oral argument on this motion, the Defendant refined her request such that she now seeks to keep the trial in the Erie Division of this Court but asks that we use a venire panel drawn from the Pittsburgh Division.

Rule 18 of the Federal Rules of Criminal Procedure governs the place and prosecution of a trial. It provides that:

[u]nless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.

Fed. R. Crim. P. 18.

Beyond the considerations enumerated in Rule 18 are certain constitutional mandates which we are obliged to follow. As general matter, the federal constitution's place-of-trial prescriptions require only that a defendant be tried in the state and district where the offense was committed; they do not grant the defendant the right to be tried in any particular division of a district court, as the Defendant concedes. See U.S. CONST. art. III, § 2, cl. 3 and amend. VI; Zicarelli v. Gray, 543 F.2d 466, 479 (3d Cir. 1976) ("When a federal judicial district has been carved into divisions, the accused has no right to a trial held in a particular division."). See also Def.'s Pretrial Motions [143] at ¶ 85 (p. 15) (citing authority acknowledging no right to be tried in a particular division of a district court). However, the Sixth Amendment to the U.S. Constitution also guarantees the accused the right to a trial by "an impartial jury," id. amend. VI, while the Fifth Amendment ensures that no person shall "be deprived life, liberty, or property, without due process of law." Id. amend. V. Accordingly, "[t]he Constitution's place-of-trial prescriptions ... do not impede transfer of the proceedings to a different district at the defendant's request if extraordinary local prejudice will prevent a fair trial." United States v. Skilling, 561 U.S. ----, 130 S.Ct. 2896, 2913 (2010).

In this case, both the prosecution and the Defendant are presently in agreement that the trial should be held within the Erie Division of the Western District of Pennsylvania. This Court is inclined to agree, since: (i) the events giving rise to these criminal proceedings occurred within the Erie Division; (ii) the family of Brian Wells is located here, and the Wells family is quite naturally concerned with the outcome of these proceedings; (iii) the Government agents' investigative offices are located here; (iv) the Government has indicated that it intends to call as many as fifty witnesses in its case in chief, most of whom are from the Erie area and some of whom are incarcerated and would have to be transferred and housed elsewhere, perhaps in the same prison facility as the Defendant, if this case were moved to a different venue; and (v) it appears that a trial in Erie would suit the Defendant's best interests, as she has been housed for some time at the Erie County Prison and reportedly would prefer to remain there. Given all of these facts, this Court agrees with the parties that the relevant Rule 18 considerations -- i.e., the convenience of the Defendant, the witnesses and any victim and the prompt administration of justice -- are best served by holding trial within the Erie Division of the Western District of Pennsylvania.

The disagreement at this point concerns only the location from whence the venire panel is drawn. Because of the extensive media coverage this case has engendered, Defendant contends that the venire panel must be drawn from the Pittsburgh Division of this District. This argument appears to be grounded both on Rule 18 concerns relative to the prompt administration of justice as well as constitutional concerns stemming from the Defendant's Fifth Amendment due process rights and her Sixth Amendment right to trial by an impartial jury. In essence, the Defendant is contending that the extent of pretrial publicity relative to this case has so tainted the prospective jury pool within the Erie Division that we cannot fairly rely on the voir dire process to ferret out prejudice among the individual venire persons but should instead presume it to exist.

The Supreme Court developed the "presumed prejudice" standard in a line of cases beginning with Rideau v. Louisiana, 373 U.S. 723 (1963), and continuing with Estes v. Texas, 381 U.S. 532 (1965) and Sheppard v. Maxwell, 384 U.S. 333 (1966).*fn1

The Court recently summarized those cases in the following manner:

Wilbert Rideau robbed a bank in a small Louisiana town, kidnaped three bank employees, and killed one of them. Police interrogated Rideau in jail without counsel present and obtained his confession. Without informing Rideau, no less seeking his consent, the police filmed the interrogation. On three separate occasions shortly before the trial, a local television station broadcast the film to audiences ranging from 24,000 to 53,000 individuals. Rideau moved for a change of venue, arguing that he could not receive a fair trial in the parish where the crime occurred, which had a population of approximately 150,000 people. The trial court denied the motion, and a jury eventually convicted Rideau. The Supreme Court of Louisiana upheld the conviction.

We reversed. "What the people [in the community] saw on their television sets," we observed, "was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnaping, and murder." Id., at 725, 83 S.Ct. 1417. "[T]o the tens of thousands of people who saw and heard it," we explained, the interrogation "in a very real sense was Rideau's trial -- at which he pleaded guilty." Id., at 726, 83 S.Ct. 1417. We therefore "d[id] not hesitate to hold, without pausing to examine a particularized transcript of the voir dire," that "[t]he kangaroo court proceedings" trailing the televised confession violated due process. Id., at 726-727, 83 S.Ct. 1417.

We followed Rideau's lead in two later cases in which media coverage manifestly tainted a criminal prosecution. In Estes v. Texas, 381 U.S. 532, 538, 85 S.Ct. 1628, 14 L.Ed. 2d 543 (1965), extensive publicity before trial swelled into excessive exposure during preliminary court proceedings as reporters and television crews overran the courtroom and "bombard[ed] ... the community with the sights and sounds of" the pretrial hearing. The media's overzealous reporting efforts, we observed, "led to considerable disruption" and denied the "judicial serenity and calm to which [Billie Sol Estes] was entitled." Id., at 536, 85 S.Ct. 1628.

Similarly, in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed. 2d 600 (1966), news reporters extensively covered the story of Sam Sheppard, who was accused of bludgeoning his pregnant wife to death. "[B]edlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom," thrusting jurors "into the role of celebrities." Id., at 353, 355, 86 S.Ct. 1507. Pretrial media coverage, which we characterized as "months [of] virulent publicity about Sheppard and the murder," did not alone deny due process, we noted. Id., at 354, 86 S.Ct. 1507. But Sheppard's case involved more than heated reporting pretrial: We upset the murder conviction because a "carnival atmosphere" pervaded the trial, id., at 358, 86 S.Ct. 1507.

In each of these cases, we overturned a "conviction obtained in a trial atmosphere that [was] utterly ...


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