The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to Transfer Venue Outside of the Eastern District of Pennsylvania. (ECF No. 376.) For the following reasons, Defendant's Motion will be denied without prejudice.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment ("Indictment") charging Defendant Kaboni Savage ("Savage") with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment ("Indictment"), ECF No. 480.)*fn2 Savage was charged, along with three co-defendants, Steven Northington, Robert Merritt, and Kidada Savage, his sister ("Kidada"). Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada.
On October 9, 2004, six people, including four children, died as a result of arson at a home located at 3256 North Sixth Street, Philadelphia, Pennsylvania. (Def.'s Mot. 1, ECF No. 376.) The Indictment alleges that Savage and Kidada solicited and ordered Lewis and Merritt to set fire to the home of Eugene Coleman, a former associate of Savage. (Indictment 21-23.) Savage believed that Coleman was cooperating with the Government and planned to testify against Savage in his 2005 federal drug conspiracy trial.*fn3 The firebombing took the lives of Coleman's mother, infant son, three other relatives and a family friend. The Government intends to show at trial that the firebombing was ordered by Savage in order to intimidate Coleman and prevent him from testifying against him at the 2005 drug conspiracy trial.
By Order dated June 29, 2011, the deadline to file pretrial motions in this case was set for February 21, 2012. (ECF No. 239.) Approximately sixty-two pretrial motions were filed by the parties. On February 21, 2012, Savage filed a Motion to Transfer Venue Outside of the Eastern District of Pennsylvania. (Def.'s Mot.) The Government filed a Response in opposition to the Motion on April 11, 2012. (Gov't's Resp., ECF No. 460.) A hearing was held on the pretrial motions on June 11 and 12, 2012. At that hearing, the parties advised the Court that they did not wish to present evidence or oral argument on this Motion, and the Motion was submitted on the pleadings. Trial of Defendants is scheduled for September 10, 2012.
Savage requests that the Court transfer venue of this case to another district. He argues that "extensive media coverage" surrounding the case has permeated the juror pool in this District such that "it will be impossible to seat an impartial jury." (Def.'s Mot. 1.) In support of his Motion, Savage submits 129 news articles covering a seven-year time period. (Id. at Ex. A.) The articles were published on dates ranging from April 14, 2004 to June 23, 2011. They were published in local Philadelphia newspapers, and were republished online at www.philly.com and www.lexis.com. (Id.) The news articles report on events such as the October 9, 2004 arson-murders of the Coleman family, the 2005 drug conspiracy case and the instant case. Savage contends that the news reports contain prejudicial statements, such as statements allegedly made by law enforcement officers, by the United States Attorney's Office, and by Savage himself. The statements reportedly made by Savage were intercepted during court-ordered wiretaps at the Federal Detention Center ("FDC") in Philadelphia.*fn4 Savage also submits a DVD containing approximately forty-six television news reports covering the October 9, 2004 arson-murders of the Coleman family.*fn5 Savage argues that the television and newspaper news coverage constitutes "such unprecedented pretrial publicity," and creates "a trial atmosphere utterly corrupted by press coverage." (Def.'s Mot. 7 (quoting Skilling v. United States, 130 S. Ct. 2896, 2914 (2010)).)
The Government responds that the publicity this case has received is not so prejudicial as to justify a change of venue. Specifically, the Government argues that it is impossible for the entire pool of eligible jurors to be prejudiced against Savage given the size and characteristics of the Eastern District of Pennsylvania. The Government further argues the media reports are factually based, not unduly inflammatory, and were published long enough ago that it is unlikely that a pool of possible jurors would be tainted by them.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ." U.S. Const. amend. VI. The Supreme Court has stated that due process requires that a defendant be guaranteed the right to "a trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). By constitutional design, criminal trials are held in the district where the offense occurred. See U.S. Const. art. III, § 2, cl. 3 ("The trial of all crimes . . . shall be held in the State where the said crimes shall have been committed."); U.S. Const. amend. VI (stating that criminal trials are to be conducted "by an impartial jury of the State and district where the crime shall have been committed"); see also Fed. R. Crim. P. 18 ("Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed."). This venue rule yields only "if extraordinary local prejudice will prevent a fair trial." Skilling, 130 S. Ct. at 2913.
Federal Rule of Criminal Procedure 21(a) governs motions to transfer venue. Rule 21(a) instructs that, "[u]pon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there." Fed. R. Crim. P. 21(a). The decision to grant or deny a motion to change venue is committed to the sound discretion of the district court. Martin v. Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 804 (3d Cir. 1981). Defendants carry a "heavy burden" when moving to transfer venue under Rule 21(a). United States v. Smith, No. 05-428, 2006 U.S. Dist. LEXIS 35391, at *2 (M.D. Pa. Feb. 8, 2006) (citation omitted). Moreover, with change of venue claims based upon pretrial publicity, a distinction is drawn between presumed prejudice and actual prejudice. Murphy v. Florida, 421 U.S. 794, 798 (1975); see also Hetzel v. Lamas, 630 F. Supp. 2d 563, 570 (E.D. Pa. 2009).
In certain cases, a court may presume prejudice to the defendant. "Presumed prejudice" arises when "media or other community reaction to a crime or a defendant engenders an atmosphere so hostile and pervasive as to preclude a rational trial process." Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992); see also Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007) ("Presumptive prejudice from pretrial publicity occurs where an inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community."). A court may transfer venue under these circumstances without examining the attitudes of those that served on the jury. Rock, 959 F.2d at 1252. Cases where prejudice is presumed, however, are "exceedingly rare." Id. at 1253. In order for a court to presume prejudice, "the community and media reaction . . . must have been so hostile and so pervasive as to make it apparent that even the most careful voir dire process would be unable to assure an impartial jury." Id.; Hetzel, 630 F. Supp. 2d at 570 (same); see also Rock, 959 F.2d at 1253 (describing presumed prejudice to be a "showing of an utterly corrupt trial atmosphere").
Savage's presumed prejudice argument rests largely on the sheer number of news articles and television broadcasts that discuss him and the charges alleged against him. However, this is insufficient since "prominence does not necessarily produce prejudice, and jury impartiality . . . does not require ignorance." Skilling, 130 S. Ct. at 2914-15. Rather, when determining ...