The opinion of the court was delivered by: WYATT
This is a motion for defendant Antonio Corallo for an order transferring the proceeding as to him to another district. The motion is based on Rule 21(a) of the Federal Rules of Criminal Procedure which provides for such a transfer if the Court is satisfied that in this district there is "so great a prejudice against the defendant that he cannot obtain a fair and impartial trial" here. It is not suggested by Corallo to what district the case should be transferred, provided it is outside New York and Connecticut.
A similar motion to transfer has been made by defendants Fried and S. T. Grand, Inc., who suggest that the case be transferred to the Eastern District of Pennsylvania at Philadelphia. A similar motion to transfer has been made by defendant Motto who does not suggest to what district the case should be transferred, provided it is outside New York, Connecticut, and New Jersey.
The arguments and averments made by each defendant moving to transfer have been considered in connection with each motion.
It should be noted that defendants Itkin, Marcus, and Rappaport have not made motions to transfer and the case cannot be transferred as to them. This is not only because of the language of Rule 21(a) requiring that the transfer be "upon motion of the defendant" and that the transfer be "as to him"; it is also because of the Sixth Amendment right of a defendant to a trial in the district "wherein the crime shall have been committed". Thus, if a motion to transfer be granted as to some defendants here, it may well be that at least two duplicating trials will be required. While this is no reason to deny a transfer if movants can receive a fair trial only in some other district, it is a factor to be kept in mind in reaching a decision on that point.
The movants have submitted numerous examples of the extensive newspaper publicity which followed the indictment and arrests of the defendants; it is stipulated that radio and television stations carried substantially the same news. It is beyond dispute that the publicity was on a very large scale. It would serve no useful purpose to describe what was published but some of it was plainly unfavorable to defendants, for example, the reference to a defendant as a "Mafia leader", the reference to another defendant as a "wartime racketeer", and the suggestions that the underworld was attempting to infiltrate the municipal government. Whatever the effect of this news coverage, there was no purpose to make difficult a fair jury trial for defendants. While the United States Attorney and an official of the Federal Bureau of Investigation appear to have made statements to the press, they did not stimulate or increase the publicity. The nature of the charges and the identity of the defendants would in any event have excited wide public interest, to which the news media responded naturally. It is assumed that the same factors will insure a continuing amount of publicity.
I am by no means satisfied, however, that the movants could not today obtain a fair and impartial trial in this Court House. Exposure to the most prejudicial type of publicity does not necessarily result in prejudiced jurors. The jury panels drawn in this Court have been, in my experience, remarkably free of bias and prejudice. This is a metropolitan community, sophisticated in the sense that excitement and bizarre events are daily staples. The population is dense, with the supply of jurors virtually inexhaustible. The people of the District are of all types and backgrounds but they nevertheless live together in a high degree of harmony, occasional evidence to the contrary notwithstanding. They take seriously their responsibilities as jurors.
But the question is not whether today the movants could obtain a fair and impartial trial here in this City. No trial date has yet been fixed. It is too soon to decide whether the trial should be here or in some other District.
When the date for trial is reached, then the movants can ask for a transfer if they feel at that time that they cannot obtain here a fair and impartial trial. It is far better for the trial judge to decide such a motion in the light of the then situation than now to embark on the inconvenient and expensive course which a transfer would require. The trial judge can also take into account the cautionary controls available to him, such as those suggested (pp. 138-147) in "Standards Relating to Fair Trial and Free Press", a report of the American Bar Association Project on Minimum Standards for Criminal Justice.
If these motions to transfer are renewed at the opening of trial, the judge then presiding can choose whether to decide them before or after the voir dire examination of the jury panel to select a jury. It is noted that the report just cited recommends (pp. 119, 126, 127) that if the motion is made before the jury is selected it should be decided before the jury is selected; in other words, the ability to pick a jury which seems to meet minimum standards of impartiality should not prevent a transfer if "news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone" (p. 127). It will be time enough, however, to deal with these matters at the opening of trial.
The motion for defendant Corallo for an order transferring the proceeding as to him to another district is denied, without prejudice to its renewal at the opening of trial.
This is a motion for defendant Corallo to dismiss the indictment; the motion is authorized by Rule 12(b)(1) of the ...