The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
MOTION FOR TRANSFER OR CONTINUANCE
The defendants Corallo, Fried, S. T. Grand, Inc., and Motto renew motions previously made and denied by Judge Wyatt for a transfer of this case to another district or, in the alternative, for a continuance to the Fall Term, upon the ground of prejudicial pretrial publicity.
The indictment, a one-count conspiracy charge involving the use of interstate facilities in furtherance of bribery activity, was returned on December 18, 1967. The prior motions were made soon thereafter when, admittedly, for a period of several weeks, there was substantial publicity. The nature of the indictment, centering as it does about a public official and the alleged corruption of his office, as was to be anticipated, resulted in vast coverage by the communications media, both locally and nationally.
On March 13, 1968, when Judge Wyatt denied the prior motions, it was without prejudice to renewal at the time of trial. Thereafter the case was assigned for trial to this court, which, after hearing counsel, scheduled June 3, 1968 as the trial date.
Instead of awaiting the opening of the trial or the voir dire examination of jurors, the defendants, in advance thereof, renew their application for a change of venue and a continuance. The defendant Rappaport now joins in the motions.
The publicity which followed in the wake of the indictment gradually tapered off, so that by the end of December 1967 and at the latest, early January 1968, the case, in quiescent status, no longer attracted press notice. Since then references to the matter have been sparse and fragmentary. In mid-January, 1968, two individuals were indicted in an alleged plot to murder a prospective witness in this case; this brought on a new flurry of publicity. By the end of January the publicity had subsided and the news media was again "cold" on the subject. On March 9 an article appeared in the New York Times, apparently the result of its own initiative, which suggested that Itkin, a defendant herein, had served the government in an undercover capacity and was to be a government witness. The publicity with respect to the latter items appeared prior to Judge Wyatt's denial of the motions on March 13, and obviously was considered by him. Subsequent to the denial the only publicity was a factual report of the assignment of this case for trial purposes appearing in the New York City newspapers on April 10 - a notice no different from that normally accorded to any case which has attracted public interest.
On June 3, five months will have elapsed from the high point of publicity in the latter part of December, and since then, except for the intermittent items referred to above, there has been no publicity. Thus, the substantial time lapse between the plateau of publicity and June 3 will have attenuated the impact of the publicity.
One needs no reminder that within that period, up to the present, news of transcendent importance, international and domestic, has captured the daily headlines of all communications media
and further served to blunt the force of the publicity in this case.
June 3 appears to be a desirable trial date for another reason. Upon the argument of these motions it was stated that another investigation, in progress for some time (and apparently known to some defense counsel), is likely to continue into the summer and may, if indictments are returned, bring forth a new spate of publicity which would deluge the trial, were it to be continued to the Fall.
It would be unrealistic not to recognize that no matter what date is set for trial, and no matter where tried, the case will attract publicity. Delay beyond June or transfer to another district will not eliminate press or other coverage. In such circumstances, transfer to another district, in and of itself, does not assure the defendants of the fundamentally fair trial which is their constitutional due. In this court's considered judgment, each defendant's right to a fair and impartial jury is as readily assured in this vast metropolitan district, with jurors drawn from all walks of community life, as in any other district, particularly so in the light of the fact, stressed by defendants themselves, that the publicity which followed the return of the indictment was nationwide.
As this court stated with reference to a substantially similar situation:
"Publicity, in and of itself, does not foreclose a fair trial. The courts do not function in a vacuum and jurors are not required to be totally ignorant of what goes on about them. We live in a world of reality. Serious accusations against public officers and public figures are bound to receive wide publicity through all avenues of modern communication; the public interest will be more than casual and it would be rare to find persons qualified to serve as jurors who have not heard or read of such matters. These are facts that cannot be downed. On the other hand, it is also a fact that frequently in this large metropolitan district prospective jurors show little recall of past widely publicized matters; fears that jurors have formed opinions often prove groundless; the impact of news items upon the public mind, depending upon their nature, may be more imaginary than real. Further, impressions or even an opinion do not necessarily establish partiality or prejudice. That a case has been the subject of extensive publication or even comment does not, in and of itself, require automatic continuance of a trial; if that were the rule it would mean that, unless the press voluntarily refrained from continuing publicity, cases involving public officers or public figures could never be brought to trial. The fundamental question remains no matter what the trial date - can a fair and impartial jury be obtained which will decide the issues in the case solely upon the evidence presented in the courtroom? Whether or not the publicity has been of such a nature that the selection of a fair and impartial jury is foreclosed at this time cannot be determined until jurors are questioned on the voir dire."
The fundamental question of the probability of a fair trial can, under the facts of the instant case, be resolved at the time of trial. There is no basis for a different disposition than that reached by Judge Wyatt, and the renewed motions are denied.
Since this opinion was first prepared, counsel have directed the court's attention to an article which appeared in last Sunday's magazine section of the New York Times (April 28). The article is a general one on corruption in government with references going back to the 19th century and the early 1930's, as well as to more recent matters. In its thousands of words, there is a two-sentence notice of this case and one defendant (other than movants) with a picture of that defendant upon his arrest. The article has no direct reference to any factual aspect of this case. The defendants urge publication of this article in additional support of their motion. This suggests that what defendants seek is a news blackout with respect to this matter. This would mean that no case which attracted substantial publicity and public interest could ever proceed to trial unless protected by a wall of silence, and, of course, this is not ...