The opinion of the court was delivered by: GURFEIN
The defendant Guan Chow Tok moves for an order (1) dismissing counts one and four of the indictment against him on the ground of prejudicial pre-trial publicity, or in the alternative for a severance under Fed.R.Crim.P. 14 or a continuance of the trial until the effect of pre-trial publicity disappears; (2) severing his trial from that of the other three defendants on the ground that "the defendant will be prejudiced by joinder in that the Government will introduce at trial statements by a co-defendant which will incriminate the defendant herein"; (3) directing the United States Attorney to furnish a bill of particulars pursuant to Rule 7(f); and (4) directing the United States Attorney to permit the inspection and copying of certain specified documents.
The indictment is in four counts. The first count charges a conspiracy from about April 1, 1972 to the date of the indictment, August 28, 1972, to violate Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United States Code. Three defendants, in addition to Tok, were named as defendants. It is alleged that it was part of the conspiracy to distribute and to possess with intent to distribute Schedule I and Schedule II narcotic drug controlled substances. Eleven overt acts are alleged. The defendant Tok is also named in the fourth count which alleges that on or about August 22, 1972, four defendants, including Tok, unlawfully distributed and possessed with intent to distribute a Schedule I narcotic drug controlled substance, to wit approximately 20 pounds of heroin.
THE MOTION BASED ON PRETRIAL PUBLICITY
Guan Chow Tok contends that the story which appeared in Time Magazine's issue of September 4, 1972 amounted to prejudicial pre-trial publicity. He also contends that his plea for relief is the more compelling because "the Government is the provocateur."
The Time article was prefaced by the following comment on the cover story:
"Correspondent James Willwerth was with narcotics agents in Manhattan last week when they were tipped off about an incoming shipment of drugs. Willwerth accompanied the agents to an observation post on the third floor of New York's Beekman Downtown Hospital and witnessed on the street below a long session of bargaining between several Chinese drug traffickers and an undercover agent with $200,000 in cash. The final 'connection' took place several blocks away, followed within minutes by flashing police lights, drawn guns, and the biggest New York heroin haul of the summer."
The cover of Time was captioned "The Global War on Heroin." The cover story was headed "Search and Destroy -- The War On Drugs." Although the incident leading to the indictment of these four defendants was the first part of the cover story, it was essentially a round up of heroin sources abroad, how heroin is imported, and what steps the American authorities have taken to meet the problem.
The recital of the incident and the arrest was quite matter of fact, using a kind of descriptive prose that one might use in a movie scenario. In other words, it described simple action without adjectives or pejorative words of any kind. Nor was there any attempt to give the background of the defendants or to assess their character or reputation. In short, there is nothing in the article which, on its face, would not be admissible in evidence.
If it was the intention of the Bureau of Narcotics and Dangerous Drugs to get a prejudicial story from the Time correspondent, which I doubt, it would have failed in its purpose. Mr. Willwerth wrote nothing more than a preview of the drama lawfully to be enacted in the courtroom.
Insofar as the incident was tied to world-wide events in the world of narcotics, I daresay it had no more impact on the attitude of the average reader than the natural awareness of his own revulsion to the drug traffic whenever he reads of a heroin arrest. In sum, the article would not prejudice the average reader. The famous cases cited by the defendant are for that reason inapposite. See Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959); Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963); Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965); Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Nor was the news coverage continuous and inherently prejudicial as in Delaney v. United States, 199 F.2d 107 (1 Cir. 1952), or in Irvin v. Dowd, supra. The Government has given the case no additional publicity and has certainly not sought to generate a public animus against these defendants.
In any event, the trial is set for three months after the article appeared, "a significant factor in assessing claims of prejudice resulting from pre-trial publicity," United States v. Bowe, 360 F.2d 1, 11 (2 Cir. 1966), cert. denied, 385 U.S. 961, 87 S. Ct. 401, 17 L. Ed. 2d 306 (1966); and particularly because the names are Chinese and difficult to remember, it is unlikely that even Time readers will remember the article or associate it with the defendants. Lastly, we have a large cross-section of the population on our jury panel and it will by no means be dominated by Time readers. A careful voir dire of the jurors called, through questions proposed by defense counsel, will be available. See cases cited in United States v. Hoffa, 156 F. Supp. 495, 499 (S.D.N.Y.1957).
While it is open to question whether reporters should be taken on "set-ups" or "raids" likely to result in arrests because of the danger of possible prejudice, a balance must be struck because of the vital public interest in narcotics control. Fortunately no such prejudice as might bring into play the sensitive question of individual right against public information has resulted in this case. Law ...