The opinion of the court was delivered by: Judge Sara Lioi
Before the Court are a series of pre-trial motions filed by the defendants. Specifically, the Court will address herein: Defendant James Dimora's motion to change venue (Doc. No. 409); Dimora's motion for expanded voir dire (Doc. No. 410); Dimora's motion to sever (Doc. No. 412); and Defendant Michael Gabor's motion to sever (Doc. No. 426.) All of the motions are fully briefed. The Court conducted a hearing on these motions on October 5, 2011 and is now ready to rule.
In 2007, the Federal Bureau of Investigation launched one of the largest probes ever into potential public corruption in local government. Targeting political and business activity in Cuyahoga County, Ohio, the investigation to date has resulted in over 50 arrests.*fn1 The list of arrestees includes politicians, judges, and private business people. The majority of those arrested have entered into plea agreements with the federal government, a few have gone to trial, and several others are still awaiting trial.
One of the most highly publicized arrests was that of Defendant James
Dimora.*fn2 At all times relevant to the
Indictment,*fn3 Dimora was one of three County
Commissioners, who had day-to-day responsibilities for the
administration of the County government. On the political side, Dimora
also served as the Chairman of the Cuyahoga County Democratic Party.
Dimora was one of five individuals who were arrested on September 14,
2011 under the same Indictment. Defendant Michael Gabor was among the
four arrested with Dimora and remains the only defendant, aside from
Dimora, who has neither entered a plea nor gone to trial.*fn4
The charges against Dimora include RICO conspiracy,
conspiracy to commit mail and wire fraud and honest services mail
fraud, Hobbs Act conspiracy, bribery concerning programs receiving
federal funds, tax fraud, obstruction, and destruction of records.
At all times relevant to the Indictment, Defendant Gabor was employed by the Cuyahoga County Auditor's Office. Along with Dimora, Gabor is charged in Count 1 with RICO conspiracy. He is also charged (along with Dimora) with conspiracy to commit bribery concerning programs receiving federal funds, Hobbs Act conspiracy, and conspiracy to obstruct justice. He is separately charged with conspiracy to commit mail fraud and honest services mail, relating to Frank Russo's alleged efforts to compensate Joseph Gallucci for running a sham campaign against Russo in the 2006 Auditor's race.
This case was originally randomly assigned to the docket of the undersigned. Upon the government's notice that the case was related to several cases previously assigned to the Honorable Kathleen M. O'Malley, the action was transferred to Judge O'Malley on September 16, 2010. At the time of the transfer, Judge O'Malley's courtroom was located in the Federal Courthouse in Cleveland, Ohio. Cleveland is located in Cuyahoga County. The case was returned to the undersigned's docket on January 21, 2011, after Judge O'Malley was appointed to a seat on the Federal Circuit. This Court holds its proceedings in the Federal Courthouse in Akron, Ohio, and Akron, in turn, is located in Summit County.
Defendant Dimora now moves for a change of venue "to a district that has not been saturated with publicity negative to Mr. Dimora [.]." (Mot. at 1.) In support of his motion, Dimora claims that the extent of the adverse publicity in this case will prevent him from receiving a fair trial in this judicial district. Attached to his motion are hundreds of press articles, predominately from the Cleveland Plain Dealer but also from magazine and local television stations, reporting on the public corruption investigation, which Dimora insists cast him in a negative light. The government urges a finding that the news coverage though admittedly "prevalent" does not rise to the level of creating a presumption of prejudice.
Dimora also moves for an expanded voir dire process, with particular emphasis on jury questions relating to the venire members' exposure to pretrial publicity. Both defendants have also filed severance motions, each seeking a separate trial from his co-defendant.
I.Dimora's Motion for a Change of Venue
The Sixth Amendment guarantees a criminal defendant the right to a trial by an impartial jury. Irvin v. Dowd, 366 U.S. 717, 721-22 (1961). "By constitutional design, that trial occurs 'in the State where the [.] Crimes [.] have been committed.'" Skilling v. United States, 130 S. Ct. 2896, 2913 (2010) (quoting Art. III, § 2, cl. 3). Given the need for an impartial jury, however, "[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 change venue is left to the discretion of the trial court. United States v. Jamieson, 427 F.3d 394, 412 (6th Cir. 2005).
"Prejudice resulting from pretrial publicity can be presumptive or actual." Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007). "The Supreme Court has found publicity inherently prejudicial when 'the influence of the news media [.] pervaded the proceedings' to the point that the trial was 'conducted in a circus atmosphere.'" Jamieson, 427 F.3d at 413 (quoting Murphy v. Florida, 421 U.S. 794, 798-99 (1975)).
This standard is "demanding," with prejudice presumed in only "the rare case." United States v. Angelus, 258 Fed. App'x 840, 845 (6th Cir. 2007); DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998) ("Indeed, the few cases in which the Court has presumed prejudice can only be termed extraordinary [.].")
Extensive pre-trial media coverage, alone, is insufficient to support
a finding of presumed prejudice. Nebraska Press Ass'n v. Staurt, 427
U.S. 539, 554 (1976) ("[P]retrial publicity---even pervasive, adverse
publicity-does not inevitably lead to an unfair trial."). Likewise,
the jurors who will hear a case need not be "totally ignorant of the
facts and issues involved." Irvin, 366 U.S. at 722-23;*fn5
see Ritchie v. Rogers, 313 F.3d 948, 962 (6th Cir. 2002). It
is only when the defendant shows "a trial atmosphere [.] utterly
corrupted by press coverage" that the court may presume that the
defendant cannot obtain a fair trial within the court's judicial
district. See Murphy, 421 U.S. at 798.
The familiar trilogy of cases dedicated to the issue of presumed prejudice is Irvin v. Dowd, Rideau v. Louisiana, and Sheppard v. Maxwell.*fn6 In Irvin, the defendant was accused of the murder of a family of six, and the small, rural town where the killings occurred was inundated with news reports of the details of these heinous crimes. Ninety percent of the prospective jurors indicated that they had formed some opinion as to the defendant's guilt "ranging in intensity from mere suspicion to absolute certainty." Irvin, 366 U.S. at 727. In another highly publicized case, the day after the defendant in Rideau was arrested on charges of bank robbery, a 20 minute video of his alleged jail house confession was broadcast via the local television station. The confession ran on the local news for several consecutive days. Rideau, 373 U.S. at 723. Finally, Sheppard, a case that drew significant national attention, involved the murder of a socialite allegedly by her husband, a well-known local physician. There, the Supreme Court found that "the carnival atmosphere at trial" and the "bedlam" that "reigned at the courthouse" made it impossible for Dr. Sheppard to receive a fair trial. Id. at 355, 358. In each case, the Court found the existence of presumed prejudice dictating the need for a change of venue.
The Court has reviewed the articles submitted in support of this motion, and has observed that they are, for the most part, merely factual reports of the cases and the charges against the various defendants.*fn7 See Beck v. Washington, 369 U.S. 541, 556 (1962) ("straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness" are less troubling); Jameison, 427 F.3d at 412 (In finding no presumed prejudice, the court noted that the articles, though not flattering, presented a fair and balanced portrayal of events.) While many articles have quoted some of the more titillating allegations from the various indictments, it is clear from the reporting that they are doing just that-quoting from these public records. Those few editorials (and it is also clear that they are editorials and not factual accounts) are not nearly as acidic as the ones that called for Sheppard's arrest in 1996, nor did they "present the kind of vivid, unforgettable information [the Court] [has] recognized as particularly likely to produce prejudice [.]."*fn8 Skilling, 130 S. Ct. at 2916. Compare Rideau, 373 U.S. at 725; Irvin, 366 U.S. at 727. Further, while Dimora makes much of the articles that negatively comment on his weight, this physical feature has no bearing on his guilt or innocence.
The pretrial publicity in the present case, though significant, cannot
seriously be compared to that seen in the trilogy cases. Unlike
Rideau, there has been no inflammatory information, such as a
confession, that would unduly taint any possible jury pool. Dimora has
consistently maintained his innocence, and the press has not reported
to the contrary. Further, the pretrial publicity and early proceedings
have not risen to the
level of a carnival atmosphere like that seen in Sheppard.*fn9
Though members of the press have been present for most of the
pre-trial hearings in varying numbers, their conduct has been
professional and their coverage has been both accurate and
responsible. Finally, the Irvin case, the one Dimora suggests is
closely analogous, is "worlds apart" from the circumstances presented
in this case. See Skilling, 130 S. Ct. at 2921.
Instead, this case is more closely analogous to Skilling, a decision wherein the Supreme Court recently revisited the issue of presumed prejudice. Jeffery Skilling, a high ranking executive with Enron, and two others, were charged with a variety of crimes including conspiracy to commit securities and wire fraud. The case generated enormous pretrial publicity, and was tried in Houston, Texas, where Enron had its headquarters. In finding no presumptive prejudice, the Court specifically distinguished Irvin, noting that while the trial in Irvin took place in a small rural community, Skilling's trial was conducted in a large metropolitan area where circulation percentages for the local newspapers were lower. The Court also found that the publicity did not contain the same sort of damaging information, such as details of a grizzly and brutal crime, and the seated jurors uniformly disclaimed ever having formed an opinion about the case.
Similarly here, the publicity, though not always flattering, has not contained the same horrifying information as involved in Irvin. Moreover, the alleged crimes were committed in a large, metropolitan area, where the coverage, though intense, had not saturated the area as extensively as in Irvin. It is also significant that almost two years will separate Dimora's arrest and the beginning of the trial.*fn10 "[T]he Court has repeatedly suggested that a cessation of publicity for some period prior to trial will go a long way toward undoing the damage of a previous media blitz." DeLisle, 161 F.3d at 385; see Patton v. Yount, 467 U.S. 1025, 1034 (1984) ("That time soothes and erases is a perfectly natural phenomenon, familiar to all."). While the Court cannot say that press coverage has completely ceased at any point following Dimora's arrest, it is clear that the coverage has dropped off over time. Of course, it is anticipated that the coverage will, ...