Rule 21 Transfer for Prejudice in the District
Although a showing of actual prejudice is not a prerequisite for a
21(a) transfer, Estes v. State of Texas, 381 U.S. 532 (1965),
denied, 382 U.S. 875 (1965), there must be a showing of identifiable
prejudice, United States v. Hinton, 268 F. Supp. 728 (E.D.La. 1967)
a court to order the transfer of a case to another district under Fed. R.
P. 21. After a motion by defendant under Rule 21(a) is made and once the
is satisfied that a transfer is necessary to insure a fair and impartial
the order of transfer may not be revoked by the defendant's change of mind
(though the court may have the authority to rescind the transfer in its
discretion), United States v. Anguilo, 497 F.2d 440 (1st Cir. 1974),
cert. denied, 419 U.S. 896; United States v. Marcello, 423
(5th Cir. 1970), cert. denied, 398 U.S. 959, reh'g denied, 399
When a Rule 21(a) motion is made, "the ultimate question is whether
is possible to select a fair and impartial jury, and the proper occasion for
a determination is upon the voir dire examination." United States v.
Rewald, 889 F.2d 836, 863, (9th Cir.1989), quoting, United
v. McDonald, 576 F.2d 1350, 1354 (9th Cir.1978), cert. denied,
U.S. 830, 927 (1978); Haldeman v. United States, 559 F.2d 31, 63-64,
(D.C.Cir.1976), cert. denied, 431 U.S. 933 (1977). "There is no
rule prescrib[ing] the type of voir dire examination which is necessary to
protect against prejudicial pretrial publicity." United States v.
597 F.2d 1170, 1183 (9th Cir.1979), cert. denied, 444 U.S. 979
The appropriate scope and detail of voir dire depend on the "level of
publicity and the discretion of the court." Id. at 1183.
The court must also be sensitive to prejudicial publicity.
v. Maxwell, 384 U.S. 333 (1965); Estes v. State of Texas, 381
532. The court may disregard prospective jurors' assurances of impartiality
there is a well grounded fear that a prejudicial atmosphere would prevent a
trial; Sheppard v. Maxwell. Although jurors must be impartial, they
not be totally ignorant of the facts. Irwin v. Dowd, 366 U.S. 717
The Court said in Irwin that with the swift, ubiquitous and diverse
of communication available today one could scarcely expect that "any of
best qualified to serve as jurors will not have formed some impression or
as to the merits of the case. This is particularly true in criminal cases."
Furthermore, said the Court: "It is sufficient if the juror can lay aside
impression or opinion and render a verdict based on the evidence presented
court." Id. at 722-723. See Murphy v. Florida, 421
794, 800 (1975); Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th
cert. denied, 114 S.Ct. 1294 (1994); Seattle Times v. U.S.
Court for the Western District of Washington, 845 F.2d 1513, 1517-18
The Court's discretion is necessarily broad in the area of pretrial
publicity. Indeed a "special deference," is given to trial courts in this
Patton v. Yount, 467 U.S. 1025, 1038 (1984), and the trial court's
of impartiality may be overturned only for manifest error. Mu'Min v.
Virginia, 500 U.S. 415, 428 (1991); Irvin v. Dowd, 366 U.S. at
United States v. Giese, 597 F.2d at 1184 ("Unless a trial judge
has erred in his estimation of the action needed to uncover and prevent
from pretrial publicity, an appellate court should not intervene and impose
estimate"). In Mu'Min the Supreme Court displayed its confidence in
ability of trial judges, through the voir dire process, to protect
against prejudicial pretrial publicity. The Court said: "Particularly with
respect to pretrial publicity, we think this primary reliance on the
the trial court makes good sense. The judge of that court sits in the
where the publicity is said to have its effect, and brings to the evaluation
any such claim his own perception of the depth and extent of news stories
might influence a juror." 500 U.S. at 427.
Although many cases suggest that voir dire is the proper time for
court to determine the question of whether a fair and impartial trial can be
because of the claim of prejudice against a defendant in a district, there
requirement that the determination be made at voir dire, and it can be made
whenever the court "is satisfied" that it has sufficient information to make
decision. United States v. Marcello, 423 F.2d 993. Cost and time
important considerations when it has to be decided whether or not to
case out of a district. If cost and time are major obstacles, the court may
decide against transferring a case even before voir dire. United States
Engleman, 489 F. Supp. 48, 50 (E.D.Mo. 1980). Nevertheless, voir dire
to confirm a court's decision and buttress the showing of no abuse in the
decision. United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973),
cert. denied, 416 U.S. 936, reh'g denied, 416 U.S.
Bearden v. United States, 320 F.2d 99 (5th Cir. 1963). Dismissal on
showing of prejudicial pretrial publicity caused by the government is not a
proper remedy on motion of a transfer, and normally voir dire must be
to test whether a fair trial can be held in the district, United States
Abbott Laboratories, 505 F.2d 565 (4th Cir. 1974), cert. denied,