IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA )

)
v. ) 1:08CR384-1
)
DEMARIO JAMES ATWATER )

ORDER

This matter is before the Court on a Motion to Change Venue [Doc. #52] filed by

Defendant Demario James Atwater. In the Motion to Change Venue, Defendant contends that

venue in this case should be changed to a district outside of North Carolina. In support of this

request, Defendant contends that the nature and degree of press coverage surrounding this case

have created a prejudiced jury pool, and that venue should be changed to a district where there

has been less press coverage and where Defendant can secure an impartial venire. Defendant

filed numerous exhibits in support of the Motion outlining the level of press coverage and

providing representative examples of that press coverage. Defendant also provided a survey

report that purports to document the extent to which members of the jury pool have already

developed opinions on Defendant’s guilt and punishment. This report is based on a survey of

residents of this district and other districts in this state compared with a survey of residents of

a single out-of-state district. Finally, Defendant requested the opportunity to submit additional

media coverage, and this Court allowed that request. Defendant has therefore submitted

extensive additional exhibits detailing the state and local media coverage of this case.

Defendant contends that change of venue should be granted as a constitutional matter

because trial in this district would violate his Sixth Amendment rights to a public trial by an

impartial jury and his Fifth Amendment due process rights. Defendant contends alternatively

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that venue should be changed pursuant to Federal Rule of Criminal Procedure 21(a). Rule 21(a)

provides that “[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.” Because these considerations are overlapping, and because Rule 21(a) has been

viewed as providing even greater protection than the constitutional provisions, the Court has

considered all of Defendant’s contentions together in evaluating whether to transfer venue in

this case.

The Court of Appeals for the Fourth Circuit has held that “[i]n an era of rapid and

widespread communications, trial courts must be vigilant to ensure that jurors are not biased and

trials are not compromised by media attention surrounding a case. At the same time, ‘it is not

required . . . that jurors be totally ignorant of the facts and issues involved . . . . It is sufficient

if the juror can lay aside his impression or opinion and render a verdict based on the evidence

presented in court.’” United States v. Bakker, 925 F.2d 728, 734 (4th Cir. 1991) (quoting Irvin

v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751 (1961)). In considering

such a request for change of venue, the proper analysis is as follows:

As a general premise, a change of venue is warranted when the court is satisfied that
there exists in the district where the prosecution is pending ‘so great a prejudice against
the defendant’ that ‘the defendant cannot obtain a fair and impartial trial.’
Fed.R.Crim.P.21(a). The determination of whether a change of venue is required as a
result of pretrial publicity involves a two-step process. See United States v. Bakker, 925
F.2d 728, 732 (4th Cir. 1991). First, the district court must determine ‘whether the
publicity is so inherently prejudicial that trial proceedings must be presumed to be
tainted,’ and, if so, grant a change of venue prior to jury selection. Id. However, ‘[o]nly
in extreme circumstances may prejudice to a defendant’s right to a fair trial be presumed
from the existence of pretrial publicity itself.’ Wells v. Murray, 831 F.2d 468, 472 (4th

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 Cir. 1987); see also United States v. Jones, 542 F.2d 186, 193 (4th Cir. 1976) (noting that
cases in which prejudice will be presumed will be rare). Ordinarily, the trial court must
‘conduct[] a voir dire of prospective jurors to determine if actual prejudice exists.’ Bakker,
925 F.2d at 732. If ‘voir dire reveals that an impartial jury cannot be impanelled,’ the trial
court should then grant the motion. Id.

United States v. Higgs, 353 F.3d 281, 307-08 (4th Cir. 2003). Under the analysis set out in Higgs,

and the previous Fourth Circuit cases cited therein, three potential scenarios exist, as set out

below, when evaluating potential jury bias based on pretrial publicity.

First, the Court should consider “whether the publicity is so inherently prejudicial that

trial proceedings must be presumed to be tainted” requiring a change of venue prior to jury

selection or any actual voir dire. This “presumed prejudice” applies only in “rare cases” involving

“extreme circumstances” where the court concludes – before any actual voir dire or inquiry is

conducted – that an impartial jury could not be seated in light of the pretrial publicity. See

Higgs, 353 F.3d at 307; see also Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d

663 (1963).

Second, “[i]n other, less extreme situations, when external events such as pretrial publicity

raise a strong possibility of jury bias, the court has a duty to determine whether the accused may

have a fair trial.” Wells v. Murray, 831 F.2d 468, 472 (4th Cir. 1987) (citing Sheppard v.

Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600 (1966) and Irvin v. Dowd,

366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961)). Thus, if the pretrial publicity raises a

“strong possibility” or “reasonable likelihood” of jury bias, but not so great as to require change

of venue prior to voir dire, the court must conduct a more searching voir dire regarding potential

juror’s exposure to the pre-trial publicity and its effect on them. Wells, 831 F.2d at 472; Wansley

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v. Slayton, 487 F.2d 90, 92-93 (4th Cir. 1973). “Inquiry into jury bias typically entails an

evaluation of ‘the pre-trial publicity complained of and its impact, if any, on the jury, as

developed through adequate voir dire examination of the jurors.’” Wells, 831 F.2d at 472 (quoting

Wansley v. Slayton, 487 F.2d 90, 92-93 (4th Cir. 1973)). Thus, the Fourth Circuit has instructed

that instead of changing venue based on a presumption of prejudice, “a trial court customarily

should take the second step of conducting a voir dire of prospective jurors to determine if actual

prejudice exists” and “[o]nly where voir dire reveals that an impartial jury cannot be impanelled

would a change of venue be justified.” Bakker, 925 F.2d at 732; see also id. at 734 (noting that

in selecting a jury in a case involving media coverage to which potential jurors have been

exposed, “[t]he proper way to impanel such jurors is through a careful voir dire”); United States

v. Jones, 542 F.2d 186, 193 (4th Cir. 1976) (“Whenever it appears that shortly before a trial

public news media in the community have published incompetent and prejudicial information

about the case or the defendant, a duty devolves upon the trial court to make certain that the

necessary conditions of a fair trial have not been impaired . . . And the proper manner for

ascertaining whether the adverse publicity may have biased the prospective jurors was through

the voir dire examination.” (internal quotations omitted)); Washington Post Co. v. Hughes, 923

F.2d 324, 330 (4th Cir. 1991) (“If voir dire proves inadequate, the defense may move for either

a continuance or a change of venue. We do not place primary reliance upon either of these

procedures, but they do exist as a backstop for those extremely rare instances where twelve

unbiased jurors cannot be selected.”).

Finally, if the pre-trial publicity does not raise a “strong possibility of jury bias,” no

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particularized voir dire is required regarding the exposure of potential jurors to publicity or the

effect of that exposure on the potential jury members. See Wells v. Murray, 831 F.2d at 472-76.

In the present case, there is no question that a searching inquiry will be required at voir

dire to determine if any actual prejudice may exist. Thus, during jury selection, this Court will

indeed conduct a sufficient voir dire to determine if actual prejudice exists, including

particularized voir dire regarding the potential juror’s exposure to pre-trial publicity and the effect

of that exposure on the potential juror. After conducting this voir dire, if the Court concludes

that actual prejudice exists and that an impartial jury cannot be impanelled, then a renewal of the

motion to change of venue will be considered at that time. However, the only question presently

before the Court is whether this case involves such “extreme circumstances” that the jury pool

drawn from this district must be presumed to be prejudiced against Defendant, prior to any

actual inquiry or voir dire.

The Court has reviewed all of the information submitted by Defendant, including the

briefs, the original exhibits, the survey report, and the supplemental exhibits containing the

additional media coverage recently provided.1 Based on that review, the Court concludes that

venue will not be changed as a preliminary matter prior to jury voir dire, but the Court will

consider any actual prejudice evident at jury selection and will, if necessary, consider a renewed

request by Defendant to change venue at that time.

1
The Court notes that the supplemental exhibits recently provided by Defendant are
duplicative and cumulative, and raise no additional issues not already covered in Defendant’s
original exhibits. However, the Court has allowed Defendant to present those supplemental
exhibits in order to accommodate Defendant’s request that he be able to submit a full record
of the press coverage in this case.

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 In reaching this conclusion, the Court notes that the volume of media coverage in this

case has been extensive, as can be seen from the exhibits presented by Defendant. However,

“[s]heer volume of publicity alone does not deny a defendant a fair trial.” Bakker, 925 F.2d at

732. In this case, the vast majority of the pre-trial publicity dates from the time of the offense

and Defendant’s arrest, over two years ago. In addition, the Court concludes that the

mainstream media coverage, which would include actual television news broadcasts and

newspaper reports, was primarily factual in nature related to the nature of the offense, the

charges against Defendant, and the case proceedings, and most of that publicity was not

inflammatory or prejudicial. As demonstrated on several occasions by Defendant, some

aberrations exist, but as in Higgs, “although the coverage was not entirely dispassionate and

factual, neither was it highly inflammatory.” Higgs, 353 F.3d at 308. The Court notes that many

on-line reports, including on-line versions of mainstream media reports, included “reader

comments,” in which individuals could anonymously post their views and comments, and these

“reader comments” were not primarily factual, and instead expressed various viewpoints,

including presumptions of guilt and punishment. Other on-line “reports” and “blogs” included

similar viewpoints and commentary. Many of the statements in these on-line “reader

comments” and “reports” were passionate, and in some cases, inflammatory. However, in this

regard, the Court concludes that the viewpoints expressed in these on-line comments do not

support the conclusion that the at large community itself is so biased that an impartial jury

cannot be obtained. Of course, individuals who hold viewpoints like many of those expressed

in these on-line comments would not be impartial jurors and would be stricken from the jury

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for cause. However, there is no basis to conclude that the extreme views of a few, expressed

anonymously on-line, possibly by individuals not even in this district, compel the conclusion that

all of the potential jury pool will be prejudiced against Defendant. Given the level of media

coverage, it will be appropriate to conduct a thorough inquiry to determine each potential juror’s

exposure to the media and to bring to light any pre-formed opinions they may hold. This could

include inquiry into whether potential jurors have been exposed to on-line comments or blogs

that express a view or opinion regarding Defendant or this case, to determine whether any

potential juror shares those views or has been affected by those comments. However, in this

Court’s view, the existence of a limited number of extreme views expressed anonymously on-line

would not require transfer of this case prior to jury selection. To hold otherwise would call into

question the vital role of voir dire to expose and weed out jurors with actual prejudice, and it

would create an unworkable scheme in which venue determinations are made prior to any actual

voir dire based on the views of a vocal biased few, located anywhere, who post their personal,

often uninformed, opinions on-line. Such a scheme is contrary to the Fourth Circuit’s

framework in Higgs and the cases cited therein, pursuant to which courts should ordinarily

conduct a voir dire of prospective jurors to determine the impact of any publicity and to

determine whether actual prejudice exists. See also Washington Post, 923 F.2d at 330 (noting

that “[t]he judicial system is entitled to respect the critical faculties of those citizens who give of

their time as jurors. It verges upon insult to depict all potential jurors as nothing more than

malleable and mindless creations of pre-trial publicity.”)

Defendant also contends that many of the news reports included information about him

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or about the case that would not be admissible at trial, and that potential jurors may therefore

have been exposed to information that could influence their opinion but should not properly

be part of their consideration and deliberation in this case. The Court acknowledges this

concern to the extent that any potential juror may have been exposed to information not

admissible at trial that might improperly affect their deliberations in this case. However, much

of the “improper information” alleged by Defendant is information that has been posted or

otherwise made available on-line, so that it is possible that potential jurors in other districts

could have been exposed to this same information. The remedy for this potential exposure,

whether in this district or elsewhere, is a careful voir dire to determine what specific information,

if any, individual jurors may have been exposed to, so that the Court can excuse for cause those

who have been exposed to information that is not admissible but that could create prejudice or

could improperly influence the juror’s deliberations. At this time, even given the level of media

coverage that has occurred in this case, there is no basis to conclude that such a searching voir

dire would be ineffective in addressing these concerns. See Washington Post, 923 F.2d at 329

(noting that where inadmissible information is disclosed and published by the media prior to

trial, “voir dire is of course the preferred safeguard against this particular threat to fair trial rights

. . . [and] can serve in almost all cases as a reliable protection against juror bias however induced.

. . . Through voir dire, cumbersome as it is in some circumstances, a court can identify those

jurors whose prior knowledge of the case would disable them from rendering an impartial

verdict.” (internal quotation omitted)).

To the extent that Defendant has presented a “survey report,” the Court has considered

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that report prepared by Defendant’s expert, Dr. Richard Seltzer, but the Court does not accord

substantial weight to the survey. To the extent that the survey is considered, the Court notes

that the survey results demonstrate that extensive voir dire is necessary to inquire into potential

jurors’ knowledge of the case and pre-formed opinions, but the survey results do not

conclusively establish that the Court will be unable to seat twelve fair and impartial jurors. For

its part, the Government has raised questions regarding the methodology used to prepare the

report. However, the Court concludes that in any event, the actual voir dire of potential jurors

is a more accurate gauge of potential jury bias than the survey, and the survey results do not

support the conclusion that the Court will be unable to seat a fair and impartial jury if adequate

voir dire is employed.

The Court further notes that the trial in this case is scheduled to be held in the Federal

Courthouse in Winston-Salem, North Carolina, which is already several counties removed from

Orange County, where the charged offenses are alleged to have been committed. In this regard,

the Court notes that under Article III, Section 2 of the Constitution, criminal trials are to “held

in the State where the said Crimes shall have been committed . . .,” and the Sixth Amendment

provides for trial by “an impartial jury of the State and district wherein the crimes shall have

been committed.” In addition, 18 U.S.C. § 3235 provides that “trial of offenses punishable with

death shall be had in the county where the offense was committed, where that can be done

without great inconvenience.” Federal Rule of Criminal Procedure 18 further provides that

“[u]nless a statute or these rules permit otherwise, the government must prosecute an offense

in a district where the offense was committed. The court must set the place of trial within the

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district with due regard for the convenience of the defendant, any victim, and the witnesses, and

the prompt administration of justice.” In the present case, the charged offenses are alleged to

have been committed in Orange County, North Carolina, which is in the Middle District of

North Carolina. However, there is no federal courthouse in Orange County, and this case was

assigned for trial to this Court, which maintains chambers and regularly conducts trials in the

federal courthouse in Winston-Salem, North Carolina in Forsyth County. In this case, the trial

cannot be conducted in Orange County given the lack of federal facilities there, and the location

for trial in Winston-Salem, within the Middle District, was set with due regard for the

convenience of the parties and witnesses. This location is removed some distance from the site

of the alleged offenses, which in the present case allays some of the concerns regarding local

community passions. The jurors themselves will be drawn from all parts of the district from a

potential jury pool of over two million, and any of those potential jurors with bias, either due

to some direct association or knowledge of the case, or due to pre-trial publicity, can be excused

for cause during voir dire.

Finally, the Court notes that the process of preliminary voir dire has already commenced

in this case, through the use of jury questionnaires for potential jurors. As noted above, a

searching voir dire is appropriate in this case, and these jury questionnaires are an important part

of that process. All of the potential jurors, from the start of their filling out the questionnaires,

have been specifically directed by the Court to avoid any media coverage about this case and to

refrain from discussing this case with family and friends, in order to decrease any potential

impact from possible pre-trial publicity. At this time, however, prior to any actual examination

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of any jurors, the Court declines to conclude that the jury pool as a whole is so biased or

prejudiced that an impartial jury cannot be obtained.2 Therefore, there is no need to change

venue at this stage, prior to actual voir dire of potential jury members to determine any actual

prejudice.

Therefore, the Court cannot conclude prior to voir dire that there is “so great a prejudice

against the defendant” in this district that Defendant “cannot obtain a fair and impartial trial”

here. See Fed.R.Crim.P.21(a). In these circumstances, the Court will not transfer venue at this

time, but the Court will conduct a searching voir dire to determine any actual prejudice in this case

and to ensure that an impartial jury is seated, or if an impartial jury cannot be impanelled, then

the Court will consider any renewed motion for change of venue at that time. The level of the

Court’s searching voir dire would include, inter alia, inquiry into the degree to which the potential

jurors have been exposed to prejudicial publicity and how such exposure has affected the juror’s

attitude toward trial, which is part of the inquiry already begun in the juror questionnaires. As

part of this process, Defendant should be prepared to proffer sufficient questions to satisfy this

inquiry at voir dire. Prior to commencement of voir dire, the Court will address with the parties

the manner and method for voir dire to be conducted in this case, with particular attention to the

2
The Court notes that based on its preliminary review of the jury questionnaires, it does
not appear that the Court will be unable to impanel a fair and impartial jury in this case, and it
appears that any concerns regarding pre-trial publicity can be handled through a searching voir
dire as discussed above. However, the Court will not at this time make any specific findings
related to the jury questionnaires, and the Court will instead consider the jury questionnaires as
part of the determination during the voir dire process with respect to whether any actual prejudice
or bias exists. As noted above, if after voir dire is conducted, it appears that actual prejudice exists
and an impartial jury cannot be impanelled, then a renewal of the motion for change of venue
will be considered at that time.

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concerns noted herein, including the possibility of individual questioning of the potential jurors.

See Washington Post, 923 F.2d at 329-30 (noting the value of “individual and private voir dire”

because “[i]t is quite simple to have those potential jurors who have heard of the case approach

the bench and answer more specific questions in private. Such a course may occasion some

inconvenience, but inconvenience is a small price to pay for a system of criminal justice which

is at once open to the public and fair to the accused.”). At this time however, Defendant’s

Motion to Transfer Venue prior to any inquiry or actual jury voir dire will be denied.

IT IS THEREFORE ORDERED that Defendant’s Motion to Transfer Venue [Doc.

#52] is DENIED to the extent that Defendant seeks to change venue prior to voir dire.

This, the 13th day of April, 2010.

United States District Judge

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