F. Richard Curtner

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

510 L Street, Suite 400

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxxxx

)

Plaintiff, )

)

vs. )

)

xxxxxxxxxxxxxx., )

xxxxxxxxxxxxxx, )

)

Defendants. )

__________________________________________)

DEFENDANT xxxxxxxx MEMORANDUM RELATING TO

DISSOLUTION OF STAY PENDING APPEAL

AND RECONSIDERATION OF VENUE

On July 5, 1994, this court invited the parties to brief the question of whether the stay entered by this court at Docket No. 800 pending completion of the interlocutory appeal of this court's suppression order should be dissolved. The court also invited briefing on the government's pending motion to change venue back to Alaska.

Defendant xxxxxxx submits that the stay should be dissolved and a trial date scheduled. Defendant xxxxxxx further submits that trial should be scheduled in Portland, Oregon, and that the Order of Judge Fitzgerald moving venue outside the District of Alaska should not be reversed by this court.

I. The Stay

The government originally filed a motion for a stay of the trial in this case pending disposition of the government's appeal on death penalty issues. That request for a stay was denied by this court and the Ninth Circuit Court of Appeals. The government then requested a stay pending an interlocutory appeal of this court's suppression order. This court was "not persuaded that the Government is likely to prevail" and granted only a limited stay until thirty days after completion of the trial of co-defendant Peggy Gustafson-Barnett. (Docket No. 779).

The government's third motion for a stay of the trial was granted by this court in that the "thirty-day" stay was extended "until there is a decision by the Ninth Circuit on the suppression motion appeal." (Docket No. 800).

A decision was issued by the Court of Appeals on April 11, 1994, affirming the judgment of this court. The government did not petition for rehearing, and the time for a petition for rehearing en banc expired. Nonetheless, the Court of Appeals entered an order directing the parties to address the question whether the case merited rehearing en banc.

Both parties filed briefs with the Court of Appeals stating that rehearing en banc was not warranted. Both sides agreed that the appeal and decision did not satisfy the stringent criteria for rehearing en banc set forth in Fed. R. App. P. 35.

To date, a mandate from the Ninth Circuit has not been returned to the District of Alaska. However, it is obvious that since the decision of the Court of Appeals has issued, the interlocutory appeal is complete and the stay should be dissolved. Any further stay of the trial should issue only by the Ninth Circuit Court of Appeals.

II. The Motion for Change of Venue to the District of Alaska

After motions, evidentiary hearing and argument, Judge Fitzgerald made a finding of presumed prejudice based on pretrial publicity requiring a transfer of venue outside the District of Alaska. The government has moved for a reversal of that order and a change of venue back to Alaska. Defendant xxxxxxx submits that Judge Fitzgerald's order should be considered the law of the case, is fully supported by the record, and should not be disturbed.

A decision of law in a case, once made, becomes the "law of the case," and should not be changed absent clear error in the original ruling or a change in the relevant circumstances. United States v. Tham, 960 F.2d 1391, 1397 (9th Cir. 1992); United States v. Estrada-Lucas, 651 F.2d 1261, 1263-64 (9th Cir. 1980).

Judge Fitzgerald's decision and finding of presumed prejudice on potential jurors in Anchorage was not clearly erroneous. It is fully supported by the record as established before Judge Fitzgerald.

Nor are there changed circumstances sufficient to justify this court's departure from Judge Fitzgerald's findings. Although time has passed since Judge Fitzgerald's order, both of the public opinion polls filed with the court that were conducted in 1993 demonstrate that the presumed prejudice to Mr. xxxxxxx created by adverse publicity in the Anchorage area has not subsided.

The only real issue is whether Mr. xxxxxxx's trial should be moved from outside the District to either Juneau or Fairbanks. Again, Judge Fitzgerald's decision is not clearly erroneous in choosing a venue outside Alaska. That decision relies in part on another mail bombing case, United States v. Moody, 762 F. Supp. 1485, 1490 (N.D. Ga. 1991), in which the trial court pointed out the inherent danger in moving a high profile case to a smaller community within the district: