USA v. Celestine et al

Filing 82

Order on Motion for Change of Venue, Order on Motion for Joinder

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

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Plaintiff,
vs.
NARON CELESTINE and
STEVEN LAMONT RILEY,
Defendants.

3:09-cr-00065 JWS
ORDER AND OPINION
[Re:

Motion at Docket 45;
Joinder at Docket 53]

I. MOTIONS PRESENTED
At docket 45, defendant Naron Celestine (“Celestine”) moves to transfer this
case from the District of Alaska to another judicial district. Celestine’s co-defendant,
Steven Lamont Riley (“Riley”), joins in the motion at docket 53. The United States
opposes the motion. Oral argument was not requested and would not assist the court.
II. BACKGROUND
Celestine, Riley, and Tillman Bradley III (“Bradley”)1 are charged in a two-count
indictment. In Count 1 all three are charged with a conspiracy to distribute 500 grams
or more of a mixture and substance containing cocaine. In Count 2 Celestine and
Bradley are charged with distributing 500 grams or more of a mixture and substance
containing cocaine.
To support their position that the trial must be moved to another judicial district,
defendants point to articles which have appeared in both the print and on-line versions

1

Bradley is presently a fugitive.

of an Anchorage newspaper, the Anchorage Daily News (“AND”) and one article from
the Fairbanks Daily News-Miner. Copies of the articles were attached to Celestine’s
motion and appear at docket 45-3.
The News-Miner is published in Fairbanks and is not widely circulated outside
Fairbanks. AND, however, circulates in many communities within the District of Alaska.
Although it has the largest circulation in Alaska, in many communities AND competes
for readers’ attention with other newspapers, including the Frontiersman (Wasilla and
Palmer), the Peninsula Clarion (Kenai and Soldotna), the Homer News, the Seward
Phoenix Log, the Cordova Times, the Valdez Star, the Kodiak Daily Mirror, the Bristol
Bay Times (Dillingham), the Tundra Drums (Bethel), and the Dutch Harbor Fisherman.
The venire for trials conducted in Anchorage includes residents of Wasilla, Palmer,
Kenai, Soldotna, Homer, Seward, Cordova, Valdez , Kodiak, Dillingham, Bethel, and
Dutch Harbor, among other towns and villages. Defendants point to no publicity in the
local papers serving any of those communities.
The first AND article was published on June 15, 2009. Headlined, “Missing
Necklace at Center of Shooting Has Hip-Hop Ties,” it reported on a shooting death in an
Anchorage parking lot saying that a “mysterious missing necklace, rumored to be worth
$100,000" may have supplied a motive for the slaying of Joe A. Young, Jr. The article
goes on to say that as he lay dying, Young told the police that “Cole” shot him. The
article then advises that police say “Cole” is Celestine and that he may have put a
$10,000 price on Young’s head for stealing the necklace. The article is accompanied by
a photo said to be taken from Sean P’s MySpace page. Sean P is described as a
nationally known rapper. The photo shows “Cole” wearing the necklace while he and
two other black men stand near Sean P.
The same photo accompanies a June 16, 2009, AND article headlined “Missing
Bling At Center of Shooting With Ties to Rapper Sean Paul.” In the second article, it is
said that the necklace allegedly belonged to Sean Paul. The story then repeats the
assertion that “Cole” or “Cold” put out a $10,000 hit on the victim after the necklace was
snatched from around Cole’s neck at a local nightclub. The article then states: “Cole,
real name Naron Celestine, 38, has a long history of drug-related arrests and
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convictions. But Rex Butler, an attorney for one of the men Cole allegedly hired to kill
Young, disputes the feds’ allegations of a hit.” The article then quotes Butler, who is a
well-known Anchorage criminal defense attorney, as saying that during his investigation
of the matter people have told him that Cole “couldn’t put two nickels together, much
less $10,000.”
The last article from AND, to which defendants point titled “Figure In Parking Lot
Slaying Faces Cocaine Indictment,” was published August 25, 2009. The lead
paragraph reads, “Naron Celestine, whose ties to a Kansas City rapper and a gaudy
$100,000 necklace surfaced during investigation of a high-profile killing at the Sport
Authority in June has been hit with federal charges of conspiring to distribute and
distributing more than 500 grams of cocaine, according to documents unsealed
Tuesday. “ In a brief summary of the conspiracy charge, the article notes that Tillman
and Riley were also charged but “remain on the run.” The article then reports that
Celestine was arrested and pleaded not guilty. Explaining why the indictment had to be
unsealed, the article points out that an assistant United States attorney had asked that
the matter be sealed pending completion of a collateral investigation.
Acknowledging that the collateral investigation was not specifically identified, the
AND article goes on to imply it involved the June shooting of Joe Young, Jr. Repeating
what was in the earlier AND articles, the August 25 story goes on to add comments by a
state assistant district attorney who describes the assertion that Celestine hired hit men
as “hearsay.” The attorney says that if he had evidence he would charge Celestine, but
“I don’t have anything like that.” After pointing out that three men (not including
Celestine) have been charged with killing Young, the article says the police and
prosecutors believe the three may have been seeking a reward Celestine allegedly
offered or else they were trying to steal it for themselves. Thus, in this story Celestine’s
“contract” on Young has morphed into a reward for the necklace. The article then
quotes Butler, who says that he assumes Celestine might shed light on the killing “either
as a witness for himself or as a witness for the government” adding, “[i]t’s not unusual
for a person who is facing a drug conspiracy charge . . . to want to help themselves.”
The article states, “Butler says there was no contract.” The article adds a description of
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Butler’s theory that the three men arrested for killing Young were acting in self defense
when Young pulled a gun on them. At the end of the story it is noted that Celestine is
being held in custody pending trial on the drug charges, before pointing out
[Celestine] was convicted of conspiracy to distribute cocaine in 1992 and
was sentenced to 35 months in prison. In 1995 he was charged with
maintaining a place for drug trafficking, possessing cocaine and
possessing a gun as a felon. He was convicted only on the weapons
charge and was sentenced to 75 months in prison.
The article from the Fairbanks’ paper was published August 26, 2009. Titled
“Figure in Alaska Slaying Indicted on Drug Charges,” the story is short. It reports that
Celestine was charged with distributing more than 500 grams of cocaine, and that his
name surfaced in relation to the shooting of Joe Young, Jr. The article adds: “Court
documents say the word on the street was that Celestine put a $10,000 hit on Young in
retaliation for the theft [of the necklace] but Assistant District Attorney John Skidmore
says that’s difficult to prove.”
Defendants have not submitted any evidence that there has been any publicity
relating to either of them, to Young’s slaying or to the charges in the case at bar in any
of the newspapers published in the other communities from which the venire for
Anchorage trials is drawn. Defendants have not submitted any media accounts from
any source which have come out subsequent to August 26, 2009.
III. DISCUSSION
Celestine’s motion and Riley’s joinder are premised on the notion that prejudice
among prospective jurors in this district must be presumed, because of extensive pretrial publicity. The concept of presumed prejudice has been discussed by the Supreme
Court and the Ninth Circuit.
In Irvin v. Dowd,2 the Supreme Court concluded that a man convicted of murder
had been denied a fair trial based on the extent and nature of pre-trial publicity in
Gibson County, Indiana, where he was tried. The county was a rural county with a

2

366 U.S. 717 (1961).

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population of only about 30,000 people,3 where 95 percent of the households were
alleged to receive delivery of the newspapers which carried the printed pre-trial
publicity.4 The Court described the publicity as follows:
[T]he awaited trial of petitioner had become the cause celebre of this small
community–so much so that curbstone opinions, not only as to petitioner’s
guilt but even as to what punishment he should receive, were solicited and
recorded on the public streets by a roving reporter, and later were
broadcast over the local stations. A reading of the 46 exhibits which
petitioner attached to his motion indicates that a barrage of newspaper
headlines, articles, cartoons and pictures were unleashed against him
during the six or seven months preceding his trial. * * * These stories
revealed the details of his background, including a reference to crimes
committed when a juvenile, his convictions for arson . . . , for burglary and
by a court-martial on AWOL charges during the war. He was accused of
being a parole violator. The headlines announced his police line-up
identification, that he faced a lie detector test, had been placed at the
scene of the crime and that the six murders were solved but petitioner
refused to confess. Finally, they announced his confession to the six
murders and the fact of his indictment for four of them in Indiana. They
reported petitioner’s offer to plead guilty if promised a 99 year sentence,
but also the determination, on the other hand, of the prosecutor to secure
the death penalty, and that petitioner had confessed to 24 burglaries (the
modus operandi of these robberies was compared to that of the murders
and the similarity noted). * * * [One] story characterized petitioner as
remorseless and without conscience . . . . In many of the stories petitioner
was described as the “confessed slayer of six” a parole violator and
fraudulent-check artist. * * * On the day before the trial the newspapers
carried the story that Irvin had orally admitted the murder of Kerr (the
victim in this case) “as well as the robbery-murder of Mrs. Mary Holland,
the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter
of three members of the Duncan family in Henderson County, Ky.”5
It is evident that the publicity was both extensive and concentrated on a small
population. The publicity was unfairly prejudicial, for it was rife with information that
would be inadmissible at trial. The publicity was highly inflammatory, because it was of

3

Id. at 719.

4

Id. at 725

5

Id. at 725-26.

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the sort which would naturally evoke strong and lasting negative feelings about Irwin–he
committed many other serious crimes, he went AWOL during the war, he was guilty of
multiple murders, and he dragged his feet before confessing in an attempt to get a
lesser punishment.
In Daniels v. Woodford,6 the crime involved was the murder of two local police
officers committed while they were attempting to arrest Daniels pursuant to a warrant
relating to a bank robbery. The Ninth Circuit described the pre-trial publicity in the
Daniels case as follows:
The murders of Doty and Trust generated extensive and nearly continuous
publicity immediately after the shootings and again before Daniel’s trial.
Articles described SWAT team searches of the neighborhood where
Daniels was hiding.
News accounts described the perpetrator as a Black paraplegic, and
Daniels was identified as the killer from the very beginning.
* * * Three months before the trial, news articles covered the local school
board’s proposal to rename its football stadium in honor of officer Doty.
One month before Daniel’s trial was to begin, on the anniversary of the
killings, a statue commemorating fallen police officers was unveiled by the
county. The publicity surrounding the memorial and its unveiling
ceremony largely referred to officers Trust and Doty. The memorial
statute, standing nine feet tall, was located across the street from the
Riverside County courthouse where Daniels was tried.
Based on our review of the California Supreme Court’s findings, the
public’s response to this publicity clearly amounted to a “huge” wave of
public passion. As the California Supreme Court described it, police
stations were “deluged” with calls from citizens offering tips on the
investigation and offering to establish a memorial fund. In addition, local
newspapers printed numerous letters from readers calling for Daniels’s
execution. The officers were turned into “posthumous celebrities,” and
approximately three thousand people attended their funerals. That the
news coverage saturated the county is reflected in the fact that eightyseven percent of the jury pool recognized the case from the media
coverage. * * *

6

428 F.3d 1181 (9th Cir. 2005).

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The press accounts did not merely relate factual details, but included
editorials and letters to the editor calling for Daniels’s execution. In
addition, news articles reflected the prosecution’s theory of the case by
attributing the killings to Daniels’s desire to escape justice. Also wellpublicized by the press was Daniels’s past criminal offenses, including an
arrest for shooting at a police officer. Such information was highly
prejudicial and would not have been admissible at the guilt phase of
Daniels’s trial.7
Explaining its conclusion that a change of venue was required based on
presumed prejudice, the Daniels court wrote:
Three factors should be considered in determining presumed prejudice:
(1) whether there was a ‘barrage of inflammatory publicity immediately
prior to trial, amounting to a huge . . . wave of public passion’; (2) whether
the news accounts were primarily factual because such accounts tend to
be less inflammatory than editorials or cartoons; and (3) whether the
media accounts contained inflammatory or prejudicial material not
admissible at trial.8
Significantly, the Daniels’ court cautioned that prejudice is not lightly to be presumed:
“Prejudice is presumed only in extreme instances ‘when the record demonstrates that
the community where the trial was held was saturated with prejudicial and inflammatory
media publicity about the crime.’”9 Daniels was an extreme case for, as in Irwin, the
pre-trial publicity was of a sort which was both unfairly prejudicial and, for a variety of
reasons, likely to invoke strong and lasting impressions of the defendant–he was a cop
killer, he was hunted by a SWAT team, one of the men he killed was such an
outstanding police officer that his name warranted special public recognition.
Harris v. Pulley10 involved a habeas petitioner who had been convicted in state
court on two counts of murder and sentenced to death. Affirming the district court, the

7

Id. at 1211-12 (citations omitted).

8

Id. at 1211 (quoting from Ainsworth v. Calderon, 138 F.3d 787, 795 (9th Cir. 1998)
amended 152 F.3d 1223).
9

Daniels, 428 F.3d at 1211.

10

885 F.2d 1354 (9th Cir. 1998).

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Ninth Circuit rejected a claim that prejudice should be presumed on the basis of pre-trial
publicity. The Ninth Circuit described the pre-trial publicity as follows:
Pervasive media coverage of Harris and his crimes started with his
televised capture for bank robbery. The pretrial publicity apparently
included stories that Harris and his brother had confessed to the crimes,
that Harris had previously been convicted of manslaughter and that Harris
had violated his parole. Numerous editorials and letters to the editor
called for the death penalty and a television poll overwhelmingly showed
that viewers supported the death penalty in this case. Even the battle
between the U.S. Attorney’s and District Attorney’s offices concerning who
would have the first opportunity to prosecute Harris received extensive
coverage by the local media for over two weeks.11
The Court of Appeals noted that the accounts of Harris’ prior criminal record and alleged
confession were published within two weeks of the date of the murders on July 5, 1978,
and that the accounts of the inter-office rivalry ran for two and a half weeks ending on
August 20, 1978. It concluded that the publicity had dissipated considerably by the time
jury selection began a few months after the murders. The Harris court reviewed all the
pre-trial publicity and concluded that it was largely of a factual nature, noting that even
the inter-office rivalry between prosecutors focused mostly on the merits of the
competing systems of criminal justice and did not report any pre-trial judgment of Harris’
guilt by either office. Harris suggests that when pre-trial publicity is mainly factual, even
publication of editorials and letters to the editor asserting a need to impose the ultimate
punishment on a defendant whose confession was reported in the media do not require
a finding of presumed prejudice, at least when the publicity had diminished in the weeks
before trial.
In Ainsworth v. Calderon,12 the Ninth Circuit confronted another death row
resident’s petition for a writ of habeas corpus. The case arose out of a horrific crime in
which Ainsworth shot a woman through the hips and pelvis, stuffed her in a car trunk,
then moved her to the back seat and raped her. Eventually her corpse was dumped in

11

Harris, 885 F.2d at 1360 (quoting from Harris v. Pulley, 692 F.2d 1189, 1199 (9th Cir.

1982)).
12

138 F.3d 787 (9th Cir. 1998).

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a wooded area. Ainsworth’s co-defendant was arrested and confessed. The pre-trial
publicity was, with the exception of a single article, all published months before the trial
commenced. The appellate court found the reporting to be mostly factual in nature, and
observed that to the extent any reporting was prejudicial because it portrayed the victim
as sympathetic or disclosed Ainsworth’s criminal record, it was printed several months
before trial. No editorials or opinion pieces speculating about Ainsworth’s guilt were
disclosed. In these circumstances, the Ainsworth court concluded that prejudice should
not be presumed. Like Harris, this case indicates that the passage of time between the
publicity and the trial date is an important consideration.
With the preceding case law as a guide, the court concludes that Celestine’s
motion borders on the frivolous. It cannot be said with a straight face that the
community where trial will be held was saturated with prejudicial and inflammatory
publicity. The handful of stories do not amount to saturation in Anchorage itself, much
less in the many other communities from which prospective jurors will come. While the
stories speculated about the Young killing, the articles were largely factual. No
editorials were published; no cartoons were printed. Similarly, the stories cannot fairly
be described as inflammatory as that term is used in the reported decisions. The
stories here report events and speculation about events which include a very serious
crime, but nothing in the stories would inflame public passion. Violent crime is all too
common. Stories about violent crime appear in the Anchorage media on a daily basis.
The articles did mention Celestine’s prior crimes and punishments imposed, as
well as the fact that Riley was “on the run.” These prejudicial facts would be
inadmissible at trial. However, the passage of time assures that almost nobody will
remember the information. Even if a prospective juror did remember it, voir dire will be
conducted in such a fashion that the prospective juror can be excused without alerting
the other prospective jurors to the information.

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IV. CONCLUSION
For the reasons above, Celestine’s motion at docket 45 and Riley’s joinder in that
motion at docket 53 are DENIED.
DATED at Anchorage, Alaska this 2nd day of November 2009.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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