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United States v. Salman

United States District Court, M.D. Florida, Orlando Division

December 6, 2017

UNITED STATES OF AMERICA
v.
NOOR ZAHI SALMAN

          ORDER

          Paul G. Byron, United States District Judge

         This cause is before the Court on Defendant Noor Zahi Salman's Motion for Change of Venue, filed on September 1, 2017. (Doc. 106). The Government has filed a Response in Opposition to Defendant's motion. (Doc. 114). Upon due consideration, Defendant's Motion for Change of Venue is denied.

         I. BACKGROUND

         On January 12, 2017, a grand jury sitting in Orlando, Florida, returned a two-count Indictment against Defendant, Noor Salman. (Doc. 1). Count I charges Defendant with aiding and abetting the attempted provision and provision of material support to a foreign terrorist organization, in violation of 18 U.S.C. §§ 2339B(a)(1) and (a)(2). (Id.). Count II charges Defendant with obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3). (Id.) The Indictment alleges that Defendant aided and abetted her husband, Omar Mateen, in his attempt to provide material support or resources to the Islamic State of Iraq and the Levant (hereinafter referred to as “ISIL” or the “Islamic State”), culminating in the mass murder of forty-nine civilians and the injury of fifty-three civilians at the Pulse nightclub in Orlando, Florida, on June 12, 2016. (Id.). Trial shall commence on March 1, 2018. (Doc. 48).

         Defendant Salman moves this Court to order a change in the venue for the trial of this case due to the alleged “inherent prejudice” caused by “[t]he continued and constant media coverage, along with Orlando Police Chief John Mina's (Chief Mina) statements [which] have infected this community sufficiently to prejudice a significant portion against Ms.Salman.”[1] (Doc. 106, pp. 2-3).

         II. LEGAL STANDARD FOR CHANGE OF VENUE

         Article III of the Constitution of the United States provides that the trial of a criminal case “shall be held in the State where the said Crimes shall have been committed.” U.S. Const. Art. III, § 2, cl. 3. The Sixth Amendment to the Constitution also guarantees a criminal defendant the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Id., amend. VI. However, due process mandates that “[t]he Constitution's place-of-trial prescriptions . . . do not impede transfer . . . to a different district at the defendant's request if extraordinary local prejudice will prevent a fair trial.” Skilling v. United States, 561 U.S. 358, 378 (2010). Consistent with this principle, Rule 21(a), Fed. R. Crim. P., provides:

Upon 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.

         A defendant is entitled to a change of venue if she can demonstrate actual or presumed prejudice. Gaskin v. Sec'y, Dep't of Corr., 494 F.3d 997, 1004-05 (11th Cir. 2007); Meeks v. Moore, 216 F.3d 951 (11th Cir. 2000). The Eleventh Circuit Court of Appeals instructs the district court in its presumed prejudice analysis to assess the totality of the circumstances in determining whether the pretrial publicity was sufficiently inflammatory and prejudicial and has saturated the community in which the trial is held. Price v. Allen, 679, 1315, 1322 (11th Cir. 2012); Mills v. Singletary, 63 F.3d 999, 1010 (11th Cir. 1995). Factors a court is to consider in evaluating the “prejudicial and inflammatory” prong include: (1) whether the publicity contains a confession or admission by the defendant; (2) whether there was official misconduct in influencing the publicity in the case, and (3) whether “invidious personal attacks” against the defendant appeared in the media. Knight v. Dugger, 863 F.2d 705, 721-23 (11th Cir. 1988).

         As for the saturation prong of the analysis, the court should consider whether “a substantial number of the people in the relevant community could have been exposed to some of the prejudicial media coverage” and whether “the effects of the media saturation continued until the trial.” Heath v. Jones, 941 F.2d 1126, 1135 (11th Cir. 1991). In Skilling v. United States, 561 U.S. 358, 381-85 (2010), the Supreme Court identified four factors pertinent to whether the defendant had demonstrated a presumption of prejudice that supports a change of venue: (1) the size and characteristics of the community where the offense occurred and from which the jury is drawn; (2) the quantity and nature of the media coverage about the accused and whether it included “blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight”; (3) the passage of time between the offense and the trial and whether prejudicial media coverage decreased during that time, and-when evaluating the motion following a verdict-(4) whether the jury's conduct ultimately undermined any potential pretrial presumption of prejudice.

         Of course, “prominence [of media coverage] does not necessarily produce prejudice, and juror impartiality does not require ignorance.Skilling, 51 U.S. at 360-61 (emphasis in original). Rather, “[i]t 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. Lindh, 212 F.Supp.2d 541, 549 (E.D. Va. 2002) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961); see also United States v. Fuentes-Coba, 738 F.2d 1191, 1194 (11th Cir. 1984) (“[D]ue process requires only that a jury be seated which can put aside any impressions gained from pretrial publicity and render a fair verdict based on the evidence presented in court.”). In the final analysis, the burden upon the defendant to support a change of venue is extremely heavy[2]:

The presumed prejudice principle is rarely applicable, and is reserved for an extreme situation. Where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from the community, jury prejudice is presumed and there is no further duty to establish bias.

Gaskin v Sec'y, Dep't of Corr., 494 F.3d 997, 1004 (11th Cir. 2007) (emphasis removed) (quoting Meeks v. Moore, 216 F.3d 951, 960-61 (11th 2000)). “The key to determining the appropriateness of a change of venue is a searching voir dire of the members of the jury pool.” United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003). “Only where voir dire reveals that an impartial jury cannot be impaneled would a change of venue be justified.” United States v. Lindh, 212 F.Supp.2d 541, 549 (E.D. Va. 2002) (quoting United States v. Bakker, 925 F.2d 728, 732 (4th Cir. 1991).

         III. DISCUSSION

         Defendant Salman asserts that “[a]mple evidence establishes the existence of negative pre-trial publicity in this case. Specifically, Chief Mina [a local police chief] made repeated disparaging statements and proclamations of Ms. Salman's guilt, which received intense and widespread prejudicial publicity in the local press.” (Doc. 106, pp. 4-5). The Defendant argues that Chief Mina's comments “create the very real danger of community saturation, to the point where it is impossible to seat an impartial jury in Orlando.” (Id. at 5).

         A. The Orlando Division

         As discussed infra, the issue of saturation is viewed in the context of several factors, including the size and characteristics of the community where the offense occurred and from which the jury is drawn. Skilling v. United States, 561 U.S. 358, 382 (2010). As the Government correctly points out in its reply, the Middle District of Florida is very large, and the Orlando division consists of five counties: Orange County (population 1, 145, 956), where the Pulse nightclub shooting took place, Osceola County (population 268, 685), Seminole County (population 422, 718), Brevard County (population 543, 376), and Volusia County (population 494, 593), for a total of over 2.8 million people. There is approximately 119 miles between the most southern point in the Orlando Division (Osceola County) to the most northern point in the division (Volusia County). It is within the context of the large, densely populated Orlando division that one must consider pretrial publicity.

         B. Chief Mina's Public Statements

         Defendant has identified four statements attributed to Orlando Police Chief Mina. It should be noted that Defendant does not suggest that Chief Mina will be a witness at the trial, and the Government has already produced to Defendant the law enforcement reports prepared in this case along with the evidence the Government will likely rely upon in its case-in-chief. (Doc. 48). The Court will address each of Chief Mina's statements individually.

         1. May 30, 2017, Interview On May 30, 2017, Chief Mina gave an interview to the Orlando Political Observer in which he stated:

Well, I will say that based on the information that I have, that I have received from the FBI, that [Ms. Salman] certainly could have, could knew [sic] about it and could have done something to prevent that, so I, my belief that she needs to be held accountable for those 49 deaths and for all those people that were injured and for this huge tragedy that we had here in Orlando . . . certainly if she knew about what he was capable of planning, and you know, that should be reported immediately to the authorities.

(Doc. 106, p. 7).

         Chief Mina is voicing his opinion that Defendant “could have” known about the attacked carried out by her husband and “could have done something to prevent” the attack. This observation is Chief Mina's opinion, which he qualifies by stating “if she knew about what [Mateen] was capable of planning . . . that should be reported immediately to the authorities.” The defense attempts to characterize this comment as on par with the law enforcement officer's statement in Shepherd v. Florida, 341 U.S. 50, 51 (1951), where the officer advised the media that the accused had confessed. (Id. at p. 5). Chief Mina's opinion that Defendant Salman, depending on what she knew about her husband's intentions at the relevant time, should have alerted authorities is a far cry from telling the media that the defendant had confessed to the crime.

         The defense quotes the Orlando Political Observer's website in which it touts its readership as including “the most powerful and influential members of the Central Florida Community” as evidence to suggest saturation of Chief Mina's May 2017 interview. However, Defendant offers no evidence of the extent of the Orlando Political Observer's on-line readership, particular as relates to May 2017. Thus, it is impossible to discern whether a handful, hundreds, or thousands of individuals read this online interview, and the Court may not speculate as to this point.

         2. Orlando Police Department Facebook Page

         On January 16, 2017, following the arrest of Defendant Salman, the Orlando Police Department (“OPD”) posted ...


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