United States District Court, M.D. Florida, Orlando Division
G. Byron, United States District Judge
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.
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).
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.” (Doc. 106, pp. 2-3).
LEGAL STANDARD FOR CHANGE OF VENUE
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.
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.
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.
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
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).
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).
The Orlando Division
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.
Chief Mina's Public Statements
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.
30, 2017, Interview On May 30, 2017, Chief Mina gave an
interview to the Orlando Political Observer in which
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).
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.
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
Orlando Police Department Facebook Page
January 16, 2017, following the arrest of Defendant Salman,
the Orlando Police Department (“OPD”) posted ...