Opinion
Case Number: C3-01-15
August 7, 2001
MEMORANDUM AND ORDER
I. Introduction
Before the Court are three motions by defendant. First, defendant seeks to dismiss the Indictment, which the government opposes (doc. # 35). Second, he seeks a change of venue, which the government also resists (doc. #36). Associated with his motion to change venue is a motion to compel a nonparty television station to provide him a copy of a story it aired, which the station resists (doc.s # 43). For the reasons set forth below, defendants motions are DENIED.
II. Motion to dismiss
Defendant argues that the Indictment should be dismissed because it does not allege materiality, a required element of mail fraud. Defendant is correct that in Neder v. United States, 527 U.S. 1, 21 (1999), the Supreme Court held materiality is an element that must be proven to support a mail fraud conviction. Thus, to convict defendant of the charges in the Indictment, the government here must prove the materiality of the statements it alleges defendant made in pursuit of his alleged fraud.
Cases interpreting Neder, however, make clear that dismissal of a mail fraud indictment on the grounds that it does not allege materiality will be extremely rare. See generally United States v. Ferro, 252 F.3d 964, 967-68 (8th Cir. 2001). As the Eighth Circuit has explained, an indictment will survive a motion to dismiss so long as it contains a facially sufficient allegation of materiality. Id. at 968. Thus, to dismiss an indictment, the trial court must find that the governments well-pleaded allegation of materiality [is] so factually weak as to permit a pretrial determination that no reasonable jury could make the requisite finding of materiality. Id. The Court concludes this standard cannot be met here.
The Supreme Court has held that a statement is material if it has "a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed." Neder, 527 U.S. at 16 (citing United States v. Gaudin, 515 U.S. 506, 509 (1995)). Here, the Indictment charges that defendant guaranteed to the alleged victim that the investments he encouraged her to make would pay very high rates of return. (Indictment, Count One, at ¶¶ 5, 12.) It also alleges that defendant assured the victim her money was safe and available upon request. (Id. at ¶¶ 16, 19.) Finally, it alleges that he executed several promissory notes promising repayment at certain times and at certain interest rates. (Id. at ¶¶ 13-15.) These allegations constitute a factually sufficient allegation of materiality, as a reasonable jury could conclude that these statements, if made as alleged, could have a tendency to influence the victims decisionmaking process. See Neder, 527 U.S. at 16 (defining materiality); Ferro, 252 F.3d at 968 (reviewing standard for granting pretrial motion to dismiss). Thus, this Court cannot hold that the allegations of materiality are so factually weak as to require dismissal. Ferro, 252 F.3d at 968. Defendants motion to dismiss is therefore DENIED.
III. Motion to change venue
Defendant wishes to change venue from this district to another federal district pursuant to Rule 21(a) of the Federal Rules of Criminal Procedure. That section provides:
The court upon motion of the defendant shall transfer the proceeding as to that defendant to another district whether or not such district is specified in the defendants motion if 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 at any place fixed by law for holding court in that district.
Defendant argues this standard is met here because of the amount of pretrial publicity of this case. Specifically, he claims there have been three newspaper accounts of the case since the Indictment was issued on March 6, 2001, as well as one television interview with the alleged victim. Further, he points out that the alleged victim is a longtime schoolteacher from the area.
For its part, the United States asserts that the media coverage of this case has not been sufficient to create the presumption of prejudice defendant asserts. Therefore, the United States urges that the Court wait until voir dire to determine whether any members of the jury panel have in fact been exposed to prejudicial media coverage of the case. The government urges that the Court can transfer the case at that point if necessary.
In connection with his efforts to prove that the publicity of his case creates a presumption of prejudice, defendant seeks to compel WDAY, a television station in Fargo, N.D., to provide a videotape of an interview with the alleged victim. WDAY broadcast this interview on June 6, 2001, and defendant seeks a copy of the interview actually broadcast, not any edited, background or source materials. WDAY resists the motion, arguing the First Amendment and the North Dakota journalist shield law protect it from producing the materials. As set forth below, the Courts treatment of the venue issue will effectively moot this question.
The Eighth Circuit has recently summarized the standards to be applied in venue transfer cases such as this:
We review the denial of a change of venue for abuse of discretion. When pretrial publicity is the issue, we engage in a two-tiered analysis. At the first tier, the question is whether pretrial publicity was so extensive and corrupting that a reviewing court is required to presume unfairness of constitutional magnitude. Because our democracy tolerates, even encourages, extensive media coverage of crimes such as murder and kidnapping, the presumption of inherent prejudice is reserved for rare and extreme cases. In all other cases, the change-of-venue question turns on the second tier of our analysis, whether the voir dire testimony of those who became trial jurors demonstrated such actual prejudice that it was an abuse of discretion to deny a timely change-of-venue motion.
United States v. Blom, 242 F.3d 799, 803 (8th Cir. 2001) (internal citations and quotations omitted).
As this passage makes clear, inherent prejudice will be presumed only in rare and extreme cases. Id. The Court holds that this case is not so rare and extreme as to justify such a presumption. The Court has reviewed the three newspaper stories published which relate to this case; all are simply accounts of the case which refer to accusations contained in the indictment. It is true that one story and, apparently, the television interview, contain statements by the victim describing the extent of her loss, but this fact alone cannot create the level of inherent prejudice required for a change of venue at this point.
This conclusion is apparent from the Eighth Circuits recent Blom decision. That case involved a federal prosecution of firearms violation following defendants state conviction for a well publicized kidnapping and murder. Id. at 802-03. There had been extensive statewide pretrial publicity of the cases, including Bloms criminal record, the discovery of human remains on his property, and speculation that he might be involved in a series of unsolved kidnappings and murders. Id. at 803. Further, the federal trial was held after Blom had been convicted of murder in state court. Id. The Eighth Circuit upheld the district courts decision to deny a change of venue on the grounds of presumed prejudice and defer a decision until after examination of the venire panel. Id. at 804. Here, the amount of pretrial publicity has been exponentially less, and the crimes at issue are far less likely to produce prejudice, greatly undercutting the potential prejudice.
In light of these facts, the Court rules that the motion to transfer venue is DENIED. At jury selection, the Court will inquire into any effect the news coverage has had on potential jurors. Counsel are also free to suggest voir dire questions and will be able to conduct their own voir dire on this subject. At that time, the Court will determine whether those on the panel demonstrate actual prejudice; those who do can be struck from the jury. Finally, the Court will revisit this ruling if it becomes apparent the panel is generally prejudiced against defendant.
In light of this determination, the Court need not make a final ruling on the merits of defendants motion to compel. The videotape at issue contains an interview with the alleged victim in this case. The Court does not believe that this interview could possibly justify a finding of inherent prejudice, which is reserved for rare and extreme cases. Blom, 242 F.3d at 803. There has simply not been the amount of coverage of this case which would justify such a finding; defendant has cited only three brief newspaper stories and one television story. Therefore, the Court will not compel disclosure of the videotape. Rather, as set forth above, it will ask the members of the venire panel of their knowledge of the case, including the television story at issue. Those actually prejudiced by this or any other coverage can be excused and, if it becomes apparent the coverage has tainted the entire panel, the Court will address the issue of transfer in light of the that facts. Therefore, without ruling on its merits, the Court rules that the motion to compel is DENIED.
IV. Conclusion
As set forth above, defendant motion to dismiss the Indictment (doc. # 35), transfer venue (doc. # 36), and to compel (doc. # 43) are DENIED.
IT IS SO ORDERED.