has taken the position - White Collar Securities Defense

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CRIMINAL NO. 13-20600
Pursuant to the Court’s Order, the United States of America respectfully
submits this memorandum of law on the use of independent polling by the defense
to support a transfer of venue motion. Although a public opinion poll will unlikely
lead to a change in venue, a flat prohibition on polling is unnecessary.
A defendant has a right to trial by “impartial, indifferent jurors.” Irwin v.
Dowd, 366 U.S. 717, 722 (1961). To prevail on a change of venue motion based on
an insufficiently “indifferent” jury, a defendant must “sustain that claim not as a
matter of speculation but as a demonstrable reality.” United States v. Haldeman, 559
F.2d 31, 60 (D.C. Cir. 1976). “This demonstration can be made only by reference to
the voir dire. In ‘extreme circumstances,’ however, prejudice to the defendant’s
rights may be presumed.” Haldeman, 559 F.2d at 60; see also Skilling v. United
States, 130 S. Ct. 2896, 2912– 917 (2010)(discussing cases where extreme
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circumstances necessitated change of venue).
Defendants often utilize opinion polling in an attempt to demonstrate that
extreme circumstances exist warranting a transfer of venue. See, e.g., United States
v. Salad, 915 F. Supp. 2d 755, 756-57 (E.D. Va. 2012); United States v. Graham,
No. 03-CR-89-04-RB, 2003 WL 23198794 (D. Colo. Dec. 2, 2003); United States v.
Lehder-Rivas, 669 F. Supp. 1563, 1569 (M.D. Fla. 1987). However, opinion polls
tend to be only marginally relevant to a change of venue analysis, because the
district court may consider or may disregard opinion polls. See Kordenbrock v.
Scroggy, 919 F.2d 1091, 1102 (6th Cir. 1990)(en banc)(despite poll revealing that
80% of those polled heard about the case and nearly 50% of people thought
defendant was guilty, venue motion was properly denied because voir dire revealed
that seated jurors had not formed any opinion); Haldeman, 559 F.2d at 64 n.43 (trial
court did not err in ignoring a poll and relying more heavily on a “comprehensive
voir dire examination conducted by the judge in the presence of all parties and their
counsel pursuant to procedures, practices and principles developed by the common
law since the reign of Henry II”); United States v. Rodriguez, 581 F.3d 775, 785–86
(8th Cir. 2009)(expressing doubts about the relevance of such polls and district court
“not require[d] . . . to consider public opinion polls when ruling on change of venue
motions.”); United States v. Campa, 459 F.3d 1121, 1145–46 (11th Cir. 2006)(en
banc)(district court has substantial discretion in determining the weight to be
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afforded a public opinion poll); United States v. Malmay, 671 F.2d 869, 875–76 (5th
Cir. 1982)(district court did not err by denying change of venue motion when public
opinion poll revealed only general public awareness of the crime rather than
widespread belief about defendant’s guilt); United States v. Chagra, 669 F.2d 241,
252 (5th Cir. 1982)(noting that polling evidence submitted by defense is subject to a
variety of errors); United States v. Mandel, 431 F. Supp. 90, 100-01 (D. Md.
1977)(defendants submitted results of an opinion poll but court disregarded findings
because “a public opinion poll is no substitute for voir dire examination.”).
While many courts tend to dismiss the significance and materiality of an
opinion poll, they generally do not prohibit polling. See United States v. KouriPerez, 985 F. Supp. 25, 27 (D.P.R. 1997)(citing Haldeman but noting that
defendants may use public opinion polls to demonstrate the need for a change of
venue due to the potentially nefarious effects of pretrial publicity); United States v.
Partin, 320 F. Supp. 275, 280 (E.D. La. 1970)(while dismissive of a “self-serving”
poll, court suggested the defense could conduct the poll); Los Angeles Mem’l
Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 497, 509 (C.D. Cal.
1981)(change of venue denied noting that requests for pre-voir dire transfers are
often supported by statistical evidence or the results of opinion polls, and the
defense had not submitted any such evidence); United States v. Holder, 399 F.Supp.
220, 227-28 (D.S.D. 1975)(survey data compiled on the massive publicity and
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district’s high degree of racial prejudice warranted change of venue).
While many courts have dismissed polling, some secondary sources have
suggested that properly written and administered opinion polls may aid judges in
determining the existence of overwhelming bias. See Thomas Beisecker, The Role
of Change of Venue in an Electronic Age, 4 Kansas J. of Law & Pub. Pol. 81, 84
(1995)(“public opinion polling . . has become an important toll to justify changes of
venue” as the results “enable judges to make informed decisions about the extent to
which people in the community have drawn conclusions about the defendant.”);
Judge Peter D. O'Connell, Pretrial Publicity. Change of Venue, Public Opinion
Polls: A Theory of Procedural Justice, 65 U. Detroit L. Rev. 169, 175 (1988)(a
judge should use a poll “as a tool to help determine the totality of circumstances.
The proper use of a public opinion poll is a subtle indication to the appellate courts
that all precautions were taken to insure that the defendant received a fair and
impartial trial.”).
It appears that only one district court has denied a defense request to conduct
an opinion poll. In United States v. Johnson, 354 F. Supp. 2d 939, 987 (N.D. Iowa
2005), the court concluded that, at the time the request was made by a CJA
appointed attorney in a death penalty case, a poll would have been largely
duplicative of juror questionnaires, and the statistical or expert analysis that would
have been applied to poll results could be applied to the juror questionnaires. Cf.
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United States v. Lehder-Rivas, 669 F. Supp. 1563, 1569 (M.D. Fla. 1987)(First
Amendment permitted “survey some seven weeks prior to the trial date” but fair
administration of justice outweighed First Amendment and prohibited any more
contact after venire summoned and trial was in less than three weeks).
In the instant case, it is unlikely that a poll will reveal any “extreme
circumstances” that would warrant a transfer of venue based on presumed prejudice.
However, a flat prohibition of the defendant’s ability to conduct a poll is
unnecessary. As a precautionary measure, as noted by Lehder-Rivas, the Court may
recommend that any poll be conducted prior to the selection of the venire. 1
With regard to the specific poll questions currently proposed, the government
declines to comment on the construction of the survey, because the Court should not
become involved in designing a poll for the defense. See Lehder-Rivas, 669 F.
Supp. at 1570 (court declined to take a supervisory role in drafting survey questions
because the court “cannot appear to place its imprimatur on methods of strategy or
view of any party. The harm to the integrity of the judicial system would be
staggering.”). Rather, the form and methodology of the survey should be factors to
be considered in litigating and ruling upon any motion for a change of venue.
Furthermore, the government is confident that voir dire can sufficiently address
any issues that arise from members of the venire who have been polled.
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Respectfully submitted,
United States Attorney
s/Sarah Resnick Cohen
Assistant U.S. Attorney
Deputy Chief, Health Care Fraud Unit
211 W. Fort, Suite 2001
Detroit, MI 48226
(313) 226-9637
[email protected]
s/John Neal
JOHN NEAL (VA 45698)
Assistant U.S. Attorney
211 W. Fort, Suite 2001
Detroit, MI 48226
(313) 226-9644
[email protected]
s/Catherine Dick
Assistant Chief
Criminal Division, Fraud Section
United States Department of Justice
1400 New York Avenue, N.W.
Washington, D.C. 20005
(313) 226-0230
[email protected]
Dated: February 11, 2014