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U.S. v. SALIM

March 11, 2002

UNITED STATES OF AMERICA, PLAINTIFF,
V.
MAMDOUH MAHMUD SALIM, DEFENDANT.



The opinion of the court was delivered by: Deborah A. Batts, United States District Judge.

OPINION

The superseding indictment in this case contains ten counts relating to the stabbing of a correctional officer on November 1, 2000, including conspiracy to escape and attempted escape, conspiracy to take hostages and attempted hostage-taking, conspiracy to commit murder and attempted murder, assault, and weapon possession.

The Defendant now moves for the following relief: (1) a change of venue, pursuant to the Fifth and Sixth Amendments of the Constitution and Rule 21(a) of the Federal Rules of Criminal Procedure; (2) preclusion of a photograph of the stabbing victim's face pursuant to Federal Rule of Evidence 403 and admission of only one of three other photographs of the victim on the basis that they are needlessly cumulative; and (3) preclusion of testimony regarding latent fingerprints, pursuant to Fed.R.Evid. 702.

I. BACKGROUND

On February 22, 2001, Salim moved for a change of venue based upon the prejudicial effect of the publicity generated by press reports of the Embassy Bombings case and the stabbing case. On March 29, 2001, this Court denied that motion. Roughly four months later, Salim made a second motion for a change of venue following the publicity generated by the death penalty proceeding against a convicted conspirator in the Embassy Bombings case, Khalfan Khamis Mohamed*fn1, which was summarily denied by this Court on July 11, 2001.

At a status conference held August 24, 2001, this Court set a trial date of September 19, 2001. At a status conference held September 18, 2001, that trial date was subsequently adjourned for at least three months in light of the September 11, 2001, terrorist attacks on the World Trade Center in New York City and the Pentagon in Washington DC. See 9/18/01 Tr. at 25.

Salim now moves for a change of venue on the basis of the widespread pretrial publicity surrounding September 11, 2001 and the alleged prejudicial implications on the ability of Salim to receive a fair trial in the Southern District of New York. In support of his motion, Salim submits for the Court's consideration the results of a public opinion survey ("Venue Survey") conducted during a two-week period in early January 2002 by the survey research firm, Social Science Survey Center, in six federal judicial districts: the Southern District of New York, the Eastern District of Michigan, the Northern District of Iowa, the Central District of California, the District of Colorado, and the Southern District of Florida.

Salim also submits an affidavit from Professor Edward J. Bronson ("Aff."), a political scientist and a seasoned consultant to attorneys on the efficacy of various voir dire and jury selection procedures, and on the effect of pretrial publicity on fair trial rights through evaluative surveys. (Aff. ¶ 8.) Based upon the survey data and Professor Bronson's review of the instant Indictment, various hearing transcripts, media articles, and certain Court Orders, Professor Bronson has submitted an affidavit setting forth his analysis of the effect of pretrial publicity and emotions in a post September 11, 2001 world on the instant trial ("Report"), as well as a Reply affidavit to clarify matters raised in the Government's response.

Professor Bronson's Report highlights the survey results he views as most significant for the fair trial rights of Salim in New York city, including, inter alia: (1) actual case recognition of the stabbing of Officer Pepe was "low, approximately 20 percent in New York, and somewhat lower elsewhere"*fn2 (Aff. ¶ 16); (2) upon aided recall, 26.8% of New Yorkers correctly remembered that Salim faces charges relating to the Embassy Bombings, although Professor Bronson states "Of course, this was aided recall, and not that many actual New York jurors are likely to recall that Mr. Salim is facing the bombing charges. However, the risk is much higher in New York than elsewhere." (Aff. ¶ 17); (3) 58% of New York respondents were "personally affected" by the September 11, 2001 attacks while the range in other districts was between 19.4% (CO) and 33.9% (MI) (Aff. ¶ 18); (4) when asked about the ability of jurors from their respective districts to be fair to a perceived Arab national, Professor Bronson found that overall "almost half" of people thought it would be difficult for their fellow citizens to be fair; New York was higher than the average of the other jurisdictions at 49.6%*fn3 (Aff. ¶ 19).

Ultimately, Professor Bronson concludes that the Survey cannot support a demonstrably true link between the deleterious impact of the events of September 11, 2001 and Salim's fair trial rights: "[W]hile there are some reasons to believe that a change of venue would be appropriate, the data do not provide the sort of clear and convincing empirical evidence that would mandate a change of venue, using the traditional ways that a venue survey measures prejudice. . . . The survey . . . cannot provide strong evidence on the linkage between the special prejudice in New York arising from the events of September 11 and the fair trial rights of the defendant." (Aff. ¶¶ 20-21.)

In support of his in limine motion seeking photograph preclusion, Defendant submits four color photographs depicting the victim after the stabbing.

II. DISCUSSION A. Change of Venue

As previously discussed by this Court in United States v. Salim, 151 F. Supp.2d 281 (S.D.N.Y. 2001), Rule 21(a) of the Federal Rules of Criminal Procedure mandates a transfer of venue only if a 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." Fed.R.Crim.P. 21(a). Traditional factors for assessing the risk of presumed prejudice include but are not limited to, the extent to which the government is responsible for generating the publicity, the extent to which the publicity focuses on the crime rather than on the individual defendant charged with it, and other factors reflecting on the likely effect of the publicity on the ability of potential jurors in the district to hear the evidence impartially. See United States v. Maldonado-Rivera, 922 F.2d 934, 967 (2d Cir. 1990). To succeed on a motion to change venue, the Defendant must show a "reasonable likelihood" that prejudicial news prior to trial will prevent a fair trial. Id. at 966-67.


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