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United States v. Sabhnani

September 20, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
VARSHA MAHENDER SABHNANI AND MAHENDER MURLIDHAR SABHNANI DEFENDANTS.



The opinion of the court was delivered by: Platt, District Judge.

MEMORANDUM AND ORDER

Before the Court is defendants' motion seeking an Order granting their requests: (1) for a change of venue pursuant to Federal Rule of Criminal Procedure 21(a); (2) for reassignment of the instant case pursuant to Local Rule 50.3(c) ;*fn1 and (3) for leave to make additional pre-trial motions.

For the following reasons, defendants' motion is DENIED.

On May 14, 2007, defendants were arrested pursuant to a Complaint charging them with violations of 18 U.S.C. §§ 1589 and 2 (forced labor) after complaining witness, "Jane Doe 1," informed the police that she and another woman were being held captive by defendants at their home. On May 15, 2007, defendants were arraigned before Magistrate Judge A. Kathleen Tomlinson, who issued a Temporary Order of Detention for defendants and set the matter down for a bail hearing. May 15, 2007 Trans. at 30. On May 17, 2007 and after holding the bail hearing, Magistrate Judge Tomlinson determined that defendants were to be released subject to specific conditions. May 17, 2007 Bail Trans. at 45-63.

Thereafter, on May 22, 2007 an Indictment was returned charging the defendants with two counts of forced labor in violation of 18 U.S.C. §§ 1589, 1594(a)(2), and 3551, and two counts of harboring in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324(a)(1)(A)(v)(II),1324(a)(1)(B)(iii), and 18 U.S.C. § 3551.*fn2 On May 24, 2007, defendants were arraigned on the Indictment and, upon the government's application, this Court ruled that it would hear argument on the issue of whether the bail hearing should be reopened in light of new information which surfaced subsequent to Judge Tomlinson's ruling releasing defendants on bail.

On May 30, 2007, and after oral argument on the government's motion to have the bail hearing reopened,*fn3 this Court directed defendants' attorneys to meet with the government to work out a set of conditions to ensure defendants appearance at trial in this matter. Thereafter, two separate draft Stipulations were submitted by defendants to this Court, neither having been pre-submitted for approval to the government. The Court declined to approve or even consider either draft due to defendants' failure to comply with this Court's direction that the stipulated terms be agreed upon by both parties prior tosubmission to the Court. See Order dated June 5, 2007. On June 6, 2007, the government rejected defendants' draft proposal and, by letter motion, stated that no conditions or set of conditions existed which would mitigate defendants' risk of flight. See Govt. Ltr. dated June 6, 2007.

On or about June 6, 2007, defendants fired all but one of their first set of lawyers. On June 8, 2007, defendants fired their second set of lawyers.

On June 11, 2007, this Court ordered the defendants held without bail pending trial based on the defendants' and the government's failed attempts to reach an agreement as well as the Court's finding that the defendants had not been forthcoming with regard to their finances. On or about June 14, 2007, defendants appealed the Order denying them bail to the United States Court of Appeals for the Second Circuit. On July 6, 2007, the Second Circuit vacated and remanded said Order based on the government's identification of conditions which would ameliorate defendants' risk of flight. See United States v. Sabhnani, Docket No. 07-CR-429, Entry No. 64, at 2.

Subsequently, this Court held conferences with defendants and the government on July 27, August 3 and August 14, 2007 regarding the status of defendants' compliance with the requirements for release as set forth in the Second Circuit's Mandate. On August 21, 2007 and after satisfying the bail conditions, defendants were released to home detention.

Federal Rule of Criminal Procedure 21(a) provides in pertinent part: Transfer for Trial (a) For Prejudice. 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. "As a general premise, a change of venue is warranted when 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.' " United States v. Higgs, 353 F.3d 281, 307 (4th Cir. 2003) (quoting Fed.R.Crim.P. 21(a)).

"In order to prevail on a motion under Rule 21(a), the defendant must show 'a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.' " United States v. Maldonado-Rivera, 922 F.2d 934, 966-67 (2d Cir. 1990) (quoting Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)). Accord United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999). Furthermore, a defendant "must show first that the pretrial publicity was sufficiently prejudicial and inflammatory and second that the pretrial publicity saturated the community where the trial was being held." Spivey v. Head, 207 F.3d 1263, 1270 (11th Cir. 2000). In particular, when requesting a transfer of venue prior to jury selection, defendants must demonstrate "prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community." Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980).

Additionally, in deciding a motion for a change in venue, a district court may consider:

[T]he 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 defendants charged with it, and other factors reflecting on the likely effect of the publicity on the ...


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