United States District Court, D. Nevada
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter is before the undersigned on Defendant Michael Stanley Kaplan, M.D.'s Motion for Change of Venue, or in the Alternative, to Submit Written Juror Questionnaire (#26), filed on April 21, 2014. The Court also considered the Government's Response (#31), filed on May 8, 2014 and Defendant's Reply (#37), filed on May 27, 2014.
On October 2, 2013, a federal grand jury returned a two count indictment charging Defendant Michael Stanley Kaplan, M.D., ("Kaplan") with one count of conspiracy to commit adulteration in violation of 18 U.S.C. § 371 and one count of false statement in violation of 18 U.S.C. § 1001. Kaplan is a local physician licensed to practice medicine in the State of Nevada and specializing in the practice of urology. See Def.'s Mot. #26 at 2:18-19. He operates a medical practice known as "Green Valley Urology" ("GVU") with offices located in Henderson and Las Vegas, Nevada. Count One of the indictment charges Kaplan with conspiracy to unlawfully reuse single-use needle guides during invasive prostate procedures. There has been some media coverage, beginning in March of 2011 through October of 2013, by CBS Las Vegas, the Las Vegas Review Journal, and Las Vegas Sun concerning Kaplan's reuse of endocavity needle guides based on the Southern Nevada Health District's investigation into whether patients during December of 2010 to March 11, 2011 are at risk for HIV or Hepatitis C. See Def.'s Mot. #26 at Exs. M-T. Indeed, Kaplan paid for an advertisement in the Las Vegas Review Journal to address his reuse of single-use needle guides. See Def.'s Mot. #26 at Ex. N. Some of the articles, or comments to the articles, reference a prior unrelated incident of reusing syringes and single-dose vials. See Def.'s Mot. #26 at Exs. M-T.
In 2008, approximately 40, 000 patients in southern Nevada were informed that they may have been exposed to Hepatitis C and/or HIV during procedures performed between March 2004 and January 11, 2008 at the Endoscopy Center of Southern Nevada ("Endoscopy Center"). See Def.'s Mot. #26 at Ex. B. The Southern Nevada Health District found that the exposure was the result of unsafe practices at the Endoscopy Center such as reusing unsterilized syringes and single dose vials of propofol. See Def.'s Mot. #26 at Exs. C and D. Multiple lawsuits were filed in Las Vegas regarding the Endoscopy Center's practices, which resulted in millions of dollars of liability for the manufacturer and distributors of propofol. See Def.'s Mot. #26 at Exs. E and F. Additionally, Dipak Desai, M.D., ("Desai"), a physician at the Endoscopy Center, was criminally charged by the State of Nevada in June of 2010 for acts related to the hepatitis C outbreak, convicted by a jury in July of 2013, and sentenced to life in prison in October of 2013. See Def.'s Mot. #26 at Exs. G, I, and J. The Las Vegas Review Journal and Las Vegas Sun provided media coverage of the Endoscopy Clinic and Desai's unsanitary disinfection practices and related lawsuits through articles published in 2008 through 2013. See Def.'s Mot. #26 at Exs. B-L. Additionally, Desai was charged with billing fraud in a federal case that is ongoing and briefly mentioned in a Las Vegas Sun article on March 28, 2014. See Def.'s Mot. #26 at Ex. L.
In the instant Motion, Kaplan requests transfer of this action to another district or to Reno due to the presumed prejudice of the Las Vegas community toward doctors who are alleged to have unlawfully reused single-use medical devices. See Def.'s Reply #37 at 7. He cites to the aforementioned media coverage, including online readers' comments, as drawing a link from Kaplan to the Desai incident. See Def.'s Mot. #26 at 7-8. In the alternative, Kaplan requests that this Court allow him to submit a jury questionnaire in an effort to effectively detect and avoid any prejudice that is harbored by the members of the Las Vegas community who are called for jury service in this case. Id.
In response, the Government claims that this is not one of those "extreme cases" for which a change of venue is appropriate because the pre-trial publicity generated in this case has not compromised Kaplan's right to an impartial jury. Govt.'s Resp. #31 at 1:21-23. The Government argues that all three of the relevant factors weigh against transferring this case because there is a large and diverse jury pool, the nature of the publicity was not blatantly prejudicial, and the media coverage of Kaplan was factually distinct and distant in time. Id. at 4-8. Additionally, the Government argues that Kaplan failed to justify the need for a jury questionnaire. However, the Government requests that if the Court exercises its discretion to allow for a jury questionnaire, then it be given the opportunity to comment and submit questions. Id. at 8:15-17.
The Sixth Amendment to the Constitution of the United States guarantees a criminal defendant "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. Amend. VI. Similarly, Federal Rule of Criminal Procedure 18 provides that, unless permitted otherwise, "the government must prosecute an offense in a district where the offense was committed." Fed. R. Crim. P. 18. Federal Rule of Criminal Procedure 21 permits a defendant to file a motion to transfer venue from the venue determined by Rule 18 to another district or within a district.
A district court has broad discretion in deciding a motion to transfer venue. See United States v. Sherwood, 98 F.3d 402, 410 (9th Cir. 1996). However, the motion must be granted "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." Fed. R. Crim P. 21. For example, the court may be "unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere." Hayes v. Ayers, 632 F.3d 500, 507 (9th Cir. 2011) ( citing Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988). Accordingly, if a defendant's request demonstrates extraordinary local prejudice will prevent a fair trial, then due process requires transfer of the action to a different district or within the district.
A defendant must demonstrate either actual or presumed prejudice to justify a venue transfer. See Skilling v. United States, 561 U.S. 358 (2010). To establish actual prejudice, a defendant must demonstrate that the jurors exhibited "actual partiality or hostility that could not be laid aside." Sherwood, 98 F.3d at 410. However, jurors are not required to be "totally ignorant of the facts and issues involved." Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). It is sufficient if the juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Id. (citations omitted).
"Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime." Harris, 885 F.2d at 1361. Prejudice is rarely presumed because "saturation" requires conditions found in only "extreme situations." Sherwood, 98 F.3d at 410. As a result, the presumed prejudice standard is extremely difficult to meet even in cases with extensive media coverage. See Rideau v. Louisiana, 373 U.S. 723 (1963) (finding presumed prejudice based on defendant's alleged confession being televised prior to trial); see also United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) (noting the presumptive prejudice standard recognized in Rideau is only rarely applicable and reserved for an extreme situation). The Supreme Court has identified three factors to determine whether or not there is presumed prejudice: (1) the size and characteristics of the community in which the crime occurred, (2) the nature of the publicity, focusing on whether the disseminated information was "blatantly prejudicial, " and (3) the passage of time between the news coverage and the start of trial. Skilling at 382-383.
I. Kaplan Has Failed to Demonstrate Presumed Prejudice.
Kaplan's request to transfer venue is based on presumed rather than actual prejudice of individual jurors. He argues that the negative pre-trial publicity associated with the Endoscopy Center and Desai has resulted in pervasive community hostility against the alleged criminal activity at issue in this action. As a result, Kaplan claims that a presumption of prejudice has arisen necessitating a transfer to a different judicial district or within the District of Nevada to Reno. In contrast, the Government contends that Kaplan has failed to carry his burden of demonstrating presumed prejudice and transfer is not justified. After careful consideration, the Court finds that Kaplan has not demonstrated presumed prejudice for three ...