United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1399
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United States of America, *
*
Appellee, *
*
v. *
*
Rudolph George Stanko, *
*
Appellant. * Appeal from the United States
* District Court for the
____________________ * District of Nebraska.
*
The Fully Informed Jury *
Association, Inc.; Jon Roland, *
Founder and President of the *
Constitution Society; and *
Advocates for Justice, Inc., *
*
Amicus Curiae. *
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Submitted: December 13, 2007
Filed: June 13, 2008
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Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Rudolph George Stanko appeals his conviction and sentence for providing a
false social security number in violation of 42 U.S.C. § 408(a)(7)(B). Stanko
repeatedly sought a change of venue from Omaha to North Platte in the District of
Nebraska. Because the district court failed to consider the relevant factors for a
change of venue motion under Federal Rule of Criminal Procedure 18, we reverse
Stanko’s conviction and remand this matter to the district court for a new trial after
proper consideration of Stanko’s motion for change of venue. On remand, we also
direct the district court to provide Stanko with access to grand and petit jury selection
records, pursuant to 28 U.S.C. § 1867(f).
I.
Stanko was indicted on one count of providing a false social security number
to Security First Bank of Rushville, Nebraska, when he opened a checking account for
a business entity. On March 6, 2006, the day of his arraignment in this matter, Stanko,
who proceeded pro se, filed the following: (1) a motion “to dismiss for wrong venue”
because “[t]he crime is alleged to have occurred in the Western Division, not in the
Omaha [D]ivision;”1 (2) a motion demanding “his right to inspect the makeup of the
Grand Jury” that issued the indictment against him pursuant to 28 U.S.C. §§ 107,
1861, and 1862, and requesting a dismissal of the indictment because the grand jurors
were not selected from the “North Platte Division” of Nebraska, and (3) a motion
requesting dismissal because none of the jurors on his grand or petit jury panel were
from the “North Platte Division.” Two days after filing those motions, Stanko filed
a “Petition to Hold Court in the County or Division (Chadron) Where the Crime Is
Alleged,” in which he requested that the district court “hold court” in the “County
(Sheridan) and/or District Division (North Platt or Chadron) where the crime is
1
The District of Nebraska does not maintain divisions, rather the district holds
court in three locations–Lincoln, North Platte, and Omaha. 28 U.S.C. § 107.
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alleged to have occured [sic].” Stanko also filed a second motion challenging the
selection process for grand jurors in which he quoted from 28 U.S.C. § 1867(f).
The district court ruled on these motions, and several others, in a single order
entered on March 20, 2006. In denying the motion “to dismiss for wrong venue,” the
district court ruled that the motion was without merit because Federal Rule of
Criminal Procedure 18 permits venue in the District of Nebraska. Describing the
motions to dismiss for lack of grand and petit jurors from the North Platte area as
motions “to change venue from Omaha to western Nebraska,” the district court denied
the motions, holding that the Sixth Amendment mandates only that trial be held in the
district where the crime allegedly occurred and the District of Nebraska encompasses
the entire State of Nebraska. Concerning Stanko’s first request to inspect the grand
jury makeup, the court denied the request, stating that the grand jury proceedings were
“secret and confidential” and that Stanko had failed to “show a particularized need”
for the information. The district court denied the second motion to inspect the grand
jury list in which Stanko stated that he was proceeding pro se on “just count three (3)
in the superceding indictment.” The district court “assum[ed] that [Stanko] meant to
file this pleading in this other criminal case” because the case before the court
involved only one count.
In consideration of Stanko’s petition to hold his trial in Sheridan County, the
district court “assume[d] that [Stanko was] again asking for a change of venue.” The
court then recognized that under Federal Rule of Criminal Procedure 18 it “must set
the place of trial within the district with due regard for the convenience of the
defendant, and the witnesses, and the prompt administration of justice.” Without
further explanation, the district court determined that Stanko “ha[d] not offered any
reasons as to why this case should be tried in a location other than Omaha” and
summarily denied the motion. On March 31, 2006, Stanko sought to file an
interlocutory appeal of this denial, however this court entered a judgment dismissing
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the appeal for lack of jurisdiction. The mandate was issued on June 29, 2006, and
docketed in the district court on July 3. 2006.
Undeterred, Stanko filed a “Motion for Change of Venue with Supporting
Declaration” on July 31, 2006, referencing the district court’s denial of his prior
motion due to his failure to offer reasons why the case should be tried in a location
other than Omaha. Stanko argued that (1) he is a resident of Sheridan County,
Nebraska, (2) Sheridan County is approximately 500 miles from Omaha, (3) the crime
is alleged to have occurred in Sheridan County, (4) all witnesses reside between 400
and 600 miles from Omaha, (5) a trial in Omaha would not provide him with a jury
of rural western Nebraska jurors, and (6) the distance that witnesses and jurors from
western Nebraska would have to travel to attend the trial in Omaha would cause an
undue hardship. The district court denied this motion to change venue because it had
set a March 26, 2006 deadline for the filing of all pretrial motions. The court noted
that it had “permitted some leeway” with regard to this pretrial deadline due to
Stanko’s incarceration but would “not permit a reconsideration of this motion five
months after its denial.”
Four days before trial, Stanko filed a “Motion to Inspect Jury Makeup and
Completed Juror Qualification Forms” along with a supporting affidavit, in which he
contended that in his previous criminal trial all the petit jurors were from Douglas and
Sarpy Counties and none of the grand jurors resided in the western third of Nebraska.
The district court responded that Stanko would “be provided with a list of juror names
and stickers for the seating chart at the onset of trial beginning Monday, October 23,
2006. The court will give further instructions regarding the use of this information at
the time of trial.”
The trial was conducted on October 24 and 25, 2006, and resulted in Stanko’s
conviction on one count of violating 42 U.S.C. § 408(a)(7)(B). Stanko was
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subsequently sentenced to twelve months and one day of imprisonment to be followed
by three years of supervised release.
II.
On appeal, Stanko raises multiple issues including that (1) his arraignment was
improperly conducted, (2) he was denied access to records about grand jury members,
(3) the district court erred in denying his request for change of venue, (4) he was
denied the right to compel witnesses to appear, (5) he was subjected to selective and
vindictive prosecution, (6) the government misrepresented evidence to the jury in the
closing argument, and (7) the district court abused its discretion in rejecting a
proposed jury instruction.
In his first point of appeal, Stanko contends that, because his arraignment in this
matter occurred at the conclusion of a detention hearing in a separate matter, his
arraignment was improper. Because he does not claim that he lacked sufficient notice
of the charges brought against him or that he was unable to defend himself against the
charges because of a deficient arraignment, we find no violation of his rights. See
Garland v. Washington, 232 U.S. 642, 645 (1914) (holding that lack of formal
arraignment does not deprive defendant of any substantial right so long as accused had
sufficient notice of accusation and adequate opportunity to defend himself); United
States v. Reynolds, 781 F.2d 135, 136 n.2 (8th Cir. 1986) (“[A]bsence of a formal
arraignment is of little consequence.”).
A.
“The sixth amendment to the United States Constitution requires that a trial be
held in the state and district where the crime was committed. However, a defendant
does not have a right to be tried in a particular division.” United States v. Wipf, 397
F.3d 677, 686 (8th Cir. 2005) (quoting United States v. Davis, 785 F.2d 610, 616 (8th
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Cir. 1986)); see United States v. Thiel, 619 F.2d 778, 780 (8th Cir. 1980); United
States v. Young, 618 F.2d 1281, 1288 (8th Cir. 1980). “We review a denial of a
motion for a change of venue for abuse of discretion.” United States v. Allee, 299
F.3d 996, 999 (8th Cir. 2002). “A district judge has broad discretion in determining
where within a district a trial will be held, and to overturn the court’s decision the
defendant must prove abuse of that discretion or prejudice.” Davis, 785 F.2d at 616;
United States v. Anderson, 626 F.2d 1358, 1375 (8th Cir. 1980) (“Absent any
prejudice to the defense, the decision of the trial court cannot be considered an abuse
of discretion.”).
Federal Rule of Criminal Procedure 18 prescribes that a district court “set the
place of trial within the district with due regard for the convenience of the defendant
and the witnesses, and the prompt administration of justice.” The District of Nebraska
has adopted a local rule presuming that criminal trials will be held in either Omaha or
Lincoln and mandating that “[c]riminal cases will be held in North Platte only upon
motion.” Neb. Local Crim. R. 18.1(a) (2007). The local rule provides that “[a]ny
party may request a change of the place of trial after the arraignment and before the
time set for filing pretrial motions in the scheduling or progression order. The request
must be made by motion and supported by affidavit.” Id. at 18.1(b). Nothing in Rule
18 places the burden on the defendant to establish the reason for the change of venue,
rather Rule 18 mandates that district courts consider the factors of convenience to the
defendant, convenience to the witnesses, and the prompt administration of justice
when considering where trial should be held.
Here, the district court denied the March 6 motions on March 20 because
Stanko had “not offered any reasons as to why this case should be tried in a location
other than Omaha.” Stanko repeatedly stated in his early motions requesting a change
of venue that the crime allegedly occurred in the “North Platte Division.” The district
court does not indicate that the reason it denied Stanko’s early change of venue
motions was because of his failure to comply with the local rule’s affidavit
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requirement. Later, when Stanko presented several reasons, including the
considerable distance between his home and the home of many of the witnesses to the
trial location in Omaha, the court refused to consider those reasons because the
renewed motion was filed on July 31 and the deadline for pretrial motions was March
26, six days after the court denied the original venue motion.
There is no evidence in the record that the district court undertook any
consideration of the convenience of the defendant or witnesses or the prompt
administration of justice when it denied Stanko’s motions. The Eleventh Circuit
considered a similar situation in United States v. Burns, 662 F.2d 1378 (11th Cir.
1981). In Burns, the defendants sought to change venue from the Southern Division
of the Northern District of Alabama to the Northeastern Division of the district,
“averr[ing] that a proper defense required their calling a large number of witnesses,
all of whom lived in the Huntsville area.” Id. at 1380. A magistrate judge entered a
recommendation that the motions for change of venue be denied, and the district judge
entered an order denying the motions but without reference to the magistrate judge’s
recommendation. Id. at 1380-81. The district court’s order stated that the motions
were denied because of “time restraints imposed by the Speedy Trial Act . . . together
with the current pending criminal cases to be disposed of within the next several
months in this district . . . .” Id. at 1381. The Eleventh Circuit reversed the
defendants’ convictions and remanded the matter for a new trial because of the district
court’s error in ruling on the change-of-venue motions. Id. at 1383. The Eleventh
Circuit explained:
We think that a district judge’s exercise of discretion resulting in a trial
in an environment alien to the accused over a proper objection must be
supported by a demonstration in the record that the judge gave due
regard to the factors now incorporated in Rule 18. The record in this
case does not contain such a demonstration. Obviously trial in
Birmingham was inconvenient to objecting defendants. Obviously trial
in Birmingham was inconvenient to virtually all of the many witnesses.
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For speedy trial considerations to outweigh such factors they should be
set forth in findings that are sufficiently detailed to allow review. The
record before us does not furnish any hint of a reason why a trial could
not be held in the Northeastern Division within a reasonable time except
for the policy of the court not to do so. The requirements of Rule 18
compel that this be held insufficient.
Id. (footnote omitted).
At argument in this matter, the government conceded that had the district court
considered the convenience of the witnesses and the defendant, this factor would have
overwhelmingly supported holding Stanko’s trial in North Platte. Rushville, Nebraka,
where Stanko allegedly provided the false social security number, is approximately
200 miles closer to North Platte than it is to Omaha.2 Stanko requested issuance of
subpoenas for over forty witnesses. The district court directed that subpoenas be
issued for only nine witnesses, among them only one character witness. Four of those
nine witnesses were also on the government’s witness list. Five of the seven witnesses
called at trial resided in either Rushville, Nebraska or nearby Chadron, Nebraska.
We recognize that the district court granted Stanko’s request to subpoena
Catherine Stanko, the defendant’s daughter, and ordered that one-way mileage and
one-day witness fee be paid to assist her in attending. At trial, Stanko attempted to
call Catherine Stanko as a witness. She was not present, and Stanko stated that,
although she had been served and “had a ride,” she was unable to attend the trial
because “she didn’t have any funds” to afford the trip to Omaha. In addition to
convenience to the witnesses, the court must consider the convenience to the
defendant. A component of that factor is the ability of family, friends, and other
supporters to attend trial. Logically, holding a defendant’s trial approximately 200
2
2008 Rand McNally Road Atlas at 62-63. The distance from Rushville,
Nebraska to Omaha, Nebraska is 405 miles; the distance from Rushville, Nebraska to
North Platte, Nebraska is 214 miles. Id.
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miles further than the nearest location permitted for such a trial would influence the
ability of family and friends to attend, thus impacting the convenience to the
defendant.
The government maintains, however, that Stanko failed to prove that he was
prejudiced by the holding of trial in Omaha. In light of the government’s concession
that convenience to Stanko and the witnesses would have overwhelmingly supported
holding trial in North Platte, we find that Stanko was prejudiced. To hold otherwise
would undermine the relevance and impact of the Rule 18 factors. Dupoint v. United
States, 388 F.2d 39, 44 (5th Cir. 1967) (holding that “it is the public policy of this
Country that one must not arbitrarily be sent, without his consent, into a strange
locality to defend himself against the powerful prosecutorial resources of the
Government”); see Burns, 662 F.2d at 1383 n.5 (declining to “resolve the prejudice
question because as framed by the government it is not distinguishable from the
similar contention rejected in Dupoint”).
While the district court retains considerable discretion in determining the place
of trial, that discretion is contingent upon the court’s consideration of the factors
provided in Rule 18 when ruling on a proper motion for change of venue. Although
we cannot say that proper consideration would have necessarily resulted in the transfer
of the trial to North Platte, absent such a showing of consideration, we are left with
no alternative than to reverse Stanko’s conviction and sentence and remand this matter
for a new trial after appropriate consideration of Stanko’s change-of-venue motions.
B.
At his arraignment and later before the beginning of the trial, Stanko sought
release of grand and petit juror information used in the selection of the juries.
Although “[t]he contents of records or papers used by the jury commission or clerk
in connection with the jury selection process shall not be disclosed,” an exception
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exists for parties “to inspect, reproduce and copy such records or papers at all
reasonable times during the preparation and pendency” of a motion challenging the
jury selection process. 28 U.S.C. § 1867(f). The Supreme Court has explained that
under section 1867(f), “a litigant has essentially an unqualified right to inspect jury
lists.” Test v. United States, 420 U.S. 28, 30 (1975). “To avail himself [or herself]
of [the] right of access to otherwise unpublic jury selection records, a litigant need
only allege that he [or she] is preparing a motion challenging the jury selection
procedures.” United States v. Alden, 776 F.2d 771, 773 (8th Cir. 1985) (alteration in
original) (quoting United States v. Layton, 519 F. Supp. 946, 958 (N.D. Cal. 1981)).
A defendant may not be denied this unqualified right even when he “fails to allege
facts which show a ‘probability of merit in the proposed jury challenge,’” id. at 774
(quoting United States v. Beaty, 465 F.2d 1376, 1380 (9th Cir. 1972)), because
“[g]rounds for challenges to the jury selection process may only become apparent
after an examination of the records.” Id. at 775. A fair reading of Stanko’s motions
shows that he was questioning the composition of the grand and petit juries and was
seeking information he believed was necessary to challenge the jury selection process.
The district court erred in denying Stanko’s request to review the grand jury and
petit jury records. The district court’s requirement that Stanko show a “particularized
need” for the records ignores the dictates of the statute and the Supreme Court’s
application of the statute. While a party seeking disclosure of the proceedings or
minutes before a grand jury must demonstrate a “particularized need,” see Fed. R.
Crim. P. 6(e)(3)(E)(ii) (court may authorize disclosure of a grand-jury matter “at the
request of a defendant who shows that a ground may exist to dismiss the indictment
because of a matter that occurred before the grand jury”); United States v. Broyles, 37
F.3d 1314, 1318 (8th Cir. 1994) (“It is well-established that a showing of a
‘particularized need’ is necessary before the court will accede to . . . a release [of
grand-jury matters].”), Stanko was requesting those records used in the jury selection
process, and, thus, he did not need to show a “particularized need” to obtain those
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records. On remand, we direct the district court, upon a proper motion from the
defendant, to observe the requirements of 28 U.S.C. § 1867(f).
Because we find Stanko’s claim concerning his motion for a change of venue
to be meritorious, we do not reach the remaining trial issues Stanko raises on appeal.
III.
Accordingly, we reverse Stanko’s conviction and sentence and remand this
matter for a new trial.
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