United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE.
are accused of conspiring to and engaging in a scheme to
defraud health care insurance companies of millions of
dollars by formulating, marketing, prescribing, and billing
for fraudulent compounded medications. Defendants are also
accused of conspiring to and engaging in a scheme to pay and
receive kickbacks and bribes in promotion of their scheme,
and of conspiring to and engaging in a scheme to launder the
fraudulently obtained proceeds of their crimes.
jointly filed a Motion to Transfer Venue  of this case
to the Northern Division of this District. They argue that a
transfer is necessary because of “the extensive and
extremely inflammatory pretrial publicity this matter has
received regularly and repeatedly since January 2016.”
Motion to Transfer Venue at 1, United States v.
Thomley, No. 2:18-CR-18-KS-MTP (S.D.Miss. Oct. 5, 2018),
ECF No. 124. Defendants note that the Government has
separately indicted and obtained guilty pleas from numerous
co-conspirators, and that those proceedings have been
reported by media outlets in the Hattiesburg area.
Id. at 2. Defendants further note that the only
co-conspirator to go to trial was convicted on all sixteen
charged counts and sentenced earlier this year. Id.
at 3. Defendants contend that the “saturation of media
attention naming [them] along with the guilty parties has
effectively already convicted [them] in the court of public
opinion, ” and, therefore, they are entitled to a
change of venue to the Northern Division. Id.
Defendants did not request a live hearing on the motion.
Regardless, there do not appear to be any disputed facts.
Constitution and Rule 18 require that a criminal trial be
held in the district in which the crime occurred. U.S. Const.
art. 3, § 2, cl. 3; U.S. Const. amend. VI; Fed. R. Crim.
P. 18. But the Constitution does not require that a criminal
trial be held in any particular division with a district.
United States v. Lipscomb, 299 F.3d 303, 339 (5th
Cir. 2002). Rather, the Rules of Criminal Procedure require
that “[t]he court must set the place of a trial within
the district with due regard for the convenience of the
defendant, any victim, and the witnesses, and the prompt
administration of justice.” Fed. R. Crim. P. 18. The
Court may also consider other facts, such as pretrial
publicity. Lipscomb, 299 F.3d at 340, 343-44.
Defendants argue that they can not receive a fair trial in
Hattiesburg because of inflammatory pretrial publicity.
“A fair trial in a fair tribunal is a basic requirement
of due process.” Jones v. Davis, 890 F.3d 559,
567 (5th Cir. 2018). Criminal defendants are entitled to a
“panel of impartial, indifferent jurors.”
Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031,
44 L.Ed.2d 589 (1975) (punctuation omitted). “[L]egal
trials are not like elections, to be won through the use of
the meeting-hall, the radio, and the newspaper.”
Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct.
1507 (1966). Accordingly, the Supreme Court has overturned
“conviction[s] obtained in . . . trial atmosphere[s] .
. . utterly corrupted by press coverage.”
Murphy, 421 U.S. at 798.
juror exposure to news accounts of a defendant's alleged
crimes is not, by itself, sufficient to deprive a defendant
of due process. Id. at 799. “Prominence does
not necessarily produce prejudice, and juror
impartiality . . . does not require
ignorance.” Skilling v. United
States, 561 U.S. 358, 381, 130 S.Ct. 2896, 177 L.Ed.2d
619 (2010). “[P]retrial publicity - even pervasive,
adverse publicity - does not inevitably lead to an unfair
trial.” Id. at 384. Rather, to demonstrate
that a change of venue is necessary to prevent a deprivation
of due process, a defendant must present evidence “of
inflammatory, 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).
point to media coverage of the FBI raids in 2016 that kicked
off the present string of prosecutions, media coverage of the
trial of Albert Diaz, media coverage of their indictment, and
media coverage of their alleged co-conspirators' guilty
pleas. Defendants presented dozens of news articles and
social media postings related to these matters as exhibits to
their motion. They also hired a third party, Dancel
Multimedia, to conduct a “Pretrial Publicity
Survey” that presented an electronic questionnaire to
259 participants through a service called “Survey
Monkey.” See Exhibit S to Motion to Transfer
Venue, United States v. Thomley, No. 2:18-CR-18-KS-
MTP (S.D.Miss. Oct. 5, 2018), ECF No. 124-19.
concluded that “Eastern District participants are very
knowledgeable about this case, ” and that a local
blogger “has had an undeniably negative effect on the
potential jury pool in the Eastern Division.”
Id. at 13. It also rejected the Southern Division as
a potential venue, claiming that knowledge of the Diaz case
had tainted the jury pool there. Id. However, Dancel
claimed that the “majority of participants” in
the Northern Division “were not informed about this
case or any related cases, ” and recommended that the
“jury pool expansion be requested to include those
situated within the Northern Division.” Id.
Court finds the Dancel report virtually useless in addressing
the present motion. First, the survey's sample size was
too small. Dancel only surveyed 259 participants drawn from
three of this Court's four divisions. According to the
2010 census, the total population of this District was 1,
853, 619 people. The total population of the three
divisions from which the survey sample was drawn was 1, 697,
592 people. Therefore, Dancel only surveyed 0.014% of the
population of this District, and 0.015% of the population of
the three divisions sampled. Additionally, Dancel only
surveyed 0.019% of the population of the Eastern Division,
0.021% of the population of the Southern Division, and 0.011%
of the population of the Northern Division. Even if the
entire sample had been drawn from Hattiesburg, it would still
only represent 0.553% of the city's total population of
46, 805. Of course, the Court draws its jury pool from
registered voters, rather than the total population, somewhat
mitigating these extreme figures. However, the Court is still
troubled by the small sample size.
Court is more troubled by Dancel's failure to explain
how they selected their sample. Did they obtain
responses online or via social media? Did respondents
self-select? Did Dancel collect other demographic data to
ensure that the sample was representative of the divisions as
a whole? Were the respondents eligible for jury service? What
were the respondents' news consumption habits, and did
they vary from the rest of the population? Without more
information, the data collected - from an already meager
sample size - is meaningless because the Court has no means
of determining whether Dancel utilized a representative
the Court agrees that Defendants' jury should not be
drawn solely from the Eastern Division. Hattiesburg is a
relatively small community. See Skilling, 561 U.S.
at 382 (court should consider the size and characteristics of
the community). Most of the events leading to this trial have
occurred in Forrest and Lamar Counties, and these matters
have been highly publicized in print, online, and television
media. Together, Forrest and Lamar Counties constitute 37.03%
of the total population of the Eastern Division.
widespread publicity is not necessarily prejudicial.
Id. at 384. The articles from legitimate media
sources attached to Defendants' motion are relatively
benign, providing bare reports of facts related to these
events. This type of factual reporting is not prejudicial
enough to warrant a change of venue. See Murphy, 421
U.S. at 802; Meeks v. Moore, 216 F.3d 951, 964 (11th
Cir. 2000); Devier v. Zant, 3 F.3d 1445, 1461- 62
(11th Cir. 1993); Mayola, 623 F.3d at 997.
Defendants also presented material from less conventional
news sources, such as social media and a local blog, that
have been undeniably inflammatory and slanted in favor of the
Government. The media coverage of these matters - from both
traditional and non-traditional sources - has been constant
over the past couple of years, and continues to the present.
Although the Court does not believe that it has been
sufficiently inflammatory or pervasive to render it
impossible to seat an impartial jury from the
Eastern Division alone, it would be quite difficult to do so.
there are numerous methods the Court can and will employ to
ensure that an impartial jury is empaneled.
Skilling, 561 U.S. at 386 (trial judge's
discretion over jury selection). First, the Court will expand
the jury pool to include the entire Southern District of
Mississippi. See 28 U.S.C. § 1861. The
population of the Northern Division alone (863, 633) exceeds
that of the Southern and Eastern Divisions combined (833,
959). Defendants have conceded that they could receive a fair
trial in the Northern Division, and they have not addressed
the Western Division. Therefore, expanding the jury pool to
include the entire District should ensure the Court's
ability to seat an impartial jury. Defendants conspicuously
failed to address this option in briefing, even after it was
raised by the Government.
the Court will employ the same means it uses in every case to
ensure that it seats an impartial jury. It will conduct
voir dire as it typically does. First, the Court
will examine the venire, both collectively and,
where necessary and appropriate, individually. If the parties
have any questions they want the Court to ask, they are free
to request it. Where necessary, the Court will examine
individuals at sidebar, to prevent tainting the entire
venire. Then the parties' counsel will be
permitted to examine the venire, both collectively
and, where necessary and appropriate, individually. The
undersigned judge ...