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Case 3:07-cr-00289-M Document 1391 Filed 06/16/10 Page 1 of 6 PageID 9534

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA §


§
v. § No. 3:07-CR-289-M (12)
§
RONALD W. SLOVACEK §

UNITED STATES’ RESPONSE TO DEFENDANT’S


MOTION TO TRANSFER WITHIN JUDICIAL DISTRICT

On June 9, 2010, defendant Ronald Slovacek filed his motion to transfer this case

intradistrict to the Wichita Falls Division pursuant to Federal Rule of Criminal Procedure

18, arguing that a “huge amount of negative publicity” regarding the prosecution of he

and his co-defendants has “saturated” the local jury pool and “created a substantial

potential for prejudice.” (Def.’s Mot. at 1.) However, Slovacek has failed to carry his

burden of demonstrating that the publicity surrounding this case has been so

inflammatory and prejudicial that he could not obtain a fair and impartial trial in the

Dallas Division. Slovacek’s motion to transfer this case to the Wichita Falls Division

should be denied.

Rule 18 provides that:

Unless a statute or these rules permit otherwise, the


government must prosecute an offense in a district where the
offense was committed. The court must set the place of 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. PRO. 18 (2010). Besides the “convenience” and “prompt administration of

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justice” factors set forth in the Rule, the Fifth Circuit has recognized that the potential

prejudice to the defendant from pretrial publicity may be considered by the court when

weighing the propriety of an intradistrict transfer. See United States v. Duncan, 919 F.2d

981, 985 (5th Cir. 1990). However, such a transfer “is not required absent a strong

showing of prejudice” to the defendant if venue is not changed. Id. (citing United States

v. Dickie, 775 F.2d 607, 609 (5th Cir. 1985) and United States v. Malmay, 671 F.2d 869,

876 (5th Cir. 1982)). To make “a strong showing of prejudice,” the defendant must

demonstrate that pretrial publicity has been extensive, inflammatory, and has resulted in

pervasive community prejudice. Id.

Notoriety of a case alone does not justify an intradistrict transfer. This Court need

not ensure that the jury panel be comprised of individuals who have no preconceived

opinions about the defendant, but individuals who have such opinions must be able to

“‘lay aside his impression or opinion and render a verdict based upon the evidence

presented in court.’” United States v. Lipscomb, 299 F.3d 303, 344 (5th Cir. 2002)

(quoting Murphy v. Florida, 421 U.S. 794, 799-800 (1975)). Therefore, even if

inflammatory pretrial publicity has saturated the community to the extent that a

presumption of prejudice to the defendant has arisen, this presumption can be rebutted by

the government by demonstrating through voir dire that an impartial jury was actually

impaneled in the defendant’s case. United States v. Parker, 877 F.2d 327, 331 (5th Cir.

1989).

In this case, Slovacek has not made the “strong showing of prejudice” necessary to

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transfer this matter to the Wichita Falls Division. While this matter has received

extensive media attention in the Dallas area since 2005, Slovacek has not demonstrated

that this publicity has been of an inflammatory nature, leading to pervasive community

prejudice against him. The vast majority of the media accounts – including the nearly

700 pages of newspaper articles and blog excerpts submitted by Slovacek as support for

his Motion (See Exs. 2 and 3 to Def.’s Mot.) – simply refer to information from the

indictment or court proceedings in the two recent trials of co-defendants. Although

Slovacek claims that “negative prejudicial media reports” of this case “are truly

extraordinary,” and singles out “blogs” as being “repleate with such prejudicial opinions

about the City Hall corruption case,” (Def.’s Mot. at 8-9) he does not point to any specific

articles or blog entries written about he or any of his co-defendants that were

inflammatory and so saturated the local community that it would virtually impossible to

obtain an impartial jury. Indeed, even the report by the Margulies Communications

Group submitted by Slovacek (Ex. 1 to Def.’s Mot.) focuses solely on the extensive

nature of the media coverage as inherently prejudicial to Slovacek, rather than offering

any specific, tangible examples of inflammatory publicity. As the Fifth Circuit has noted,

“[t]he presumption [of juror prejudice] is generally not applied to cases in which the news

accounts complained of are ‘straight news stories rather than invidious articles which

would tend to arouse ill will and vindictiveness.’” United States v. O’Keefe, 722 F.2d

1175, 1180 (5th Cir. 1983) (quoting Calley v. Callaway, 519 F.2d 184, 206 (5th Cir.

1975)). Even considering just the media accounts submitted by Slovacek, it is clear that

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the media coverage of this matter has been overwhelmingly devoted to straight news

reporting, rather than inflammatory or “invidious” articles stirring up ill will against

Slovacek or any of his co-defendants.

Moreover, the transfer of this case to the Wichita Falls Division is extremely

unlikely to produce a jury venire completely ignorant of the facts of this case, as Slovacek

apparently seeks. For example, the newspaper articles and blog entries submitted as

evidence by Slovacek were available on the Dallas Morning News’ internet site, and any

resident of the Wichita Falls Division that did not read a physical copy of the newspaper

certainly could have accessed these articles on the paper’s website. While interest in this

case may be greatest in Dallas, there undoubtedly is interest in the proceedings in the

Wichita Falls Division, which sits only 150 miles from Dallas. See, e.g., United States v.

Patel, 2008 WL 5428044, at *7 (W.D. La. Dec. 24, 2008) (denying intradistrict transfer

and noting that “ubiquity of the internet” made it “beyond comprehension” to expect a

jury venire in another division of the district to be ignorant of the case).

Finally, the remaining two factors set forth in Rule 18 – “convenience” and

“prompt administration of justice” – also do not support transfer. As Slovacek concedes,

he has waived his Speedy Trial Act rights (Def.’s Mot. at 4), so the “prompt

administration of justice” is irrelevant here. The “convenience” factor, on the other hand,

weighs in favor of keeping the case in the Dallas District, as the vast majority of the

witnesses live in the Dallas area, and a transfer to the Wichita Falls Division would lead

to longer travel time and possible overnight hotel stays for some witnesses.

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In sum, because Slovacek has failed to carry his burden of demonstrating that

inflammatory, prejudicial publicity has made it virtually impossible for him to obtain an

impartial jury, the United States requests that the Court deny Slovacek’s motion for

intradistrict transfer to the Wichita Falls Division. Alternatively, the government requests

that the Court defer ruling on this motion until the conclusion of voir dire, so that the

government may have an opportunity to demonstrate that an impartial jury was actually

impaneled in the defendant’s case.

Respectfully submitted,

JAMES T. JACKS
UNITED STATES ATTORNEY

____s/ Stephen P. Fahey____


CHAD E. MEACHAM
Assistant United States Attorney
Texas State Bar No. 00784584
STEPHEN P. FAHEY
Assistant United States Attorney
Illinois State Bar No. 6274893
1100 Commerce Street, Third Floor
Dallas, Texas 75242
Telephone: 214.659.8600

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CERTIFICATE OF SERVICE

I hereby certify that on June 16, 2010, I electronically filed the foregoing

document with the clerk of court for the United States District Court for the Northern

District of Texas, using the electronic case filing system of the court. The electronic case

filing system sent a “Notice of Electronic Filing” to the following attorney of record who

has consented in writing to accept this Notice as service of this document by electronic

means: Michael P. Gibson, Counsel for defendant Ronald Slovacek.

_____s/ Stephen P. Fahey________


STEPHEN P. FAHEY
ASSISTANT UNITED STATES ATTORNEY

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