U.S. v. Stanko

• Decision Date: 13 June 2008
• Docket Number: No. 07-1399.,07-1399.
• Citation: 528 F.3d 581
• Parties: UNITED STATES of America, Appellee, v. Rudolph George STANKO, Appellant. The Fully Informed Jury Association, Inc.; Jon Roland, Founder and President of the Constitution Society; and Advocates for Justice, Inc., Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

528 F.3d 581

UNITED STATES of America, Appellee, v. Rudolph George STANKO, Appellant The Fully Informed Jury Association, Inc.; Jon Roland, Founder and President of the Constitution Society; and Advocates for Justice, Inc., Amicus Curiae.

No. 07-1399.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2007.

Filed: June 13, 2008.

Roger Isaac Roots, argued, Livingston, MT, for appellant.

Frederick D. Franklin, argued, Joe W. Stecher, on the brief, Omaha, NE, for appellee.

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

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 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 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 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, 34 S.Ct. 456, 58 L.Ed. 772 (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 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,...