United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE SENIOR UNITED STATES DISTRICT JUDGE.
before the court are Defendant Mike Bueno's Motion for
Trial in the McAllen Division ("Bueno's Motion to
Transfer") (Docket Entry No. 1076), and defendant Jose
Rolando Gonzalez's First Amended Motion for Transfer of
Case to the McAllen Division Pursuant to Local Criminal Rule
18 ("Gonzalez's First Amended Motion to
Transfer") (Docket Entry No. 1082). For the reasons
stated below, Bueno's Motion to Transfer and
Gonzalez's First Amended Motion to Transfer will be
Third Superseding Indictment (Docket Entry No. 837) was
entered in this case on May 10, 2018. It charges thirty-two
defendants with Conspiracy to Participate in Racketeering
Activity and various related offenses arising out of illegal
activities allegedly committed by members of the Tri-City
Bombers ("TCB") criminal organization in South
Texas. Over a dozen defendants remain under indictment. Other
defendants have entered into Plea Agreements or have had
charges dismissed. Four defendants have already been
sentenced; many others await sentencing.
15, 2019, the court entered an Order (Docket Entry No. 1064)
citing recently adopted Local Criminal Rule 18 and stating:
[I]t appears that the charges against many or all of the
defendants could be transferred to the McAllen Division of
the court. Any parties seeking relief under Rule 18 must file
a motion to transfer by June 14, 2019. If the motion is
opposed, responses must be filed by July 3, 2019, and replies
by July 12, 2019.
court's May 15, 2019, Order also advised the parties that
[i]f no defendant, or fewer than all defendants, file a
motion to transfer, the court may on its own motion, after an
opportunity for the parties to be heard, transfer this action
in whole or in part to the McAllen Division.
of 2019 defendants Bueno (#5) and Gonzalez (#7) filed the
pending motions to transfer this case to the McAllen Division
Pursuant to Local Criminal Rule 18 for the convenience of the
defendants and witnesses, and for the prompt administration
of justice. In addition Bueno requests a hearing, "[i]f
the Court deems the Declaration attached to this motion and
the records in this case insufficient to demonstrate [that
he] is entitled to relief."
of 2019 the court entered an Order (Docket Entry No. 1096)
directing the Government to include in its response to the
court's proposal to transfer, a chart specifying the
following information with regard to each defendant who has
not pleaded guilty and against whom charges are still
• the location of the defendant's home and the
distance of the home from Houston;
• the location(s) where the events underlying the
charges asserted against the defendant occurred;
• the names and location of each victim's home and
the distance of the home from Houston;
• the names and locations of each expected witness's
home and the distance of the home from Houston;
• the location of documents and records expected to be
used as evidence;
• the name and address of defendant's counsel;
• any impact the trial location will have on the timely
and fair disposition of the case;
• any impact the trial location will have on docket
• any impact the trial location will have on courthouse
space and security.
August 16, 2019, the Government filed Government's
Response to the Proposed Intra-District Transfer of the Case
to the McAllen Division ("Government's
Response") (Docket Entry No. 1115), opposing transfer.
August 27, 2019, defendant Juan Albert Mendez (#31), filed
Defendant's Opposition to Intra-District Transfer (Docket
Entry-No. 1122) opposing transfer, on August 28, 2019,
defendant Salomon Robles (#28) filed Salomon Robles'
Response to Government's Response to Intra-District
Transfer (Docket Entry No. 1123) opposing transfer, and on
August 29, 2019, five defendants, Ramon de la Cerda (#26),
Luis Alberto Tello (#4), Rolando Cruz (#12), Roberto Cortez
(#18), and Roberto Reyes (#25), jointly filed their
Opposition to Motion for Transfer to the McAllen Division
Pursuant to Local Criminal Rule 18 ("Defendant's
Opposition to Transfer") (Docket Entry No. 1125) .
inter alia Dupoint v. United States, 388 F.2d 39, 44
(5th Cir. 1967), United States v. Lioscomb, 299 F.3d
303, 339 (5th Cir. 2002), and United States v.
Garza, 593 F.3d 385, 390 (5th Cir. 2010), Bueno and
Gonzalez argue that this case should be transferred to the
McAllen Division because the defendants and the witnesses are
from there and will be inconvenienced by a trial in Houston,
the charges asserted against them lack ties to Houston, and
the prompt administration of justice favors transfer. The
Government and seven other defendants argue that the motions
to transfer should be denied because venue is proper in
Houston, and because the factors the court must consider
weigh against transfer.
criminal actions, the constitutional unit of venue is the
district, not the division." United States v.
Alvarado, 647 F.2d 537, 539 (5th Cir. Unit A 1981).
See also Lipscomb, 299 F.3d at 337 ("There is
no 'divisional' venue in criminal cases. . .").
Defendants seeking intra-district transfer are required to
make "a strong showing of prejudice."
Lipscomb, 299 F.3d at 339 & n. 171 (citing
United States v. Duncan, 919 F.2d 981, 985 (5th Cir.
1990)). Whether to transfer a criminal trial to another
division within the district is within the sound discretion
of the court and must be determined on the facts of each
particular case. Lipscomb, 299 F.2d 3d at 338
("We review all questions concerning venue under the
abuse of discretion standard."). See also
Garza, 593 F.3d at 388 (same).
transfers such as that sought by Bueno and Gonzalez are
governed by Federal Rule of Criminal Procedure 18, which
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.
Convenience is determined by: (1) the distance from the
defendant's home; (2) the location of the defendant's
witnesses; and (3) the ability of the defendant's family
and friends to attend the trial. Garza, 593 F.3d at
390. The Fifth Circuit has explained that this factor also
requires courts "to consider the convenience of the
venue to any victim," id. at 389-90 n. 3, and
has "acknowledged that the burden on a defendant
increases when a transfer forces the defendant's counsel
to try a case far from his or her practice."
Id. at 390 (citing Lioscomb, 299 F.3d at
340). "Rule 18's second textual factor - due regard
to . . . the prompt administration of justice - is in part a
literal command that trials comply with the Speedy Trial
Act." Id. (internal quotations omitted). The
Fifth Circuit has explained that this factor requires courts
to "weigh the impact the trial location will have on the
timely disposition of the instant case." Id. In
addition to considerations of convenience and prompt
administration of justice, the district court may also
consider factors such as speedy trial, docket management,
logistics, including courtroom availability, jail space, and
adequacy of security, and pretrial publicity. See United
States v. Alvarez, 561 Fed.Appx. 375, 381 (5th Cir.
2014) (per curiam) (citing Lipscomb, 299 F.3d at
340-44. Application of Rule 18 requires the court to balance
the relevant factors. See Alvarado, 647 F.2d at 540.
See also In re Chesson, 897 F.2d 156, 159 (5th Cir.
1990) (per curiam) ("In deciding the place of trial
within the district the court must balance the statutory
factors of the convenience of the defendant and witnesses
with the prompt administration of justice.").
Application of the Law to the Facts
Convenience of the Defendants, Victims, and
Convenience of the Defendants
and Gonzalez argue that a trial in Houston would be
inconvenient for them because they lived and worked in the
McAllen Division before their arrests, and because attending
trial in Houston, which is approximately 350 miles from
McAllen, would be inconvenient and expensive for their
families and friends. Bueno asserts that his family and friends
who will be attending trial lack resources to travel to
Houston,  and Gonzalez asserts that most of his
family and friends and other supporters reside in the McAllen
area, and would have to incur high expenses to attend trial
Government argues in response that it will present evidence
that "Gonzalez has friends and supporters who reside in
the Houston area and that during the time of the charge[d]
racketeering conspiracy Gonzalez leased an apartment in
Houston where he and other Enterprise members met to discuss
Enterprise business." The Government also argues that
Gonzalez's claim that his family and friends do not have
the resources to attend the trial in Houston is without merit
because since his incarceration on March 15, 2017[, ] his
girlfriend, mother, father, son, sister and cousin have
visited him regularly at the Joe Corley Correctional Facility
in Conroe, Texas. Gonzalez's parents reside in Alton,
Texas, his girlfriend, son and a sister reside in Mission,
Texas, another sister and brother-in-law ...