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United States v. Lopez

United States District Court, S.D. Texas, Houston Division

November 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH ALBERTO LOPEZ, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE.

         Pending 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 denied.

         I. Procedural Background

         The 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.

         On May 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.[1]

         The 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.[2]

         In June 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."[3]

         In July 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 pending:

• 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 management; and
• any impact the trial location will have on courthouse space and security.[4]

         On 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.

         On 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) .

         II. Analysis

         Citing 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.

         A. Applicable Law

         "In 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).

         Intradistrict transfers such as that sought by Bueno and Gonzalez are governed by Federal Rule of Criminal Procedure 18, which provides:

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.").

         B. Application of the Law to the Facts

         1. Convenience of the Defendants, Victims, and Witnesses

         (a) Convenience of the Defendants

         Bueno 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.[5] Bueno asserts that his family and friends who will be attending trial lack resources to travel to Houston, [6] 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 in Houston.[7]

         The 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."[8] 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 ...

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