USA v. Garcia-Moreno et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff,
v.
Robert Reynoso,
Defendant.
Case No. 3:16-cr-11-3
ORDER DENYING MOTION TO
CHANGE VENUE
Before the court is Defendant Robert Reynoso’s pro se Motion to Change Venue. Reynoso1
seeks to change the venue for his trial to the Ninth Circuit, preferably Los Angeles, California, or
Phoenix, Arizona. Reynoso asserts four bases for a change of venue: (1) North Dakota is prejudiced2
against “Mexicans;” (2) Los Angeles and Phoenix each have a nexus to the alleged conspiracy and
have a much larger less biased Hispanic population; (3) he and co-defendant Mary Rodriguez-
Noriega are not from North Dakota and are prejudiced by being forced to try their case in North
Dakota; and (4) change of venue is mandated by Federal Rule of Criminal Procedure 18.3
Pursuant to constitutional design, a defendant is tried in the state where the crime was
committed. “[A]ny offense against the United States begun in one district and completed in another,4
or committed in more than one district, may be inquired of and prosecuted in any district in which
Doc. #199.1
Id.2
Id.3
Skilling v. United States, 561 U.S. 358, 377–78 (2010) (quoting U.S. Const. art. III, § 2,4
cl. 3).
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such offense was begun, continued, or completed.” For conspiracy, venue is proper in any5
jurisdiction where any conspirator committed an overt act in furtherance of the conspiracy.6
Even when a case is properly triable in one jurisdiction, it may be an inappropriate venue
because the “Sixth Amendment secures to criminal defendants the right to a trial by an impartial
jury.” A transfer of venue to another jurisdiction with venue may be appropriate under the7
circumstances of the case. Federal Rule of Criminal Procedure 21 indicates that a “court must
transfer the proceeding . . . to another district if the court is satisfied that so great a prejudice against
the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial
trial there.” The court will transfer a defendant’s proceedings to a different district “if extraordinary8
local prejudice will prevent a fair trial.” Federal Rule of Criminal Procedure 18 states that “[t]he9
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.”10
Venue is proper in this court for the count of conspiracy to possess with intent to distribute
and distribute a controlled substance and for the count of money laundering conspiracy. The
indictment alleges that drugs were transported to North Dakota, that drugs were sold in North
18 U.S.C. § 3237(a).5
United States v. Overshon, 494 F.2d 894, 900 (8th Cir. 1974) (citing Hyde v. United6
States, 225 U.S. 347 (1912)).
Skilling, 561 U.S. at 377.7
Fed. R. Crim. P. 21(a).8
Skilling, 561 U.S. at 378.9
Fed. R. Crim. P. 18.10
2
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Dakota, that money was accumulated in North Dakota, and that co-conspirators aggregated money
and deposited it in North Dakota banks to money launder. This conspiracy has a North Dakota nexus
and venue is proper in North Dakota.
Reynoso’s motion asserts that he will not receive a fair trial in North Dakota because he will
suffer prejudice here. Aside from claiming that a North Dakota jury would be prejudiced against
him, Reynoso has made no effort to establish the existence of any prejudice. He has conducted no
survey of literature or media demonstrating that the case presents one of unusual interest or the
existence of bias or prejudice against him. He has pointed to no indication that North Dakota juries
have a history of bias against Hispanics, nor that Hispanics have been discriminated against in the
local community. In short, he simply asserts an inability to obtain an impartial jury without any basis
for making the claim. By definition such a claim is conclusory. In addition, transfer of venue for
the purpose of obtaining a more sympathetic jury pool is an inappropriate consideration, and a11
defendant is not entitled to a jury of a particular racial composition. Reynoso’s own personal12
beliefs on how the residents of North Dakota view “Mexicans” are completely unsupported and fail
to demonstrate that extraordinary local prejudice exists against him. Any concerns about racial
prejudice can be addressed in voir dire, and the trial will take place in the Eastern Division of the
District of North Dakota, which has the largest Hispanic population in the state.
United States v. Jordan, 223 F.3d 676, 686 (7 Cir. 2000) (alleged bombers of a11 th
military recruiting station in Chicago for express purpose of advancing claim for Puerto Rican
independence not entitled to transfer of venue to Puerto Rico).
Mallett v. Bowersox, 160 F.3d 456, 461 (8th Cir. 1998) (citing Taylor v. Louisiana, 41912
U.S. 522, 538 (1975)).
3
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Lastly, many witnesses are from North Dakota, and their convenience outweighs the
amorphous claims of the defendant. If Reynoso needs to call a witness who resides in California or
Arizona, the United States District Courts have nationwide service of process in criminal matters,
which allows the court to compel witnesses to attend court in North Dakota and to reimburse them
for their travel expenses in cases where the defendant establishes both that the witness is necessary
and the defendant lacks the ability to pay the witness fees.13
Reynoso’s argument is insufficient as a matter of law to demonstrate that a transfer of venue
is necessary for him to receive a fair trial. His Motion to Change Venue is DENIED.
IT IS SO ORDERED.
Dated this 9th day of March, 2018.
Sitting by designation:
/s/ Ralph R. Erickson
Ralph R. Erickson, Circuit Judge
Eighth Circuit Court of Appeals
Fed. R. Crim. P. 17(b).13
4
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