USA v. RAZO et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) 1:11-cr-000184-JAW
)
BARRY DIAZ, )
MARK RAZO, )
)
Defendants )
RECOMMENDED DECISION ON DEFENDANTS’
MOTIONS TO DISMISS FOR LACK OF VENUE AND
DEFENDANT DIAZ’S MOTION TO TRANSFER VENUE
Defendants Barry Diaz and Mark Razo request that the Court dismiss the Second
Superseding Indictment on the ground of improper venue in the District of Maine. (ECF Nos. 56
(Razo), 60 (Diaz).) Defendant Diaz alternatively requests a transfer of venue. (ECF No. 61.)
Defendants are charged in a Second Superseding Indictment with three counts of knowing and
intentional use of a communication facility (counts I-III) and one count of conspiracy to
distribute and possess with intent to distribute controlled substances (count IV). I recommend
that the Court deny the motions.
MOTIONS TO DISMISS FOR LACK OF VENUE
The United States Constitution—in Article III, Section 2, Clause 3 and in the Sixth
Amendment—entitles federal criminal defendants to a prosecution situated in a “locus delicti,”
i.e., in a state where the charged offense allegedly transpired. The Federal Rules of Criminal
Procedure refine this requirement to direct that criminal prosecutions take place not merely in a
state, but in “a district in which the offense was committed,” unless a statute or rule provides
otherwise. Fed. R. Crim. P. 18. “The result is a safety net, which ensures that a criminal
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defendant cannot be tried in a distant, remote, or unfriendly forum solely at the prosecutor’s
whim.” United States v. Salinas, 373 F.3d 161, 164 (1st Cir. 2004).
The determination of appropriate venue is a function of “the nature of the crime alleged
and the location of the act or acts constituting it.” United States v. Anderson, 328 U.S. 699, 703
(1946). “If the crime consists of distinct parts occurring in different places, venue is proper
where any part of the crime occurred.” Salinas, 373 F.3d at 164. This principle, too, has been
codified by Congress: “Except as otherwise expressly provided by enactment of Congress, any
offense against the United States begun in one district and completed in another, or committed in
more than one district, may be inquired of and prosecuted in any district in which such offense
was begun, continued, or completed.” 18 U.S.C. § 3237(a).
When venue is challenged, the Government bears the burden of proving proper venue by
a preponderance of the evidence as to each individual count. Salinas, 373 F.3d at 163. Because
venue is not an element of the charged crime, the familiar beyond-a-reasonable-doubt standard
does not apply to proof of venue. United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998).
Demonstrating proper venue as to one count does not automatically confer proper venue as to
additional counts; there is no concept of “supplemental venue” in the criminal law. Salinas, 373
F.3d at 164.
“Unlike civil actions, a criminal action, particularly one initiated by an indictment, is not
generally subject to dispositive motion practice.” United States v. Cameron, 662 F. Supp. 2d
177, 179 (D. Me. 2009). A grand jury’s return of a criminal indictment is a constitutional
function and “the power of the Court to dismiss an indictment is reserved for extremely limited
circumstances and exercised with caution.” Id. (citations omitted). To determine the propriety
of venue in the context of a pretrial motion to dismiss an indictment, the Court accepts as true the
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Government’s venue-specific allegations and any “unchallenged statement of proof of the
prosecutor.” United States v. Ferris, 807 F.2d 269, 271 (1st Cir. 1986). The Government
satisfies its burden of pleading venue if it alleges that criminal conduct occurred within the
venue.1 If the indictment is facially sufficient, the Court may not grant a pretrial motion to
dismiss the indictment based on a defendant’s introduction of extrinsic evidence. United States
v. Nicolo, 523 F. Supp. 2d 303, 320 (W.D.N.Y. 2007); United States v. Stein, 429 F. Supp. 2d
633, 643 (S.D.N.Y. 2006). Allegations that the offense occurred within the District will suffice;
there is no need for the Government to supply specific addresses or detailed factual recitations
related to venue. Nicolo, 523 F. Supp. 2d at 320. Ultimately, the Government’s burden to prove
proper venue is a trial burden, not a pretrial burden.2 United States v. Snipes, 611 F.3d 855, 866
(11th Cir. 2010); United States v. Rommy, 506 F.3d 108, 119 & n.5 (2d Cir. 2007).
For reasons that follow, the Government’s allegations are sufficient to establish that this
district is a proper venue for prosecution of both the “communication facility” charges and the
conspiracy charge.
A. Use of a “communication facility”
Pursuant to 21 U.S.C. § 843:
It shall be unlawful for any person knowingly or intentionally to use any
communication facility in committing or in causing or facilitating the commission
of any act or acts constituting a felony under any provision of this title3 or title III4
1 Neither the Constitution nor Rule 18 requires that venue be pled. “Although criminal defendants have a
right to be tried in a proper forum, they have no right to be charged with the proper venue. An indictment therefore
is sufficient despite the absence of any statement as to the place of the crime, although a bill of particulars typically
will be granted where an indictment contains no venue allegation.” United States v. Stein, 429 F. Supp. 2d 633, 643
(S.D.N.Y. 2006) (citing, inter alia, 1 Charles Alan Wright, Federal Practice and Procedure: Criminal 3d § 125, at
572-73 (1999)).
2 Defendants are expected to preserve the issue, of course, and must press the issue prior to the jury’s return
of a verdict. United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981).
3 Title II references the “Controlled Substances Act.”
4 Title III references the “Controlled Substances Import and Export Act.”
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[of the Comprehensive Drug Abuse Prevention and Control Act of 1970.] Each
separate use of a communication facility shall be a separate offense under this
subsection. For purposes of this subsection, the term “communication facility”
means any and all public and private instrumentalities used or useful in the
transmission of writing, signs, signals, pictures, or sounds of all kinds and
includes mail, telephone, wire, radio, and all other means of communication.
The Government charges Defendant Razo with three counts and Defendant Diaz with two counts
of unlawful use of a communication facility (a telephone) to commit the conspiracy charged in
count IV. The Second Superseding Indictment (ECF No. 32) identifies the dates of the
communications as July 26, 2011 (two calls) and May 7, 2011 (one call). According to the
Indictment, these calls were placed “in the District of Maine and elsewhere.” (Id. at 1.)
The representations found in the motions and related papers reflect that Defendant Razo
was incarcerated in California on the dates in question and the Government’s contention is that
Defendant Diaz communicated with Razo by means of a cell phone. According to the
Government, the evidence to be presented at trial will establish that Diaz was present in the
District of Maine when these communications occurred. (See Gov’t’s Consol. Response to Def.
Diaz’s Mot. to Dismiss and Mot. to Transfer at 6, ECF No. 65; Gov’t’s Surreply to Def. Razo’s
Mot. to Dismiss at 1-2, ECF No. 70.)
“To obtain a conviction under 21 U.S.C. § 843(b), the government must prove that the
defendant: (1) knowingly or intentionally (2) used a telephone or other communications facility
(3) to commit, cause or facilitate the 0commission of a drug felony” and “venue is appropriate in
both the district where the call was made and in the district where it was received.” United
States v. Goodwin, 433 Fed. Appx. 636, 642 (10th Cir. 2011). See also Andrews v. United
States, 817 F.2d 1277, 1279 (7th Cir. 1987). The Government’s venue allegation suffices with
respect to the communication facility charges because it alleges commission in this District and
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the Government’s representation concerning Diaz’s physical presence in Maine during the calls
is more than adequate to overcome the motions to dismiss on venue grounds.
B. Conspiracy
The fourth count of the Second Superseding Indictment charges Defendants with
conspiring with one another and with “others known and unknown” to distribute and to possess
with the intention to distribute controlled substances, including mixtures or substances
containing heroin, marijuana, cocaine, and methamphetamine, its salts, isomers, and salts of its
isomers. As to drug quantities, the most serious allegations appear to be related to
methamphetamine.
Defendants relate that the facts underlying the methamphetamine charges include a
seizure of methamphetamine in Iowa, not in Maine, and that the methamphetamine was
transported to Iowa from California, possibly by one Bianca Ortiz-Rodriguez or possibly by one
Darlene Duran. Defendants also explain that there is another indictment charging Defendant
Diaz and others not named here in separate conspiracies to distribute the heroin, cocaine, and
marijuana, but not the methamphetamine. (Def. Razo Mot. to Dismiss at 1-3, 6; Def. Diaz Mot.
to Dismiss at 1-2; see also United States v. Diaz, 1:11-CR-00159-JAW-1, 2, 3, 4: ECF No. 130
(Second Superseding Indictment) (including as defendants Darlene Duran, Amber Davis, and
Jesse Morrison, but charging conspiracies to distribute cocaine and Oxycodone).) Defendants
expect that the Government will attempt to prove that alleged heroin, cocaine, and marijuana
conspiracies transpired within the District of Maine and they maintain that the Government has
joined the alleged methamphetamine conspiracy with the other drug distribution conspiracies in
order to give a false impression that venue is also appropriate in this District for the
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methamphetamine charge. (Def. Razo Mot. to Dismiss at 6-7; Def. Diaz Mot. to Dismiss at 4-
5.)
Venue in a conspiracy case exists whenever an overt act in furtherance of the alleged
conspiracy occurred in the trial district. United States v. Uribe, 890 F.2d 554, 558 (1st Cir.
1989) (citing 18 U.S.C. § 3237(a)). For purposes of a conspiracy, venue is proper “in any district
in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). A defendant
need not have had a physical presence in the district. United States v. Cordero, 668 F.2d 32, 43
(1st Cir. 1981).
The presence of Diaz in Maine in connection with his use of a communication facility to
develop a drug distribution conspiracy with Razo is a sufficient act to support venue in Maine for
a conspiracy prosecution of both Defendants. See, e.g., Cordero, 668 F.2d at 43-44 (basing
venue on agent’s presence in the district during conspiracy-related telephone calls with
defendant, who did not enter district); United States v. Gonzalez, 683 F.3d 1221, 1224 (9th Cir.
2012) (basing venue on an informant’s presence in the district during conspiracy-related
telephone calls with the defendant); United States v. Rommy, 506 F.3d 108, 120 (2d Cir. 2007)
(“In cases involving telephone calls between co-conspirators in different districts, . . . venue lies
in either district as long as the calls further the conspiracy.”) (internal quotation marks omitted).5
C. Summation
The Government has adequately alleged venue-specific acts that support prosecution of
Defendants in this District. The Government’s burden is to prove these allegations at trial, not in
the context of a motion to dismiss. Accordingly, I recommend that the Court deny Defendant
5 The question of whether the Government can prove that Razo was party to a conspiracy to distribute all of
the different controlled substances described in the Second Superseding Indictment is beside the point. Even though
he was located in California, the cases are clear that he may be tried in this District based on telephone
communications originating from or received in this District if those communications developed or furthered a drug
distribution conspiracy.
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Diaz’s Motion to Dismiss for Improper Venue (ECF No. 60) and Defendant Razo’s Motion to
Dismiss for Improper Venue (ECF No. 56).
MOTION TO TRANSFER VENUE
In addition to seeking dismissal of the Second Superseding Indictment, Diaz requests a
change of venue. Diaz states that most of the time between April and August 2011 he was not in
Maine but traveling between Connecticut, Pennsylvania, and New York and that his co-
defendant, Razo, was located in California. (Def. Diaz Mot. to Transfer Venue for Trial at 2,
ECF No. 61.) According to Diaz, trial of the conspiracy charge “will result in substantial
inconvenience to Defendant because the charge’s most significant piece of conduct, the
methamphetamine transaction, did not occur in Maine.” (Id. at 3.)
A. The Platt factors
When “the convenience of the parties, witnesses, victims, and the interest of justice so
dictates,” United States v. Quiles-Olivo, 684 F.3d 177, 181 (1st Cir. 2012), “the court may
transfer the proceedings, or one or more counts, against [the moving] defendant to another
district,” Fed. R. Crim. P. 21(b). “[V]enue change under Rule 21(b) may be warranted
depending on a number of factors, the significance of which inevitably will vary depending on
the facts of a given case.” Quiles-Olivo, 684 F.3d at 184. The relevant factors are drawn from
the Supreme Court opinion of Platt v. 3M, 376 U.S. 240 (1964), and include location of the
defendant, location of witnesses, location of events in issue, location of documents and records,
potential for disruption of a defendant’s business, expense to the parties, location of counsel,
docket conditions in the alternative districts, and any other special factors that may apply.
Quiles-Olivo, 684 F.3d at 184-85 (citing Platt, 376 U.S. at 243-44). “No one of these factors is
dispositive, and ‘[i]t remains for the court to try to strike a balance and determine which factors
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are of greatest importance.’” United States v. Farkas, 474 Fed. Appx. 349, 353 (4th Cir. 2012)
(quoting United States v. Stephenson, 895 F.2d 867, 875 (2d Cir. 1990)).
Diaz argues that the most convenient venue is “in California,” because he and Razo will
call witnesses located in California who will testify that Razo “could not and did not participate
in a conspiracy to distribute drugs” while incarcerated in California. (Mot. to Transfer at 3-4.)
Otherwise, Diaz argues that Maine is not a particularly advantageous venue because the
conspiracy charge “has little connection to Maine” and because the methamphetamine
transaction, in particular, “occurred completely outside of Maine” and “there is no evidence that
anyone located in Maine [was] involved in the methamphetamine conduct.” (Id. at 4.) On this
score, Diaz returns to the position that the alleged methamphetamine conduct “is unrelated and
dissimilar to” the alleged conduct involving other controlled substances based on the quantities
involved, the persons participating, and differences related to “the geographical location of the
conduct and methodology.” (Id.) Finally, Diaz reports that his sister is a resident of California
and that she has recently experienced a heart attack. Diaz understandably wishes to be able to
visit with her. (Id. at 5.)
Diaz’s arguments for transfer are unpersuasive. As it now stands, Defendants are both in
custody in Maine. Diaz, the movant, offers no significant reason why a California trial would be
of greater convenience to him than a Maine trial. Most of his alleged criminal activity appears to
have taken place in the Northeast. As for the location of witnesses, Razo’s ability to participate
in a drug distribution conspiracy while incarcerated in California does present an issue for trial,
but Diaz does not articulate what the testimony would entail or why any particular California
witness would be unable to testify in Maine. Failure to supply these specifics is a shortcoming of
his motion. United States v. Noland, 495 F.2d 529, 534 (5th Cir. 1974); United States v. Kelly,
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467 F.2d 262, 264 (7th Cir. 1972), cert. denied, 411 U.S. 933 (1973). Generally, a defendant is
required to provide specific examples of the anticipated witnesses’ testimony and of their
inability to testify because of the location of the trial. United States v. Spy Factory, Inc., 951 F.
Supp. 450, 456 (S.D.N.Y. 1997); United States v. Haley, 504 F. Supp. 1124, 1126 (E.D. Pa.
1981). Because the location of the witnesses is the primary focus of Diaz’s motion for transfer
and Diaz has failed to supply the particulars necessary for the Court to truly weigh the matter, the
Court would act well within the bounds of its discretion if it denied the motion.
In addition to identifying the shortcomings in Diaz’s presentation on witness location, the
Government has supplied sound reasons why venue is convenient in this district. In particular,
the location of the events underlying the prosecution is weighted as much in favor of Maine as it
is in favor of California. The Government observes that Maine events include “phone calls and
text messages made and received in Maine in furtherance of the conspiracy, collection of drug
proceeds in Maine owed to co-conspirators, and financial transactions made in Maine in
furtherance of the conspiracy.” (Gov’t’s Consol. Response at 9, ECF No. 65.) The Government
also represents that Defendants’ communications included discussions of drug trafficking in
Maine. (Id.) Concerning the location of documents and records, the Government states that
most of these are already present in Maine. (Id. at 9-10.) Concerning expense to the parties, the
Government again observes that Diaz has not offered the Court anything more than a general
assertion of additional expense. (Id. at 10.) If the Court assumes that the additional expense
arises from the need to transport witnesses to Maine, there simply are no particulars in the
movant’s presentation for the Court to weigh. In comparison to this unknown quantity, it is not
difficult to imagine the substantial expense the government would incur to transport its
investigators, evidence, and witnesses to California. If there were concrete evidence favoring a
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transfer, then the Government’s expense might not be a weighty factor, but here there simply is
no appreciable showing that a trial in California would be manifestly more convenient to Diaz
than a trial in Maine.
None of the remaining Platt factors weighs strongly in favor of transfer. Counsel are all
present in Maine, docket conditions in Maine presumably are more conducive to a prompt trial
than in a district as busy as the Eastern District or the Central District of California,6 and there
are no representations that Defendants have any legitimate business interests at stake in
California. Finally, with respect to the special circumstance of a family member’s poor heath,
Diaz’s presentation does not suggest that this factor reasonably undermines his ability to mount a
defense at trial or to personally participate in his defense. See United States v. Bowdoin, 770 F.
Supp. 2d 133, 142 (D. D.C. 2011) (“When the relevant medical condition does not relate to a
defendant but to a family member, a transfer is much less warranted and the burden of
demonstrating relevance to the trial is higher.”)
B. Summation
Based on a review of the Platt factors, Defendant Diaz’s presentation falls short in terms
of demonstrating a legitimate basis for transfer of venue on the ground of convenience.
Consequently, I recommend that the Court deny Defendant Diaz’s Motion to Transfer Venue
(ECF No. 61).
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court DENY Defendants’
venue-related motions: Defendant Razo’s Motion to Dismiss for Improper Venue (ECF No. 56);
6 The Government reports that Razo was incarcerated within the Eastern District of California and that
“some drug shipments originated in the Central District of California.” (Gov’t’s Consol. Response at 9 n.3.)
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Defendant Diaz’s Motion to Dismiss for Improper Venue (ECF No. 60); and Defendant Diaz’s
Motion to Transfer Venue (ECF No. 61).
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought,
together with a supporting memorandum, and request for oral argument before the
district judge, if any is sought, within fourteen (14) days of being served with a
copy thereof. A responsive memorandum and any request for oral argument
before the district judge shall be filed within fourteen (14) days after the filing of
the objection.
Failure to file a timely objection shall constitute a waiver of the right to de
novo review by the district court and to appeal the district court's order.
September 27, 2012 /s/ Margaret J. Kravchuk
U.S. Magistrate Judge
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