United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN, District Judge.
A. Introduction and Procedural Overview
In February 2014, a grand jury in the Southern District of Illinois indicted Leandro Velazquez (Defendant) on a charge of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. 1349, in connection with an alleged scheme involving telemarketing sales of vacation timeshare interests. The scheme allegedly spanned a time period of early December 2007 through mid-July 2011 and occurred, inter alia, in the Illinois counties of St. Clair, Madison, Clark, Franklin, Jasper, Massac, and Saline (all of which lie within the Southern District of Illinois). The indictment further alleged that Defendant and others conspiring with him made calls in which they falsely represented to timeshare owners that the callers had found buyers for the owners' timeshare interests, that the callers solicited fees from the owners (purportedly to cover closing costs and related expenses), that the promised sales never occurred, and that no owner's timeshare was ever successfully sold. Instead, Defendant and his co-conspirators "simply pocketed the fees, with a portion going to individual telemarketers and managers in the conspiracy" (Doc. 6, pp. 1-2).
Defendant initially appeared and was arraigned in this Court on March 25, 2014. He waived a detention hearing, was ordered detained, and was found unable to afford his own attorney. Counsel (attorney Robert Elovitz) was appointed for Defendant, a not guilty plea was entered, and trial was set for May 19, 2014. Defendant obtained continuances of the trial setting. He also moved for the appointment of new counsel. The latter request was initially denied, but in July 2014, attorney Elovitz was allowed to withdraw and attorney Christopher Threlkeld was appointed to represent Defendant.
On September 17, 2014, a superseding indictment was returned against Defendant (Doc. 48). It contained the conspiracy to commit mail and wire fraud charge in violation of 18 U.S.C. 1349 (Count 1) and added a charge of conspiracy to commit money laundering offenses in violation of 18 U.S.C. 1956 (Count 2). Defendant was arraigned on the superseding indictment on October 3, 2014 and entered a not guilty plea. Following a status conference/hearing held the same day, jury trial was continued to January 12, 2015, with a final pretrial conference set January 7, 2015.
Defendant twice indicated his desire to enter a guilty plea, but both plea hearings (October 16, 2014 and October 31, 2014) were canceled when Defendant changed his mind. Around the same time, Defendant again sought the appointment of new counsel. The undersigned held a hearing on November 13, 2014, at which Defendant withdrew his request for appointment of a new lawyer. Trial remains set January 12, 2015.
Now before the Court is a motion and supporting brief filed by Defendant (through counsel) seeking to change the venue of this case, specifically to transfer the case from the Southern District of Illinois to the Middle District of Florida (Docs. 69-70). The motion ripened with the filing of a November 25, 2014 response by the United States of America (the Government). As stated below, the Court denies the motion.
In his motion, Defendant relies on Federal Rule of Criminal Procedure 18 and Federal Rule of Criminal Procedure 21(b). His supporting memorandum also references "Article 3, section 2" of the United States Constitution (Doc. 70, p. 2 & p. 6). The crux of Defendant's argument is that the conduct alleged in Count 2 of the superseding indictment "took place solely within the State of Florida, " Defendant's alleged co-conspirators are located in the State of Florida, and "Defendant has a right to be tried on that Count in the State of Florida" (Doc. 70, p. 6). Defense counsel argues that the factors relevant to a venue transfer analysis weigh in favor of transfer. The Court is not persuaded.
Federal Rule of Criminal Procedure 18 designates the place for prosecution and trial:
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.
Rule 18 echoes a concept contained two places in the United States Constitution. Article III, Section 2, Paragraph 3 of the Constitution states that all criminal trials (other than cases of impeachment) must be by jury, and "such Trial shall be held in the State where the said Crimes shall have been committed." The Sixth Amendment decrees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury "of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." U.S. CONST. amend. VI.
Federal Rule of Criminal Procedure 21 governs motions to transfer venue of federal criminal cases for trial. It contains four subsections - (a) through (d). Rule 21(a) addresses transfers based on prejudice. See, e.g., Skilling v. United States, 561 U.S. 358, 378 n.11 (2010) (Rule 21(b) instructs that a court must transfer the proceeding to another district if "so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there."). That subsection is not invoked or relied upon by Defendant in the case at bar. He does not claim that he cannot obtain a fair trial in the Southern District of Illinois.
Rather, Defendant relies on Rule 21(b), which provides that upon the defendant's motion, the court may transfer the proceeding "to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice." FED. R. CRIM. P. 21(b). Rule 21(d) prescribes the time in which to file a motion to transfer venue - it is to ...