U.S. v. Dubon-Otero

• Decision Date: 26 October 1999
• Docket Number: Criminal No. 97-091(JAF).
• Citation: 76 F.Supp.2d 161
• Parties: UNITED STATES of America, Plaintiff, v. Luis E. DUBON-OTERO (10), and Jorge L. Garib-Bazain (11), Defendants.
• Court: U.S. District Court — District of Puerto Rico

76 F.Supp.2d 161

UNITED STATES of America, Plaintiff, v. Luis E. DUBON-OTERO (10), and Jorge L. Garib-Bazain (11), Defendants.

Criminal No. 97-091(JAF).

United States District Court, D. Puerto Rico.

October 26, 1999.

COPYRIGHT MATERIAL OMITTED

Maria A. Dominguez-Victoriano, Asst. U.S. Atty., Edna Rosario, Asst. U.S. Atty., Guillermo Gil, U.S. Atty., San Juan, PR, for plaintiff.

Frederick P. Hafetz, Susan R. Necheles, New York City, David W. Roman, San Juan, PR, for defendant Dubon-Otero.

Howard Srebnick, Miami, Florida, Charles E. FitzWilliam, San Juan, PR, for defendant Garib-Bazain.

OPINION AND ORDER

FUSTE, District Judge.

Defendants, Luis Dubón-Otero ("Dubón") and Jorge Garib-Bazaín ("Garib") are charged with conspiracy to commit theft of federal funds through Advanced Community Health Services ("ACHS") pursuant to 18 U.S.C. § 371.

Defendants move for: (1) a change of venue or, in the alternative, a continuance and individual voir dire of prospective jurors; (2) certain particulars from the government; (3) dismissal of the forfeiture counts against them; (4) dismissal of the indictment and a stay of this case until the provisions of 28 U.S.C. § 1861 are complied with in selecting the grand and petit juries; and (5) government preclusion from calling as a witness any person to whom the government has offered anything of value.

I. Brief History

On February 19, 1999, a grand jury returned an indictment charging Defendants Dubón and Garib and nine others with conspiracy to commit theft concerning a program receiving federal funds in violation of 18 U.S.C. § 371. The indictment alleged that Defendants conspired to steal federal monies through ACHS. Defendants Dubón and Garib were also indicted on forfeiture counts pursuant 18 U.S.C. § 982, and Defendant Garib was charged with making false declarations before the grand jury pursuant to 18 U.S.C. § 1623.

On March 11, 1998, we began the first phase of the trial ("AIDS I") involving Defendants Yamil H. Kourí-Pérez, Jeannette A. Sotomayor, and Armando Borel-Barreiro. The jury convicted all three defendants on June 14, 1999.

The second phase of the trial, the trial of Defendants, was scheduled to commence on October 18, 1999.

II. Prejudicial Pretrial Publicity

The Sixth Amendment guarantees every criminal defendant the right to an impartial jury. U.S. Const. amend. VI; see also Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Nonetheless, United States courts have a long history of dealing with threats to juror impartiality. In the early republic, pretrial publicity surrounding the treason trial of former Vice President Aaron Burr seized the nation. Chief Justice Marshall, sitting as a circuit judge, determined that exposure to such publicity did not sua sponte destroy a potential juror's impartiality. United States v. Burr, 25 F.Cas. 49 (No. 14,692g)(C.C.D.Va.1807); accord U.S. v. Chapdelaine, 989 F.2d 28, 31-32 (1st Cir.1993). Chief Justice Marshall stated that "[t]he great value of the trial by jury certainly consists in its fairness and impartiality. Those who most prize the institution, prize it because it furnishes a tribunal which may be expected to be uninfluenced by an undue bias of the mind." Id. at 50.

In accordance with the Sixth-Amendment protections, convictions will be vacated in trials that are "entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob," United States v. Moreno Morales, 815 F.2d 725 (1st Cir.1987) (quoting Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (internal citations omitted)). This standard, recognizing the many advances of telecommunications and circumstances of our modern society, does not demand total public ignorance as to the issues or facts. See, e.g., Murphy, 421 U.S. at 800, 95 S.Ct. 2031; see also Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (Clark, J., dissenting) (stating that "it is an impossible standard to require [a] tribunal to be a laboratory, completely sterilized and freed from any external factors"). Rather, it requires that a juror be able to "lay aside his opinion and render a verdict based on the evidence presented in court." Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); United States v. Medina, 761 F.2d 12, 18 (1st Cir.1985) (stating that in cases of pretrial publicity challenges to a fair trial, "[t]he realities of life must, however, be taken into consideration").

Rule 21(a) of the Federal Rules of Criminal Procedure, authorizes courts to transfer the proceeding against a defendant where there exists a great prejudice against the defendant in the district in which the case is to be tried. Fed. R.Crim.P. 21(a). "In order to prevail on a motion under Rule 21(a), the defendant must show `a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.'" United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir.1990) (quoting Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). Some of the factors that courts examine include: (1) the extent to which the government is responsible for generating the publicity; (2) the extent to which the publicity focuses on the crime, rather than the individual defendants charged with it; (3) and other factors reflecting on the ability to obtain impartial jurors. Maldonado-Rivera, 922 F.2d at 966. The prejudice must rise to the magnitude that proceeding in that district constitutes a denial of the defendant's right to a fair and impartial trial. United States v. Hearst, 466 F.Supp. 1068 (D.C.Cal.1978).

The First Circuit has stated that to prove that trial publicity adversely affected his rights, a defendant must prove that (1) a "circus-like" atmosphere will dominate the trial; (2) the actual jurors judging the case are unable to perform their duties impartially; or (3) the inflammatory publicity has so saturated the community that the jurors' objectivity must be called into question. United States v. Moreno Morales, 815 F.2d 725 (1st Cir.1987). However, courts may presume prejudice in the rare case in which the community is overwrought with inundations of highly inflammatory publicity. Moreno Morales, 815 F.2d at 734 (citing Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)). Given such an exacting standard, it is a rare case that necessitates transfer to avoid prejudice within the district. See U.S. v. Means, 409 F.Supp. 115, 117 (D.C.N.D.1976) (citing 2d Criminal,

2 CHARLES A. WRIGHT, Federal Practice and Procedure § 341 AT 244-45) (STATING THAT "[T]HE INTEREST OF A COMMUNITY THAT THOSE CHARGED WITH VIOLATIONS OF ITS LAWS, BE TRIED IN THAT COMMUNITY, IS NOT A MATTER TO BE CAST ASIDE LIGHTLY. AND AS WRIGHT SUGGESTS, VERY RARELY, AND ONLY IN EXTREME CASES, IS A RULE 21(A) MOTION TO BE GRANTED"). THE COURT HAS WIDE DISCRETION IN DECIDING MOTIONS UNDER RULE 21(A). UNITED STATES v. ALVARADO, 647 F.2D 537 (5TH CIR. 1981); PATRIARCA v. UNITED STATES, 402 F.2D 314 (1ST CIR.1968).

Additionally, there exist portentous interstices between the constitutional provisions and the concomitant policies and rules concerned in a motion to change venue. The early history of our nation evinces the fact that the Colonists believed in the concept that "the community which had suffered injury should be allowed to judge those charged with the injury." Means, 409 F.Supp. at 117 (providing detailed history). Thus, Article III § 2 of the Constitution is often perceived as a venue assurance, particularizing the location of the trial. This guarantee works in conjunction with the Sixth Amendment's right to a jury of one's peers. The Sixth Amendment is widely construed as a vicinage assurance, specifying that jurors will be selected from the location where the offense was committed. United States v. Means, 409 F.Supp. 115, 117 (D.N.D.1976) (citing 2 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 301). To this day, the interest of a community in trying those who violate its laws remains a central tenet of our judicial system. As such, change of venue motions are granted very rarely, only in extreme situations. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 341.

On the other hand, requests for a continuance are routine motions that trial judges address almost daily.¹ "A trial court has wide discretion to grant or deny a request for continuance. `Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel' and would amount to an abuse of that discretion." United States v. Brand, 80 F.3d 560, 564 (1st Cir.1996) (citing Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (internal quotations omitted)); see also United States v. Devin, 918 F.2d 280, 291 (1st Cir.1990) (stating that "[t]here is an important public interest in the efficient operation of the judicial system and in the orderly management of crowded dockets.... The district judge is at the helm, sensitive to the tides that ebb and flow during a prolonged trial and knowledgeable about systemic demands. He is, therefore, the person best equipped to balance the competing considerations"). "Limits on the court's discretion to grant a continuance are imposed by defendant's constitutional rights, including his rights to assistance of counsel and to the testimony of witnesses on his behalf." United States v. Soldevila-Lopez, 17 F.3d 480 (1st Cir. 1994) (quoting United States v. Waldman, 579 F.2d 649 (1st Cir.1978)) (citations omitted).

When deciding whether to grant a continuance due to pretrial publicity, the court must consider if prejudice exists. See Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Prejudice should be found if "(1) inflammatory publicity about a case has...