United States v. Casellas-Toro, 14–1933.

• Decision Date: 07 December 2015
• Docket Number: No. 14–1933.,14–1933.
• Citation: 807 F.3d 380
• Parties: UNITED STATES of America, Appellee, v. Pablo CASELLAS–TORO, Defendant–Appellant.
• Court: U.S. Court of Appeals — First Circuit

807 F.3d 380

UNITED STATES of America, Appellee,

v.Pablo CASELLAS–TORO, Defendant–Appellant.

No. 14–1933.

United States Court of Appeals, First Circuit.

Dec. 7, 2015.

Martin G. Weinberg, with whom Kimberly Homan and Francisco Rebollo–Casalduc were on brief for appellant.

Kirby A. Heller, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Wifredo A. Ferrer, United States Attorney, Michael E. Gilfarb, Assistant United States Attorney, Andy R. Camacho, Assistant United States Attorney, Leslie R. Caldwell, Assistant Attorney General, and Sung–Hee Suh, Deputy Assistant Attorney General, were on brief for appellee.

Before BENTON,^* SENTELLE,^** and JORDAN,^*** Circuit Judges.

BENTON, Circuit Judge.

Pablo Casellas–Toro appeals from a final judgment of conviction, assigning as error the district court's denials of his motions to change venue and to suppress evidence. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.

I.

On June 17, 2012, Casellas reported he was a victim of an armed carjacking. The next day, he spoke with an FBI agent. He claimed he was driving to the shooting range when he heard gunshots break his back window. He saw two people running from the car. A third person forced him to stop his car and ordered him to move to the passenger's seat. Casellas said he escaped, climbing out the car window after being shot in the arm. Police found the car nearby. Casellas reported two guns missing from the car.

On June 25, Casellas gave the FBI written consent to search his car for evidence about the carjacking. The FBI took custody of the car. On July 9, the FBI scheduled the search for July 16. Casellas called the FBI four times, asking, "Have you done the search, can I have my car back?" After the search on July 16, the FBI obtained a warrant for a more detailed search of the car, which took place August 13.

On July 14, Casellas's wife was murdered. He was the prime suspect. His murder trial began December 10, 2013. The Commonwealth alleged he staged the carjacking to make the murder weapon "stolen". A jury convicted him on January 22, 2014.

Eight days later, a federal grand jury indicted him on three counts of making false statements to a federal officer, based on his account of the carjacking. A week later, the Commonwealth court sentenced Casellas to 109 years' imprisonment for the murder. The next day, he made his first appearance in federal court.

Immediately after Casellas's wife was murdered in July 2012, the media began extensively covering the case. Casellas moved to transfer the federal trial to another venue, arguing the pretrial publicity about his murder conviction prevented a fair and impartial jury in Puerto Rico. He submitted to the district court an analysis of the publicity as well as a sampling of newspaper articles, videos, and online blogs. The district court described the publicity:

Hours after the discovery of [Casellas's wife's] body, "just about every" news media outlet in Puerto Rico descended upon Mr. Casellas's home and remained there for the day. Several tabloid news programs immediately made the murder investigation the main focus of their programming. Television, radio, internet, and print media outlets in Puerto Rico "have continuously, intensely and uninterruptedly covered the Casellas case virtually on a daily basis."

Many facts about the murder investigation were leaked to the media, including the substance of Mr. Casellas's interview with police and the condition of the victim's body at the crime scene. The media published and broadcast a number of allegedly false rumors about Mr. Casellas, including that he was a drug user, that he threatened people with firearms, that he was involved in a hit-and-run vehicle accident, and that he drunkenly bragged about assassinating the then-governor of Puerto Rico.

Although local authorities summoned Mr. Casellas to the Bayamon courthouse for the filing of charges, he was intercepted outside the courthouse, arrested, and Mirandized in public in view of media personnel who broadcast the event live. Members of the media "covered every minute of every day" of the commonwealth trial which ran from December 10, 2013, to January 22, 2014. Many reporters tweeted the trial testimony verbatim. Cameras followed the defendant, his family, and his lawyers during breaks.

Citizens celebrated outside the courthouse and an entire stadium of people attending a baseball game erupted into cheers upon news of the guilty verdict in the commonwealth case. Television coverage of the Casellas verdict received the top Nielson rating for that month. The Supreme Court of Puerto Rico permitted the media to broadcast Mr. Casellas's sentencing live on television, internet, and radio.

Adding to the sensational nature of the Casellas murder case is the fact that the defendant's father is a United States District Judge. The media scrutinized Judge Casellas for appearing at the scene of the crime on the morning of the murder, and some local attorneys called for Judge Casellas's resignation.

(internal citations omitted).

The United States Attorney did not oppose the transfer, agreeing Casellas made "a prima facie showing about the pervasive nature of the coverage" of the murder case. The government did urge the court to begin voir dire and "see what happens." The district court noted, "I can't think that you could get any further on the prejudicial publicity continuum than we are." The court added that "the rules ... provide specifically for change of venue in circumstances, if not like this, so near this that I'm having considerable difficulty in making the call." Since the court could not "confidently presume" "this far in advance of trial" that it would be "virtually impossible" for Mr. Casellas to obtain a fair trial", it reserved ruling.

Voir dire began April 7, 2014—two months after the sentencing for murder. The court asked the venire, totaling about 160, if anyone had heard of Casellas. There was, according to the court, "almost an unanimous show of hands." Those who had heard of Casellas were individually questioned in a separate room. These interviews followed a similar format: The court asked the potential juror to tell it what he or she knew about Casellas; the sources of the information, including whether he or she watched Casellas's Commonwealth sentencing and discussed it with anyone; whether he or she had any opinions about Casellas; and whether he or she could put aside any knowledge and be fair. The court permitted counsel to recommend follow-up questions.

After interviewing 20 potential jurors, the court heard arguments on the change-of-venue motion. It asked the government:

Why strain to find a jury here which simply on paper says it can be fair but has such extensive knowledge of wrongdoing by the defendant that no one can say with certainty that they won't be heavily influenced by that bias when they make the evidentiary connection between the two cases, and why not go somewhere else where nobody ever heard of [Casellas]?

The government responded, "The case against him for murder was pervasive here on the island. That's not an arguable fact" and "[Y]ou're not going to find many people who don't know something about the case." It also noted that a number of the interviewed potential jurors indicated they could put aside any opinion and be fair. The court again asked, "Why not take it somewhere else?" The government replied, "Well, that certainly would be easier."

The court nevertheless overruled the motion to change venue, stating "I certainly agree that we don't know yet if we can get a jury" but "there is a sufficient possibility we can get a jury." It noted Casellas could renew the motion if necessary. The court continued to individually interview potential jurors, following the same format. After two days of interviewing 114 potential jurors¹ , the court qualified 35 and ended voir dire.

On April 28, after peremptory challenges, the court empaneled 12 jurors and 2 alternates. The jury convicted Casellas of all three false-statement counts, but the court granted a motion of acquittal on two counts. He was sentenced to 21 months' imprisonment on the final count, to run concurrently with his Commonwealth sentence. Casellas appeals.

II.

Casellas claims that, by not changing the venue, the district court violated the Sixth Amendment and Federal Rule of Criminal Procedure 21. He argues he could not—and did not—receive a fair trial in Puerto Rico due to prejudicial pretrial publicity. This court reviews the denial of a motion for change of venue for an abuse of discretion. United States v. Quiles–Olivo, 684 F.3d 177, 181 (1st Cir.2012). "A trial court's findings of juror impartiality may be overturned only for manifest error." Mu'Min v. Virginia, 500 U.S. 415, 428, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (internal quotation marks omitted). "[T]he deference due to district courts is at its pinnacle." Skilling v. United States, 561 U.S. 358, 396, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010).

The Sixth Amendment guarantees criminal defendants the right to trial by an impartial jury. Quiles–Olivo, 684 F.3d at 181, citing U.S. Const. amend. VI, and Skilling, 561 U.S. at 377, 130 S.Ct. 2896. If "extraordinary local prejudice will prevent a fair trial," the trial must be transferred to another district. Skilling, 561 U.S. at 378, 130 S.Ct. 2896 ("The theory of our [trial] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.") (alteration in original) (quoting Patterson v. Colorado ex rel. Att'y Gen. of Colo., 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907) (opinion for the Court by Holmes, J.)).

Rule 21 authorizes a change of venue 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...