United States v. Pereira

• Decision Date: 04 May 2018
• Docket Number: Criminal No. 12–413 (FAB)
• Parties: UNITED STATES of America, Plaintiff, v. Nelson PEREIRA [3], Pedro San Lucas [20], Defendants.
• Court: U.S. District Court — District of Puerto Rico

312 F.Supp.3d 262

UNITED STATES of America, Plaintiff,

v.Nelson PEREIRA [3], Pedro San Lucas [20], Defendants.

Criminal No. 12–413 (FAB)

United States District Court, D. Puerto Rico.

Signed May 4, 2018

G. Andrew Massucco–LaTaif, Maritza Gonzalez–Rivera, Myriam Y. Fernandez–Gonzalez, United States Attorneys Office District of Puerto Rico, Marc S. Chattah, United States Attorney's Office, San Juan, PR, for Plaintiff.

Ramon L. Garay–Medina, Garay Medina Law Office, Ignacio Rivera–Cordero, Rivera, Barreto & Torres Manzano Law Office, Jose R. Gaztambide–Aneses, San Juan, PR, for Defendant.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court are defendants Nelson Pereira ("Pereira")'s and Pedro San Lucas ("San Lucas")'s joint motion for change of venue and severance pursuant to Federal Rule of Criminal Procedure 21 (" Rule 21") (Docket No. 2191); Pereira's motion for change of venue pursuant to Rule 21, the Fifth Amendment Due Process Clause of the United States Constitution, and the Sixth Amendment of the United States Constitution (Docket No. 2193); Pereira's supplemental motion to dismiss pursuant to the Fifth Amendment Double Jeopardy Clause of the United States Constitution (Docket No. 2166); Pereira's motion to exclude pursuant to the Sixth Amendment Confrontation Clause of the United States Constitution and Federal Rules of Evidence 401 (" Rule 401"), 402 ("Rule 402"), and 403 ("Rule 403") (Docket No. 2140); Pereira's motion for additional discovery pursuant to Federal Rule of Criminal Procedure 16 (" Rule 16") (Docket No. 2162); Pereira's motion to disqualify the prosecutor (Docket No. 2195); and San Lucas's motion to dismiss pursuant to the Speedy Trial Act ("STA") and the Sixth Amendment of the United States Constitution. (Docket No. 2173.) For the reasons set forth below, the Court DENIES Pereira and San Lucas's joint motion for change of venue (Docket No. 2191); DENIES Pereira's motion for change of venue (Docket No. 2193), his motion to exclude evidence (Docket No. 2140), his motion to dismiss (Docket No. 2166), his motion for additional discovery (Docket No. 2162), and his motion to disqualify the prosecutor (Docket No. 2195); and DENIES IN PART San Lucas's motion to dismiss pursuant to the STA and the Sixth Amendment (Docket No. 2173.)

I. Background

On May 24, 2012, a federal grand jury returned an indictment charging Pereira and San Lucas with violating 21 U.S.C. section 841 (" section 841") and 21 U.S.C. section 846 (" section 846"). (Docket No. 3 at pp. 3–4.)¹ The indictment also charges Pereira with violating 18 U.S.C. section 2 (" section 2"). Id. On March 15, 2013, a federal grand jury returned a superseding indictment charging, among others, Pereira and San Lucas with conspiring to possess cocaine with intent to distribute in violation of sections 841 and 846. (Docket No. 518 at pp. 3–4.)² The superseding indictment also charges Pereira with aiding and abetting the possession of cocaine with the intent to distribute in violation of section 841 and section 2. Id. at pp. 6–7.

Following unsuccessful plea negotiations, Pereira's trial commenced on March 2014. (Docket No. 1278.) The jury found Pereira guilty of "[c]onspiracy to possess with the intent to distribute five [ ] kilograms or more of cocaine" and "[a]iding and abetting in possession with intent to distribute five [ ] kilograms of cocaine," in violation of sections 2, 841, and 846. (Docket No. 1445.) Pereira appealed the verdict to the First Circuit Court of Appeals. (Docket No. 1876.) The court of appeals held that the prosecutor's improper questions might have affected the outcome of the trial. United States v. Pereira, 848 F.3d 17, 33 (1st Cir. 2017). Accordingly, the First Circuit Court of Appeals vacated Pereira's conviction on February 3, 2017 and remanded for a new trial. Id.

San Lucas was arrested in New Jersey on September 7, 2016, more than four years after the indictment was filed, and was brought to Puerto Rico for an initial proceeding. (Docket No. 2057.) Pereira's and San Lucas's cases were consolidated on March 29, 2017. (Docket No. 2104.) The trial date is scheduled to commence on May 14, 2018. (Docket No. 2205.)

II. Pereira's and San Lucas's Motions for Change of Venue and Severance

On March 5, 2018, San Lucas filed a motion for change of venue and severance. (Docket No. 2191.) Pereira joined San Lucas's motion, see Docket Nos. 2191 and 2197, and filed an independent motion for change of venue on March 6, 2018. (Docket No. 2193.)

In their joint motion, Pereira and San Lucas argue that they "ha[ve] resided all [their] li[ves] in the state of New Jersey" and "ha[ve] had nearly no contact with our [Puerto Rico] jurisdiction before the instant charges were filed." (Docket No. 2191 at pp. 1–2.) They maintain that "the alleged relevant events connected to the charged offense took place outside this jurisdiction" and that "[i]f the instant criminal case is permitted to remain in our jurisdiction, [Pereira and San Lucas] will be denied the opportunity to both investigate the instant charges as well as ... interview potential witnesses who ... reside outside our jurisdiction." Id. at p. 2. According to Pereira and San Lucas, they "will be placed in an unfair position as it will be unduly onerous, costly and burdensome for [their] potential witnesses to travel and stay in Puerto Rico during the pendency of the instant jury trial," and "[t]his factor would make [their] witnesses unavailable, causing extreme irreparable prejudice to the defense." Id. With respect to severance, they state "[t]hat the severance relief herein sought is based on the same meritorious grounds previously discussed in this motion." Id. at p. 4.

In Pereira's additional motion for change of venue, he argues that he "would be deprived of his constitutional rights, including due process, Fifth amendment rights, Sixth amendment rights, and other constitutional rights if he has to defend here in Puerto Rico." (Docket No. 2193 at p. 2.) Pereira asserts that "[a]ll principal allegations and evidence relevant to [ ] Pereira" and "[a]ll potential witnesses, and evidence for the defense of [ ] Pereira are located in New Jersey." Id. at p. 2. He claims that he would not be "able to obtain the opportunity for adequate preparation for trial" and therefore would be "deprived of due process and fairness of trial." Id. at p. 4.

A. Legal Standard

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to trial by an impartial jury. Skilling v. United States, 561 U.S. 358, 377, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). This right "has also been characterized as ‘a basic requirement of due process.’ " In re Tsarnaev, 780 F.3d 14, 18 (1st Cir. 2015) (quoting Skilling, 561 U.S. at 378, 130 S.Ct. 2896 ). While "[b]y constitutional design, [ ] trial occurs ‘in the State where the ... crimes ... have been committed,’ " a defendant may move to transfer the proceeding if "extraordinary local prejudice will prevent a fair trial." Skilling, 561 U.S. at 377–78, 130 S.Ct. 2896 (quoting U.S. Const. art. III, § 2, cl. 3 ). When a defendant moves to transfer venue, "the court must transfer the proceeding against the defendant to another district court 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." Fed. R. Crim. P. 21(a). "In those rare, extreme circumstances it may be a ‘denial of due process of law to refuse the request for a change of venue.’ " Tsarnaev, 780 F.3d at 18 (quoting Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) ).

Transfer of venue pursuant to Rule 21(a) is required "where there is an ever-prevalent risk that the level of prejudice permeating the trial setting is so dense that a defendant cannot possibly receive an impartial trial." United States v. Quiles–Olivo, 684 F.3d 177, 182 (1st Cir. 2012). This prejudice may be established "where the facts show that jury prejudice should be presumed, and if prejudice should not be presumed, that the jury was actually prejudiced against the defendant." Id. (internal quotation marks and alteration omitted). Rule 21(a)'s requirements "almost exclusively" apply to cases "in which pervasive pretrial publicity has inflamed passions in the host community past the breaking point." United States v. Walker, 665 F.3d 212, 223 (1st Cir. 2011).

"A court also may transfer a criminal case to another district ‘for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.’ " Walker, 665 F.3d at 223 (quoting Fed. R. Crim. P. 21(b) ). "Generally, venue change under Rule 21(b) may be warranted depending on a number of factors, the significance of which inevitability will vary depending on the facts of a given case." Quiles–Olivo, 684 F.3d at 184 (citing Platt v. Min. Mining & Mfg. Co., 376 U.S. 240, 243–44, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). Those factors include the location of the parties, potential witnesses, contested events, relevant documents, and counsel, expense to the parties, overall accessibility of the trial location, and any other special factor. Id. at 185 (citing Platt, 376 U.S. at 243–44, 84 S.Ct. 769 ). The Court may transfer a case if a defendant demonstrates that the change is both convenient and in the interest of justice, "[g]iven that Rule 21(b) lists ‘convenience’ and ‘interest of justice’ conjunctively." Id. (citing Fed. R. Crim. P. 21(b) ; Walker, 665 F.3d at 224.

B. Discussion

Pereira's and San Lucas's Rule 21(a) arguments and Pereira's constitutional claims are unpersuasive. See Docket Nos. 2191 and 2193. Both motions fail to identify any "pervasive pretrial publicity" or "risk that the level of prejudice permeating the trial setting is so dense" that Pereira or San Lucas "[could not] possibly have an impartial trial." See Walker, 665 F.3d at 223 ; Quiles–Olivo, 684 F.3d at 182. Because Pereira and...