THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA §
VS. § CRIMINAL NO. 4:05cr96(15)
JOSE REYES §
MOTION TO DISMISS OR TRANSFER BASED UPON VENUE
Defendant Jose Reyes, brings this motion to dismiss the present indictment against him
based upon venue. Alternatively, Mr. Reyes moves for transfer of these proceedings to the
United States District Court for the Northern District of Texas, Dallas Division, pursuant to FED.
R. CRIM. P. 21(b). Additionally, Mr. Reyes asserts the Government's choice of filing this case in
the Eastern District of Texas is for the purpose of denying him a fair cross section of the
community for jury service under the Sixth Amendment, a denial of equal protection under the
Fifth Amendment and violates the Jury Selection and Service Act 28 U.S.C. § 1861.
The indictment against Jose Reyes names fifty-six, largely Hispanic or Immigrant
defendants, who mostly reside in Dallas, Texas. The indictment asserts the defendants conspired
to distribute drugs in the Eastern District of Texas. The specific act for which Mr. Reyes has
been joined in the indictment involves Mr. Reyes allegedly helping secret drugs in a gas tank at
8919 Newhall, in Dallas, Texas.
The East Texas nexus that the Government has alleged in documents submitted to
counsel allege an act related to money laundering in Plano, Texas, and an arrest of one defendant
on I-30 with drugs. However, the majority of the conduct of the fifty-six defendants is in the
Northern District of Texas.
The Law Regarding Venue and Arguments
Pursuant to FED. R. CRIM. P. 18, the Government "must prosecute an offense in a district
where the offense was committed." The trial court "must set the place of trial within the district
with due regard for the convenience of the defendant, and the witnesses, and the prompt
administration of justice."
Congress has provided that:
Except as otherwise expressly provided by an 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).
1. The Present Indictment Should be Dismissed
The right of the accused to be tried in the district in which the crime was committed rests
upon both the United States Constitution and federal statutory law.1 Emphasizing the "unfairness
and hardship to which a trial in an environment alien to the accused exposes him", the Supreme
Court has held that venue should not be treated as a mere formality. United States v. Johnson,
323 U.S. 273, 275-76, 65 S.Ct. 249, 250 (1944). Questions of venue in criminal cases, in fact,
"raise deep issues of public policy," bearing on "the fair administration of criminal justice and
public confidence in it." Id, at 276, 65 S.Ct. at 250. Venue is an element of any offense; the
prosecution always bears the burden of proving that the trial is in the same district as the crime's
commission. United States v. White, supra, 611 F.2d at 536; United States v. Turner, 586 F.2d
395, 397 (5th Cir.), cert. denied, 440 U.S. 926, 99 S.Ct. 1258 (1979). Whether venue has been
properly proved is a jury question. See Green v. United States, 309 F.2d 852 (5th Cir. 1962).
See Article II, § 2, Cl. 3, the Sixth Amendment, and Rule 18, Fed. R. Crim. Proc.
The Fourth Circuit's decision in United States v. Stewart, 256 F.3d 231 (4th Cir. 2001), is
instructive on facts similar to those of the present defendant. Dennever Livingston, Roger
Stewart and Junior Sims were indicted in a multi-count indictment alleging a conspiracy to
transport marijuana from Mexico, to Los Angeles, California, and then onto cities within the
Eastern District of Virginia. Dennever Livingston got the marijuana from Mexico and packaged
it for shipment. Junior Sims received the marijuana in Virginia and wired or mailed money to
Los Angeles. Roger Stewart received the money in Los Angeles and forwarded it to Livingston.
For purposes of this motion, Roger Stewart's involvement in the conspiracy is central.
From 1995-1997, Roger Stewart received 136 Western Union wire transfers in Los
Angeles, which totaled $ 345,840. Stewart also received 56 packets of money in the mail, in Los
Angeles, during this time period. Id. at 235-236.
In April of 1997, all three individuals were indicted in the Eastern District of Virginia for
conspiracy to distribute marijuana, in violation of 21 U.S.C. § 841 and 846 and money
laundering in violation of 18 U.S.C. § 1956. Subsequent to trial, Stewart was convicted of money
laundering charges. On Appeal, Stewart asserted that the overt act for which he was charged only
occurred in Los Angeles, and thus dismissal based upon improper venue was warranted. The
Government countered that the conduct was continuing and thus venue was proper in Virginia,
where the money originated.
The Fourth Circuit addressed the specifics of Stewart's case and found that venue was not
proper in the Eastern District of Virginia based upon factors set out by the Supreme Court in
United States v. Cabrales, 524 U.S. 1, 118 S.Ct. 1772 (1998) (adopting an Eighth Circuit "locus
delicti" test for determining proper venue). Thus, the convictions were vacated.
In a footnote, the Fourth Circuit addressed the crux of defendant's current argument. The
Fourth Circuit stated:
Stewart also was charged with conspiracy to launder money. Because Stewart
ultimately was acquitted of that charge, we need not address whether venue was
proper with respect to the conspiracy count. We note, however, that venue in the
Eastern District of Virginia arguably would have been improper on the conspiracy
count with respect to Stewart unless, during the venue hearing, the Government
was able to forecast some evidence demonstrating that Stewart, who had, at best,
a very minor role in the alleged conspiracy, knowingly and voluntarily entered
into a confederacy involving the Eastern District of Virginia. See United States v.
Cabrales, 524 U.S. 1, 9, 118 S.Ct. 1772 (1998). (noting that venue would be
proper for Cabrales on the conspiracy charge only if the government could prove
that Cabrales entered into the agreement as alleged); United States v. Bowens, 224
F.3d 302, 311 n.4 (4th Cir. 2000) ("In a conspiracy charge, venue is proper for all
defendants wherever the agreement was made or wherever any overt act in
furtherance of the conspiracy transpires.").
Id. at 241 n.3.
Thus, it is the defendant's contention, that based upon the alleged act of Mr. Reyes, venue
is not proper in the Eastern District of Texas, and the indictment should be dismissed so that it
can properly be filed in the Northern District of Texas, Dallas Division, where the majority of the
conspiracy allegedly occurred. Pursuant to the holding in Stewart, this will require a hearing in
which the Government will be able to demonstrate, or forecast, some evidence, that Jose Reyes,
who had, at best, a very minor role in the alleged conspiracy, knowingly and voluntarily entered
into a conspiracy involving the Eastern District of Texas.
2. Transfer is Proper in this Case
FED. R. CRIM. P. 8 allows the joinder of two or more defendants if they are alleged to
have participated in the same act or transaction or in the same series of acts or transactions
constituting an offense or offenses. The defendants may be charged in one or more counts
together or separately and all of the defendants need not be charged in each count. FED. R. CRIM.
Whether joinder is proper is normally determined from the allegations in the indictment.
See United States v. Faulkner, 17 F.3d 745, 758 (5th Cir. 1994). The proprietary of Rule 8
joinder is determined by the initial allegations of the indictment, which, barring arguments of
prosecutorial misconduct are accepted as true. See United States v. Kaufman, 858 F.2d 994, 1003
(5th Cir. 1988); United States v. Harrelson, 754 F.2d 1153, 1176 (5th Cir. 1985). Joinder of
defendants is proper under Rule 8 where the record, examined broadly, presents two conspiracies
substantially interrelated by their facts and participants rather than two separate and distinct
conspiracies. See United States v. Toro, 840 F.2d 1221, 1238 (5th Cir. 1988).
In the Fifth Circuit, proper joinder requires that the offenses charged "must be shown to
be part of a single plan or scheme," and that "proof of such a common scheme is typically
supplied by an overarching conspiracy from which stems each of the substantive counts." United
States v. Lane, 735 F.2d 799, 805 (5th Cir. 1984). rev'd in part on other grounds, 474 U.S. 438
(1986). Under Rule 8, a "series" is something more than "similar" acts. See United States v.
Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975).2
In the present case, the majority of the conduct allegedly occurred in Dallas, Texas. The
incidents that occurred in the Eastern District of Texas were remote to the conspiracy and
amount of forum shopping on the part of the Government.
FED. R. CRIM. P. 21(b) allows that upon the defendant's motion, the court may transfer the
proceeding, or one or more counts, against the defendant to another district for the convenience
of the parties and witnesses and in the interest of justice.
The Supreme Court has identified ten factors that a court should consider when ruling on
a Rule 21(b) motion. See Platt v. Minnisota Min. and Man. Co., 376 U.S. 240, 84 S.Ct. 769
The above discussion concerning rule 8 was taken from the opinion by the Honorable Joe Kendall in the Northern
District of Texas. See United States v. Morris, 176 F.Supp.2d 668, 671 (N.D. Tex. 2001).
(1964). These factors are: "(1) the residence of an individual defendant; (2) the location of
possible witnesses; (3) location of events likely to be in issue; (4) location of documents and
records likely to be involved; (5) disruption of defendant's business unless the case is
transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place
of trial; (9) docket condition of each district or division involved; and (10) any other special
elements which might affect the transfer." Id. 376 U.S. 243-44.
In the present case, the majority of the acts that are alleged in the indictment occurred
almost exclusively in the Northern District of Texas. The majority of the defendants and
witnesses can be located in Dallas. Mr. Reyes' witnesses and family that will testify live in
Dallas, Texas. Thus, factors one and two weigh in favor of transfer to Dallas. Factors three and
four are split between the two locations, but the act alleged against the defendant, is exclusively
in Dallas. Factors five through ten are not an issue in this case because the defendant is not a
large corporation defending itself against criminal charges. Thus, Mr. Reyes would assert that the
Northern District of Texas, Dallas Division is the proper place to try the present case. See United
States v. Morris, 176 F.Supp.2d 668 (N.D.Tex. 2001)(Given factors that weigh on behalf of the
transfer and other factors which are neutral, transfer is proper).
In addition to the holding of the Supreme Court, several circuits employ a substantial
contacts test for ruling on Rule 21(b) motions. The substantial contacts test was first enunciated
in United States v. Reed, 773 F.2d 477, 480 (2nd Cir. 1985). The test states:
a review of relevant authorities demonstrates that there is no single defined policy
or mechanical test to determine constitutional venue. Rather, the test is best
described as a substantial contacts rule that takes into account a number of factors
-- the site of the defendant's acts, the elements and nature of the crime, the locus
of the effect of the criminal conduct, and the suitability of each district for
accurate fact finding . . . .
Id. See also United States v. Williams, 274 F.3d 1079, 1084 (6th Cir. 2001);United States v.
Williams, 788 F.2d 1213, 1215 (6th Cir. 1986)(adopting the substantial contacts test); United
States v. Chappell, 854 F.2d 190 (7th Cir. 1988), vacated on other grounds, 494 U.S. 1075, 110
S.Ct. 1800 (1990)(adopting the substantial contacts test);
Given this test, the factors again weigh in favor of Mr. Reyes. The site of the defendant's
acts were in Dallas, Texas. The elements and nature of the crime occurred largely in Dallas. The
locus of the effect of the criminal conduct is Dallas is the most suitable district for accurate fact
Mr. Reyes asserts that all factors considered by the Supreme Court and other Circuits
point to Dallas as the location where this case should be tried. Requiring Mr. Reyes to stand trial
in Sherman, Texas, a place remote from the alleged conduct and the alleged conspiracy would
be prejudicial and requires a transfer.
Mr. Reyes moves that this action be dismissed, or in the alternative, transferred to the
Dallas Division of the Northern District of Texas.
Cross Section Requirement of the Sixth Amendment
The American concept of the jury trial contemplates a jury drawn from a fair cross
section of the community. . . . It is part of the established tradition in the use of juries as
instruments of public justice that the jury be a body truly representative of the community."
Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692 (1975) (internal quotation marks omitted).
This requirement of a fair cross section is not without substantial limits -- it does not guarantee
that juries be "of any particular composition." Id. at 538. All that is required is that "the jury
wheels, pools of names, panels, or venires from which juries are drawn must not systematically
exclude distinctive groups in the community and thereby fail to be reasonably representative
thereof." Id. (emphasis added). The objectives of the fair cross section requirement include
avoiding "the possibility that the composition of the juries would be arbitrarily skewed in such a
way as to deny criminal defendants the benefit of the common-sense judgment of the
community" and avoiding the "appearance of unfairness" that would result from excluding "large
groups of individuals, not on the basis of their ability to serve as jurors, but on the basis of some
immutable characteristic such as race, gender or ethnic background." Lockhart v. McCree, 476
U.S. 162, 175, 106 S.Ct. 1758 (1986).
The Jury Selection and Service Act ("The Act") provides as follows:
All litigants in Federal courts entitled to trial by jury shall have the right to grand
and petit juries selected at random from a fair cross section of the community in
the district or division wherein the court convenes. It is further the policy of the
United States that all citizens shall have the opportunity to be considered for
service on grand and petit juries in the district courts of the United States, and
shall have an obligation to serve as jurors when summoned for that purpose.
28 U.S.C. § 1861 (West 2001). The Act "seeks to ensure that potential grand and petit jurors are
selected at random from a representative cross section of the community and that all qualified
citizens have the opportunity to be considered for service." United States v. Calabrese, 942 F.2d
218, 220 (3d Cir. 1991) (internal quotation marks omitted). Claims under the Act are analyzed
using the same standard as a Sixth Amendment fair cross section claim. See United States v.
Test, 550 F.2d 577, 584-85 (10th Cir. 1976)(en banc) (Act's fair cross section standard is
"functional equivalent of the constitutional 'reasonably representative' standard").
When enacted, the Act required "each United States district court [to] devise and place
into operation a written plan for random selection of . . . petit jurors that would be designed to
achieve the [above-mentioned] objectives of sections 1861 and 1862." 28 U.S.C. § 1863(a) (a)
(West 2001). Congress determined that the principal source of names for the random selection
should be either "the voter registration lists or the lists of actual voters." Id. at § 1863(b)(2). The
Act also provided: "The plan shall prescribe some other source or sources of names in addition to
voter lists where necessary to foster the policy and protect the rights secured by sections 1861
and 1862 . . . ." Id.
In order to establish a prima facie violation of the fair cross section requirement of the
Sixth Amendment and the Act, the defendant must demonstrate: (1) the group alleged to be
excluded is a "distinctive" group in the community; (2) the representation of this group in jury
venires is not "fair and reasonable" in relation to the number of such persons in the community;
and (3) the under representation is caused by the "systematic exclusion of the group in the jury
selection process." Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664 (1979). A defendant
need not show discriminatory intent. See Id. at 368 n. 26 ("In contrast [to an Equal Protection
claim], in Sixth Amendment fair cross-section cases, systematic disproportion itself demonstrates
an infringement of the defendant's interest in a jury chosen from a fair community cross
section.") And, "once a defendant has made a prima facie showing of an infringement of his
constitutional right to a jury drawn a fair cross section of the community, it is the State that bears
the burden of justifying this infringement by showing attainment of a fair cross section to be
incompatible with a significant state interest." Id. at 368.
Equal Protection Under the Fifth Amendment
An equal protection claim against the federal government is analyzed under the Due
Process Clause of the Fifth Amendment. As the Supreme Court has held "equal protection
analysis in the Fifth Amendment area is the same as that under the Equal Protection Clause of
the Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612 (1976), see also
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217, 115 S.Ct. 2097 (1995); Weinberger v.
Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S.Ct. 1225 (1975); Bolling v. Sharpe, 347 U.S. 497, 499,
74 S.Ct. 693 (1954).
Dallas Division, Northern District of Texas
After the Jury Selection Service Act contained at 28 U.S.C § 1861 et. Seq. the Northern
District of Texas wrote a new jury plan on May 14, 1998. See Misc. Order 5, N.D. Tex. The
Northern District of Texas noted that the main source for the jury pool would remain the voter
registration roll maintained by each county within the division. However, in addition to voter
registration, the Northern District of Texas incorporated the plain language of 28 U.S.C. § 1861
by incorporating driver's license rolls. "The lists of licensed drivers will supplement the voter
registration lists to the extent possible" by using Texas driver's license rolls. Thus, the Northern
District of Texas has fully complied with the intent and purpose of the Jury Selection and Service
Census Numbers for Dallas Division
Pursuant to the Northern District of Texas Jury Plan, Dallas Division jurors are selected
from Dallas, Ellis, Hunt, Johnson, Kaufman, Navarro and Rockwall Counties. The 2000 census
numbers supplemented by the 2003 estimates demonstrate the following:
(2000 racial percentages)
County 2003 est. population % Hispanic % non-White % White
Dallas 2,284,096 29.9 55.7 44.3
Ellis 124,411 18.4 28.7 71.3
Hunt 81,024 8.3 20.1 79.9
Johnson 139,068 12.1 16.8 83.2
Kaufman 81,955 11.1 23.7 76.3
Navarro 47,331 15.8 34.4 65.6
Rockwall 54,630 11.1 16.9 83.1
2,812,515 752,028 1,392533 1,422,982
Weighted Percentages 26.7 49.5 50.5
Thus, in the Dallas Division, 26.7 percent of the population is Hispanic and 49.5 percent of the
population is non-Caucasian.
Sherman Division, Eastern District of Texas
After the Jury Selection Service Act, the Eastern District of Texas formulated a jury plan
which in effect blessed the old system and did not incorporate the requirement of other source
lists other than voter registration for selection as a potential juror. The plan violates the plain
language of the Jury Selection Service Act. Thus, pursuant to section four of the Eastern District
Plan, voter registration is the only means of being a qualified juror in the Eastern District of
Census Numbers for Sherman Divison
Pursuant to the Eastern District of Texas Jury Plan, juries in the Sherman Division are
selected from Collin, Cooke, Delta, Denton, Fannin, Grayson, Hopkins and Lamar Counties. The
2000 census numbers supplemented by the 2003 estimates demonstrate the following:
(2000 racial percentages)
County 2003 est. population % Hispanic % non-White % White
Collin 597,147 10.3 23.9 76.1
Cooke 37,996 10.0 15.2 84.8
Delta 5,451 3.1 13.3 86.7
Denton 510,795 12.2 24.0 76.0
Fannin 32,276 5.6 15.8 84.2
Grayson 115,153 6.8 16.0 84.0
Hopkins 32,681 9.3 18.8 81.2
Lamar 49,464 3.3 19.3 80.7
1,380,963 142,100 311,024 1,069,939
Weighted Percentages 10.3 22.5 77.5
Thus, in the Sherman Division of the Eastern District of Texas, only 10.3 percent of the
population is Hispanic and 77.5 percent of the population is Caucasian.
Argument on Equal Protection and Cross-Section
Mr. Reyes requests a hearing on this motion in order that he may present the statistical
and factual basis of his claim in more detail. However, the raw census numbers demonstrate that
if you want a white jury in the State of Texas, the Sherman Division of the Eastern District of
Texas will give a 77.5% chance with only a 10.3% chance of having a Hispanic juror. In
contrast, in the Dallas Division, there is an even chance of getting a white juror and a 26.7%
chance of having Hispanics on the jury. Additionally, in Dallas, the jury pool is drawn from
driver's licenses which increases minority participation. Mr. Reyes asserts what has happened in
this case is Government forum shopping in order to get a white jury to convict Hispanic and
other minority defendants. Mr. Reyes asserts him being tried in the Sherman Division violates
his equal protection rights. Additionally, Mr. Reyes asserts that he can present statistical
evidence that will demonstrate the Eastern District Jury Plan, in comparison to the Northern
District Jury Plan, violates the cross-section requirement of the Sixth Amendment and the Jury
Selection Service Act.
Lastly, Mr. Reyes will need the assistance of a demographics expert in order to present
this claim. Mr. Reyes requests that the hearing not be scheduled until thirty days after the Court's
determination on a separate motion that will be filed within five days of the filing of this motion
for the appointment of an expert to assist in the presentation of the statistical demographics in
support of this motion.
Attorney for Mr. Reyes
309 N. Willow
Sherman, Texas 75090
Certificate of Service and Conference
This document was filed electronically with a courtesy copy furnished to Ms. Heather
I conferred with Ms. Rattan concerning this motion on July 18, 2005. Ms. Rattan is
opposed to the present motion.
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA §
VS. § CRIMINAL NO. 4:05cr96(15)
JOSE REYES §
Came on for consideration defendant's motion to Dismiss or Transfer the present action
because of venue and related argument regarding equal protection, cross-section and the Jury
Service and Selection Act. Having considered same, it is
ORDERED that a hearing will be conducted before this Court on September ____, 2005,
at 9:00 a.m. to allow the parties to present evidence and testimony regarding the equal protection,
cross-section and Jury Service and Selection Act claims.
SIGNED this _______ day of ________________, 2005.
UNITED STATES DISTRICT JUDGE