Michael S. Weinstock
The United States Department of Justice Appears to have made a huge blunder with the prosecution of Alfonso Portillo, the former President of Guatemala. Although the defendant was indicted and arraigned in the Southern District of New York, the United States government initially flew the defendant to Teterboro Airport in New Jersey. , According to the New York Times, the defendant was flown into New Jersey on the Fridaybefore Memorial Day Weekend and he remained there until the following Tuesday, when he was ultimately taken before Judge Robert P. Patterson of the United States District Court of the Southern District of New York, for arraignment. This weekend sojourn in New Jersey may prove to be a procedural misstep with huge consequences. The stopover in Teterboro will almost certainly preempt venue from attaching in the Southern District of New York and will likely result in the dismissal of the indictment in its entirety.
According to the United States Constitution (Article III, Section 2, Clause 3), the Bill of Rights (Sixth Amendment) as well as Rule 18 of the Federal Rules of Criminal Procedure; the government is prohibited from bringing a defendant to one district and then transporting the defendant to an entirely different district for purposes of prosecution. In light of the fact that the defendant was brought to Manhattan for the sole purpose of prosecution, after being detained in Teterboro, New Jersey; the proper venue for this matter lies in the District of New Jersey.
VENUE LIES IN THE DISTRICT OF THE OFFENSE, OR, IF NONE, IN THE DISTRICT WHERE THE DEFENDANT IS BROUGHT
The cardinal principle of venue in criminal cases is that venue lies in the district where the crime was allegedly committed. As Justice Ginsburg wrote in the case of United States v. Cabrales, 524 U.S. 1, 6 (U.S. 1998), “Proper venue in criminal proceedings was a matter of concern to the Nation’s founders. Their complaints against the King of Great Britain, listed in the Declaration of Independence, included his transportation of colonists “beyond Seas to be tried.””
“The Constitution twice safeguards the defendant’s venue right: Article III, section 2, cl. 3 instructs that “Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed”; the Sixth Amendment calls for trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Rule 18 of the Federal Rules of Criminal Procedure, providing that “prosecution shall be had in a district in which the offense was committed,” echoes the constitutional commands.” Id.
Here, there is no dispute that the defendant was “brought” to Teterboro, which is located in New Jersey. This “detention” occurred despite the fact that the Southern District of New York has numerous airports that are available.
While it is conceivably possible that the defense stipulated that they would allow the government to take their client to New Jersey for a long weekend in jail, it appears extremely farfetched, in light of the fact that the former President of Guatemala was forced onboard the plane by police officers and he told the large group of reporters present that he was being “kidnapped.” Perhaps presciently, the defendant also told the reporters that “he would be back when the case fell apart.” In should also be noted that the defendant was loaded upon the jet after a tumultuous extradition fight that lasted two years. Accordingly, the likelihood of a friendly stipulation between the government and defense appears highly unlikely, to say the least.
THE DEFENDANT WAS “FIRST BROUGHT” TO THE
DISTRICT OF NEW JERSEY
To satisfy venue requirements under 18 USCS § 3238, the government must show that the defendant was “brought” to New York before reaching any other jurisdiction. Here, the government is obviously unable to do so. Additionally, the government intentionally engaged in forum-shopping by specifically moving the defendant to the Southern District of New York for purposes of prosecution. Such actions are clearly prohibited.
When a defendant is brought from overseas, the plain language of 18 U.S.C.A. §3238 establishes venue is “in the district in which the offender . . . is arrested or first brought” United States v. Erwin, 602 F.2d 1183, 1185 (5th Cir. La. 1979.); United States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001). It should be noted, however, that the federal judiciary clearly prohibits the intentional moving of defendants in order to find a more advantageous district in which to prosecute.
In the case of United States v. Liang, 224 F.3d 1057 (9th Cir. 2000), the Court of Appeals for the Ninth Circuit dismissed an indictment against a defendant brought from international waters, when it determined that the government had intentionally transported the defendant from one district to another for the sole purpose of prosecution. The court held that “(18 U.S.C.)§ 3238 cannot apply where the individual is first intercepted in one United States district and then transferred to another for trial.” Id.
The appellate court chastised the prosecutors for the post-crime transportation of the defendant. “There is no provision for new proper venues to be created after the crime is completed and the defendant apprehended in a prior district.” United States v. Liang, 224 F.3d 1057, 1061 (9th Cir. 2000) citing United States v. Ruelas-Arreguin, 2000 U.S. App. LEXIS 17259 (9th Cir. 2000).
Indeed, the court went so far as to accuse the prosecutors of intentionally “whittling away” the provision in order to bring the defendant to its preferred venue. “But the fact that when an offender has been arrested on the high seas or abroad, the Government may choose the district into which to bring him, does not seem an adequate reason for permitting the Government to take him into custody in a district where a Federal court exists with jurisdiction to try the alleged offense for which he is held in custody and then transport him to another district for trial there. The courts must take the statute as they find it and should not whittle away the “found” provision by a construction based on formalism rather than substance.” United States v. Liang, 224 F.3d 1057, 1062 (9th Cir. 2000) quoting United States v. Provoo, 215 F.2d 531, 538 (Court of Appeals, 2nd Cir. 1954)
Here, the former President of Guatemala was brought to New Jersey. The government does not allege that the defendant ever set foot in the United States. Instead, the Indictment alleges that the former President was part of a conspiracy to embezzle funds while abroad and three (3) checks promoting that conspiracy were drawn upon an account in Manhattan. The government decided to transport the defendant to New Jersey, nonetheless. Similarly to Liang, 224 F.3d 1057, venue was laid in the wrong forum and the indictment should be dismissed.
“When venue is improperly laid in a criminal case, dismissal is the appropriate remedy because a district court has no power to transfer such a case to a proper venue.” United States v. Liang, 224 F.3d 1057, 1062 (9th Cir. 2000) citing United States v. Hilger, 867 F.2d 566, 567 (9th Cir. Cal. 1989)
THE SOUTHERN DISTRICT OF NEW YORK DOES NOT HAVE VENUE
It is beyond dispute that Teterboro New Jersey is not in the Southern District of New York. It is further beyond dispute that numerous airports in the Southern District of New York could have accommodated the former President’s jet. The Westchester County Airport, for example, is one airport located in the Southern District of New York; and private planes from Guatemala routinely arrive at the airport.
The allegation that the defendant participated in a conspiracy and that three (3) checks were withdrawn in a bank in Manhattan does not provide the district with venue. While the general provision of 18 U.S.C.A. § 3237(a), authorizes the prosecution in any district in which an offense “was begun, continued, or completed” United States v. Levy Auto Parts, 787 F.2d 946, 949 (4th Cir. Va. 1986); the government has not provided reasonable evidence to support the contention that the Former President of Guatemala “began, continued or completed” any criminal acts in the Southern District of New York.
The principle of venue in a conspiracy cases is not simply a procedural nicety. It is a right protected by the constitution. “A decision by the United States to prosecute for conspiracy is not without some advantage to the government. . . . To add to the advantages already existing by engrafting a forum shopping option as to substantive offenses would, we think, go too far. To repeat, venue is not mere formalism. The right to a trial before a jury of the vicinage is fundamental and such a trial ought to be held at the place of commission of the substantive offense.” United States v. Jordan, 846 F. Supp. 895, 899 (D. Nev. 1994)
Here, venue does not attach in the Southern District of New York, simply because the Government of Taiwan, through its Embassy in Guatemala, issued three (3) checks and drew those checks upon an account at the International Bank of China in Manhattan. The only reason that the case is in New York is because the government engaged in forum-shopping and transported the defendant to New York. Because venue does not exist in New Jersey, the court does not have the power to transfer the case and the indictment should be dismissed.
VENUE BELONGS IN NEW JERSEY
In the seminal case of Chandler v. United States, 171 F.2d 921, 933 (1st Cir. Mass. 1948), the United States Court of Appeals for the First District ruled upon a case involving a defendant who was “first brought” into Massachusetts when the plane travelling to Washington DC was forced to make an unscheduled stop due to mechanical difficulties. The defendant was escorted off the plane in Boston for three hours and then continued his voyage to Washington DC. The Appeals Court held that venue was proper in Massachusetts, under the predecessor to 18 U.S.C.S. §3238. Specifically, the court held that “[T]he district into which the accused is first taken under custody and landed is the district into which the accused is “first brought”…and this was the district of Massachusetts in the case at bar. Such an interpretation is consistent with all the decided cases to which our attention has been directed. It is an interpretation which furnishes a rule of convenient application, turning on easily provable objective facts and not depending upon an inquiry into the intent of the persons who had the accused in custody.” Id. See also United States v. Erdos, 474 F.2d 157, 160-161 (4th Cir. Va. 1973); United States v. Guild, 2007 U.S. Dist. LEXIS 85271 (E.D. Va. Nov. 19, 2007)
This exact issue was addressed in the case of US v. Holmes, 672 F. Supp. 2d 739 (E.D. Va. Dec. 4, 2009) when a federal judge courageously reversed himself and vacated the Indictment against a defendant who was “first brought” from overseas to the wrong district and then transported for reasons of prosecution. The court carefully reviewed the history of the statute and all recent precedents before dismissing the Indictment. “[T]he Second Circuit expressed its concern over the ability of the government to hand-pick the location of its trials. The court concluded that the venue statute must be strictly construed so as to only apply where the defendant was first placed into apprehension, and not so that the place of the trial dictated where the place of the arrest occurred. “To hold otherwise would mean …the Department of Justice, can select any federal district in the United States as the place for trial of a [defendant] charged with . . . any . . . offense committed abroad.” Id at 748 (citingUnited States v. Erdos, 474 F.2d 157 (4th Cir.1973).
Here, there is no dispute that the defendant was brought to New Jersey and later transferred to New York City. Accordingly, the government is simply attempting to create venue where none exists. “[P]ost-crime transportation of the defendant by the government did not make venue proper in the district where he was taken after arrest. There is no provision for new proper venues to be created after the crime is completed and the defendant apprehended in a prior district.” United States v. Liang, 224 F.3d 1057, 1062 (9th Cir. 2000) (citing United States v. Ruelas-Arreguin, 2000 U.S. App. LEXIS 17259 (9th Cir. 2000)).
As fully illustrated above, the United States government seriously blundered by bringing the former President of Guatemala to Teterboro, New Jersey. The error is especially egregious, because he is not alleged to have committed any criminal acts in the District of New Jersey and the nexus to the Southern District of New York is virtually non-existent. The Indictment should be dismissed and the government should review the evidence and the applicable law and decide whether to begin a new criminal proceeding that is not tainted by this egregious procedural error.
 Michael S. Weinstock operates the Law Offices of Michael S. Weinstock LLC. He is a former New York City prosecutor and graduate of St. John’s School of Law. He wishes to express his deep appreciation to the late Patrick J. Rohan, the former dean of the law school, for his friendship and support. In the interest of full disclosure, it should be noted that much of this article was drafted and successfully utilized as a Memorandum of Law in the case of US v. Dalnave Navigation Inc. (Crim. No. 09-130). Brian McCarthy Esq. and Michael Chalos Esq. of the law firm of Chalos and O’Connor were both integral in drafting the initial Memorandum.
 Benjamin Weiser, Ex-President of Guatemala Faces Judge in Manhattan, New York Times, May 28, 2013, at 3.
 Indictment of Alfonso Portillo available at http://www.justice.gov/usao/
 Benjamin Weiser, Ex-President of Guatemala Faces Judge in Manhattan, New York Times, May 28, 2013, at 3
 It is worth noting that this provision of the Constitution was adopted even before the Bill of Rights as a protection against governmental oppression. The Framers responded to the fierce opposition of the Colonists to Acts of Parliament that allowed the Crown to force a defendant to trial in a foreign land or another colony. The outrage at the English colonial practice was not merely symbolic; it was grounded in the practical hardships imposed when a defendant was dragged away from family, friends and work and, sometimes his counsel, to stand trial in a distant locale. 1997 U.S. Briefs 643, 3 (U.S. Mar. 30, 1998) Amicus Curiae brief of the National Association of Criminal Defense Lawyers in Support of Respondent.
 Randal C. Archibold, Ex-President of Guatemala Extradited to US in Corruption Case, New York Times, May 24, 2013, at 5.
 Ibid at 5.
 Ibid at 1.
 Indictment of Alfonso Portillo, page 2, paragraph 3.
 A telephone interview was conducted with a representative of the Westchester County Airport on June 14, 2013. The representative confirmed that private planes departing from Guatemala can easily arrive at the airport after first making arrangements with the United States Customs Department.
 According to the Indictment, these checks represented a donation by the Government of Taiwan for a program known as Bibliotecas Para La Paz (“Libraries for Peace”), a public project in Guatemala designed to purchase books for school libraries. See Indictment of Alfonso Portillo, page 2, paragraph 3.