United States v. Quiles-Olivo ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-1864
UNITED STATES OF AMERICA,
Appellee,
v.
FRANKLIN QUILES-OLIVO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jorge E. Rivera-Ortíz for appellant.
Brian K. Kidd, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Thomas F. Klumper, Assistant United States Attorney, were on
brief for appellee.
June 29, 2012
TORRUELLA, Circuit Judge. Defendant-Appellant Franklin
Quiles-Olivo ("Quiles") appeals his conviction for depredation of
government property in violation of 18 U.S.C. § 1361 on two
grounds. He contends the district court abused its discretion when
it refused to grant his motion for change of venue and that it
deprived him of his Sixth Amendment right to a public trial when it
failed to investigate his mother's alleged exclusion from the
courtroom during jury selection. Finding no such abuse of
discretion or deprivation of constitutional rights on the district
court's part, we affirm.
I. Background
On January 12, 2010, Quiles visited the federal
courthouse located in Hato Rey, Puerto Rico to verify the status of
two civil cases he had previously filed pro se with the district
court. Quiles was disgruntled with how his cases -- by then denied
and dismissed -- had proceeded. Frustrated by his inability to
obtain legal counsel to represent him in those cases and upset at
what he believed had been violations of his civil and
constitutional rights, Quiles decided to bring a new form of action
before the court: himself.
Quiles wore a long-sleeved blue shirt. Hidden to the
public at the time of his arrival was the white lettering he had
written on the inside front-and-back of his shirt, "Desobediencia
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Civil."1 Quiles also brought with him a motion he drafted
expressing his discontent at the court's handling of his prior
cases. Quiles passed through security -- the wording still
invisible to the outside world -- and proceeded to the Clerk's
Office. He filed his motion and then walked into a side room on
the right side of the Clerk's Office lobby.
The side room was open to the public. From this room,
persons could check the status of cases and obtain copies of
records and legal documents from a window in the back of the room.
The room contained three cubicles, each equipped with a computer.
One of the three computers had a scanner attached to it for
attorney use only. The other two computers were open to the
public.
Quiles sat at one of the terminals; an attorney sat at
another. Two employees also were present, both standing behind the
window at the back of the room. Quiles reviewed the status of his
civil cases on the court's electronic system. He then sat in front
of the computer, apparently reflecting for several minutes on how
best to make known his discontent as to what he believed was an
abuse of his rights, fully convinced that the motion he had filed
that day was not a sufficient expression of dissatisfaction. He
paused. His decision then made, he acted swiftly.
1
As may be discerned from the Spanish words themselves,
"Desobediencia Civil" translates to "Civil Disobedience."
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Quiles turned his shirt inside-out, revealing the civil
disobedience words. He then struck the computer monitor and
grabbed the scanner. He smashed the scanner on the ground. In its
rapid trajectory to the ground, the scanner hit the computer
monitor, damaging both. Quiles picked the scanner up and, again,
threw it on the ground. His acts of defiance and destruction
completed, Quiles lay on the ground and placed his hands behind his
back. He knew his acts of protest were wrong and that consequences
awaited him.2
One of the two court employees present hit the panic
button located in the copying area. Several U.S. Marshals, court
security officers, and federal agents arrived soon thereafter and
arrested Quiles. The Clerk's Office subsequently replaced the
scanner at a cost of $2,322.85 and substituted a spare monitor for
the broken one.
The government charged Quiles with depredation of U.S.
property resulting in damages exceeding $1,000.00 in violation of
18 U.S.C. § 1361. Quiles pled not guilty. The court granted bail
subject to certain conditions; when Quiles failed to comply with
these requirements over the following month, the court revoked bail
and issued a warrant for Quiles's arrest, ordering him detained
until trial. The court set a trial date of May 18, 2010.
2
During cross-examination, Quiles confirmed that he knew at the
time he destroyed both the computer monitor and scanner that it was
wrong to do so and that he would be arrested for such acts.
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Quiles then took it upon himself to file a pro se motion,
written in Spanish, with the Court of Appeals moving for a change
of venue. On May 12, 2010, Quiles's assigned counsel filed an
emergency motion to continue the jury trial because he did not have
a copy of Quiles's pro se motion, nor was he aware of its actual
contents.3 Counsel also asserted that, assuming the pro se motion
had been filed, trial should be continued until the Court of
Appeals had issued a decision.
On May 17, 2010, the district court denied counsel's
motion for a continuance on the grounds that the pro se motion for
a change of venue had not been found. The next day, however,
Quiles's counsel filed an informative motion clarifying that the
reason the motion could not be found in the Court of Appeals
records was because it had been returned, having been filed in
Spanish and not the as-required English language of the court.4
Quiles's counsel advised the district court that a similar,
properly-filed and in-compliance motion was pending before the
Court of Appeals.
The case was called for trial that same day, May 18,
2010. Before the jury selection process began, the court addressed
3
It is not clear from the record when Quiles's counsel was
appointed or the circumstances surrounding such appointment.
4
First Circuit Local Rule 30.0(e) provides that "[t]he court will
not receive documents or cited opinions not in the English language
unless translations are furnished." 1st Cir. R. 30.0(e).
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several pending matters, including Quiles's oral requests for
change of venue and recusal of the judge; it denied them. Two days
later, following counsel's May 19 emergency motion to change venue
and request for reconsideration of the court's prior denial, the
court again denied Quiles's venue change demand.
The case proceeded to trial. After three days of
testimony and evidence from both parties, the jury rendered a
verdict, convicting Quiles of destruction of U.S. property for
damages greater than $1,000.00. On June 30, 2010, the district
court sentenced Quiles to time served. It also imposed a two year
supervised release term, a $100 Special Monetary Assessment, and
restitution in the amount of $2,328.19, representing the original
purchase cost of the scanner. The court held that Quiles's
monetary penalties could be paid during the term of his supervised
release.
On July 1, 2010, Quiles set his voice upon this court
and timely filed a notice of appeal.
II. Discussion
A. Change of Venue
It is a fundamental constitutional canon that criminal
defendants have a right to trial by an impartial jury. U.S. Const.
amend. VI; Skilling v. United States, 130 S. Ct. 2896, 2912-13
(2010). Moreover, "the government must prosecute an offense in a
district where the offense was committed." Fed. R. Crim. P. 18.
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This firm requirement, however, may be flexed where a defendant's
request for transfer proves warranted due to either of two factors
set forth in Fed. R. Crim. P. 21: (1) the court determines that a
defendant cannot receive a fair and impartial trial in the original
district due to excessive prejudice, Fed. R. Crim. P. 21(a), or (2)
the convenience of the parties, witnesses, victims, and the
interest of justice so dictates, Fed. R. Crim. P. 21(b). We review
a district court's denial of a motion for change of venue for abuse
of discretion. United States v. Misla-Aldarondo, 478 F.3d 52, 58
(1st Cir. 2007); see also United States v. Rodríguez-Cardona, 924
F.2d 1148, 1158 (1st Cir. 1991).
Quiles contends his transfer claim is "fundamentally
based" on Rule 21(b)'s "interest of justice" provision. But he
confusingly blends his Rule 21(b) arguments with references to Rule
21(a) and discussion of its prejudice prohibitions. Giving Quiles
the benefit of the doubt, we cover the waterfront and consider both
provisions. We first address whether Rule 21(a)'s specifications
serve as a solution to his venue quandary. In short: they do not.
Venue change on grounds of prejudice will be deemed
appropriate 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. See Skilling, 130 S.
Ct. at 2913 (noting "[t]he Constitution's place-of-trial
prescriptions . . . do not impede transfer of the proceeding to a
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different district . . . if extraordinary local prejudice will
prevent a fair trial"); United States v. Brandon, 17 F.3d 409, 441
(1st Cir. 1994) ("Change of venue is proper where the level of
prejudice against a defendant precludes a fair and impartial trial
because the community is saturated with inflammatory publicity
about the case."). This prejudicial fog clouding a trial's
fairness 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." Rodríguez-Cardona, 924 F.2d at 1158 (emphasis added);
see also Misla-Aldarondo, 478 F.3d at 58 (distinguishing between a
presumption of prejudice and actual prejudice). We address each
form of prejudice in turn.
Generally, "[a] presumption of prejudice is reserved for
those extreme cases where publicity is 'both extensive and
sensational in nature.'" Misla-Aldarondo, 478 F.3d at 58 (quoting
United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990)).
Stated differently, Rule 21(a)'s requirements tend to "almost
exclusively" apply "in 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 review of the record here reveals no ubiquitous "pretrial
publicity" or "inflamed passions" of such a nature that the
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district court's denial of change of venue may be deemed an abuse
of discretion. Id.For instance, there is no indication (nor does Quiles
point us to such evidence) that Quiles's altercation with the
computer equipment entered the local zeitgeist to such a magnified
or spectacular extent that it might have tainted the jury pool.
See id.; see also United States v. Angelus, 258 F. App'x 840, 844-
45 (6th Cir. 2007) (finding no abuse of discretion in district
court's denial of venue change where no showing that the limited
media coverage at issue created a prejudicial atmosphere towards
appellant's chances for a fair trial). Far from it, the district
judge, pre-jury selection, specifically noted the limited-to-no
media coverage on the case, stating, "I don't expect that this case
will be covered by the press. The press has not been here."
Moreover, the district judge, cognizant of publicity's potential
impact on a jury, instructed members against discussing the case
amongst others, or reviewing newspaper articles or listening or
viewing any radio or television broadcasts concerning the case.
In light of this record, we cannot say the district
court's denial of Quiles's venue change motion, at least on grounds
of presumptive prejudice, constituted an abuse of discretion, given
that the record is devoid of any suggestion -- let alone evidence
-- that if any such media coverage took place, it was inflammatory,
sensational, or otherwise capable of prejudicially enshrouding
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Quiles's chances of a fair trial, See Misla-Aldarondo, 478 F.3d at
58; Brandon, 17 F.3d at 441-42; United States v. McNeill, 728 F.2d
5, 9 (1st Cir. 1984).
We continue in our prejudice analysis and turn to actual
prejudice. Actual prejudice hinges on "whether the jurors seated
at trial demonstrated actual partiality that they were incapable of
setting aside." Angiulo, 897 F.2d at 1182. A guiding beacon in
this analysis is the trial judge, who is responsible for conducting
the voir dire and to whom we defer from our more distant appellate
position. See Brandon, 17 F.3d at 442 ("The trial court has broad
discretion in conducting voir dire."); cf. United States v. López-
López, 282 F.3d 1, 14 (1st Cir. 2002) (observing the trial judge's
"hands-on familiarity with the nuances of the case -- nuances which
may not survive transplantation into a cold appellate record")
(quoting United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.
1987)) (internal quotation marks omitted). This question-and-
answer process affords the trial judge a more intimate assessment
of the jurors, allowing him to "develop a contemporaneous
impression of the extent and intensity of community sentiment
regarding the defendant." McNeill, 728 F.2d at 9. Where the trial
judge "believed that he had impanelled [sic] a jury of twelve open-
minded, impartial persons," we will only "set aside his action [if]
juror prejudice is manifest." Id.; see also Angiulo, 897 F.2d at
1181-82. The task here falls to the defendant to show that the
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contagious seeds of partiality had taken root within the jury's
mind. See Murphy v. Florida, 421 U.S. 794, 800 (1975).
The evidence does not lead us to conclude that the
district court abused its discretion in denying venue change on
account of actual prejudice rearing its ugly head. To the
contrary, the record shows a careful investigation by the court
into jury bias. When denying Quiles's motion, the district judge
performed an extensive voir dire of the jury pool. Specifically,
the trial judge questioned potential jurors as to their knowledge
of Quiles, the government witnesses, and the case itself; no one
had any such knowledge or even familiarity with those persons or
the case. The judge expressly asked the pool whether any potential
jurors had any connection to the district court or the federal
government; those who did were dismissed. The judge additionally
asked whether the fact that the government was the claimed victim
in the case, or that the case concerned the issue of civil
disobedience, colored anyone's ability to be impartial; all
represented that it did not and that they believed themselves
capable of rendering a fair verdict. Only one juror asked to be
removed, and it was solely on the grounds of her age and concern
with driving at night. And none of the reviewed juror responses
shows, either expressly or implicitly, an admission of partiality
or bias on the part of any of the impaneled members, nor does the
nature of their responses or the circumstances surrounding their
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answers raise any red flags as to the candor of their
affirmations.5 See McNeill, 728 F.2d at 10.
Without so much as a whisper of animus evidence against
Quiles from the record, we cannot say that the district court erred
in its denial of appellant's motion for change of venue. See id.However, Quiles has one final arrow in his quiver. Resting upon
United States v. Wright, 603 F. Supp. 2d 506 (E.D.N.Y. 2009), he
asks us to view the fact that the crime for which he was charged
occurred in the same courthouse in which his trial was to ensue as
the prejudicial tipping point in his favor. We have two responses.
First, the factors considered by the district judges in
Wright and the underlying case are both distinguishable and support
the judges' respective differing-yet-discretionary conclusions as
to venue. For instance, in Wright, the district judge reasonably
5
The court also provided several cautionary instructions to the
jury throughout trial, including the following in its final charge
to the jury:
Cautionary instructions as to testimony of government
employees. The fact that a witness is employed by the
Government or the U.S. Marshals does not by itself
entitle such witnesses' testimony to be given more weight
or credence than that of any other witness. You are to
judge the credibility of all witnesses fairly and
reasonably, and you are to consider any interest
whatsoever that each of them may have in the outcome of
the case in determining the weight to be given to their
testimony.
Such instructions further color our conclusion that the district
court here acted properly and took steps to ensure that the jury
was not actually biased against Quiles.
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determined that change of venue was warranted because in addition
to the crime occurring in the same courthouse as the trial, the
victim was a court employee (specifically, a federal prosecutor
attacked during a sentencing hearing, with potential witnesses
being the judge, court reporter, or marshal); there was a high
likelihood that all court personnel involved in the trial knew or
were familiar with the victim and/or the testifying witnesses; the
government recused itself from the case;6 and the victim had the
right to appear throughout the trial and be "reasonably heard."
Wright, 603 F. Supp. 2d at 507, 509. Here, the district judge
reasonably reached a different outcome based on distinct facts,
namely, that the case solely concerned the depredation of property
at the Clerk's Office; the government did not recuse itself from
the case; the judge did not witness the events; and the only
connection between the witnesses and court personnel to the crime
was the fact that they were employees in the same courthouse in
which the crime at issue transpired. We cannot say the district
judge's conclusion here, both judiciously reached and based on a
notably distinct record from that of Wright, constituted an abuse
of discretion.
6
Specifically, the Office of the United States Attorney for the
Eastern District of New York –- the victim's place of prosecutorial
employment -- recused itself from the case; the United States
Attorney for the Southern District of New York represented the
government in the underlying dispute. See Wright, 603 F. Supp. 2d
at 507 n.1.
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Second, in our prior decision in Walker, we rejected an
appellant's invitation to hold that transfer was required solely
because a victim of the appellant's crime was a court employee
located in the same district and working in the same courthouse in
which appellant was to be tried. Walker, 665 F.3d at 223.
Extending this logic one step further, we similarly decline to hold
that because an appellant's crime occurred in the same district and
at the same courthouse in which his trial is to be held, an
automatic presumption of unfairness is triggered, effectively
foreclosing any opportunity for a fair trial. See, e.g., id. at
223; Angelus, 258 F. App'x at 842, 844. Left with no "demonstrable
reality" of either actual or presumptive prejudice, United States
ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956), we proceed to
Quiles's "interest of justice" arguments under 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
inevitably will vary depending on the facts of a given case. See
Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240, 243-44 (1964)
(listing such factors as the location of a defendant and potential
witnesses, contested events, relevant documents, and counsel;
expense to the parties; overall accessibility to trial location; a
given district's docket condition; potential disruption of
defendant's business if case is not transferred; and any other
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special factors in play); see also Cianbro Corp. v. Curran-Lavoie,
Inc., 814 F.2d 7, 11 (1st Cir. 1987). Quiles contends the district
court abused its discretion when it refused to transfer his case
under Rule 21(b)'s "interest of justice" provision. Quiles,
however, offers no arguments asserting that a venue transfer would
have convenienced the parties, witnesses, counsel, or the like.
Given that Rule 21(b) lists both "convenience" and "interest of
justice" conjunctively,7 we pause briefly to assess whether there
is any merit to a transfer claim on grounds of convenience. See
Walker, 665 F.3d at 224; see also United States v. Luna, 436 F.3d
312, 317 (1st Cir. 2006).
There is not. The main witnesses to the case were
located in Puerto Rico; there is no showing that Puerto Rico was
not a reasonably convenient forum for the parties or their
respective counsel; and, being the situs of the underlying events,
any relevant evidence or documents presumably would be located in
Puerto Rico.
Furthermore, Quiles has failed to establish that a fair
trial was not possible for him in Puerto Rico. As previously
discussed, the court's careful probing for partiality during the
voir dire process and repeated cautionary instructions fall far
7
Specifically, Rule 21(b) states: "Upon the defendant's motion,
the court may transfer the proceeding, or one or more counts,
against that defendant to another district for the convenience of
the parties, any victim, and the witnesses, and in the interest of
justice." Fed. R. Crim. P. 21(b) (emphasis added).
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short of showing juror bias. As to court personnel and the judge,
Quiles's argument remains, at heart, a too-close-for-comfort
proposition. Specifically, he contends that all government
witnesses (with the exception of a testifying local lawyer) in his
case are courthouse employees who would inevitably be entitled to
greater deference at trial due to their status as "members of the
district court family." Moreover, all court staff, including the
judge, are too connected -- by virtue of their physical job
placements -- to the scene of the allegations, making transfer "in
the interest of justice" warranted.
We do not agree. The district judge, when denying
Quiles's motion, expressly noted that the judge "did not observe
the facts that occurred at the Clerk's Office," i.e., he was not an
actual witness to the underlying events at issue. The district
judge further observed that he played no role in evaluating the
property post-incident; had not in fact ever seen the damaged
property; had not been anywhere near the premises in which the two
computers were located the day of the crime; and had not requested
the filing of a criminal indictment in the case. He also stated he
had no knowledge the incident had even occurred until Quiles came
before the court requesting appointment of new counsel.
Finally, nothing in the record shows any connection
between the district judge and the government witnesses, either
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inside or outside the courtroom.8 And nothing in the record
reveals any bias or partiality on the part of the judge, court
personnel, or witnesses during the trial itself. Cf. Wright, 603
F. Supp. 2d at 508 (rejecting contention that court personnel --
some of whom would serve as trial witnesses -- employed at same
courthouse in which crime transpired and trial was to occur would,
by nature of their courthouse employment, treat defendant's case
differently than any other case).
That will do. Our deferential review of the record does
not show that the district court erred in denying Quiles's transfer
of venue request, nor has Quiles presented us with evidence
suggesting to the contrary; indeed, he has presented us with
nothing more than bald speculation that the judge, related court
personnel, and jury members were biased such that an impartial
trial was impossible in his case. We hold that the district court
did not abuse its discretion when it declined to remove the trial
from the U.S. District Court for the District of Puerto Rico.
B. Mother's Exclusion From Courtroom
Before delving into the merits of Quiles's next argument,
we pause to review those facts relevant to his allegation that his
8
Of the three government witnesses who worked at the court, one
was involved in the court's equipment and supply office, another
worked in the in-take office at the Clerk's Office as a cashier,
and the third was a U.S. Marshal. The record shows no other
relation amongst the witnesses and the judge, aside from their
common place of employment.
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Sixth Amendment right to a public trial was violated by virtue of
his mother's alleged exclusion from the courtroom during jury
selection.
Quiles's case was called for trial on May 18, 2010. On
May 20, 2010, the court swore in a jury and asked whether the
parties objected to its providing initial jury instructions. The
government responded in the negative. Quiles had a different
response, evidenced in the following dialogue between the court and
Quiles's counsel:
MR. GONZALEZ: No, Your Honor. His mother is outside. Can she
walk in[?]
THE COURT: She could have walked in here a long time ago.
MR. GONZALEZ: She was instructed while they were selecting the
jury she couldn't be here. Thank you.
THE COURT: Please bring that to my attention because under
my rules anybody from the family can be here
throughout the proceeding even if I have to put a
chair there in the middle of the hallway. Okay.
All right?
MR. GONZALEZ: Thank you, sir.
Quiles asserts that the district court's failure to sua
sponte investigate his mother's exclusion from the courtroom during
the jury selection process constituted a structural error requiring
vacatur of his conviction and remand for a new trial. The
government retorts that Quiles's perfunctorily raised Sixth
Amendment argument, never raised below and with no objection noted
in the record, should be deemed waived.
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Here, the most detail we have in the sparse record as to
this claim is the colloquy between Quiles's counsel and the court
(referenced above), simply stating that Quiles's mother wished to
enter the courtroom but had been instructed not to do so; the
court's reply that she always had been free to so enter and that
any such issues should be brought to the court's immediate
attention; and defense counsel's thanking of the judge. No more,
no less. We agree with the government that the brief colloquy
between the court and Quiles's counsel suggests an affirmative
waiver of any exclusion claim that might have been asserted. See
e.g., Cortés-Rivera v. Dep't of Corrs. & Rehab. of P.R., 626 F.3d
21, 26 (1st Cir. 2010). Quiles may, of course, attempt to pursue
such claims as may be available to him under 28 U.S.C. § 2255.
See, e.g., Bucci v. United States, 662 F.3d 18 (1st Cir. 2011).
III. Conclusion
For the reasons stated, we affirm the decision of the
district court.
Affirmed.
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