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United States v. Cessa

United States Court of Appeals, Fifth Circuit

May 5, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
FRANCISCO ANTONIO COLORADO CESSA, also known as Francisco Colorado Cessa, also known as Pancho, Defendant-Appellant

         Appeal from the United States District Court for the Western District of Texas

          Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

          GREGG COSTA, Circuit Judge

         After a jury convicted him of laundering money for the Los Zetas cartel, Francisco Antonio Colorado Cessa was facing sentencing before a federal judge in Austin. Before that hearing, the FBI received a tip about a plan to bribe the judge in exchange for a reduced sentence. A sting operation followed that resulted in bribery charges being filed in Austin federal court against Colorado, his son, and a business partner.

         The defendants successfully obtained a transfer of the bribery case to federal court in Louisiana as a result of, among other things, publicity in Austin about the earlier money laundering trial and concerns about trying the case in the courthouse where the federal judge who was the subject of the attempted bribe presides. Not long after that transfer, the government presented a superseding indictment (it added the mens rea of corruptly to the allegations) to the grand jury in Austin that first returned the bribery charges. In the trial that followed in the Western District of Louisiana, the jury found Colorado guilty of both conspiring to bribe and offering a bribe to the judge presiding over his money laundering case.

         We must decide whether a superseding indictment is lawful when returned by a grand jury located in the venue where the alleged crime occurred but from which the case has been transferred. We also consider whether it was reversible error not to include definitions of "offer" and "promise" that Colorado wanted in the jury charge on bribery.


         No federal court has considered a challenge to the jurisdiction of a grand jury located in the district where the alleged crime occurred to return a superseding indictment after the case has been transferred to another venue because of prejudice. Fed. R. Crim. P. 21(a). That is the procedure that was followed in an Eleventh Circuit case, but the defendant argued only that the pretrial publicity that warranted trial in a different venue also tainted the grand jury. See United States v. York, 428 F.3d 1325, 1331 (11th Cir. 2005) (involving superseding indictment issued in the Middle District of Georgia after case had been transferred to Southern District of Georgia due to pretrial publicity). York rejected that argument in part because of "the entirely different functions of the grand jury vis-à-vis the trial jury and the different types of evidentiary restrictions before each body." Id. at 1332. Although York did not consider the jurisdictional challenge Colorado asserts, it is notable that neither the courts (trial or appellate) nor York's lawyer saw a procedural rule that would prevent a grand jury from returning superseding charges involving local crimes once a Rule 21(a) transfer occurred.

         The Constitution does not impose such a limit. The Fifth Amendment says nothing about venue, providing only that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. amend. V. But the Sixth Amendment requires that trial be decided by a "jury of the State and district wherein the crime shall have been committed." Id. amend. VI; see also art. III, § 2 (requiring criminal trials in the state where the crime occurred). As a practical matter if nothing more, in tandem these Amendments mean that a grand jury should return an indictment only in a district where venue lies. Otherwise, the resulting indictment can be dismissed for lack of trial venue. See, e.g., United States v. Cabrales, 524 U.S. 1, 10 (1998). Grand juries' investigating crimes located within their district of empanelment is also consistent with the grand jury's roots as a local institution. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 Fla. St. U. L. Rev. 1, 6-11 (1996). Without having to decide whether the Constitution limits a grand jury to indicting only crimes occurring in the district where it is convened, we can easily say that constitutional principles are not offended by the Western District of Texas grand jury continuing to charge crimes allegedly taking place in Austin.

         The common law practice, antecedent to the Fifth Amendment guarantee, [1] allowed only the grand jury of the county where the crime was committed to indict, though statutes could authorize grand juries in other counties to do so as well. 4 William Blackstone, Commentaries on the Laws of England *300 ("The grand jury are sworn to enquire, only for the body of the county, pro corpore comitatus; and therefore they cannot regularly enquire of a fact done out of that county for which they are sworn, unless particularly enabled by act of parliament."). Ancient English law was so firm in this rule that when a person was wounded in one county but died in another, "the offender was at common law indictable in neither, because no complete act of felony was done in any one of them." Id. This gap was fixed by statute, id., just as American jurisdictions have overridden the common law rule when thought necessary, an example being a North Carolina statute allowing lynching to be charged by a grand jury in a county adjacent to the county where the crime occurred. See State v. Lewis, 55 S.E. 600, 603-04 ( N.C. 1906).

         This strong tradition of grand juries charging only local crimes typically has not been disrupted when a superseding indictment is returned after transfer to a different venue of the case generated by the original indictment. State cases of old and recent vintage have involved the local grand jury retaining its power post-transfer and the great weight of authority supports that practice.[2] State v. Nichols, 200 S.W.3d 115, 122 (Mo.Ct.App. 2006); Pantazes v. State, 831 A.2d 432, 441 (Md. 2003); Smith v. State, 355 A.2d 527, 531 (Md. Ct. Spec. App. 1976); State v. Tucker, 224 N.W. 878, 881 (N.D. 1929) ("A statute authorizing a change of venue or a change of place of trial does not in itself preclude a second indictment in the county of original jurisdiction after a change has been effected."); Stovall v. State, 260 S.W. 177, 178 (Tex. Crim. App. 1924) (holding that a venue transfer does not deprive "the power in the court of original jurisdiction to return a subsequent indictment for the same offense, but denies the right in such court to try accused"); Ex parte Lancaster, 89 So. 721, 725 (Ala. 1921) ("[Transfer] deprives [the transferor] county, where the offense was committed, of the right to try the defendant for this offense; but it does not deprive it of the jurisdictional right to indict for the offense."); Johnston v. State, 45 S.E. 381 (Ga. 1903); State v. Patterson, 73 Mo. 695, 700 (Mo. 1881), overruled on other grounds by State v. Roy, 83 Mo. 268 (Mo. 1884); but see Smith v. Commonwealth, 25 S.W. 106, 107 (Ky. 1894) (holding that transferor county loses "all jurisdiction over the subject-matter of the indictment, " including the ability to bring superseding indictments).[3] As the earliest of these cases explains, a transfer of the case does not displace the authority of the local grand jury because "jurisdiction over the cause is one thing; the power and duty to find a new bill of indictment upon whose charges that cause shall be tried, is another and totally distinct and different thing." Patterson, 73 Mo. at 700 (citing State v. Tisdale, 2 Dev. & Bat. 159 ( N.C. 1836)). Many of these state cases do not even doubt the authority of the grand jury in the original venue to amend the charges; more often the contested question is whether the superseding indictment is automatically subject to the transfer order. See Smith, 355 A.2d at 531 (concluding that the "better rule" is that subsequent indictments for the same offenses should be transferred to the transferee court "without the necessity of complying with the provisions" of Maryland's change of venue rule); Lancaster, 89 So. at 725; Johnston, 45 S.E. at 382. On that latter question, the prevailing view is that of the Supreme Court of Alabama, which held that, after a change of venue, a grand jury in the county where the offense was committed retains sole jurisdiction to issue subsequent indictments but that those indictments must then be sent straightaway to the transferee county for trial. Lancaster, 89 So. at 725. That is what happened here as the superseding indictment returned by the Austin federal grand jury was docketed and tried in the case pending in Louisiana federal court.

         Without any constitutional or common law limits on the authority of the Austin federal grand jury to supersede its charges even after the case had been transferred to a different district, Colorado relies on a Federal Rule of Criminal Procedure. Rule 21(c) provides that "[w]hen the court orders a transfer . . . . [t]he prosecution will then continue in the transferee district, " which a treatise explains to mean that "transfer is not for trial only. The entire proceeding . . . [is] to be disposed of in the transferee court." 2 Charles Alan Wright & Peter J. Henning, Fed. Prac. & Proc. Crim. § 347 (4th ed. 2009). It turns out that is not what happened here. After Colorado's trial, his case was sent back to Austin for sentencing so that the judgment being appealed is one issued from the Western District of Texas. But that does not undermine Colorado's argument that when the Austin grand jury superseded his charges, Rule 21 had divested it of jurisdiction.

         His bigger problem is that the Rule does not go that far. It says "the prosecution" is sent to another district. Even with that meaning the entire criminal matter is transferred (not just trials but pretrial hearings, sentencing, etc.), we see no authority saying that deprives the grand jury in the original jurisdiction of the power to continue investigating and charging a local crime. The commentary to the Federal Rule of Criminal Procedure addressing venue (Rule 18) indicates a "prosecution" does not encompass grand jury proceedings. It cites Congress's definition of "prosecutions" in an earlier venue statute (28 U.S.C. § 114) that required "prosecutions" to take place not just in the district but the division where the crime occurred: "the word 'prosecutions, ' as used in this statute, does not include the finding and returning of an indictment." Fed. R. Crim. P. 18 advisory committee's note to the 1944 adoption; see also Black's Law Dictionary 1341 ("prosecution" means a "criminal proceeding in which an accused person is tried") (9th ed. 2004). The idea seems to be the same one animating the state court decisions cited above: a "prosecution" and the grand jury are different proceedings. Also reflective of this distinction is that when a dispute arises with a grand jury that is considering a superseding indictment, the matter is treated as a new miscellaneous filing in federal court and not part of the criminal case considering the original indictment. See, e.g., In re Grand Jury Proceedings, 201 F.Supp.2d 5, 12 n.4. (D.D.C. 1999); In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F.Supp. 1059, 1061 (S.D.N.Y. 1990). The broad reading Colorado gives Rule 21 is thus in tension with the independent authority of the grand jury. United States v. Calandra, 414 U.S. 338, 343 (1974) ("No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials."); cf. York, 428 F.3d at 1332 (identifying the distinct role of the grand jury as a reason why publicity adverse to a defendant is not a basis for dismissing an indictment).

         Seeing no authority clearly providing that a venue transfer displaces the authority of a federal grand jury to investigate and charge local crimes, we conclude that ...

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