Law professor: ‘Tactical’ advantage argument not enough for venue change

McALLEN — When the criminal complaint filed against a local state district judge was unsealed weeks ago, many were surprised to find the case was filed in Houston — 350 miles away from where the alleged acts took place.

Last week, an attorney for District Judge Rodolfo “Rudy” Delgado, who currently faces federal bribery charges, filed a motion for a venue change, claiming the government was attempting to gain an advantage by filing the case in Houston.

“Defendant argues that the government intentionally filed the criminal complaint in Houston in an attempt to gain a tactical advantage over defendant’s rights to defend himself,” the court record states.

But according to Gerald S. Reamey, a law professor at St. Mary’s University School of Law, an argument that the government is trying to gain an advantage by holding the case in Houston, although probably true, would not be reason enough for the court to grant the venue change.

“The government isn’t necessarily doing anything improper under the law,” Reamey said. “You could accuse the government of being overzealous of trying to gain an unfair advantage in some way, but it’s not an advantage that’s not admitted by law. The law allows in many cases, a prosecution to go forward in any one of several different locations and the government gets to choose at least where its filed initially.”

Reamey said arguing for a venue change is a tough standard to prove to the court.

“In order to obtain a change of venue, the defendant is going to have to show in effect that he or she couldn’t get a fair trial wherever the government has filed the case,” the professor said.

“Defendants for the most part are not able to get those cases moved to a more favorable venue for the trial.”

Angela Dodge, spokeswoman for the U.S. Attorney’s Office Southern District of Texas, said the decision on the location for federal cases is left up to the prosecution team.

Prosecutors may choose any venue within the Southern District of Texas, which encompasses federal courthouses from Houston to Brownsville.

Carlos A. Garcia, a board-certified attorney in criminal law, said he believes it’s telling that prosecutors filed the case away from the Rio Grande Valley.

“If the government was so confident in the charges (they) have, (they) would have tried him (in McAllen),” Garcia said.

Citing the criminal complaint, he said the venue is interesting since the government alleges Delgado took the bribes in the Valley.

“Every allegation took place here,” Garcia said. “It makes you wonder why it’s being tried up (in Houston).”

But Reamey said that although it is what typically happens — it isn’t required that prosecutors file where the allegations took place.

“You could, for example, have a prosecutor decide that a particular federal prosecutor is particularly good at the kind of case you’re going to be trying, and that prosecutor is located in another office, and so they might want to file the case in another office,” the professor said.

“Sometimes it’s done because the bulk of the evidence against the defendant is in a different location, even through the crime was done far away from there.”

According to the motion filed last week, Delgado’s attorney, Adolfo “Al” Alvarez, makes the argument that because the government alleges the offenses took place in Hidalgo County, the case should be held in McAllen.

“Defendant was arrested pursuant to a criminal complaint filed by the government before a U.S. magistrate in the Houston division of the Southern District of Texas,” the filing states. “Yet all the acts alleged in the complaint were committed in the McAllen division of the Southern District of Texas. All the parties referenced in the affidavit used to justify finding probable cause to issue the arrest warrant reside within the McAllen division of the Southern District of Texas.”

Federal prosecutors allege in the complaint that Delgado accepted bribes from at least one attorney — dubbed CHS, or confidential human source — in exchange for favorable consideration for his clients in Delgado’s court. This allegedly began in November 2016 until about late January 2018.

Garcia, who has more than 12 years of experience trying federal cases, said he wasn’t surprised by the filing and that any defense attorney would argue to keep the case in McAllen, where Delgado would be tried by his “peers.”

The Mission-based attorney said this is what’s known as “forum shopping,” a tactic he said prosecutors employ to “tip the scale” in their favor during trials.

Garcia points to state Sen. Carlos Uresti’s federal case as an example of a case held in the location where the allegations were made.

But federal prosecutors moving cases from the Valley to other locations within the southern district is not new, or even out of the ordinary. Former Sheriff Brig Marmolejo’s 1994 bribery trial was held in Laredo, but the 2014 money laundering trial of former Sheriff Lupe Treviño was kept in McAllen.

Garcia said Delgado, who is currently running unopposed in the March primary election as the Democratic candidate in the Place 4 seat on the 13th Court of Appeals, might be potentially dealing with a more conservative jury pool.

“A jury in Houston is going to be a more conservative jury than in the Valley,” Garcia said before noting that Delgado is a lifelong Democrat. “When you look at the city of Houston … (it’s a) Republican stronghold. Now, you compare that jury pool to Hidalgo County or Starr County. Any prosecutor worth any two dimes is going to want his case up there.”

Reamey said it’s likely prosecutors saw it as a disadvantage to hold the case in McAllen — where there’s more of a chance there would be jurors sympathetic to Delgado.

“If I (as a prosecutor) move this case to somewhere like Houston, there would be very little chance that anyone would have heard of this particular person, or this particular case, which I assume has been covered very extensively in the press in the Valley, throughout the whole Valley, so if you move it to Houston, this is sort of a non-event for people in Houston,” Reamey said. “They’re not that focused on this, and probably not aware of it, but the government might consider that highly advantageous because they now can select from a jury of people who will not have a good opinion. In fact, they won’t have any opinion. They’ll be more neutral.”

Reamey, who has been a law professor at St. Mary’s for more than 35 years, said that’s why an argument that the government is trying to gain an advantage would not be enough to convince the court to grant the motion.

“They’re trying to put the defendant at a disadvantage. Trying to make it inconvenient, trying to make it expensive for the defendant and that is done in part in the hopes that the defendant might decide that it’s not really a good idea to go forward and defend this case with a full-blown trial,” Reamey said. “But maybe a plea offer from the government starts to look more attractive because this is going to be so expensive and so inconvenient, that you really feel that you’re (at) such a disadvantage you’re not likely to do better if you go to trial.”

Delgado, who was arrested Feb. 2 and made his initial appearance on Feb. 5, is expected to be indicted on the bribery charge sometime in early March.

A decision on whether or not to grant a hearing on Delgado’s motion for a venue change has not been entered by the court.

If convicted, Delgado faces up to 10 years in federal prison.