McALLEN — For the second time since his indictment on bribery charges nearly a year ago, an embattled former district judge is requesting that his federal trial be relocated to McAllen, court records show.
On Tuesday, Rodolfo “Rudy” Delgado filed a 10-page motion for reconsideration asking that the court reconsider its October 2018 decision to deny his request for a venue change. Delgado sought then to hold his trial in McAllen instead of Houston, where jury selection is scheduled for Feb. 25, records show.
In the motion, Delgado’s attorney, Michael W. McCrum, lists several reasons for the request, including a newly proposed policy regarding the very issue at hand for his client — the rules for where the prosecution and trial will take place.
The U.S. District Court for the Southern District of Texas is currently soliciting public comments on the proposed criminal rule, titled “Criminal Local Rule 18 – Place of Trial Within The District,” with submissions due on Feb. 15, according to the court’s website.
McCrum asks the court in the motion to reconsider a venue change based on the rule.
“… The proposed rule would expressly permit an intra-district transfer if (a) the judge finds that the case was not filed in the proper division, or (b) the transfer to a different division would be in the interests of justice, based on the convenience of the defendant and the witnesses and on the prompt administration of justice,” McCrum argued in the filing. “Notably, the prosecution’s unilateral discretionary choice to seek indictment in a particular division is NOT listed as a factor in the court’s decision. The phrase ‘prompt administration of justice’ has been typically interpreted in terms of the timeliness of trial.”
McCrum also argued that government prosecutors’ only reason for choosing Houston over McAllen for the trial venue was due to a “perceived fear of jurors’ bias in McAllen,” but did not provide to the court evidence supporting that premise, according to the document.
In a 27-page response to Delgado’s original request for venue change in August, the government cited Delgado’s high profile and the media attention his case has received as some of the reasons why holding the trial in Houston would be best, arguing that his status in McAllen would make picking a jury for his trial “impossible.”
The second reason cited by McCrum, an argument used in his first motion for venue change filed in August 2018, goes to the allegations against Delgado, which include three distinct charges of bribery, three Travel Act violations, and a charge of obstruction of justice — all allegedly took place within the McAllen division of the Southern District of Texas.
“For this reason alone, defendant submits that the filing of the instant case in Houston, albeit a technically legal discretionary act on the part of the government, was not a filing in the ‘proper division,’” McCrum stated in the motion. “The revision of this court’s local rules makes evident that courts within the Southern District need not feel constrained by the government’s unilateral choices of forum.”
Finally, McCrum, again repurposing an argument from his filing in August 2018, said the court should consider the hardship imposed on his client, his witnesses and family if the trial is held in Houston.
To support this argument, he included five sworn affidavits from Delgado’s older siblings, who all stated their respective medical issues, which would prohibit them from traveling for the trial.
Delgado’s oldest brother, Roberto Delgado, an 80-year-old retired school teacher from Edinburg, said in his affidavit that he and his wife struggle with medical ailments that would preclude them from traveling based on doctor’s orders.
“I love my brother deeply and want to be with him in this ordeal he is facing, which, if convicted, would result in imprisonment for a very long time,” Roberto Delgado states in the affidavit. “If the trial is held in Houston, given my health and my wife’s health, our doctors will not allow us to travel, therefore it will be impossible for us to attend and show our support.”
Based on these reasons, McCrum asked the court to reconsider the venue change for the purposes of the trial.
“Defendant urges this court to reconsider its ruling. Although the proposed change of local rules is not yet in effect, there is little doubt that it will be by the time of trial,” the motion stated. “It is now evident that this court has the full authority of local rules to order transfer of the instant case to the McAllen division.”
The government is expected to give a response to the new filing.
Delgado is scheduled to begin trial in Houston on Feb. 25, pending any changes or rulings from the court.