     Case: 16-50326   Document: 00513981521        Page: 1   Date Filed: 05/05/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                    No. 16-50326                        FILED
                                                                     May 5, 2017
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

             Plaintiff - Appellee

v.

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
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                                  No. 16-50326
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.
                                        I.
      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


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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


       1 Costello v. United States, 350 U.S. 359, 362 (1956) (“The grand jury is an English
institution, brought to this country by the early colonists and incorporated in the Constitution
by the Founders.”).
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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


       2 Two cases address whether it is permissible for a grand jury in the transferee district
to return a superseding indictment. State v. Alexander, 211 So. 2d 650 (La. 1968); Watkins
v. United States, 54 S.W. 819 (Ind. Terr. 1900). Both allowed that practice but in doing so
did not hold that a grand jury in the transferor district could not have amended the charges.
See Alexander, 211 So. 2d at 654–55; Watkins, 54 S.W. at 821. Even on the different question
it considered, Alexander drew a vigorous dissent. 211 So. 2d at 660 (Barham, J., dissenting).
And Watkins relied on a unique Indian Territory statute that made superseding indictments
akin to an entirely new charge as opposed to the traditional view that they do not displace
the original indictment. See 54 S.W. at 821.

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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”



       3The  outlier Kentucky decision has been distinguished by other courts on the ground
that it does not reflect common law principles because it involved a Kentucky venue transfer
statute providing that “a new indictment may be found, from time to time, by a grand jury of
the county to which the removal [wa]s made.” Tucker, 224 N.W. at 881 (quoting KENTUCKY
STATUTES § 1117 (Barbour & Carroll, eds. 1894)); Alexander, 211 So. 2d at 660 (Barham, J.,
dissenting).
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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
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(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).




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      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 Colorado could be tried on the superseding indictment. 4
                                          II.
      The trial in Louisiana federal court lasted four days. Colorado argued
that he was merely “feeling out” the undercover agents who purported to be
crooked friends of the federal judge. In this theory of the case, Colorado never
offered a bribe because he realized that his collaborators on the outside were
talking to the police. To support that defense, Colorado requested the following
jury instruction:
   I have instructed you that the crime of bribery is committed if a
   defendant corruptly offers or promises money to a public official with the
   intent to induce the public official to do or omit to do any act in violation
   of the public official’s lawful duty. I want to explain what it means to
   offer or promise money to a public official.

   An offer or promise is made when the offeror expresses to the public
   official both the ability and the desire to pay. Mere preparation to make
   an offer or promise, including preliminary discussions designed to feel
   out the public official’s willingness to accept a bribe, do not constitute an
   offer or promise to pay a bribe. Similarly, an agreement to engage in
   preliminary discussion designed to feel out a public official’s willingness
   to accept a bribe does not, without more, constitute conspiracy to commit
   bribery.
      The district court refused to provide the instruction, raising doubts about
whether the instruction accurately described current bribery law and whether


      4  Recognizing what we have said about the local nature of the grand jury, Colorado
argues that his motion to transfer venue waived any right he had to be indicted only by a
grand jury from the district where the alleged crime took place. But even if that motion
waived more than just his Sixth Amendment vicinage right for trial, the waiver would not
deprive the Austin grand jury of its authority to act. A waiver does not always have to be
accepted. To illustrate, defendants may waive their Fifth Amendment right to face a felony
charge only if the grand jury finds probable cause and proceed instead by information. But
a defendant desiring to proceed by information cannot prevent the grand jury from
investigating the crime and returning an indictment.
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it amounted to a directed verdict for the defense. The jury thus received only
the pattern instruction, which requires the government to prove (among other
things) that “the defendant directly or indirectly offered and/or promised
something of value” to the public official.
       Colorado asserts that his proposed instruction defining offer and promise
comes from United States v. Hernandez, 731 F.2d 1147 (5th Cir. 1984). In
Hernandez, the defendant attacked the sufficiency of the evidence to sustain
his conviction for bribery. Id. at 1148–49. Citing cases from other circuits, we
stated that an offer is complete when the offeror expresses an ability and a
desire to pay. Id. at 1149. That offer was not present because the evidence did
not establish that Hernandez expressed an ability or desire to pay a bribe;
instead, the evidence reflected that he simply engaged in preparation for a
bribery offense. Id. at 1150. 5
       Hernandez does not say that its discussion of “offer” must be included in
a jury charge. Nor has any case since; indeed, we have never cited Hernandez’s
discussion of “offer.” But Colorado thinks he was entitled to an instruction
including its language based on the principle that a court “abuses its discretion
in denying a requested instruction if (1) the requested instruction is a
substantively correct statement of the law; (2) the requested instruction is not
substantially covered in the charge given to the jury; and (3) the omission of
the instruction would seriously impair the defendant’s ability to present his
defense.” United States v. Dixon, 185 F.3d 393, 403 (5th Cir. 1999). The
government hammers away at another principle of our jury instruction cases:
that “a district court does not err by giving a charge that tracks this Circuit’s



       5 Unlike this case, Hernandez involved only a bribery charge, not a conspiracy to bribe.
The latter, of course, does not require a completed offense. In any event, we find that the
instruction with the Hernandez language was not required even for the substantive bribery
offense.
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pattern jury instructions and that is a correct statement of the law.” United
States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009) (citing United States v.
Turner, 960 F.2d 461, 464 (5th Cir. 1992)). The bribery instruction given to
Colorado’s jury tracks the pattern jury charge, see FIFTH CIRCUIT PATTERN
JURY INSTRUCTION (CRIMINAL) § 2.09A (2015), which we have approved, see
United States v. Franco, 632 F.3d 880, 885 (5th Cir. 2011).
      There is possible tension between these two principles we have
repeatedly quoted. What if the pattern charge correctly states the law, but a
party requests an additional instruction that is also an accurate description of
the law?
      Our recent reconciling of these principles in another bribery case is
instructive. United States v. Richardson, 676 F.3d 491, 506–07 (5th Cir. 2012).
Richardson wanted the jury charge to include a long definition of the word
“corruptly” that was supported by United States v. Haas, 583 F.2d 216 (5th Cir.
1978). Id. at 507. So as Colorado does, he was requesting a supplement that
found support in our caselaw.       But when framing the issue, we stated,
“[b]ecause the district court’s instruction tracked this circuit’s pattern jury
instruction, we need only determine whether the charge is a correct statement
of the law.” Id. (emphasis supplied). It was thus of no moment in Richardson
whether the defendant’s requested instruction was also accurate but more
specific; the district court did not abuse its discretion because Richardson could
not show that “the pattern jury instruction [was] an incorrect statement of the
law.” Id. at 508.
      The same is true here. Colorado identifies nothing incorrect about the
instruction that was given.     The terms “offer” and “promise” are not so
technical or inscrutable that a definition was necessary; the terms appear to
be within the common understanding of the jury such that no instruction on
the meaning of the terms was required. See United States v. Chenault, 844
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F.2d 1124, 1131 (5th Cir. 1988). Indeed, Hernandez is best read as voicing a
paraphrase of the word “offer,” not a limiting definition of the term. Contrast
United States v. Grissom, 645 F.2d 461, 469 (5th Cir. Unit A 1981) (reversing
conviction because instruction did not limit “intent to defraud” to fraud against
the government). If it were otherwise and Hernandez had given the word a
restricted legal meaning, one would expect us to have cited the case for that
point of law in the many years since it was issued. Had we constricted the
meaning of “offer,” Colorado could rightly argue that failing to define the word
would allow the jury, following the word’s ordinary meaning, to convict on facts
outside the statute’s prohibition. And when an instruction allows the jury to
convict on innocent facts, the instruction is incorrect.     See, e.g., United States
v. Nelson, 791 F.2d 336, 337–38 (5th Cir. 1986). Yet this is all hypothetical, for
we did not circumscribe the ordinary meaning of “offer” in Hernandez. In
Hernandez, the alleged offer—“they want to know if you can be bought, if you
will change your testimony”—did not express “an ability and a desire to pay,”
731 F.2d at 1150, or, in the words of the dictionary, did not “declare one’s
readiness   or   willingness”   to   pay    a   bribe,   WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY: UNABRIDGED 1566 (2002) (defining offer).
      Treating the district court’s use of the pattern charge as a safe harbor is
also consistent with a trial court’s “substantial latitude in framing jury
instructions.”   Richardson, 676 F.3d at 506–07.           And nothing prevented
Colorado from arguing to the jury that the bribe was only discussed in a
preliminary manner that did not amount to an actual offer. Indeed, that was
a focus of his closing argument.
                                      ***
      The judgment of the district court is AFFIRMED.




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