          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




                                         -2-
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."

                                   -3-
          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.

                                 -4-
             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).

                                       -5-
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.


                                  -6-
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


                                     -7-
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




                                   -8-
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


                                -9-
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


                                   -10-
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


                                    -11-
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.

                                   -12-
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.

                               -13-
           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


                                  -14-
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).

                                    -15-
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




                                  -16-
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.

                                -17-
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.


                                  -18-
             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.




                                      -19-
