United States v. Ayala

64 F. Supp. 3d 446, 2014 WL 6971414
CourtDistrict Court, E.D. New York
DecidedDecember 10, 2014
DocketNos. 12-CR-63 (JFB), 12-CR-317 (JFB)
StatusPublished
Cited by1 cases

This text of 64 F. Supp. 3d 446 (United States v. Ayala) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ayala, 64 F. Supp. 3d 446, 2014 WL 6971414 (E.D.N.Y. 2014).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

Jonathan Ayala (“Ayala”) and Angel Vasquez (“Vasquez”) are charged with racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, and other related offenses, as alleged members of the street gang La Mara Sal-vatrucha, also known as MS-13 (“MS-13”). Edwin Hernandez (“Hernandez”) has been charged with two counts of attempted murder in aid of racketeering, as well as related offenses, also as an alleged member of MS-13. The trial of these defendants (collectively, the “Trial Group II defendants”) is scheduled to commence on January 20, 2015.1

On July 17, 2014, Ayala filed the present motion for a change of venue pursuant to Federal Rule of Criminal Procedure 21(a), contending that the negative media coverage of MS-13 has pervaded the communities in Nassau and Suffolk Counties to such an extent that he cannot obtain a fair trial here. According to Ayala’s counsel-, “[cjounsel for the remaining Trial Group II defendants join in this motion.” (Gross-man Deck ¶7.) The government filed its opposition to the motion on August 14, 2014. The Court has fully considered the submissions of the ; parties and, for the reasons discussed infra, denies the motion.

I. Factual Background

In support of his motion, Ayala has submitted fourteen exhibits of press releases and news articles concerning MS-13, and has also cited a 2011 radio segment about MS-13 on Long Island.

Many of the exhibits are news articles published from 2011 to 2014 in Newsday, the TimesLedger, and the Conservative Crusader website summarizing the substance of indictments, guilty pleas, trial testimony, convictions, and sentencing hearings of accused MS-13 members other than the Trial Group II defendants. (See Exs. 1, 3-9, 13.) Only one news article, appearing in Newsday on September 21, 2012, mentions Hernandez — specifically, that article lists Hernandez’s name as one of five defendants added to an indictment. (See Ex. 4.) Three more exhibits are a series of news articles focusing on the addition of Juan Elias Garcia to the FBI’s “Ten Most Wanted” list, Garcia’s arrest in Nicaragua, and his subsequent arraignment in this Court. (See Exs. 11-13.) All of these articles are mostly neutral reports of the criminal proceedings of individuals other than the Trial Group II defendants. However, Ayala objects to several quotations about MS-13 attributed to United States Attorney Loretta E. Lynch. In particular, these articles quote U.S. Attorney Lynch as stating that “members of the MS-13 street gang have terrorized communities across Long Island” (Ex. 4), referencing “the heartless nature of this criminal enterprise known as MS-13” (Ex. 6) and “MS-13’s dedication to violence” (Ex. [449]*4497), and describing MS-13 as a “killing machine” (Ex. 8) and an “international killing machine” (Exs. 11-12).

Two of the exhibits are FBI press releases announcing the guilty pleas of two MS-13 members other than the Trial Group II defendants. (See Exs. 2, 10.) Ayala objects to several statements made by U.S. Attorney Lynch and other government agents. In the first, dated June 15; 2011, U.S. Attorney Lynch referred to the crimes as “senseless gang violence.” (Ex. 2.) In the second, dated January 14, 2014, U.S. Attorney Lynch referred to the “violent lifestyle” of MS-13 members, and FBI Assistant Director George Venizelos promised to “dismantle MS-13.” (Ex. 10.)

Finally, the radio segment and one Newsday article describe MS-13 on Long Island without reference to a particular criminal ease. The radio segment, which aired on WNYC on December 20, 2011, profiled MS-13’s presence on Long Island and referred to MS-13 as “the baddest gang on Long Island” and the “most dangerous gang in the U.S.,” which is “notorious for brutal slayings.” (See Authorities Make Strides Against MS-13, Long Island’s ‘Baddest’ Gang, WNYC (Dec. 20, 2011), http://www.wnye.org/story/176541-mara-salvatrucha/.) The Newsday article features gang violence by “the Crips, Bloods, and MS-13” on Long Island, and reports that “federal officials” have identified MS-13 as “a national security threat.” (Ex. 14.)

II. Legal Standard

A. The Constitutional Standard

“The Sixth Amendment secures to criminal defendants the right to a trial by an impartial jury.” Skilling v. United States, 561 U.S. 358, 377, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); see U.S. Const. amend. VI. Although the Constitution provides that criminal trials shall be held in the state and district where the crimes were committed, see U.S. Const, art. Ill, § 2, cl. 3 & amend. VI, “[t]he Constitution’s place-of-trial prescriptions ... do not impedé transfer of the proceeding to a different district at the defendant’s request if extraordinary local prejudice will prevent a fair trial—a ‘basic requirement of due process.’ ” Skilling, 561 U.S. at 378, 130 S.Ct. 2896 (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)).

Where a defendant raises a constitutional challenge to the venue of his trial before jury selection, he “must make a showing of presumed prejudice, arising when ‘prejudicial publicity so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community.’ ” United States v. Volpe, 42 F.Supp.2d 204, 216 (E.D.N.Y.1999) (quoting Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980)). For instance, in Rideau v. Louisiana, the defendant’s taped confession to murder, kidnapping, and armed robbery was broadcast three times to audiences of 24,000 to 53,000 people. 373 U.S. 723, 724-25, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). The entire parish in which the defendant was tried contained approximately 150,000 people. Id. at 724, 83 S.Ct. 1417. In these circumstances, the Supreme Court held that the defendant’s motion for change of venue should have been granted even before jury selection because “[a]ny subsequent court proceedings in a community so pervasively exposed to such a spectacle [of a publicized confession] could be but a hollow formality.” Id. at 726, 83 S.Ct. 1417.

“A presumption of prejudice, [the Supreme Court’s] decisions indicate, attends only the extreme case,” such as Rideau, where the “trial atmosphere ... was utterly corrupted by press coverage.” [450]*450Skilling, 561 U.S. at 380-81,130 S.Ct. 2896 (internal quotation marks, citations, and brackets omitted); see also United States v. Sabhnani, 599 F.3d 215, 233 (2d Cir.2010) (noting that cases where adverse pretrial publicity warrants a presumption of prejudice “are very rare, however, and have been characterized ... as ‘extreme situation[s]’ ” (quoting United States v. Campa, 459 F.3d 1121

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Bluebook (online)
64 F. Supp. 3d 446, 2014 WL 6971414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ayala-nyed-2014.