United States District Court, D. Maine
ORDER ON THE DEFENDANT'S MOTION FOR CHANGE OF
A. WOODOCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court denies a defendant's motion to change venue of a
proceeding in a petition to revoke his supervised release
from the District of Maine to the Southern District of New
January 12, 2012, a federal grand jury indicted Jowenky
Nuñez along with eight other co-conspirators for
engaging in a conspiracy to distribute and possess with the
intent to distribute cocaine and cocaine base and indicted
Mr. Nuñez for his possession of a firearm in
furtherance of a drug-trafficking offense. Superseding
Indictment (ECF No. 81). The superseding indictment
alleged that Mr. Nuñez committed the drug-trafficking
crime in the District of Maine and elsewhere and that he
committed the firearms offense in the District of Maine.
Id. at 1-3. On January 18, 2013, Mr. Nuñez
pleaded guilty to the drug-trafficking count only. Min.
Entry (ECF No. 366). The Government's Version of the
Offense that Mr. Nuñez admitted was true on January
18, 2013, stated that he joined a conspiracy that was
distributing cocaine and crack cocaine in the Bangor, Maine
area and that he committed the drug- trafficking crime while
in Bangor. Gov't's Version of the Offense at
1-2 (ECF No. 361). On December 1, 2014, the Court imposed a
sentence of ninety-seven months of incarceration, five years
of supervised release, no fine, and a $100 special
assessment. J. (ECF No. 806). On December 6, 2014,
Mr. Nuñez appealed to the Court of Appeals for the
First Circuit, Notice of Appeal (ECF No. 814), and
on October 19, 2016, the First Circuit affirmed the sentence.
United States v. Nuñez, 840 F.3d 1 (1st Cir.
24, 2019, the Government filed a petition to revoke Mr.
Nuñez's supervised release. Pet. for Warrant
or Summons for Offender under Supervision (ECF No. 945).
The Government alleged that Mr. Nuñez commenced
supervised release on March 22, 2019, and had been residing
in the Bronx Community Residential Reentry Center in New York
City under a special condition added on March 29, 2019.
Id. at 1. The Government alleged that Mr.
Nuñez violated two conditions of his supervised
release. Id. at 1-2. The first alleged violation is
that he was unsuccessfully discharged from Bronx Community
Residential Reentry Center for violating facility rules and
the second is that he violated the “no drugs”
condition of supervised release. Id.
THE PARTIES' POSITIONS
Jowenky Nuñez's Motion to Change
August 6, 2019, Mr. Nuñez filed a motion seeking to
transfer venue for the hearing on his alleged violation of
special condition three of his supervised release to the
United States District Court for the Southern District of New
York. Def. Jowensky Nunez' Mot. to Change Venue
Pursuant to Fed. R. Crim. P. 21(b) at 1 (ECF No. 961)
(Def.'s Mot.). Mr. Nuñez says
“[t]he allegation in this case is that defendant
possessed an unknown liquid, presumed to be alcohol though no
test has been conducted, and that an altercation occurred at
the halfway house where he was residing in New York City when
staff took the subject liquid from defendant.”
Id. Mr. Nuñez claims that the United States
Probation Office has recommended a prison term of nine months
even though the liquid in question has not been tested nor
has he tested positive for any substance. Id. at 2.
Mr. Nuñez maintains his innocence. Id.
Nuñez cites ten factors courts consider when deciding
whether to transfer venue as set forth in Platt v.
Minnesota Mining & Manufacturing Co., 376 U.S. 240
(1964). Def.'s Mot. at 3. Mr. Nuñez
argues these factors demonstrate that the interests of
convenience and justice favor changing venue to the Southern
District of New York. Id. at 3-4. Mr. Nuñez
1) the defendant resides in New York City;
2) all potential witnesses reside or work in New York City;
3) the contested event took place in New York City;
4) all relevant documents in this matter were generated in
New York City;
5) counsel on the Rule 5 stage of proceeding worked in New
York City and the Federal Defender's Office in New York