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United States v. Nunez

United States District Court, D. Maine

October 11, 2019

UNITED STATES OF AMERICA
v.
JOWENKY NUNEZ

          ORDER ON THE DEFENDANT'S MOTION FOR CHANGE OF VENUE

          JOHN A. WOODOCOCK, JR. UNITED STATES DISTRICT JUDGE.

         The 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 York.

         I. PROCEDURAL HISTORY

         On 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. 2016).

         On June 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.

         II. THE PARTIES' POSITIONS

         A. Jowenky Nuñez's Motion to Change Venue

         On 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.

         Mr. 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 avers:

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 City ...

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