United States v. Francisco Colorado Cessa
2017 U.S. App. LEXIS 8079
| 5th Cir. | 2017Background
- Francisco Colorado was convicted of money laundering in Austin; before sentencing, an FBI sting uncovered an alleged scheme to bribe the trial judge, producing new bribery charges against Colorado, his son, and a business partner.
- The bribery case was transferred from the Western District of Texas (Austin) to the Western District of Louisiana under Fed. R. Crim. P. 21(a) due to publicity and concerns about trying the case where the targeted judge sat.
- After transfer, the Austin grand jury returned a superseding indictment (adding the mens rea "corruptly") that was docketed and tried in Louisiana; the jury convicted Colorado of conspiracy to bribe and offering a bribe.
- Colorado challenged the validity of a superseding indictment returned by a grand jury in the original district after a Rule 21 transfer, arguing the transfer divested that grand jury of authority.
- Colorado also requested a jury instruction defining "offer" and "promise" (drawing on United States v. Hernandez) to clarify that preliminary discussions or preparations do not constitute an offer; the district court refused and used the pattern instruction.
- The Fifth Circuit affirmed: it held the Austin grand jury could lawfully return the superseding indictment post-transfer, and the district court did not abuse its discretion in refusing Colorado’s requested definitional instruction.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Colorado) | Held |
|---|---|---|---|
| Whether a grand jury in the original district may return a superseding indictment after a Rule 21(a) transfer | Grand jury retains independent investigatory/charging authority over local crimes; Rule 21 does not strip the grand jury’s power to indict | Rule 21 transfer of the prosecution to another district deprives the original grand jury of jurisdiction to supersede charges | The original-district grand jury may return a superseding indictment after transfer; Rule 21 does not divest that power |
| Whether the district court erred by refusing Colorado’s requested instruction defining "offer" and "promise" for bribery | Pattern instruction correctly states the law; defendant could argue preparatory nature to jury | The requested Hernandez-based definition was a necessary limitation to prevent conviction for mere preliminary discussions | No error: the pattern instruction correctly stated the law and the requested definition was not required; omission did not impair defense |
Key Cases Cited
- United States v. York, 428 F.3d 1325 (11th Cir. 2005) (distinguishing grand jury and trial-jury roles in transfer contexts)
- United States v. Calandra, 414 U.S. 338 (1974) (grand jury’s independent investigatory authority and secrecy)
- United States v. Hernandez, 731 F.2d 1147 (5th Cir. 1984) (discussing when an "offer" is complete for bribery—ability and desire to pay)
- United States v. Richardson, 676 F.3d 491 (5th Cir. 2012) (district court not required to adopt defendant’s more detailed instruction when pattern instruction correctly states the law)
- United States v. Cabrales, 524 U.S. 1 (1998) (venue requirements may require dismissal of an indictment if trial venue is improper)