UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 11-cr-084–04-JL Opinion No.

Rafael Humberto Celaya Valenzuela

ORDER

Before the court is defendant Rafael Humberto Celaya

Valenzuela’s (“Celaya”) post-verdict motion for reconsideration

of this court's denial of his motion for judgment of acquittal.

Fed. R. Crim. P. 29. Celaya’s motion implicates two issues: 1)

whether the motion is properly before the court; and 2) if so,

the evidentiary requirements to prove a drug conspiracy under

.

In July 2012, a superseding indictment charged Celaya and

several others with conspiracy to distribute and possess with

intent to distribute cocaine, heroin and methamphetamine, in

violation of

and 841(a). His trial began in

October 2014. After the government rested its case Celaya filed

a motion for acquittal, pursuant to Fed. R. Crim. P. 29(a). This

court denied the motion. Celaya was subsequently convicted.

In April 2015, on the eve of sentencing that had been twice

continued, Celaya filed a motion for reconsideration of the acquittal motion, to which the prosecution objected. After a

conference with the court, and adhering to an agreed-upon

briefing schedule, each side filed supplemental memoranda. Upon

review of the motion for reconsideration, objection thereto and

supplementation, and after oral argument, the motion is denied

both procedurally, and in the alternative, in substance.

I. Procedural History

Celaya’s mid-trial motion for acquittal under Rule 29

posited two bases for acquittal. First, he asserted that the

prosecution failed to prove that Celaya joined the conspiracy

alleged in the operative indictment. Specifically, Celaya argued

that:

While there was substantial evidence introduced by the Government that could reasonably be understood by the jury to show that the Sinaloan cartel wanted to expand its drug trafficking network into Europe, and perhaps the United States, the evidence failed to demonstrate that the cartel actually agreed to include Celaya in that conspiracy. To the contrary, the evidence clearly shows that the cartel considered, and then rejected, the idea of having Celaya participate in whatever conspiracy it wanted to create.

(Doc. no. 185)(emphasis added). Celaya also argued that the

District of New Hampshire was not a permissible venue for his

trial. The court denied the motion by oral order.

After being granted a pair of sentencing continuances,

Celaya filed, roughly a week before his sentencing hearing was

2 scheduled, a motion for reconsideration of the Rule 29 motion the

court denied approximately six months earlier. In addition to

reiterating the previously rejected venue argument, Celaya

asserted for the first time that the conspiracy that formed the

basis of his conviction had no nexus to the United States, and

therefore the government could not prosecute him within the

bounds of due process. The prosecution objected, first arguing

that the motion was barred because it was, in effect, an untimely

filed motion for acquittal. See Fed. R. Crim. P. 29(c)(1) (“A

defendant may move for a judgment of acquittal, or renew such a

motion, within 14 days after a guilty verdict or after the court

discharges the jury, whichever is later.”). The government

further argued that Celaya failed to satisfy the requirements of

a valid motion for reconsideration because he was merely raising

arguments that could have been presented in his original motion.

Finally, the government asserted that Celaya’s nexus and venue

arguments fail substantively.

After a conference with the court, transcripts were made

available to the parties, who agreed on a schedule to supplement

their submissions.

II. Analysis

In addressing a motion for judgment of acquittal under Rule

29(c), the court must determine whether, “after assaying all the

3 evidence in the light most amiable to the government, and taking

all reasonable inferences in its favor, a rational factfinder

could find, beyond a reasonable doubt, that the prosecution

successfully proved the essential elements of the crime.” United

States v. Thomas,

(1st Cir. 2006) (quoting United

States v. Carucci,

(1st Cir. 2004)). Because

it is the jury's responsibility to assess the credibility of

witnesses, “[c]redibility issues must be resolved in favor of the

verdict.” United States v. Pérez–Ruiz,

(1st Cir.

2003) (citing United States v. Alicea,

(1st

Cir. 2000)). Although the prosecution has the burden of proof at

trial, on a Rule 29 motion, the defendant “bear[s] the heavy

burden of demonstrating that no reasonable jury could have found

[him] guilty beyond a reasonable doubt.” United States v. Munoz,

(1st Cir. 1994) (citing United States v.

Innamorati,

(1st Cir. 1993)).

Before turning to the motion at issue, the court notes that

it initially discounted the prosecution’s timeliness argument

because it viewed Celaya’s motion as one challenging the court’s

jurisdiction to hear the case, a matter which can be raised at

any time. However, as the government correctly points out,

Celaya’s nexus argument goes to the merits of the prosecution,

not the jurisdiction of the court to hear the case. See United

4 States v. Yousef,

(2d Cir. 2014) (citing

Morrison v. Nat'l Australia Bank Ltd.,

(2010)). Celaya concedes this point in his reply brief. Doc.

no. 265 at 3. Accordingly, the court first addresses the

procedural issues.

A. Procedural compliance

1. Nexus to the United States

Celaya is correct that the strict time limits of Rule 29 do

not apply to his motion to reconsider. While the First Circuit

Court of Appeals has recognized that motions for reconsideration

in criminal cases “are not specifically authorized by statute or

rule,”1 their putative viability relies on the “traditional and

virtually unquestioned practice of district courts exercising

their inherent authority to revisit their own orders.” United

States v. Ortiz,

, 293 n.2 (1st Cir. 2014) (quoting

United States v. Dieter,

, 8 N.3 (1976) (per curiam)

(citation omitted) (internal quotation marks omitted). This

court’s authority is not unbounded, however. Reconsideration is

“an extraordinary remedy which must be used sparingly.” Palmer

v. Champion Mtg.,

(1st Cir. 2006) (quoting 11

Charles Alan Wright et al., 11 Federal Practice and Procedure

1 But see LR 7.2; LCrR 1.1(d).

5 § 2810.1 (2d ed. 1995)). It is “appropriate only in a limited

number of circumstances: if the moving party presents newly

discovered evidence, if there has been an intervening change in

the law, or if the movant can demonstrate that the original

decision was based on a manifest error of law or was clearly

unjust.” United States v. Allen,

(1st Cir.

2009). Moreover, and especially relevant here, reconsideration

is not “a vehicle for a party to undo its own procedural failures

[or] allow a party to advance arguments that could and should

have been presented to the district court prior to judgment.”

(quoting Iverson v. City of Boston,

(1st

Cir. 2006)). This final caveat is Celaya’s undoing.

In his motion for acquittal, Celaya explicitly argued that

the evidence was insufficient to tie him to a conspiracy “to

expand its drug trafficking network into Europe, and perhaps the

United States,” even though the jury could reasonably conclude

that such a conspiracy existed. (Doc. no. 185). By contrast,

Celaya’s motion for reconsideration all but abandons this tack

and argues that the conspiracy itself did not involve drug

distribution in the United States. Therefore, the argument goes,

Celaya must be acquitted because the statutes of conviction do

not reach extraterritorial conduct.

6 In an effort to satisfy the Court of Appeals’s “manifest

error of law” standard, Celaya argues that this court did not

consider “controlling law . . . that section 841(a) does not

apply to the distribution of, or the possession of with intent to

distribute, controlled substances outside the borders of the

United States.” (Doc. no. 226-1 at 3). However, Celaya did not

make this argument in his motion for judgment of acquittal.

Indeed, in the sentence immediately preceding the one quoted

above, Celaya notes that in his original motion he “argued that

the evidence was insufficient to prove beyond a reasonable

doubt that he participated in the conspiracy charged in the

indictment, which was to distribute or possess with intent to

distribute heroin, methamphetamine and cocaine within the United

States.” (Emphasis added).

Ultimately, Celaya’s submission relative to the sufficiency

of the evidence “is a series of arguments that could and should

have been previously presented to the district court.” United

States v. Iacoboni,

(D. Mass. 2009)

(citing Allen,

). To the extent the motion attacks

the “jurisdictional nexus” of the conspiracy to the United

States, it is therefore denied.

7 2. Venue

Although Celaya argued that venue in New Hampshire was

improper in both his original Rule 29 motion and his motion for

reconsideration, he did not raise this challenge prior to trial,

as required by Fed. R. Crim. P. 12(3)(A)(I). Under the version

of the Federal Rules applicable at the time, such a failure

constitutes a waiver. See Fed. R. Crim. P. 12(e) (2014 ed.;

repealed Dec. 1, 2014); United States v. Lyons,

(1st Cir. 2014). While the current version of the Rules simply

refers to such motions as "untimely," Fed. R. Crim. P. 12(c)(3),

both provisions allow the court to consider the motion for “good

cause,” a factor Celaya has not addressed. Against this

backdrop, the court will not consider the venue argument.

B. Substance of Celaya’s Arguments

Although the court finds that Celaya’s motion for

reconsideration is procedurally barred, the court has also

considered the parties’ submissions with respect to the substance

of his arguments. Assuming that Celaya’s most recent plaint is

operative – that the conspiracy of which Celaya was convicted did

not have a nexus to the United States – the court finds

sufficient contrary evidence to support the jury’s verdict. The

court first observes that Celaya himself, in his original Rule 29

motion, conceded that a jury could find that the conspiracy

8 included drug trafficking “perhaps into the United States.”

(Doc. no. 185 at 3). Beyond that, however, the jurisdictional

nexus argument fails on the merits.

To begin with, Celaya grossly overstates the reach of cases

upon which he relies. He cites United States v. Hayes,

(1st Cir. 1981), for the proposition that the government must

prove that the intent of the conspiracy must be to distribute

controlled substances in the United States. But the holding in

Hayes, a case involving a drug-carrying vessel seized in

international waters, is not nearly so broad. By its own terms,

Hayes limited the “intent to distribute in the United States”

requirement to vessels on the high seas.

. Celaya

further relies on United States v. Bravo,

(1st Cir.

2007)2 for having restated the proposition allegedly set out in

Hayes. Celaya correctly observes that Bravo did recognize that

Hayes found a “jurisdictional nexus requirement” for the

application of the predecessor to the Controlled Substances Act.

(Doc. no. 262 at 9 n.4). However, Celaya truncated the

Bravo court’s recognition that Hayes’s nexus finding applied to a

“vessel apprehended in international waters.”

2 In fact Celaya cited to a version of Bravo that was withdrawn and superseded.

. The cited portion of the withdrawn case was unchanged, however.

9 In contrast to Celaya’s incomplete representation, Hayes

specifically recognized that “[t]he Ninth Circuit had held in a

case where possession of the drug was in the United States that

it was immaterial whether the offender intended to distribute it

elsewhere.”

n.7. Hayes also reiterated the First

Circuit Court of Appeals’s limiting principle: “This may well be

so, but we think that where possession occurs on the high seas,

an intent to distribute in the United States is required.”

(emphasis added). The Court of Appeals put this issue to rest in

United States v. McKenzie,

(1st Cir. 1987), in which

it reviewed a conviction for violating section 841(a)(1), where

the conviction “requir[ed] proof of possession with intent to

distribute.”

. Although the court noted that

“appellant did not, apparently, intend to distribute the

narcotics in the United States,” the court concluded that “the

place of intended distribution is not important so long as such

intent is established together with the fact of possession within

the United States.”

(citing United States v. Gomez-Tostado,

(9th Cir. 1979)); see also United States v. Muench,

(2d Cir. 1982) (applying statute to airplane

passengers carrying drugs en route from Colombia to West Germany

with scheduled stopover in United States but plans to distribute

the drugs in West Germany).

10 Here, the government has provided evidence – in the form of

conversations between conspirators and law enforcement agents --

of plans to use United States ports as part of the drug

distribution scheme. Such evidence is sufficient to demonstrate

that the conspiracy included possession of controlled substances

in the United States. The prosecution further argues that while

the seized multi-kilo cocaine shipment originated in South

America and terminated in Europe, the objective of the conspiracy

was to ship multiple loads over an extended period of time, with

multiple distribution destinations that included the United

States. (TR 10/8/14 AM 14-15, 16, 24-25, 28-29, 38; TR 10/8/14

PM 47; Govt’s Exh. 24 (code sheet); Govt’s Exh 21, p. 87; TR

10/9/14 PM 76-86; TR 10/9/14 AM 41, 42, 43, 47-48, 50-54, 56, 62-

63, 65-66, 89-90; Govt’ Exh. 19, 32, 33, 48). But even accepting

Celaya’s disputed premise that the ultimate object of the

conspiracy was solely to distribute controlled substances abroad,

the agreement to use United States ports is sufficient to support

the conspiracy conviction. While Celaya claims that various

conversations were only preliminary discussions in which he was

explaining to co-conspirators what an undercover agent had

represented to him about United States ports, the jury could have

concluded that a conversation, for example, in which Celaya said,

inter alia, “we prefer the port which is safest for you” (that

11 is, undercover personnel posing whom he believed were drug

distributors), was indicative of an agreement that, at the very

least, contemplated the potential routing of cocaine through

United States ports.3

Against this legal and factual backdrop, even if the court

were to entertain the substance of Celaya’s motion to reconsider,

it would find that its original decision was neither based on a

manifest error of law nor was clearly unjust.

III. Conclusion

Defendant's motion for reconsideration4 is DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge Dated: December 9, 2015 cc: Donald A. Feith, AUSA Andrew S. Feldman, Esq. Jeffrey E. Feiler, Esq. Julie K. Connolly, Esq.

3 Celaya’s claim that conversations with law enforcement personnel about the use of United States ports cannot form the basis of the conviction is unavailing. While the existence of a conspiracy must involve more than just one individual and a government agent, United States v. Portela,

(1st Cir. 1999), here the government produced evidence that there were conspirators other than law enforcement. That the agents proposed the use of United States ports does not undermine the conviction. See United States v. Giry,

(1st Cir. 1987) (affirming drug conspiracy conviction where conspiracy members agreed with agents' drug distribution plans). 4 Doc. no. 226.

12