Part 1 made the geopolitical argument for Trump’s pardon of former Honduran President Juan Orlando Hernandez.

Part 2 examined the case the Biden Department of Justice put on.

Biden’s DOJ indicted Hernandez.

Part 3 is about how the prosecutors got a biased judge and an uninformed jury. The legal name for what they did is forum shopping.

Hernández was tried in the Southern District of New York. The prosecutors alleged his criminal conduct happened in Honduras, Mexico, and other countries. None of it happened in Manhattan.

For crimes committed outside the United States, Congress wrote Title 18, United States Code, Section 3238. The venue lies in the district where the offender is first brought into the country. 

Former Honduran President Juan Orlando Hernandez, center, is taken in handcuffs to a waiting aircraft as he is extradited to the United States, at an Air Force base in Tegucigalpa, Honduras, Thursday, April 21, 2022. (AP Photo/Elmer Martinez)

Hernández was extradited from Honduras on April 21, 2022. His point of entry into the United States was Florida.

The case could properly have been tried in Florida. The Southern District of New York, then headed by United States Attorney Damian Williams, chose Manhattan instead.

Why Manhattan

Why does it matter whether it was Miami or Manhattan? Both are American cities. The reason is pretty obvious to anyone without their rose colored justice glasses on.

SDNY judges, including Judge Kevin Castel, who tried the case, are mostly former SDNY prosecutors. Castel was an Assistant United States Attorney in the office before he was a judge.

Florida federal judges, on the other hand, come from diverse backgrounds, including defense lawyers, civil practitioners, and state court judges. Federal judges in Florida — including judges of Cuban and Venezuelan heritage — would have known of Hernandez and might have been inclined to give him a fair trial.

The Biden DOJ knew it would more likely get a pro-prosecution judge in Manhattan.

The second reason is the jury.

A South Florida jury might have included Cuban refugees, Venezuelan exiles, and Honduran emigrants. A South Florida jury would have known what happens to former presidents in Latin America when their political opponents take power, and might have asked questions in deliberation that a Manhattan jury was less likely to ask.

The DOJ may have wanted Manhattan because a jury there was more likely to accept the prosecution’s word about what kind of country Honduras was and what kind of man Hernández was.

The Stipulation

The Southern District of New York did not present records of Hernandez’s arrival in Florida to the jury. That might have ended the trial in Manhattan.

The defense agreed to a stipulation, drafted and presented by the Department of Justice, stating that Hernández had been first brought to New York. The first point of entry was Florida.

The stipulation was read to the jury. The jury believed it.

A reader may ask why Hernández did not correct the record. Three reasons.

First, American federal venue rules — the rule that says a defendant first brought into the United States in Florida should be tried in Florida — are not concepts a foreign defendant tracks.

Second, Judge Castel had ordered that Hernandez review certain pretrial materials only in the presence of retained counsel. His retained counsel was sick. The visits stopped.

Third, the stipulation system in federal practice works through the lawyers. A stipulation is a document drafted by the prosecution and reviewed by the defense. The defendant typically never sees it before it is signed. He sees it when it is read aloud at trial. By then, the agreement will have already been made.

The system functions because federal prosecutors are presumed to be honest with defense lawyers about basic facts. A defense lawyer assumes that when the United States Attorney’s Office tells him the defendant was first brought to New York, the United States Attorney’s Office is not making it up.

Judge Castel instructed the jury on the venue element of the charges based on the stipulation that Hernandez first landed in Manhattan rather than in Florida.

The defense’s appeal papers state that the prosecution later conceded the venue stipulation read to the jury was false.

What That Means in Plain English

If a defense lawyer did that to a federal prosecutor — drafted a stipulation containing a false fact, induced the prosecutor to sign it, used it to obtain a verdict — the defense lawyer would be disbarred. There might be a criminal prosecution for obstruction of justice.

When the Department of Justice does it, the trial is held in prosecution-friendly Manhattan and not Miami.

Judge P. Kevin Castel, presented with a post-trial admission by the prosecution that he had instructed the jury on a false fact regarding a constitutional element of the case, could have ordered briefing, set aside the conviction, or ordered a new trial in the proper district.

He sentenced Hernández to 45 years.

Part 4 on the show trial of Juan Orlando Hernandez is coming next.

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