Defendant–Appellant Arthur Lee Martin died on May 31, 2008. We dismissed his 1

appeal as moot and ordered the district court to vacate his indictment and judgment of

conviction.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50186

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

ISIDRO GARZA, JR; TIMOTEO GARZA; MARTHA CATALINA GONZALEZ

GARZA,

Defendants–Appellants

Appeal from the United States District Court 

for the Western District of Texas

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendants–Appellants Isidro Garza, Jr., Timoteo Garza, and Martha

Catalina Gonzalez Garza (collectively “Defendants”) appeal their convictions for 1

crimes relating to the embezzlement of hundreds of thousands of dollars

belonging to the Kickapoo Traditional Tribe of Texas (the “Tribe”) and the Lucky

Eagle Casino (the “Casino”). Defendants argue that the district court erred by

sua sponte transferring their case from the Del Rio Division of the Western

District of Texas to the Waco Division in violation of Federal Rule of Criminal

United States Court of Appeals

Fifth Circuit

F I L E D

January 5, 2010

Charles R. Fulbruge III

Clerk
No. 08-50186

2

Procedure 18. Because the district court in Del Rio provided no reasoning when

it transferred Defendants’ case, we vacate Defendants’ convictions and remand

for a new trial in a venue determined in accordance with the dictates of Rule 18.

I. FACTUAL AND PROCEDURAL HISTORY

In 1996, the Tribe hired Defendant Isidro Garza to serve in various

managerial capacities within the Tribe and the Casino. The Tribe also placed

Isidro’s wife Martha and their son Timoteo on the Tribe’s payroll. The Tribe

entrusted Isidro with the Casino’s operating accounts and the Tribe’s Casino

Revenue Fund, and instructed Isidro to deposit the Casino’s net profits and

spend the funds for the benefit of the Tribe. 

The Government alleges that Isidro used the Casino’s operating account

for personal expenditures, which included making donations to political

campaigns in order to curry favor for his and Timoteo’s political aspirations. The

Government charged Defendants and four others with various offenses relating

to the misappropriation of tribal funds.

The Tribe and the Casino are located on a reservation in Maverick County,

Texas. Defendants, none of whom belongs to the Tribe, reside in Eagle Pass,

Texas, the city closest to the Tribe’s reservation. At the time of the trial, every

Defendant lived in Eagle Pass, many of the defense witnesses resided on or near

the reservation, and most of Defendants’ original counsel had their principal

places of business in, or near, Eagle Pass. All of the events leading to the

indictments occurred in Eagle Pass, on the reservation, or in the Casino. 

A judge in the Del Rio Division of the Western District of Texas (the “Del

Rio Judge”) originally presided over Defendants’ case. Defendants alleged that

the Del Rio Judge had political ties to a potential defense witness, and based on

that allegation, Isidro filed a “Motion to Transfer, or Alternatively, to Disqualify

and for Hearing.” Isidro asked the Del Rio Judge to transfer the case to San

Antonio because a judge in that city (the “San Antonio Judge”) had previously
No. 08-50186

3

heard a civil matter involving substantially the same parties and issues.

Timoteo, Martha, and the other defendants moved to join Isidro’s motion.

The Del Rio Judge simultaneously granted Defendants’ motion to join and

denied the joint motion to transfer. A few months later, Defendants renewed

their arguments for the Del Rio Judge’s disqualification. The Del Rio Judge

conducted an in camera hearing and then ordered Defendants to file another

motion to disqualify within twenty-four hours.

Defendants timely filed the motion to disqualify. Before ruling on any

motions, the Del Rio Judge sua sponte issued an order transferring the case and

all pending motions to the Chief Judge for the Western District of Texas, who

sits over three hundred miles away in Waco. The Del Rio Judge did not rule on

the motion to disqualify, and her order gave no reason for the transfer. The

Chief Judge, sua sponte and without a hearing, accepted the transfer and

ordered that the trial would be held in Waco. In response, Defendants filed a

motion to re-transfer their case either back to Del Rio or to San Antonio. 

The Chief Judge conducted a hearing on Defendants’ motion, and asked

why they requested a transfer back to Del Rio after they had sought to move the

case to San Antonio. Defendants responded that their sole concern was

disqualification of the Del Rio Judge based on her alleged bias. Defendants then

argued that neither they, nor their witnesses, nor their counsel could afford to

travel to Waco for the trial. 

The Chief Judge denied the motion to re-transfer, noting that the Waco

Division “is a one court division and it is a busy division,” and that as Chief

Judge, moving the trial to Del Rio would bring “great hardship on me personally

and on the work of this Court and this district.” The Chief Judge allowed several

attorneys to withdraw from representing Defendants on grounds of economic

hardship due to the transfer, and appointed replacement counsel. To allow the

new attorneys the chance to prepare, the Chief Judge granted a continuance that
No. 08-50186

4

delayed the trial for several months. Although the Chief Judge offered the

court’s subpoena power to assist Defendants in securing witnesses, the majority

of Defendants’ proffered defense witnesses did not testify at trial. 

After a nine-day joint trial, the jury found Isidro and Timoteo guilty of

multiple counts of conspiracy to commit the offenses of theft from an Indian

tribal organization, in violation of 18 U.S.C. § 371, and theft by officers or

employees of gaming establishments on Indian lands, in violation of 18 U.S.C.

§ 1168. The jury found Martha and Isidro guilty of various acts of tax evasion,

in violation of 26 U.S.C. § 7201. The jury found Martha, Isidro, and Timoteo

guilty of conspiracy to evade the payment of taxes, in violation of 18 U.S.C.

§ 371. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the final judgment of the district court in this

criminal case under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and review “all

questions concerning venue under the abuse of discretion standard.” United

States v. Lipscomb, 299 F.3d 303, 338 (5th Cir. 2002). “[A] trial court abuses its

discretion when the judge has considered the wrong factors in applying his

discretion (the judgment call was made as to issues or factors not within the

scope of his discretionary powers).” Id. at 339 (internal quotation omitted).

Although a trial court has “broad discretion in deciding where to fix the location

of the trial,” it must give “‘due consideration’ to the factors listed in Rule 18.”

United States v. Balistrieri, 778 F.2d 1226, 1229 (7th Cir. 1985) (citing United

States v. Truglio, 731 F.2d 1123, 1130 (4th Cir. 1984)). 

III. ANALYSIS

On appeal, Defendants argue that the Del Rio Judge abused her discretion

by sua sponte transferring Defendants’ case to Waco without considering Rule

18. Defendants also argue that the Chief Judge abused his discretion by sua

sponte accepting the Del Rio Judge’s transfer. Finally, Defendants argue that
No. 08-50186

See also United States v. Rea-Tapia, 134 F. App’x 711, 713 n.5 (5th Cir. 2005) (per 2

curium) (unpublished) (noting that a judge “would not have been permitted to enter any orders

after granting the defendant’s recusal motion”) (emphasis added). 

5

the Chief Judge abused his discretion by refusing to grant their motion to retransfer either back to Del Rio or to San Antonio.

In response, the Government argues that we should characterize the Del

Rio Judge’s transfer as a recusal, making Rule 18 irrelevant. Additionally, the

Government argues that the Chief Judge did not abuse his discretion by denying

Defendants’ motion to re-transfer the case either back to Del Rio or to San

Antonio.

A. The Del Rio Judge’s Order

As a threshold matter, we must decide whether the Del Rio Judge

transferred Defendants’ case or implicitly recused herself. Although the

Government argues that we should treat her order as a recusal followed by a

reassignment, the Del Rio Judge denied Defendants’ first motion for recusal and

“ordered that the clerk immediately transfer” the case. (emphasis added).

Additionally, the Chief Judge stated that “[t]his case has been transferred from

the Del Rio Division,” and later denied Defendants’ motion for disqualification

of the Del Rio Judge because “[t]he case has been transferred from the docket of

the [Del Rio Judge]. Therefore, Defendants’ motion is moot.” (emphasis added).

Further, a recusal by the Del Rio Judge would have barred her from

issuing the order transferring the case to the Chief Judge. Issuing any order

after a recusal “would violate the congressional command that the disqualified

judge be removed from all participation in the case . . . [and would] create

suspicion that the disqualified judge will select a successor whose views are

consonant with his [or hers].” McCuin v. Tex. Power & Light Co., 714 F.2d 1255,

1261 (5th Cir. 1983). We find that the Del Rio Judge sua sponte transferred 2
No. 08-50186

6

Defendants’ case, and did not implicitly recuse herself. Therefore, Rule 18

applies.

The unique procedural history of this case warrants making one further

point. Although Defendants sought a re-transfer from Waco to Del Rio or San

Antonio, originally they requested a transfer from Del Rio to San Antonio. This

prompted the Chief Judge, upon hearing their request for a re-transfer, to

comment “[y]ou all fought for years to have this matter moved to San Antonio.

Now you’re saying it should be in Del Rio?” In response, Defendants argued that

they sought the transfer solely to avoid having their case tried by the Del Rio

Judge due to her alleged bias. 

The record supports this contention. Defendants’ motion to transfer

specifically requested that the Del Rio Judge only consider transferring the case

to San Antonio, because the San Antonio Judge had heard a civil matter

involving substantially the same parties and issues. Defendants have

demonstrated that their sole concern was separating the Del Rio Judge from her

involvement in their case. 

The Del Rio Judge’s sua sponte transfer and the Chief Judge’s sua sponte

acceptance left Defendants with no opportunity to challenge the transfer until

they filed a motion to re-transfer. Defendants’ vigorous attempts to re-transfer

their case from Waco at their earliest opportunity convince us that they would

have opposed the transfer earlier if given the chance. 

B. Abuse of Discretion

Defendants argue that the Del Rio Judge abused her discretion when she

sua sponte transferred Defendants’ case from Del Rio to Waco. Federal Rule of

Criminal Procedure 18 states: 

Unless a statute or these rules permit otherwise, the government

must prosecute an offense in a district where the offense was

committed. The court shall fix the place of trial within the district
No. 08-50186

 Effective December 1, 2008, Rule 18 requires courts to consider the convenience of the 3

venue to any victim. Because the amendment was not effective at the time of Defendants’

trial, we apply the prior Rule. We note, however, that this rule change would not affect the

analysis in this case.

7

with due regard to the convenience of the defendant and the

witnesses and the prompt administration of justice.3

As the Eleventh Circuit has noted, “a district judge’s exercise of discretion

resulting in a trial in an environment alien to the accused over a proper

objection must be supported by a demonstration in the record that the judge

gave due regard to the factors now incorporated in Rule 18.” United States v.

Burns, 662 F.2d 1378, 1383 (11th Cir. 1981). 

The Del Rio Judge gave no reason for her sua sponte transfer of

Defendants’ case from Del Rio to Waco. Given her denial of Defendants’

disqualification motions and their original motion to transfer the case to San

Antonio, we can do little more than speculate as to the motivation for the

transfer. The record provides no indication as to whether the Del Rio Judge

considered the “convenience of the [D]efendant[s]” or the “prompt administration

of justice.” FED. R. CRIM. P. 18.

Our weighing of the “convenience of the [D]efendant[s]” against the

“prompt administration of justice” advises against transfer to Waco. See id. In

assessing convenience, we consider: (1) the distance from the defendant’s home,

Lipscomb, 299 F.3d at 340; Dupoint v. United States, 388 F.2d 39, 44 (5th Cir.

1967); (2) the location of the defendant’s witnesses, Lipscomb, 299 F.3d at 340;

United States v. Stanko, 528 F.3d 581, 586 (8th Cir. 2008); and (3) the ability of

the defendant’s family and friends to attend the trial. Stanko, 528 F.3d at 586.

We have also acknowledged that the burden on a defendant increases when a

transfer forces the defendant’s counsel to try a case far from his or her practice.

See Lipscomb, 299 F.3d at 340 (noting the location of the defense attorney’s

practice when considering convenience).
No. 08-50186

8

Defendants, their witnesses, and their counsel all reside in or around

Eagle Pass or the Tribe’s reservation. The transfer to Waco required every

interested party to travel more than three hundred miles to participate in the

trial. Additionally, the transfer required defense counsel—those who chose not

to withdraw due to financial hardship stemming from the transfer—to hold a

multiple-day trial far from their practices. Although the Chief Judge appointed

Defendants new counsel, the original attorneys invested substantial time,

money, and energy in crafting their defense. Duplicating these efforts increased

the burden on Defendants. We rarely see a case in which the convenience factor

weighs so heavily against transfer.

In contrast, this transfer does not clearly benefit “the prompt

administration of justice.” FED. R. CRIM. P. 18. We have held that Rule 18’s

“second textual factor—‘due regard to . . . the prompt administration of

justice’—is in part a literal command that trials comply with the Speedy Trial

Act.” Lipscomb, 299 F.3d at 341 (internal citation omitted). Courts must “weigh

the impact the trial location will have on the timely disposition of the instant

case.” In re Chesson, 897 F.2d 156, 159 (5th Cir. 1990) (per curiam). This factor

“includes more than the case at bar; the phrase includes the state of the court’s

docket generally.” Id.

The transfer of this case, particularly the loss of Defendants’ chosen

counsel, resulted in substantial delay. The Del Rio Judge transferred the case

from Del Rio on May 2, 2006, but the trial in Waco did not begin until October

1, 2007. The lengthy continuance that the Chief Judge granted after appointing

replacement defense counsel caused this delay, and we find nothing suggesting

that a trial in Del Rio would have resulted in a similar postponement.

Additionally, nothing in the record suggests that docket concerns prompted the

transfer from Del Rio to Waco. Although the Chief Judge asserted that re-
No. 08-50186

9

transfer from Waco would disrupt his docket, the record does not suggest that

the Del Rio Judge considered her own docket before ordering the transfer.

In Lipscomb, the district court ordered a sua sponte transfer from Dallas

to Amarillo based on the district court’s concern over pretrial publicity that

would accompany “the trial of one of the best[-]known sitting elected officials in

the Dallas/Fort Worth metroplex for allegations of public corruption.” 299 F.3d

at 337 (alteration in original). After conducting an independent analysis of the

district court’s transfer order and finding that the “facts of convenience militate

exclusively against transfer,” we could “detect virtually nothing on the Rule 18

scale to counterbalance the defendant’s established inconvenience.” Id. at 348.

Given the district court’s failure to consider the factors enumerated in Rule 18,

we had no choice but to find an abuse of discretion and vacate the defendant’s

conviction. See id. at 348–49. 

Lipscomb binds our analysis in this case. In Lipscomb, the district court

provided a thorough and reasoned order, but failed to give due consideration to

the appropriate factors. See id. In this case, however, the Del Rio Judge has

provided no rationale that would allow us to conduct the type of review

necessary to affirm such an inconvenient sua sponte transfer. Because of this

lack of reasoning, we have no choice but to find that the Del Rio Judge abused

her discretion, and to vacate Defendants’ convictions. 

IV. CONCLUSION

At the time of the Lipscomb decision, we described that case as a “true

outlier in the Rule 18 jurisprudence.” Id. The circumstances of the instant case

suggest that it too falls outside the realm of Rule 18 normalcy. Our holding is

limited to the rare instances where the district judge orders a transfer, sua

sponte and over a defendant’s objection, and fails to give due consideration to

Rule 18 when those factors overwhelmingly advise against transfer.
No. 08-50186

 Defendants also argued that the district court improperly excluded evidence that the 4

Traditional Council of the Tribe authorized some of the expenditures that led to their

convictions. In light of the remand, we need not address this argument.

10

Accordingly, we vacate Defendants’ convictions and remand for a new trial in a

venue determined in accordance with Rule 18.4

VACATED and REMANDED.