Wall Street Journal writes about Weinstock

By Jacob Gershman

A courtroom sketch shows former Guatemalan President Alfonso Portillo as he appears in Manhattan Federal Court in New York May 28, 2013.

For airline travelers, the difference between a direct flight and a layover is often a matter of convenience. But when the passenger is an indicted defendant, the stakes can get much higher.

Several weeks ago, federal prosecutors in Manhattan announced that after a long extradition fight, the U.S. had apprehended a former president of Guatemala, Alfonso Portillo, who is accused of using American bank accounts to launder money. But before his arraignment in Manhattan after Memorial Day weekend, Mr. Portillo was reportedly first flown to Teterboro Airport in New Jersey.

“This weekend sojourn in New Jersey may prove to be a procedural misstep with huge consequences,” writes Michael S. Weinstock, a former New York City prosecutor who worked as a maritime attorney in the criminal defense division of Chalos O’Connor LLP and is not involved in the case.

Lawyers for Mr. Portillo, who entered a plea of not guilty, declined to comment on the venue question raised by the article. Mr. Portillo served as president of Guatemala from 2000 to 2004.

Mr. Weinstock, who wrote about the Portillo matter in a draft paper submitted to St John’s Journal of International and Comparative Law, writes that the “proper venue for this matter lies in the District of New Jersey,” not the Southern District of New York.

Mr. Weinstock cites a provision of the federal code dealing with criminal procedure stating:

The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought.

A case often cited is a 1948 decision by the U.S. Court of Appeals for the First Circuit regarding a defendant in Germany charged with treason. He was supposed to be taken to Washington, D.C., to stand trial, but ended up spending three hours in Massachusetts after his plane had to make an unscheduled landing due to mechanical problems. The court said the proper venue was Massachusetts.

It’s not a very common scenario, but judges over the years have dismissed indictments over the question of where a defendant was “first brought.”

In the Portillo matter, federal prosecutors argue that the venue was properly established, citing the former president’s alleged role in moving $1.5 million from a New York bank account to a Florida account as a part of a conspiracy, according to the indictment. Mr. Weinstock said that’s a tiny hook on which to hang the case in New York.

Even if the indictment were dismissed on such grounds, the outcome might not be catastrophic for prosecutors. Mr. Portillo could be re-indicted in New Jersey.