United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, UNITED STATES DISTRICT COURT JUDGE
This matter is before the Court on Defendant Jen Seko’s (“Defendant” or “Seko”) Motion to Suppress Hearsay Declarations by Alleged Co-conspirators [Dkt. 176] and Defendant’s Motion to Dismiss the Case Due to Improper Venue [Dkt. 177]. For the following reasons, the Court will deny both of Defendant’s Motions.
On October 22, 2015, a grand jury sitting in the Eastern District of Virginia charged the defendant and five others with one count of conspiracy to commit wire fraud and seven substantive counts of wire fraud stemming from an alleged mortgage modification scam. As alleged in the indictment, Defendant and her co-conspirators each played a slightly different role in the overarching scheme. Defendant was allegedly personally responsible for sending mass mailings in the names of fraudulent organizations controlled by members of the conspiracy and posing as or impersonating real government agencies or programs. These mass mailings were allegedly designed to induce the victims to fall for the scam in the first place. The indictment alleges that Defendant’s co-conspirators were then responsible for follow-up communications with the victims through various forms of communication including email. Specifically, the wire fraud counts are based on seven email messages sent to the America Online (“AOL”) accounts of five victims.
As alleged in the indictment, AOL is headquartered in Reston, Virginia and maintains four computer servers in the Eastern District of Virginia. Every email message to an AOL user passes through one of those four servers, regardless of the end user’s physical location. Additionally, those emails are stored, at least temporarily, on one of the four servers.
Each of Defendant’s five co-conspirators has since entered a guilty plea. Defendant filed these motions on April 1, 2016. The Government filed their opposition on April 6, 2016. Oral argument was heard on April 14, 2016, and the motions are now ripe for decision.
II. Legal Standard
Federal Rule of Evidence 801(d)(2)(E) controls the admissibility of co-conspirator statements. Rule 801(d)(2)(E) provides that a statement is not hearsay if it is offered against an opposing party and “was made by the party’s coconspirator during and in furtherance of the conspiracy.” F.R.E. 801(d)(2)(E). In order to admit a co-conspirator statement under Rule 801(d)(2)(E), the government must establish by a preponderance of the evidence: (1) that a conspiracy did, in fact, exist; (2) that both the declarant and the defendant were members of the conspiracy; and (3) that the statement at issue was made during the course of, and in furtherance of, the conspiracy. United States v. Heater, 63 F.3d 311, 324 (4th Cir. 1995). A court may consider an alleged co-conspirator’s statements in determining whether the government has proven the existence of a conspiracy between the defendant and the declarant, but those statements alone are not sufficient to establish the existence of a conspiracy. Bourjaily v. United States, 483 U.S. 171, 181 (1987); see also United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996)(citing United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992)).
Venue in a criminal prosecution is governed by Federal Rule of Criminal Procedure 18, which provides:
Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of the trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.
Fed. R. Crim. P. 18. “The Government has the burden of establishing, by a preponderance of the evidence, that venue is proper.” United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001)(citing United States v. Blecker, 657 F.2d 629, 632 (4th Cir. 1981)). The Fourth Circuit has held that under Rule 18, venue is proper in any district where the charged offense was committed. Id. The Fourth Circuit has further clarified that venue is only appropriate where “essential conduct elements of the offense” have taken place. United States v. Bowens, 224 F.3d 302, 309 (4th Cir. 2000). Accordingly, when determining where venue is proper, a court must “identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.” United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999). For some crimes, “[t]he inquiry into the place of the crime may yield more than one appropriate venue, . . . or even a venue in which the defendant has never set foot.” Bowens, 224 F.3d at 309. Additionally, “in a conspiracy charge, venue is proper for all defendants wherever the agreement was made or wherever any overt act in furtherance of the conspiracy transpires, ” even if that act was committed by a co-conspirator rather than the defendant herself. Id. at 311 n. 4 (citing Hyde v. United States, 225 U.S. 347, 356-67 (1912)).
Federal Rule of Criminal Procedure 21(b) allows a court to transfer a criminal proceeding to another district “for the convenience of the parties and witnesses and in the interests of justice.” Fed. R. Crim. P. 21(b). Here it is the defendant who bears the burden of demonstrating inconvenience, and “[t]he decision whether to transfer a case is committed to the sound discretion of the district court.” United States v. Heaps, 39 F.3d 479, 482 (4th Cir. 1994), abrogated on other grounds by United States v. Cabrales, 524 U.S. 1 (1998); see also United States v. Espinoza, 641 F.2d 153, 162 (4th Cir. 1981). Transfer is appropriate under Rule 21(b) if the defendant demonstrates that prosecution in the originally charged district would “result in a substantial balance of inconvenience” to the defendant. United States v. Ferguson, 432 F.Supp.2d 559, 560 (E.D. Va. 2006). The Fourth Circuit has held that in considering whether to transfer a criminal case for the convenience of the parties, a court should look to the following factors: “(1) location of the defendant; (2) location of the witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) disruption of the defendant’s business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of the place of the trial; (9) docket conditions in each district; and (10) any other specific element which might affect the transfer.” Heaps, 39 F.3d at 483 (citing and upholding the use of factors from Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-44 (1964)).
The Court will first address Defendant’s Motion to Suppress before turning to Defendant’s Motion to Dismiss Due to Improper Venue and finally addressing Defendant’s arguments in favor of ...