United States District Court, E.D. Virginia, Richmond Division
January 9, 2017
UNITED STATES OF AMERICA
EDUARDO FRANCIS MAZ, Defendant.
E. Payne, Senior United States District Judge
matter is before the Court on Defendant Eduardo Francis
Maz's DEFENDANT'S MOTION TO DISMISS FOR LACK OF VENUE
("Def. Mot."), ECF No. 12. For the reasons set
forth below, the Defendant's Motion will be granted in
part and denied in part.
November 3, 2015, a grand jury for the Eastern District of
Virginia returned a one-count indictment against the
Defendant Maz, alleging misuse and attempted misuse of a
passport in violation of 18 U.S.C. § 1544. (Indictment,
ECF No. 3) . The Indictment charges that, on or about
December 29, 2013, Maz "willfully and knowingly used and
attempted to use United States passport No. 212907793 issued
and designed for the use of another and in violation of the
conditions and restrictions therein contained."
Id. As alleged in the indictment, Maz "took
from the custody and control of Victor Ronald Maz, the
defendant's brother, Victor Ronald Maz's United
States passport and presented that same passport in order to
depart the United States on an airplane bound for Guatemala
City, Guatemala." Id. The passport was
allegedly presented at Miami International Airport in Miami,
Florida. In the UNITED STATES' RESPONSE OPPOSING
DEFENDANT'S MOTION TO DISMISS FOR LACK OF VENUE IN THE
EASTERN DISTRICT OF VIRGINIA (U.S. Resp.), the Government
contends that the passport was acquired in the Eastern
District of Virginia. (U.S. Resp. 1).
arrest warrant for Maz was issued on November 4, 2015 (ECF
No. 6), and executed on September 14, 2016 (ECF No. 7). On
October 26, 2016, Maz filed this motion to dismiss for lack
of venue (ECF No. 12). The United States filed its initial
response ("U.S. Resp.") (ECF No. 14) on November 4,
2016, and Maz filed a reply (Def. Reply) (ECF No. 15) on
November 10, 2016. An evidentiary hearing and argument were
held on November 21, 2016, and, at the request of the United
States at a conference call on the record the following day,
the Court ordered supplemental briefing on Maz's motion
(ECF No. 16). A supplemental memorandum was filed by the
United States on December 5, 2016 ("U.S.
Supp.")(ECF No. 17), and Maz filed his response on
December 13, 2016 ("Def. Suppl. Resp.") (ECF No.
18). The United States filed its supplemental reply on
December 16, 2016 ("U.S. Suppl. Reply") (ECF No.
parties have focused their argument on the proper venue for
the charge of actual misuse of the passport. In his initial
and supplemental memoranda, Maz contends that, under binding
Fourth Circuit precedent, the only jurisdiction where venue
lies for misuse of a passport is the jurisdiction where the
passport is presented (Def. Mot. 1) (Def. Reply 2-4) (Def.
Supp. Resp. 2-10) . In response, the United States insists
that 18 U.S.C. § 1544 constitutes a continuing offense
which begins when and where a defendant acquires the passport
with criminal intent. (U.S. Resp. 4-8) (U.S. Supp. 2-14)
(U.S. Supp. Reply 2-4.
contrast, neither party has addressed the fact that, as
returned, the Indictment also charges Maz with Attempted
Misuse of a Passport under 18 U.S.C. §
1544. Notwithstanding this inattention to the
attempt charge, Maz asks the Court to dismiss the entire
indictment for lack of venue. Thus, the Court must also
consider whether venue lies for the charge of attempted
misuse of a passport under 18 U.S.C. § 1544. The Court
finds that no additional briefing is necessary to aid the
Court in making this additional determination.
Constitution provides criminal defendants with the right to
be tried in the State and district where their alleged crime
was committed. See U.S. Const, art. Ill. § 2,
cl. 3; U.S. Const. amend. VI. The Federal Rules of Criminal
Procedure further protect this right by requiring that,
"[u]nless a statute or these rules permit otherwise, the
government must prosecute an offense in a district where the
offense was committed." Fed. R. Crim. P. 18. Together,
these provisions protect criminal defendants "from the
inconvenience and prejudice of prosecution in a far-flung
district bearing no connection to their offenses."
United States v. Smith, 452 F.3d 323, 334 (4th Cir.
the venue rule "seems straightforward, the place of the
crime can be difficult to determine." United States
v. Bowens, 224 F.3d 302, 308 (4th Cir. 2000).
Consequently, the Supreme Court and the Fourth Circuit have
provided further instruction. Where the statute does not
provide for venue, the Supreme Court has counseled that venue
"must be determined from the nature of the crime alleged
and the location of the act or acts constituting it."
United States v. Cabrales, 524 U.S. 1, 7, (1998)
(quoting United States v. Anderson, 328 U.S. 699,
703 (1946)). In making this determination, both the Supreme
Court and the Fourth Circuit have instructed that the
analysis should focus on the essential elements of the
charged offense. See United States v.
Rodriguez-Moreno, 526 U.S. 275, 280 (1999)
does not necessarily lie, however, in every district where an
essential element of the offense has transpired."
United States v. Bowens, 224 F.3d 302, 309 (4th Cir.
2000). In Bowens and subsequent cases, the Fourth
Circuit has made clear that, unless the pertinent criminal
statute instructs otherwise, venue is limited to "the
place of the essential conduct elements of the
offense." Id. (emphasis in original); see
also United States v. Engle, 676 F.3d 405, 413 (4th Cir.
2012) ("This assessment must focus on the essential
conduct elements' of the charged offense[.]" Only
this rule aligns with the Supreme Court's instruction to
limit venue to the location "where the criminal act is
done." Andersonf 328 U.S. at 705.
venue for a single crime may still lie in multiple districts.
United States v. Engle, 676 F.3d 405, 413 (4th Cir.
2012). And, "[w]here venue requirements are met, the
prosecution may proceed in that district, notwithstanding the
possibility that the gravamen of the wrongdoing took place
elsewhere, " Smith, 452 F.3d at 334. This is
often the case with offenses that qualify as "continuing
offenses" under 18 U.S.C. § 3237, which provides
that "any offense against the United States begun in one
district and completed in another, or committed in more than
one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or
completed." Id. Notwithstanding this language,
it remains true that "the districtAwhere the
criminal act is done determines the jurisdiction' where
the case must be tried." Bowens, 224 F.3d at
309 (quoting Anderson, 328 U.S. at 705) (internal
satisfying these tests, the United States has the burden of
demonstrating that venue is proper. United States v.
Burns, 990 F.2d 1426, 1436 (4th Cir. 1993). However,
unlike other aspects of the criminal trial, the Government
may do so by preponderance of the evidence. Id.
Furthermore, while the existence of venue is typically a
question of fact for the jury, a Defendant can and must raise
the issue before trial if the alleged defect in venue appears
on the face of his indictment. See United States v.
Ebersole, 411 F.3d 517, 525 (4th Cir. 2005). Although it
is not apparent on the face of the Indictment here, the
United States does not dispute that the passport in question
was presented in Miami, Florida. For purposes of this motion,
Maz has assumed, but does not concede, that the passport was
acquired in Virginia. (Def. Reply 1).
Fourth Circuit, an "attempt to commit a crime, which is
recognized as a crime distinct from the crime intended by the
attempt, punishes conduct that puts in motion events that
would, from the defendant's point of view, result in the
commission of a crime but for some intervening
circumstance." United States v. Pratt, 351 F.3d
131, 135 (4th Cir. 2003). Although there is no federal
statutory definition of attempt, the Fourth Circuit requires
the Government to prove, beyond reasonable doubt, that the
defendant had "culpable intent to commit the crime
charged, " and that he or she took "a substantial
step towards the completion of the crime that strongly
corroborates that intent." Engle, 676 F.3d at
419 (4th Cir. 2012). This standard was initially drawn, and
remains closely aligned to, the definition of attempt found
in the Model Penal Code. See United States v.
McFadden, 739 F.2d 149, 152 (4th Cir.1984); see
also Model Penal Code § 5.01(1)(c).
response and supplemental response of the United States point
out, the Eastern District of Virginia has a strong and
justified interest in prosecuting the Defendant in this case.
In December of 2013, Maz was facing serious state charges. On
December 13, 2013, the Virginia Prosecutor nolle
prossed those charges with an apparent warning to Maz
that they would shortly be re-filed. (U.S. Resp. 1-2). Before
those charges could be refiled (which occurred on January 6,
2014), Maz (as alleged) used his brother's passport to
leave the United States. Id. Notwithstanding the
fact that no charges were pending during Maz's travel,
see Def. Supp. Reply at 3, it appears quite likely
from the briefing that the instant offense was committed to
evade prosecution of more serious charges in Virginia. Under
such circumstances, the Eastern District of Virginia can
hardly be described as "a far-flung district bearing no
connection to the offense, " and it is thus
difficult to suggest that the principles of criminal venue
would be offended by requiring Maz to stand trial in this
district. United States v. Smith, 452 F.3d 323, 334
(4th Cir. 2006). Nevertheless, binding precedent in this
circuit disregards these factors in favor of a singular focus
on the "essential conduct elements" of the charged
offense(s). Bowen, 224 F.3d at 309; see
also Engle, 676 F.3d at 413.
that binding precedent, it is clear that the crime of
"misuse of a passport" is more akin to the crime of
harboring a fugitive than it is to wire fraud. Cf.
Bowen, 224 F.3d at 309-10 and Ebersole, 411
F.3d at 525-527. Similarly to the offense of harboring a
fugitive in Bowen, there are not multiple conduct
elements involved in misusing a passport, much less
essential conduct elements. Instead, the one and
only essential conduct element contained in 18 U.S.C. §
1544 is the actual misuse of a passport: here, its
presentation to authorities in Florida.
contrary to argument of the United States, it is not enough
for venue purposes that some other action (i.e., obtaining
the passport) is a logically necessary predicate to the
offense- even if that predicate action is also criminal.
See United States v. Villarini, 238 F.3d 530, 532
(4th Cir. 2001) (holding that venue did not lie in Virginia
for money laundering that occurred in Florida, despite the
fact that the money was embezzled in Virginia).
Bowen and Villarini teach that venue is
"proper only in a district in which an essential conduct
element of the offense took place." Villarini,
238 F.3d at 534. Therefore, the acquisition of the passport,
even if it did occur in Virginia, cannot support venue for
the charge of misuse of a passport. Venue for that offense
will lie only where the passport is actually misused. In this
case, that venue is the Southern District of Florida, not the
Eastern District of Virginia.
applying this same precedent and analysis to the law of
attempt, it is equally clear that the charge of
attempted misuse of a passport cannot be dismissed
at this stage. Under Bowen and Engle, venue
for the attempted misuse of a passport under § 1544 will
lie in any district in which the Defendant took "a
substantial step towards the completion of the crime"
with the requisite "culpable intent to commit the crime
charged." Engle, 67 6 F.3d at 419. In other
words, the "'substantial step towards completion of
the crime" is the "essential conduct element"
of any criminal attempt. 16.. ; see also
Bowen 224 F.3d at 309. Thus, although Maz correctly
argues that acquiring the passport of another is not an
"essential conduct element" of actually
misusing it, the same act would still constitute (if proven)
the "substantial step" necessary to convict, and
therefore an "essential conduct element" of, the
charge of attempted misuse of a passport. See Model
Penal Code § 5.01 (listing "possession of materials
to be employed in the commission of the crime" as an
example of a "substantial step"); see also
Pratt, 351 F.3d at 135 (endorsing that list). As a
result, if the Government can prove that Maz acquired his
brother's passport with the intent to misuse it-i.e. the
complete crime of attempted misuse of a passport-in the
Eastern District of Virginia, venue will be proper on that
Maz assumed otherwise for purposes of this motion, he
actively disputes the United States' claim that he
acquired his brother's passport in Virginia. See
Def. Reply 1 ("Mr. Maz does not concede the accuracy of
these facts."). Therefore, a factual dispute exists
relating to the question of venue and the charge of attempted
misuse of a passport. Under Fourth Circuit precedent, that
dispute must be submitted to the jury at trial, where the
Government will have the burden of proof of demonstrating
venue by preponderance of the evidence. United
States v. Ebersole, 411 F.3d 517, 526 (4th Cir.
2005). Accordingly, the Defendant's motion will therefore
be denied as it relates to the charge of attempted misuse of
reasons stated herein, the Defendant's Motion will be
granted in part and denied in part. The charge of misuse of a
passport, contained in Count One of the Indictment, will be
dismissed for lack of venue pursuant to Fed. R. Crim. P. 18.
The charge of attempted misuse of a passport, also contained
in Count One of the Indictment, shall remain, to be fully
resolved by the jury at trial in this district.
 The United States comes somewhat close
to arguing attempt in its arguments for venue under the law
of conspiracy, but as the Defendant rightly points out, the
Indictment does not charge conspiracy. (Def. Supp. Resp.
3-4). It does charge attempt. (Indictment, ECF No.