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United States v. Maz

United States District Court, E.D. Virginia, Richmond Division

January 9, 2017

UNITED STATES OF AMERICA
v.
EDUARDO FRANCIS MAZ, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge

         This 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.

         BACKGROUND

         On 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).

         An 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. 19).

         Both 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.

         By 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.[1] 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.

         LEGAL STANDARDS

         A. Venue

         The 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. 2006).

         Although 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)

         "Venue 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.

         Nevertheless, 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 ellipsis omitted).

         In 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 ...


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