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United States v. Jones

United States District Court, W.D. Virginia, Roanoke Division

March 27, 2017

UNITED STATES OF AMERICA,
v.
MICHAEL JONES, et al., Defendants.

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE

         This matter is before the court on various pretrial motions. Given scheduling conflicts among counsel for the thirteen defendants in this case, the court held two hearings to address the pending motions. On March 21, 2017 defendants Anthony Day, Ronnie Nicholas, and Clifford Jennings appeared with counsel. Defendant Shawn Smith was unable to attend because he was receiving inpatient medical treatment, but Smith's counsel was present on his behalf. On March 23, 2017, defendants Michael Jones, Michael Dove, Terrance Brown, Corey Owens, James Bumbry, and Shonda Jones appeared with counsel. Defendants Christine Kelly and Jaymese Jones appeared telephonically and their counsel were present in the courtroom.[1] All parties at both hearings were given the opportunity to provide input on any pending motions.

         1. Brown's Motion to Withdraw as Counsel.

         On March 8, 2017, Brown filed a motion to withdraw as counsel. ECF No. 231. Prior to the March 23 hearing, Brown was represented by Dana R. Cormier. Upon receipt of discovery in this case, Cormier realized that his representation of Brown presented a conflict or potential conflict of interest under Rules 1.7 and 1.9 of the Virginia Rules of Professional Conduct, which govern the duties lawyers practicing in Virginia owe to current and former clients. In anticipation of granting Brown's motion to withdraw, the court requested the presence of Paul Beers at the March 23 hearing. In light of Cormier's description of his conflict or potential conflict of interest, the court granted Brown's motion and appointed Beers to represent Brown under the Criminal Justice Act, 18 U.S.C. § 3006A(c). ("[T]he court may, in the interests of justice, substitute one appointed counsel for another at any stage of r the proceedings."). Beers argued on behalf of Brown for the remainder of the hearing.

         2. Brown's Oral Motion for a Bill of Particulars.

         Following appointment of new counsel, Brown made an oral motion for a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, requesting the government to provide information to defendants as to the location of the conduct alleged in the indictment.[2] ECF No. 256. Brown seeks this information to determine if venue for this case is appropriate in the Western District of Virginia.

         Counts Three through Nine of the indictment, which charge firearm offenses and violent crimes in aid of racketeering, [3] state that the conduct alleged therein occurred "in the Western District of Virginia, Eastern District of Virginia and elsewhere." ECF No. 19, ¶¶ 25, 27, 29, 32, 34, 36, 28. Counts One and Two, which charge racketeering conspiracy and drug conspiracy violations, [4] similarly state that the conduct alleged in those counts occurred "in the Western District of Virginia and elsewhere." ECF No. 19, ¶¶ 14, 19. Given the multidistrict geographic scope of the allegations in the indictment, Brown asks the government to describe with particularity the evidence supporting proper venue in the Western District of Virginia. The government opposes the motion, arguing that the 50, 000 plus pages of discovery provided to Brown include the locations of the conduct alleged in the indictment.

         "[T]he granting or denial of a bill is within the court's discretion." United States v. Bales. 813 F.2d 1289, 1294 (4th Or. 1987). "It is settled that the purpose of a bill of particulars is to enable a defendant to obtain sufficient information on the nature of the charge against him so that he may prepare for trial ..." United States v. Schembari 484 F.2d 931, 934-35 (4th Cir. 1973). A bill "is not to be used to provide detailed disclosure of the government's evidence in advance of trial." United States v. Automated Med. Labs.. Inc., 770 F.2d 399, 405 (4th Cir. 1985). However, "in order for the defendant to be on proper notice it will often be necessary for the government to disclose the time and place of the alleged offense/5 1 Wright and Miller, Fed. Prac. & Proc. Crim. § 130 (4th ed.). There is a long history of courts directing the government to provide a bill of particulars where the location of the alleged criminal conduct is unclear in the indictment. See, e.g.. United States v. Mohammad. No. 1:10CR389, 2012 WL 4483544, at *10 (N.D. Ohio Sept. 27, 2012) (requiring government to provide "dates and places that [defendant] is alleged to have committed any offenses that were in furtherance of the conspiracy."); United States v. Lonzo, 793 F.Supp. 57, 59 (N.D.N.Y. 1992) ("[I]n accordance with the past practice of this Court, the location of 'elsewhere' shall be provided to Lonzo by the Government."); United States v. Billups. 522 F.Supp. 935, 950 (E.D. Va. 1981) (court granted bill as to location of crimes where indictment merely stated offenses occurred in "the Eastern District of Virginia and elsewhere"); United States v. GiramontL 26 F.R.D. 168, 169 (D. Conn. 1960) (directing government to furnish the "exact place at which the alleged crime was alleged to have been committed").

         In this case, Brown seeks information relevant to determining whether an objection to venue is warranted. If a defendant fails to raise a venue objection before trial, he risks waiving the ability to raise the objection at the close of evidence or on appeal. See United States v. Melia. 741 F.2d 70, 71 (4th Or. 1984) (A venue "objection must be made before trial [only if] the defect is apparent on the face of the indictment."); but see United States v. Stewart, 256 F.3d 231, 238 (4th Cir. 2001) (suggesting that defendant's pretrial motion for a bill of particulars as to venue would preserve a venue objection on appeal). Therefore, in order to sufficiently prepare for trial and avoid the potential of waiving venue rights, defendants might need more specific venue-related information than is included in the indictment See Schembari. 484 F.2d at 934-35 (purpose of a bill of particulars is to allow defendants to sufficiendy prepare for trial). To determine what additional information, if any, would shed light on the venue issues in this case, the court considers the facts set forth in the indictment and the law governing proper venue for each count. United States v. Robinson. 275 F.3d 371, 378 (4th Or. 2001) ("When multiple counts are alleged in an indictment, venue must be proper on each count.").

         Venue for Counts One, Two, and Nine is governed by the rules applicable to conspiracies:

In a conspiracy case, the Supreme Court has long held that venue is proper in any district in which a conspirator performs an overt act in furtherance of the conspiracy or performs acts that effectuate the object of the conspiracy, even though there is no evidence that the defendant had ever entered that district or that the conspiracy was formed there.

United States v. Mitchell. 70 F.App'x 707, 711 (4th Or. 2003) (citing Hyde v. United States, 225 U.S. 347, 356-67 (1912). The Fourth Circuit "has repeatedly held that the overt act of one conspirator in a district suffices to establish venue for all other co-conspirators in that district. ... [In fact, ] insubstantial acts such as telephone calls to the district have served to establish venue in conspiracy cases/5 Mitchell. 70 F.App'x at 711. In this case, the indictment alleges some overt acts occurred exclusively within the Western District of Virginia. See, e.g.. ECF No. 19, ¶ 13(m). Therefore, the government need not provide additional information as to the location of the conduct alleged in Counts One, Two, and Nine as the furnishing of such information is not necessary for the defendants to sufficiently prepare for trial.[5]

         Venue for Counts Three through Eight is governed by the Fourth Circuit's decision in United States v. Umana. 750 F.3d 320 (4th Cir. 2014), which examines proper venue for violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959.[6] The Umana court held that § 1959(a) "includes as an element an objective, physical act that links the defendant with the enterprise with respect to the underlying violent crime and that this element is a conduct element supporting venue." 750 F.3d at 335. As stated, Counts Three through Eight merely state that the alleged conduct occurred "in the Western District of Virginia, Eastern District of Virginia and elsewhere." Specific information as to the location of "physical act[s] that link[] the defendant with the enterprise with respect to the underlying violent crime" is absent from the indictment.

         Given the risk of waiving venue rights if an objection is not raised before trial, this information is necessary for the defendants to sufficiently prepare for trial. Accordingly, the court directs the government to file a bill of particulars on or before April 15, 2017 detailing the evidence that supports venue in ...


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