United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE
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. All parties at both hearings were given
the opportunity to provide input on any pending motions.
Brown's Motion to Withdraw as Counsel.
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.
Brown's Oral Motion for a Bill of Particulars.
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. ECF No. 256. Brown seeks
this information to determine if venue for this case is
appropriate in the Western District of Virginia.
Three through Nine of the indictment, which charge firearm
offenses and violent crimes in aid of racketeering,
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,  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.
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").
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.").
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
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.
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. 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 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 ...