United States v. Jones

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI, UNITED STATES DISTRICT JUDGE

         This matter comes before the court on motions challenging venue. Michael Dove and Terrance Brown request the court to dismiss Counts Three through Eight of die indictment for improper venue pursuant to Rule 12(b)(3)(A)(i) of the Federal Rules of Criminal Procedure. ECF Nos. 277, 278. Similarly, Michael Jones moves to sever the charges against him from Counts Three through Eight, arguing venue for Counts Three through Eight is defective. ECF No. 281. In the event the court determines venue properly lies in this district, Brown moves in the alternative to transfer Counts Three, Five, Six, and Eight to the Eastern District of Virginia pursuant to Rule 21(b) for convenience.^[1] ECF No. 278. Defendants Michael Jones and Shawn Smith join in the motion to transfer to the Eastern District under Rule 21(b).^[2] ECF Nos. 366, 376.

         For the reasons set forth below, the court will DENY Dove's and Brown's motions to dismiss for improper venue, DENY Michael Jones' motion to sever, and DENY Brown's, Michael Jones', and Smith's motions to transfer. The entirety of this case will stay in this district and proceed to trial on September 11, 2017.

         I.

         This case involves alleged gang activity by members and associates of the Mad Stone Bloods ("MSB"). Count One of the indictment charges eight defendants with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO) in violation of 18 U.S.C. § 1962(d). Count Two charges tiiirteen defendants, including the eight charged in Count One, with drug conspiracy in violation of 21 U.S.C. § 846. Dove and Brown, in addition to facing the RICO and drug conspiracy counts, are charged with violent crime and firearm offenses in Counts Three through Eight. Specifically, Brown and Dove are both named in Counts Three and Six, which charge assault in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3). Counts Four and Seven charge Dove with use of a firearm during a crime of violence under 18 U.S.C. § 924(c), and Counts Five and Eight charge Brown with § 924(c) violations.

         Dove and Brown argue that Counts Three through Eight of the indictment must be dismissed due to improper venue. The indictment states that the conduct underlying those counts occurred "in the Western District of Virginia, Eastern District of Virginia and elsewhere." Indictment, ECF No. 19, ¶¶ 25, 27, 29, 32, 34, 36. At a March 23, 2017 hearing, Brown moved under Rule 7(f) for a bill of particulars identifying the specific location of the conduct alleged in Counts Three through Eight in effort to determine whether a pretrial motion challenging venue would be appropriate. The court granted Brown's Rule 7(f) motion and the government filed such a bill on April 14, 2017. ECF No. 275. Brown and Dove, in the instant motions to dismiss, argue that the facts set forth in the bill of particulars fail to satisfy the venue requirements for Counts Three through Eight.^[3]

         The bill of particulars describes two violent episodes that underlie the counts at issue. First, according to the bill, Dove and Brown robbed customers at the Ink Junkeez tattoo parlor in Norfolk, Virginia on or about July 26, 2013. The pair allegedly brandished firearms and took money and personal items, including a woman's purse, credit cards, $50 in cash, and a $150 money order. The government asserts that Dove and Brown committed this robbery for the purpose of maintaining or increasing their positions in MSB, thus providing the basis for the § 1959(a) charge in Count Three. The alleged use of firearms during the Ink Junkeez robbery supports the § 924(c) charges in Counts Four and Five.^[4]

         The second violent incident outlined in the bill of particulars supports Counts Six, Seven, and Eight. As the government alleges in the bill, Dove and Brown shot victim O.J. numerous times during the course of an attempted robbery near 1552 Hemlock Street, Norfolk, Virginia on or about August 1, 2013. The victim, however, did not have money or personal items in his possession to allow Dove and Brown to complete the robbery. The government asserts Brown and Dove attempted to rob O.J. for die purpose of furthering their positions in MSB, thus amounting to a § 1959(a) offense as alleged in Count Six. The discharge of the weapons supports the § 924(c) charges in Counts Seven and Eight.

         Dove and Brown argue that going to trial for Counts Three through Eight in the Western District of Virginia would violate their right to be tried where the crimes were committed. See U.S. Const, art. Ill. § 2, cl. 3; U.S. Const, amend. VI; Fed. R. Crim. P. 18.^[5]They claim that the conduct giving rise to those charges occurred entirely in Norfolk, which is located in the Eastern District of Virginia. 28 U.S.C. § 127(a). The government argues that venue is proper for § 1959(a) violations "in any district where the [racketeering] enterprise conducted its affairs, as well as where the underlying crime of violence occurred." Government's Resp. in Opp'n to Mot. for Bill of Particulars, ECF No. 198, at 4 (emphasis original).^[6] The government alleges that MSB members conducted numerous criminal activities in the Western District, thus satisfying venue here. The parties' disagreement primarily centers on differing views of United States v. Umana, 750 F.3d 320 (4th Cir. 2014), in which the Fourth Circuit examined proper venue for § 1959(a) prosecutions. As explained below, Umana, together with other controlling authority, dictate that the government's allegations are sufficient for venue to properly lie in the Western District of Virginia for Counts Three through Eight of the indictment.

         II.

         Pretrial motions challenging venue cannot rest on factual determinations. "A district court may dismiss an indictment under Rule 12 where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial." United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) (citations and quotations omitted). Therefore, the court takes the allegations in the indictment and bill of particulars as true and may only dismiss the § 1959(a) charges if those allegations do not establish venue. If, at the close of evidence, a defendant raises a genuine issue of material fact with regard to proper venue, the court must instruct the jury regarding the government's burden to prove that venue is proper in this district by a preponderance of the evidence. Engle, 676 F.3d at 415. But given the procedural posture of Dove's and Brown's instant motions, the court's inquiry is limited to whether "there is an infirmity of law in the prosecution." Id.

         A.

         Article III of the Constitution mandates that "The Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed." U.S. Const, art. Ill. § 2, cl. 3. The Sixth Amendment further requires that criminal defendants be tried "by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const, amend. VI. Federal Rule of Criminal Procedure 18 implements these constitutional venue rights: "[T]he government must prosecute an offense in a district where the offense was committed." Fed. R. Crim. P. 18.

         "The federal venue requirement protects criminal defendants from the inconvenience and prejudice of prosecution in a far-flung district bearing no connection to their offenses." Engle, 676 F.3d at 412 (citation and quotation omitted); see also United States v. Cabrales, 524 U.S. 1, 9 (1998) ("[T]he venue requirement is principally a protection for the defendant."). These constitutional provisions also "promote thorough factfinding" and are "best served by holding trial where the witnesses and relevant circumstances surrounding the contested issues are located." United States v. Clines. 958 F.2d 578, 583-84 (4th Cir. 1992).

         "While the venue rule-trial in the district where the crime is committed-seems straightforward, the place of the crime can be difficult to determine." United States v. Bowens. 224 F.3d 302, 308 (4th Cir. 2000). Absent an express direction from Congress otherwise, "the site of a charged offense must be determined from the nature of the crime alleged and the location of the act or acts constituting it." Cabrales, 524 U.S. at 5 (citations and quotations omitted). "In performing this inquiry, a court must initially 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). In the Fourth Circuit, "the conduct constituting the offense is limited to essential conduct elements" of the offense. Bowens. 224 F.3d at 312. Elements that are not conduct elements are "circumstance elements, " which, "even if essential, are of no moment to a venue determination." United States v. Oceanpro Indus., Ltd., 674 F.3d 323, 328 (4th Cir. 2012) (citations and quotations omitted).

         B.

         The Fourth Circuit in Umana examined proper venue for § 1959(a) offenses and held that venue properly lies not only where the violent crime was committed but also where the defendant conducted an act showing that the purpose of the crime was to further his position in a RICO enterprise. 750 F.3d at 333-36. The defendant in Umana was a member of Mara Salvatrucha, which is commonly known as MS-13. At the direction of gang leaders in New York, Umana travelled from Los Angeles, California to Charlotte, North Carolina to "take control" and teach the North Carolina members "how to run a gang." Id. at 331. After several months of conducting meetings and gang activities in Charlotte, Umana drove to Greensboro, North Carolina, where he killed two brothers who he believed had disrespected MS-13. Immediately following the double murder, Umana travelled from Greensboro, which is located in the Middle District of North Carolina, back to Charlotte, which is located in the Western District of the state. While in Charlotte, he boasted to other gang members about the murders, saying that the victims "had insulted MS-13 and that he had killed them for his fellow gang members." Id. at 336.

         Much like Dove and Brown, Umana was charged with a RICO offense under § 1962, two counts of violent crimes in aid of racketeering under § 1959(a), and corresponding firearms offenses under § 924(c). He was tried and convicted in Charlotte for the murders he committed in Greensboro. On appeal, Umana argued that venue was improper for the § 1959(a) offenses in Charlotte because the murders took place in a district different than where he faced trial. In accordance with the framework governing venue outlined above, the Fourth Circuit addressed Umana's arguments by first identifying the elements of a § 1959(a) offense:

(1) that there was an enterprise engaged in racketeering ...