United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI, UNITED STATES DISTRICT JUDGE
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. ECF No. 278. Defendants Michael Jones and
Shawn Smith join in the motion to transfer to the Eastern
District under Rule 21(b). ECF Nos. 366, 376.
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.
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.
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
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
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.
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.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). 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.
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.
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.
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).
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).
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.
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