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United States v. Jones

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

September 4, 2017

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

          MEMORANDUM OPINION

          Michael F. Urbanski Chief United States District Judge

         This matter comes before the court on an oral motion to transfer this case to the United States District Court for the Eastern District of Virginia. All five defendants scheduled for trial on September 11, 2017, Michael Jones, Clifford Jennings, Ronnie Nicholas, Terrance Brown, and Michael Dove, joined in this oral motion made at the final pretrial conference on September 1, 2017. Although venue has been a topic of discussion in this case since it was transferred to the undersigned in March, 2017, it was not until the September 1, 2017 final pretrial conference that all five defendants agreed and orally moved to transfer this case to the Eastern District of Virginia under Federal Rule of Criminal Procedure 21. Although the court has been mindful of venue concerns throughout this case and notes that many of the alleged events took place in the Eastern District of Virginia, it would be both inconvenient and contrary to the interests of justice to transfer this case on the cusp of trial, given the looming trial date, the fact that venue is legally proper here, and the substantial pretrial development that has taken place in this district. As such, the oral motion to transfer is DENIED.

         I.

         The RICO and drug conspiracy allegations in this case span the geographic breadth of the Commonwealth of Virginia, including allegations of gang-related drug dealing in Roanoke and at a state prison located in Buckingham County, and an attempted hit on a gang member at a state prison in far southwest Virginia. To be sure, most of the allegations focus on conduct occurring in the Eastern District of Virginia, including multiple allegations of gang-related drug dealing on the street and in state prisons located there. Indeed, both of the counts alleging assault with a dangerous weapon in aid of racketeering (the “VICAR” counts) arise out of robbery and shooting episodes in Norfolk on July 26 and August 1, 2013, as do each of the four charges of use of a firearm during a crime of violence. Four of the five defendants remaining for trial are from the Tidewater Virginia area, and it is easy to question why the case was not initially brought there.

         Given the less substantial relationship to the Western District of Virginia, this case has been beset by venue issues nearly since the time of indictment. On December 9, 2016- in the first substantive filing by any defendant-Jones noted his opposition to a trial date in January 2018 on speedy trial grounds and suggested a change of venue would quicken the process.[1] ECF No. 183. According to Jones, “it is difficult to see how venue is proper in the Charlottesville Division” especially given that the “crimes of violence[] are alleged to have occurred in the Eastern District of Virginia.” Id. Brown filed a similar motion on December 28, 2016. ECF No. 194.

         On December 22, 2016, Dove filed a motion for a bill of particulars “for the purpose of apprising the Defendant of facts necessary to determine whether a pretrial objection to venue is warranted.” ECF No. 189. Following the first pretrial hearing held by the undersigned district judge on March 21, 2017, the court on March 27 directed the government to provide such a bill. ECF No. 266. In April 2017 Dove and Brown filed motions challenging venue as to the VICAR and firearms counts in the Indictment. ECF Nos. 277, 278. Two defendants joined in those motions, ECF Nos. 366, 376, which included a request to transfer certain counts to the Eastern District of Virginia pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure. The government opposed these venue motions, arguing that venue was proper, ECF No. 290, and that a transfer was inappropriate, ECF No. 360.

         Following up on the hearing addressing venue on May 11, 2017, the court sent an email to counsel on June 12, 2017, asking the defendants to indicate whether they joined in a motion to transfer this case to the Eastern District of Virginia. Jones and another defendant, Shawn Smith, [2] joined in Brown's transfer motion. ECF Nos. 366, 376, 278. But as those three defendants clarified at a June 16 hearing, they did not seek transfer of the entire case, including the RICO or drug conspiracy charges; rather they only sought transfer of the VICAR and firearms counts against Brown. Nicholas did not object to a transfer but did not join in the motion. ECF No. 379. Dove, Jennings, and three other defendants expressly objected to moving the case from this district.[3] In short, the only transfer request before the court was to transfer some of the counts alleging violent crimes against one defendant. No party moved to transfer the RICO or drug conspiracy counts to the Eastern District despite having ample opportunity to do so.[4]

         On June 20, 2017, the court entered a Memorandum Opinion and Order denying those venue motions. ECF Nos. 395, 396. Based on the allegations in the Indictment, the court determined that venue was constitutionally proper for all the counts in this case, and therefore, none would be dismissed.[5] As regards the transfer request, the court considered the factors enumerated by the Supreme Court in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240 (1964), and noted that much of this case may well “be more at home in Norfolk.” ECF No. 395, at 17. Nevertheless, the court concluded that transferring only some of the counts against one defendant would trigger largely identical adjudicative efforts and unnecessarily delay resolution of the case. Accordingly, the court denied the Rule 21(b) transfer requests.

         Since this case was indicted, the court heard argument on venue issues during five separate pretrial conferences in the months between March and September 2017. At the final pretrial conference-just ten days before trial-all defendants joined a request to transfer all of this case to the Eastern District of Virginia. This request marked the first time that all defendants in the joint trial agreed to request transfer. In fact, the government joined in the motion, citing concerns about Brown's trial preparation given his pro se status.

         II.

         As noted, the court has determined that at this stage venue is constitutionally proper for all counts in the Western District of Virginia. See Memorandum Opinion, ECF No. 395. Therefore, the only mechanism by which defendants can challenge venue is to request a transfer of venue for prejudice or for convenience under Rule 21:

(a) For Prejudice. Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there. (b) For Convenience. Upon the defendant's motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.

Fed. R. Crim. P. 21(a)-(b). At the September 1 hearing, defendants moved for transfer on both prejudice and convenience grounds. The government joined, seemingly in hopes of providing Brown with additional time to prepare for trial.

         The government's request to transfer must be denied for two reasons. First, Rule 21 “allows defendants to obtain changes of venue in order to get fair and impartial trial. No rule or statute grants such a privilege to the United States.” Parr v. United States, 351 U.S. 513, 523 (1956) (Warren, C.J., dissenting) (emphasis added). Second, the government's request to transfer is a veiled request for a continuance ostensibly on behalf of Brown as a pro se defendant. At the September 1 hearing, the court denied Brown's request for a continuance, finding that Brown, who has been in pretrial detention for nearly ten months and was counseled for most of that time, has had sufficient time to prepare his defense.[6] As such, the court determined that a continuance would not serve ...


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