United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge
matter comes before the court on a motion for a judgment of
acquittal under Federal Rule of Criminal Procedure 29. At the
close of the government's evidence at trial, defendants
Michael Dove and Terrance Brown moved the court for acquittal
of Counts Three through Eight of the indictment on the basis
of improper venue. ECF Nos. 849, 852.For the reasons set forth
below, the court will GRANT Dove's and
Brown's motions and dismiss Counts Three through Eight
WITHOUT PREJUDICE for improper venue.
case involves alleged gang activity by members and associates
of the Mad Stone Bloods ("MSB"). Count One of the
indictment charges four 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
the same four defendants 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) ("VICAR").
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)
for Counts Three through Eight was the subject of significant
pretrial litigation. On June 20, 2017, the court denied
motions to dismiss those counts for improper venue. See
United States v. Jones, 7:16-cv-30026, 2017 WL
2670759 (W.D. Va. June 20, 2017). That decision, however, was
based solely on the facts alleged by the government pretrial.
See United States v. Engle, 676 F.3d 405, 412 (4th
that the government has presented its case, the procedural
posture requires the court to consider all of the
venue-related evidence presented by the government. Dove and
Brown argue that the government has failed to establish venue
in the Western District of Virginia on Counts Three through
Eight, which violates 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.
The crimes alleged in Counts Three through Eight concern a
robbery outside of the Inkjunkeez tattoo parlor in Norfolk on
July 26, 2013 and the shooting of O.J. on the streets of
Norfolk during the course of an attempted robbery on August
1, 2013. As a result, Brown and Dove 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).
government argues that the issue of venue for Counts Three
through Eight should be submitted to the jury because the
government's evidence is sufficient to demonstrate that
"Brown and Dove committed the two violent crimes at
issue with the purpose of maintaining or increasing their
position in the gang, and the MSB leaders ... who had
authority over Dove and Brown and resided and operated in the
Western District of Virginia." United States' Resp.
Proof Venue, ECF No. 850, at 2.
parties' disagreement centers on the sufficiency of the
government's evidence adduced in its case in chief. As
explained below, a review of the government's evidence
dictates that the government has failed to establish that
venue properly lies in the Western District of Virginia for
Counts Three through Eight.
requires the court to "enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain
a conviction." Fed. R. Crim. P. 29(a). While the jury
remains the primary factfinder, "the trial judge still
resolves elements of the offense in granting a Rule 29 motion
in the absence of a jury verdict." Smith v.
Massachusetts, 543 U.S. 462, 468 (2005). As such, Rule
29 allows "a substantive determination" by the
court "that the prosecution has failed to carry its
[factual] burden." Id.
venue is a question of fact, and the government bears the
burden of proof of establishing venue. United States v.
Engle, 676 F.3d 405, 412 (4th Cir. 2012). Unlike other
factual elements, venue "may be proven by mere
preponderance of the evidence." Id.
Circumstantial evidence may be sufficient to establish proper
venue. Id. (citing United States v. Griley,
814 F.2d 967, 973 (4th Cir. 1987)). Because of its factual
nature, venue is ordinarily the province of the jury.
Id. Like all other factual determinations at trial,
however, venue is the proper subject of a Rule 29 motion. See
United States v. Collins, 372 F.3d 629, 633 (4th
Cir. 2004) ("[I]f an indictment properly alleges venue,
but the proof at trial fails to support the venue allegation,
an objection to venue can be raised at the close of
the applicable burden of proof for venue, a court must deny a
Rule 29 motion challenging venue if, when viewing the
evidence in die light most favorable to the government, a
rational trier of fact could conclude diat a preponderance of
the evidence supports venue in the district in which the
charges are brought. See Engle, 676 F.3d at 412
(venue standard); United States v. Wilson, 118 F.3d
228, 234 (4th Cir. 1997) (Rule 29 standard). Put another way,
if die prosecution has not established a prima facie case for
venue by its own evidence, die court should grant die Rule 29
motion. See United States v. Hinderman. 625 F.2d
994, 996 (10th Cir. 1980) (per curiam) ("Rule 29(a), as
it concerns a motion for acquittal at the close of the
prosecution's case, implements the 'requirement diat
the prosecution must establish a prima facie case by its own
evidence before the defendant may be put to his
defense.'" (quoting Cephus v. United
States, 324 F.2d 893, 895 (D.C. Cir. 1963))); c£
United States v. Gugnani. 178 F.Supp.2d 538, 542 (D.
Md. 2002) ("When the Court denied the Rule 29 Motion,
the Court believed diat by construing die evidence in the
light most favorable to the Government, a prima
facie case as to all the defendants had been
established."). If, however, '"there is a
genuine issue of material fact with regard to proper venue,
'" the court "must instruct the jury" to
resolve that issue. Engle, 676 F.3d at 413 (quoting
United States v. Perez, 280 F.3d 318, 334 (3rd Cir.
court previously detailed, see United States v.
Jones, 7:16-cv-30026, 2017 WL 2670759, at *3 (W.D. Va.
June 20, 2017), Article III of the Constitution mandates that
"[t]he 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.
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 '[t]he witnesses and relevant circumstances
surrounding the contested issues' are located."
United States v. Clines, 958 F.2d 578, 583-84 (4th
Cir. 1992) (alteration in original) (quoting Travis v.
United States. 364 U.S. 631, 640 (1961)).
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).
United States v. Umana, the Fourth Circuit 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 320, 333-36 (4th Cir. 2014). 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 violent crimes he committed in
Greensboro. On appeal, he argued that venue was
improper for the § 1959(a) offenses in Charlotte because
his violent crimes took place in a district different than
where he faced trial.
accordance with the framework governing venue outlined above,
the Fourth Circuit addressed Umana's arguments by first