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United States v. Jones

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

October 16, 2017

MICHAEL JONES, et al. . Defendants.


          Michael F. Urbanski Chief United States District Judge

         This 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.[1]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.


         This 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) violations.

         Venue 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 Cir. 2012).

         Now 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. 18.[2] 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).

         The 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.

         The 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.


         Rule 29 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.

         Proper 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 evidence.").

         Under 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. 2002)).


         As the 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.

         "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 '[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)).

         "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).


         In 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.[3] 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.[4] 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.

         In accordance with the framework governing venue outlined above, the Fourth Circuit addressed Umana's arguments by first ...

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