United States District Court, E.D. Virginia, Alexandria Division
O'Grady, United States District Judge
Court heard oral argument on the Defendant's Motion to
Dismiss, Dkt. 31, on October 25, 2019. Having considered the
briefs and arguments, this Court denied Defendant's
motion. Dkt. 37.
moved to dismiss the indictment on the grounds of lack of
jurisdiction and improper venue. Defendant's jurisdiction
argument is centered on the manufactured jurisdiction
doctrine. He argues that the government manufactured
jurisdiction here first because he was not predisposed to
import drugs into the United States and was thus entrapped.
Second, he argues that the government initiated and thus
manufactured the essential intent element of the
crime.Defendant's venue argument holds that
he should not be prosecuted in this District because no
essential conduct elements of the charged counts occurred
manufactured jurisdiction doctrine "prohibits the
government from "manipulating] events to create federal
jurisdiction over a case." United States v.
Davis, 855 F.3d 587, 589 (4th Cir.). cert,
denied. 138 S.Ct. 268, 199 L.Ed.2d 172 (2017) (quoting
United Stales v. Al-Talib. 55 F.3d 923. 929 (4th
Cir. 1995)). The doctrine has been applied to prevent the
government from "creat[ing] a federal crime out of a
state crime" where "the only reason the
sole jurisdictional link occurred  was that it was
contrived by the government for that reason alone."
United States v. Coates, 949 F.2d 104, 106 (4th Cir.
1991) (emphasis in original) (citing United States v.
Brantley, 777 F.2d 159, 163 (4th Cir. 1985)).
Circuit, however, courts do not "operate from the
premise that the government's actions were presumptively
improper." United States v. Brinkman, 739 F.2d
977, 982 (4th Cir. 1984). Therefore, "the manufactured
jurisdiction doctrine comes into play only when
there is evidence to support it." Davis, 855
F.3d at 592 (emphasis in original). The Fourth Circuit has
repeatedly declined to presume the government acts with the
improper purpose of contriving jurisdiction, even in
suspicious circumstances, when evidence of an improper
purpose is absent. See, e.g. Id. (use of text
message implicating interstate commerce did not manufacture
jurisdiction); Brinkman, 739 F.2d at 982 (declining
to "assume that there was no legitimate explanation
underlying" a government agent's choice to meet 100
yards over a state border); United States v. Cooper,
1995 WL 44654, *1 (4th Cir. 1995) (no manufactured
jurisdiction when the defendant "could not show that the
only reason" for a drug deal occurring across state
lines was to establish a federal crime); United States v.
Hillary. 1988 WL 118652, *3 (4th Cir. 1988) (no
manufactured jurisdiction when there was "no evidence in
the record from which to conclude the interstate travel or
communications were specifically manufactured to create
federal jurisdiction"). Here, as in those cases,
Defendant has failed to point to any evidence which would
indicate that the government manufactured jurisdiction for
the sole purpose of creating a jurisdictional link.
Defendants arguments also fail because he engaged in
voluntary acts demonstrating a predisposition and intent
after the government initially introduced New York as a
potential target of the importation conspiracy. Defendant
argues that the government manufactured jurisdiction here,
and that gives rise to both an entrapment and intent defense.
The first argument is that the government's manufactured
jurisdiction induced Defendant to engage in a federal crime,
and that the government is unable to show he was predisposed
to do so.
establish entrapment, a defendant must first demonstrate the
government induced him to engage in the criminal activity.
Once the defendant has shown government inducement, the
burden shifts to the government to prove beyond a reasonable
doubt the defendant's predisposition to have engaged in
the criminal conduct." United States v. Young,
916 F.3d 368. 375-76 (4th Cir. 2019), cert. Denied.
No. 18-1443, 2019 WL 4921376 (U.S. Oct. 7, 2019)
(internal citations and quotation marks omitted). The issue
in this case is whether Defendant was predisposed to these
crimes. "Predisposition focuses upon whether the
defendant was an unwary innocent or, instead, an unwary
criminal who readily availed himself of the opportunity to
perpetrate the crime." Id. at 376.
second argument is that the government has failed to show
intent, because it was the government which initially offered
Defendant that element of the crime. Similar to the
predisposition analysis, Defendant's unproven-intent
theory must fail if Defendant demonstrated the requisite
intent after the government initiated that element. See
United States v. Al Kassar, 660 F.3d 108. 120 (2d Cir.
Defendant's conduct after the government raised New York
as a potential place for importation demonstrates his
continued voluntary participation in the conspiracy, and thus
both arguments fail. Beyond mere continued participation,
Defendant introduced new ideas to the conspiracy. His offers,
such as involving his son, allocation of profits, and
traveling to the United States to collect, are significant
participation and overt acts by which he participated in and
availed himself of the opportunity to commit the crime.
federal venue statute for extraterritorial offenses provides,
in relevant part, that "[t]he trial of ail offenses
begun or committed upon the high seas, or elsewhere out of
the jurisdiction of any particular State or district, shall
be in the district in which the offender... is arrested or is
first brought." 18 U.S.C. § 3238. "[T]he text
of the statute focuses on the offense, establishing clear
directions as to where venue for a specific offense is
proper." United States v. Holmes, 670 F.3d 586,
594 (4th Cir. 2012).
has been charged with violating, inter alia, 21
U.S.C. § 959. That statute explicitly provides that it
was intended "to reach acts of manufacture or
distribution committed outside the territorial jurisdiction
of the United States." 21 U.S.C. § 959(d).
Defendant was arrested in South Africa, then extradited to
the United States. He arrived in Dulles, Virginia, on June
21, 2019, and was arrested.
alleged violation of § 959, as well as the alleged
conspiracy, were complete outside the territorial
jurisdiction of the United States. Although Defendant was
originally arrested in South Africa, he was brought first
into the Eastern District of Virginia. Pursuant to the
federal venue ...