U.S. v. Aiken, 97-0233-CR.

• Decision Date: 22 November 1999
• Docket Number: No. 97-0233-CR.,97-0233-CR.
• Citation: 76 F.Supp.2d 1346
• Parties: UNITED STATES of America, Plaintiff, v. Ian Orville AIKEN, et. al., Defendants.
• Court: U.S. District Court — Southern District of Florida

76 F.Supp.2d 1346

UNITED STATES of America, Plaintiff, v. Ian Orville AIKEN, et. al., Defendants.

No. 97-0233-CR.

United States District Court, S.D. Florida.

November 22, 1999.

COPYRIGHT MATERIAL OMITTED

John S. Kastrenakes, Asst. U.S. Atty., West Palm Beach, FL, Alyson Fritz, Asst. U.S. Atty., Miami, FL, Richard Getchell, Asst. U.S. Atty., for U.S.

Alvin Entin, Ft. Lauderdale, FL, for Donovan Sibbley.

Jane Moscowitz, H. Dohn Williams, Miami, FL, for Ian Orville Aiken.

William D. Matthewman, Boca Raton, FL, for Roland David Aiken.

Eric Cohen, Miami, FL, for Daniel Patrick Allen.

Kirk A. Barrow, Lauderdale Lakes, FL, for Eric Livingston.

AMENDED ORDER ON DEFENDANTS' PENDING MOTIONS TO DISMISS COUNT THREE OF SUPERSEDING INDICTMENT AND TO SEVER TRIAL OF CAPITAL AND NONCAPITAL DEFENDANTS

GOLD, District Judge.

THIS MATTER is before the court on Defendant, Ian Orville Aiken's Motion to Dismiss Count Three of the Second Superseding Indictment for Lack of Venue [D.E. # 408, 440], and the Motions for Severance filed by the capital defendant, Ian Orville Aiken [D.E. # 374], and by the non-capital defendants, Roland David Aiken, Daniel Patrick Aiken, Donovan Sibbley and Eric Livingston Morris [D.E. # 371]. For reasons stated below, the motions are denied.

I. DEFENDANT IAN ORVILLE AIKEN'S MOTION TO DISMISS COUNT THREE OF THE SECOND SUPERSEDING INDICTMENT FOR IMPROPER VENUE.

A. Background.

Defendants Ian Orville Aiken, Roland David Aiken, Daniel Patrick Aiken, Donovan Sibbley and Eric Livingston Morris are charged in a nine count superseding indictment with being members of a racketeering enterprise, the Moscow Posse, and conspiring to participate in the affairs of that enterprise though a pattern of racketeering activity [count one]; conspiring to commit the murder of Derrick Christian and the commission of Christian's murder in aid of racketeering [counts two and three]; conspiring to commit the murder of Desmond LaTouche and the commission of LaTouche's murder in aid of racketeering [counts four and five]; assault with a dangerous weapon in aid of racketeering and the carjacking of Robert Williams [counts seven and eight], and the firearms charges in connection with the LaTource homicide [count six] and the carjacking of Williams [count nine].

Regarding Count Three, the United States has filed a Notice of Intention to Seek the Death Penalty against Ian Orville Aiken for the alleged murder of Derrick Christian in aid of racketeering. The Government proffers that the evidence will conclusively demonstrate each of the defendants' participation in other uncharged murders and numerous uncharged violent acts, including robberies, home invasions, kidnaping and carjackings. Further, the Government proffers that it will link the conspiracy and the murder of Derrick Christain with the conspiracy and murder of Desmond LaTouche (which occurred within several hours of each other) to each charged defendant and to the goals and mission of the Moscow Posse. Therefore, it is the Government's position that each defendant charged in the superseding indictment will be proven to have committed these acts with each other, and to have participated extensively in the operation of the criminal enterprise.

B. Venue as to Count Three.

Count Three of the Second Superseding Indictment charges that Ian Orville Aiken murdered Derrick Christian a/k/a "Melvin Chung," in aid of racketeering, in violation of Title 18, United States Code, Sections 1959(a)(1) and 2. Defendant Ian Aiken argues that, because the victim was allegedly murdered in the Eastern District of New York, venue is appropriate in that district and Count Three must be dismissed. The Defendant asserts, and the Government does not dispute, that Christian was shot and died in Brooklyn, New York.

Although he does not cite case law in support of his argument, the Defendant relies on Article III, Section 2, of the United States Constitution which provides that the "Trial of all crimes ... shall be held in the State where the said crimes shall have been committed ....", and by the Sixth Amendment, which provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." Additionally, the Defendant relies on two specific federal statutes.¹ First, Title 18 U.S.C. § 3235, which provides that "[t]he trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience." Second, Title 18 U.S.C. § 3236, which provides that "In all cases of murder or manslaughter, the offenses shall be deemed to have been committed at the place where the injury was inflicted, or the poison was administered or other means employed which caused the death, without regard to the place where the death occurs."

The Government responds that the Defendant is not charged with the unitary offense of murder, but with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a), a continuing offense. It, therefore, argues that venue is not governed by Sections 3235 and 3236, but by 18 U.S.C. § 3237, which states that, except as otherwise provided by Congress, "... [a]ny offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." The court concurs with the Government's position.

In United States v. Cabrales, 524 U.S. 1, 118 S.Ct. 1772, 1776, 141 L.Ed.2d 1 (1998) (quoting United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946)), the Supreme Court adhered to the principle that the "locus delicti [of the charged offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it." "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, 119 S.Ct. 1239, 1242-43, 143 L.Ed.2d 388 (1999). As further stated in United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 510, 60 L.Ed. 897 (1916), "where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done." cf. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912) (venue proper against defendant in district where co-conspirator carried out overt acts even though there was no evidence that the defendant had ever entered that district or that the conspiracy was formed there).

In the instant case, the Superseding Indictment charges the Defendants, including Ian Orville Aiken, with a criminal enterprise and racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). The criminal enterprise and racketeering conspiracy is alleged to involve multiple acts of murder, including the murder of Derrick Christian. In other words, Ian Aiken is not simply charged with the unitary crime of murder; rather, he has been charged with the commission, within the framework of a RICO enterprise, of a violent act designed to further the activities of the Moscow Posse.

Section 1959 is not merely a murder statute; instead, it serves as an adjunct to RICO, and governs other crimes as well as murder when committed in connection with RICO enterprises. The enterprise contemplated by Section 1959 is a RICO enterprise, and the murders contemplated by Section 1959 are those which occur not as single, solitary acts, but as part of the larger structure of the criminal enterprise. See United States v. Concepcion, 983 F.2d 369, 380-81 (2d Cir.1992) (legislative history of Section 1959 states that one of the statute's aims was to proscribe "murder and other violent crimes committed as an integral aspect of membership in [RICO] enterprises"), cert. denied, 510 U.S. 856, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993); United States v. Perez, 940 F.Supp. 540, 547 (S.D.N.Y.1996), affirmed on other grounds, United States v. Ramos, 182 F.3d 902, 1999 WL 461740 (2nd Cir.), cert. denied, Perez v. United States, ___ U.S. ___, 120 S.Ct. 278, 145 L.Ed.2d 233 (1999). While the Christian murder is alleged to have occurred in the Eastern District of New York, the activities of the enterprise are alleged to touch a number of districts across the United States, including the Southern District of Florida. As charged in the Superseding Indictment, the framework of the enterprise included racketeering acts committed in Florida, Missouri and New York. The activities of the enterprise are alleged to include various acts of violence, as well as narcotics trafficking in "various cities in the United States."

"In light of the close association between Section 1959 and RICO, the underlying Section 1959 crime-in this case, murder — is necessarily closely associated with and an integral aspect of membership in the RICO enterprise. Therefore, the Section 1959 violation constitutes a continuing offense under Section 3237(a)." United States v. Perez, 940 F.Supp. at 548. Any venue appropriate for a prosecution of a continuing offense under RICO would be similarly appropriate for such a continuous offense under Section 1959, and, therefore, Sections 3235 and 3236 do not govern venue here. As the racketeering conspiracy and related counts of the superseding indictment are properly triable in the Southern District of Florida, the murder of Derrick Christian can be tried here as well. To do otherwise would result in great inconvenience for the government and the judiciary.

II. MOTIONS OF THE CAPITAL DEFENDANT AND THE NON-CAPITAL DEFENDANTS FOR SEVERANCE.

The capital defendant, Ian Orville Aiken, has filed a motion for severance from the non-capital defendants, Roland David Aiken, Daniel...