U.S. v. Jefferson

• Decision Date: 27 June 2008
• Docket Number: No. 1:07cr209.,1:07cr209.
• Citation: 562 F.Supp.2d 695
• Parties: UNITED STATES of America v. William J. JEFFERSON, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

562 F.Supp.2d 695

UNITED STATES of America v. William J. JEFFERSON, Defendant.

No. 1:07cr209.

United States District Court, E.D. Virginia, Alexandria Division.

June 27, 2008.

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Mark Lytle, Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, Charles E. Duross, U.S. Department of

Justice, Washington, DC, for United States of America.

Amy Berman Jackson, Robert Powel Trout, Gloria B. Solomon, Trout Cacheris PLLC, Washington, DC, for William J. Jefferson.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

A sixteen-count indictment (the "Indictment") charges defendant William J. Jefferson, a sitting member of the United States House of Representatives, with a variety of crimes including bribery, conspiracy, wire fraud, foreign corrupt practices, money laundering, obstruction of justice, and racketeering. Defendant moved to dismiss Counts 2, 3, 10, and 12-14 of the Indictment for lack of venue, and to transfer the remaining Counts to the United States District Court for the District of Columbia. By Order dated November 30, 2007, defendant's motion was denied. See United States v. Jefferson, 1:07cr209 (E.D.Va. Nov. 30, 2007) (Order).

Defendant now moves for reconsideration of the November 30, 2007 Order, arguing that the government's decision to try this case in the Eastern District of Virginia, rather than in the District of Columbia, raises equal protection concerns similar to those in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) owing to the disparity in the racial composition of the populations of the two jurisdictions. According to defendant, the Supreme Court's recent decision in Snyder v. Louisiana, ___ U.S. ___, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) reaffirms a three-step process for adjudication of his claim and establishes that he is entitled to discovery related to the government's decision to prosecute this case in this district. Defendant's reliance on Snyder is misplaced; that case does not extend the reasoning of Batson to the government's venue decisions, and even assuming Batson extended so far, the government's choice of venue in this case would warrant neither discovery nor dismissal and transfer. Accordingly, for the reasons that follow, defendant's motion to reconsider must be denied.

I.

Defendant is the currently sitting member of the United States House of Representatives representing Louisiana's 2nd Congressional District, an office he has held since 1991. The Indictment alleges that beginning in or about January 2001, defendant used his office to advance the business interests of various individuals and corporations in return for money and other things of value paid either directly to defendant or via `nominee companies,' i.e., companies ostensibly controlled by one of defendant's family members, but in fact controlled by defendant himself. The specific schemes alleged in the Indictment are described in greater detail in an earlier Memorandum Opinion. See United States v. Jefferson, 534 F.Supp.2d 645 (E.D.Va. 2008).

The investigation into defendant's activities began when Lori Mody, a businesswoman from McLean, Virginia, approached the Federal Bureau of Investigation to report what she believed to be a fraud perpetrated by defendant. Mody alleged that defendant had solicited bribes in return for his assistance in promoting telecommunications ventures that Mody was pursuing in Nigeria, Ghana, and elsewhere in Africa.¹ Specifically, as alleged in the indictment, Mody claimed that defendant had sought payment in the form of fees paid to defendant's family members, as well as shares in Mody's companies, in return for various acts including defendant's assistance in securing financial assistance for Mody's African ventures from the Export-Import Bank of the United States (Ex-Im Bank).² Defendant and Mody, who had become a cooperating government witness, thereafter met in Vienna, Virginia, and discussed the possibility of bribing Atiku Abubakar, then the Vice President of Nigeria, in order to ensure the success of Mody's Nigerian venture. Defendant and Mody later met in Arlington, Virginia, at which time Mody gave defendant $100,000 in cash which he was to use to bribe Abubakar, according to the Indictment. FBI agents later discovered $90,000 of this money in defendant's freezer during a search of his Washington, D.C. residence.

Mody's allegations prompted an investigation that revealed several other schemes involving defendant's solicitation of bribes in return for official acts. See United States v. Jefferson, 534 F.Supp.2d 645 (E.D.Va.2008) (describing the various schemes alleged in the Indictment). The schemes generally involved defendant allegedly soliciting things of value in return for using his office to advance the business interests of various individuals and corporations by, inter alia, (i) meeting with American government officials (including officials at the Ex-Im Bank and the United States Trade Development Agencty (USTDA)³), (ii) meeting with foreign government officials, (iii) traveling to Africa via Washington Dulles International Airport in Dulles, Virginia, and (iv) using his congressional staff.⁴ A number of the overt acts undertaken in furtherance of these schemes, both by defendant and by his alleged co-conspirators, took place in the Eastern District of Virginia.

Defendant originally challenged venue on two grounds. First, defendant argued that the allegations in the Indictment failed to establish that venue was proper in this district as to Counts 2 (Conspiracy to Solicit Bribes and to Commit Wire Fraud), 3 (Solicitation of Bribes), 10 (Wire Fraud), and 12-14 (Money Laundering). Second, defendant argued that while venue was strictly proper in this district as to the other Counts of the Indictment, the decision to prosecute his case here rather than in the District of Columbia was racially discriminatory given the disparity in the racial composition of the jury pools in the two districts. Defendant accordingly moved to dismiss Counts 2, 3, 10, and 12-14 and to transfer venue over the remaining Counts to the United States District Court for the District of Columbia. By Order dated November 30, 2007, defendant's motion was denied. See United States v. Jefferson, 1:07cr209 (E.D.Va. Nov. 30, 2007) (Order).

Defendant now moves for reconsideration of the November 30, 2007 Order, arguing that it failed to apply the proper analysis to his claim of racial discrimination. Specifically, defendant argues that, as the Supreme Court held in Batson and recently reaffirmed in Snyder, when a defendant establishes a prima facie case of purposeful racial discrimination in the jury selection process, the burden rests on the government to establish a race-neutral explanation for its jury selection practices. The government responds that defendant's argument would unnecessarily extend the Batson holding beyond its original facts, and that even if Batson were extended in this manner, defendant has failed to establish a prima facie showing of purposeful discrimination. The matter has been fully briefed and argued and is now ripe for disposition.

Additionally, although defendant has not specifically renewed his venue challenge regarding Counts 2, 3, 10, and 12-14, this Memorandum Opinion reiterates briefly the reasons underlying the November 30, 2007 Order denying defendant's original motion.

II.

The jurisdictional rules regarding venue in federal criminal prosecutions are rooted in the Constitution's guarantee that a criminal defendant be tried "in the State where the said Crimes shall have been committed."⁵ This guarantee is given effect in two ways. First, a statute creating a criminal offense may include an express provision indicating where Congress considers the place of the crime to be. In this event, of course, the venue determination is straightforward.⁶ But when the statute creating the offense is silent as to venue, the Constitutional venue guarantee is given effect by requiring a court to determine the place or places where the crime was committed based on "the nature of the crime alleged and the location of the act or acts constituting it."⁷ This determination "may yield more than one appropriate venue, or even a venue in which the defendant has never set foot."⁸ In a multiple-count prosecution, venue must be proper as to each count, and the government bears the burden of proving venue by a preponderance of the evidence.⁹

Defendant contends that venue is improper in the Eastern District of Virginia as to Counts 2, 3, 10, and 12-14 of the Indictment in this case.

A. Count 2—Conspiracy to Solicit Bribes by a Public Official and to Deprive Citizens of Honest Services by Wire Fraud

Count 2 charges defendant with conspiracy to solicit bribes and to commit wire fraud. Venue in a conspiracy charge may be laid "in any district in which a conspirator performs an overt act in furtherance of the conspiracy or performs acts that effectuate the object of the conspiracy." United States v. Mitchell, 70 Fed.Appx. 707, 711 (4th Cir.2003) (citing Hyde v. United States, 225 U.S. 347, 356-57, 32 S.Ct. 793, 56 L.Ed. 1114 (1912)). The overt acts necessary to support venue in a conspiracy case do not have to be substantial, United States v. Smallwood, 293 F.Supp.2d 631, 638 (E.D.Va.2003) (quoting Mitchell, 70 Fed.Appx. at 711), and the acts of one conspirator can be attributed to all other conspirators for venue purposes. United States v. Al-Talib, 55 F.3d 923, 928 (4th Cir.1995).

Count 2 alleges that defendant and his alleged co-conspirators performed numerous overt acts in this district in furtherance of the conspiracy, including travel to and from Washington Dulles International Airport in Dulles, Virginia; filing of an application with the USTDA in Arlington, Virginia; and communication with officials of the USTDA in Arlington, Virginia. These overt acts plainly suffice to support venue...