U.S. v. Smallwood, CR.A. 03-245-A.
| Decision Date | 02 December 2003 |
| Docket Number | No. CR.A. 03-245-A.,CR.A. 03-245-A. |
| Citation | 293 F.Supp.2d 631 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES of America, v. Tyrone SMALLWOOD, Thomas Edward Smith, Jr. |
Brian D. Miller, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.
Thomas Abbenante, Pleasant Sanford Brodnax, III, Washington, DC, Ivan Darnell Davis, Office of the Federal Public Defender, Frank Salvato, Alexandria, VA, for Defendants.
Defendants Tyrone Smallwood and Thomas Edward Smith, Jr. stand indicted and face trial for (1) murder while engaged in drug trafficking, in violation of 21 U.S.C. § 848(e)(1)(A), and (2) use of a firearm while engaged in a drug conspiracy, in violation of 18 U.S.C. § 924(c) & (j). Smith is additionally indicted on a charge of participating in a drug trafficking conspiracy, in violation of 21 U.S.C. § 846, a charge to which Smallwood has already pled guilty in the District of Columbia. Because the alleged murder occurred in the District of Columbia and because much of the conspiracy conduct occurred in the District of Columbia and Maryland, both defendants challenge venue and, in the alternative, seek transfer to the District of Columbia. This memorandum opinion addresses these venue and transfer issues.
Also at issue and addressed here are two additional motions brought by Smallwood stemming from his 1996 guilty plea to the drug conspiracy that is alleged against Smith in Count I and is also an element of the offenses charged against both defendants in Counts II and III. Specifically, Smallwood in these motions contends (1) that the firearms charge must be dismissed because he earlier pled guilty to the predicate drug conspiracy and (2) that his statements and evidence resulting from his cooperation, including two firearms recovered from his apartment at the time of his arrest, must be suppressed pursuant to the plea agreement he entered into in November 1996 with the United States Attorney's Office for the District of Columbia.
According to the superseding indictment,1 Smallwood and Smith were members of a large and lucrative drug trafficking conspiracy that engaged in manufacturing and distributing crack cocaine and other illegal narcotics in the District of Columbia, Maryland, Virginia, and elsewhere between 1994 and 1998. This drug conspiracy is the basis for the murder and firearms charges against both defendants and is also the same conspiracy to which Smallwood pled guilty in November 1996 in the District of Columbia. Nor is Smallwood the only conspirator to have been held accountable for this conspiracy; more than a dozen co-conspirators have already been successfully prosecuted in this district for their involvement in the drug conspiracy.2
The superseding indictment charges that during the duration of the drug conspiracy Smallwood and Smith jointly maintained two residences in the Washington, D.C. metropolitan area that they used to store drugs and cash, often in large quantities —one at 50 49th Street in Washington, D.C. and the other at 7403 Hendricks Drive in Hyattsville, Maryland. Smallwood also maintained a third residence with his girlfriend at 8800 Enfield Court, Laurel, Maryland, at which location he also stored drugs and cash in connection with his participation in the conspiracy. The superseding indictment specifically charges that Smallwood and Smith and their co-conspirators committed numerous overt acts in furtherance of the conspiracy in the District of Columbia, Maryland, and Virginia, including the following:
(1) Defendants and other conspirators manufactured crack cocaine and distributed crack cocaine and other illegal narcotics at various locations in the Washington, D.C. metropolitan area throughout the duration of the conspiracy. Specifically, in 1995 and 1996, defendants and another conspirator obtained and distributed between one and two kilograms of crack cocaine, valued at approximately $23,000 per kilogram, each week.
(2) Smith purchased a 1992 Toyota Land Cruiser in Silver Spring, Maryland on September 26, 1994, registered the vehicle at the Virginia Department of Motor Vehicles under the alias "Anthony Young" on March 7, 1995 to an address in Manassas, Virginia, the home of the parents of a conspirator, and used the vehicle to engage in drug trafficking activities.
(5) In February 1996, Smallwood, and conspirators Walter Fleming and Akil Nuridden carried firearms in their search for another conspirator believed to have stolen drugs from Fleming and thereafter, Fleming shot the conspirator.
(6) Conspirator Nuridden possessed with the intent to distribute approximately 267 grams of crack cocaine in his vehicle parked at his home in Alexandria, Virginia on July 11, 1996.
(7) Conspirator Fleming stored over 1000 grams of cocaine, $35,000 in cash, and a firearm at a residence in Silver Spring, Maryland on July 11, 1996.
(8) Conspirator Fleming purchased a 1997 Cadillac Deville at an automobile dealership in Arlington, Virginia under the alias "Jerry Booker" on April 11, 1997 and used it to engage in drug trafficking activities.
(9) Conspirator Fleming possessed a loaded firearm in his vehicle in Washington, D.C. on September 26, 1997.
Smallwood and Smith are also charged in the superseding indictment with the murder of Conrad Shelton in Washington, D.C. on February 11, 1996 while they were engaged in the drug trafficking conspiracy. More specifically, the superseding indictment charges that Smallwood and Smith hired Shelton to clean their Washington, D.C. apartment and perform other minor cleaning and repair jobs in exchange for either drugs or money. It is further alleged that Smith reportedly "roughed up" Shelton several times because he and Smallwood believed Shelton was stealing money from them. Then, in January 1996, while Smallwood and Smith were away on a skiing trip, Smallwood received a telephone call from his girlfriend, Molita Bryant, informing him that Smallwood and Smith's Washington, D.C. apartment had been broken into and money, drugs, and guns had been stolen. Smallwood and Smith suspected that Shelton's brother had learned from Shelton the location and contents of the apartment and was responsible for the robbery. Based on their belief that Shelton was responsible for the robbery, Smallwood and Smith and a co-conspirator, Green, met with Shelton at defendants' Washington, D.C. apartment on February 11, 1996 at which time they severely beat Shelton and threatened him by pointing a gun at his head. Then, all four individuals—Smallwood, Smith, Shelton, and Green—left the apartment and drove in a rental car to the corner of 5th and O Streets, N.W., Washington, D.C. While Green waited in the car, Smallwood and Smith took Shelton into a nearby alley and shot him in the head. To ensure that they had killed Shelton, Smallwood and Smith then shot him several more times. The autopsy report revealed that Shelton had been shot with bullets from three different guns. The superseding indictment also alleges that during the course of the murder Smallwood accidentally shot himself in the foot.
Between May and November 1996, Smallwood, as part of the alleged drug trafficking conspiracy, sold crack cocaine to individuals cooperating with law enforcement authorities on four occasions. Two of these sales were made within 1,000 feet of the Anthony Bowen Elementary School in Washington, D.C. As a consequence of these sales, Smallwood was arrested at his residence in Hyattsville, Maryland on November 4, 1996, at which time FBI agents seized crack cocaine, money, two firearms, ballistic vests, and Smith's Toyota Land Cruiser. Smallwood was thereafter charged with several drug offenses, including the drug trafficking conspiracy Smith is charged with here. At the time, Smallwood was not charged with Shelton's murder.
On November 15, 1996, Smallwood entered into a plea agreement with the United States's Attorney's Office for the District of Columbia in which he pled guilty to the unlawful distribution of more than fifty (50) grams of crack cocaine within 1000 feet of a school on September 3, 1996. As part of the agreement, defendant Smallwood promised to cooperate with the government in its investigation of the drug conspiracy and the government in turn agreed that it would not use any information or materials provided by Smallwood against him in a later criminal proceeding.3 Smallwood's cooperation, as well as that of other conspirators, led to Smith's arrest. In July 2000, Smallwood received a reduction in his sentence based on his cooperation.
The two firearms recovered from Smallwood's and Smith's residence in Hyattsville, Maryland at the time of Smallwood's arrest were subjected to ballistics investigation which confirmed that these firearms were not used in Shelton's murder.
Proper venue in a criminal prosecution is a right guaranteed by the United States Constitution.4 This right has been codified in the Federal Rules of Criminal Procedure, which provide as follows: "Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed." See Rule 18, Fed.R.Crim.P. Thus, in criminal cases, the government bears the burden of establishing by a preponderance of the evidence that venue is proper on each count of the indictment. See United States v. Robinson, 275 F.3d 371, 378 (4th Cir.2001) (); United States v. Bowens, 224 F.3d 302, 308 (4th Cir.2000) (same). Given this, the propriety of venue in this district must be separately assessed for each count of the superseding indictment.
Venue in this district with respect to Count I of the...
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