U.S. v. Venable
| Decision Date | 26 January 2011 |
| Docket Number | Criminal No. 3:08cr199. |
| Citation | 769 F.Supp.2d 976 |
| Parties | UNITED STATES of Americav.James Eugene VENABLE. |
| Court | U.S. District Court — Eastern District of Virginia |
OPINION TEXT STARTS HERE
Stephen Wiley Miller, Office of the U.S. Attorney, Richmond, VA, for United States of America.Valencia Danyale Roberts–Brower, Office of the Federal Public Defender, Richmond, VA, for James E. Venable.
This matter is before the Court on the Defendant's Motion to Dismiss (Docket No. 148). For the reasons that follow, the motion will be denied.
On January 8, 2008, Gary Wayne Turner (“Turner”) and Michele Lynn Zechman (“Zechman”) burglarized a home in Campbell County, Virginia, and stole eleven firearms. Both Turner and Zechman are Caucasian. On January 28, 2008, Captain L.T. Guthrie of the Campbell County Sheriff's Office contacted Richmond Police Detectives Daniel O'Connell and Jack P. Larry to enlist the Richmond Police Department's help in arresting Turner pursuant to arrest warrants issued for the burglary. At the time of the offense, Turner and Zechman resided at 6001 Laveta Drive in the City of Richmond.
Captain Guthrie and Detectives O'Connell and Larry responded to that address and found Zechman in the home. She allowed the officers into the house, and, after an initial search failed to reveal Turner's whereabouts, Zechman stated that he had been spending time that day in a rear closet in the house working on something. The three officers checked a back room again and found Turner hiding in a hidden compartment under the furnace. After he was taken into custody, Turner cooperated with Captain Guthrie and the Detectives, implicated himself in the burglary, and agreed to take them to the location where he had sold eight of the firearms. Once in the car, Turner directed Captain Guthrie and the Detectives to the residence of an African–American male named “James,” located at 149 Labrook Drive in the City of Richmond, not more than a few houses away from Zechman's residence.
While Captain Guthrie and Turner remained in the car, Detectives O'Connell and Larry walked to the front door of that residence. The Detectives knocked and identified themselves. An African–American male, later identified as defendant James E. Venable (“Venable”), opened the door. The Detectives then advised Venable that they were aware of his possession of stolen firearms. After Venable confirmed that the Detectives were not going to arrest him for possession of stolen firearms, he cooperated with the Detectives and agreed to relinquish the firearms. At that time, the Detectives were not aware of Venable's felon status, nor did they charge or arrest him. They simply wanted to remove the firearms from the street and return them to their rightful owner.
The next day, January 29, 2008, Detectives O'Connell and Larry returned to Zechman's residence to arrest her. As the Detectives spoke with Zechman, Venable exited a vehicle and began to approach the Detectives and Zechman. The Detectives cut him off before he got to the side of the residence where Zechman was standing, at which point he began to yell and demand to know who had snitched on him. The Detectives spoke with Venable, who was extremely angry, and tried to calm him down, but he continued to be hostile during the conversation. At one point, Venable made a comment about having just left the penitentiary, prompting Detective O'Connell to relate to Venable that they had given him a break if he was a convicted felon, but Venable simply responded that his felon status was beside the point. Shortly thereafter, Venable got back into his car and left Zechman's residence.
After arresting Zechman, the Detectives checked Venable's criminal history, noted that he had been convicted of felony Statutory Burglary and felony Robbery in the Circuit Court for the City of Richmond on September 20, 1984, and then obtained a search warrant for Venable's residence at 149 Labrook Drive. The application for the warrant recited Venable's status as a felon, and the fact that, on the previous night, the Detectives noticed a box of .45 caliber handgun ammunition in plain view on the top of a speaker next to a television when they followed Venable into his residence to retrieve the stolen firearms. During the execution of the search warrant, officers seized ammunition and a personal use amount of marijuana from Venable's home. After being advised of his Miranda rights, Venable made incriminating statements, relating to officers that he had purchased the firearms for $1,500 and that he planned to sell them on the street for $3,000, statements also he had made the previous night when the Detectives retrieved the firearms from his residence.
For his role in the burglary and larceny of the firearms, Campbell County authorities charged Turner on January 24, 2008 with: (1) Statutory Burglary, in violation of Virginia Code § 18.2–91; 1 (2) Grand Larceny, in violation of Virginia Code § 18.2–95; 2 and (3) Possession of a Firearm by a Convicted Felon, in violation of Virginia Code § 18.2–308.2 3. On January 29, 2008, for her role in the burglary and larceny of the firearms, Campbell County authorities arrested and charged Zechman with the three same offenses as Turner. On January 29, 2008, Venable was arrested by Richmond Police and charged with Possession of a Firearm by a Convicted Felon, in violation of Virginia Code § 18.2–308.2.
Turner and Zechman were slated for prosecution in the Circuit Court for the Campbell County for their offenses. Venable was to be tried in the Circuit Court for the City of Richmond. Under a program commonly referred to as “Project Exile”, however, the Commonwealth Attorney's Office for the City of Richmond presented Venable's case to the United States Attorney's Office (“USAO”) for the Eastern District of Virginia, Richmond Division, for review and possible federal prosecution. On April 17, 2008, a Criminal Complaint was filed in the Clerk's Office of the United States District Court for the Eastern District of Virginia, Richmond Division, charging Venable with Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1). 4 The next day, April 18, 2008, the state charge against Venable was nolle prossed in the Circuit Court for the City of Richmond. Then, on April 21, 2008, an indictment was filed in the District Court, charging Venable with violating 18 U.S.C. § 922(g)(1). Venable was placed in federal custody on April 22, 2008.
State prosecutors in Campbell County indicted Turner and Zechman on April 30, 2008 for their offenses related to the burglary and the larceny of the firearms. Both eventually pleaded guilty to the charges, Zechman on August 7, 2008, and Turner on November 4, 2009. On December 18, 2008, Zechman was sentenced to five years of incarceration with five years suspended for Statutory Burglary, two years of incarceration with two years suspended for Grand Larceny, and one year of incarceration with one year suspended for Possession of a Firearm by a Convicted Felon. All three of Zechman's sentences were suspended on a condition that she must complete the Women's Adult Detention and Diversion Incarceration Programs. In addition, she was ordered to be of good behavior for a period of ten years and to comply with supervised probation for a period of three years following her release from incarceration.
On January 28, 2010, Turner was sentenced to five years of incarceration with five years suspended for Statutory Burglary, five years of incarceration with five years suspended for Grand Larceny, and five years of incarceration for Possession of a Firearm by a Convicted Felon, a term which Turner currently is serving in the Virginia Department of Corrections. Turner also was placed on supervised probation for five years following his release from incarceration.
After being indicted on the federal charge, Venable's case was assigned to the Honorable Richard L. Williams, United States District Court Judge, who set a jury trial for August 11, 2008. Before trial, Venable, who was represented by appointed counsel from the Federal Public Defender's Office, filed numerous pro se motions to dismiss his indictment, including a “Motion to Dismiss based on Racial Discrimination” filed on August 6, 2008, which Judge Williams denied on August 8, 2008. On August 11, 2008, a jury found Venable guilty of violating 18 U.S.C. § 922(g)(1). Judge Williams sentenced Venable to sixty months of incarceration, a downward variance from his calculated guidelines range under the United States Sentencing Guidelines, and three years of supervised release.
Venable appealed his conviction to the United States Court of Appeals for the Fourth Circuit, claiming that the district court violated his Sixth Amendment right to counsel in not obtaining a voluntary and knowing waiver and forcing him to proceed pro se. United States v. Venable, 373 Fed.Appx. 402, 403 (4th Cir.2010). The Fourth Circuit agreed, reversed his conviction and remanded the case to the district court. Id. at 407. The Government elected to re-try Venable, and the case was reassigned to the undersigned for further disposition.
Venable, through court-appointed counsel, filed the pending motion to dismiss the indictment, claiming that the USAO selected him for prosecution under the Project Exile program because of his race in violation of the equal protection component of the Fifth Amendment's Due Process Clause. Venable also filed a motion for discovery respecting Project Exile and the decision to prosecute him under its auspices. In support of his motion and his request for discovery into the USAO's records related to its decision to bring the federal case against him, as well as the decisions to bring other state cases federally, Venable argues the following: (1) Turner and Zechman, who stole the firearms and then possessed and sold them in the City of Richmond, were...
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