United States v. Allen, Criminal Action No. 2011-027

CourtUnited States District Courts. 3th Circuit. District of the Virgin Islands
Writing for the CourtWILMA A. LEWIS
PartiesUNITED STATES OF AMERICA, v. CHARLES BOYD ALLEN III and DONDRAE DEMAS JOHNSON, Defendants.
Docket NumberCriminal Action No. 2011-027
Decision Date02 October 2012

UNITED STATES OF AMERICA,
v.
CHARLES BOYD ALLEN III and DONDRAE DEMAS JOHNSON, Defendants.

Criminal Action No. 2011-027

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

Date: October 2, 2012


Attorneys:
Allan F. John-Baptiste, Esq.,
St. Croix, U.S.V.I.
For the United States

Emile A. Henderson, III, Esq.,
St. Croix, U.S.V.I.
For the Defendant Charles Boyd Allen, III

Natalie Nelson Tang How, Esq.,
St. Croix, U.S.V.I.
For the Defendant Demas Johnson

MEMORANDUM OPINION

Lewis, District Judge

THIS MATTER comes before the Court on Defendant Dondrae Demas Johnson's "Motion to Dismiss for Lack of Venue," (Dkt. No. 66), which was joined by Defendant Charles Boyd Allen, III, (Dkt. No. 71). Defendants are charged in a nineteen-count Indictment with bank fraud, in violation of 18 U.S.C. § 1344; possession of a stolen security, in violation of 18 U.S.C. § 2315; and possession and utterance of a forged and/or counterfeit security, in violation of 18 U.S.C. § 513(a). Specifically, Defendants are accused of tendering stolen and/or counterfeit checks from, or purportedly from, a St. Croix, Virgin Islands branch of Banco Popular de Puerto

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Rico to Wachovia Bank and Woodforest National Bank in North Carolina. The stolen and counterfeit checks were drawn from, or designed to be drawn from, the Banco Popular account of the Juan F. Luis Hospital on St. Croix, Virgin Islands.

Defendants argue that the District of the Virgin Islands is not the proper venue for the prosecution of these charges because Defendants' alleged illegal conduct occurred entirely in Georgia, where a check allegedly was stolen, and/or North Carolina, where the checks allegedly were tendered. Defendants further argue that their only connection to the Virgin Islands—that the checks involved in the alleged crimes were stolen or counterfeited from a Virgin Islands bank account of a Virgin Islands hospital—is too attenuated to justify prosecution in the Virgin Islands. The Government opposes the Motion, arguing that two of the offenses were "begun, continued, or completed" in the Virgin Islands within the meaning of 18 U.S.C. § 3237(a), and the third offense generated substantial contacts with the Virgin Islands, such that prosecution of all three offenses is proper in the District of the Virgin Islands.

For the reasons that follow, the Court finds that venue is proper in the Virgin Islands for the counts charging bank fraud under 18 U.S.C. § 1344 and possession of a stolen security under 18 U.S.C. § 2315. The Court finds, however, that venue does not lie in the Virgin Islands for the counts charging possession and utterance of a forged and/or counterfeit security under 18 U.S.C. § 513(a). Accordingly, the Court will grant in part and deny in part Defendants' Motion to Dismiss for Lack of Venue.

I. Applicable Legal Principles

A defendant in a criminal trial has a constitutional right to be tried where the crime was committed. U.S. CONST. art. III, § 2, cl. 3 (a criminal trial "shall be held in the State where the said Crimes shall have been committed."); U.S. CONST. amend. VI ("In all criminal prosecutions,

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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."); United States v. Rodriguez-Moreno, 526 U.S. 275, 278 (1999) (describing the "constitutional command" that a criminal defendant be tried in the district where the crime was committed); United States v. Pendleton, 658 F.3d 299, 302-03 (3d Cir. 2011) ("[A] defendant in a criminal trial . . . has a constitutional right to be tried in the district where his crime was committed.").

Rule 18 of the Federal Rules of Criminal Procedure echoes this requirement, providing that "[u]nless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed." Fed. R. Crim. P. 18. "Under Rule 18 of the Federal Rules of Criminal Procedure, Congress has the power to lay out the elements of a crime to permit prosecution in one or any of the districts in which the crucial elements are performed." United States v. Perez, 280 F.3d 318, 328-29 (3d Cir. 2002).

When "Congress has not designated venue in the relevant criminal statute," courts apply a two-part test set forth by the Supreme Court in United States v. Rodriguez-Moreno: "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. Pendleton, 658 F.3d at 303 (quoting United States v. Rodriguez-Moreno, 526 U.S. at 279). To identify the conduct that "constitutes the offense," courts evaluate the elements of the offense in determining the locus delicti. See United States v. Pendleton, 658 F.3d at 304. In considering the elements of the offense, courts identify the conduct that Congress sought to prohibit. Id.; United States v. Pendleton, 2010 WL 427230, *3 (D. Del. 2010) (aff'd. United States v. Pendleton, 658 F.3d 299). ("[T]he locus delicti examination should reveal the behavior that Congress was attempting to proscribe . . . .").

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"[I]n some cases the acts constituting a crime . . . occur in widely different localities." United States v. Saavedra, 223 F.3d 85, 89 (2d Cir. 2000). Congress, therefore, has the authority to identify a particular crime as a "continuing" offense—"an offense against the United States that spans multiple districts." 18 U.S.C. § 3237(a). Through a general venue statute codified in 18 U.S.C. § 3237(a), Congress has provided that when a continuing offense is committed, it "may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." Id.1 See, e.g., United States v. Root, 585 F.3d 145, 156 (3d Cir. 2009) ("Tax evasion is a continuing offense under 18 U.S.C. § 3237(a) . . . and Congress has provided that an offense against the United States that spans multiple districts 'may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.") (citing § 3237(a)); United States v. King, 604 F.3d 125, 139 (3d Cir. 2010) ("Because [interstate transportation to engage in sex with a minor] is a continuing offense, venue is appropriate in any district where [defendant] transported or abused [the victim].").

Accordingly, to decide whether venue is proper in the District of the Virgin Islands for each count of the Indictment, the Court "must undertake two related inquiries." United States v.

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Saavedra, 223 F.3d at 89. First, the Court will decide whether Defendants are charged with continuing offenses under § 3237(a) and, if so, whether the alleged offenses were "begun, continued, or completed" in the Virgin Islands. § 3237(a). Second, the Court will apply the constitutional requirement that the nature of the crimes alleged and the location of the acts constituting the crimes must be sufficiently linked to the Virgin Islands in determining if "the Constitution's commands respecting venue have been preserved" by prosecution in the Virgin Islands. United States v. Saavedra, 223 F.3d at 89 (quoting United States v. Cabrales, 524 U.S. 1, 6-7 (1998)).

"The Government bears the burden of proving venue by a preponderance of the evidence and venue must be proper for each count of the indictment." United States v. Root, 585 F.3d at 155. With the Government bearing the burden and the aforementioned legal principles in mind, the Court will determine if the District of the Virgin Islands is a proper venue for a trial on: (1) Defendant Allen's charges of bank fraud, in violation of 18 U.S.C. § 1344; possession of a stolen security, in violation of 18 U.S.C. § 2315; and possession and utterance of a forged security and possession and utterance of counterfeit securities, in violation of 18 U.S.C. § 513(a); and (2) Defendant Johnson's charges of bank fraud, in violation of 18 U.S.C. § 1344; and possession and utterance of counterfeit securities, in violation of 18 U.S.C. § 513(a). The analysis follows.

II. DISCUSSION

A. Venue for the Bank Fraud Offense

Counts seven through eleven of the Indictment, and counts sixteen through nineteen of the Indictment, charge Defendant Allen and Defendant Johnson, respectively, with bank fraud. Counts seven through eleven arise from Defendant Allen's alleged knowing and intentional execution of a "scheme to artifice and defraud a financial institution, that is Banco Popular de

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Puerto Rico, by means of [a] materially false and fraudulent representation, that is, by depositing a forged check [and four counterfeit checks] purportedly issued by the 'Governor Juan F. Luis Hospital & Medical Center' into an account at Wachovia Bank." Indictment at 4-5. Counts sixteen through nineteen arise from Defendant Johnson's alleged knowing and intentional execution of a "scheme to artifice and defraud a financial institution, that is, Banco Popular de Puerto Rico, by means of materially false and fraudulent representations, that is, by depositing [four] counterfeit checks purportedly issued by the 'Governor Juan F. Luis Hospital & Medical Center' into accounts at Woodforest National Bank." Id. at 7.

1. The Bank Fraud
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