United States v. Villalobos-Macias

• Decision Date: 29 November 2017
• Docket Number: No. 17–cr–182 MCA,17–cr–182 MCA
• Citation: 280 F.Supp.3d 1211
• Parties: UNITED STATES of America, Plaintiff, v. Juan Carlos VILLALOBOS–MACIAS, Defendant.
• Court: U.S. District Court — District of New Mexico

280 F.Supp.3d 1211

UNITED STATES of America, Plaintiff,

v.Juan Carlos VILLALOBOS–MACIAS, Defendant.

No. 17–cr–182 MCA

United States District Court, D. New Mexico.

Signed November 29, 2017

Norman Cairns, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

Devon Fooks, Federal Public Defender, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, Chief United States District Judge

THIS MATTER is before the Court on Defendant's Motion to Dismiss Count One of the Indictment for Improper Venue [Doc. 16]. The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court DENIES Defendant's Motion .

I. Background

Defendant was charged in a four-count Indictment with carjacking (Count 1) and attempted carjacking (count 2), in violation of 18 U.S.C. § 2119, and with using, carrying, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 3 and 4). [Doc. 2] Counts 1 and 3 allege conduct that occurred in Pueblo County, Colorado, and Counts 2 and 4 allege conduct that occurred in Mora County, New Mexico. [Doc. 2]

The Government that Defendant engaged in the following conduct. On December 28, 2016, Defendant approached P.J. at the Pinon Rest Stop, which is at mile marker 112 off of southbound Interstate 25 outside of Pueblo, Colorado. [Doc. 16; Doc. 20] Defendant pointed a revolver at P.J., then fired the weapon. [Doc. 16; Doc. 20] Either with the shot or by using the gun as a club, Defendant shattered the driver's side window. [Doc. 16; Doc. 20] As P.J. fled, she threw her purse near the back of the vehicle. [Doc. 16; Doc. 20] Defendant picked up the purse and drove P.J.'s vehicle out of the parking lot and south on Interstate 25. [Doc. 16; Doc. 20]

The Government further alleges that sometime later¹ and while still in possession of P.J.'s vehicle, Defendant used the same revolver to attempt to carjack a second vehicle on Interstate 25 near Wagon Mound, New Mexico. [Doc. 20; Doc. 2 (Count 2) ] During this encounter, Defendant fired the revolver and injured J.K. in the hand. [Doc. 20] He then drove away in P.J.'s car. [Doc. 20] He was intercepted and arrested on Interstate 25 after a brief chase. [Doc. 20; Doc. 16 (stating that Defendant was arrested "approximately three hours" after the incident in Colorado) ]

The carjacking statute ( § 2119 ) provides that:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury ... results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.

18 U.S.C. § 2119 (footnote omitted). Count 1 of the Indictment charges Defendant with carjacking as follows:

On or about December 28, 2016, in Pueblo County, in the District of Colorado, and elsewhere, the defendant, JUAN CARLOS VILLALOBOS–MACIAS, with the intent to cause death and serious bodily harm, did take a motor vehicle, a white Toyota RAV4, bearing Colorado license plate number 113VGK, that had been shipped, transported, and received in interstate commerce, from the person and presence of another, by force, violence, and intimidation, resulting in serious bodily injury, a bullet wound to the hand that caused extreme physical pain and impairment of the function of a bodily member to J.K.

In violation of 18 U.S.C. § 2119.

[Doc. 2] Thus, Count 1 of the Indictment charges Defendant with violation of § 2119(2) by taking a vehicle by force from P.J. which resulted in bodily injury to J.K.

Defendant now moves to dismiss Count 1 of the Indictment on the ground that New Mexico is not the proper venue for this charge. [Doc. 16]

II. Discussion

A. Law on Venue

The right to be tried in the place where the crime was committed is protected in multiple ways. "The Constitution twice safeguards the defendant's venue right: Article III, § 2, cl. 3, instructs that ‘Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed’ [and] the Sixth Amendment calls for trial ‘by an impartial jury of the State and district wherein the crime shall have been committed.’ " United States v. Cabrales , 524 U.S. 1, 6, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998). In addition, " Rule 18 of the Federal Rules of Criminal Procedure, providing that ‘prosecution shall be had in a district in which the offense was committed,’ echoes the constitutional commands." Id. ; see also Fed. R. Crim. P. 12(b)(3)(a)(1) (providing for pre-trial motions based on "improper venue"). Congress addressed venue for crimes that are committed in more than one district in 18 U.S.C. § 3237(a), which provides:

Except as otherwise expressly provided by enactment of Congress, any 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.

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

When a criminal statute does not specify the proper venue, " ‘the place at which the crime was committed ‘must be determined from the nature of the crime alleged and the location of the act or acts constituting it. ’ " United States v. Cryar , 232 F.3d 1318, 1321 (10th Cir. 2000) (quoting United States v. Medina–Ramos, 834 F.2d 874, 876 (10th Cir. 1987) ; see United States v. Rodriguez–Moreno, 526 U.S. 275, 279, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999) ("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."). In doing so, the courts "often examine the verbs used in [the] ... statute in order to define the offense." Cryar , 232 F.3d at 1321. "But, as the Supreme Court has made clear, the verb test is merely an interpretive device, and is not to be given primacy over other interpretive methods." Id. ; see Rodriguez–Moreno, 526 U.S. at 279–80, 119 S.Ct. 1239. Moreover, "[v]enue is proper under § 3237 when an ‘essential conduct element’ of the offense continues into the charging district." United States v. Sullivan , 797 F.3d 623, 631 (9th Cir. 2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 2408, 195 L.Ed.2d 783 (2016) (emphasis added) (quoting Rodriguez–Moreno , 526 U.S. at 280, 119 S.Ct. 1239 ).

In considering a motion to dismiss for lack of venue, the Court's review is limited to the face of the indictment. "An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Hall , 20 F.3d 1084, 1087 (10th Cir. 1994). "Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency." Id. ; see United States v. Jensen , 93 F.3d 667, 669 (9th Cir. 1996) (stating that the district court erred by considering "evidence that should only have been presented at trial"); United States v. Forrest , 182 F.3d 910 (4th Cir. 1999) (unpublished) (stating that "[w]hen the motion to dismiss for improper venue is a pretrial motion, only the indictment may be considered. Evidence beyond the face of the indictment should not be considered.").

B. Analysis

1. Adequacy of the indictment

At trial, "[t]he burden is on the government to prove that the crime was committed in the district in which the prosecution is brought ... and when a defendant is charged in more than one count, venue must be proper with respect to each count." United States v. Beech–Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir. 1989) (citations omitted), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989) ; United States v. Naranjo, 14 F.3d 145, 146 (2d Cir. 1994) ("The Government bears the burden of proving, by a preponderance of the evidence, that venue exists."). Before trial, however, "it suffices for the government to allege with specificity that the charged acts support venue in th[e] district." United States v. Long, 697 F.Supp. 651, 655 (S.D.N.Y. 1988). When the indictment is not sufficiently specific, dismissal is not necessarily required. "While a trial court may dismiss an indictment for improper venue, ... the failure to adequately allege the basis for venue generally should be addressed in the first instance not by dismissing the indictment but through a bill of particulars." United States v. Trie , 21 F.Supp.2d 7, 17 (D.D.C. 1998) ; see United States v. Honneus, 508 F.2d 566, 570 (1st Cir. 1974).

Here, Count 1 of the Indictment alleges that the carjacking in Colorado resulted in serious bodily injury to J.K., but does not specify that the injury occurred in New Mexico. [Doc. 2] Thus, Count I of the Indictment is facially inadequate to allege venue in New Mexico. The Court will, therefore, order the Government to provide a bill of particulars addressing the facts it will adduce to establish venue in New Mexico, if the Government has not filed a superseding indictment. After receipt of the bill of particulars or upon filing of a superseding indictment, Defendant may renew his motion to dismiss if the Government's allegations remain insufficiently specific as to venue. See United States v. Wilson , No. 01 CR. 53 (DLC), 2001 WL 798018, at *6 (S....