US v. Donato

• Decision Date: 27 October 1994
• Docket Number: Crim. A. No. 94-00013-C.
• Parties: UNITED STATES of America v. Patricia DONATO, Charles D. Fraser, Defendants.
• Court: U.S. District Court — Western District of Virginia

866 F. Supp. 288

UNITED STATES of America v. Patricia DONATO, Charles D. Fraser, Defendants.

Crim. A. No. 94-00013-C.

United States District Court, W.D. Virginia, Charlottesville Division.

October 27, 1994.

COPYRIGHT MATERIAL OMITTED

J. Roger Williams, Jr., Williams & Connolly, Washington, DC, for Patricia M. Donato.

Brian Patrick Hanchey, Tate & Bywater, Manassas, VA, for Charles David Fraser.

Raymond B. Fitzgerald, Jr., U.S. Attorney's Office, Roanoke, VA, for U.S.

MEMORANDUM OPINION

MICHAEL, District Judge.

This matter comes before the court upon Defendant Donato's motion to dismiss the superseding indictment in this case, which motion is joined by Defendant Fraser. The court heard oral argument from Defendant Donato and the Government on October 12, 1994, and has considered the briefs submitted by the parties. For the reasons stated herein, the court must dismiss counts two and three of the indictment, charging the Defendants with mail and wire fraud, for failure to allege facts showing that the Western District of Virginia is the proper venue for the prosecution of those actions. Venue lies in this district under the conspiracy charged in count one, but the court will transfer this count to the United States District Court for the District of Columbia so that all related offenses may be tried together if the Defendants are reindicted in that district for the offenses alleged in counts two and three.

I. Background

On June 7, 1994, Defendant Donato filed a motion to dismiss the original indictment in this case charging her and Defendant Fraser with mail and wire fraud under 18 U.S.C. §§ 1341 and 1343. Defendant Donato argued that the Government failed to allege that she mailed any object or made any communication from, to, or through the Western District of Virginia in furtherance of a scheme to defraud, and accordingly that this district was not the proper venue for bringing the charges in the indictment. Additionally, Defendant Donato argued that the indictment should be dismissed as duplicitous.

The Government filed a superseding indictment on July 13, 1994, separating the mail and wire fraud allegations into two counts and adding conspiracy to commit mail and wire fraud as an additional count. On September 6, 1994, Defendant Donato renewed her objections in a motion to dismiss the superseding indictment. As to the conspiracy count, Defendant Donato argued that it should be dismissed for lack of venue and for failure to allege an overt act in furtherance of the conspiracy, as required under 18 U.S.C. § 371.

The superseding indictment charges the Defendants with concocting a scheme to defraud Defendant Donato's Texas-based insurance company. The Defendants allegedly agreed that Defendant Donato would leave her leased Nissan automobile in a parking lot, Defendant Fraser would "steal" the car and sell it, and then Defendant Donato would report the car as stolen to the police and to her insurance company. Defendant Fraser allegedly took the car from a parking lot in Washington, D.C., and then sold it to an undercover officer in Northern Virginia. Fraser had previously contacted an associate in the Western District of Virginia to arrange a buyer, according to the indictment. The associate turned out to be an F.B.I. informant and set up Defendant Fraser to sell the car to the police. Pursuant to the scheme alleged in the superseding indictment, Defendant Donato falsely reported the car as stolen and then reported the loss to her insurance company in Texas.

Of significance in resolving the venue question is the fact that there are no allegations in the indictment that any mailings or interstate wire communications were made to, through, or from the Western District of Virginia. The allegedly fraudulent mailings and interstate wire communications include Defendant Donato's false claims reported to her insurance company in Texas by mail and wire and the claims checks mailed from Defendant Donato's insurance company to Defendant Donato, who lives in Washington, D.C. The only act touching this district is the telephone contact between Defendant Fraser and his Western District of Virginia associate, and the actions committed by the associate in this district in furtherance of the Defendants' scheme.

II. Conspiracy

A. Venue

Venue in conspiracy cases exists in every place where co-conspirators plan, agree, or commit overt acts in furtherance of the conspiracy. Hyde v. United States, 225 U.S. 347, 363, 32 S.Ct. 793, 800, 56 L.Ed. 1114 (1912); United States v. Anderson, 611 F.2d 504, 511-12 n. 5 (4th Cir.1979). Conspiracy is a continuing offense, Hyde, 225 U.S. at 363, 32 S.Ct. at 800, and carries "to the whole area of its operations the guilt of its conception," id. Under the federal venue statute, a continuing offense may be prosecuted "in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a); see also United States v. Barfield, 969 F.2d 1554, 1557 (4th Cir.1991) (jurisdiction over prosecution of continuing offense lies in any district in which any portion of offense occurred). The reasonably foreseeable actions of every co-conspirator are imputable to all other members of the conspiracy, Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), and the actions of any co-conspirator will establish the basis for venue over all others; Hyde, 225 U.S. at 363, 32 S.Ct. at 800; Anderson, 611 F.2d at 511-12 n. 5.

The indictment alleges that Defendant Fraser made a telephone call to the F.B.I. informant in this district in the effort to set up a buyer for the Nissan. By reaching into this district in the attempt to recruit a co-conspirator, Defendant Fraser established the basis for venue here. It is well-established that "phone calls from one district into another can establish venue in the latter district so long as they further the ends of the conspiracy." United States v. Naranjo, 14 F.3d 145, 147 (2d Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994); accord United States v. Stewart, 878 F.2d 256, 258 (8th Cir.1989); United States v. Lewis, 676 F.2d 508, 511 (11th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982); United States v. Strickland, 493 F.2d 182, 187 (5th Cir.) (citing cases), cert. dismissed, 419 U.S. 801, 95 S.Ct. 9, 42 L.Ed.2d 32 (1974). The phone calls need not be made to a co-conspirator; they simply must further the goals of the conspiracy. Naranjo, 14 F.3d at 147; Lewis, 676 F.2d at 511.

There is no evidence that the Government induced Defendant Fraser to attempt to enlist the services of the F.B.I. informant. The Government "`did not orchestrate the phone call in order to lay the groundwork for venue.'" Naranjo, 14 F.3d at 147 (quoting Lewis, 676 F.2d at 511 n. 3). The indictment alleges that Defendant Fraser unwittingly sought the assistance of the Western District of Virginia informant who set him up for arrest. As a consequence, venue exists in this district to prosecute the conspiracy action against both of the Defendants.

B. Overt Acts

As an alternative ground for dismissing the conspiracy charge, the Defendants argue that count one of the superseding indictment fails to allege that any of the acts of the Defendants were committed in furtherance of the conspiracy. While it is true that the count does not specify a list of "overt acts," the acts listed thereunder are satisfactory to charge an offense under 18 U.S.C. § 371.

In the first paragraph of count one, the indictment charges that, at a date unknown to the Grand Jury, the Defendants agreed to commit mail and wire fraud. Five of the remaining eight paragraphs begin with the phrase "it was part of the scheme that," followed by certain actions taken by the Defendants. This language is sufficient to satisfy the court that the Grand Jury made the finding that these acts were related to a "scheme," and that the scheme referred to under count one is the conspiracy to commit mail and wire fraud. Moreover, these paragraphs are sufficient to put the Defendants on notice of the acts that the Government intends to prove under count one. Accordingly, the court denies the Defendants' motion to dismiss on this basis.

III. Mail and Wire Fraud — Venue

Although this district is the proper venue for the conspiracy charge, the court must make a separate inquiry into whether venue is proper under the substantive offenses of mail and wire fraud. United States v. Corona, 34 F.3d 876, 878 (9th Cir.1994) (citing United States v. Walden, 464 F.2d 1015, 1016 (4th Cir.), cert. denied, 409 U.S. 867, 93 S.Ct. 165, 34 L.Ed.2d 116 (1972), and cert. denied, 410 U.S. 969, 93 S.Ct. 1436, 35 L.Ed.2d 705 (1972)). This is so even if the substantive crimes were allegedly committed in furtherance of the conspiracy. Corona, supra.

Where Congress fails to explicitly define venue under a criminal statute, "`the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.'" Travis v. United States, 364 U.S. 631, 634, 81 S.Ct. 358, 360, 5 L.Ed.2d 340 (1961) (citations omitted). The court must look to the language of the statute defining the crime, for the "essential verb that usually contains the key to the solution of the question: In what district was the crime committed?" Walden, 464 F.2d at 1018 (quoting Dobie, Venue in Criminal Cases in the United States District Court, 12 Va.L.Rev. 287, 289 (1926)).

The language defining the location of the mail fraud offense includes the clauses, "places in any post office," "takes or receives therefrom," and "causes to be delivered." § 1341. Under the wire fraud statute, the place of the offense is where anyone "transmits or causes to be transmitted" in interstate or foreign commerce a wire communication in furtherance of a scheme to defraud. § 1343. Accordingly, venue under the mail and wire fraud statutes lies at the place where an...