United States District Court, W.D. North Carolina, Charlotte Division
Cogburn, Jr., United States District Judge
MATTER is before the Court on defendant's Motion
to Dismiss based on improper venue. Having considered
defendant's motion and reviewed the pleadings, the Court
enters the following findings, conclusions, and Order.
is charged in the Superseding Bill of Indictment (#16) with
one count of wire fraud in violation of 18 U.S.C. § 1343
(Count One) and two counts of transactional money laundering
in violation of 18 U.S.C. § 1957(a) (Counts Two and
Three). In support of his Motion to Dismiss, defendant
contends that venue is not properly laid in this district.
venue, the charging instrument asserts venue in the Western
District of North Carolina, and provides that defendant
allegedly sent victim S.F. (a resident of Cornelius, North
Carolina) an email on or about January 25, 2016, while S.F.
was in this District. It is further alleged that such email
contained false representations about a proposed business
transaction, including that it would result in a profit to
S.F. of $20, 000 within one week. (Id. at
¶¶ 3, 4 & 10). After receiving the email, S.F.
purportedly wired $131, 400 from this District to
defendant's business “Triple Play Sales” in
Florida. (Id. at ¶¶ 5 & 10). It is
also alleged that defendant falsely represented to S.F.
(while S.F. was in this District) that he was going to
contribute $30, 000 of his own money to complete the
transaction. (Id. at ¶¶ 3, 4 & 10).
receiving S.F.'s money, the Grand jury alleges that
defendant did not use it as promised, but instead used it to
pay unrelated business and personal expenses, including the
two transactions constituting the transactional money
laundering charged in Counts Two and Three. (Id. at
¶¶ 6 & 12). When S.F. confronted defendant
about his failure to return S.F.'s principal and income
from the transaction, defendant allegedly made a series of
misrepresentations to S.F. transmitted via electronic
communications to this District to keep S.F. from taking
action to recover his money. (Id. at ¶¶
7& 10). Further, it is alleged that when S.F. confronted
defendant about these misrepresentations, defendant admitted
to S.F. during a telephone call (while S.F. was in this
District), that he “f*cked up” and subsequently
sent a few lulling payments to S.F. into this District.
(Id. at ¶ 8).
federal criminal defendant is entitled to be tried in the
federal district where the alleged crime was committed. U.S.
Const. art. III, § 2, cl. 3; U.S. Const. amend. VI;
Fed.R.Crim.P. 18. Determining proper venue protects the
accused “from the inconvenience and prejudice of
prosecution in a far-flung district bearing no connection to
their [alleged] offenses.” United States v.
Smith, 452 F.3d 323, 334 (4th Cir. 2006). Venue
“is not a substantive element of a crime, ”
United States v. Griley, 814 F.2d 967, 973 (4th
Cir.1987), but instead “is similar in nature to a
jurisdictional element, ” United States v.
Johnson, 510 F.3d 521, 527 (4th Cir. 2007).
the question of venue is one for the jury, but need only be
proven by a preponderance of the evidence. United States
v. Burns, 990 F.2d 1426, 1436 (4th Cir. 1993). However,
a defendant, as defendant has herein done, must challenge
venue in advance of trial if the asserted venue defect is
apparent on the face of the indictment. United States v.
Collins, 372 F.3d 629, 633 (4th Cir. 2004). Here,
defendant attempts to provide facts outside the charging
document by way of affidavit. When a motion to dismiss for
improper venue is a pretrial motion under Rule 12,
“only the indictment may be considered. Evidence beyond
the face of the indictment should not be considered.”
United States v. Engle, 676 F.3d 405, 415 & n.6
(4th Cir. 2012) (quoting United States v. Forrest,
182. F.3d 910 (4th Cir. 1999) (per curiam)).
considering the arguments of defendant and the government,
the Court finds that venue lies as to each count. United
States v. Bowens, 224 F.3d 302, 308 (4th Cir. 2000).
When the essential elements of conduct as to each conduct are
compared to the allegations of the Superseding Indictment, it
is readily apparent that defendant committed acts in the
Western District of North Carolina that furthered the crimes
Count One, which alleged wire fraud, the Superseding
Indictment is replete with alleged acts supporting the charge
that occurred in this district. The victim of the alleged
wire fraud was located in this district and defendant
allegedly contacted the victim in this district on multiple
occasions via electronic communications in furtherance of the
alleged offense. Further, defendant allegedly sent the victim
lulling payments as part of the alleged scheme to defraud.
United States v. Georgiadis, 819 F.3d 4, 12 (1st
Counts Two and Three, which allege money laundering, venue is
also properly laid in this district. While United States
v. Cabrales, 524 U.S. 1 (1998) interprets the general
venue provisions of 18 U.S.C. § 3237(a), that provision
applies “[e]xcept as otherwise expressly provided by
enactment of Congress.” 18 U.S.C. §3237(a).
Congress has, in response to Cabrales, so expressly