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 Due to Improper Venue and the government's
Motion to Dismiss Count Eight. Having considered those
motions, defendant's motion will be denied, and the
government's motion allowed for the reasons that follow.
is charged in the Bill of Indictment with one count of
securities fraud (Count 1), six counts of wire fraud (Counts
2 through 7), and two counts of transactional money
laundering (Counts 8 and 9). Further, the Indictment alleges
that defendant committed some of those violations while on
release under the Bail Reform Act, a violation of
Title 18, United States Code, Section 3147. According to the
speaking indictment, the alleged fraud occurred between 2015
and 2017, and targeted two North Carolina couples.
venue, the charging instrument asserts venue in the Western
District of North Carolina, see Indictment at
¶¶ 6, 9, 14, 18, 20, 22, 25, & 28, and alleges
that victims W.B. and his wife A.B. were residents of
Davidson, North Carolina, which is within the Western
District of North Carolina. Further, the Indictment alleges
that defendant communicated false information to W.B. within
this District both over the phone and via electronic
communications and caused W.B. to send electronic
communications to defendant from this District. Id.
at ¶¶ 7, 9, 13, 14, 15, 16, 18 & 20. Defendant
also caused W.B. to send Defendant via wire transfer $350,
000 from this District to Defendant in New York. Id.
at ¶¶ 6 & 25. After receiving W.B.'s (and
victim M.G.'s) money, it is alleged that defendant did
not use it as promised, but instead used it to pay unrelated
personal and other expenses, including the transaction
constituting the transactional money laundering charged in
Count Nine. Id. at ¶ 10.
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). 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 remaining count.
United States v. Bowens, 224 F.3d 302, 308 (4th Cir.
2000). When the essential elements of conduct as to each
element are compared to the allegations of the Indictment, it
is readily apparent that defendant committed acts in the
Western District of North Carolina that furthered the crimes
Count One, venue for the securities fraud scheme charged in
Count One is proper “in the district wherein any act or
transaction constituting the violation occurred.” 15
U.S.C. § 78aa. In United States v. Johnson, 510
F.3d 521 (4th Cir. 2007), the appellate court found venue
proper in the district where defendant caused an electronic
communication to be sent. Id. at 525. The Indictment
fully satisfies this requirement as it is alleged that
defendant personally sent electronic communications and phone
calls into this District and caused electronic
communication, phone calls, and wire transfers to be sent
from this District. Venue is properly laid in this District.
Counts Two through Seven, which are counts for wire fraud,
the Indictment is replete with supporting acts that allegedly
occurred in this District. The victims of the alleged wire
fraud were located in this District and defendant allegedly
contacted the victims in this District on multiple occasions
via electronic communications and other means in furtherance
of the alleged offense. United States v. Jefferson,
674 F.3d 332, 369 (4th Cir. 2012) (wire fraud could have been
prosecuted in district where phone call was made or
received). Venue is properly laid in this District.
Count Nine, the money laundering charge, defendant has erred
in his argument that a Supreme Court decision mandates
dismissal. Specifically, 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, in response to Cabrales, so ...