United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO, District Judge.
Presently before the Court are Defendant Joseph P. Donahue's ("Donahue") Second Supplemental Motions. (Doc. 133.) In his motions, Donahue requests that Counts Two, Three, and Four of the First Superseding Indictment be dismissed for lack of venue. In the alternative, Donahue requests that the Government be ordered to file a bill of particulars. Donahue's motion for bill of particulars will be denied, while his motion to dismiss for lack of venue will be denied without prejudice to reassert it at trial.
On March 4, 2010, Donahue was convicted after a jury trial in the United States District Court for the Middle District of Pennsylvania of multiple federal offenses. On December 2, 2010, Donahue was sentenced to 121 months imprisonment. He was scheduled to surrender at the Federal Correctional Institution, Fort Dix, New Jersey, to commence serving his sentence on January 4, 2011.
On January 4, 2011, Donahue failed to appear at the institution designated for the service of his sentence. The United States Attorney's Office, Middle District of Pennsylvania, thereafter applied for, and obtained, a warrant for Donahue's arrest.
On January 20, 2011, Donahue was arrested by the United States Marshals Service in Las Cruces, New Mexico. Donahue's vehicle was taken to the U.S. Marshals' facility in Las Cruces, New Mexico, where the car was searched, pictures of the vehicle and its contents were taken, and the contents of the car were inventoried pursuant to the United States Marshals Service Policy Directives. During a subsequent search of the vehicle, a Glock.40 caliber magazine with an extender was discovered in the automobile. Subsequently, the bags seized from Donahue's vehicle were opened and searched, and a Glock semi-automatic pistol was found.
On July 24, 2012, the Grand Jury returned the Four-Count First Superseding Indictment against Donahue. Specifically, Donahue was charged with: (1) knowingly failing to surrender for service of a federal sentence pursuant to a court order in violation of 18 U.S.C. § 3146(a)(2) and (b)(1)(A)(i) (Count One); (2) knowingly possessing, in and affecting commerce, a firearm (Glock, Model 27, .40 caliber semi-auto pistol, serial number GTB989) which had been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Two); (3) being a fugitive from justice and knowingly possessing, in and affecting commerce, a firearm (Glock, Model 27, .40 caliber semi-auto pistol, serial number GRB989) which had been shipped and transported in interstate and foreign commerce, in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2) (Count Three); and (4) knowingly possessing a stolen firearm (Glock, Model 27, .40 caliber semi-auto pistol, serial number GTB989) which had been shipped and transported in interstate and foreign commerce, knowing and having reasonable cause to believe the firearm was stolen in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (Count Four).
Now, Donahue seeks to dismiss the firearms offenses, i.e., Counts Two, Three, and Four of the First Superseding Indictment, for lack of venue. (Doc. 133.) In the alternative, Donahue requests that the Government be ordered to file a bill of particulars. ( Id. ) Donahue's supplemental motions are fully briefed and ripe for disposition.
Donahue seeks dismissal of Counts Two, Three, and Four of the First Superseding Indictment for lack of venue. (Doc. 134.) According to Donahue, proper venue for those charges is in New Mexico and not the Middle District of Pennsylvania. ( Id. at 3.) Donahue contends that the First Superseding Indictment fails to set forth facts detailing his possession of the firearm or its stolen nature in the Middle District of Pennsylvania. ( Id. at 4-5.) Moreover, with respect to the offense in Count Three, possessing a firearm while a fugitive from justice, Donahue argues that venue in this District is improper because, "by statutory definition, [he] can only become a fugitive from justice upon feeling the Commonwealth of Pennsylvania." (Doc. 145, 1-2.) Donahue cites 18 U.S.C. § 921(a)(15), which defines "the term fugitive from justice' [as] any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding." In opposition to Donahue's motion to dismiss Count Three for improper venue, the Government argues that it "may be prosecuted in any district in which the offense was begun, continued, or completed. That the crime of fugitive from justice in possession of a firearm began in the Middle District of Pennsylvania can hardly be denied." (Doc. 135, 11.) In reply, Donahue contends that the Government's claim that venue is proper in the Middle District of Pennsylvania because that is where the offense began fails to establish venue. (Doc. 145, 5.)
"In considering a defense motion to dismiss an indictment, [a] district court must accept as true the factual allegations set forth in the indictment." United States v. Bergrin, 650 F.3d 257, 265 (3d Cir. 2011) (citation and alterations omitted); see also United States v. Clark, 728 F.3d 622, 623 (7th Cir. 2013) ("We accept these factual allegations as true in assessing a pre-trial motion to dismiss an indictment for improper venue."); United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) ("to warrant dismissal of Count 1 for improper venue, [the defendant] was required to demonstrate that the allegations therein, even if true, would not establish venue."); United States v. Mendoza, 108 F.3d 1155, 1156 (9th Cir. 1997) ("only the indictment may be considered in pretrial motions to dismiss for lack of venue, and that the allegations must be taken as true.").
"A defendant in a criminal trial has a constitutional right to be tried in the district in which the crime was committed." United States v. Perez, 280 F.3d 318, 327 (3d Cir. 2002). Proper venue is guaranteed twice by the Constitution. See id. First, Paragraph 3 of Article III, Section 2 provides that "[t]he Trial of all Crimes... shall be by Jury; and such trial shall be held in the State where the said Crimes shall have been committed...." U.S. Const. art. III, § 2, c. 3. Second, the Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right to a speedy and public trial "by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. Const. amend. VI. In addition, the Federal Rules of Criminal Procedure codify this guarantee. See Fed. R. Crim. P. 18 ("Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.").
"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 145, 155 (3d Cir. 2009) (citing United States v. Perez, 280 F.3d 318, 328-30 (3d Cir. 2002)); see also United States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012) ("Where... a defendant is charged with multiple crimes in a ...