Opinion
Criminal Action No. 01-004 Section "N".
May 14, 2001
ORDER AND REASONS
Before the Court is Defendant Cecil Brown's Motion for Judgment of Acquittal Or, Alternatively, For a New Trial. For the following reasons, the Motion is DENIED.
A. BACKGROUND
On November 29, 1999, a federal grand jury in the Middle District of Louisiana indicted Cecil Brown on charges of extortion, interstate travel in aid of unlawful activity, and conspiracy. On November 30, 2000, Chief Judge Carolyn Dineen King of the United States Court of Appeals for the Fifth Circuit assigned Mr. Brown's case to this Court. Following a joint motion by the Government and Mr. Brown, the case was formally transferred to the Eastern District of Louisiana on December 5, 2000. In moving for transfer, Mr. Brown expressly "waive[d] any objections to the propriety of venue in the Eastern District of Louisiana."
The case was assigned M.D. La. Criminal Docket No. 99-171.
See Dec. 5, 2000 Order granting Joint Motion to Transfer Case to Eastern District of Louisiana for Trial by Jury, M.D. La. Cr. 99-171 Rec. Doc. No. 51, E.D. La. Cr. 00-381 Rec. Doc. No. 1. Upon transfer, the case was assigned E.D. La. Criminal Docket No. 00-381.
See Joint Motion to Transfer Case to Eastern District of Louisiana for Trial by Jury, M.D. La. Cr. 99-171 Rec. Doc. No. 49.
On January 5, 2001, the Court granted Mr. Brown's motion to dismiss the original indictment for a violation of the Speedy Trial Act and dismissed the indictment without prejudice. On the same day, a grand jury returned an indictment against Mr. Brown, and, on January 26, 2001, the Government superseded. The new indictment and superseding indictment contained several allegations and charges substantially identical to those in the original indictment, as well as some new allegations and charges.
Upon re-indictment, the case was assigned E.D. La. Criminal Docket No. 01-004.
Jury trial commenced on March 12, 2001. On March 21, 2001, the jury returned a unanimous verdict of guilty on seven of the nine counts charged in the superseding indictment.
Mr. Brown was unanimously acquitted on one count of racketeering and one count of interstate travel fraud.
B. LAW AND ANALYSIS
Each of the counts on which Mr. Brown was convicted charged that the relevant conduct occurred "in the Eastern District of Louisiana and elsewhere." Mr. Brown now argues that there was insufficient evidence to establish venue for those charges in the Eastern District of Louisiana. The Court DENIES Mr. Brown's motion on two separate and independent grounds.First, the Court finds that Mr. Brown waived his objection to venue by not raising it prior to the verdict. Because the "purpose of a venue motion is to protect defendants from the inconvenience of defending charges in a distant place having no connection with the offense", "courts have consistently ruled that a claim of venue must be raised at least prior to a verdict." United States v. Parrish, 736 F.2d 152, 158 (5th Cir. 1984) (per curiam) (quoting United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981)). "[I]n many (and perhaps most) cases in which the defendant fails to object to a defect in venue, the defendant's silence may be taken to imply a waiver of the venue right . . ." United States v. Stratton 649 F.2d 1066, 1078 (5th Cir. 1981). Additionally, a court may find that a defendant has voluntarily waived his right to object to venue if the defendant had knowledge of the right, freely exercised an uncoerced will, and knowingly engaged in conduct or took action which evidences an intent to waive. Id. at 1077.
Here, it is undisputed that Mr. Brown raised no objection to venue prior to the verdict. In fact, he moved to transfer his case to this district and expressly "waive[d] any objections to the propriety of venue in the Eastern District of Louisiana." Even if this express waiver did not apply to the second indictment, it demonstrates that he had full knowledge of his right to object but deliberately, voluntarily and knowingly chose not to do so; in other words, it supports a finding of an implicit waiver. The Court finds Mr. Brown's waiver of his right to object to venue sufficient to deny the present motion.
Separate from the waiver, the Government proved by a preponderance of the evidence that substantial portions of the schemes for which Mr. Brown was convicted took place in the Eastern District of Louisiana. See Parrish, 736 F.2d at 158 (venue must be proven by a preponderance of the evidence). For example, the object of the alleged Evergreen scheme was to secure a municipal waste disposal contract with the city of New Orleans, and the evidence showed that Mr. Brown helped to arrange a meeting between the Evergreen interests and New Orleans city officials in New Orleans in furtherance of that scheme. Similarly, the object of the alleged Top Rank scheme was to bring a National Basketball Association franchise to New Orleans, and the evidence showed that exchanges of money related to the scheme took place in the Eastern District of Louisiana, for example, when Mr. Brown returned some of the extortion money, in cash, to the Superdome Commission's attorney. Thus, although Mr. Brown was convicted for acts that took place in Texas and the Western and Middle Districts of Louisiana, the evidence overwhelmingly showed that these acts were integral parts of schemes to defraud that, at the very least, were "continued" in the Eastern District of Louisiana. See 18 U.S.C. § 3237(a) (providing that "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" and defining "any offense involving the use of the mails" as a "continuing offense");United States v. Odiodio, 244 F.3d 398, 402 (5th Cir. 2001) (elements of wire fraud include not only the actual use of wire communications but also a scheme to defraud). Venue was therefore proper.
C. CONCLUSION
Mr. Brown waived his objections to venue. Even had he preserved the objection, the evidence overwhelmingly showed that venue in the Eastern District of Louisiana was proper. Accordingly,
IT IS ORDERED that Defendant Cecil Brown's Motion for Judgment of Acquittal Or, Alternatively, For a New Trial is DENIED.