United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT U.S. MAGISTRATE JUDGE.
7, 2016, the Defendant, Shawndale Saunders, was named in a
two-count Indictment. ECF No. 1. Count One alleges that he
conspired to distribute 280 grams or more of cocaine base.
Count Two alleges the use of a telephone to facilitate
distribution of cocaine base.
February 28, 2017, the Court held an evidentiary hearing and
argument regarding several of the Defendant's motions.
The Defendant appeared in person and by counsel, Frankie C.
Walker, II, Esq. The Government appeared by its counsel
Stephen L. Vogrin, Esq.
Report and Recommendation addresses only the Defendant's
[ECF No. 37] Amended Motion to Dismiss for Improper
Venue/Lack of Jurisdiction. The Defendant's [ECF No. 37]
Amended Motion amended the Defendant's [ECF No. 36]
original motion which should be DENIED as moot because of the
Defendant's [ECF No. 37] Motion is styled as a motion to
dismiss for both improper venue and lack of jurisdiction.
However, the motion only argues improper venue. Therefore,
the Court will only consider an argument for improper venue.
The Defendant's motion should be DENIED for two reasons.
First, venue appears proper. Second, the motion is premature.
Venue Appears Proper
Defendant argues that, “[o]n its face, the indictment
alleges that the charged offenses took place at locations
‘elsewhere' than the Northern District of West
Virginia.” ECF No. 37 at 4. This, however, is an
incomplete reading of the Indictment. Rather, both counts in
the Indictment allege that the crimes took place in the
Northern District of West Virginia and elsewhere.
ECF No. 1 (emphasis added).
Defendant further argues that the Indictment should be
dismissed to the extent that it alleges acts that occurred
outside of the Northern District of West Virginia. However,
simply because an act occurred elsewhere does not
mean it cannot be prosecuted in this district. Indeed,
“[f]or some offenses, there may be more than one
appropriate venue, or even a venue in which the defendant has
never set foot.” United States v. Ebersole,
411 F.3d 517, 524 (4th Cir. 2005) (quotations omitted). For
example, “a conspiracy may be prosecuted in any
district in which the agreement was formed or in which an act
in furtherance of the conspiracy was committed.”
United States v. Gilliam, 975 F.2d 1050, 1057 (4th
Cir. 1992) (citations omitted). Here, the Defendant is in
fact charged with conspiracy. Therefore, an act in
furtherance of the conspiracy committed in the Northern
District of West Virginia is sufficient to make venue proper
in this district. Therefore, the Government has properly
The Motion is Premature
an indictment properly alleges venue, but the proof at trial
fails to support the venue allegation, an objection to venue
can be raised at the close of the evidence.” United
States v. Collins, 372 F.3d 629, 633 (4th Cir. 2004)
(quoting United States v. Melia, 741 F.2d 70, 71
(4th Cir.1984)). Thus, because the Government has properly
alleged venue, the proper time to challenge venue is at the
close of the Government's evidence and not pretrial.
forgoing reasons, the Court recommends that the