United States District Court, E.D. Wisconsin
ORDER ADOPTING JUDGE JOSEPH’S REPORT AND RECOMMENDATION (DKT. NO. 349) AND DENYING DEFENDANTS’ JOINT MOTION TO DISMISS FOR IMPROPER VENUE (DKT. NO. 304)
HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
The government charged defendants William Phillips and Margaree Campbell with one count of conspiracy to possess with intent to distribute and to distribute heroin, and multiple counts of attempting to possess with intent to distribute and to distribute heroin. Dkt. No. 115. The indictment alleges that Phillips and Williams were part of the Rayford Williams drug trafficking organization (DTO). Id.
On December 18, 2015, Phillips and Campbell filed a motion asking the court to dismiss all of the substantive drug counts (Counts 3-11, 13-14, 16, 18-19 and 21-23) against them for improper venue. Dkt. No. 304. Specifically, they argued that all of their alleged drug dealing took place in the Chicago area, and thus that venue in the Eastern District of Wisconsin was improper. Id.
On March 11, 2016, Judge Joseph issued a report and recommendation, recommending that this court deny the motion to dismiss. Dkt. No. 349. Judge Joseph found that the facts were disputed as to whether Phillips and Campbell had reason to know where the drugs they had sold the Williams DTO were headed, and that the jury was the appropriate fact-finder with regard to that question. Id.
The defendants objected to Judge Joseph’s report and recommendation. Dkt. No. 354. By this order, the court adopts Judge Joseph’s recommendation, and denies the defendants’ motion to dismiss.
Judge Joseph’s order sufficiently lays out the case law regarding the constitutional underpinnings of the venue requirement. Dkt. No. 349 at 2-3. The court, then, will move to the specific issue raised by the defendants.
In 1987, the Seventh Circuit considered a defendant who’d been charged with using a communication facility to commit a felony drug offense, in violation of 21 U.S.C. §843(b). Andrews v. United States, 817 F.2d 1277, 1279 (7th Cir. 1987). The court had to decide where the defendant, who had received all of the charged calls in Illinois, had “used” the alleged communication facility (the phone). Id. One of the charged calls had been placed from the Western District of Wisconsin, and that was where the defendant was charged. Id. at 1278. The defendant challenged venue in Wisconsin, arguing that if the court allowed the government to prosecute someone in the district in which the government itself chose to place a call, it would be allowing impermissible forum shopping. Id. at 1279. The Seventh Circuit found no evidence of forum- shopping, and indicated that if there had been such evidence, the trial court could have transferred venue to another district pursuant to Fed. R. Crim. P. 21. Id. at 1279-80.
Subsection (b) of Fed. R. Crim. P. 21 states that, “[u]pon the defendant’s motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.” The defendants could have asked Judge Joseph to transfer the entire prosecution, or possession and distribution counts against them, to the Northern District of Illinois. They did not do so.
Instead, they filed a motion asking the court to dismiss Counts 3-11, 13-14, 16, 18-19, and 21-23 for lack of venue, pointing to the constitutional underpinnings of the venue doctrine. The defendants’ argument is somewhat similar to the argument of the defendant in Andrews: while they concede that venue is proper in the Eastern District of Wisconsin for the conspiracy count, they argue that it is not proper for the attempted distribution and possession counts, because all of the defendants’ alleged activity regarding those counts took place in the Northern District of Illinois.
The government charged the defendants with attempted distribution and possession under 21 U.S.C. §§841(a)(1) and 846. In United States v. Muhammad, 502 F.3d 646 (7th Cir. 2007), the Seventh Circuit held that when considering whether venue is proper for a defendant charged with violating 21 U.S.C. §§841(a)(1) and 846, a court must keep in mind that possession with intent to distribute is a “continuing crime, ” and that “attempt” is an inchoate crime. Id. at 653. Thus, the court held, in cases involving such continuing offenses, “it is not essential that the defendant ever [has] been physically present in the district in question, so long as the offense continued into the district.” Id. (citation omitted). While the court agreed that venue in such continuing offenses would be improper when the “Government had failed to demonstrate that any activity involving that particular count occurred” in the charging district, it found that venue would be proper in a continuing offense if a defendant “attempted to possess cocaine with intent to distribute” in the charging district. Id. at 654.
Judge David Hamilton (then a district judge) considered those conclusions in a case in which “venue [was] based not on the defendant’s own contacts with the forum but instead on the actions of others, ” and acknowledged that venue in that circumstance posed a more difficult question. United States v. Jang, No. 07-cr-52, 2007 WL 4616927, at *7 (S.D. Ind. Dec. 27, 2007). Judge Hamilton read the Muhammad decision in conjunction with Judge Cudahy’s concurrence in Andrews, in which Judge Cudahy indicated that in order for venue to be constitutional in a case involving use of a communication facility, the evidence would have to show that the defendant had some knowledge of the place from whence the call was placed. Id. (citing Muhammad, 502 F.3d at 1281 (Cudahy, J., concurring). Judge Hamilton opined that reading Muhammad and the Andrews dissent together “suggest[ed] that the Constitution’s criminal venue requirements include some degree of knowledge of the effect on the forum state or district that would make it foreseeable for a defendant to expect to be, in the phrase drawn from personal jurisdiction in civil cases, ‘haled into court there.’” Id. (quotation omitted).
Judge Hamilton could not tell from the indictment and pleadings whether the defendant had knowledge, or reason to know, that the images of child pornography he produced would later be transported to Indiana. Id. at *9. Accordingly, he denied the defendant’s motion to dismiss without prejudice, and expressed a willingness to reconsider the issue were the facts at trial to demonstrate that the defendant had no such knowledge. Id. Judge Joseph reached a similar conclusion in this case, and her decision walks through the facts presented in the charging documents and other pleadings to conclude that the facts regarding what Phillips and Campbell had reason to know are disputed. Dkt. No. 349 at 7-9.
Prior to the issuance of the indictment, the government filed a complaint, accompanied by a detailed, 104-page affidavit. Dkt. No. 1. That complaint and affidavit were filed under seal, because the defendants had not yet been apprehended. The facts contained in the affidavit indicate the following:
(1) defendant Rayford Williams sometimes drove a silver Saturn Ion with Wisconsin plates (Id. at ¶21);
(2) defendant George Seals drove a white Oldsmobile Aurora with Wisconsin license plates (Id. at ¶44);
(3) intercepted telephone calls indicated that defendant Williams obtained heroin from defendant Phillips, who was located in Chicago, Illinois (Id. at ¶45);
(4) Phillips obtained that heroin from his sister, Margaree Campbell (Id.
(5) Williams started using George Seals as a heroin distributor in Milwaukee (Id. at ¶47);
(6) Campbell was a heroin distributor in Chicago, Illinois (Id.);
(7) Phillips and Campbell were “believed to be brother and ...