United States District Court, D. Maine
AMENDED [1] ORDER ON MOTION TO DISMISS
BASED ON IMPROPER VENUE, OR, IN THE ALTERNATIVE, TO CHANGE
VENUE TO CONNECTICUT
JOHN
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Contending
that he has never been to Maine, when the indictment alleges
he participated in a heroin distribution conspiracy in Maine,
Myron Crosby, Jr. seeks dismissal of the indictment because
in his opinion venue is improper in the District of Maine and
because the evidence placing the conspiracy in Maine comes
from a Government cooperator. In the alternative, Mr. Crosby
moves for transfer of the case to the District of Connecticut
claiming racial prejudice and inconvenience.
The
Court denies the motion to dismiss because the
Defendant's motion to dismiss relies on fact-finding that
may only be done by a jury and because information provided
by a Government cooperator may be used to establish venue.
The Court denies the motion to transfer venue on the basis of
racial prejudice because Mr. Crosby has not provided a
sufficient record to trigger a presumption that race-based
prejudice in the District of Maine would prevent him from
receiving a fair trial by an impartial jury in this District
and that any improper bias may be not addressed in the
ordinary course by jury voir dire. Lastly, the Court
determines that convenience does not warrant transfer to the
District of Connecticut.
I.
BACKGROUND and the PARTIES' POSITIONS
On September 14, 2017, a federal grand jury issued a
one-count indictment against Myron Crosby, Jr., alleging
participation in a conspiracy to distribute and possess with
the intent to distribute heroin in violation of federal
criminal law. Indictment (ECF No. 2). Count One
alleges:
Beginning on a date unknown, but not later than May 1, 2015,
and continuing until a date unknown, but not earlier than
January 25, 2016, in the District of Maine and elsewhere,
defendant
MYRON CROSBY, JR. a/k/a “Marion Crosby, ” a/k/a
“Templer, ”
knowingly and intentionally conspired with others known and
unknown to commit offenses against the United States, namely,
the distribution and possession with the intent to distribute
one kilogram or more of a mixture or substance containing
heroin, a Schedule I controlled substance, in violation of
Title 21, United States Code, Sections 846 and 841(a)(1).
Id. at 1.
A.
Motion to Dismiss for Improper Venue
On May
17, 2018, Mr. Crosby moved to dismiss the indictment
“or so much of it as requires that venue be placed
outside the District of Maine.” Def.'s Mot. to
Dismiss Based on Improper Venue, or, in the Alternative, to
Change Venue to Connecticut (ECF No. 49) (Def.'s
Mot.). Mr. Crosby argues, because “there is no
evidence that [he] was present in any way in Maine during any
times relevant to the alleged charge, or at any other time,
” the Court should dismiss the indictment for improper
venue. Id. 1-2. He flatly states that “the
activity at issue-the heroin transaction-occurred outside the
District of Maine.” Id. at 2.
Mr.
Crosby concedes that “the presence of a co-conspirator
in Maine to develop a drug distribution conspiracy with [Mr.
Crosby], who was then out-of-state, is a sufficient act to
support venue in Maine for a conspiracy prosecution.”
Id. at 4. However, he maintains that the
conspiratorial objective ends once a conspirator cooperates
with the Government and acts as a Government agent or
informant. Id. at 4. He claims that a phone call
placed by a cooperator to Mr. Crosby following the 2016
traffic stop “cannot be the basis of venue as the call
was not placed during and in furtherance of the
conspiracy.” Id. at 5. Mr. Crosby
“denies any conspiratorial objective relative to
Maine.” Id. at 5.
The
Government responded to Mr. Crosby's motion on May 22,
2018. Gov't's Opp'n to Def.'s Mot. to
Dismiss Based on Improper Venue or, in the Alternative, to
Change Venue to Connecticut (ECF No. 56)
(Gov't's Opp'n). The Government urges
denial of the motion to dismiss, but it fails to address Mr.
Crosby's contention about the source of the evidence
supporting venue being a cooperator, as opposed to a
co-conspirator. It agrees with Mr. Crosby that in a
conspiracy case venue is proper in any district in which an
act in furtherance of the charged conspiracy has taken place,
even if a particular co-conspirator was not himself
physically present in that district. Id. at 2. It
cites United States v. Ramnath, 365 Fed.Appx. 230,
234 (1st Cir. 2010), where the First Circuit concluded that,
in a drug conspiracy case, venue was proper in the District
of Maine since there was sufficient evidence in the record
“to show that Maine was where the chain of commerce
ended.” Id. (quoting Ramnath, 365
Fed.Appx. at 234).
Here,
the Government points out that Mr. Crosby acknowledges its
allegation that he obtained the heroin in Connecticut, and
supplied it to other conspirators, who then distributed it to
others in Maine. Gov't's Opp'n at 3. The
Government says that this is enough for the Court to conclude
that Maine has a meaningful connection to the crime charged
against Mr. Crosby in the indictment. Id. It asserts
that the fact that the defendant never came to Maine does not
alter the conclusion that venue here is appropriate, as the
appropriate inquiry focuses on the connection of the offense
to the venue, not the connection or presence of the defendant
to the venue. Id.
B.
Transfer under Rule 21
Mr.
Crosby moves to change venue to the District of Connecticut
on two bases: (1) that comments by the Governor of Maine
involving racial animus render Mr. Crosby, an African
American, unable to obtain a fair trial in Maine; and (2)
that Maine is an inconvenient venue because Mr. Crosby has
never been to Maine and the Government alleges that he
engaged in criminal conduct in Connecticut. Def.'s
Mot. at 5-8.
1.
Prejudice under Rule 21(a)
Mr.
Crosby moves pursuant to Rule 21(a) for transfer of venue due
to alleged prejudice in Maine against African Americans.
Def.'s Mot. at 5-6. He claims that the Governor
of Maine “has insisted that out-of-state black men come
to Maine to deal drugs and impregnate while women.”
Def.'s Mot. at 6 n.2. Mr. Crosby also quotes the
Governor as having said, “Everybody in Maine, we have
constitutional carry, load up and get rid of the drug
dealers.” Id. Mr. Crosby alleges that these
comments, others like them, and the news media's
publication of them prejudice him in this case. Id.
at 5-6. Specifically, he does not believe that a fair and
impartial jury can be selected due to the Governor's
remarks. He points to a “recent jury selection in this
Court involving an out-of-state African American Defendant
facing similar charges, [wherein] the parties were within one
or two jurors from not being able to select a jury, ”
in part because “[s]everal prospective jurors conceded
that they were ‘prejudiced' by the Governor's
comments and did not feel they could be fair and neutral to
the Defendant.” Id. at 6.
Mr.
Crosby cites United States v. Misla-Airdarondo, 478
F.3d 52, 57 (1st Cir. 2007) for the proposition that a
presumption of prejudice may be warranted where publicity is
both extensive and sensational in nature and that
“inflammatory media coverage may generate a presumption
of prejudice.” Def.'s Mot. at 5. He also
cites Misla-Airdarondo in support of his contention
that prejudice may also be gauged by the difficulties a Court
has seating an impartial jury in a related case and that a
large percentage of jury venire disqualifications is ...