United States v. Crosby

          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 ...