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(^1) During the parties’ telephone conference, counsel for Defendant Charles Love indicated that Mr. Love had no position regarding the instant motion and that Mr. Love would not be filing a motion to transfer venue.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_________________________________________________________________
UNITED STATES OF AMERICA, )
Plaintiff, ) ) v. ) ) Case No. 2:05-cr-20205-1 Ml CHRIS NEWTON and CHARLES LOVE, ) ) Defendants. ) )
ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR LACK OF PROPER VENUE OR, ALTERNATIVELY, TO TRANSFER CASE
Before the Court is Defendant Chris Newton’s Motion to Dismiss for Lack of Proper Venue or, Alternatively, to Transfer Case, filed July 7, 2005. The United States filed a response on July 18, 2005. The Court held a telephone conference on July 25, 2005, during which both parties further argued their respective positions.^1 For the following reasons, Defendant’s motion is DENIED. I. BACKGROUND On May 25, 2005, Defendant Chris Newton (“Rep. Newton”), an elected member of the Tennessee House of Representatives, was indicted along with alleged co-conspirator Charles Love in a two-
count indictment charging them with conspiracy to commit extortion under 18 U.S.C. § 1951 and conspiracy to commit theft or bribery under 18 U.S.C. § 666 and 18 U.S.C. § 371. According to the United States, Rep. Newton’s arrest was a result of “Operation Tennessee Waltz,” an investigation directed by the United States Attorney’s Office for the Western District of Tennessee and executed by agents of the Federal Bureau of Investigation based in Memphis, Tennessee. (Ans. of the United States to Def.’s Mot. to Dismiss Indictment or, in the Alt., to Transfer the Case at 3.) That operation involved the investigation of numerous public officials located both in the Western and Eastern Districts of Tennessee, and included electronic surveillance pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (“Title III”) (Id.) The electronic surveillance was monitored in the Western District of Tennessee and all recordings were secured and sealed in the Western District of Tennessee. (Id.) According to the indictment, the Federal Bureau of Investigation set up and operated an undercover business named E- Cycle Management, Inc. (“E-Cycle”), to respond to allegations of corruption by elected officials. (May 25, 2005, Indictment (Docket No. 1) at 2, ¶ 6.) E-Cycle was purportedly in the
Love and Rep. Newton was allegedly intended to influence and reward Rep. Newton for his support of legislation benefitting E- Cycle which would result in E-Cycle gaining business with the State of Tennessee. (Id.) With respect to each count, the indictment alleges numerous identical overt acts in furtherance of the conspiracies alleged. In particular, the indictment alleges that, on or about July 30, 2004, Mr. Love had a telephone conversation with an E-Cycle representative whereby he indicated that he could deliver cash to Rep. Newton. (Id. at 4, ¶ 1.) On or about August 20, 2004, Mr. Love met with E-Cycle representatives in Memphis, Tennessee, and indicated that E-Cycle would get more attention concerning the legislation that it wished to have passed if it had “gifts to bear” and that he had worked in the past “bearing gifts” to legislators including Rep. Newton. (Id. at 4, ¶ 2.) Mr. Love further indicated that he would need approximately $15,000 to pay those legislators, and that Rep. Newton would need more money than some others. (Id.) The indictment goes on to allege that, on or about September 8, 2004, Mr. Love and a representative from E-Cycle met with Rep. Newton in Chattanooga, Tennessee, to discuss payments to Rep. Newton. (Id. at 4, ¶ 3.) On or about September 12, 2004, Mr. Love had a telephone conversation with an E-Cycle representative during which the E-Cycle representative indicated that he would
fax a copy of proposed legislation to Rep. Newton that E-Cycle wished to sponsor and that he would speak to Rep. Newton the next day. (Id at 5, ¶ 4.) During that conversation, Mr. Love indicated that Rep. Newton would probably need $1,500 to support the bill. (Id.) The indictment further alleges that on or about September 14, 2004, Mr. Love received a wire transfer of $6,500 from the Western District of Tennessee to his bank account in Chattanooga, Tennessee. (Id. at 5, ¶ 5.) Also on or about that date, Mr. Love had a conversation with an E-Cycle representative where he indicated that he would be going to see Rep. Newton and acknowledged that Rep. Newton would receive $1,500 for supporting E-Cycle’s legislation. (Id. at 5, ¶ 6.) On or about September 16, 2004, Mr. Love and an E-Cycle representative met in Chattanooga, Tennessee, whereby Mr. Love told the E-Cycle representative that he had met with Rep. Newton the previous day, that Mr. Newton would co-sponsor the bill that E-Cycle wished to have passed, that Rep. Newton had received a $750 payment, and that he was due another $750 payment. (Id. at 5, ¶ 7.) On or about that same date, Rep. Newton met with an E-Cycle representative in Cleveland, Tennessee, where he acknowledged that he had spoken to Mr. Love concerning the legislation that E- Cycle wished to have passed and that Mr. Love was “taking care” of him.
legislation were discussed. (Id. at 7, ¶ 14.) On or about January 13, 2005, Rep. Newton filed House Bill Number 0038 - the bill which was to benefit to E-Cycle. II. ANALYSIS Rep. Newton contends that his indictment should be dismissed for improper venue or, in the alternative, that this case should be transferred to the Eastern District of Tennessee, because the indictment does not allege that Rep. Newton committed any criminal acts within the Western District of Tennessee. The United States contends that venue is proper in the Western District of Tennessee because certain overt acts in furtherance of the alleged conspiracies took place in the Western District of Tennessee. The Court will first consider whether venue is proper in the Western District of Tennessee and then, if so, whether the proceedings should be transferred to the Eastern District of Tennessee. A. Motion to Dismiss for Improper Venue Article III, § 2 of the United States Constitution sets the basic venue requirements for criminal prosecutions under federal law, as follows: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
(^2) Because conspiracy is a continuous crime, “venue is proper in any district along the way.” Lee Williams, 274 F.3d at 1083
U.S. CONST. Art. III, § 2, cl. 3 (quoted in United States v. Lee Williams, 274 F.3d 1079, 1083 (6th Cir. 2001)). “The [constitutional] guarantee [to a defendant] is for a trial in the state and district where the offense was committed.” Lee Williams, 274 F.3d at 1083 (quoting United States v. O’Donnell, 510 F.2d 1190, 1192 (6th Cir. 1975)). Federal Rule of Criminal Procedure 18 further provides that: Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant and the witnesses, and the prompt administration of justice. Fed. R. Crim. P. 18. Under 18 U.S.C. § 3237(a), “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.” 18 U.S.C. § 3237(a)(cited in United
States v. Scaife, 749 F.2d 338, 346 (6th Cir. 1984)). Venue is
therefore proper in conspiracy prosecutions “in any district where the conspiracy was formed or in any district where an
overt act in furtherance of the conspiracy was performed.” Lee
Williams, 274 F.3d at 1083 (quoting Scaife, 749 F.2d at 346).^2
within the Western District in order for venue to be proper
there. Rather, venue is proper in the Western District if an
overt act in furtherance of the conspiracy was performed there.
Lee Williams, 274 F.3d at 1083 (quoting Scaife, 749 F.2d at
346).
With respect to the alleged overt acts in furtherance of
the conspiracy, Rep. Newton first contends that venue is not
proper in the Western District of Tennessee because all of the
indictment’s allegations involving him are alleged to have
occurred either in Chattanooga, Cleveland, or Nashville,
Tennessee. However, venue is proper if an overt act in
furtherance of the conspiracy was performed in the Western
District, even if the Defendant never entered the district.
Scaife, 749 F.2d 338, 346.
Rep. Newton next contends that venue is not proper in the
Western District of Tennessee based upon the alleged actions of
Mr. Love within the district. The indictment alleges three acts
that took place or originated within the Western District: (1)
the August 20, 2004, meeting between Mr. Love and E-Cycle representatives in Memphis, Tennessee, during which Mr. Love indicated that E-Cycle would get more attention concerning the legislation that it wished to have passed if it had “gifts to
bear,” that he had worked in the past “bearing gifts” to legislators including Rep. Newton, that he would need approximately $15,000 to pay those legislators, and that Rep. Newton would need more money than some others (Indictment at 4, ¶ 2); (2) that on or about September 14, 2004, Mr. Love received a wire transfer of $6,500 from the Western District of Tennessee to his bank account in Chattanooga, Tennessee. (Id. at 5, ¶ 5); and (3) the October 12, 2004, meeting between Mr. Love and an E-Cycle representative in Memphis, Tennessee, during which the E-Cycle representative gave Mr. Love an envelope bearing the initials “C.N.” and containing $1,000 for Rep. Newton (Id. at 6, ¶ 12.) - an envelope that is alleged to have been in Rep. Newton’s possession at an October 13, 2004, meeting in Cleveland, Tennessee with an E-Cycle representative (Id. at 6, ¶ 13), during which Rep. Newton and the E-Cycle representative discussed the bill that E-Cycle wished Rep. Newton to sponsor in the Tennessee House of Representatives. (Id. at 6-7, ¶ 13.) Rep. Newton contends that the August 20, 2004, meeting
occurred prior to the formation of any alleged conspiracy and
therefore that it cannot support the venue requirements. Acts
that are merely prior and preparatory to a conspiracy do not
support venue. United States v. Berry, No. 93-5376, 21 F.3d 428,
1994 WL 100274 at *2 (6th Cir. Mar. 24, 1994). Rep. Newton
(^3) During argument on Rep. Newton’s motion to dismiss for lack of venue, the United States strongly denied that it had artificially created venue, and counsel for Rep. Newton conceded that he lacked any evidence to support that contention. (See Transcript, July 25, 2005, telephone conference.)
artificially create venue in the Western District rather than to
further the purpose of the conspiracy. However, Rep. Newton’s
contention regarding the motivation for the meeting being held
in Memphis is pure speculation.^3 Even taking that contention as
true, however, the facts alleged plainly indicate that the
October 12, 2004, meeting furthered the alleged purpose of the
conspiracy. Accordingly, the Court finds that the facts alleged
in the indictment establish that an overt act in furtherance of
the alleged conspiracy was performed in the Western District of
Tennessee on October 12, 2004. Venue is therefore proper in the
Western District of Tennessee. See Crozier, 259 F.3d at 519
(finding single overt act in furtherance of conspiracy committed within district sufficient to make venue proper); Lee Williams, 274 F.3d at 1083). With respect to the third factor in the substantial
contacts test - the locus of the effect of the alleged criminal
conduct - the Court finds that this factor weighs in favor of
venue being proper in the Western District. The effect of the
alleged conduct - given that the allegations involve a
conspiracy to commit bribery and extortion under color of
official right by a sitting member of the Tennessee House of
Representatives - would be felt equally by all citizens in all
parts of the state of Tennessee. As for the fourth factor - the
suitability of the district for fact-finding - the Court finds
that the Western District presents no difficulty for fact-
finding and therefore that this factor also counsels in favor of
venue being proper in this district.
Accordingly, having considered the substantial factor test
and other relevant law in light of the record and the parties’
submissions, the Court finds that venue is proper in the Western
District of Tennessee. Defendant’s motion to dismiss the
indictment is therefore DENIED.
B. Transfer of Venue The Court next addresses Rep. Newton’s contention that this
case should be transferred to the Eastern District of Tennessee
pursuant to Federal Rule of Criminal Procedure 21(b). Rule
21(b) provides that a case may be transferred to another venue, as follows:
other special elements which might affect the transfer. Platt, 376 U.S. at 243-44. “It is within the district court’s discretion to balance these factors and determine which factors are of greatest import.” Collins, 1992 WL 31302 at *4 (citing 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL, § 344, at 275 (2d ed. 1982)). Rep. Newton contends that all ten Platt factors weigh in favor of transferring this case to the Eastern District of Tennessee. In particular, Defendant contends that: he resides in Cleveland, Tennessee, which is in the Eastern District; his counsel are located in Chattanooga, Tennessee, which is also in the Eastern District and nearly five hours by automobile from Memphis, Tennessee; witnesses that he may call at trial reside in or near Cleveland, Tennessee; many of the events at issue took place in either Cleveland, Tennessee or in Nashville, Tennessee; many documents and records may be located in the Eastern District or could easily be transferred there; he is the Director of Human Resources for a corporation located in Cleveland, Tennessee that requires him to supervise several employees; he will incur significant expenses in paying travel expenses for witnesses traveling from the Eastern District to the Western District; the Eastern District is a more accessible venue for his witnesses and counsel; the Eastern District has a smaller criminal case load than the Western District and therefore has a more favorable
docket condition; and finally that other special elements - in
particular, the allegedly weak support for venue in the Western
District and the United States’ allegedly insubstantial interest
in maintaining venue in the Western District - support transfer
to the Eastern District.
The United States counters that: almost all of its
witnesses either reside in Memphis, Tennessee or outside the
State of Tennessee and can more easily be accommodated in
Memphis than Chattanooga; all records concerning the case are
located in the Memphis, Tennessee area and all monitoring agents
who would be needed to testify as to electronic intercepts and
Title III materials are located within the Western District of
Tennessee; many important events in this case took place in
Memphis, Tennessee; and that Mr. Love has not requested a change
of venue and therefore a transfer of venue would require Rep.
Newton to be tried separately, necessitating a duplication of
the government’s efforts and an inefficient use of judicial
resources.
Upon consideration of the Platt factors in light of the
record and the parties’ contentions, the Court finds that the
transfer of this case is not warranted for the convenience of
the parties and witnesses and in the interest of justice under
(^4) In his motion, Rep. Newton notes that the average criminal caseload in the Western District of Tennessee is approximately 137.2 cases per judge, compared to 86.2 cases per judge in the Eastern District.
at *4 (affirming denial of change of venue from Eastern District of Tennessee at Chattannooga to Middle District of Tennessee at Nashville where defendant and his counsel resided in Nashville, but the government attorney and grand jury investigation occurred in Chattanooga, Chattanooga was accessible to the defendant and his counsel since the cities were only two hours apart, and defendant failed to make a showing of inconvenience to witnesses). Additionally, because attending his trial will
likely require him to be out of the office during business
hours, any effect regarding Rep. Newton’s supervisory
responsibilities at the company for which he works will be
similar regardless of the location of his trial. That factor
therefore does not weigh in favor of transferring venue.
Furthermore, the docket condition of the Western District is
such that it can accommodate Rep. Newton’s case^4 and Memphis
provides an accessible venue for trial. Those factors therefore
weigh in favor of retaining the case in the Western District.
Moreover, the presence of the United States’ witnesses and
documents related to this case within the Western District of
Tennessee weighs in favor of allowing the case to remain in the
Western District. In particular, materials related to
electronic surveillance that are located within the Western
District will be essential to this case and their location
weighs in favor of trying this case in the Western District.
The Court further finds that certain special elements weigh
against transferring the case - in particular, the concentration
of the investigation and the electronic monitoring within the
Western District of Tennessee as well as the possibility that
judicial resources would be expended unnecessarily by trying
Rep. Newton and Mr. Love separately in two different districts.
Accordingly, having considered all of the Platt factors in light
of the record and the parties’ contentions, the Court finds that
the transfer of this case is not warranted for the convenience
of the parties and witnesses and in the interest of justice under Rule 21(b). Rep. Newton’s motion to transfer this case to the
Eastern District of Tennessee is therefore DENIED.
III. CONCLUSION
For the reasons stated, the Court finds that venue in this
case is proper within the Western District of Tennessee and that
a transfer of venue shall not be granted pursuant to Rule 21(b).
Accordingly, Rep. Newton’s motion to dismiss the indictment or,
