The opinion of the court was delivered by: Leon Jordan United States District Judge
This criminal case is before the court on the motion of defendant Richard Glen Milburn to dismiss two counts of the indictment for lack of venue [doc. 205]. The motion references Counts 6 and 7; however, the superseding indictment renumbered the counts, and the motion actually seeks dismissal of Counts 4 and 5 of the superseding indictment filed on August 8, 2006. The government has responded to the motion [doc. 250], and oral argument on the motion was heard on November 7, 2006. At the time of oral argument, the court asked the parties to file supplemental memoranda in light of two Supreme Court cases, and these memoranda have been received by the court [docs. 347 and 348]. Thus, the defendant's motion is ripe for the court's consideration. For the reasons discussed below, the motion will be denied.
Counts 4 and 5 of the superseding indictment state as follows:
The Grand Jury further charges that on or about September 8, 2004, in the Eastern District of Tennessee, and elsewhere, the defendant RICHARD GLEN MILBURN, did knowingly, intentionally and without authority attempt to possess with the intent to distribute a quantity of a mixture and substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, a Schedule II, controlled substance.
[21 U.S.C. §§ 846, 841(b)(1)(C)]
The Grand Jury further charges that on or about September 8, 2004, in the Eastern District of Tennessee, and elsewhere, the defendant RICHARD GLEN MILBURN, did knowingly and intentionally carry a firearm during and in relation to a drug trafficking offense as alleged in Count 2*fn1 and Count 4, that is, a violation of Title 21, United States Code, Sections 841(a)(1) and 846.
The defendant argues that the event that triggered the charges in Counts 4 and 5 occurred in Georgia, not the Eastern District of Tennessee. The defendant was arrested in Cobb County, Georgia, by Georgia authorities on September 8, 2004, for possession with the intent to distribute methamphetamine and for possession of a firearm. The government does not dispute that the September 8, 2004 acts occurred in Georgia and that they are the basis for Counts 4 and 5, but argues that they were part of a continuing offense that began in the Eastern District of Tennessee so venue is appropriate here. The government submits that the facts will show that the defendant sent an individual from Tennessee to Georgia with money to purchase methamphetamine. Some problems arose with the purchase, and the defendant went to Georgia himself to make the deal. The defendant was arrested in Georgia before being able to return to Tennessee.
A criminal defendant's right to venue is twice protected by the United States Constitution. Article III requires that the "Trial of all crimes . . . shall be held in the State where the said crimes shall have been committed," and the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." The Supreme Court has adopted a general guide for determining the appropriate venue: the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it. . . . In performing this inquiry, a court must identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts."
See United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999) (citations omitted).
Unfortunately for the defendant, his Count 4 venue argument is unavailing in the Sixth Circuit. In United States v. Zidell, 323 F.3d 412 (6th Cir. 2003), the Sixth Circuit was faced with a fact pattern almost identical to the case before this court. In Zidell, a case filed in the Western District of Tennessee, the defendant was charged in two counts with a conspiracy to possess with the intent to distribute methamphetamine and with aiding and abetting the attempt to possess and the attempt to cause the possession with intent to distribute methamphetamine. The proof at trial was that two co-defendants left Memphis, Tennessee, and drove to Texas, where the defendant lived, and picked up about a pound of methamphetamine. On their way back to Tennessee, the ...