United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report on dispositive motions. Text Order of Referral dated January 23, 2013.
The defendant, James S. Allen, is charged in a twenty-three count Indictment with eighteen counts of cyberstalking and five counts of production of child pornography. Dkt. #7. Presently pending before this Court is the defendant's motion to change venue. Dkt. #24. This Court previously issued its Report, Recommendation and Order with respect to the defendant's motion to suppress statements to law enforcement and to suppress evidence (Dkt. #22) for which an evidentiary hearing was held on December 10, 2013 and a motion to dismiss the entire Indictment for a Speedy Trial Act violation (Dkt. #23). Dkt. #39.
The parties are referred to this Court's discussion of the procedural background and factual background set forth in its Report, Recommendation and Order (Dkt. #39), which is incorporated by reference herein.
DISCUSSION AND ANALYSIS
By this motion, the defendant seeks an Order from this Court that, pursuant to Rule 18 of the Federal Rules of Criminal Procedure, venue is proper in the Eastern District of Michigan. The defendant further seeks an Order that pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure, for the convenience of the defendant, the witnesses and in the interest of justice, this proceeding should be transferred to the Eastern District of Michigan. Dkt. #24, pp.6-10. In its response, the government argues that in making this request, the defendant "completely ignores the impact a transfer of venue would have on the 18 victims in the present case, and glosses over the fact that all of the witnesses and evidence are located in the WDNY." Dkt. #27, p.21.
The Sixth Amendment guarantees trial "by an impartial jury of the State and district wherein the crime shall have been committed..." U.S. Const. amend. VI. As derived from the constitutional venue provision, Rule 18 of the Federal Rules of Criminal Procedure provides that venue in a federal criminal prosecution lies in the district in which the crime was committed. See Fed.R.Crim.P. 18; United States v. Reed, 773 F.2d 477 (1985). Where Congress has not explicitly indicated the location where it considers the crime to have occurred, "the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703 (1946). "However, where the acts constituting the crime and the nature of the crime charged implicate more than one location, ' venue may be constitutionally permissible in more than one district." Reed, 773 F.2d at 480.
In Reed, the court noted that "where the acts constituting the crime and the nature of the crime charged implicate more than one location, the [C]onstitution does not command a single exclusive venue." Reed, 773 F.2d at 480. With respect to criminal cases involving an offense begun in one district and completed in another, Congress has provided that,
Except as otherwise expressly provided by enactment of Congress, 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.
Any offense involving the use of the mails, transportation in interstate or foreign commerce, or that importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through or into which such commerce, mail matter, or imported object or person moves.
Title 18, United States Code, Section 3237.
Federal Rule of Criminal Procedure 21(b) provides that upon motion by a defendant, 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 ...