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United States v. Petty

United States District Court, N.D. Texas, Dallas Division

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DEBORAH PETTY, Defendant.

          MEMORANDUM OPINION AND ORDER

          BARBARA M.G. LYNN, CHIEF JUDGE.

         Before the Court is the Government's Supplemental Briefing on Venue [ECF No. 87] and the Defendant's Response [ECF No. 89], filed at the Court's request after the Defendant's oral motion for judgment of acquittal at the end of trial. For the following reasons, the Motion for Judgment of Acquittal is DENIED.

         I. Background

         On January 31, 2017, a jury convicted Deborah Petty on all counts of the indictment. Counts One through Seven charged Petty with Identity Theft and Aiding and Abetting, in violation of 18 U.S.C. § 1028(a)(7) and 18 U.S.C. § 2. Count Eight charged Petty with Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A(a)(1). Pursuant to Federal Rule of Criminal Procedure 29, Petty has moved for a judgment of acquittal of all counts of the indictment on the ground that venue is not proper in the Northern District of Texas.

         II. Legal Standard for Motion for Judgment of Acquittal

         Rule 29(a) requires the Court to enter a judgment of acquittal if the “evidence is insufficient to sustain a conviction” on the crime charged. Fed. R. Crim. P. 29(a). In that event, the Court may set aside the jury's guilty verdict and enter an acquittal. Fed. R. Crim. P. 29(c)(2). A motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 “challenges the sufficiency of the evidence to convict.” United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998) (citing Fed. R. Crim. P. 29(a)). In assessing such a motion, the Court must consider the evidence, all reasonable inferences drawn from the evidence, and all credibility determinations in the light most favorable to the jury's verdict. Id. The Rule 29 standard does not require the evidence to exclude every reasonable hypothesis of innocence. United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001). Rather, a judgment should be affirmed “if a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt.” United States v. Klein, 543 F.3d 206, 212 (5th Cir. 2008) (quoting United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997)). Thus, the jury retains the sole authority to weigh any conflicting evidence and evaluate witness credibility. Loe, 262 F.3d at 432.

         III. Analysis

         Petty moves for judgment of acquittal on the ground that the Government failed to prove by a preponderance of the evidence that venue is appropriate in this district. More specifically, Petty argues that venue is not proper in the Northern District of Texas, because the evidence presented showed that the essential conduct elements in this case all occurred outside this district. The Government responds that Petty committed at least one act in furtherance of the identity theft crimes for which she was convicted in the Northern District of Texas, and accordingly, venue in this district is proper.

         a. Venue

         The Court must first determine the proper test for venue in this case. Federal Rule of Criminal Procedure 18 requires the Government to prosecute “in a district where the offense was committed.” Fed. R. Crim. P. 18. Additionally, continuing offenses that are “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); United States v. Cabrales, 524 U.S. 1, 7 (1998). When an offense “consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done.” United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999) (citing United States v. Lombardo, 241 U.S. 73, 77 (1916)). The Government bears the burden to prove by a “preponderance of the evidence that the trial is in the same district as the criminal offense.” United States v. Turner, 586 F.2d 395, 397 (5th Cir. 1978).

         In Rodriguez-Moreno, the Supreme Court confirmed that the “locus delicti [of the charged offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” 526 U.S. at 279 (quoting Cabrales, 524 U.S. at 1) (internal quotation marks omitted). In doing so, the court performs a two-step inquiry where the court “must initially identify the conduct constituting the offense” and then “discern the location of the commission of the criminal acts.” Rodriguez-Moreno, 526 U.S. at 279; United States v. Clenney, 434 F.3d 780, 781 (5th Cir. 2005) (per curiam). “Venue should be narrowly construed.” United States v. Auernheimer, 748 F.3d 525, 532-33 (3d Cir. 2014) (citing United States v. Johnson, 323 U.S. 273, 276 (1944)).

         As to the first step, in order to identify the conduct that constitutes the offense, the Court scrutinizes the statute of conviction. Id. However, the verbs of the statute are not “the sole consideration in identifying the conduct that constitutes an offense.” Rodriguez-Moreno, 526 U.S. at 280. Although considering the verbs in the statute “certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language.” Id. A test that solely looks to the verbs of the statute “unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.” Id. In Clenney, the Fifth Circuit found that the intent element of the international parental kidnapping statute could not serve as the basis for venue “because this element merely speaks to the offender's mens rea as he commits the conduct essential to the crime; it is plainly not an ‘essential conduct element' as required by Rodriguez-Moreno.” 434 F.3d at 782. Accordingly, to evaluate venue under step one, the Court must look to the essential conduct elements of the statute of conviction. Id.

         However, it is important to distinguish essential conduct elements from “circumstance elements, ” which may not serve as a basis for establishing venue. Rodriguez-Moreno, 526 U.S. at 280 & n.4. In Cabrales, the Supreme Court considered whether venue for money laundering was proper in Missouri, where the laundered proceeds were unlawfully generated, or only in Florida, where the laundering transactions at issue occurred. Cabrales, 524 U.S. at 7; see also Rodriguez-Moreno, 526 U.S. at 280 & n.4 (discussing Cabrales). The Supreme Court, later reflecting on Cabrales, observed that the “existence of criminally generated proceeds” was only a “circumstance element” of money laundering, i.e., merely a fact that existed at the time the defendant performed her laundering acts. Rodriguez-Moreno, 526 U.S. at 280 n.4. Although the Government had to prove the issue to the jury to secure a conviction, it could not provide the basis for venue. Similarly, in Strain, 396 F.3d 689, 694 (5th Cir. 2005), the defendant was convicted of “harbor[ing] or conceal[ing] any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery or arrest, after notice or knowledge that a warrant or process has been issued.” Id. (internal quotation marks omitted). The Fifth Circuit found that the issuance of the warrant and the defendant's knowledge of it were “circumstance elements” of the harboring offense, because they “do not involve any proscribed conduct by the accused” and, accordingly, could not serve as a basis for establishing venue. Id.

         Once the essential conduct constituting the offense has been identified in the first step, the Court turns to the second step of the Rodriguez-Moreno inquiry to “discern the location of the commission of the criminal acts.” 526 U.S. at 279; Clenney, 434 F.3d at 781. In ...


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