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United States v. Michael

United States District Court, W.D. Kentucky, Louisville

May 2, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
PHILIP E. MICHAEL, II MEDS 2 GO EXPRESS PHARMACY, INC. MARK REINHARD DEFENDANTS

          MEMORANDUM OPINION

          Charles R. Simpson III, United States District Court, Senior Judge

         This matter is before the court on motion of the defendants, Philip E. Michael, II (“Michael”) and Meds 2 Go Express Pharmacy, Inc. (“Meds 2 Go”), to dismiss Counts 6, 7 and 8 and the motion of defendant Mark Reinhard to dismiss Count 6 of the Second Superseding Indictment (“SSI”) for lack of venue.[1], [2]

         The SSI charges Michael, Meds 2 Go, and Mark Reinhard, [3] in Count 6 with unlicensed wholesale distribution of prescription drugs.

         An indictment must provide a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c). The purpose of an indictment is “to inform the defendant of the nature of the accusation against him.” Russell, 369 U.S. at 767 (quoting United States v. Hess, 124 U.S. 483, 487 (1888)). “The Federal Rules of Criminal Procedure, 18 U.S.C.A., were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure. Rule 2, F.R.Crim.Proc.” United States v. Debrow, 346 U.S. 374, 376 (1953). As explained by the Supreme Court as early as 1895, an indictment need not be a literary work of art:

T]he true test is, not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Evans v. U.S., 153 U.S. 584, 587, 588, 14 Sup. Ct. 934; Batchelor v. U.S., 156 U.S. 426, 15 Sup. Ct. 446.

Cochran v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704 (1895). The indictment must be read as a whole, accepting the factual allegations as true, and construing those allegations in a practical sense with all the necessary implications. United States v. Reed, 77 F.3d 139, 140 n. 1 (6th Cir.1996) (en banc). An indictment is to be construed liberally in favor of its sufficiency. United States v. Davis, 306 F.3d 398, 411 (6th Cir.2002).

         When venue over a criminal charge is challenged, “the government must prove by a preponderance of the evidence that venue is proper as to each individual count. United States v. Pace, 314 F.3d 344, 349 (9th Cir.2002); United States v. Robinson, 275 F.3d 371, 378 (4th Cir.2001).” United States v. Salinas, 373 F.3d 161, 163 (1st Cir. 2004). A defendant has the right to be tried in a proper venue, and “[u]nless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed.R.Crim.P. 18. Rule 18 comports with the mandate of the United States Constitution, Article III and the Sixth Amendment which provide:

         The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and

such Trial shall be held in the State where 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.

Article III, Sec. 2, ¶ 3.

In 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, which district shall have been previously ascertained by law…

         Amendment VI. “‘[W]here a crime 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. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916).' The Supreme Court has therefore repeatedly approved as constitutionally permissible the prosecution of a crime in a district in which the crime was committed only in part.” United States v. Myers, No. 15-2238, 2017 WL 1360775, at *6 (6th Cir. Apr. 14, 2017). As noted in Lombardo, “Undoubtedly where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done; or where it may be said there is a continuously moving act, commencing with the offender and hence ultimately consummated through him, as the mailing of a letter; or where there is a confederation in purpose between two or more persons, its execution being by acts elsewhere, as in conspiracy.” 241 U.S. at 77.

         The defendants urge that under the substantial contacts test adopted by the Sixth Circuit to determine venue, this court is an improper venue for prosecution of the crimes charged in Counts 6, 7, and 8.

In United States v. Williams,788 F.2d 1213 (6th Cir.1986), we adopted from Reed,773 F.2d 477, the substantial contacts test to determine ...

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