United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
K. CALDWELL, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Assad Nasr's
motion to dismiss (DE 45) this action for improper venue or,
alternatively, to transfer this matter to Lexington,
Kentucky, which is located in the Eastern District of
a pharmacist and, during the relevant time period, was the
owner of Kentuckiana Pharmacy, which is located in
Jeffersonville, Indiana. He is charged with one count of
conspiring with others to dispense oxycodone outside of the
scope of professional practice and not for a legitimate
medical purpose. With this motion, he argues that the
indictment must be dismissed because the Eastern District of
Kentucky is the improper venue for his trial.
there are issues of fact regarding venue, the jury determines
whether the government has sufficiently proved that the
district where the crime was prosecuted is the proper venue.
United States v. Winship, 724 F.2d 1116, 1124 (5h
Cir. 1984); United States v. Cooper, 40 Fed.Appx.
39, 40 (6th Cir. 2002). At trial, the government must prove
venue by a preponderance of the evidence. United States
v. Crozier, 259 F.3d 503, 519 (6th Cir. 2001).
venue is challenged in a criminal action by a motion to
dismiss the indictment prior to the presentation of any
evidence at trial, however, the Court is limited to
considering the factual allegations of the complaint.
United States v. Med 1st, No. 3:16-CR-000076-JHM,
2017 WL 4848823, at *1 (W.D. Ky. Oct. 26, 2017). And the
Court must assume that those allegations are correct.
Id. “The Government's burden is limited to
showing that the indictment alleges facts sufficient to
support venue.” United States v. Abdalla, 334
F.Supp.3d 582, 587 (S.D.N.Y. 2018) (citation and brackets
III of the Constitution, the Sixth Amendment, and the Federal
Rules of Criminal Procedure require that a defendant be tried
in the district where the crime was committed. U.S. Const.
art. III § 2; U.S. Const. amend. VI; Fed. R. Crim. P.
18. The indictment alleges that from about August 2015 to
October 2017, Nasr conspired with others to illegally
dispense oxycodone, and that he did so in Pike County, which
is in the Eastern District of Kentucky. This is sufficient to
withstand a motion to dismiss the indictment. See Med
1st, 2017 WL 4848823, at *1. “Generally,
‘the Government need only allege that criminal conduct
occurred within the venue, even if phrased broadly and
without a specific address or other information, in order to
satisfy its burden with regard to pleading venue.'”
United States v. Murgio, 209 F.Supp.3d 698, 721
(S.D.N.Y. 2016) (quoting United States v. Ohle, 678
F.Supp.2d 215, 231 (S.D.N.Y.2010)).
that Nasr wants to challenge venue based upon the evidence
presented at trial, the Court will instruct the jury in
accordance with the Sixth Circuit Pattern Jury Instruction
3.07 and applicable law. “[V]enue is 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.”
United States v. Scaife, 749 F.2d 338, 346 (6th Cir.
1984). “A conspiracy defendant need not have entered
the district so long as this standard is met.”
Id. Further, [i]n a conspiracy case, venue as to all
members lies in any district in which any act in furtherance
of the conspiracy was committed by any one of the
conspirators.” United States v. Rumler, No.
89-1341, 895 F.2d 1415 (6th Cir. Feb. 8, 1990). Accordingly,
venue may be proper in the Eastern District of Kentucky even
if Nasr himself did not travel or commit any overt act here.
these reasons, the Court will deny the motion to dismiss the
indictment for improper venue.
Court will, however, grant Nasr's motion to transfer the
trial of this matter to Lexington, a more convenient jury
division within the Eastern District of Kentucky. This is not
a motion to transfer venue. See United States
v. Lewis, 504 F.2d 92, 97 (6th Cir. 1974). Both
Lexington and Pikeville are located in the Eastern District
of Kentucky. This is a motion to transfer the trial of this
matter from one division within a district to another. Under
Federal Rule of Criminal Procedure 18, “[t]he court
must set the place of trial within the district with
due regard for the convenience of the defendant, any victim,
and the witnesses, and the prompt administration of
justice.” Fed. R. Crim. P. 18 (emphasis added). Under
Local Criminal Rule 18.2(b), “[a]ny criminal action or
proceeding may, in the discretion of the Court, be
transferred from the jury division in which it is pending to
any other division for the convenience of the Court, the
defendant, witnesses, or in the interest of justice.”
The Court agrees with the defendant that Lexington is a more
convenient location for the trial of this matter for the
parties, the probable witnesses, and the Court. Thus,
transfer serves the interest justice, including its prompt
these reasons, the Court hereby ORDERS as follows:
1) Nasr's motion to dismiss the indictment for improper
venue (DE 45) is DENIED;
2) Nasr's motion to transfer the trial of this matter to
Lexington (DE 45) is GRANTED;
3) the trial of this matter will commence at 9:00 a.m. on
March 30, 2020 in Lexington,
Kentucky. Counsel SHALL ...