United States v. Clemens, 2:20-CR-0142-TOR-1

UNITED STATES OF AMERICA, Plaintiff, v. CHRISTOPHER HAMILTON CLEMENS 1, and CALANDRA CHARGING EAGLE 2, Defendants.

Nos. 2:20-CR-0142-TOR-1, 2:20-CR-0142-TOR-2

United States District Court, E.D. Washington

August 24, 2021

ORDER DENYING MOTION FOR CHANGE OF VENUE

THOMAS O. RICE United States District Judge.

BEFORE THE COURT are Defendant Calandra Charging Eagle's Motion for Change of Venue and Motion to Expedite. ECF Nos. 63, 65. The motions were submitted for hearing without oral argument. Defendant Christopher Hamilton Clemens has not joined in the motions. The United States filed its response in opposition. ECF No. 69. Having reviewed the file and the records therein the Court is fully informed.

BACKGROUND

On October 21, 2020, the grand jury issued a four count Indictment against Christopher Hamilton Clemens, Calandra Charging Eagle, and Hamilton's West LLC. ECF No. 4. In Count 1, it is alleged that the three Defendants conspired to defraud the United States from on or about June 14, 2018 until at least on or about October 18, 2018, in violation of 18 U.S.C. § 371. Count 2 charges Defendant Christopher Hamilton Clemens with Bribing a Public Official in violation of 18 U.S.C. § 201(b)(1), Count 3 charges Defendant Calandra Charging Eagle with Accepting a Bribe in violation of 18 U.S.C. § 201(b)(2). Count 4 charges all three Defendants with felony theft of government property in violation of 18 U.S.C. § 641.

The Indictment contains detailed factual averments including overt acts committed in furtherance of the conspiracy. Without repeating each of the allegations, suffice to say that the Indictment repeatedly alleges that the certain criminal acts were committed in the Eastern District of Washington and elsewhere. Specifically, it alleges that Defendant Clemens was the Chief Operating Officer of Company A that had a place of business in Clarkston, Washington within the Eastern District of Washington and that Company A was registered with the Washington State Secretary of State. It is further alleged that Defendant Clemens created the Defendant company Hamilton's West LLC, which has its principal office in Clarkston, Washington and that Defendant Clemens is the Chief Executive Officer and sole registered governor. It is further alleged that the bribe money (two checks) was mailed from the Eastern District of Washington to New Mexico.

Defendant Calandra Charging Eagle seeks to have venue for the trial moved to the District of New Mexico. ECF No. 64 at 6. Defendant contends that the Constitution and Federal Rule of Criminal Procedure 18 require the government to prosecute an offense in the district where the offense was committed. Id. Defendant contends that 28 U.S.C. § 1406(a) allows the court to transfer this case to New Mexico. Id. at 7. Finally, Defendant seeks a change of venue for the convenience of the parties, any victim, and the witnesses, and in the interest of justice pursuant to Federal Rule of Criminal Procedure 21(b). Id. at 9.

DISCUSSION

As the Ninth Circuit recently articulated:

The Constitution safeguards a criminal defendant's venue right in two places. The Venue Clause of Article III, Section 2 provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment's Vicinage Clause further requires that the defendant be tried by an “impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI. Under these two provisions, criminal trials generally must take place in the same state and district where the crime took place. But if the crime was “not committed within any State, ” the Constitution provides that “the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Const. art. III, § 2, cl. 3.

United States v. Lozoya, 982 F.3d 648, 651 (9th Cir. 2020) (en banc); see also Platt v. Minnesota Min. &amp Mfg. Co., 376 U.S. 240, 245 (1964). When a given offense is continuing, venue can properly be had in the district where it was commenced, continued, or was completed. 18 U.S.C. § 3237(a) (“[A]ny 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.”). United States v Valdez-Santos, 457 F.3d 1044, 1046 (9th Cir. 2006).

Here, the Indictment alleges that the crimes were committed in the Eastern District of Washington and elsewhere. Thus, the United States is entitled to try this case in the Eastern District of Washington according to 18 U.S.C. § 3237(a). Defendant's citation to the civil transfer of venue statute, 28 U.S.C. § 1406(a), has no relevance to the issues concerning this criminal case.

Federal Rule of Criminal Procedure 21(b) allows a court to transfer the criminal proceeding, or one or more counts, to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice. The Supreme Court articulated a number of factors the district court should consider when deciding whether to transfer a case to another district. These factors are “(1) location of corporate defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant's business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer.” Platt v. Minnesota Min. & Mfg. Co., 376 U.S. at 243-44. Once the factors have been properly identified and weighed by the district court, it is not the function of an appellate court to reweigh those factors. See Id. at 244-45; United States v. Bitner, 369 Fed.Appx. 820, 821 (9th Cir. 2010).

Of the three Defendants charged in this case, two have been arraigned and are currently set for a joint trial on all the charges in Spokane, Washington on October 12, 2021. ECF No. 62.

Residency Defendant Clemens resides within the Eastern District of Washington. Defendant Calandra Charging Eagle resides within the...