United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge.
DENYING DEFENDANT’S SUPPLEMENTAL MOTION TO TRANSFER VENUE AND DENYING DEFENDANT’S REQUEST TO DISMISS FOR IMPROPER VENUE
Defendant Shantia Hassanshahi is charged with one count of conspiracy to violate the International Economic Emergency Powers Act, 50 U.S.C. § 1705, and the Iranian Transactions and Sanctions Regulations, 31 C.F.R. §§ 560.203-204, commonly referred to as the United States’ trade embargo against Iran. Mr. Hassanshahi previously filed a motion to transfer venue, for the convenience of himself and his witnesses, from this District to the Central District of California in Los Angeles. See Def.’s Mot. to Transfer Venue, ECF No. 69. The Court denied that motion on November 19, 2015. See Order, ECF No. 84; Mem. Op., ECF No. 85; United States v. Hassanshahi, No. 13-0274, 2015 WL 7307079 (D.D.C. Nov. 19, 2015). In its memorandum opinion, the Court also rejected Mr. Hassanshahi’s claim-raised for the first time in his reply brief-that venue in this Court is improper because 18 U.S.C. § 3238 mandates that trial take place in Los Angeles. See Hassanshahi, 2015 WL 7307079, at *5-7. Thereafter, the Court permitted Mr. Hassanshahi to file a new motion addressing alleged factual discrepancies between the Indictment and the Government’s surreply in opposition to Mr. Hassanshahi’s motion to transfer venue. See Scheduling Order, ECF No. 87. That motion (ECF No. 89), and an additional response to the Government’s opposition, which Mr. Hassanshahi styles as a “further request to dismiss for improper venue” (ECF No. 104), are now before the Court. Once again, Mr. Hassanshahi argues that venue is proper only in the Central District of California- where he was arrested and resides. For the reasons that follow, the Court finds that venue is proper in this District under 18 U.S.C. § 3237(a), and will deny Mr. Hassanshahi’s motion.
Mr. Hassanshahi’s arguments involve the relationship between two venue statutes. The first, 18 U.S.C. § 3237(a), states 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.
18 U.S.C. § 3237(a). The other, 18 U.S.C. § 3238, entitled “Offenses not committed in any district” provides that:
The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.
18 U.S.C. § 3238. The Indictment against Mr. Hassanshahi asserts two separate bases for venue in this District pursuant to these provisions: it states that venue is proper under § 3237(a) because “[t]he conduct alleged in this Indictment occurred within the District of Columbia and elsewhere, ” and also that venue is proper under § 3238, because “the conduct alleged in this Indictment began outside the jurisdiction of any particular state or district of the United States, but within the jurisdiction of the United States.” Indictment ¶ 2.
Mr. Hassanshahi asserts two arguments for why venue is improper in this District and why this case must therefore be dismissed. First, he claims that venue in this case can only be governed by 18 U.S.C. § 3238 and that the Government’s argument to the contrary, in any event, contradicts the Indictment’s factual allegation that Mr. Hassanshahi’s conduct “began outside the jurisdiction of any particular state or district.” See Indictment ¶ 2; see also Def.’s Supp. Mem. & Mot. for Venue Transfer at 4-6, ECF No. 89 [hereinafter “Def.’s Mot.”]; Def.’s Resp. to Gov’t’s Feb. 16 Mem. & Further Request to Dismiss for Improper Venue at 4-9, ECF No. 104 [hereinafter “Def.’s 2d Mot.”]. Second, Mr. Hassanshahi contends that venue is improper even under § 3237(a) because his failure to secure a license from the Office of Foreign Assets Control (OFAC) does not suffice to show that the offense was “begun, continued, or completed” in the District of Columbia and, thus, provides no basis for his prosecution in this District. See Def.’s Mot. at 1-4; Def.’s 2d Mot. at 9-12.
Taking the second contention first, the Court rejects it because venue is proper in this District under § 3237(a). “Venue may be proper in more than one district, ” United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991), and, here, Mr. Hassanshahi is charged with exporting goods and services to Iran “without having first obtained the required license from [OFAC], located in the District of Columbia, ” Indictment ¶ 1. Although Mr. Hassanshahi’s failure to secure a license is admittedly only a part of the criminal offense with which he has been charged, it is a critical one. “Except as otherwise authorized” by a license pursuant to OFAC regulations (or by certain exceptions not relevant in this case), any exportation by a United States person of “goods, technology, or services” to Iran “is prohibited.” 31 C.F.R. § 560.204. Therefore, “venue is proper here because of the alleged omissions that are part of the crimes charged (namely the failure to secure licenses for exports to Iran from OFAC).” United States v. Quinn, 401 F.Supp.2d 80, 87 (D.D.C. 2005); see also United States v. Montgomery, 441 F.Supp.2d 58, 60-61 (D.D.C. 2006) (concluding, in an analogous case, that venue was proper in the District of Columbia over the defendant’s charge of exporting arms and other goods to Macedonia in violation of a Department of Commerce Office of Export Administration denial order because the defendant’s “failure to ask for authorization to export . . . occurred in the District of Columbia”).
Mr. Hassanshahi claims that Quinn and Montgomery cannot support the Government’s venue argument because Montgomery relied only on Quinn for support, and the issue was not contested in Quinn. Mr. Hassanshahi is correct insofar as Quinn noted that the defendants there had conceded venue in this District. See Quinn, 401 F.Supp.2d at 87 (noting that defendants “do not dispute that venue is proper here”). But even if the issue was conceded in Quinn, the Court’s discussion is undoubtedly correct as a matter of law, as Montgomery makes clear. Contrary to Mr. Hassanshahi’s suggestion, Montgomery cited far more than just Quinn in support of the principle that an omission can support a prosecution “in the district in which the actions were to have occurred, ” or that “venue in cases involving a failure to make [a] required filing is typically in the district in which that failure occurred.” See 441 F.Supp.2d at 61 (citing, e.g., Johnston v. United States, 351 U.S. 215, 221 (1956) (noting that, “where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime”); United States v. DiJames, 731 F.2d 758, 762 (11th Cir. 1984) (concluding that venue was proper in the District of Columbia for a charge of failure to file the Labor Department trusteeship report required when an international union took over a local union)); accord United States v. Bugai, No. 97-1280, 1998 WL 553168, at *2 (6th Cir. Aug. 21, 1998) (noting that “the omission of a legally required act occurs where the act was required to be performed”). Nor does the Court find convincing Mr. Hassanshahi’s contention that, because a defendant can apply for an OFAC license on the Internet, his failure to apply can take place anywhere in the world. See Def.’s Mot. at 3-4 & Attach.; Def.’s 2d Mot. at 11. To secure a license from OFAC, any application must be sent to, received by, and then approved by the Department of the Treasury. Therefore the place of performance of the request-regardless of from where that request is sent-remains the District of Columbia. Accordingly, venue in this case is proper under § 3237(a).
In the alternative, Mr. Hassanshahi contends that § 3237(a)’s venue provision is merely permissive, and claims that even if venue could be supported under that section, it is trumped by § 3238, which he reads as mandatory. Mr. Hassanshahi highlights § 3237(a)’s language instructing that the section applies “[e]xcept as otherwise expressly provided by enactment of Congress, ” 18 U.S.C. § 3237(a), and contrasts that language with § 3238’s admonition that “trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district” where the defendant is first arrested or last resided, 18 U.S.C. § 3238 (emphasis added). Because the bulk of this case allegedly took place overseas, ...