United States v. Venable

666 F.3d 893, 2012 WL 130710, 2012 U.S. App. LEXIS 943
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 18, 2012
Docket11-4216
StatusPublished
Cited by22 cases

This text of 666 F.3d 893 (United States v. Venable) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Venable, 666 F.3d 893, 2012 WL 130710, 2012 U.S. App. LEXIS 943 (4th Cir. 2012).

Opinion

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER and Judge KING joined.

OPINION

DUNCAN, Circuit Judge:

Appellant James Venable was indicted by the United States Attorney’s Office for the Eastern District of Virginia (“United States Attorney’s Office”) on the charge of possessing a firearm while being a felon, in violation of 18 U.S.C. § 922(g)(1). Venable, an African American, moved to dismiss the indictment against him, claiming that the United States Attorney’s Office selected him for prosecution under a federal-state law enforcement initiative known as Project Exile because of his race, in violation of the equal protection component of the Fifth Amendment’s Due Process Clause. As part of the motion, Venable sought discovery into the criteria and procedures used by the government in deciding to prosecute him in federal court while two other individuals, both white, who were also felons in possession of the same firearms as him, were not. The district court concluded that Venable had failed to satisfy his rigorous burden to obtain discovery on his selective prosecution claim. On appeal, Venable requests that we reverse the district court’s order denying his motion for discovery and remand this case for discovery and an evidentiary hearing. For the reasons that follow, we affirm.

I.

A.

We begin by reciting the relevant facts. We first set forth the events leading up to the arrests of Venable, and the two individuals Venable claims are similarly situated to him, Gary Wayne Turner and Michele Lynn Zechman. Because Venable’s selective prosecution claim (including his request for discovery in support of that claim) rests on the allegation that Turner and Zechman, who were not prosecuted in federal court, are similarly situated to him, we next describe the facts pertaining to Turner’s and Zechman’s prosecutions in state court on the one hand, and Venable’s prosecution in federal court on the other.

1.

On January 8, 2008, Turner and Zechman burglarized a home in Campbell County, Virginia, and stole eleven firearms. For Turner’s role in the burglary and larceny of the firearms, Campbell County authorities sought to indict him on January 24, 2008, on the following state law charges: (1) statutory burglary, in violation of Virginia Code § 18.2-91; (2) grand larceny, in violation of Virginia Code § 18.2-95; and (3) possession of a firearm by a felon, in violation of Virginia Code § 18.2-308.2.

On January 28, 2008, Captain L.T. Guthrie from the Campbell County Sheriffs Office contacted Richmond Police Detectives Daniel O’Connell and Jack P. Larry to enlist the Richmond Police Depart *896 ment’s assistance in arresting Turner pursuant to arrest warrants issued for the burglary. Captain Guthrie and Detectives O’Connell and Larry responded to Turner’s residence and arrested him. After he was taken into custody, the three officers interviewed Turner about his involvement with the burglary. Turner cooperated with the officers, implicated himself in the burglary, and agreed to take them to the location where he had sold eight of the firearms. Turner directed the officers to the residence of an African American male named “James.”

While Captain Guthrie remained with Turner, Detectives O’Connell and Larry knocked on the door of the house where “James” lived. An African American male, later identified as Venable, opened the door. The detectives advised Venable that they were aware that he was in possession of stolen firearms. After Venable confirmed that the detectives were not going to arrest him for possession of stolen firearms, he cooperated with the Detectives and agreed to relinquish the firearms. At that time, the police were not aware of Venable’s felon status, nor did they charge or arrest him.

The next day, January 29, 2008, Campbell County authorities charged Zechman with the same three state law offenses as Turner. At the time of the offense, Turner and Zechman resided together in Richmond at the same address. That day, Detectives O’Connell and Larry returned to Turner’s and Zechman’s residence to arrest Zechman on those charges. As the detectives spoke with Zechman, Venable exited a vehicle and began to approach the detectives and Zechman. The detectives cut him off before he reached the side of the residence where Zechman was standing, at which point Venable began yelling; Venable angrily demanded to know who told the police he had purchased the firearms. The detectives informed Venable that he needed to calm down, but Venable continued to be vocally hostile. At one point, Venable commented that he had just left the penitentiary, prompting Detective O’Connell to relate to him that the officers had given him a break the previous night if he was a convicted felon. Venable responded that his felon status was beside the point. Shortly thereafter, Venable got back into his car and left Zechman’s residence.

After arresting Zechman, the detectives checked Venable’s criminal history, noted that he had prior felony convictions, and obtained a search warrant for Venable’s residence (based on his criminal record and a box of .45 caliber ammunition that the detectives had seen inside his house the previous night). The detectives returned to Venable’s residence, and he told them to leave unless they had a warrant. The detectives showed Venable the warrant, recovered the ammunition, and arrested him.

2.

State prosecutors in Campbell County, located in the Western District of Virginia, obtained indictments against Turner and Zechman on April 30, 2008, on charges of statutory burglary, grand larceny, and possession of a firearm by a convicted felon. 1 Both eventually pleaded guilty to the charges, Zechman on August 7, 2008, and Turner on November 4, 2009. On December 18, 2008, Zechman was sentenced to five years for statutory burglary, two years for grand larceny, and one year *897 for possession of a firearm by a convicted felon. All three of Zeehman’s sentences were suspended on condition that she complete a rehabilitation program. In addition, Zechman was ordered to be on good behavior for a period of ten years and to comply with supervised probation for a period of three years. On January 28, 2010, Turner was sentenced to five years of incarceration with five years suspended for statutory burglary, five years of incarceration with five years suspended for grand larceny, and five years of incarceration for possession of a firearm by a convicted felon. Turner is currently serving his sentence with the Virginia Department of Corrections. Turner was also sentenced to supervised probation following his release.

3.

On January 29, 2008, the Commonwealth Attorney’s Office for the City of Richmond (“Richmond Commonwealth Attorney’s Office”) indicted Venable on the charge of possession of a firearm by a felon, in violation of Virginia Code § 18.2-308.2. Venable was to be tried in the Circuit Court for the City of Richmond. Under a program commonly referred to as “Project Exile,” however, the Richmond Commonwealth Attorney’s Office presented Venable’s case to the Richmond Division of the United States Attorney’s Office for review and possible federal prosecution.

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Cite This Page — Counsel Stack

Bluebook (online)
666 F.3d 893, 2012 WL 130710, 2012 U.S. App. LEXIS 943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-venable-ca4-2012.