U.S. v. Byrne

• Decision Date: 06 April 1999
• Docket Number: No. 98-2027,98-2027
• Parties: 1999 CJ C.A.R. 2297 UNITED STATES of America, Plaintiff--Appellee, v. Timothy BYRNE, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1231

171 F.3d 1231

1999 CJ C.A.R. 2297

UNITED STATES of America, Plaintiff--Appellee, v. Timothy BYRNE, Defendant--Appellant.

No. 98-2027.

United States Court of Appeals, Tenth Circuit.

April 6, 1999.

Randolph J. Ortega, Ellis and Ortega, El Paso, Texas, appearing for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, appearing for Plaintiff-Appellee.

Before TACHA, BALDOCK, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

Defendant-Appellant Timothy Byrne was convicted of using telecommunications devices in interstate commerce to entice a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b), and traveling in interstate commerce for the purpose of engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). The district court sentenced him to twenty-one months imprisonment followed by a three-year period of supervised release. On appeal, defendant argues that we should reverse his convictions because: (1) the district court did not allow his counsel to fully impeach the complaining witness; (2) the prosecution failed to produce evidence of the district court's venue; and (3) extraneous material was introduced into the jury room. We affirm.

During the summer of 1996, defendant met a minor through an Internet chat room. At the time of these events, defendant resided in El Paso, Texas, and the minor lived in Clovis, New Mexico. The complaining minor testified that over the course of several communications between Texas and New Mexico, defendant arranged a meeting with him in Clovis for the purpose of engaging in sexual relations. On August 9, 1996, defendant traveled to Clovis and performed a series of sexual acts with the boy.

On May 7, 1997, a federal grand jury returned a two-count indictment against defendant charging him with using telecommunications devices in interstate commerce to entice a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b), and traveling in interstate commerce for the purpose of engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). During Mr. Byrne's jury trial, the prosecution called the complaining minor to testify. On cross-examination, defense counsel sought to question the minor regarding his interactions with another man whom he had met over the Internet. The minor had traveled out of town to meet this man, and authorities arrested him as a runaway. After his arrest, he made statements inculpating defendant. The district court did not allow questioning regarding these events pursuant to Federal Rule of Evidence 403, having found the testimony substantially more prejudicial than probative.

At the conclusion of the government's case, defendant moved for a judgment of acquittal, arguing that the government had failed to offer evidence establishing the district court's venue and jurisdiction. Specifically, defendant argued that as to both counts in the indictment, the prosecution failed to establish that Clovis was in Curry County, New Mexico, ¹ and as to the enticement count, the government failed to prove that defendant used any instrumentality of interstate commerce within Curry County, New Mexico. The district court denied defendant's motion for judgment of acquittal.

Finally, during the jury's deliberation, a juror discovered extraneous material included within an atlas that had been admitted into evidence. The material consisted of several computer printouts containing profiles of minors who wished to engage in a homosexual relationship. The juror, without reading the material, sent it out of the jury room. Upon notice that the jury had received this material, defendant moved for a mistrial. The trial court conducted a hearing on the matter outside the presence of the jury. During the hearing, neither party admitted knowing that the atlas contained extraneous material. At the conclusion of the hearing, the district court stated that it would continue the investigation after the jury returned from its deliberation.

The jury rendered a verdict of guilty as to both counts. After the court read the verdict, but prior to excusing the jury, the court, as promised, questioned the jury regarding the extraneous material. The district court also asked each juror individually whether he or she had read the pages. Each responded negatively. Upon completion of the questioning, the court asked the parties if they desired any further inquiry. Neither side requested further investigation. The district court subsequently excused the jury, denied the motion for a mistrial, and entered judgment in accordance with the jury verdict. On February 10, 1998, the district court sentenced Mr. Byrne to twenty-one months imprisonment followed by a three-year period of supervised release. This appeal followed.

I.

Defendant argues that the district court violated his Sixth Amendment right to confrontation when it restricted defense counsel's cross-examination of the complaining witness. "We review de novo whether a defendant's Sixth Amendment confrontation rights were violated by cross-examination restrictions, and whether any such violation was harmless." United States v. Gault, 141 F.3d 1399, 1403 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 253, 142 L.Ed.2d 208 (1998); accord United States v. Bindley, 157 F.3d 1235, 1240 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 1086, 143 L.Ed.2d 87 (1999). A defendant's "right to cross-examine witnesses is an integral part of the right to confrontation, [but] it is not an absolute or unlimited right." Gault, 141 F.3d at 1403. The United States Supreme Court has recognized that "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about ... harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Bindley, 157 F.3d at 1240; Gault, 141 F.3d at 1403.

The record reflects that the district court refused to allow questioning only regarding an unrelated encounter the witness had with another man and the witness' corresponding arrest on runaway charges. The district court found such testimony substantially more prejudicial than probative. We agree. We therefore conclude that the cross-examination restrictions imposed by the district court fell within the bounds permitted by the Sixth Amendment.

II.

Defendant also argues that the district court erred by failing to grant his motion for judgment of acquittal because the prosecution did not produce any evidence of proper venue. "We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government to determine if the jury could have found defendant guilty of the essential elements of the crime beyond a reasonable doubt." United States v. Ailsworth, 138 F.3d 843, 846 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 221, 142 L.Ed.2d 181 (1998); accord United States v. Smith, 156 F.3d 1046, 1055 (10th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 844, 142 L.Ed.2d 699 (1999). However, when the motion raises a question of venue, we alter the analysis somewhat, for unlike other substantive elements of the offense charged, the government need only prove venue by a preponderance of the evidence. See United States v. Carter, 130 F.3d 1432, 1438 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1856, 140 L.Ed.2d 1104 (1998); United States v. Miller, 111 F.3d 747, 749 (10th Cir.1997). Contrary to defendant's assertion, the record is replete with evidence that establishes proper venue in the District of New Mexico. The evidence indicates that defendant used telecommunications devices in interstate commerce to communicate with a minor in New Mexico ² and that defendant traveled to New Mexico, where he engaged in sexual acts with the minor. Thus, the government provided ample evidence from which the jury could have found proper venue. Therefore, the district court did not err in denying defendant's motion for acquittal.

Moreover, to the extent that the defendant suggests that the jury was not adequately instructed on venue and thus made no explicit venue finding, we find this argument without merit. Although venue is a question of fact that ordinarily must be decided by the jury, see Miller, 111 F.3d at 749, failure to instruct the jury on venue does not necessarily constitute reversible error. In Miller, we stated that "failure to instruct on venue, when requested, is reversible error unless it is beyond a reasonable doubt that the jury's guilty verdict on the charged offense necessarily incorporates a finding of proper venue." 111 F.3d at 751 (emphasis added). In this case, however, defendant fails to assert or direct our attention to any request for a specific instruction on venue. Consequently, Miller is inapposite. Because defendant also did not object to the lack of a specific venue instruction at trial, we review this claim only for plain error. See Fed.R.Crim.P. 52(b); United States v. Meuli, 8 F.3d 1481, 1487 (10th Cir.1993).

As noted above, the record reveals that defendant used telecommunications devices in interstate commerce to entice a minor in New Mexico to engage in sexual acts and that he traveled to New Mexico to perform sexual acts with the minor. These acts established venue in the District of New Mexico and comprised the sole basis for defendant's guilt. The defendant also did not genuinely challenge the location of these acts. We hold that under these circumstances the jury's guilty verdict necessarily incorporated a finding of proper venue. Consequently, the district court's failure to fashion a specific instruction on venue in this case does not constitute plain...