U.S.A. v. Ochoa, Jr.

• Decision Date: 12 October 2000
• Docket Number: No. 00-1794,00-1794
• Citation: 229 F.3d 631
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Pablo Ochoa, Jr., Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 631

229 F.3d 631 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Pablo Ochoa, Jr., Defendant-Appellant.

No. 00-1794

In the United States Court of Appeals For the Seventh Circuit

Argued September 8, 2000

Decided October 12, 2000

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 99 CR 66--Rudy Lozano, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Posner and Rovner, Circuit Judges.

Flaum, Chief Judge.

Pablo Ochoa, Jr., appeals his conviction for conspiracy to commit mail fraud in violation of 18 U.S.C. sec. 371. He challenges the government's use of hearsay testimony at his trial and argues that venue was improper. For the reasons stated herein, we affirm the defendant's conviction.

I. Background

On February 23, 1995, defendant Pablo Ochoa, Jr., who lived in Chicago Heights, Illinois, purchased a 1995 Buick Roadmaster for $32,635. Because he traded in two cars on which he had a negative equity position, he paid approximately $7000 more than the Roadmaster was actually worth. To finance his purchase, he took out a car loan with monthly payments of $669 for five years.

Shortly after purchasing the Roadmaster, Ochoa asked Dave McLaughlin, who lived in Ochoa's home as a tenant, if he knew anyone who could make the car "disappear." McLaughlin called Gaylen Strange, his brother-in-law, who had previously been in the chop shop business, and asked if he knew of anyone who could dispose of a car. Strange contacted Mark Hinkle. Hinkle also had chop shop experience but was now an FBI informant. Ochoa never had any direct contact with either Hinkle or Strange. Hinkle contacted FBI Agent Bill Haman and relayed that Strange knew an owner who wanted to give up his car. Hinkle then arranged for Strange to deliver the Roadmaster to Agent Haman, who was posing as a chop shop operator.

On April 1, 1995, Strange and McLaughlin delivered Ochoa's car to Agent Haman in Schererville, Indiana. Strange gave Agent Haman keys to the car and the car itself at 11:07 a.m. These keys were copies of the originals, which had been made at Elmer & Sons, a locksmith near Ochoa's home. Elmer & Sons sold a key with an embedded computer chip matching the Roadmaster's prior to April 3. Agent Haman received the Roadmaster undamaged, without any evidence of forced entry. Strange told Agent Haman that the owner of the Roadmaster was giving up his car. Agent Haman instructed Strange to tell the owner to wait three days before reporting the car stolen and that the owner should claim the car was stolen from a mall or business area. Agent Haman also agreed to pay Strange for the car during the following week.

Agent Haman and Strange met again on April 7 in Kentland, Indiana, where Agent Haman paid Strange $350. This amount indicates that Strange was serving as broker for the owner; had he actually stolen the car, Strange could have made $15,000 from selling the parts. Strange told Agent Haman that the owner of the car planned to file a bogus insurance claim. Strange further said that the CD player in the Roadmaster had a remote control and offered to get the remote from the owner.

On April 4, three days after the Roadmaster had been delivered to Agent Haman, Ochoa called the police and reported the car stolen from his garage. Ochoa informed the responding officer that he had last seen the car on April 3 at 10:00 p.m. Ochoa also stated that the car was locked and he still had the keys to the car in his possession.

Ochoa filed an insurance claim and gave a statement to the adjuster on April 5. Ochoa told the adjuster that the last time he had seen the car was April 1 at 2:00 p.m. Ochoa also remarked that he was unsure whether he could afford the car. Ochoa was in the midst of some credit problems at the time and was making payments on an $89,000 revolving line of credit. The adjuster did not find that the claim was either wrongful or fraudulent and recommended payment. The insurance company determined that $25,550 was the actual value of the Roadmaster and mailed the bank holding Ochoa's loan for the car a check for that amount.

FBI Agent Theodore May later interviewed Ochoa. Ochoa stated that he had last seen the car the night of April 3 when he parked it in his garage. Ochoa further told Agent May that he bought the car for $25,000 and that his monthly payments were $425.

Ochoa and Strange were indicted for conspiracy to commit mail fraud on April 23, 1999. After his motion to dismiss the indictment for improper venue was denied, Ochoa pled not guilty. Strange originally pled not guilty, but later changed his plea and agreed to testify for the government against Ochoa.

In the process of building the case, the FBI attempted to locate McLaughlin, who had moved out of Ochoa's house. On July 8, Agent May went to the address where he believed McLaughlin lived and saw two men sitting on the porch. One man identified himself as Art Garza, the owner of the residence; unbeknownst to Agent May, the other man was McLaughlin. Garza stated that he knew McLaughlin and might see him in the next few days. Agent May told both Garza and the unidentified McLaughlin that McLaughlin could benefit by talking to the FBI and that he might not be charged.

The next day McLaughlin called Agent May, and the two agreed to meet at a restaurant. McLaughlin stated that he was approached by Ochoa, who asked if he knew anyone who could make the Roadmaster disappear. Ochoa told McLaughlin that he was having severe financial problems and difficulty in paying the loan for the Roadmaster. McLaughlin explained that he then contacted Strange and asked if Strange could dispose of the car. McLaughlin further told Agent May that Ochoa had made copies of the keys to the Roadmaster in order to retain the original keys, which would support Ochoa's claim that the car had been stolen.

As trial approached, the FBI again attempted to locate McLaughlin to serve him with a subpoena to appear. Agents returned to Garza's residence where McLaughlin was still receiving mail. Garza informed the FBI that McLaughlin had left with all his belongings and said that he was moving to Maryland. The FBI spent several days looking for McLaughlin and obtained a material witness arrest warrant for him. Agent May also contacted McLaughlin's employer and learned that he stopped coming to work when the FBI began looking for him. However, McLaughlin was owed his last paycheck. After Agent May left, McLaughlin called his employer. When McLaughlin hung up, the person who received the call used "star 69" and discovered that McLaughlin made the phone call from Ochoa's residence. Phone records revealed seven phone calls from Ochoa's home to McLaughlin's employer over the course of December 16-17, 1999.

Ochoa's trial began on January 3, 2000. The prosecution relied on the testimony of Strange and Agent Haman, among others. The government also introduced the statements of McLaughlin through Agent May over the objection of Ochoa. The trial judge ruled that this hearsay evidence was admissible as statements against interest under Federal Rule of Evidence 804(b)(3), under the residual exception of Rule 807, and because Ochoa forfeited his objection due to his own wrongdoing, as provided in Rule 804(b)(6). Ochoa testified in his defense that McLaughlin used his knowledge of Ochoa's home to break into the residence, take the Roadmaster's keys, make copies, and then steal the Roadmaster. Ochoa also stated that he was not at home on December 16-17, 1999, and so McLaughlin must have again broken into his home to make phone calls to McLaughlin's employer. The jury found Ochoa guilty, and he was sentenced to ten months, five to be served in an institution and five of home confinement.

After sentencing, Ochoa filed a notice of appeal and then a motion for release pending appeal. The trial court believed that its decision to admit the hearsay evidence was a close question, the resolution of which on appeal in Ochoa's favor would likely result in reversal or a new trial. Thus, the court granted Ochoa's motion. This appeal followed.

II. Discussion

A. Venue

Ochoa argues that Indiana is an improper venue for his trial. He claims that all of the essential acts of the conspiracy took place in Illinois, and thus venue is proper only in Illinois. The standard of review for a claim of improper venue is whether the government proved by a preponderance of the evidence that the crimes occurred in the district charged, viewing the evidence in the light most favorable to the government. See United States v. Tingle, 183 F.3d 719, 726 (7th Cir. 1999); United States v. Brandon, 50 F.3d 464, 469 (7th Cir. 1997).

Trials must be held in the state and district in which the offense was committed. See U.S. Const. art. III, sec. 2, cl. 3; Fed.R.Crim.P. 18. For crimes that occur in more than one state or district, venue is constitutionally and statutorily proper in any district in which part of the crime was committed. See 18 U.S.C. sec. 3237(a); Tingle, 183 F.3d at 726. Thus, the traditional rule is that a conspiracy charge may be tried in any district in which an overt act of the conspiracy occurred. See United States v. Rodriguez, 67 F.3d 1312, 1318 (7th Cir. 1995); United States v. Molt, 772 F.2d 366, 369 (7th Cir. 1985) ("As long as one overt act in furtherance of the conspiracy is committed in a district, venue is proper there.").

Ochoa argues that United States v. Cabrales, 524 U.S. 1 (1998) creates a distinction between essential and unessential acts, and that venue is proper only where the essential acts of a crime took place. Under his theory, all of the essential acts, such as the formation of the conspiracy and the mailing of the false claim, took place in Illinois and so venue is proper only there. Ochoa is incorrect. Cabrales stands for the proposition that venue is improper in a district if the only...