U.S. v. Corona

• Decision Date: 07 September 1994
• Docket Number: No. 93-10659,93-10659
• Citation: 34 F.3d 876
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor CORONA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 876

34 F.3d 876

UNITED STATES of America, Plaintiff-Appellee, v. Victor CORONA, Defendant-Appellant.

No. 93-10659.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 10, 1994.

Decided Sept. 7, 1994.

Lawrence D. Wishart, Reno, NV, for defendant-appellant.

William M. Welch, Asst. U.S. Atty., Reno, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: NORRIS, THOMPSON and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Victor Corona appeals his conviction and sentence for conspiracy to possess and distribute

cocaine and three substantive counts stemming from this conspiracy. Corona was tried in the District of Nevada, which is where Corona's coconspirators initially agreed to the drug transaction. The actual distribution, which formed the basis for the three substantive counts, took place in California. Among the issues Corona raises is the propriety of venue in Nevada for these substantive crimes. We reverse Corona's convictions on counts two through four for improper venue, but we affirm the conspiracy conviction.

I BACKGROUND

Josiah Specht, a confidential informant, and Scott Jackson, an undercover agent, met with two of Corona's coconspirators, Richard Carrillo and Ernest Benavidez, in Reno, Nevada on November 2, 1991. Benavidez agreed to supply ten kilograms of cocaine. Benavidez was supposed to meet Agent Jackson in Las Vegas on November 14 to conclude the transaction, but at the last minute, he called Jackson and said he could not travel to Las Vegas. The deal was postponed to November 26, and Benavidez agreed to bring the cocaine to Specht's apartment in Corona, California.

On November 26, Victor Corona arrived at Benavidez's residence with the cocaine. He removed some of the cocaine from the trunk of the Lincoln he was in and gave it to Benavidez and Carrillo, who placed it in a red cooler. Carrillo and Benavidez then drove to Specht's house in Carrillo's Camaro, and Corona followed in the Lincoln. The Camaro and the Lincoln parked near Specht's residence, and Carrillo and Benavidez went to the door. After Carrillo took the cocaine out of the cooler and handed it to Agent Jackson, the police arrested all of those involved. Corona was one of three people in the Lincoln and was sitting in the right rear seat, according to one of the arresting officers. The police found a loaded nine millimeter Beretta handgun in a pouch directly in front of where Corona was sitting. Corona was the gun's registered owner.

Almost a year later, on September 21, 1992, two U.S. Marshals went to a house in Pico Rivera, California to search for Corona. When the marshals saw Corona get into a Thunderbird parked in the driveway, they turned on their lights and blocked the driveway. Corona drove at them, forcing the marshals to drive out of the way. Corona then eluded the marshals' pursuit. This incident led to count five in the indictment charging Corona with assaulting, resisting, or impeding a federal officer.

On October 28, 1992, a police detective seized Corona's wallet and found what he believed to be "phone lists for customers for narcotics." These lists, written on business cards, contained over 100 first names and phone numbers. They were introduced at trial as Rule 404(b) evidence and became exhibits 43 through 48.

Prior to trial, the defense moved to have the court sever count five because it was unrelated to the other counts. The judge initially denied the motion, but then changed his mind at the close of the government's case and granted the motion. Corona was convicted on the other four counts: conspiracy to possess with intent to distribute cocaine, two counts of distribution of cocaine, and unlawful use of a firearm during a drug trafficking crime. The district court sentenced him to three concurrent 210 month terms on the first three counts and one concurrent 60 month sentence on count four, 785 F.Supp. 884.

II DISCUSSION

A. Venue

Corona argues venue was improper in Nevada on counts two through four because those substantive crimes took place entirely in California. We review for abuse of discretion a district court's ruling on a motion for change of venue, United States v. Meyers, 847 F.2d 1408, 1411 (9th Cir.1988), but we review de novo the underlying legal basis for such a motion.

Article III of the Constitution, the Sixth Amendment, and Rule 18 of the Federal

                Rules of Criminal Procedure all guarantee that a defendant will be tried in the state where the crimes were committed. 1  See United States v. Contreras-Ceballos, 999 F.2d 432, 434 (9th Cir.1993);  United States v. Barnard, 490 F.2d 907, 910 (9th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974);  Fed.R.Crim.P. 18.  " 'Questions of venue in criminal cases are not merely matters of formal legal procedure.  They raise deep issues of public policy.' "  Barnard, 490 F.2d at 910 (quoting United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236 (1944))
                

Although Corona never set foot there, Nevada was a proper venue for the conspiracy charge (count one) because it was the site of the initial agreement and subsequent phone calls planning the drug transaction. Venue for a conspiracy charge "is appropriate in any district where an overt act committed in the course of the conspiracy occurred. It is not necessary that [the defendant] himself have entered or otherwise committed an overt act within the district, as long as one of his coconspirators did." Meyers, 847 F.2d at 1411 (citations omitted).

The question we must answer, however, is whether Nevada was the proper venue for the substantive crimes arising from the conspiracy--distribution of cocaine (counts two and three) and use of a firearm during drug trafficking (count four)--which occurred entirely in California. ² The government claims the Pinkerton principle--the principle that conspirators can be responsible for the substantive offenses of their coconspirators--is a sufficient basis for venue in Nevada. See Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). This principle, however, does not appear to control the question before us. What the government is essentially arguing for is a rule of law allowing venue over a substantive crime committed in furtherance of a conspiracy in any district where venue is proper for the conspiracy charge. While such a rule might make some sense from a policy standpoint, it runs counter to the venue principles established by the Constitution, the Federal Rules of Criminal Procedure, and the federal courts.

"[W]hen a defendant is charged in more than one count, venue must be proper with respect to each count." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2nd Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989). The court must conduct a separate venue analysis for the substantive crimes and the conspiracy, even if the substantive crimes are committed in furtherance of the conspiracy. See United States v. Jordan, 846 F.Supp. 895, 898 (D.Nev.1994). The question before us, therefore, is whether for venue purposes the substantive offenses of cocaine distribution and use of a firearm can be considered to have taken place in Nevada. We conclude they cannot.

Crimes consisting of a single noncontinuing act are "committed" in the district where the act is performed. Beech-Nut, 871 F.2d at 1188. Crimes that are not unitary but instead span space and time, however, may be considered continuing offenses under 18 U.S.C. Sec. 3237(a). Id. Continuing offenses may be prosecuted "in any district in which such offense was begun, continued, or completed." 18 U.S.C. 3237(a).

In order to determine for venue purposes where a crime occurred "we examine the key verbs in the statute defining the criminal offense to find the scope of relevant conduct." United States v. Georgacarakos, 988 F.2d 1289, 1293 (1st Cir.1993) (internal quotations omitted). The key verb in the statute at issue in this case is "distribute," see id. Although some of the initial arrangements for the drug deal in this case took place in Nevada, "[a]ctions which are merely preparatory or prior to the crime are not probative in determining venue.... [O]nly actions by the defendant which constitute ... distributing ... are probative in determining The few courts that have addressed this question have reached the same conclusion. In United States v. Walden, 464 F.2d 1015 (4th Cir.), cert. denied, 409 U.S. 867, 93 S.Ct. 165, 34 L.Ed.2d 116 (1972), the defendants were charged both with conspiracy to rob a group of banks and with a number of substantive counts of bank robbery arising from the conspiracy. Many of the banks they were charged with robbing were not in South Carolina, where the trial took place. The Fourth Circuit concluded that while enough planning and preparation took place in South Carolina to establish venue for the conspiracy charge, South Carolina was not the proper venue for the substantive counts of robbing out-of-state banks. The court declined to accept the district court's reasoning that an offense begins, for venue purposes, where any act in furtherance of its execution is performed. This analysis, the court stated, "overlooks the legal distinction between preparation for a crime and commission of the crime itself, and is contrary to the spirit and letter of the Constitution." Id. at 1018. The court concluded, "A decision by the United States to prosecute for conspiracy is not without some advantage to the government. To add to the advantages already existing by engrafting a forum shopping option as to substantive offenses would, we think, go too far." Id. at 1020 (citations omitted).

venue." Id. Because the distribution here took place entirely in California, venue was not proper in Nevada. The acts of preparation that occurred in Nevada are simply not relevant to this issue.

In Beec...