34 F.3d 876 (9th Cir. 1994), 93-10659, United States v. Corona

Docket Nº:93-10659.
Citation:34 F.3d 876
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Victor CORONA, Defendant-Appellant.
Case Date:September 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 876

34 F.3d 876 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Victor CORONA, Defendant-Appellant.

No. 93-10659.

United States Court of Appeals, Ninth Circuit

September 7, 1994

Argued and Submitted Aug. 10, 1994.

Page 877

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

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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

  1. 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

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    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...

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