United States v. Rivera

• Decision Date: 19 January 1968
• Docket Number: No. 49,Docket 31288.,49
• Citation: 388 F.2d 545
• Parties: UNITED STATES of America, Appellee, v. Cecilio RIVERA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

388 F.2d 545 (1968)

UNITED STATES of America, Appellee, v. Cecilio RIVERA, Jr., Defendant-Appellant.

No. 49, Docket 31288.

United States Court of Appeals Second Circuit.

Argued September 19, 1967.

Decided January 19, 1968.

Jerome C. Ditore, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., for Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellee.

Abraham Solomon, New York City, for defendant-appellant.

Before LUMBARD, Chief Judge, and WATERMAN and FEINBERG, Circuit Judges.

LUMBARD, Chief Judge.

Cecilio Rivera was tried by Judge Bruchhausen in the Eastern District of New York, sitting without a jury, and convicted of a purchase of 51.55 grams of cocaine not in or from the original package in violation of 26 U.S.C. § 4704 (a).¹ He was sentenced to five years imprisonment. On appeal he seeks to raise the question whether possession of narcotics can consistent with the Constitution create a presumption not only of an unlawful purchase but of a purchase within the district where the accused is found in possession, as provided by the statute. In particular Rivera challenges reliance by the government on this inference of venue when, as here, there was evidence that indicated a prior possession in the Southern District. We do not reach the issue raised by this challenge because we find that the appellant waived his objection to venue in the Eastern District when he moved for an acquittal on specific grounds without any mention of venue.

The facts are not in dispute. The testimony produced at the trial indicated that an agent of the Federal Bureau of Narcotics received information from a reliable informant that a Bronx man was trafficking in narcotics. On the instructions of the agent, the informant telephoned the appellant who was in the Bronx, which is in the Southern District, and arranged a meeting for the next day at Kennedy Airport which is in the Eastern District. Another call was made on the day of the appointed meeting, and the appellant stated he had the cocaine and would be at the airport. The informant and appellant met later that day at the Eastern Airlines Terminal of Kennedy Airport, left the terminal and walked to the appellant's automobile. The appellant was arrested after entering the car, and a search of the vehicle revealed nine tinfoil packages containing cocaine.

In the course of the trial, the government offered no evidence to establish the purchase or the place of purchase but relied on the statutory inference in § 4704(a): "the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found."

Appellant did not offer any evidence on his own behalf. However, his attorney did move for acquittal, and specified three grounds. The first two involved questions concerning the arrest and search, and are not pertinent here. The third ground was

that the Government has failed to prove the charge set forth in the indictment number 66-Criminal-225, to wit, that this defendant on or about the 12th day of February 1965, within the Eastern District of New York, unlawfully purchased approximately 51-55 grams of the narcotic drug cocaine, which drug was not in or from the original package bearing tax stamps as required by law.

Now, your Honor, the testimony here affirmatively shows that they found nothing on the person of this defendant, this defendant had no contraband. They found contraband in the car and therefore they came to the conclusion that this defendant purchased the same.

There is no proof established by the Government that this defendant at any time, at any place, in any manner whatsoever, purchased Government\'s Exhibit 2, which the Government offered in evidence. I therefore move to acquit.

The Assistant United States Attorney responded, and pointed out that under the statute possession raised an inference of purchase, and the defendant's attorney then made an additional "comment":

The presumption in the statute, and I am familiar with it, the presumption applies only to such cases where the narcotics were found in the possession because the statute reads that where a defendant is charged with a violation of any of these sections of the narcotics law, "is or has in his possession," "is or has in his possession," that is where the presumption applies, unless it is explained.

Now, in this case, the testimony is that this defendant did not have any narcotics in his possession. The agent said he wasn\'t searched at the time of the arrest or before the arrest. However, the agent said that when the defendant was taken out of the car they found a package there.

I say there is no proof that the package was the package owned or possessed by this defendant.

The court denied the motion.

It is quite clear from this exchange that the motion was directed to whether the narcotics were in the defendant's possession, not to the propriety of venue in the Eastern District. Thus the question is whether an objection to venue is waived when a motion for acquittal is made on specific grounds without mention of venue.

We start with the premise that venue requirements are an essential part of a case, and that a question of venue raises "deep issues of public policy in the light of which legislation must be construed." United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236 (1944); see also Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); United States v. Gross, 276 F.2d 816 (2 Cir.), cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960). Art. III, § 2 of the Constitution provides that criminal trials "shall be held in the State where the said crimes shall have been committed," and this safeguard is reinforced by the Sixth Amendment provision that the criminal trial shall be before an impartial jury of "the State and district wherein the crime shall have been committed." Venue is important as a guaranty of the defendant's right to be tried in the vicinity of his criminal activity, and venue requirements are imposed to prevent the government from choosing a favorable tribunal or one which may be unduly inconvenient for the defendant. In United States v. Gross, 276 F.2d 816, 818-819 (2 Cir.), cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960), we stated that in limited circumstances an objection to improper venue could be waived although the objection is preserved by a general motion for acquittal after all the evidence has been received. See United States v. Browne, 225 F.2d 751, 754-755 (7 Cir. 1955).

However, where as here a motion for acquittal is made on specified grounds which do not include any objection to venue, we think that objection has been waived. The specification of grounds in the motion is an indication that counsel has evaluated the record and has these particular reasons for his motion. His omission of venue from those reasons is similar to a general failure to move for acquittal in spite of the government's failure to provide any substantial evidence to support the alleged venue. In the latter circumstances, the Sixth Circuit found the objection waived, United States v. McMaster, 343 F.2d 176, 181 (6 Cir.), cert. denied, 382 U.S. 818, 86 S.Ct. 42, 15 L.Ed.2d 65 (1965); cf. United States v. Michelson, 165 F.2d 732, 734 (2 Cir.) (dictum), aff'd, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

The Ninth Circuit has found waiver where the defendant made a motion to acquit on specific grounds and did not mention venue. Gilbert v. United States, 359 F.2d 285, 288 (9 Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 169, 17 L.Ed.2d 109 (1966); United States v. Brothman, 191 F.2d 70, 72-73 (2 Cir. 1951) (dictum). We think this the proper result. It is not unreasonable to expect the defendant to make some reference to the venue point in order to save his objection for appeal. Where he moves to acquit without specification, we might assume venue to be included among his unarticulated disagreements with the conduct of the case, but where he does specify grounds for the motion and omits mention of venue we must conclude that he cannot be considered to have raised a question concerning the place of trial. Since there can be no doubt that Rivera did move for acquittal on specific grounds without mention of improper venue at that time, he waived any objection he may have had.

In view of our conclusion that defendant's contention regarding alleged improper venue will not be heard on appeal, as it was not raised at trial, we find it unnecessary to concern ourselves with the question whether purchase in the Eastern District was a permissible inference in the light of the proof.

Conviction affirmed.

WATERMAN, Circuit Judge (dissenting).

I respectfully dissent from the judgment my brothers would enter, a judgment which affirms the conviction below without ever reaching or discussing the question of whether defendant-appellant was proved guilty of having violated the especially-designed criminal statute upon which he was indicted. That statute is set forth in footnote 1 of the majority...