United States v. Barnard

• Decision Date: 22 April 1974
• Docket Number: 73-1202 and 73-1203.,No. 72-3168,73-1201,72-3168
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Buddy Joe BARNARD et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

490 F.2d 907 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Buddy Joe BARNARD et al., Defendants-Appellants.

Nos. 72-3168, 73-1201, 73-1202 and 73-1203.

United States Court of Appeals, Ninth Circuit.

December 10, 1973.

Rehearing Denied January 29, 1974.

Certiorari Denied April 22, 1974.

COPYRIGHT MATERIAL OMITTED

Philip A. DeMassa, Thomas J. Ryan (argued), DeAnne D. Fisher (argued), James P. Hagerstrom (argued), San Diego, Cal., for defendants-appellants.

James Brannigan, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., James W. Brannigan, Jr., Atty. (argued), Dept. of Justice, San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and CHOY, Circuit Judges, and MURRAY,^* District Judge.

Certiorari Denied April 22, 1974. See 94 S.Ct. 1976.

OPINION

DUNIWAY, Circuit Judge:

In December of 1972, the four appealing defendants, Buddy Joe and Jerry Robert Barnard, Low, and Remley, were convicted on five counts: conspiracy to import marijuana in violation of 21 U. S.C. §§ 952, 960 and 963 (one count); attempted importation and importation of marijuana in violation of 21 U.S.C. §§ 952, 960 and 963 (two counts); and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a) (two counts). The indictment was returned and trial was held in the Southern District of California. We affirm.

Appellants do not claim that the evidence is not sufficient to sustain the convictions. We therefore state, in connection with their various contentions, only so much of the facts as are necessary to elucidate their contentions.

1. Venue

Appellants argue that, as to all counts, venue was improperly laid in the Southern District of California.

a. The Conspiracy Count

The defendants conspired among themselves and with others to smuggle marijuana by airplane into California from Mexico. Two successful plane trips were made from Mexico to Palmdale, in the Central District of California, before the scheme was uncovered and stopped by law enforcement officials. On the second trip, the plane stopped in Banning, in the Central District of California, for refueling. The first flight was made nonstop from Mexico to Palmdale.

Six overt acts were alleged as part of the conspiracy. One of them, which was used to establish venue in the Southern District, was that on one of the trips defendant Low (and the pilot, Mason), while en route to Mexico, landed at the Borrego Valley Airport, Borrego Springs, in the Southern District of California, for refueling and to make a telephone call concerning whether all was in order at their pickup point in Mexico. The gist of defendants' argument is that this nexus with the District was too tenuous to justify venue there.

Article III, Section 3, of the Constitution and the Sixth Amendment fix venue "in the State" and "district wherein the crime shall have been committed." See Johnston v. United States, 1956, 351 U. S. 215, 224, 76 S.Ct. 739, 744, 100 L.Ed. 1097. We recognize that "Questions of venue in criminal cases . . . are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed." United States v. Johnson, 1944, 323 U.S. 273, 276, 65 S. Ct. 249, 251, 89 L.Ed. 236.

Nevertheless, although defendants would have us hold otherwise, the law is that an overt act committed in the course of a conspiracy which occurs in a district gives rise to jurisdiction to prosecute the conspirators in that district. Hyde v. United States, 1912, 225 U.S. 347, 367, 32 S.Ct. 793, 56 L.Ed. 1114; Brown v. Elliott, 1912, 225 U.S. 392, 400, 32 S.Ct. 812, 56 L.Ed. 1136; Grigg v. Bolton, 9 Cir., 1931, 53 F.2d 158, 159-160; Dedmore v. United States, 9 Cir., 1963, 332 F.2d 938, 946-947; United States v. Phillips, 8 Cir., 1970, 433 F.2d 1364, 1368. The only remaining question raised by defendants as to venue on the conspiracy count is whether the refueling of the airplane in Borrego Springs and the telephone calls placed there are of sufficient import to constitute an overt act. It is clear that they are. See United States v. Trenary, 9 Cir., 1973, 473 F.2d 680, 682.

b. The Substantive Counts

Defendants were charged with two counts each of attempted importation and importation of marijuana in violation of 21 U.S.C. §§ 952, 960 and 963, and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a). The basis for venue in the Southern District as to these counts is the flights of defendants' airplane over that district as it progressed from Mexico to its landing in the Central District of California.

Surprisingly, in their brief, appellants do not differentiate between the substantive counts and the conspiracy count as to venue, nor do they stress that more serious venue problems may inhere in the former. The government does make this distinction, but (not surprisingly) gives it short shrift. We consider the issue sufficiently raised to merit our treating it on appeal. The question we face is whether airplane overflight of a district may properly give rise to venue in that district with respect to the crimes charged here. Apparently this question is one of first impression.

Certain crimes may be considered as "continuing" crimes. Typically, a "continuing" crime involves movement, or conduct occurring in more than one place.¹ Kidnapping is an example. Venue may lie in any district in which the continuing conduct has occurred. In 1948, Congress passed a general multiple venue statute, codified as 18 U.S.C. § 3237, which provides in pertinent part:

"(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

Any offense involving use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves."²

Any crime which the court determines to have continued in more than one district is subject to multiple venue, under the provisions of the statute. The Supreme Court long ago gave its imprimatur of approval to multiple venue for continuing crimes. Armour Packing Co. v. United States, 1908, 209 U.S. 56, 71-77, 28 S.Ct. 428, 52 L.Ed. 681; United States v. Johnson, supra.

The decisions do not limit the statute to crimes which necessarily involve movement. Crimes which involve a continuing condition, or status, may also be subject to multiple venue. Thus in United States v. Cores, 1958, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873, the Supreme Court determined that an alien who "remained" in the United States after his permit had expired was guilty of a continuing crime, and could be brought to trial either in the district where he was found or in the district where he was when the permit expired. We think it significant that in Cores the Court said: "Given the element of willfulness, we believe an alien `remains,' . . . until he physically leaves the United States. . . . Venue . . . lies in any district where the crewman wilfully remains after the permit expires." 356 U.S. at 409, 78 S.Ct. at 878. And in Armour Packing Co., supra, which dealt with shipments in interstate commerce, the Court said (209 U.S. at 77, 28 S.Ct. at 433): "To say that this construction may work serious hardship in permitting prosecutions in places distant from the home and remote from the vicinage of the accused is to state an objection to the policy of the law, not to the power of Congress to pass it. Hyde v. Shine, 199 U.S. 62, 78, 25 S.Ct. 760, 50 L.Ed. 90. But this is a large country, and the offense under consideration is one which may be constantly committed through its length and breadth. This situation arises from modern facilities for transportation and intercommunication in interstate transportation, and considerations of convenience and hardship, while they may appeal to the legislative branch of the government, will not prevent Congress from exercising its constitutional power in the management and control of interstate commerce."

Within this framework we focus on the two crimes charged here.

(i) Importation. As it relates to the second paragraph of 18 U.S.C. § 3237(a), the crime of importation of marijuana obviously involves both "transportation" and "foreign commerce." Thus by statute Congress has defined this crime as a "continuing" one. Congress has also explicitly provided that prosecution may be had in "any district from, through . . . which such commerce . . . moves." We have no doubt that, if the defendants had imported marijuana from Mexico on foot or on horseback or by wagon or a bicycle or car, and had taken it across the Southern District and into the Central District, venue would lie in either district. The only difference here is that they did it by flying across the Southern District. But the navigable airspace above that district is a part of the district. What the Court said in Armour Packing Co., supra, is applicable here. See also United States v. Jackson, 10 Cir., 1973, 482 F.2d 1167 at 1178.

(ii) Possession. Under the authority of United States v. Cores, supra, we have no difficulty in treating the crime of possession of marijuana with intent to distribute, 21 U.S.C. § 841(a), as a continuing one. When the plane was loaded with marijuana in Mexico and began its flight, it and its contents were in the actual or constructive possession of defendants, or at least a jury could so find. The quantity of marijuana was such as to give rise to an inference that all of the defendants intended to distribute it. A jury could find that the possession and the intent existed when the plane crossed the border into the Southern District of...