572 F.2d 397 (2nd Cir. 1978), 580, United States v. Boney

Docket Nº:580, Docket 77-1364.
Citation:572 F.2d 397
Party Name:UNITED STATES of America, Appellee, v. Annette BONEY, Appellant.
Case Date:March 09, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 397

572 F.2d 397 (2nd Cir. 1978)

UNITED STATES of America, Appellee,

v.

Annette BONEY, Appellant.

No. 580, Docket 77-1364.

United States Court of Appeals, Second Circuit

March 9, 1978

Argued Jan. 12, 1978.

Page 398

Jon G. Rothblatt, New York City (Henry B. Rothblatt and Rothblatt, Rothblatt, Seijas & Peskin, New York City, of counsel), for appellant.

Jonathan M. Marks, Asst. U. S. Atty., E.D.N.Y., Brooklyn, N. Y. (David G. Trager, U. S. Atty., and Harvey M. Stone, Asst. U. S. Atty., E.D.N.Y., Brooklyn, N. Y., of counsel), for appellee.

Before GURFEIN and VAN GRAAFEILAND, Circuit Judges, and DOOLING, District Judge. [*]

GURFEIN, Circuit Judge:

In this consolidated appeal, defendant Annette Boney appeals from judgments of conviction entered on August 18, 1977 and September 29, 1977 after jury trials in the United States District Court for the Eastern District of New York (Mishler, Chief Judge ). At the first trial, appellant was found guilty under Count Three of the indictment of possessing with intent to distribute 20 kilograms of methaqualone, a controlled substance, in violation of 21 U.S.C. § 841(a)(1), 1 and was acquitted on one count of possession, and one count of distribution under the same section. In the second trial, appellant was found guilty of one count of conspiracy to possess and distribute methaqualone, in violation of 21 U.S.C. § 846. 2 A co-defendant, Stuart

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First, was acquitted. 3

Annette Boney was originally indicted on January 27, 1977 on three substantive counts. The first count charged Boney with possessing with intent to distribute about 60,000 tablets of methaqualone (commonly called "qualudes") on November 17, 1976; the second count charged distribution on the same date; and the third count (presently on appeal) charged possession of 20 kilograms of methaqualone on December 21, 1976. On the morning of May 2, 1977, the grand jury returned a superseding indictment which was identical to the original except that it included a fourth count charging appellant and one Stuart First with conspiracy to possess and distribute approximately 129,300 tablets of methaqualone from October 22, 1976 through January 10, 1977. It was agreed that the trial on the first three counts would begin that day and that the conspiracy count would be severed. 4

I. THE POSSESSION TRIAL

  1. The Evidence Relating to the November 1976 Transactions (Counts I and II)

    The Government's principal witness was Michael Cantor, who in return for his cooperation, had been allowed to plead guilty to a violation carrying a maximum penalty of four years' imprisonment and a $30,000 fine.

    Cantor testified that he met Annette Boney in October 1976 in Dallas, Texas, while traveling as a salesman for a sweater manufacturer. Boney, who lived in Dallas, was working for one Stuart First, the manufacturer's sales representative in Texas. Appellant reportedly offered to supply Cantor with any quantity of qualudes that he wanted, and agreed to sell him twenty thousand tablets for between $1.95 and $2.00 a tablet.

    On October 28 or 29, 1976, Annette Boney and Stuart First arrived in New York and provided Cantor with two suitcases of qualudes in exchange for $39,000 in cash.

    Boney subsequently agreed to sell an additional forty thousand tablets to Cantor for $68,000, and on November 16, Boney arrived at Cantor's apartment with sixty thousand tablets. Robert Goldman, a friend of Cantor's, testified that he was in Cantor's apartment when Boney arrived with two suitcases containing qualudes. Counts One and Two of the indictment were based on the November 16 transaction. Appellant was acquitted on those counts.

  2. The Evidence on the December Transactions (Count Three)

    Cantor was arrested by agents of the Drug Enforcement Administration on December 20, 1976, and began cooperating with the Government immediately. On December 21, Cantor recorded a telephone call from Boney, during which she told Cantor that she had sent him 25,600 qualudes by Emery Air Freight and that they could be picked up at John F. Kennedy International Airport. Boney stated that the "samples" were in a suitcase addressed to him in the care of his company. The tape recording of that conversation was played for the jury. After receiving the phone call, Cantor and agents of the Drug Enforcement Administration went to Kennedy Airport where they took custody of the suitcase. It contained approximately 25,350 methaqualone tablets.

    On December 28, Cantor told appellant in another telephone conversation that the pills which he picked up from the airport had been stolen from him and someone named Jerry, and that consequently he was unable to pay her the agreed price of $50,000.

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    The recording of that conversation was also played for the jury.

    On January 4, 1977, Cantor recorded another telephone conversation with appellant, in which he again related his efforts to raise the $50,000. That recording was also played for the jury.

  3. "Constructive Possession" (Count Three)

    Count Three of the indictment charged that "on or about the 21st day of December 1976, within the Eastern District of New York, at John F. Kennedy International Airport, Jamaica, Queens, New York, the defendant Annette Boney did knowingly and intentionally possess with intent to distribute approximately 20 kilograms of Methaqualone, a Schedule II controlled substance". It is agreed that appellant did not physically possess the controlled substance in the Eastern District of New York. The court charged that the jury could find that appellant was in "constructive possession" of the methaqualone under the test set forth in the margin. 5

    Appellant contends that the evidence did not establish her constructive possession of the methaqualone in the Eastern District of New York, and that the charge incorrectly stated the law on "constructive possession".

    On the morning of the trial and before it began, the Assistant U.S. Attorney explained the Government's theory of venue. He stated that, though appellant was "in Texas," she had constructive possession of the pills when she had them shipped to New York by air freight and when they arrived at Kennedy Airport. Despite this clear explanation of the basis for the venue laid, appellant failed to move to dismiss the indictment for lack of venue. Judge Mishler construed this as a waiver of any objection to venue. We agree. United States v. Price, 447 F.2d 23, 27 (2d Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971).

    It is, of course, true that the Government bears the burden of proving venue as an essential element of its case. This burden, imposed by Article III, Section 2 of the Constitution, that "such Trial shall be held in the State where the said Crimes shall have been committed" is founded upon the highest considerations of fairness in the administration of criminal justice. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944). As Judge Lumbard wrote in United States v. Rivera, 388 F.2d 545 (2d Cir.), cert. denied, 392 U.S. 937, 88 S.Ct. 2308, 20 L.Ed.2d 1396 (1967), "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 to the defendant." 388 F.2d at 548. Thus, waiver of an objection to venue is not to be lightly inferred. United States v. Price, supra, 447 F.2d at 27; United States v. Gross, 276 F.2d 816, 819 (2d Cir.), cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960).

    In this case, however, appellant made several pretrial motions but failed to object to venue. Nor did she make a motion to dismiss for lack of venue at the close of the Government's case, although she did make a general motion for a directed verdict of acquittal. That constitutes waiver. United States v. Rivera, supra, 338 F.2d at 548; United States v. Price, supra, 447 F.2d at

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    27. Indeed, appellant does not seriously argue that she preserved an objection to venue. 6 She contends rather that, because the Government failed to establish her constructive possession of the methaqualone in the Eastern District, no crime was proven. On that ground, she submits, the motion for acquittal should have been granted. 7

    Appellant contends that she did not have constructive possession over the methaqualone because she lost the power to control its disposition when she turned it over to Emery Air Freight, a common carrier. In appellant's view, the sale to Cantor was complete when she gave the luggage to the carrier.

    Appellant submits further that the outcome of the criminal case should be determined by the Federal Bills of Lading Act, 49 U.S.C. § 81 et seq. She argues that, under the Act, when the goods shipped are "assigned" to a specified person, and the bill of lading issued by the carrier is a non-negotiable straight bill, the consignee is deemed to acquire title to the goods upon shipment, citing G.A.C. Commercial Corp. v. Wilson, 271 F.Supp. 242, 245-46 (S.D.N.Y.1967). Finally, appellant suggests, somewhat paradoxically, that because the contraband was actually picked up at the airport by government agents, who had it under their control, she could not have been in constructive possession.

    Neither party has cited a case...

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