823 F.3d 299 (5th Cir. 2016), 13-40219, United States v. Romans

Docket Nº:13-40219
Citation:823 F.3d 299
Opinion Judge:JAMES L. DENNIS, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. JAMES R. ROMANS, also known as Red; BAJUNE MOSEBY, also known as Junebug; KEVIN HARDEN, also known as Keisha; TERRANCE BOOKER, also known as T. B., Defendants - Appellants
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Terri Lynn Hagan, Assistant U.S. Attorney, Jay R. Combs, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Plano, TX. For JAMES R. ROMANS, also known as Red, Defendant - Appellant: James Patrick Whalen, Whalen Law Offic...
Judge Panel:Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT, District Judge.[*] GREGG COSTA, Circuit Judge, specially concurring:
Case Date:May 19, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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823 F.3d 299 (5th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

JAMES R. ROMANS, also known as Red; BAJUNE MOSEBY, also known as Junebug; KEVIN HARDEN, also known as Keisha; TERRANCE BOOKER, also known as T. B., Defendants - Appellants

No. 13-40219

United States Court of Appeals, Fifth Circuit

May 19, 2016

Petition for certiorari filed at, 07/06/2016

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Appeals from the United States District Court for the Eastern District of Texas.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Terri Lynn Hagan, Assistant U.S. Attorney, Jay R. Combs, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Plano, TX.

For JAMES R. ROMANS, also known as Red, Defendant - Appellant: James Patrick Whalen, Whalen Law Office, Plano, TX.

For BAJUNE MOSEBY, also known as Junebug, Defendant - Appellant: Tiffany Alex Talamantez, Sorrels, Udashen & Anton, Dallas, TX.

For KEVIN HARDEN, also known as Keisha, Defendant - Appellant: Jeffrey Michael Brandt, Robinson & Brandt, P.S.C., Covington, KY.

For TERRANCE BOOKER, also known as T. B., Defendant - Appellant: Mark A. Perez, Attorney, Dallas, TX.

Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT, District Judge.[*]

OPINION

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JAMES L. DENNIS, Circuit Judge

The defendants, James Romans, Bajune Moseby, Kevin Harden, and Terrance Booker, were convicted by a jury of conspiracy to possess with the intent to distribute 1,000 kilograms or more of marijuana, 21 U.S.C. § 846. The district court sentenced Romans to life imprisonment; Moseby to 293 months' imprisonment; Harden to 360 months' imprisonment; and Booker to 280 months' imprisonment. For the following reasons, the convictions of all of the defendants, and the sentences of Harden, Booker, and Romans, are affirmed,

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but Moseby's sentence is vacated, and his case is remanded for resentencing consistent with this opinion.

I.

In 2006, James Romans and Eric Pieper began running a marijuana distribution operation in Indianapolis, Indiana. Initially, Pieper bought 1,000 pounds of marijuana every week from the Mexican supplier Cruz López Acevedo (" López" ) for distribution. Trucks brought the marijuana into the U.S. from Mexico in 22-pound boxes, which were lined with carbon paper to conceal the drug's odor; the shipments were delivered to two warehouses and a storage yard in Indianapolis, where the marijuana was then transported to stash houses for sorting and repackaging for distribution. Pieper and Romans shared the associated expenses and split the resulting profits equally. Their operation involved a number of other people, divided into two groups: Pieper was responsible for one group, which included Terrance Booker, Kevin Harden, and Bajune Moseby, while Romans was responsible for the other group, which included Gary Hanley, Michael Smith, Matthew White, and Jeremy Martin. One of Pieper's close friends, Dale Zigler, was responsible for collecting drug proceeds from other members of the organization. After Pieper moved to Burleson, Texas, a suburb of Fort Worth, in 2009, Zigler continued to collect the drug proceeds in Indianapolis and delivered them by car to Pieper in Texas.

Romans was arrested by Indiana law enforcement in August 2010. A search warrant on his residence yielded $24,000, two loaded .45 caliber Springfield Armory hand guns, and a loaded Glock 357 handgun. According to the agent executing the search, the Glock was in the kitchen on top of a drug ledger. Romans entered a guilty plea to state charges of financing the delivery of over 10 pounds of marijuana and was sentenced, on October 7, 2010, to probation. Pieper testified that two weeks after Romans' arrest, while Romans was on work release, he called Pieper and said that he " was hurting really bad, and that he wanted to get back going again." Romans reportedly told Pieper that he would pay cash for marijuana and that the members of his group were waiting to buy marijuana from him. Because " everybody was . . . skeptical about messing with him" and thought he might be cooperating with the government, Pieper testified that he refused to do business with Romans.

In November 2010, Pieper decided to promote Moseby and Harden within the organization. Pieper, Moseby, and Harden met in Texas and attended a professional boxing match in Dallas. Ultimately, the men agreed that Pieper and Moseby would each receive 35 percent of the profits from the drug trafficking business, while Harden would receive 30 percent. During the trip, the men bought new cellphones and drove to Frisco, Texas--in the Eastern District--where Pieper was planning to move. On December 31, 2010, Zigler flew from Indianapolis to Dallas-Fort Worth to help Pieper move to Frisco; he brought $9,000 in drug proceeds with him. Two weeks later, on January 13, 2011, Zigler again flew to Texas to help Pieper finish the move from Burleson to Frisco. On this trip, Zigler brought drug proceeds that he had collected from Harden.

The Indiana police and the DEA began collecting information about the organization practically at its inception. On January 25, 2007, Moseby and four other men convened in a truck stop in Indianapolis to meet a semi-truck--driven by an undercover DEA agent--which contained a shipment of 1,000 pounds of marijuana sent by López. Moseby watched as two of the

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men transferred the shipment from the truck to a Chevrolet Tahoe; he then picked the two men up in his own vehicle and followed the Tahoe, driven by a third man, out of the truck stop. Indiana State Police soon pulled over the Tahoe and later stopped and identified Moseby. On September 16, 2010, police in Indianapolis stopped a white van driven by Delores Jose Montes-Venegas, one

of López's runners. The van had previously been seen at Romans's and Harden's houses. When the officer approached, he noticed the strong odor of raw marijuana and noted that Montes-Venegas was very nervous and sweating profusely. Police searched the van and found 89 apparently identical boxes--lined with carbon paper--each containing two 11-pound bundles of marijuana. Appellant Booker also had multiple encounters with law enforcement, culminating in a December 30, 2010, traffic stop during which an officer from the Speedway Police Department in Indiana found five Ziploc bags of marijuana, weighing roughly five pounds, in Booker's vehicle. Booker told the responding detective that he recently received the marijuana from other members of the conspiracy and intended to sell it for $850 per pound.

On June 8, 2011, an indictment was filed against Romans, Moseby, Harden, Booker, and 12 other individuals in the United States District Court for the Eastern District of Texas. A superseding indictment was filed on January 11, 2012. Several of the charged individuals, including Eric Pieper and his brother, Michael Pieper, pleaded guilty to conspiracy charges and did not go to trial but became government witnesses against the other co-conspirators. In September 2012, after a trial, a jury convicted Romans, Moseby, Harden, and Booker of conspiracy to possess with the intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846, as charged in Count One of the superseding indictment. Thereafter, on February 24, 2013, the district court sentenced Romans to life imprisonment, Moseby to 293 months' imprisonment, Harden to 360 months' imprisonment, and Booker to 280 months' imprisonment.

II.

On appeal, Romans, Moseby, Harden, and Booker contend that the district court erred in denying their motions for judgment of acquittal based on the argument that venue was improper in the Eastern District of Texas. When a venue challenge is properly preserved by a motion for judgment of acquittal, we review the district court's ruling de novo. United States v. Thomas, 690 F.3d 358, 368 (5th Cir. 2012). After considering the evidence in the light most favorable to the verdict, we will affirm where " a rational jury could conclude 'that the government established venue by a preponderance of the evidence.'"' Id. (quoting United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009)); see also United States v. White, 611 F.2d 531, 536 (5th Cir.), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849 (1980) (" This Circuit has not treated territorial jurisdiction and venue as 'essential elements' in the sense that proof beyond a reasonable doubt is required." ).

The general statute that seeks to clarify venue in the case of multi-district crimes is 18 U.S.C. § 3237. It provides that any offense begun in one district, but completed in another, or committed in more than one district, may be prosecuted in any district in which the offense was begun, continued, or completed. 18 U.S.C. § 3237(a). Thus, " [v]enue can be based on evidence of any single act that initiated, perpetuated, or completed the crime, and circumstantial evidence suffices to establish venue." Thomas, 690 F.3d at 369. In

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conspiracy cases, " venue is proper in any district where the agreement was formed or an overt act occurred." United States v. Caldwell, 16 F.3d 623, 624 (5th Cir. 1994). As we noted in Caldwell, " [t]he Supreme Court has upheld the application of this rule, even where it permits trial against defendants in a district they never even set foot in prior to trial."' Id. at 624 (citing Hyde v. United States, 225 U.S. 347, 362, 32 S.Ct. 793, 56 L.Ed. 1114 (1912)). " An overt act is an act performed to effect the object...

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