U.S. v. Georgacarakos

Decision Date07 January 1993
Docket NumberNo. 92-1890,92-1890
PartiesUNITED STATES, Appellee, v. Peter N. GEORGACARAKOS, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Seth M. Kalberg, Jr., Boston, MA, for appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Jonathan Chapman, Asst. U.S. Atty., Portland, ME, were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

The defendant, Peter N. Georgacarakos, appeals his conviction of possession with intent to distribute and distribution of cocaine on the grounds that the district court's jury instructions on venue were erroneous, and that his defense was flawed by the ineffective assistance of counsel. We decline to consider the defendant's ineffective assistance claim which was not raised before the district court. The jury instructions on venue, to which defendant-appellant now objects, were not objected to after the charge as required by Fed.R.Crim.P. 30. We find that the instructions did not constitute plain error and affirm the conviction.

I. BACKGROUND

During October, 1991, Frank "Tony" Porcaro agreed to cooperate with the Drug Enforcement Administration ("DEA") office and the South Portland Police Department in Maine on supervised undercover drug purchases from drug dealers. In his role as an undercover informant, Porcaro contacted the defendant, whom he had known for several months, and asked the defendant to help him purchase cocaine. Porcaro told the defendant that he owed money to dangerous people, that he had resorted to desperate methods to get money for repayment, and that he had to get cocaine in order to pay them back. After several calls from Porcaro, the defendant agreed to help him buy cocaine. The DEA and South Portland police instructed and supervised Porcaro in the undercover operation, and provided Porcaro with all necessary equipment including substantial amounts of money for the cocaine purchases and a "body wire" recording device to record his conversations with the defendant.

The defendant and Porcaro made two trips to Lawrence, Massachusetts, one on October 25 and the other on November 15, 1991, to purchase cocaine. On both days, the defendant called his source in Lawrence before he and Porcaro began their journey. Porcaro drove borrowed cars on both trips and the defendant was the only passenger. The defendant admits that he purchased cocaine with Porcaro's money and then gave the cocaine to him. He testified at trial and argues on appeal that he purchased and gave the cocaine to Porcaro in Massachusetts. Porcaro testified to the contrary that on both occasions the defendant kept the cocaine until they reached their destinations in Maine. Porcaro testified that on October 25, the defendant kept the cocaine in his pants until they reached Scarborough where he handed Porcaro the cocaine wrapped in a napkin. As to the November 15 trip, Porcaro testified that the defendant again kept the cocaine during the trip back to Maine and that he never saw the cocaine. Porcaro testified that he drove to a prearranged meeting place, a motel parking lot in South Portland. In the parking lot, Porcaro got out of the car, and police and DEA agents surrounded the car. Two of the agents testified that they saw the defendant moving and leaning forward toward the dashboard before he put his hands up as ordered. The agents found a package of cocaine in the glove compartment of the car after the defendant was arrested.

Venue was the primary focus of the defense. Defense counsel objected to the district court's proposed jury instructions on venue before counsels' closing arguments to the jury and before the court gave the charge to the jury. When the court gave counsel an opportunity to object to the instructions after the charge and before the jury retired, defense counsel raised other issues, but did not object again to the instructions on venue. The jury found that venue was proper in Maine, and found the defendant guilty on both counts. This appeal followed.

II. ANALYSIS

The defendant raises two issues on appeal: (1) error in the district court's jury instructions on venue, and (2) ineffective assistance of counsel due to trial counsel's failure to pursue the defense of entrapment.

A. Jury Instructions on Venue

During the charge to the jury, the district court gave instructions on venue which the defendant claims are contrary to the law because they allowed the jury to take an impermissibly broad view of conduct relevant to proving venue.

Proper venue in a criminal prosecution is a constitutional right:

the Framers wrote into the Constitution that "The Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed ..." Article III, § 2, cl. 3. As though to underscore the importance of this safeguard, it was reinforced by the provision of the Bill of Rights requiring trial "by an impartial jury of the State and district wherein the crime shall have been committed." Sixth Amendment.

United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944); see also Fed.R.Crim.P. 18. If the federal statute defining the crime charged does not indicate a method for determining the location of the crime for venue, the location "must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). Because venue is not an element of the offense, the government bears the burden of proving venue by a preponderance of the evidence rather than by the higher standard, beyond a reasonable doubt. United States v. Hall, 691 F.2d 48, 50 (1st Cir.1982).

The defendant in this case was charged in two counts with violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C): Count One charged possession with intent to distribute and distribution of cocaine on October 25, 1991, and Count Two charged possession with intent to distribute on November 15, 1991. The statute does not indicate a method for determining venue. Continuing crimes, i.e., crimes committed in more than one district, are governed by 18 U.S.C. § 3237(a). 1 Distribution and possession with intent to distribute drugs are continuing crimes. United States v. Uribe, 890 F.2d 554, 558-59 (1st Cir.1989); United States v. Kiser, 948 F.2d 418, 425 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1666, 118 L.Ed.2d 387 (1992). Therefore, venue for the crimes prosecuted in this case was proper in any district where the crimes began, continued or were completed.

In order to decide where the crimes occurred, we must determine what acts by the defendant constituted the crimes charged. Johnston v. United States, 351 U.S. 215, 220-21, 76 S.Ct. 739, 742-43, 100 L.Ed. 1097 (1956). To determine venue, we examine "the key verbs in the statute defining the criminal offense" to find the scope of relevant conduct. United States v. Tedesco, 635 F.2d 902, 905 (1st Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981); see also United States v. Griffin, 814 F.2d 806, 810 (1st Cir.1987). The key verbs relevant to the crimes charged in this case are "distribute" and "possess with intent to distribute." Actions which are merely preparatory or prior to the crime are not probative in determining venue. United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1190 (2d Cir.), cert. denied sub nom., Lavery v. United States, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989). Therefore, only actions by the defendant which constitute either distributing or possessing with intent to distribute cocaine are probative in determining venue for those offenses. Griffin, 814 F.2d at 810; United States v. Davis, 666 F.2d 195, 200 (5th Cir. Unit B 1982). Jury instructions on venue must restrict the jury's focus to the defendant's conduct which constituted the crimes charged.

The jury instructions which the defendant challenges were as follows:

Now both counts charge that the crimes occurred in the district of Maine and elsewhere. It is sufficient if the government proves by a preponderance of the evidence, in other words, that it is more likely than not, that any act in furtherance of the crimes charged occurred in Maine. Offenses beginning in one district and completed in another or committed in more than one district may be prosecuted in either such district.

...

Let me summarize this for you. If you are convinced beyond a reasonable doubt that the defendant distributed cocaine and possessed cocaine with the intent to distribute it, on a date reasonably near October 25, 1991, and you are convinced that it is more likely than not that the defendant did any act in Maine in furtherance of this crime, then you must convict him on Count One. Otherwise, you must acquit him on Count One.

If [you] are convinced beyond a reasonable doubt that the defendant possessed cocaine with the intent to distribute it on a date reasonably near November 15, 1991, and you are convinced that it is more likely than not that the defendant did any act in Maine in furtherance of this crime, then you must convict him on Count Two. Otherwise, you must acquit him on Count Two.

Record at 461, 464 (emphasis added). The emphasized language, which is challenged by the defendant, appropriately describes venue for a conspiracy charge or for aiding and abetting others in commission of a crime. Uribe, 890 F.2d at 558; see also United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C.Cir.1991) ("It is a well-established rule that 'a conspiracy prosecution may be brought in any district in which some overt act in furtherance of the conspiracy was committed by any of the co-conspirators,' " (citation omitted)); United States v. Long, 866 F.2d 402, 407 (11th Cir.1989) (discussing similarity of proof necessary to...

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  • United States v. Tiangco
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    ...prosecuted in this case was proper in any district where the crimes began, continued or were completed." United States v. Georgacarakos , 988 F.2d 1289, 1293 (1st Cir. 1993) ; accord United States v. Ogbuehi , 1995 WL 112991 at *4 (E.D. Pa. March 14, 1995). "To satisfy the terms of this sta......
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    • United States
    • Journal of Criminal Law and Criminology Vol. 90 No. 3, March 2000
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