U.S. v. Ahumada-Avalos, AHUMADA-AVALO

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before PREGERSON, BOOCHEVER and NOONAN; PER CURIAM
• Citation: 875 F.2d 681
• Decision Date: 22 May 1989
• Docket Number: AHUMADA-AVALO,D,No. 88-3100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvadorefendant-Appellant.

Page 681

875 F.2d 681 UNITED STATES of America, Plaintiff-Appellee,
v.
Salvador AHUMADA-AVALOS, Defendant-Appellant. No. 88-3100. United States Court of Appeals,
Ninth Circuit. Argued and Submitted April 6, 1989.
Memorandum April 20, 1989.
Opinion May 22, 1989.

Page 682

Thomas E. Cooney, Spokane, Wash., for defendant-appellant.

James E. Shively, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before PREGERSON, BOOCHEVER and NOONAN, Circuit Judges.

PER CURIAM:

Defendant-appellant Salvador Ahumada-Avalos was convicted and sentenced to ten years in prison in the Eastern District of Washington for participating in the sale and distribution of over 500 grams of cocaine. The sale was consummated in Idaho. The government obtained evidence identifying Ahumada-Avalos and linking him to criminal conduct by subpoenaing telephone company records of toll calls made from an unlisted telephone number.

Ahumada-Avalos contends that the district court erred (1) in not instructing the jury that in a multi-district conspiracy case, an overt act must occur in the district where the case was tried; (2) in not dismissing the distribution count of the indictment when the indictment failed to allege that the act of distribution occurred in the Eastern District of Washington, where the case was tried; and (3) in denying his motion to suppress evidence gained from telephone toll records subpoenaed by the government. Additionally, he argues that the application of the enhanced mandatory minimum penalty sentencing amendment to 21 U.S.C. Sec. 841 based on convictions that occurred before the amendment's enactment violated the ex post facto clause of the Constitution.

Ahumada-Avalos's contentions lack merit. We therefore affirm his conviction.

Ahumada-Avalos argues that in his multi-district conspiracy case the jury should have been instructed that an overt act of the conspiracy must have occurred in the Eastern District of Washington, because that was the district in which he was tried. Whether jury instructions misstate elements of a statutory crime is a question of law subject to de novo review. United States v. Douglass, 780 F.2d 1472, 1475 (9th Cir.1986).

Ahumada-Avalos miscomprehends the law. 18 U.S.C. Sec. 3237 states that the offense of conspiracy may be prosecuted in any district in which the offense began, continued, or was completed. The seminal case in this area is Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912), which held that in a conspiracy case venue properly lies either where the conspiracy was formed or where an overt act in furtherance of the conspiracy was performed. Ahumada-Avalos's reliance on United States v. Williams, 536 F.2d 810 (9th Cir.1976), cert. denied, 429 U.S. 839, 97 S.Ct. 110, 50 L.Ed.2d 106 (1976), is misplaced. Williams stated that venue is

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proper where the overt act occurred; it did not hold that venue is proper only where the overt act occurred.

Next, Ahumada-Avalos argues that Count II of the indictment is invalid under 18 U.S.C. Sec. 3237. ¹ because it does not allege that some act of drug distribution occurred in the Eastern District of Washington. He contends that the indictment alleges only that he travelled in interstate commerce from the Eastern District of Washington to Idaho, where he began, continued, and completed his involvement in unlawful narcotics distribution.

We review the sufficiency of an indictment de novo. United States v. Benny, 786 F.2d 1410, 1414 (9th Cir.1986), cert. denied, 479 U.S....