U.S. v. Carpenter, No. CRIM. 04-10029-GAO.

• Decision Date: 15 December 2005
• Docket Number: No. CRIM. 04-10029-GAO.
• Citation: 405 F.Supp.2d 85
• Parties: UNITED STATES of America, v. Daniel E. CARPENTER.
• Court: U.S. District Court — District of Massachusetts

405 F.Supp.2d 85

UNITED STATES of America, v. Daniel E. CARPENTER.

No. CRIM. 04-10029-GAO.

United States District Court, D. Massachusetts.

December 15, 2005.

COPYRIGHT MATERIAL OMITTED

Jonathan F. Mitchell, United States Attorney's Office, Michael J. Pineault, United States Attorney's Office, Boston, MA, for USA, Plaintiff.

Alan M. Dershowitz, Harvard Law, Cambridge, MA, Evan Georgopoulos, A. John Pappalardo, Greenberg Traurig, LLP, Boston, MA, Robert M. Goldstein, Edward A. McDonald, Dechert LLP, Richard S. Order, Axinn, Veltrop & Harkrider LLP, Jack E. Robinson, Clearwater House, Martin G. Weinberg, Oteri, Weinberg & Lawson, for Daniel E. Carpenter, Defendant.

MEMORANDUM AND ORDER

O'TOOLE, District Judge.

Daniel E. Carpenter was tried on an indictment charging him with fourteen counts of wire fraud in violation of 18 U.S.C. § 1343 and five counts of mail fraud in violation of 18 U.S.C. § 1341. The jury returned a verdict finding Carpenter guilty under all counts.

Following the trial, Carpenter timely filed a renewed motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) and an alternative motion for a new trial pursuant to Fed. R Crim. P. 33. This memorandum and order addresses both motions.

I. The Motion for Judgment of Acquittal

Carpenter's original motion for entry of a judgment of acquittal asserted three reasons why he was entitled to that relief: (1) the government had failed to disprove his good faith; (2) the proof at trial amounted to a variance from or a constructive amendment of the indictment; and (3) the evidence was insufficient as a matter of law to sustain the guilty verdicts. In his reply brief to the government's opposition, he refined the last ground by arguing specifically that the evidence was insufficient to prove that he had "caused" the mailings or wire transmissions alleged in the indictment. He also asserted in the reply that a judgment of acquittal is required because the evidence at trial did not support venue for the trial of the indictment in this District.

A. Venue

Carpenter has persistently maintained an objection to venue in this District. In his Rule 29 motion, he repeats his previous substantive objection and adds a procedural one: the question should have been put to the jury.

As to the procedural point, there is no controlling law in this Circuit. Carpenter points to decisions in other Circuits where various statements have been made about the necessity or propriety of submitting factual disputes about venue to the trial jury. It has been said, for example, that venue is a question of fact which ordinarily must be submitted to the jury. See United States v. Miller, 111 F.3d 747, 749 (10th Cir.1997).

That statement, however, incorporates two distinct propositions: (1) that the determination of venue depends on the resolution of disputed facts, and (2) that resolution must be done by a jury, not a judge. The first proposition, as stated, is undoubtedly overbroad, because not all venue determinations involve factual disputes; many require only a conclusion as to whether venue is proper, the facts being undisputed. See, e.g., United States v. Palma-Ruedas, 121 F.3d 841, 848 (3d Cir. 1997); United States v. Baxter, 884 F.2d 734, 736 (3d Cir.1989); see also United States v. Perez, 280 F.3d 318, 322 (3d Cir.2002) ("In Baxter and Palma-Ruedas, we could rule as a matter of law because the necessary facts were established and only the legal question of how broadly we would define venue remained."). But more importantly for the present controversy, it is by no means clear that the second proposition must necessarily follow from the first, even where the underlying facts on which venue will be determined are vigorously disputed by the parties. In other words, characterization of an issue as involving the determination of facts does not automatically mean it is a matter to be decided by a jury. Some factual disputes, such as disputes about the predicate for the admission of evidence, for example, are typically (with some exceptions) resolved by the judge. See Fed. R.Evid. 104(a). But see, id. 104(b). See also Blake v. Pellegrino, 329 F.3d 43, 47-48 (1st Cir.2003) (judge resolves "foundational facts"). Moreover, as a practical matter, the judicial resolution of a factual dispute raised by a pretrial motion to dismiss or to suppress evidence often serves as the crucial turning point on the road to either conviction or acquittal.

If identifying a factual dispute about venue does not by itself compel the conclusion that the issue must be presented to a jury, what else might? Is the question required to go to a jury because proper venue is ultimately a constitutional right? See U.S. Const. art. III, § 2, cl. 3; id., amend. VI. Not necessarily. Fact disputes arising with respect to other fundamental constitutional rights — such as whether there has been an unreasonable search or seizure or whether the assistance of counsel has been effectively provided — are routinely resolved by judges, not juries. The constitutional character of the right therefore does not determine whether the decision-maker should be a judge or a jury.

Some cases from other Circuits suggest that venue is effectively an "element" of the offense and then apply the rule that the jury must resolve all factual disputes concerning elements of the offense. See United States v. Record, 873 F.2d 1363, 1366 (10th Cir.1989) ("Venue in criminal cases is an element of the prosecution's case...."); United States v. Winship, 724 F.2d 1116, 1124 (5th Cir.1984) ("Venue is an element of any offense."). In this Circuit, however, it has been plainly held that venue is not to be regarded as an element of the offense. See United States v. Georgacarakos, 988 F.2d 1289, 1293 (1st Cir. 1993) (citing United States v. Hall, 691 F.2d 48, 50 (1st Cir.1982)). Even without this circuit precedent, the idea that venue is an element of an offense is not compelling. There is no question that the burden rests with the prosecution to establish that venue for the trial is proper, and in this regard it may be correct to call proof of proper venue an element of the prosecution's case. See, e.g., Miller, 111 F.3d at 749-50 ("Venue in federal criminal cases is an element of the prosecution's case....") (quoting Record, 873 F.2d at 1366). Strictly speaking, however, venue is not regarded, even in other circuits, as an element of the crime.

Cases that refer to venue as an "element" of the offense seem to recognize that it is actually more like an isotope; it is not exactly like the other real, or "substantive," elements. See United States v. Perez, 280 F.3d at 330 ("[T]he term `element' lacks its usual force in the context of venue.... When courts describe venue as an element, they often distinguish it from `substantive' or `essential' elements.") (citing cases); Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir.1981) ("Venue is, of course, unlike the substantive facts which bear on guilt or innocence in the case. Venue is wholly neutral; it is a question of procedure, more than anything else, and it does not either prove or disprove the guilt of the accused."). Unlike the rights to trial by jury, assistance of counsel, or confrontation of accusers, for example, the right to a trial in the proper venue can be waived — or more precisely, forfeited¹ — by the mere omission to claim it. See Miller, 111 F.3d at 750; Winship, 724 F.2d at 1124. Similarly, although it is ordinarily error for a court to omit to instruct the jury as to a substantive element of the offense even in the absence of a request for an instruction, the failure to request an instruction on venue ordinarily means that the issue is simply bypassed. See United States v. Haire, 371 F.3d 833, 839 (D.C.Cir.2004). But perhaps the most striking difference between the venue "element" and the substantive "elements" is that venue may be proved by just a preponderance of the evidence, rather than by proof beyond a reasonable doubt. See United States v. Salinas, 373 F.3d 161, 163 (1st Cir.2004). If the standard of proof for the venue "element" may be different from the standard of proof for the substantive elements of the offense, why may not the identity of the fact finder for that "element" be different as well?

It is undeniable that many cases can be found that seem to require the submission of the question of venue to the jury, at least in some circumstances. What is generally lacking is an explanation of why submission of the question is required, as distinguished from simply being permitted. Instead, the statements indicating that venue must be submitted to the jury seem often the product of reflex or habit, rather than decision. Here is an illustration. In United States v. Grammatikos, 633 F.2d 1013 (2d Cir.1980), the Second Circuit stated flatly: "Where the defense[] of ... improper venue [is] squarely interposed, [it] must be submitted to a properly instructed jury for adjudication." Id. at 1022 (emphasis added). The court cited its prior case of United States v. Rodriguez, 465 F.2d 5, 8-9 (2d Cir.1972) as authority for the stated proposition. Rodriguez stands as an example of a case where the issue was in fact submitted to the jury, but it is not authority for the proposition that it must be so submitted. The trial court in Rodriguez had submitted the question of venue to the jury. The government argued two alternate theories in support of a finding that venue was proper. On appeal, the court concluded that one theory was proper but that the other — that the offense in question was a continuing offense within the meaning of 18 U.S.C. § 3237, making venue proper in more than one district — was unavailable as a matter of law. Because it could not be determined which venue theory had persuaded the jury, the verdict was set aside and the case remanded. Whether or why submission of venue issues to the jury was required was not addressed by the Rodriguez court. So...