U.S. v. Davis

Decision Date22 January 1982
Docket NumberNo. 80-7329,80-7329
Citation666 F.2d 195
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Aubrey Baker DAVIS, Jr., a/k/a Junior Baker Davis, a/k/a Baker Davis, and Margaret Davis, Defendants-Appellants. . Unit B *
CourtU.S. Court of Appeals — Fifth Circuit

Muller & Kirkconnell, Chandler R. Muller, Warren W. Lindsey, Winter Park, Fla., for defendants-appellants.

Miriam D. Wansley, Asst. Atty. Gen., Macon, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before RONEY, VANCE and RANDALL, Circuit Judges.

VANCE, Circuit Judge:

Aubrey Baker Davis, Jr., Margaret Davis, their daughter Sandra Davis Yeagley and Franklin Daly Cochran were indicted in November 1979 in the Middle District of Georgia. Count I charged them with conspiracy to possess with intent to distribute and conspiracy to distribute methaqualone in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count II charged Mr. Davis and Cochran with possession with intent to distribute methaqualone in violation of 21 U.S.C. § 841(a)(1) and charged Mrs. Davis and Yeagley with aiding and abetting in violation of 18 U.S.C. § 2. Count III charged Cochran with traveling in interstate commerce to carry on an unlawful business enterprise in violation of 18 U.S.C. §§ 1952(a) (3) and 1952(b)(1) and charged Mr. Davis, Mrs. Davis and Yeagley with aiding and abetting in violation of 18 U.S.C. § 2. Yeagley was acquitted on all charges. Mrs. Davis was found guilty on Counts I and II and was sentenced to two concurrent five year terms, to be followed by a special parole term of ten years on Count II. The court required her to serve six months, suspended the balance, and placed her on probation for a period of five years. Mr. Davis and Cochran were found guilty on all three counts, and Mr. Davis was sentenced to three concurrent five year sentences, to be followed by a special parole term of ten years on Count II. The Davises appeal, asserting the following points of error: (1) the evidence was insufficient to establish venue in the Middle District of Georgia for the conspiracy count and the travel act count; (2) venue was not properly laid in the Middle District of Georgia for the possession count because the drugs never entered the Middle District of Georgia; (3) the evidence was insufficient to convict Mrs. Davis of conspiracy and possession; and (4) the evidence was insufficient to establish a business enterprise between Mr. Davis and Cochran within the meaning of 18 U.S.C. § 1952(b)(1).

During the first part of November 1979 Cochran met John Mercer, an undercover agent for the Macon-Bibb County Drug and Vice Unit. Mercer negotiated with Cochran for the purchase of a large quantity of methaqualone, or quaaludes, which Cochran indicated would be supplied by a "Florida connection." Mercer recorded most of the personal and telephonic conversations with a body wire or a telephone recorder. After making several unsuccessful calls between November 7 and November 9, Cochran talked to his Florida connection five times between November 10 and November 13. Telephone records indicate that Cochran called the Davis residence on each of those occasions. In addition, on November 13 Mercer overheard Cochran place a person-to-person call to Mr. Davis. 1 On November 14, after the price and quantity of drugs had been agreed upon, Mercer and Cochran traveled from Georgia to the Davis residence in Winter Park, Florida. During the trip Cochran named Mr. Davis as his Florida connection. The final details of the drug transaction were discussed at the Davis home while both Mr. and Mrs. Davis were present. The conversation largely concerned where Cochran and Mercer would be staying and how they could give Mr. Davis their motel and telephone numbers without using the Davis telephone, which Mr. Davis thought was tapped. Mrs. Davis suggested relaying the information through her daughter, Sandra Yeagley. Later that day Mrs. Davis and her daughter rented the car to be used in the drug transaction. The next day Mercer, Cochran and Mr. Davis met at a Holiday Inn in Sanford, Florida. Mr. Davis told Mercer he had 26,000 quaaludes that he brought from Miami after Cochran arrived in Florida, and an exchange of money took place. Cochran and Mr. Davis were arrested and the rented car containing the drugs was confiscated. Fingerprint comparisons showed that Mr. Davis' fingerprints were on the box containing the drugs, which were later positively identified as methaqualone.

I. VENUE

The Davises raise two challenges to venue in this appeal. First, they assert that the district court erred in denying their motion for judgment of acquittal on the conspiracy count and travel act count because the evidence presented by the government was insufficient to establish venue in the Middle District of Georgia. Second, they assert that the district court erred in denying their motion for judgment of acquittal on the possession count because the methaqualone was never in Georgia. Venue may properly be laid in one district with respect to one count of an indictment, but still be improper with respect to the other counts. See generally United States v. Polizzi, 500 F.2d 856, 899 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975). In this case we conclude that venue was proper with respect to the conspiracy and travel act counts of the indictment, but not with respect to the possession count.

The right of criminal defendants to be tried in the state and district in which the crime was committed is guaranteed by article III 2 of and the sixth amendment 3 to the United States Constitution and rule 18 of the Federal Rules of Criminal Procedure. 4 Conspiracy, possession with intent to distribute methaqualone and traveling in interstate commerce to carry on an unlawful business enterprise involving possession with intent to distribute methaqualone are continuing offenses 5 which under 18 U.S.C. § 3237 6 may be tried in any district in which the crime took place. See, e.g., United States v. Cooper, 606 F.2d 96, 97 (5th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980) (conspiracy); United States v. Guinn, 454 F.2d 29, 33 (5th Cir.), cert. denied, 407 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 685 (1972) (travel act); United States v. Polizzi, 500 F.2d at 899 (travel act); United States v. Barnard, 490 F.2d 907, 911-12 (9th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974) (possession). As this court has recognized, although

the burden of proving that the crime occurred in the district of trial is squarely on the prosecution, United States v. Luton, 486 F.2d 1021, 1022-23 (5th Cir. 1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974), the prosecution is not required to meet the reasonable doubt standard applicable to all substantive elements of an offense. Rather, "(t)he prosecution need only show by a preponderance of the evidence that the trial is in the same district as the criminal offense... Further, there need not be direct proof of venue where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid." United States v. Turner, 586 F.2d 395, 397 (5th Cir. 1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 480 (1979). If the Government shows by a preponderance of the evidence that the crime was committed in the trial district, both territorial jurisdiction and proper venue are established. United States v. Luton, 486 F.2d at 1022-23; Cauley v. United States, 355 F.2d 175, 176 (5th Cir.), cert. denied, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966). The question for this court, then, is whether, viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the jury verdict, United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, (469) 86 L.Ed. 680 (1942); United States v. Wieschenberg, 604 F.2d 326, 330 (5th Cir. 1979), the Government proved by a preponderance of the evidence that the (crimes) occurred within the Middle District of (Georgia).

United States v. White, 611 F.2d 531, 534-35 (5th Cir.), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849 (1980).

Conspiracy

The Davises assert that there is insufficient proof that either knowingly joined in a conspiracy with Cochran while he was in Georgia because the government offered no direct evidence, only inference based on Cochran's remarks to Mercer about negotiations concerning the methaqualone purchase. This argument must fail. The government is not required to offer direct evidence of venue. United States v. White, 611 F.2d at 534-35; United States v. Turner, 586 F.2d 395, 397 (5th Cir. 1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 480 (1979). Here the circumstantial evidence as a whole supports the inference that the crime was committed in the trial district. See, e.g., United States v. Durades, 607 F.2d 818, 820 n.1 (9th Cir. 1979); United States v. Barnard, 490 F.2d at 910; United States v. Williams, 536 F.2d 810, 812 (9th Cir.), cert. denied, 429 U.S. 839, 97 S.Ct. 110, 50 L.Ed.2d 106 (1976).

Mrs. Davis makes the additional argument that she was improperly tried in Georgia because the government did not prove that she joined the conspiracy before Cochran and Mercer arrived in Florida. We disagree. Since the prior actions of coconspirators in furtherance of the conspiracy are attributable to one who later joins the conspiracy, the conversations between Cochran and Mr. Davis and Cochran's drive through the Middle District of Georgia on his way to obtain the contraband methaqualone are attributable to Mrs. Davis. United States v. Wilson, 500 F.2d 715 at 727 (5th Cir. 1974), cert. denied, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975). The actions of Mrs. Davis' coconspirators therefore serve to...

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