U.S. v. Delgado

• Decision Date: 19 September 1990
• Docket Number: No. 89-5504,89-5504
• Citation: 914 F.2d 1062
• Parties: UNITED STATES of America, Appellee, v. Pedro DELGADO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1062

914 F.2d 1062

UNITED STATES of America, Appellee, v. Pedro DELGADO, Appellant.

No. 89-5504.

United States Court of Appeals,

Eighth Circuit.

Submitted June 15, 1990.

Decided Sept. 19, 1990.

William E. Maxwell, Fargo, N.D., for appellant.

Dennis D. Fisher, Fargo, N.D., for appellee.

Before BEAM, Circuit Judge, ROSS, Senior Circuit Judge, and RENNER, ^* District Judge.

ROSS, Senior Circuit Judge.

Pedro Delgado appeals from the district court's ¹ order entered upon a jury verdict finding him guilty of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841, and conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. Delgado was sentenced to 78 months of imprisonment. On appeal, Delgado contends, among other things, that the trial court erred in (1) overruling his objections to venue on the possession count; and (2) denying his motion for judgment of acquittal based on insufficient evidence to convict. We affirm the conspiracy conviction and reverse the possession conviction because of improper venue.

FACTS

A conspiracy began in 1985 whereby cocaine was sent from Miami to Minneapolis for distribution in Fargo, North Dakota and Moorhead, Minnesota. A 23-count indictment charged 13 defendants; all but 2 defendants, Delgado and another, pled guilty before trial.

Juan Soto, a Minneapolis resident, used Stephen Larson as his drug courier to transport cocaine from Miami to Minnesota. In Miami, Larson was supplied by Jorge Lazo. Soto in turn supplied distributor Lazaro Lleras, who sold the cocaine in Fargo.

Larson made successive trips to Miami for the drug network. On one such trip in December of 1988, Larson met Lazo in Miami. Lazo was accompanied by the defendant Delgado, a Spanish speaking Miami resident. The three men stayed at Delgado's apartment. The next day, Delgado drove them to a cafe he operated. They were met by a source in the parking lot who delivered a package containing cocaine to Lazo. The cocaine was brought inside the cafe where the three men inspected and sampled it; however, it was disputed at trial whether Delgado partook in the sampling or whether he even knew of the existence of the cocaine. Larson then flew back to Minnesota with the drugs.

During the next three weeks, Lazo and Larson wired $9,800 to Delgado in four separate transactions. Telephone records introduced at trial showed substantial activity between numbers used by Delgado and Soto's apartment in Minneapolis.

In January 1989, Lleras, while in North Dakota, placed an order for cocaine with Soto, who again sent Larson to Miami to obtain the cocaine from the Miami connection. DEA agents followed Larson to the airport, where he purchased a one-way ticket to Miami. Lazo and Delgado met Larson Delgado then drove Lazo and Larson to the airport. As Lazo and Larson boarded the plane, a drug dog reacted positively to Larson's suitcase. Lazo and Larson were then arrested at the Minneapolis airport where 2 kilograms of cocaine were seized from Larson's suitcase. A Western Union money transfer application was also seized. Soto's Minneapolis apartment was later searched and agents recovered approximately $27,000 in cash, cocaine, drug paraphernalia, and telephone address books.

at the Miami airport, where the same federal agents continued their surveillance. Delgado then drove Lazo and Larson to Delgado's girlfriend's trailer where the three men stayed for the night. The next day, Delgado drove Lazo and Larson to a cockfighting club where they met a source who placed a package in Delgado's trunk. Back at the trailer, the three men inspected and sampled the cocaine contained in the package. Lazo then retaped the package and placed it in his suitcase.

Delgado claims that he was a mere observer and was not a part of the drug network. He testified at trial, through an interpreter, that because he only speaks Spanish, his conversations with Lazo and Larson were minimal. He also contends that the only reason he made the trips to the airport was because Lazo's license had been suspended and Delgado chose to drive to the airport himself rather than let Lazo drive the car without a license. Delgado explained the money transfers by testifying that the $9,800 was to be used towards the purchase of the cafe. With regard to the numerous phone calls placed to Soto, Delgado testified that Lazo was staying at Delgado's apartment and, therefore, Lazo must have made the calls. Delgado also testified that Lazo had permission to use the phone at the cafe, and was, therefore, responsible for calls placed to Soto from the cafe.

ANALYSIS

The United States Constitution contains two provisions regarding venue in criminal cases. Article III of the Constitution ² requires that the trial of any crime be held in the state in which the crime was committed, while the sixth amendment ³ requires that trial be by a jury of the state and district in which the crime was committed. Rule 18 of the Federal Rules of Criminal Procedure ⁴ also guarantees a criminal defendant the right to trial in the district where the crime was committed.

Proper venue is required "to ensure against the unfairness and hardship to which trial in an environment alien to the accused exposes him." United States v. Moeckly, 769 F.2d 453, 462 (8th Cir.1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986) (quoting United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944)). In criminal cases, the issue of venue is not a mere technicality, but rather, a significant matter of public policy. United States v. Netz, 758 F.2d 1308, 1312 (8th Cir.1985). Unlike the other elements of a crime which must be proved beyond a reasonable doubt, venue need only be proved by a preponderance of the evidence, in the light most favorable to the government. Id. See also, United States v. Black Cloud, 590 F.2d 270, 272 n. 2 (8th Cir.1979).

In this case neither Delgado nor the two kilograms of cocaine ever reached the district of North Dakota. The government argues that the principal Lleras had constructive possession of the cocaine in North Dakota when he promised some of the anticipated February shipment to two of his It is clear that the government's argument cannot be reconciled with our definition of constructive possession. At the time Lleras was in North Dakota, he could not have had knowledge of presence or control over cocaine which may have existed somewhere in the world and which he thought he could obtain at some time in the future. At the time Lleras left Fargo to travel to Minneapolis on February 10, 1989, there was still no constructive possession of any identifiable cocaine, because Lleras still did not have any knowledge of presence or control over it. If Lleras did, at some point gain constructive possession of the cocaine, it occurred after Lazo and Larson secured it on February 11, 1989. The evidence shows that Lleras was already in Minneapolis when this occurred.

Fargo distributors. Constructive possession has been defined by this court as knowledge of presence plus control. United States v. Wajda, 810 F.2d 754, 761 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987).

The government submits that Delgado aided and abetted the principal Lleras. For venue to be proper in North Dakota under this theory, the government must show that the principal Lleras had both possession and intent to deliver at a time when Lleras was in North Dakota. Since it was not shown that Lleras had either actual or constructive possession of the cocaine, this theory must fail.

In United States v. Davis, 666 F.2d 195 (5th Cir.1982), the Fifth Circuit was faced with facts similar to the present case. In Davis, the court found that venue was improper as to the charges of possession with intent to distribute methaqualone, while finding that venue was proper as to conspiracy charges. The court stated:

The government argues, without citing any cases, that although the drugs never physically entered the territorial limits of the Middle District of Georgia the offense began there because: (1) Cochran made arrangements with Mr. Davis to purchase the drugs while Cochran was in Georgia; (2) Cochran began the process of obtaining the drugs while traveling through the Middle District of Georgia; and (3) the parties intended that the drugs be returned to that district for ultimate distribution at the street level. To adopt this argument would undermine the guarantees of article III and the sixth amendment that defendants will be tried in the state and district where the crime itself was committed. The government had the burden of proving that the conspirators had both possession of and the intent to deliver the methaqualone at the time Mercer and Cochran were in the Middle District of Georgia.... This burden was not met since neither the Davises nor Cochran actually or constructively possessed the methaqualone in question until Mercer and Cochran arrived in Florida.

Id. at 200.

Here, the government argues that the crime of possession with the intent to distribute is a continuing offense under 18 U.S.C. Sec. 3237(a) ⁵, and that such offense may be prosecuted in any district where the offense began, continued, or concluded. The Tenth Circuit was faced with a similar situation in United States v. Medina-Ramos, 834 F.2d 874 (10th Cir.1987). In Medina-Ramos, the court reversed convictions for possession with intent to distribute cocaine on the basis of improper venue, finding that under the continuing offense statute, the "possession must nonetheless continue in the district in which the Government seeks to prosecute." Id. at 877 n. 1. In the present case, application of the continuing offense statute does not authorize venue in North Dakota because Delgado was never in North Dakota, the cocaine never reached that district nor did any action constituting possession take place in North Dakota. Such acts may have...