U.S. v. Godwin, 76-1656

• Decision Date: 28 January 1977
• Docket Number: No. 76-1656,76-1656
• Citation: 546 F.2d 145
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Carlton Errol GODWIN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 145

546 F.2d 145

UNITED STATES of America, Plaintiff-Appellant, v. Carlton Errol GODWIN, Defendant-Appellee.

No. 76-1656.

United States Court of Appeals, Fifth Circuit.

Jan. 28, 1977.

John L. Briggs, U. S. Atty., Kathleen B. Levitz, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellant.

Ronald E. Dusek, Jacksonville, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before COLEMAN, AINSWORTH and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

We are asked to construe a statute which was superseded over six years ago in order that the United States may prosecute defendant-appellee Godwin for an offense committed over eight years ago. The single issue before us is the dismissal of the indictment by the district court on the grounds of improper venue. We REVERSE.

The government alleged that on June 24, 1968, Godwin mailed a package containing seven pounds of marijuana from Vietnam to a Jacksonville, Florida addressee. The contraband arrived at San Francisco, the port of entry, ¹ on June 26, 1968. Customs agents inspected the package and upon discovery of its contents transferred custody to postal authorities, who made a controlled delivery to the Jacksonville address on November 14, 1968. The house was searched under a warrant and the package was seized. Appellee was indicted in the Middle District of Florida on September 15, 1971, for violation of 21 U.S.C. § 176a. ² The one-count indictment charged that appellee "did smuggle and clandestinely introduce into the United States approximately seven pounds of marihuana, which should have been invoiced." Although an arrest warrant issued shortly afterward, Godwin was not apprehended until July 12, 1975 in Guam.

Appellee argues that the gravamen of the offense charged is smuggling, which crime was complete in San Francisco. The authority he urges most strenuously, and adopted by the district court, is United States v. Lember, 319 F.Supp. 249 (E.D.Va.1970). In Lember the government claimed unsuccessfully that under 18 U.S.C. § 3237, ³ transportation in foreign and interstate commerce and use of the mails rendered defendant's alleged violation of 21 U.S.C. § 176a a continuing offense. The Lember court rejected this argument:

* * * The authorities cited discuss "continuing offenses" but only as concerned with the use of the mails, with reference to 18 U.S.C. § 3237, which permits flexibility in crimes involving the use of the mails.

In the instant case the defendant has not been charged with illegally using the mails to facilitate a crime. The specific act charged is smuggling. In our opinion the crime of smuggling was complete when the package arrived ashore and was opened at the San Francisco Airport. This is not to say that an indictment could not have been returned charging the defendant with "facilitating the transportation or concealment of marihuana after being imported or brought into the United States, knowing the same to have been imported or brought in contrary to law." United States v. Merrell, 73 F.2d 49 (2 Cir. 1934); Gillespie v. United States, 13 F.2d 736 (2 Cir. 1926). The naked fact is that he was not so charged.

319 F.Supp. at 251.

We decline the invitation to anoint Lember as the rule of this circuit. Instead, we think the reasoning of United States v. Jackson, 482 F.2d 1167 (10th Cir. 1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974), is persuasive. Jackson concededly involved a violation of a different statute, 21 U.S.C. § 952. ⁴ However § 176a and § 952 are similar in that neither expressly fixes venue but both prohibit certain importation. The Jackson court stated:

Section 952(a) prohibits importation of heroin into the United States from any place outside thereof. The statute does not necessarily pertain to any particular locality such as the place of entry, for it prohibits importation anywhere in the United States. Appellants charge, however, the offense was completed the moment the smuggling attempt was discovered in California and thus does not continue to the smuggling attempt's destination point in Colorado. Admittedly a crime was committed the moment the heroin package entered the United States, but discovery of the crime in California did not exhaust it. See United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910). The illicit scheme originated in Thailand and from there it extended to Lowry Air Force Base, Colorado. During the illicit venture the heroin was discovered in California but certainly the crime was not completed there. It was a continuous crime which received no finality until the package arrived at Lowry Air Force Base. Since an offense committed in more than one district "may be inquired of and prosecuted in any district in which such offense was . . . continued," 18 U.S.C. § 3237, venue for § 952(a) lies in any district used by appellants to complete their crime. See United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958). We therefore reject United States v. Lember, supra, in all respects inconsistent with our holding herein.

482 F.2d at 1178.

Appellee argues that Jackson included a conspiracy charge and is therefore inapposite. The conspiracy charge arose out of 21 U.S.C. § 963; the language quoted above clearly refers to § 952. Further support for the Jackson approach can be found in United States v. Barnard, 490 F.2d 907, 911 (9th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). ⁵

Appellee attempts to sidestep the counterblow launched by Jackson by arguing that a literal reading of 21 U.S.C. § 176a renders the offense of smuggling separate from the offense of facilitating the transportation of marijuana once it has been imported. Because these proscribed activities are connected by the conjunction "or", he reasons that they are mutually exclusive. His conclusion is that when the indictment is read through the statute, he is not charged with any offense occurring after the package arrived in San Francisco. We disagree. We think that transportation after importation is part and parcel of the more inclusive crime of importation, that Congress sought to make the subset as illegal as the set, and that it had no intention of restricting venue in such indirect fashion.

Further, appellee's construction of the statute would produce unnecessary, although intriguing complications. Were a package from England mailed to Florida, and discovered only upon its arrival in that state, appellee would have the government trace the package backwards to the port of entry and prosecute only in that district. We cannot believe that Congress intended the government to be put to such tedium, nor that it intended to force an accused person to be put...