U.S. v. Hart-Williams

• Decision Date: 05 June 1997
• Docket Number: No. 95-CR-1195(ERK).,95-CR-1195(ERK).
• Parties: UNITED STATES of America v. Michael HART-WILLIAMS, Defendant.
• Court: U.S. District Court — Eastern District of New York

967 F.Supp. 73

UNITED STATES of America v. Michael HART-WILLIAMS, Defendant.

No. 95-CR-1195(ERK).

United States District Court, E.D. New York.

June 5, 1997.

David H. Hennessey, Assistant U.S. Attorney, Office of the U.S. Attorney of the Eastern District of New York Criminal Division, Brooklyn, NY, for Plaintiff.

Robert S. Wolf, New York City, for Defendant.

MEMORANDUM

KORMAN, District Judge.

The defendant, Michael Hart-Williams, is a Nigerian citizen who was charged with and convicted of conspiracy to import heroin for eventual distribution in the New York City metropolitan area. The principal witness, Victor Moni-Erigbali, was a cooperating co-conspirator who testified that after he received a package containing heroin, he was advised by another co-conspirator who resided in England, Greg Unanseru, that defendant would soon contact him regarding delivery of the package. Shortly thereafter the defendant arrived at Kennedy Airport, checked into the Best Western Midway Hotel in Queens, and called Moni-Erigbali's beeper. Moni-Erigbali then called the defendant at the Best Western. During this call they made no formal arrangements to meet, although they agreed that Moni-Erigbali would call again soon with such details.

Later that day, in another telephone call to the defendant at the Best Western, Moni-Erigbali suggested a meeting at Pennsylvania Station in Newark, New Jersey. After the meeting, Moni-Erigbali drove defendant to a storage facility in Hillside, New Jersey, retrieved the heroin, and gave it to the defendant. Moni-Erigbali and the defendant then discussed payment and parted, agreeing to settle their accounts later.

A few days hence, Moni-Erigbali received a second package of heroin. Because he feared apprehension by the authorities, Moni-Erigbali contacted a federal Drug Enforcement Agency ("DEA" hereinafter) agent instead of contacting Unanseru for delivery instructions. Moni-Erigbali agreed to cooperate with the DEA and turned over to them the second package of heroin. DEA agents then recorded Moni-Erigbali's phone calls with Unanseru and the defendant concerning arrangements for delivery of the second package to defendant. The defendant, now staying at the Milford Plaza Hotel in Manhattan (which is located in the Southern District of New York), agreed to meet Moni-Erigbali at a diner in Manhattan. Moni-Erigbali wore a wire to this meeting and discussed with defendant the speed with which he had been able to sell the prior shipment of heroin. The two left the diner without exchanging the heroin, at which point DEA agents intervened and arrested the defendant.

The defendant was tried and convicted on one count of conspiring and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1994). Prior to trial he moved for dismissal of the indictment, claiming that venue was improper in the Eastern District of New York. I denied this motion, although I offered to transfer the case to the Southern District pursuant to Fed.R.Crim.P. 21. See April 2, 1996, Suppression Hr'g Tr. at 61:7-12. The defendant did not respond to my offer, and the case proceeded to trial.

At trial, the defendant again argued that the United States Attorney had failed to establish venue in the Eastern District, contending that the only significant acts in furtherance of the conspiracy transpired in the Southern District and the District of New Jersey. Defendant's argument was again without merit, because the defendant arrived through Kennedy Airport and received calls at a Queens Hotel during which he and his co-conspirator plotted the delivery of the heroin — both of which were plainly acts in furtherance of the conspiracy charged, and each of which was sufficient to establish venue in the Eastern District. See United States v. Chalarca, 95 F.3d 239, 245 (2d Cir.1996) ("[I]t was necessary for the government to establish only that the crime [of conspiracy], or some part of it, occurred in the [concerned] District in order to have venue there.").

At the trial's close, the defendant requested that the jury be instructed that, if it found venue was not proven by a preponderance of the evidence, it must return a verdict of not guilty. I declined to give this instruction, both because acquittal is not required when venue is improperly laid, and because there was no rational reason to submit the issue to the jury. This memorandum sets forth more fully my reasons for that decision.

DISCUSSION

The defendant's request to charge raises two issues. The first is whether a defendant is entitled to a judgment of acquittal if venue is not proven, and the second is whether a jury must decide the issue. The answer to both questions depends on whether venue is an essential element of a crime.

1. Acquittal on Venue Grounds

An instruction that a jury must acquit if there is a failure of proof on the issue of venue, 1 L. SAND, et al., MODERN FEDERAL JURY INSTRUCTIONS ¶ 3.01, at 3-25 (1996), can be justified only on the assumption that venue is an essential element of the offense. While some precedent supports this assumption — see, e.g., United States v. Massa, 686 F.2d 526, 527 (7th Cir.1982) —"venue has not been treated as other essential elements", SAND, supra, at 3-26, either in the Second Circuit or elsewhere, id. at 3-26 to 3-27. On the contrary, the Second Circuit has now joined the Fourth and Ninth Circuits in flatly rejecting the proposition that venue is an essential element of an offense. See United States v. Maldonado-Rivera, 922 F.2d 934, 969 (2d Cir.1990) (Kearse, J.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991), and 501 U.S. 1233, 111 S.Ct. 2858, 115 L.Ed.2d 1025 (1991); United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir.1988); United States v. Griley, 814 F.2d 967, 973 (4th Cir.1987).

In Maldonado-Rivera, which held that "[v]enue is not an element of the offense[,]" id. at 969, Judge Kearse observed that venue provisions relate only to the issue "of the prosecution's permissible location." Id. "Since venue is not an element of the offense, the government may prove venue by a preponderance of the evidence and need not prove it beyond a reasonable doubt." United States v. Rosa, 17 F.3d 1531, 1541 (2d Cir.), cert. denied, 513 U.S. 879, 115 S.Ct. 211, 130 L.Ed.2d 140 (1994).

As venue is not an element of a criminal offense, there is no legal basis for the request for an instruction to acquit if the jury finds that venue was not proven. An acquittal "`represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged[.]'" United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (alteration in original) (quoting United States v. Martin Linen Supply, 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977)). Quite obviously, the "failure to establish venue does not go to guilt or innocence." Kaytso, 868 F.2d at 1021.

Scott affords additional support for refusing defendant's request for an acquittal instruction. It holds that a mid-trial dismissal resulting from pre-indictment delay is not an acquittal, even if a judge relies on evidence presented at trial to conclude that the delay prejudiced defendant, because "the dismissal of an indictment for pre-indictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation." Scott, 437 U.S. at 98, 98 S.Ct. at 2197. Like the dismissal at issue in Scott, a venue dismissal represents a judgment that, although a defendant may be "criminally culpable," the case against him must be dismissed because competing policies, embodied in the Constitution and Fed. R.Crim.P. 18, dictate that the case be brought elsewhere. Indeed, for this reason it has been repeatedly held that a dismissal for lack of venue after jeopardy has attached does not bar re-prosecution of that offense. See. e.g., Kaytso, 868 F.2d at 1021; United States v. Brunty, 701 F.2d 1375, 1380 n. 12 (11th Cir.), cert. denied, 464 U.S. 848, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983).

Accordingly, even if the issue of venue was properly one for the jury, the defendant would be entitled only to an instruction that, if the jury finds that venue was not proven, then it should return a special verdict to that effect. A verdict of acquittal is neither required nor appropriate if the jury finds that all of the elements of the offense have been proven beyond a reasonable doubt.

2. Submission of Venue to the Jury

"The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." United States v. Gaudin, 515 U.S. 506, ___, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995). Maldonado-Rivera's holding, that venue is not an element of the offense, and that it raises only the issue "of the prosecution's permissible location," 922 F.2d at 969, thus compels the conclusion that venue is not an issue for the jury. Particularly apposite here are Second Circuit cases holding that it is for the judge to resolve factual disputes relating to the quantity of drugs in narcotics trafficking prosecutions under 21 U.S.C. §§ 841(a) and 844 (1996), because these disputes does not go to an element of the offense, but only to the issue of whether the defendant's sentence should be enhanced. See United States v. Monk, 15 F.3d 25, 27 (2d Cir.1994) (summarizing United States v. Jacobo, 934 F.2d 411, 416 (2d Cir.1991), which holds that "even if the jury in a § 841 case made a determination of the quantity of drugs involved, the sentencing judge would not be bound thereby and would have to make an independent determination of the quantity"); United States v. Campuzano, 905 F.2d 677, 679 & 680 n. 4 (2d Cir.), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990). These cases demonstrate that, even if a factual issue is...