U.S. v. Heaps

• Decision Date: 31 October 1994
• Docket Number: No. 93-5923,93-5923
• Citation: 39 F.3d 479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ira Nathan HEAPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 479

39 F.3d 479

UNITED STATES of America, Plaintiff-Appellee, v. Ira Nathan HEAPS, Defendant-Appellant.

No. 93-5923.

United States Court of Appeals, Fourth Circuit.

Argued June 9, 1994.

Decided Oct. 31, 1994.

ARGUED: Richard W. Berne, Bronx, NY, for appellant. Anita Thomas, Sp. Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Helen F. Fahey, U.S. Atty., Alexandria, VA, for appellee.

Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.

Reversed in part and affirmed in part by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge K.K. HALL joined. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part.

OPINION

MURNAGHAN, Circuit Judge:

I

The defendant, Ira Nathan Heaps, has appealed from the judgment of the United States District Court for the Eastern District of Virginia finding him guilty of all counts of an eight-count indictment. Count 1 charged the defendant with conspiracy to possess and distribute methylendioxyamphetamine (MDA), commonly known as "ecstasy," in violation of 21 U.S.C. Sec. 846. Count 2 charged the defendant with conspiracy to commit money laundering in violation of 18 U.S.C. Sec. 371. Counts 3 and 4 charged the defendant with distribution of ecstasy in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Counts 5 and 7 charged the defendant with money laundering in violation of 18 U.S.C. Secs. 1956(a)(1)(A)(i) and 2. Finally, Counts 6 and 8 charged the defendant with money laundering in violation of 18 U.S.C. Secs. 1956(a)(1)(B)(i) and 2. The defendant was sentenced on October 29, 1993, to 41 months confinement as to Counts 1, 3, and 4, and to 78 months confinement as to Counts 2, 5, 6, 7 and 8, to run concurrently with one another. He was also sentenced to a two-year period of supervisory release and special assessments totalling $400.

The charges stemmed from the distribution of ecstasy to Geoffrey Boccia and Gillian Beck, and the subsequent payment from Beck and Boccia to the defendant by wire transfer.

The Government called five witnesses in its case-in-chief, including Special Agent Robert Valentine of the Drug Enforcement Administration (DEA), Gillian Beck, Geoffrey Boccia, Stacey Maire, and Deputy United States Marshal David Drake. Agent Valentine testified that he purchased ecstasy from Beck and Boccia on five separate occasions between August 1991 and November 1991. He purchased 150 tablets of ecstasy from Beck and Boccia on August 9, 1991, in Washington, D.C. for $2,000. On September 6, 1991, Beck and Boccia sold 240 tablets to Agent Valentine for $3,500 in Alexandria, Virginia. During this purchase, Beck told Agent Valentine that the ecstasy came from two people in New York who were 40 or 45. On September 12, 1991, in Alexandria, Virginia, Beck distributed an additional 10 tablets to Agent Valentine in connection with the September 6, 1991 sale.

On October 5, 1991, in Washington, D.C., Agent Valentine purchased 85 tablets from Boccia. Prior to this sale, Beck and Boccia sold 115 ecstasy capsules of a different variety to Agent Valentine. Beck and Boccia testified that the 115 capsules were supplied by Jeffrey Saunders of California, not by the defendant. Finally, on November 13, 1991, in Alexandria, Virginia, Agent Valentine purchased 10,350 dosage units of LSD from Beck and Boccia for $5,000 in cash.

Beck testified that the defendant was a friend from New York. She and the defendant took two trips to Jamaica for which the defendant paid. Beck visited the defendant in New York on a regular basis and spoke to him over the telephone periodically. She testified that, with the exception of the purchase from Jeffrey Saunders, all of the ecstasy that she bought during the summer of 1991 was obtained from the defendant.

Boccia testified that he met the defendant in June, 1991, at a Grateful Dead concert in Washington, D.C. The defendant became a connection for the ecstasy that Beck and Boccia sold to the DEA. Boccia testified that during 1991 he supported himself by selling drugs and working as a bike messenger.

Boccia further testified that upon receiving a quantity of ecstasy from the defendant, he and Beck would pay for a portion of the ecstasy, sell the drugs, and then pay the outstanding balance from the profits of the ecstasy sales. Boccia testified that he and Beck bought the ecstasy for about $12 or $13 a hit, sold it in larger quantities for $13 or $14 a hit, and in smaller quantities for $20 and $25 a hit.

Both Beck and Boccia testified that in June, 1991, the defendant, through prearrangement with Beck, sold approximately 100 ecstasy pills to Beck which they then re-sold. The defendant next supplied 500 pills of ecstasy to Beck and Boccia on August 8, 1991, for $4,000 in New York. The day before this purchase Beck placed a phone call from her apartment to the defendant.

Beck testified that later in August, 1991, the defendant again supplied 500 hits of ecstasy to her and another friend in New York. Beck testified that she arranged to meet the defendant at "Frank's apartment," but the defendant was not there. She met with Frank, who told her that the defendant had left items for her in a dresser drawer. Beck stated that she retrieved ecstasy from the drawer. Beck described Frank as being between 40 and 45 years of age.

Boccia testified that the defendant supplied him with 500 hits of ecstasy on September 5, 1991 for $4,000. Boccia brought the ecstasy back to Washington, D.C., and sold it to Agent Valentine and others.

Beck testified that at approximately 11:25 p.m. on November 13, 1991, she wired, via Western Union, two money orders made out to "Stacey Maire." Stacey Maire was, at the time of the transactions, the defendant's girlfriend. She later became his wife. Beck stated that the defendant had instructed her and Boccia to send the money orders in the name of "Stacey Maire." One money order was sent in the amount of $1,500 and the other for $500. The money Beck and Boccia sent to the defendant was the proceeds of the sale of LSD to Agent Valentine in Alexandria, Virginia, on November 13, 1991.

Both Beck and Boccia explained that the money orders were sent from Washington, D.C., as payment for ecstasy. Beck testified that the only reason she and Boccia owed money to the defendant was for ecstasy previously supplied to them.

Beck testified that after sending the money orders, she telephoned the defendant to confirm that it had been sent. Maire testified that she picked up the money in New York at the direction of the defendant. She cashed the two money orders, brought the $2,000 to the apartment that she and the defendant shared, and put the cash in a money box.

The DEA arrested Beck and Boccia on January 8, 1992. Beck cooperated with the DEA and made two undercover telephone calls to the defendant. The second call was made to discuss the wiring of more money to the defendant owed for previous supplies of ecstasy. Beck specifically asked if the next payment should be sent in the name of Stacey Maire. The defendant indicated that was not necessary for the next payment.

Deputy United States Marshall David Drake testified that he arrested the defendant in New York on February 26, 1993. After being arrested, the defendant asked Drake "What should I do? ... without incriminating myself, all I can tell you, I was in the wrong place at the wrong time." Drake told the defendant that the DEA in Washington would probably want to speak with him. The defendant said, "What, cooperate? ... I can't give up the big guy, I just can't."

II

As a preliminary matter, the defendant has argued that the district court should have permitted a change of venue pursuant to F.R.C.P. Rule 21(b). Rule 21(b) provides in pertinent part:

For the convenience of the parties and witnesses, and in the interest of justice the court upon motion of the defendant may transfer the proceeding as to that defendant ... to another district.

The decision whether to transfer a case is committed to the sound discretion of the district court. United States v. Espinoza, 641 F.2d 153, 162 (4th Cir.), cert. denied, 454 U.S. 841, 102 S.Ct. 153, 70 L.Ed.2d 125 (1981). The district court may only be reversed if it has abused its discretion.

The defendant has asserted that since all activity conducted by him in furtherance of the crimes charged occurred in New York, he should not have had to stand trial in the Eastern District of Virginia, where he believes he was prejudiced by his status before a Virginia jury as a New Yorker.

At the outset, we note that venue was proper in the Eastern District of Virginia. We have held that venue is proper, in a multi-district conspiracy, in any district in which a conspirator has committed an overt act. United States v. Martinez, 901 F.2d 374, 376 (4th Cir.1990). Moreover, when a conspiracy is formed in one district and overt acts are taken in furtherance of it in other districts, venue is proper against all of the defendants in any one of those districts. United States v. Levy Auto Parts, 787 F.2d 946, 952 (4th Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 108, 93 L.Ed.2d 56 (1986). Since in the instant case overt acts in furtherance of two charged conspiracies occurred in the Eastern District of Virginia, the Southern District of New York, and the District of Columbia, venue properly lay in each of the three districts for Counts 1 and 2 of the indictment.

Similarly, the Government has asserted that venue was proper in the Eastern District of Virginia for Counts 3 through 8. We agree. The two distribution counts alleged distribution of ecstasy in Alexandria, Virginia. The money laundering counts stemmed from the wire transfer of money representing the proceeds of the sale of LSD in the Eastern District of Virginia. See United States v. Beddow, 957 F.2d 1330, 1336 (6th Cir.1992) (venue for a money laundering case is proper in any district in which the specified unlawful activity occurs).

The defendant...