U.S. v. Miller

Decision Date15 April 1997
Docket NumberNo. 94-8079,94-8079
Citation111 F.3d 747
Parties97 CJ C.A.R. 553 UNITED STATES of America, Plaintiff-Appellee, v. Richard Dean MILLER, Defendant-Appellant,
CourtU.S. Court of Appeals — Tenth Circuit

Ronald G. Pretty, Cheyenne, WY, for Defendant-Appellant.

Patrick J. Crank, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Casper, WY, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, BARRETT, Circuit Judge, and KERN, * District Judge.

SEYMOUR, Chief Judge.

Richard Dean Miller was indicted in the District of Wyoming, tried before a jury, and convicted of conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841, 846. On appeal, Mr. Miller asserts as error the trial court's failure to instruct the jury on the element of venue. 1 For the reasons set out below, we reverse.


The indictment charged Mr. Miller with participation in a drug distribution conspiracy "within the District of Wyoming and elsewhere." Rec., vol. I at 1. Mr. Miller lived in Montana. At trial, no evidence was offered that Mr. Miller had ever traveled to or committed overt acts in Wyoming in furtherance of the conspiracy. Instead, the evidence showed that Mr. Miller acquired methamphetamine from other conspirators in Montana. The only overt acts alleged in Wyoming were acts by Mike Davis, an alleged coconspirator who had pled guilty. Mr. Davis, who resided near Cody, Wyoming, testified that on several occasions he traveled to Montana to purchase ounce quantities of methamphetamine from Mr. Miller. Mr. Davis also testified that he made telephone calls to Mr. Miller to arrange these purchases. On each occasion, Mr. Davis returned to Wyoming and resold the methamphetamine in that jurisdiction.

After presentation of the government's case, Mr. Miller moved for acquittal due, in part, to lack of venue. The trial court denied the motion, finding the evidence of venue sufficient to go to the jury. In the jury instruction conference, Mr. Miller's counsel objected to the failure to instruct the jury specifically on the element of venue. The trial court denied the objection. Mr. Miller's counsel also sought to include in each instruction on the substantive elements of the conspiracy an instruction that the jury must find the conspiracy in "the district of Wyoming." Rec., vol. X at 80. This request was also denied. The jury instructions did contain the statement: "You are instructed that a conspiracy may be prosecuted in any district where the conspiracy began, continued, or the conspiracy ended." Rec., vol. X at 104. However, the jury was not told that the government must prove venue, nor was the jury required to make a finding on this issue.


Venue is not a mere technicality. The defendant's right to proper venue has explicit constitutional roots in Article III, § 2, cl. 3, which "requires that the trial of any crime be held in the state in which the crime was committed," and in the Sixth Amendment, which guarantees trial by "a jury of the state and district in which the crime was committed." United States v. Medina-Ramos, 834 F.2d 874, 875-76 (10th Cir.1987). These requirements are codified in FED. R.CRIM. P. 18, which states "[e]xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed." The Supreme Court has pointed out that failure to treat venue rights seriously not only may impose unfairness and hardship on the accused, but might also encourage forum-shopping by federal prosecutors. United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944). "Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure. They raise deep issues of public policy...." Id. at 276, 65 S.Ct. at 250-51.

Venue is "a question of fact," United States v. Rinke, 778 F.2d 581, 584 (10th Cir.1985) (quoting Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir.1981)), which ordinarily must be decided by the jury. 2 United States v. Record, 873 F.2d 1363, 1370 (10th Cir.1989); United States v. Winship, 724 F.2d 1116, 1124 (5th Cir.1984); United States v. Black Cloud, 590 F.2d 270, 272 (8th Cir.1979); Green v. United States, 309 F.2d 852, 856 (5th Cir.1962); United States v. Gillette, 189 F.2d 449, 452 (2d Cir.1951). 3 One commentator has described the division of labor between judge and jury with respect to venue: "Whether venue has been properly proved is a question of fact for the jury, but the jury must have been properly instructed to make this finding. Whether there has been sufficient evidence to justify a finding on venue is a question of law for the court." 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 307, at 225 (2d ed. 1982) (footnotes omitted).

Although venue is a right of constitutional dimension, and has been characterized as "an element of every crime," Winship, 724 F.2d at 1124, this court and others have consistently treated venue differently from other, "substantive" elements of a charged offense. See, e.g., Wilkett, 655 F.2d at 1011-12 (dismissal for want of venue, unlike a failure to prove an essential element of the offense charged, does not raise double jeopardy barrier). We have held that venue need not be proved beyond a reasonable doubt. "Venue in federal criminal cases is an element of the prosecution's case which must be proved, unlike the other elements, by a preponderance of the evidence." Record, 873 F.2d at 1366; accord Winship, 724 F.2d at 1124. We have also applied a more relaxed standard for finding waiver of venue rights than for finding waivers of other constitutional rights in criminal trials. A defendant can waive venue rights by his inaction. See WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 306, at 219-220 (2d ed. 1982); United States v. Jackson, 482 F.2d 1167, 1179 (10th Cir.1973) (finding waiver if defendant fails to object before trial where lack of proper venue is apparent on the face of the indictment); United States v. Bohle, 445 F.2d 54, 58-59 (7th Cir.1971) (same), overruled on other grounds by United States v. Lawson, 653 F.2d 299, 301-02 (7th Cir.1981); United States v. Jones, 162 F.2d 72, 73 (2d Cir.1947) (same); Jenkins v. United States, 392 F.2d 303, 306 (10th Cir.1968) (defendant may raise venue issue in a motion for acquittal if indictment alleges proper venue); United States v. Sandini, 803 F.2d 123, 127 (3d Cir.1986) (same); Black Cloud, 590 F.2d at 272 (same). 4

Finally, perhaps for reasons related to the relaxed standard for waiver, courts seem to disfavor the application of plain error to failure to instruct on venue. See United States v. Massa, 686 F.2d 526, 530 (7th Cir.1982); United States v. White, 611 F.2d 531, 536-37 (5th Cir.1980); United States v. Honneus, 508 F.2d 566, 571 (1st Cir.1974). We have held that failure to instruct on other essential elements of the crime, even when not requested by the defendant, is structural error and per se reversible. United States v. Wiles, 102 F.3d 1043, 1059-60 (10th Cir.1996) (en banc as to part II.A); Winship, 724 F.2d at 1124. "By contrast, the particular circumstances of a case determine whether failure to instruct on venue is plain error." Winship, 724 F.2d at 1124.


We have said that failure to instruct the jury on venue when requested to do so is error. Record, 873 F.2d at 1370; see also United States v. Grammatikos, 633 F.2d 1013, 1022 (2d Cir.1980). We must determine whether the district court failed after a request by Mr. Miller to submit the issue of venue to the jury and, if so, whether Mr. Miller's conviction must be reversed.

The record indicates that the district court failed to give the jury a specific instruction on venue, despite defendant's objections. The government concedes the district court erred in failing to submit to the jury a specific venue instruction but seeks refuge in the fact that the court did submit an instruction which stated, "You are instructed that a conspiracy may be prosecuted in any district where the conspiracy began, continued, or the conspiracy ended." Rec., vol. X at 104. Although the government characterizes this declaration as a general instruction on venue, Aplee. Br. at 29, the instruction did not inform the jury that it was required to make findings on the issue of venue, or that to enter a guilty verdict it must find either an agreement or some overt act by a conspirator in Wyoming. Rather, after instructing the jury on finding a conspiracy, the court simply declared that the conspiracy, if found, could be prosecuted where it began, continued, or ended. As a consequence, the jury was never required to make a determination that venue existed in the case.

The question we must resolve is whether failure to instruct the jury on venue, under the circumstances of this case, constitutes reversible error. This is an issue of first impression for this court. After noting in Record that "it is 'fundamental error' to fail to instruct the jury as to the necessary elements of the offense charged," 873 F.2d at 1370, we observed that "[o]ther courts have developed rules examining the particular circumstances of a case rather than requiring automatic reversal for the failure to instruct the jury on venue," id. at 1370-71 (citing United States v. Moeckly, 769 F.2d 453 (8th Cir.1985), and Winship, 724 F.2d 1116 (5th Cir.1984)). We did not have occasion to develop such a rule in Record because the parties there had agreed to submit the venue issue to the court, and thus had waived any objection.

In this case, Mr. Miller preserved his objection below and we therefore review under the standards of harmless error. FED.R.CRIM.P. 52(a). The burden is on the government to prove beyond a reasonable doubt that an error is harmless. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081-82, 124 L.Ed.2d 182 (1993); Carella v. California, 491 U.S. 263, 271-72, 109 S.Ct....

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