U.S. v. Pomranz

• Decision Date: 26 January 1995
• Docket Number: No. 93-9135,93-9135
• Citation: 43 F.3d 156
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey B. POMRANZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 156

43 F.3d 156

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey B. POMRANZ, Defendant-Appellant.

No. 93-9135.

United States Court of Appeals, Fifth Circuit.

Jan. 26, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied March

15, 1995.

Pamela A. Wilk, Peter Goldberger, Ardmore, PA, for appellant.

J. Michael Worley, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Fort Worth, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REYNALDO G. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Jeffrey B. Pomranz (the "appellant") was convicted on March 10, 1989, by a jury on all thirteen counts of a superseding indictment. ¹ Count one of the indictment charged the appellant with conspiracy to distribute over 1000 kilograms of marihuana in violation of 21 U.S.C. Sec. 846; counts two and fifty-one through fifty-three charged unlawful use of a communication facility in violation of 21 U.S.C. Sec. 843(b); counts fifty-four through fifty-nine charged interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952; count sixty charged aiding and abetting the possession with intent to distribute marihuana in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and count sixty-one charged unlawful use of a firearm during a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1).

On May 12, 1989, the district court sentenced Pomranz under the Sentencing Reform Act to 216 month concurrent prison terms on each of counts one, two and fifty-one through sixty. On count sixty-one, the court imposed a 60 month consecutive prison term, as required by Sec. 924(c)(1). The court further imposed a five-year mandatory minimum term of supervised release and a mandatory $650 in special assessments. This Court affirmed the judgment on May 22, 1990, in United States v. Pomranz, 904 F.2d 703 (5th Cir.1990) (table).

Pomranz filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. Sec. 2255, alleging for the first time that venue was improper in his conviction on count sixty-one of the superseding indictment. He also alleged that his counsel was ineffective for failing to ever raise that issue. Pomranz appeals the lower court's decision denying the requested relief. For the reasons below we affirm.

FACTS

The district court adequately summarized the facts of this case as follows:

The evidence at trial established that during the months of October and November 1988, Defendant Pomranz met several times with Mike DeLaFlor, an undercover DEA agent in Fort Worth, for the purpose of arranging the purchase of 4,000 pounds of marijuana. After several meetings in Texas and conversations on the phone, Pomranz and DeLaFlor agreed that the marijuana would be transported in two shipments of 2,000 pounds each at a total purchase price of $1.6 million, with $100,000 The first payment of approximately $100,000 was made on November 12 by one of the men working for Pomranz. After having the marijuana shipment initially inspected in Dallas, Pomranz met DeLaFlor in Arlington, Texas, on November 17, 1988 and made the second $100,000 payment. That evening, DeLaFlor left for Oklahoma City to obtain the final payment from Pomranz. This payment was agreed to be made only after Pomranz received verification that the marijuana was in the hands of his people in Dallas.

as front money, another $100,000 when the marijuana was delivered to the Dallas area, and then $400,000 to $800,000 after the marijuana was delivered to Pomranz.

On November 18, 1988, Pomranz arrived at the Oklahoma City motel in which DeLaFlor had taken a room. Before entering the motel, Pomranz secreted an automatic weapon in his jacket and then proceeded to DeLaFlor's room carrying a box containing more than $400,000. Pomranz and DeLaFlor then waited in the motel room for word that the marijuana had changed hands. After the marijuana was transferred, the authorities arrested several of Pomranz's co-conspirators in Texas, and then Pomranz himself in Oklahoma.

The 2255 motion is directed at count sixty-one of the indictment, which reads as follows:

On or about November 18, 1988, [the appellant] did unlawfully use and carry a firearm, that is, a Raven, Model P-25, .25 caliber handgun, serial number 640102, in Oklahoma City, Oklahoma, during and in relation to a drug trafficking crime occurring in the Northern District of Texas and elsewhere, as alleged in Count [one] and Count [sixty] of this indictment.

(emphasis added). Evidence was presented at trial showing that Pomranz possessed the gun in Oklahoma City at the time of his arrest on November 18, 1988, as alleged in the indictment. However, no evidence was presented to indicate that Pomranz used or carried the weapon at any time within the Northern District of Texas, or that he transported the weapon from Texas to Oklahoma.

DISCUSSION

The appellant asserts that venue on count sixty-one was improper because the Sec. 924(c)(1) charge could be prosecuted only where the firearm was "used" or "carried," i.e., in Oklahoma. Although the issue was never raised at trial or on direct appeal, Pomranz further argues that waiver of a good venue defense must be knowing and intelligent on the part of the defendant. In addition, Pomranz claims that his counsel's failure to raise the alleged venue defense proves he was afforded ineffective assistance of counsel. Because this Court finds that venue was proper, the appellant's conviction is affirmed.

Venue law

Article III, section 2, clause 3 of the United States Constitution provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be ... held in the State where the said Crimes shall have been committed...." The Sixth Amendment expands this rule and expresses it as a right of the accused by providing that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed...." U.S. CONST. amend. VI. In addition, the Federal Rules of Criminal Procedure ensure this constitutional right by providing that "[e]xcept as otherwise permitted by statue or by these rules, the prosecution shall be had in a district in which the offense was committed." FED.R.CRIM.P. 18. These provisions reflect that in criminal cases the question of venue is not a legal technicality, instead, it is a significant matter of public policy. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 250-51, 89 L.Ed. 236 (1944).

Congress has provided that:

[A]ny offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of or prosecuted in any district in which such offense was begun, continued or completed.

18 U.S.C. Sec. 3237(a). Furthermore, venue in conspiracy cases is proper in any district where the agreement was formed or where In light of the conspiracy law, Pomranz does not contend that he was improperly tried for the conspiracy count in the Northern District of Texas since overt acts occurred there. He further agrees that he was properly tried in Texas for the other substantive offenses that he committed while in that state. However, Pomranz affirmatively claims that the constitution guarantees his right to be tried in Oklahoma for the substantive offense under Sec. 924(c) because the weapon was carried only in that state, not Texas. Appellant argues that the conspiracy venue should not automatically extend to the substantive offense and consequently, an independent venue analysis should be conducted regarding that offense. Pomranz supports his argument with United States v. Corona, 34 F.3d 876 (9th Cir.1994).

                an overt act in furtherance of the conspiracy was performed.  United States v. Caldwell, 16 F.3d 623, 624 (5th Cir.1994);  United States v. Winship, 724 F.2d 1116, 1125 (5th Cir.1984). 2  Since, a conspiracy to distribute marihuana is a continuing offense under section 3237, 3 venue may lie in any district where an overt act was committed
                

In United States v. Corona, the defendant was tried and convicted in the state of Nevada for conspiracy to distribute narcotics and the substantive crimes arising from the conspiracy--distribution of cocaine and use of a firearm during drug trafficking. The substantive crimes occurred in California only, while overt acts in furtherance of the conspiracy were committed in both California and Nevada. The defendant argued on appeal that venue was improper laid in Nevada for the substantive offenses.

In light of these claims, the Ninth Circuit decided that a court must conduct a separate venue analysis for the substantive crimes and the conspiracy, even if the substantive crimes were committed in furtherance of the conspiracy. Id. at 879 (citing United States v. Jordan, 846 F.Supp. 895, 898 (D.Nev.1994)). Due to this analysis, the Court determined that venue was improper in Nevada for the prosecution of the substantive offenses. More specifically, it concluded that a conviction under Sec. 924(c) could not be prosecuted where the conspiracy venue lay if the weapon was also not used or carried in that venue. For the reasons discussed below, we disagree with the conclusion drawn on that count.

Section 924(c)

Congress enacted Section 924(c) as part of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, in the wake of the assassinations of Martin Luther King and Robert Kennedy, as part of a comprehensive response to the "increasing rate of crime and lawlessness and the growing use of firearms in violent crime." United States v. Correa-Ventura, 6 F.3d 1070, 1084 (5th Cir.1993) (quoting H.R.Rep. No. 1577, 90th Cong., 2d Sess. 7 (1968), reprinted in 1968 U.S.S.C.A.N. 4410). Since then, the original version of Sec. 924 has been modified several times to deal with modern concerns. The current version of section 924...