U.S. v. Rinke, s. 85-1233

• Decision Date: 02 December 1985
• Docket Number: 85-1234,Nos. 85-1233,s. 85-1233
• Citation: 778 F.2d 581
• Parties: 19 Fed. R. Evid. Serv. 1353 UNITED STATES of America, Plaintiff-Appellee, v. Clarence Edwin RINKE, and Duane Keith Nevins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 581

778 F.2d 581

19 Fed. R. Evid. Serv. 1353

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Edwin RINKE, and Duane Keith Nevins, Defendants-Appellants.

Nos. 85-1233, 85-1234.

United States Court of Appeals, Tenth Circuit.

Dec. 2, 1985.

James L. Eisenbrandt, Overland Park, Kan. (Wesley M. Norwood of Riling, Norwood, Burkhead & Fairchild, Lawrence, Kan., with him on the briefs) of Morris, Larson, King, Stamper & Bold, Overland Park, Kan., for defendants-appellants.

Richard L. Hathaway, Asst. U.S. Atty., Kansas City, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., with him on briefs), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, BARRETT, Circuit Judge, and GREENE, District Judge. ^*

BARRETT, Circuit Judge.

Defendants Clarence Rinke (Rinke) and Duane Nevins (Nevins) ¹ appeal their convictions and sentences for violating 21 U.S.C. Secs. 841(a)(1) and 846, conspiracy to distribute marijuana. Defendant Nevins also appeals from his conviction and sentence for violating 18 U.S.C. Sec. 1952(a)(3) (the Travel Act), travel in interstate commerce with intent to promote, manage or carry on an unlawful activity.

In April of 1982, Carl Frederick Pieper (Pieper) became a cooperating informant for the Orlando, Florida, Police Department for the purpose of assisting the police in prosecuting a long-time acquaintance, Duane Nevins. Pieper had been acquainted with Nevins since 1964 when they were students in a music camp at Michigan State University. In 1970, Pieper became re-acquainted with Nevins through common friends in the Lawrence, Kansas, area. Pieper and Nevins maintained a casual relationship until 1981. At that time, Pieper testified that he was first contacted by Nevins concerning drug trafficking. This discussion took place in Pieper's home in Orlando, Florida, while Nevins was visiting Pieper's step-daughter, Krista, with whom Nevins maintained a close, personal relationship.

Pieper, an electrical engineer by training and employed by Martin-Marietta in Orlando, became concerned about Nevins' drug trafficking activities. In an apparent effort to gather evidence against Nevins, Pieper placed a recording device on his Orlando, Florida telephone in April, 1982. This was done upon his own initiative and not at the direction of the Orlando Police Department. Pieper kept notes about his conversations with Nevins in addition to some of the recordings. Most of these conversations took place between Pieper and Nevins from their respective homes in Orlando, Florida, and Baldwin, Kansas.

On April 18, 1982, Pieper recorded several conversations between Rinke and Nevins while Nevins was visiting Pieper in Orlando. Pieper was present during these conversations and overheard all of Nevins' comments. Through these conversations, Pieper learned that Rinke was anxious to have Nevins come to Miami. Also recorded by Pieper on April 18, 1982, were conversations between Nevins and several airlines regarding plane reservations for flights from Orlando to Miami. The defendants were unaware that their conversations were being recorded.

Following the conversations on April 18, 1982, Nevins discussed with Pieper the possibility of Pieper driving a load of marijuana from Florida to Kansas. On April 26, 1982, while Nevins was visiting Rinke in Miami, he called Pieper and told him to come to Miami as soon as possible. Pieper flew to Miami, met with the defendants, and was provided a rented 1982 Pontiac Bonneville. Defendants told Pieper that the trunk contained marijuana and that he should not open it even if he had a flat tire. Pieper was given $500 and a map which showed a route from Miami to Baldwin, Kansas.

Pieper began the trip to Kansas on the evening of April 26, 1982. He stopped at a point just north of Miami for the night. The next morning at 9:00 a.m., Pieper called inspector Dennis Dale of the Orange County Sherriff's Department in Orlando and told him that he was transporting marijuana for the defendants. Dale told him to proceed to the Turkey Lake Plaza near Orlando. At approximately 12:30 p.m., Pieper arrived at Turkey Lake Plaza and was thereafter met by several Orange County Sheriff's officers. Pieper told them that the trunk contained marijuana. He provided the car keys to the officers and the trunk was opened. The officers discovered two large bags and a strong odor of marijuana. The bags were opened and a field test was conducted upon the substance contained in the garbage bags. The field test revealed that the substance was, in fact, marijuana.

Defendants were arrested and tried before the district court of the District of Kansas upon a two count Superseding Sealed Indictment returned by a federal grand jury. Trial to the court was held on September 17, 1984. The district court entered its Memorandum and Order finding the defendants guilty as charged on November 27, 1984. On January 28, 1985, a sentencing hearing was held and the defendants were sentenced for their respective crimes.

The defendants jointly raise the following issues for our review, i.e., whether the district court erred: (1) in ruling that venue was proper in the District of Kansas; (2) in finding defendant Nevins guilty on Count II, violation of the Travel Act, because the Government failed to prove the "business enterprise" element of the crime; (3) in allowing Pieper to rely on notes while testifying to telephone conversations between himself and the defendants; (4) in denying defendants' motions to suppress all evidence after April 18, 1982, as the fruit of illegal electronic surveillance; (5) in denying defendants' motions to sever their trials; and (6) in denying defendants' motions for judgment and acquittal on the grounds of a fatal variance between the beginning point of the conspiracy alleged in Count I of the indictment and proof at trial.

I.

Defendants contend that the district court erred in ruling that venue was proper in the District of Kansas. Specifically, defendants argue that the Government's evidence was insufficient to establish venue in Kansas for both Counts I and II.

Rule 18 of the Federal Rules of Criminal Procedure sets forth the proper place of prosecution and trial for a criminal offense:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.

Fed.R.Crim.Pro. 18 (emphasis supplied). "Venue in federal criminal cases is a question of fact which is part of the prosecution's case." Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir.1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). Unlike other facts in the prosecution's case, however, venue may be proven by mere preponderance of the evidence. Id. We agree with the United States Court of Appeals for the Eleventh Circuit that the standard of review for whether venue lies in a particular district is whether, viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by preponderance of direct or circumstantial evidence that the crimes charged occurred within the district. United States v. Males, 715 F.2d 568, 569 (11th Cir.1983). Applying these standards, we affirm the district court's ruling that venue was proper in the District of Kansas.

We have held that when the offense charged is conspiracy, as in Count I of this case, "venue as to prosecution of all members of [the] conspiracy lies either in the jurisdiction in which the conspiratorial agreement was formed or in any jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspirators." United States v. Smith, 692 F.2d 693, 697 (10th Cir.1982) (citations omitted). In United States v. Smith, defendant Smith was convicted of conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846 (1976). Smith contended that venue was improper in the District of Wyoming because the alleged crime was not committed there and he had never been in Wyoming. We held in Smith that venue was proper in Wyoming whether or not the defendant had ever been there himself because one of the co-conspirators performed overt acts in Wyoming in furtherance of the conspiracy. Applying the rule in Smith, the district court in the case at bar found that several overt acts were committed in Kansas by Nevins in furtherance of the conspiracy charged in Count I.

Defendants contend that inconsistencies in Pieper's testimony made any inference that the defendants were in Kansas unreasonable. Defendants maintain that Nevins never used his home telephone in Baldwin, Kansas, to discuss drug transactions. Moreover, they maintain any toll records of phone calls between Pieper's and Nevins' homes were the result of telephone conversations between either Pieper and his step-daughter, Krista, who was staying with Nevins during this time, or Pieper and Nevins regarding Krista.

After reviewing the record, we are not persuaded by defendants' contentions. It is undisputed that Nevins was a resident of Baldwin, Kansas. Although Nevins argues he used neither his home telephone for drug transactions nor coded words in his conversations with Pieper, Pieper testified he was told by Nevins that in telephone conversations he "should not refer to trafficking of marijuana or any illegal acts, but refer to them in an implicit although obvious to us manner." (R.Vol. VIII, p. 37.) Despite Nevins' contention that there was no evidence any of these alleged drug trafficking conversations were made from Baldwin, Kansas, the district court reasonably inferred that one or more of the alleged conversations did take place between Nevins and Pieper from Nevins' Kansas home.

With respect to Count...