U.S. v. Rodriguez-Moreno

Decision Date30 March 1999
Docket Number971139
Citation526 U.S. 275,119 S.Ct. 1239,143 L.Ed.2d 388
CourtU.S. Supreme Court

Justice Thomas delivered the opinion of the Court.

This case presents the question whether venue in a prosecution for using or carrying a firearm "during and in relation to any crime of violence," in violation of 18 U.S.C. § 924(c)(1), is proper in any district where the crime of violence was committed, even if the firearm was used or carried only in a single district.


During a drug transaction that took place in Houston, Texas, a New York drug dealer stole 30 kilograms of a Texas drug distributor's cocaine. The distributor hired respondent, Jacinto Rodriguez-Moreno, and others to find the dealer and to hold captive the middleman in the transaction, Ephrain Avendano, during the search. In pursuit of the dealer, the distributor and his henchmen drove from Texas to New Jersey with Avendano in tow. The group used Avendano's New Jersey apartment as a base for their operations for a few days. They soon moved to a house in New York and then to a house in Maryland, taking Avendano with them.

Shortly after respondent and the others arrived at the Maryland house, the owner of the home passed around a .357 magnum revolver and respondent took possession of the pistol. As it became clear that efforts to find the New York drug dealer would not bear fruit, respondent told his employer that he thought they should kill the middleman and end their search for the dealer. He put the gun to the back of Avendano's neck but, at the urging of his cohorts, did not shoot. Avendano eventually escaped through the back door and ran to a neighboring house. The neighbors called the Maryland police, who arrested respondent along with the rest of the kidnapers. The police also seized the .357 magnum, on which they later found respondent's fingerprint.

Rodriguez-Moreno and his codefendants were tried jointly in the United States District Court for the District of New Jersey. Respondent was charged with, inter alia, conspiring to kidnap Avendano, kidnaping Avendano, and using and carrying a firearm in relation to the kidnaping of Avendano, in violation of 18 U.S.C. § 924(c)(1). At the conclusion of the Government's case, respondent moved to dismiss the §924(c)(1) count for lack of venue. He argued that venue was proper only in Maryland, the only place where the Government had proved he had actually used a gun. The District Court denied the motion, App. 54, and the jury found respondent guilty on the kidnaping counts and on the §924(c)(1) charge as well. He was sentenced to 87 months' imprisonment on the kidnaping charges, and was given a mandatory consecutive term of 60 months' imprisonment for committing the §924(c)(1) offense.

On a 2-to-1 vote, the Court of Appeals for the Third Circuit reversed respondent's §924(c)(1) conviction. United States v. Palma-Ruedas, 121 F.3d 841 (1997). A majority of the Third Circuit panel applied what it called the "verb test" to §924(c)(1), and determined that a violation of the statute is committed only in the district where a defendant "uses" or "carries" a firearm. Id., at 849. Accordingly, it concluded that venue for the §924(c)(1) count was improper in New Jersey even though venue was proper there for the kidnaping of Avendano. The dissenting judge thought that the majority's test relied too much "on grammatical arcana," id., at 865, and argued that the proper approach was to "look at the substance of the statutes in question," ibid. In his view, the crime of violence is an essential element of the course of conduct that Congress sought to criminalize in enacting §924(c)(1), and therefore, "venue for a prosecution under [that] statute lies in any district in which the defe ndant committed the underlying crime of violence." Id., at 863. The Government petitioned for review on the ground that the Third Circuit's holding was in conflict with a decision of the Court of Appeals for the Fifth Circuit, United States v. Pomranz, 43 F.3d 156 (1995). We granted certiorari, 524 U.S. ___ (1998), and now reverse.


Article III of the Constitution requires that "[t]he Trial of all Crimes shall be held in the State where the said Crimes shall have been committed." Art. III, §2, cl. 3. Its command is reinforced by the Sixth Amendment's requirement that "[i]n 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," and is echoed by Rule 18 of the Federal Rules of Criminal Procedure ("prosecution shall be had in a district in which the offense was committed").

As we confirmed just last Term, the " 'locus delicti [of the charged offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it.' " United States v. Cabrales, 524 U.S. 1, 6 7 (1998) (quoting United States v. Anderson, 328 U.S. 699, 703 (1946)).1 In performing this inquiry, a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.2 See Cabrales, supra, at 6 7; Travis v. United States, 364 U.S. 631, 635 637 (1961); United States v. Cores, 356 U.S. 405, 408 409 (1958); Anderson, supra, at 703 706.

At the time respondent committed the offense and was tried, 18 U.S.C. § 924(c)(1) provided:

"Whoever, during and in relation to any crime of violence for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence be sentenced to imprisonment for five years ." 3

The Third Circuit, as explained above, looked to the verbs of the statute to determine the nature of the substantive offense. But we have never before held, and decline to do so here, that verbs are the sole consideration in identifying the conduct that constitutes an offense. While the "verb test" certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.

In our view, the Third Circuit overlooked an essential conduct element of the §924(c)(1) offense. Section 924(c)(1) prohibits using or carrying a firearm "during and in relation to any crime of violence for which [a defendant] may be prosecuted in a court of the United States." That the crime of violence element of the statute is embedded in a prepositional phrase and not expressed in verbs does not dissuade us from concluding that a defendant's violent acts are essential conduct elements. To prove the charged §924(c)(1) violation in this case, the Government was required to show that respondent used a firearm, that he committed all the acts necessary to be subject to punishment for kidnaping (a crime of violence) in a court of the United States, and that he used the gun "during and in relation to" the kidnaping of Avendano. In sum, we interpret §924(c)(1) to contain two distinct conduct elements as is relevant to this case, the "using and carrying" of a gun and the commission of a kidnap ing.4

Respondent, however, argues that for venue purposes "the New Jersey kidnapping is completely irrelevant to the firearm crime, because respondent did not use or carry a gun during the New Jersey crime." Brief for Respondent 12. In the words of one amicus, §924(c)(1) is a "point-in-time" offense that only is committed in the place where the kidnaping and the use of a gun coincide. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 11. We disagree. Several Circuits have determined that kidnaping, as defined by 18 U.S.C. § 1201 (1994 ed. and Supp. III), is a unitary crime, see United States v. Seals, 130 F.3d 451, 461 462 (CADC 1997); United States v. Denny-Shaffer, 2 F.3d 999, 1018 1019 (CA10 1993); United States v. Godinez, 998 F.2d 471, 473 (CA7 1993); United States v. Garcia, 854 F.2d 340, 343 344 (CA9 1988), and we agree with their conclusion. A kidnaping, once begun, does not end until the victim is free. It does not make sense, then, to speak of it in discrete geograph ic fragments. Section 924(c)(1) criminalized a defendant's use of a firearm "during and in relation to" a crime of violence; in doing so, Congress proscribed both the use of the firearm and the commission of acts that constitute a violent crime. It does not matter that respondent used the .357 magnum revolver, as the Government concedes, only in Maryland because he did so "during and in relation to" a kidnaping that was begun in Texas and continued in New York, New Jersey, and Maryland. In our view, §924(c)(1) does not define a "point-in-time" offense when a firearm is used during and in relation to a continuing crime of violence.

As we said in United States v. Lombardo, 241 U.S. 73 (1916), "where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done." Id., at 77; cf. Hyde v. United States, 225 U.S. 347, 356 367 (1912) (venue proper against defendant in district where co-conspirator carried out overt acts even though there was no evidence that the defendant had ever entered that district or that the conspiracy was formed there). The kidnaping, to which the §924(c)(1) offense is attached, was committed in all of the places that any part of it took place, and venue for the kidnaping charge against respondent was appropriate in any of them. (Congress has provided that continuing offenses can be tried "in any district in which...

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