U.S.A. v. Saavedra

• Decision Date: 09 December 1999
• Docket Number: 99-1174,Nos. 99-1146,s. 99-1146
• Citation: 223 F.3d 85
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. MARCELINO SAAVEDRA, also known as King Maas; LUIS RODRIGUEZ, also known as King Pirate, Defendants-Appellants, NEPHTALI DEJESUS, also known as King 75; RICHIE MARQUEZ, also known as King Richie; HENRY ARIAS, also known as King Henry; GEORGE PACHECO, also known as King Wicked; NESTOR GUZMAN, also known as King Nes; VICTOR COLON, also known as King Loco; DIEGO MATEO, also known as King Casa; CARLOS PEREZ, also known as King Carlito; DANIEL LOPEZ, also known as King Danny; FRANKIE CORTEZ, also known as King Rem, Defendants
• Court: U.S. Court of Appeals — Second Circuit

Page 85

223 F.3d 85 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. MARCELINO SAAVEDRA, also known as King Maas; LUIS RODRIGUEZ, also known as King Pirate, Defendants-Appellants, NEPHTALI DEJESUS, also known as King 75; RICHIE MARQUEZ, also known as King Richie; HENRY ARIAS, also known as King Henry; GEORGE PACHECO, also known as King Wicked; NESTOR GUZMAN, also known as King Nes; VICTOR COLON, also known as King Loco; DIEGO MATEO, also known as King Casa; CARLOS PEREZ, also known as King Carlito; DANIEL LOPEZ, also known as King Danny; FRANKIE CORTEZ, also known as King Rem, Defendants.

Nos. 99-1146, 99-1174

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

December 9, 1999, Argued

August 17, 2000, Decided

KEVIN S. REED, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney, Baruch Weiss, Assistant United States Attorney, Southern District of New York, New York, New York, of counsel), for Appellee United States of America.

JOSHUA L. DRATEL, Joshua L. Dratel, P.C., New York, New York; Martin J. Siegel, New York, New York, for Appellant Luis Rodriguez.

Lee Ginsberg, New York, New York (Rachel Israel, Freeman, Nooter & Ginsberg, New York, New York, of counsel), filed a brief for Appellant Marcelino Saavedra.

Before: CARDAMONE, CABRANES, Circuit Judges, and KEENAN^*, District Judge.

Judge Cabranes dissents in a separate opinion.

CARDAMONE, Circuit Judge:

Defendants Marcelino Saavedra and Luis Rodriguez appeal from judgments of conviction entered on March 18 and March 24, 1999, respectively, in the United States District Court for the Southern District of New York after a jury trial before Judge Shira A. Scheindlin. Defendants were found guilty of conspiring to commit and attempting to commit an assault in aid of racketeering, both in violation of 18 U.S.C. 1959(a)(6).

The question before us is where venue should lie for this criminal prosecution. Venue ordinarily lies only in the state and district where the offense was committed. That rule, derived from two constitutional guarantees, is intended to afford an accused the protection of being tried in the place where he was physically present when the crime was committed. Under it, venue appears to be well and wisely fixed. But, in today's wired world of telecommunication and technology, it is often difficult to determine exactly where a crime was committed, since different elements may be widely scattered in both time and space, and those elements may not coincide with the accused's actual presence. Such is the circumstance in the present case where venue was laid for the prosecution of the instant case in a district where defendant was not physically present at the time of the charged offense.

BACKGROUND

A. Facts

On October 23, 1997 Nephtali DeJesus, a member of the Latin Kings, a violent Hispanic gang headquartered in Manhattan, learned that his common-law wife, Carmen Salgado, pregnant with their child at the time, had been severely beaten by her brother, Jose Sierra. That same day, Sierra went to DeJesus' home at 315 Parkville Avenue in Brooklyn. There, pounding on the door and demanding to be let in, he threatened to kill DeJesus. When DeJesus did not admit him, Sierra left. In response to Sierra's threatening conduct, DeJesus paged Victor Colon, his assistant within the Latin Kings, to ask for help. Colon, then a government informant, answered DeJesus' page. In a telephone conversation that Colon recorded, DeJesus recounted Sierra's violent conduct and asked Colon to summon a group of Latin King members to DeJesus' Brooklyn home.

Following DeJesus' request, Colon gathered several gang members and accompanied them to DeJesus' home, after first donning a transmitting device. Defendant Marcelino Saavedra was among those who went to DeJesus' apartment with Colon. When they arrived, several other Latin Kings were already waiting. DeJesus described for the group how Sierra had beaten Salgado and threatened him earlier in the day. He made it clear that he expected his fellow Latin Kings to help him resolve his "beef" with Sierra by intercepting Sierra at a nearby Brooklyn intersection and assaulting him there. DeJesus arranged for one member, Nestor Guzman, to bring a gun, while other gang members armed themselves with implements such as a knife and a metal chain. Sometime later, three other Latin King members -- defendants Luis Rodriguez, Henry Arias, and Richard Marquez -- came to DeJesus' home, and were also briefed on the dispute with Sierra.

At trial Colon explained that before the Latin Kings engaged in any violent conflict, its rules required DeJesus to secure the approval of the senior-most officer present, in this case, Marquez. Hence, it was only after Rodriguez and Marquez arrived that the group could hold an official meeting. This they did by forming a circle, kneeling, and reciting opening prayers, and then intoning a special prayer known as the "Mortal Warrior Prayer, " which is used only on those occasions when the Latin Kings' plans are likely to lead to violence. At the meeting a minor dispute arose over Henry Arias' unwillingness to join in the planned assault on Sierra. This refusal violated the rule that a Latin King never fights alone. Instead, the rules require all members, when asked, to participate in gang-sanctioned conflict. Jorge Pacheco, a cooperating witness, testified that he had never seen anyone refuse to participate, and speculated that the consequences for such a refusal would be severe.

At the end of the meeting, those present divided into smaller groups, removed their black and gold Latin King beads to avoid calling attention to themselves, and headed toward the intersection where Sierra was to be confronted. Alerted by Colon's transmitting device, the police moved in and made arrests shortly after everyone left DeJesus' apartment and before any of them had reached the place where the assault was to occur.

B. Prior Proceedings

Prior to trial defendants moved to dismiss the charges against them because of improper venue, arguing that because the activities charged in the indictment occurred in Brooklyn, wholly within the Eastern District of New York, there was no nexus with the Southern District creating jurisdiction to try them there. In a September 29, 1998 order the trial court denied defendants' motion, but stated that after the government's case in chief had been presented, defendants could move once again to dismiss for improper venue. Accordingly, defense counsel moved to dismiss at the close of the government's case, at the close of summations, and following the announcement of the guilty verdicts.

Reserving decision each time, the district court later received written submissions from the parties and issued a written order on December 18, 1998 again denying defendants' motion and ruling that venue was proper in the Southern District of New York. Reasoning that the 18 U.S.C. 1959 violations with which defendants were charged were "continuing offenses" that could be prosecuted in any district in which the related racketeering enterprise operated, it found sufficient evidence in the record that the Latin Kings operated in the Southern District during the time set out in the indictment.

DISCUSSION

Saavedra and Rodriguez raise several issues on appeal. Only one warrants discussion: whether venue in the Southern District of New York was proper under the circumstances of this case. The remaining points raised are resolved by a summary order filed herewith.

I Forum for Venue

A. Constitutional Guarantees

The constitutional limits on where a criminal defendant can be brought to trial derive from two separate provisions of the Constitution and also from the Federal Rules of Criminal Procedure. Article III requires that "the trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed." U.S. Const. art. III, 2, cl. 3. The Bill of Rights in the Sixth Amendment further clarifies the appropriate forum for venue, specifying 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." Rule 18 of the Federal Rules of Criminal Procedure codifies the constitutional command, stating that "prosecution shall be had in a district in which the offense was committed."

It is worth a few words of historical background to describe how the constitutional provisions had their genesis. Among the most prominent reasons for the provisions were action taken by England that led up to the Revolution. By Royal Edict, American Colonists accused of treason against the Crown in Massachusetts Bay Colony were to be tried for that crime in England. Such royal order aroused passionate objection in the Colonies on behalf of those who were to be conveyed to a distant land to be tried before strangers without having witnesses available to testify to their innocence. See William Wirt Blume, The Place of Trial of Criminal Cases: Constitutional Vicinage and Venue, 43 Mich. L. Rev. 59, 64 (1944). The feeling of outrage was so strong that "transporting us beyond Seas to be tried for pretended offenses" is listed as one of the causes of the Revolution and is set forth in the Declaration of Independence.

Further, in early common law, actions were thought of as local or transitory. Local when the cause of action could not have occurred in any other place; transitory when it could have arisen in one or more places. The rule permitting plaintiff in the case of a transitory action to lay venue wherever he wanted to caused such hardship to defendants that it was decreed by statute in England that venue should be laid where the cause of action arose. See Roscoe Pound & Theodore F.T. Plucknett, History & System of the Common Law, 427-28 (3d ed. 1927). Our constitutional rule -- based on its history -- requires that venue be...