United States v. Santurtan-Teran

• Decision Date: 09 June 2021
• Docket Number: CRIMINAL NO. 3.17-CR-298
• Parties: UNITED STATES OF AMERICA, v. CARLOS SANTURTAN-TERAN, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

UNITED STATES OF AMERICA, v. CARLOS SANTURTAN-TERAN, Defendant

CRIMINAL NO. 3.17-CR-298

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

June 9, 2021

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Here the Court considers Defendant's Motion to Dismiss (Doc. 364) in which he moves for dismissal due to lack of venue. (Id. at 1.) Alternatively, he requests that the case be transferred pursuant to Federal Rule of Criminal Procedure 21(b). (Id.) Defendant Santurtan-Teran ("Defendant") is one of eight Defendants named in the October 3, 2017, Indictment charging Conspiracy to Distribute and Possess with Intent to Distribute Controlled Substances, that substance being marijuana, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1)(C). (Doc. 1.) The Indictment states that the illegal activity took place "[f]rom in or about January 2017 to on or about the date of this Indictment, within the Middle District of Pennsylvania, and elsewhere." (Doc. 1 at 1.) The Indictment also contains a forfeiture allegation. (Id. at 3.) Only Defendants Santurtan-Teran and Jose Luis Gonzalez Sr. have not pled guilty.

II. BACKGROUND¹

This case arises from communications intercepted in the course of the investigation of another conspiracy relating to the distribution of cocaine and heroin in Connecticut and Pennsylvania. As the result of a subsequent court-authorized wiretap in the Middle District of Pennsylvania for telephones used by Jose Luis Gonzalez, Sr., ("Gonzalez Sr.) during 2017, DEA agents intercepted phone calls between Gonzalez Sr., Defendant, and others. Through these calls, agents learned of a marijuana grow operation in Michigan. The communications demonstrate that Gonzalez Sr. was the main investor of the finances to set up the operation and directed the day to day operations over his telephone from Stroudsburg, Pennsylvania. (Doc. 366 at 3.) Defendant's alleged participation in the grow operation consists of the installation of coolant towers. (Doc. 365 at 3.)

At the Motion Hearing held on March 24, 2021, the Government presented one witness, Task Force Officer John Egan. Defendant did not call any witnesses. Pertinent to the disposition of the pending motion, Officer Egan testified about a series of communications involving Gonzalez Sr., Defendant Carlos Roman, and Defendant Santurtan-Teran wherein specifics regarding the Michigan grow operation were discussed. (Doc. 430 at 3.) For at least two calls, identified as Session 1348 and Session 1437, Gonzalez Sr. was located in the Middle District of Pennsylvania. (Id. at 4.)

At the close of the motion hearing, Defendant's counsel requested the opportunity to file a supplemental brief and Government counsel agreed to file a responsive brief. (Doc. 428 at 67, Hr'g Tr. 67:12-13, 15-17.) The parties timely filed the agreed-upon briefs. (Docs. 429, 430.) Therefore, the pending motion is ripe for disposition.

III. ANALYSIS

As noted above, Defendant contends that dismissal is appropriate because venue is improper in the Middle District of Pennsylvania or, alternatively, the case should be transferred to a United States District Court in Michigan. Defendant's initial position is that the telephone calls where the Michigan grow operation was discussed and Gonzalez Sr. was on his cellular phone in the Middle District of Pennsylvania are insufficient to establish venue in the Middle District. The Government opposes the motion and argues that venue is proper in the Middle District of Pennsylvania because the telephone calls are overt acts in furtherance of the conspiracy charged in the Indictment.

The United States Constitution safeguards a defendant's right to proper venue in criminal trials. See United States v. Baxter, 884 F.2d 734, 736 (3d Cir. 1989). Both Article III and the Sixth Amendment require that a defendant's criminal trial take place in the state where the alleged crime occurred. See U.S. Const. art. III, § 2, cl. 3 ("[T]he trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed."); U.S. Const. amend. VI ("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 shallhave been committed."). Rule 18 of the Federal Rules of Criminal Procedure reflects these constitutional mandates and provides that "the government must prosecute an offense in a district where the offense was committed." United States v. Cabrales, 524 U.S. 1, 6 (1998); Fed. R. Crim. P. 18. Rule 18 additionally requires that the court "set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice." Fed. R. Crim. P. 18.

The Third Circuit explained in United States v. Auernheimer, 748 F.3d 525 (3d Cir. 2014), that

Congress may prescribe specific venue requirements for particular crimes. [United States v. Pendleton, 658 F.3d 299, 303 (3d Cir. 2011)]. Where it has not, . . . we must determine the crime's locus delicti. Id.; see also Black's Law Dictionary 1025 (9th ed.2009) (defining locus delicti as the "place where an offense was committed"). "[T]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946); accord United States v. Rodriguez-Moreno, 526 U.S. 275, 279, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999); Cabrales, 524 U.S. at 6-7, 118 S.Ct. 1772. To perform this inquiry, we "must [1] initially identify the conduct constituting the offense ... and then [2] discern the location of the commission of the criminal acts." Rodriguez-Moreno, 526 U.S. at 279, 119 S.Ct. 1239. Venue should be narrowly construed. Johnson, 323 U.S. at 276, 65 S.Ct. 249.

Continuing offenses, such as conspiracy, that are "begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). In the context of a conspiracy charge, "venue can be established wherever a co-conspirator has committed an act in furtherance of the conspiracy." [United States v. Perez, 280 F.3d 318, 329 (3d Cir. 2002)]; accord Hyde v. United States, 225 U.S. 347, 356-67, 32 S.Ct. 793, 56 L.Ed. 1114 (1912).

Auernheimer, 748 F.3d at 532-33.

As noted in United States v. Caldwell, 16 F.3d 623, (5th Cir. 1994), the Supreme Court has upheld the application of the venue rule regarding conspiracy, "even where it permits trial against defendants in a district they never even set foot in prior to trial." Id. at 624 (citing Hyde v. United States, 225 U.S. 347, 362 (1912); see also United States v. Rommy, 506 F.3d 108, 120 (2d Cir. 2007). It is widely accepted that overt acts for a conspiracy can include telephone calls. As stated in Rommy,

[i]t is beyond question that telephone calls can constitute overt acts in furtherance of a conspiracy. See United States v. Smith, 198 F.3d [377, 382 (2d Cir. 1999)]; United States v. Naranjo, 14 F.3d [145, 147 (2d Cir. 1994)]; United States v. Friedman, 998 F.2d 53, 57 (2d Cir.1993). In cases involving telephone calls between co-conspirators in different districts, we have ruled that venue lies "in either district as long as the calls further the conspiracy." United States v. Smith, 198 F.3d at 382. In such circumstances, the direction of the call is irrelevant to venue. Id.

Rommy, 506 F.3d at 119-20; see also United States v. Barnes, 681 F.2d 717, 724 (11th Cir.), reh'g denied, 694 F.2d 233 (11th Cir.1982), cert. denied, 460 U.S. 1046 (1983) (drug trafficking crime "is 'committed' for venue purposes both in the district where the call was made and in the district where the call was received."); accord United States v. Kim, 246 F.3d 186, 193 n. 5 (2d Cir.2001) (observing that phone call "to or from" a district can establish venue in that district as to any member of conspiracy); see also United States v. Cannistraro, 800 F. Supp. 30, 45 (D.N.J. July 22, 1992).

Defendant acknowledges that, in a conspiracy case, "'venue can be established wherever a co-conspirator has committed an act in furtherance of the conspiracy'" (Doc. 365at 6 (quoting Auernheimer, 748 F.3d at 533), and agrees with the Government "that a single phone call can qualify as an overt act" (Doc. 429 at 4). Despite these acknowledgements, Defendant maintains that the Government is incorrect that a single phone call "can give rise to venue where there is no conspiracy to commit a crime or part of a crime in the district where the case had been brought." (Id. at 4-5.)

In his supplemental brief, Defendant's conclusion is unsupported by citation or further argument. However, Defendant makes a similar claim in his initial brief, relying on Auernheimer to support of his argument that the Government has not shown that venue is proper in the Middle District of Pennsylvania because it has not shown that "essential conduct elements" of the underlying offense of 18 U.S.C. § 841(a)(1) occurred in the Middle District. (Doc. 365 at 7-8.)

In determining venue, a court must "separate 'essential conduct elements' from 'circumstance elements.'" [Auernheimer, 748 F.3d at 533] (quoting Rodriguez-Moreno, 526 U.S. at 280, n.4). Only "essential conduct elements" can provide the basis for venue. Id. (citing United States v. Bowens, 224 F.3d 302, 310 (4thCir. 2000)). In assessing the essential conduct elements on a charge of conspiracy, the Court looks to the essential conduct elements of the underlying offense. See id. Here, the underlying offense is a violation of 18 U.S.C. § 841(a)(1). The essential conduct element of that offense is the manufacturing, distribution, possession with intent to distribute, etc., marijuana.

(Doc. 365 at 7.)

Defendant's reliance on Auernheimer for the proposition that venue is dependent on whether an...