United States v. Sitzmann

• Decision Date: 29 June 2018
• Docket Number: No. 15-3074,15-3074
• Citation: 893 F.3d 811
• Parties: UNITED STATES of America, Appellee v. Gregory Joel SITZMANN, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

893 F.3d 811

UNITED STATES of America, Appellee

v.Gregory Joel SITZMANN, Appellant

No. 15-3074

United States Court of Appeals, District of Columbia Circuit.

Argued March 22, 2018

Decided June 29, 2018

Paul L. Knight, Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, John P. Mannarino, and George P. Eliopoulos, Assistant U.S. Attorneys.

Before: Griffith and Katsas, Circuit Judges, and Edwards, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge Katsas.

Opinion dissenting from the disposition in Part II.F filed by Senior Circuit Judge Edwards.

Per Curiam:

On May 21, 2012, following a 23–day trial, a jury found appellant Gregory Sitzmann guilty of one count of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and § 846 (2012). The Government presented evidence at trial that, from approximately 1990 to 2004, Sitzmann participated in a conspiracy to traffic large quantities of cocaine from Mexico and Colombia to the United States, Canada, Europe, and elsewhere.

Following his conviction, Sitzmann filed a motion for judgment of acquittal or, in the alternative, a new trial, challenging his conviction on the grounds that venue was improper and that the Government had impermissibly introduced and relied on testimony regarding the guilty plea of one of Sitzmann’s co-conspirators. Sitzmann filed a separate motion contending that the Government violated its obligations under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose materially exculpatory evidence to the defense, and also presented false evidence at trial in violation of Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The District Court denied these motions.

On appeal, Sitzmann contends that the District Court erred in rejecting his claim that the Government "manufactured venue" in this case and erroneously concluded that venue was proper in the District of Columbia ("District" or "D.C."). He also asserts that the District Court erred in denying his Brady and Napue claims and his assertion that the Government impermissibly introduced and relied on evidence of his co-conspirator’s guilty plea at trial. He further contends that the District Court was mistaken when it rejected his pre-trial motion urging that the court lacked jurisdiction over alleged criminal wrongdoing involving extraterritorial drug activity. And he argues that his trial attorney provided ineffective assistance of counsel.

We find no merit in Sitzmann’s challenges to the aforementioned rulings of the District Court. We therefore affirm his conviction.

I. BACKGROUND

On August 7, 2008, a federal grand jury indicted Sitzmann on the drug conspiracy charges at issue in this case. Sitzmann was the only defendant charged in the indictment under which he stood trial. At trial, however, the Government alleged that, from approximately 1990 to 2004, Sitzmann participated in the charged conspiracy with several other individuals, including John Sager, Jerry Harvey, Gary Paulson, and George Jones.

The evidence against Sitzmann consisted of recorded conversations and testimony from Sitzmann’s alleged co-conspirators and others, Sitzmann’s own statements, physical and documentary evidence, and expert testimony. The evidence showed that the conspiracy began in the early 1990s when Sitzmann was incarcerated in a Florida prison for unrelated cocaine charges and became acquainted with fellow inmates Sager, Harvey, and Paulson. While incarcerated, Sitzmann, Sager, and Harvey had conversations about using airplanes to smuggle drugs. Sitzmann and Paulson also discussed smuggling cocaine into Canada following their release from prison; Sitzmann told Paulson he had a cocaine supplier in Mexico, and Paulson agreed to connect Sitzmann to individuals in Canada to whom Sitzmann could supply cocaine in the future.

Following Sitzmann’s release from prison in the mid-1990s, he engaged in several overt acts in furtherance of the drug conspiracy. For example, he discussed with his co-conspirators plans to launder money and fly planes to traffic cocaine from South America to Europe. Sitzmann, Jones, and other co-conspirators transported cocaine from Mexico to Canada using SUVs with modified gas tanks. And in February 2004, Sitzmann was arrested in France after French authorities found seven kilograms of cocaine hidden in his rental car. Sitzmann remained incarcerated for that offense in France for several years. During a voluntary conversation with federal authorities in 2008, Sitzmann admitted that, between December 2003 and February 2004, he passed through the United States on at least one occasion when he was smuggling 14 to 16 kilograms of cocaine from Colombia to Europe.

Sitzmann and his co-conspirators engaged in other drug activities in the United States during the course of the ongoing conspiracy. For example, Sitzmann admitted to authorities that, in the mid-1990s, he and Jones went to Chicago to acquire several kilograms of cocaine. In the early 2000s, Sitzmann and another individual named Terrence Colligan "shined up" 16 kilograms of cocaine in Jones’ home in Florida. Trial Tr. (4/30/12) at 59–62. And in 2002, Colligan "cut" two kilograms of cocaine for Sitzmann in the same home while Jones and Sitzmann were both present. Gov’t Ex. 1025, reprinted in Supplemental Appendix ("S.A.") 719. Unbeknownst to Sitzmann and Jones, Colligan had been working as a Government informant since 2000.

Former D.C. police officer William Buss participated in the Government’s investigation of Sitzmann. At Sitzmann’s trial, Buss testified that during the course of his investigation he learned that Jones attempted to acquire 20 kilograms of cocaine from Sitzmann between approximately September or October 2003 and January 2004. When Sitzmann failed to supply the cocaine, Jones turned to Colligan to see if he could provide it. After Colligan reported Jones’ request to law enforcement officers, the officers organized a controlled delivery of cocaine to Jones in order to facilitate the arrest of Jones. As part of this plan, Colligan offered to supply Jones with 20 kilograms of cocaine.

On March 11, 2004, Jones and Colligan met in Florida to discuss the deal. Jones assured Colligan that he had buyers for the cocaine, but the deal fell through when it became clear that Jones did not have the money to purchase the drugs. Colligan then returned to D.C. When Jones called Colligan several days later, Colligan—at the Government’s urging—offered to return to Florida to supply 16 kilograms of cocaine, but told Jones he needed $1,000 to cover the costs of transporting the cocaine from Washington, D.C. to Florida (where Jones was at the time). The next day, Jones caused $1,000 to be wired from Florida to D.C.

Agents arrested Jones in Florida on March 26, 2004, right after Colligan delivered him the 16 kilograms of cocaine. During a search of Jones’ home, agents found several items belonging to Sitzmann, including bags with secret compartments, documents, and supplies for storing drugs. Jones was charged with conspiracy to possess and distribute cocaine as well as conspiracy to commit money laundering. He pled guilty and agreed to cooperate with the Government in the case against Sitzmann. Jones provided grand jury testimony, but passed away before Sitzmann’s trial. However, during Sitzmann’s trial, Buss testified that Jones had pled guilty to cocaine conspiracy charges and cooperated with the Government before his death. Defense counsel neither objected to this testimony nor requested a jury instruction precluding the jury from using Jones’ guilty plea as substantive evidence against Sitzmann.

The wire transfer from Jones (in Florida) to Colligan (in D.C.) became a point of contention between the parties before and during trial. The District Court concluded that the wire transfer established venue in D.C. for Sitzmann’s conspiracy charge. Prior to trial, Sitzmann filed a motion to dismiss the case, alleging that the Government had impermissibly "manufactured venue" by orchestrating the wire transfer solely for the purpose of creating venue in D.C. See United States v. Sitzmann (Sitzmann IV ), 74 F.Supp.3d 96, 113–14 (D.D.C. 2014). Sitzmann also filed a motion to transfer venue to Florida. Id. The District Court denied both motions. The District Court judge doubted whether "venue manipulation" or "venue entrapment" were viable theories in this circuit and explained that, even if such concepts existed, the overt acts in this conspiracy were "committed in many, many different places" so there was "nothing unfair" about having the criminal prosecution of Sitzmann in the District of Columbia. Tr. of Motions Hearing (9/8/11) at 41.

The topic of venue arose again at trial. Buss testified that the purpose of having Colligan ask Jones to wire funds to D.C. was to "see some good faith from Jones" and to "g[i]ve us venue to make the arrest [of Jones] in Washington, D.C." Trial Tr. (4/30/12) at 80, 87. Following Buss’ testimony—and at the urging of the prosecution, with the consent of Sitzmann’s counsel—the trial judge gave a mid-trial jury instruction stating that "[v]enue is a legal question about where a case may be filed and tried. I have already decided that venue is proper in this Court. It is not a question for the jury to decide." Id. at 123. After both sides had rested, however, defense counsel argued for the first time that the question of venue should be submitted to the jury. Defense counsel requested that the jury be instructed that: "If you find that there was a conspiracy, but it was not in or did not involve the District of Columbia, then you must acquit the defendant, notwithstanding any other issues in the case."...