US v. Jordan
| Decision Date | 21 March 1994 |
| Docket Number | CR-N-93-95-ECR. |
| Citation | 846 F. Supp. 895 |
| Parties | UNITED STATES of America, Plaintiff, v. Kimberly JORDAN, and Steven Anderson, Defendants. |
| Court | U.S. District Court — District of Nevada |
L. Anthony White, Asst. U.S. Atty., Reno, NV, for plaintiff.
Thomas C. Bradley, Asst. Federal Public Defender, Reno, NV, for defendant Jordan.
Joseph R. Plater, Reno, NV, for defendant Anderson.
In this criminal case, defendant Steven Anderson brings a motion (Doc. # 55) to dismiss Counts two and three of the superseding indictment. The government's response and opposition are at document # 56.
The superseding indictment charges Defendant with several crimes, all involved with or related to a charged drug distribution ring. The crimes charged against Anderson are: (1) conspiracy to possess with intent to distribute and to distribute methamphetamine (count one); (2) unlawful use of a communication facility (counts two and four); (3) distribution of methamphetamine (count three); interstate travel in aid of racketeering (counts five and six); threatening a witness (count seven); and, obstruction of justice (count eight). Defendant is also charged with aiding and abetting in each of the above crimes.
The motion to dismiss Counts two and three is based on lack of venue. Defendant argues that although the Eastern District of California may have venue over these counts, venue does not reside in the District of Nevada.
Defendant contends that Counts two and three charge crimes which occurred entirely in the State of California and not within the District or State of Nevada. On this basis, Defendant claims venue over Counts two and three does not exist in Nevada.
Count two charges an unlawful use of a communication facility (a telephone) on or about November 5, 1993. Count two does not indicate where this particular unlawful use of a communication facility occurred other than an allegation that it occurred within the State and Eastern District of California and the State and District of Nevada on November 5, 1993. The indictment does not indicate where the call was received or from where the call was placed.1 If the call was received in or placed from Nevada, venue would exist in Nevada. United States v. Arias-Villanueva, 998 F.2d 1491, 1509 (9th Cir.1993) cert. denied, sub nom, Orantes-Arriaga v. United States, ___ U.S. ___, 114 S.Ct. 359, 126 L.Ed.2d 322.
The government aids us greatly by disclosing in its opposition (Doc. # 56 at p. 5, In. 1825) that the alleged unlawful use of a communication facility charged in Count two relates to a telephone call placed from the Nickelodeon Motel in South Lake Tahoe, California on November 5, 1993. The government discloses the call was made to the informant's residence also located in South Lake Tahoe, California. Thus, the charged act occurred entirely within the state of California, and without the state and district of Nevada.
Count three charges Defendant distributed methamphetamine on November 5, 1993. Count three does not indicate where this particular unlawful act of distribution occurred other than an allegation that it occurred within the State and Eastern District of California and the State and District of Nevada on November 5, 1993.
The third overt act charged in the conspiracy (Count one) indicates that on or about November 5, 1993 Defendant sold and distributed 3.6 grams of methamphetamine for $220.00 while at the Adventures in Video Store, South Lake Tahoe, California. The government admits (Doc. # 56, at p. 5, ln. 22-25) that the act of distribution alleged in Count three is the same act of distribution charged as an overt act in aid of the conspiracy and did indeed take place at the Adventures in Video Store located in South Lake Tahoe, California. Thus, the charged act occurred entirely within the state of California and without the state and district of Nevada.
The Sixth Amendment provides 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." U.S. Const. amend. VI. Federal Rule of Criminal Procedure 18 provides that venue for the place of prosecution and trial "except as otherwise permitted by statute or by these rules ... shall be had in a district in which the offense was committed."
The command of the Sixth Amendment and of Fed.R.Crim.P. 18 is clear. Venue is proper only in the district where the crime shall have been committed.
18 U.S.C. § 3237 provides that any offense against the United States 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. Venue exists over the crime of conspiracy in any district in which the conspiratorial agreement was formed and in any district where an overt act committed in the course of the conspiracy occurred. United States v. Meyers, 847 F.2d 1408, 1411 (9th Cir.1988).
Title 18 U.S.C. § 3237 and the rules of venue regarding conspiracy merely describe where a particular crime was committed. These rules define "commission" of certain crimes such that a single crime can be "committed" in multiple districts. These rules do not alter the fundamental rule of venue: venue is proper only in the district, or districts, where the crime charged was committed.
The government has admitted that the offenses charged in Counts two and three did occur entirely outside the state and district of Nevada. The government does not argue that these were continuing crimes, that an element of either crime took place in Nevada, or that either crime began, continued or was completed in Nevada. Under the plain meaning of the Sixth Amendment and Fed. R.Civ.P. 18, venue over Counts two and three does not exist in Nevada.
The government claims venue exists within the State and District of Nevada on the basis of a legal theory which would allow venue in Nevada despite the fact that the crimes occurred entirely outside of Nevada.
It is well settled that venue over the crime of conspiracy lies in any state in which the conspiratorial agreement was formed and venue is also appropriate in any district where an overt act committed in the course of the conspiracy occurred. United States v. Meyers, 847 F.2d 1408, 1411 (9th Cir.1988). The case of Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1183, 90 L.Ed. 1489 (1945) did not purport to affect venue but merely established that a substantive crime in furtherance of the conspiracy is "attributable to the others other conspirators for the purpose of holding them responsible for the substantive offense." Id. at 647, 66 S.Ct. at 1183.
The government cites several cases which establish that venue over a particular defendant charged with conspiracy or a substantive crime in furtherance of the conspiracy does not depend on the physical presence of that defendant in the state where the substantive crime occurred. Thus, conspirator A who has never been to Nevada may be prosecuted in Nevada for a criminal conspiracy so long as an overt act was committed in Nevada by conspirator B. United States v. Meyers, 847 F.2d 1408, 1411 (9th Cir.1988). Under these circumstances, conspirator A may also be prosecuted in Nevada for any substantive crimes committed in Nevada by Conspirator B in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1945) (); United States v. Stitzer, 785 F.2d 1506 (11th Cir.1986) cert. denied, sub nom, Perna v. United States, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 44 and United States v. Carrillo, 785 F.Supp. 884, 885 (D.Nev.1992) ().
The government argues for a rule of law allowing venue over a substantive crime committed in furtherance of a conspiracy to be had in any district where venue over the conspiracy may be had. The government claims that a contrary holding would undermine the holding of Pinkerton. The government claims that "if a co-conspirator's participation in a conspiracy did not create venue for the substantive offenses attributable to the co-conspirator under Pinkerton, that co-conspirator could not be held responsible for those substantive offenses." (Doc. # 56, at p. 8, ln. 7-10). The government misstates the case. The question is not whether venue exists, but where venue exists. Venue over the offenses charged in Counts two and three appears to exist in California. Defendant could be charged with these offenses in the Eastern District of California. There is no danger of the bogey-man the government claims to lurk around the corner. There is no danger that Defendant may escape any criminal liability for Counts two and three due to a complete lack of venue.
The government cites to no cases stating the rule they argue for. An independent review of the case law reveals no cases stating or denying such a rule.
Pinkerton allows co-conspirators to be held criminally responsible for substantive offenses committed in furtherance of a conspiracy by other conspirators. 328 U.S. at 647, 66 S.Ct. at 1183 Pinkerton, does not affect venue; it only determines the extent of criminal responsibility. Although A may be held responsible for a crime committed by B in Nevada under Pinkerton, the crime is still committed in Nevada and therefore venue exists in Nevada. If it is a continuing crime and was committed in other states, then venue will exist in those other states as well.
Nothing in Pinkerton or any other case we found indicates that...
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