US v. Williams

• Decision Date: 24 April 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 99-2157,99-2157
• Citation: 274 F.3d 1079
• Parties: (6th Cir. 2001) UNITED STATES OF AMERICA,v. LEE WILLIAMS, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1079

274 F.3d 1079 (6th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. LEE WILLIAMS, DEFENDANT-APPELLANT

No. 99-2157

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 24, 2001

Decided and Filed December 20, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 98-81103--Robert H. Cleland, District Judge.

James C. Mitchell (argued and briefed), Assistant United States Attorney, Bay City, Michigan, for Plaintiff-Appellee.

Gary J. Crews (argued and briefed), Caro, Michigan, for Defendant-Appellant.

Before: Ryan and Batchelder, Circuit Judges; Matia, Chief District Judge.^*

OPINION

Ryan, Circuit Judge

Lee Williams was indicted and convicted by a jury for one count of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. On appeal, Williams raises many issues, but we need not reach most of them because we conclude, as a matter of law, that venue was not proper in Michigan where the case was tried and that the district court erred in denying Williams's motion to change venue.

Therefore, we will reverse the judgment of conviction.

I.

Lee Williams became involved in the drug conspiracy when Ronald Carboni, a government informant, contacted him to arrange the purchase of marijuana. Carboni became a confidential informant for the government, specifically the DEA, in order to reduce his sentence on drug charges unrelated to this case. He worked for, and supplied information to, Special Agent Cary Freeman in Michigan, by way of tape recorded conversations he had with Williams and co-defendant Rodolfo Del Bosque regarding his desire to purchase marijuana. All of the conversations and events in furtherance of the conspiracy took place in and around Houston, Texas.

On January 9, 1998, Carboni called Williams to arrange a purchase of marijuana. Carboni told Williams that he had $250,000 to spend and it was agreed that Williams would put Carboni in touch with Williams's brother-in-law, Del Bosque, who would provide the drug, and that Williams would receive $50 per pound of marijuana as a fee for arranging the deal.

Soon thereafter, a conversation took place between Carboni and Del Bosque in which they discussed Carboni's receiving marijuana at $425-$450 per pound, for a total of $250,000. Del Bosque told Carboni that the marijuana would be supplied to him by three people.

On January 31, 1998, Carboni and Williams spoke again on the phone. Carboni told Williams that he had $242,000 in cash and a check for $2,000 in order to buy the marijuana. This would mean that, at $450 per pound, Carboni could purchase 542.22 pounds. Carboni told Williams that he was going to give all his money to Del Bosque and that Del Bosque could give Williams his portion of the cash. When Carboni said he was still $2,000 short, Williams suggested that Carboni do some work on Williams's roof to make up the difference.

Carboni and Del Bosque met several times between 6:00 p.m. and 8:00 p.m. on January 31, while they waited for the marijuana to arrive. At one point, Carboni saw 20 pounds of marijuana in a refrigerator in Del Bosque's garage. Around 7:30 p.m. Carboni saw three men unloading large bundles from the trunk of a car in Del Bosque's garage. Shortly after 8:00 p.m. a search warrant was executed at Del Bosque's residence. Several large bundles were found at the side of the garage, where it appeared someone had hurriedly thrown them down, and still more marijuana was found in Del Bosque's garage.

Williams was indicted in the Eastern District of Michigan for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. He pled not guilty to the charge and filed a pretrial motion to change venue, arguing that Texas was the proper venue for the prosecution. The motion was denied. During the trial, Williams filed an objection to the proposed jury instructions regarding venue, but his objection was overruled. At the close of the trial, Williams moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29, but the motion was denied.

II.

At trial, most of the evidence introduced against Williams came from tape recorded conversations between Carboni, the undercover informant, and Williams, and between Carboni and Del Bosque. During a taped conversation between Carboni and Williams, Carboni asked, "[I]s there any good smoke around?" to which Williams responded, "Yeah . . . [p]lenty of it." The following colloquy ensued:

[Carboni]: . . . Set me up. . . .

[Williams]: Yep. . . . I can't really talk, man, you know. . . . Call me in the morning, man, about 11:30.

During a conversation the following day, Carboni and Williams further discussed the terms of the deal:

[Carboni]: I want to spend about 250,000.

[Williams]: Okay. Well -

[Carboni]: That way I'll have enough to where I can go up there to Michigan and stay there a while. Hey, Lee, up there they pay more per pound.

[Williams]: Yeah. Yeah, I know.

[Carboni]: And I mean it's much nicer, but don't get no trash. Get good ones. It don't have to be excellent. Medium. . . . As long as it's not all pressed in like a rock, I want nice fluffy buds --

[Williams]: Um-hmm.

[Carboni]: -- or if it's pressed, as long as it smokes good, I'll settle for that. And figure put your $50 apiece on each one.

[Williams]: Well, let's talk about that on another line, man.

At trial, Carboni testified that Williams referred him to his brother-in-law, Rodolfo Del Bosque, and made the arrangements for Carboni to contact Del Bosque.

According to the taped conversations, Carboni informed Del Bosque that it was his intention to take the marijuana he purchased in Texas and to sell it in Michigan. In furtherance of this plan, Carboni and Del Bosque met in a parking lot of a supermarket and discussed the deal. Del Bosque agreed to supply 520 pounds of marijuana for about $425 to $450 per pound. Carboni stated, "I want all the money at once to get all good ones. . . . And then I'll take off. I'm headed straight to Michigan." Later in the conversation:

[Del Bosque]: Let me ask you something. Can I count on you? If I tell this guy, "Hey, man, bring me a thousand pounds," will you turn them for me?

[Carboni]: Oh, yeah . . . [expletive], yeah.

[Del Bosque]: Okay.

[Carboni]: I'll even put all that 250 down just to show good faith.

[Del Bosque]: Look. Let me -- I was talking to Lee, you know, and, mind you, I don't want to put Lee to the side or nothing.

[Carboni]: Oh, I know.

[Del Bosque]: He's my brother-in-law. Okay? And the thing is that what I want to cut down is the activity, you know, me call him, him call you, you call him, he calls me. . . . That's how come I told him, "Let me talk to Ronnie. Let me tell him what we need to do in order to cut down on all this s---," you know . . . .

Williams was convicted on count one of conspiracy to possess with intent to distribute marijuana. He was sentenced to 71 months' imprisonment and five years' supervised release.

III.

Williams raises two claims of error regarding venue. He alleges that: (1) the district court's decision to deny his motion to change venue was error; and (2) the district court gave an improper instruction to the jury regarding venue.

Prior to trial, Williams filed a motion he termed "Motion for Change of Venue." In his brief before us, he makes two specific arguments regarding venue. First, that venue was improper in the Eastern District of Michigan, because, according to Fed. R. Crim. P. 18, prosecution is proper in "a district in which the offense was committed." Williams claims that since neither the offense nor any of the overt acts with which he is charged occurred in Michigan, but rather in Texas, venue was not proper in Michigan. Williams reminds us that he preserved the issue for appeal because he filed an objection to the proposed jury instructions regarding venue, but it was overruled.

Second, Williams argues that venue should have been transferred to Texas under Fed. R. Crim. P. 21(b) for the convenience of the parties.

For the reasons we shall discuss, we agree that venue was not proper in Michigan and that the case must therefore be transferred to Texas.

IV.

Article III, Section 2, Clause 3 of the United States Constitution states the basic venue requirements for criminal prosecutions under federal law.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

U.S. Const. art. III, § 2, cl. 3. "The guarantee is for a trial in the state and district where the offense was committed." United States v. O'Donnell, 510 F.2d 1190, 1192 (6th Cir. 1975). Further, this guarantee is applied through Fed. R. Crim. P. 18, which states:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.

Fed. R. Crim. P. 18.

"Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed." United States v. Johnson, 323 U.S. 273, 276 (1944). However, this court has stated, "[w]e conclude that venue is likewise a privilege granted to the accused rather than a jurisdictional prerequisite, a conclusion which is consistent with the overwhelming case law holding that improper venue may be waived." Williams v. United States, 582 F.2d 1039, 1041 (6th Cir. 1978).

Federal Rule of Criminal Procedure 21(b) states that a case may be transferred to another venue:

(b) Transfer in Other Cases. For the...