United States v. Muhammad, Bilal ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4717
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BILAL MUHAMMAD, also known as
ROBERT BRIGGS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 136—Rudolph T. Randa, Chief Judge.
____________
ARGUED SEPTEMBER 19, 2006—DECIDED SEPTEMBER 14, 2007
____________
Before RIPPLE, MANION and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Bilal Muhammad, also known as
Robert Briggs, was indicted in the Eastern District of
Wisconsin on two counts: (1) attempt to possess and to
distribute a controlled substance in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B) and (2) knowingly and corruptly
persuading another person, with intent to hinder, delay
and prevent the communication to a law enforcement
officer, of information relating to the commission of a
federal offense in violation of 18 U.S.C. § 1512(b)(3) and
2 No. 05-4717
(2).1 Mr. Muhammad was tried on September 14, 2005; a
jury returned verdicts of guilty on both counts. He was
sentenced to 135 months in prison on the first count and
60 months in prison on the second count. The sentences
were to run concurrently. Mr. Muhammad filed a timely
appeal. He now contends that venue was improper,
that the district court erred in not instructing the jury on
venue and that his constitutional rights were infringed
when the Government introduced evidence that Mr.
Muhammad had called his attorney after a vehicle driven
by his companions in the scheme was stopped for a traf-
fic violation. That vehicle subsequently was found to
contain cocaine. For the reasons set forth in this opinion,
we affirm the judgment of the district court.
I
BACKGROUND
A.
During the last week of March 2005, Bilal Muhammad
contacted his cousin, James Kendrick Willis, about a
vacation to Phoenix, Arizona. Both men lived in Milwau-
kee. The two determined that they would take a bus from
Milwaukee to Phoenix and then return to Milwaukee
by bus at the conclusion of the vacation. Before leaving,
Mr. Muhammad and Willis went shopping. First, they
went to a clothing store where Willis purchased new
clothing, cologne and a watch; Mr. Muhammad financed
the purchases. Mr. Muhammad also purchased a new
1
This witness tampering charge is not before this court on
appeal.
No. 05-4717 3
cell phone at a corner liquor store. The men then proceeded
to Mr. Muhammad’s house where Willis showered and
put on his new clothes.
The men got a ride from a friend of Mr. Muhammad’s
to the bus station in downtown Milwaukee. They missed
the bus, but one of Mr. Muhammad’s female friends drove
the two men to the Greyhound bus station in Chicago. It
took the two several days to get to Phoenix. During the
trip, Mr. Muhammad’s bag was searched at a stop in
New Mexico. They arrived in Phoenix very early in the
morning of Monday, March 28. Kevin Reid met the men
upon their arrival in Phoenix.
After their arrival, Mr. Muhammad called Linda Juarez
to discuss whether she would be willing to meet him in
Phoenix. Juarez also lived in Milwaukee and the two had
become friends. In February 2005, Juarez had gone to Mr.
Muhammad’s home in Menomonee Falls, Wisconsin,
where he had shown her a large sum of money that he had
stated totaled $100,000 in cash.
Juarez agreed to come to Phoenix when Mr. Muhammad
offered to put her in touch with individuals in Phoenix
who could help her with her aspirations to become a
clothing designer. The two decided that Juarez would fly
to Phoenix on March 30th. Juarez initially had planned to
travel with her friend Alice Kovacs, but Kovacs was unable
to find someone to watch her son. Juarez telephoned
Mr. Muhammad to inform him that Kovacs no longer
would be available to accompany her. Mr. Muhammad
already had purchased non-refundable tickets for both
Kovacs and Juarez. Consequently, when Juarez called to
inform Mr. Muhammad that Kovacs would not be able to
make the trip, he became agitated. Nevertheless, he
agreed to purchase another ticket for Juarez’s sister, Tanya
4 No. 05-4717
Juarez. Juarez understood that she would be flying both
ways, and Mr. Muhammad informed her she could pick up
the airline tickets that he had purchased at the airport.
The women left on a flight from Milwaukee and arrived
in Phoenix at approximately 7:00 p.m. Mr. Muhammad
met them at the airport. He brought Willis and Reid along;
Reid drove the car. The five went out to dinner and
Mr. Muhammad paid the bill. The two women checked
into a hotel, and Mr. Muhammad paid the hotel bill as well.
The men stayed at Reid’s home.
The next day, Willis and Mr. Muhammad went to the
hotel to pick the women up. Mr. Muhammad had told
Juarez that she would be meeting with someone to discuss
her clothing line. First, however, the group stopped at
Reid’s home. Mr. Willis went inside for a brief period and
then the group proceeded to the bank. Juarez and Mr.
Muhammad went into the bank to meet with the manager,
but the manager was not available, and, therefore, they
decided to return to the bank later. The group next went to
the mall where Mr. Muhammad gave both Linda and
Tanya Juarez $500 each to spend. The group then returned
to the bank, and again only Linda Juarez and Mr. Muham-
mad entered. Mr. Muhammad had a check for $30,000
which he asked the manager to cash. He stated that the
money was for a land auction. After Mr. Muhammad
received the money, the pair left the bank. The group then
proceeded to a strip mall where Juarez met briefly with a
man allegedly willing to help her become a clothing
designer. At the meeting, she had the impression that
the man was uninterested in clothing design.
At some point during the day, the women learned that
they were not going to be flying home, but rather were
No. 05-4717 5
going to drive back to Milwaukee. Mr. Muhammad told
the women that his secretary had failed to book properly
their return flights. Mr. Muhammad and Reid left to obtain
another car for the journey back to Milwaukee. Meanwhile,
Willis stayed with the women at Reid’s home. When Mr.
Muhammad and Reid returned, they were carrying large
Target-brand plastic bags. They took these bags into the
back room, and the men remained there for hours.
The group left for Milwaukee at approximately 10:00
p.m. on April 1. The plan was to drive through the night
and to continue until they arrived in Milwaukee. Linda
and Tanya Juarez were in one car; Mr. Muhammad and
Willis were in another. Mr. Muhammad’s car was leading
and the women were following, although he had told
Juarez to “keep her distance.” R.106 at 170. The two cars
stopped for gas at the same time, and Mr. Muhammad
always paid the bills. The route took the caravan through
Texas. Tanya Juarez was driving the second vehicle at the
time. At approximately 11:00 a.m. the next day, a Texas
state trooper stopped the car for following an eighteen
wheeler at an unsafe distance. The trooper asked Tanya
Juarez to step out of the car she was driving and into the
squad car. Linda Juarez stayed in the car and received a
cellular phone call from Mr. Muhammad. He told her not
to let the state trooper search the car. Tanya Juarez, how-
ever, consented to a search of the vehicle. The state trooper
found a rental agreement for the car stating that it was
to be returned in Milwaukee. He also discovered three
kilograms of cocaine in a suitcase located in the trunk of
6 No. 05-4717
the car.2 The trooper then arrested the sisters; they spent
five days in jail before their parents posted bond.
After the sisters had been stopped, Willis heard Mr.
Muhammad call someone and state that he would get the
sisters a lawyer if they encountered any problems. The
Government submitted into evidence a telephone record
demonstrating that Mr. Muhammad had called his attor-
ney several times after the women’s car had been
stopped by the trooper, and commented on these tele-
phone calls during closing arguments. He also had
made arrangements, over the phone, to fly out of
Oklahoma City. After he finished using his cellular phone,
Mr. Muhammad instructed Willis to throw his cellular
phone out the window because he feared that it might be
bugged. The men then drove to Oklahoma City. Willis took
a bus back to Milwaukee and Mr. Muhammad took a
plane to the same destination.
2
There is some dispute regarding two computer-generated
maps about which the Texas state trooper testified. These maps
show routes from Amarillo, Texas to Oklahoma City and from
Phoenix, Arizona to Oklahoma City. The Government con-
tends that these maps were demonstrative exhibits created for
trial, while Mr. Muhammad argues that the maps were re-
covered from the Juarez sisters’ rental car. The state trooper
identified the maps during his direct examination, and stated
that the highlighted routes would include the road on which
the two women were stopped. The record does nothing to
elucidate the origin of these maps. However, the state trooper
never stated expressly that he had recovered them in the vehicle.
No. 05-4717 7
B.
At trial, before the Government rested its case, counsel
for Mr. Muhammad asked to be heard on whether venue
was proper in the Eastern District of Wisconsin. Both Mr.
Muhammad’s attorney and the Assistant United States
Attorney submitted memoranda to the court on this
subject.
Mr. Muhammad’s counsel argued that our decision in
United States v. Tingle, 183 F.3d 719 (7th Cir. 1999), ought
to control. He argued that all of the events that actually
occurred in the Eastern District of Wisconsin should be
characterized as merely preparatory and thus incapable of
supporting venue in that district. At the close of the
prosecution’s case, Mr. Muhammad’s counsel reiterated his
venue argument. He contended that the case was
mischarged as an attempt crime and should have been
charged as a completed offense in a different venue.
The Government replied that Tingle was not controlling
because, in Tingle, the offense charged was the completed
offense. Venue had been improper in that case because no
aspect of the completed crime actually had been com-
mitted in the Eastern District of Wisconsin. In the Govern-
ment’s view, Mr. Muhammad’s actions constituted the
exact sort of conduct prohibited by the attempt statute
because he had taken substantial steps towards committing
the offense of possession with intent to distribute. He had
called Juarez, brought her and her sister to Phoenix at his
expense and had sent them back to Milwaukee in a car
that he had rented, containing a suitcase filled with three
kilograms of cocaine.
The district court concluded that the evidence presented
permitted the inference that Mr. Muhammad had at-
8 No. 05-4717
tempted to possess cocaine with the intent to distribute it
in Milwaukee. Noting that the burden of proof was by a
preponderance of the evidence, the district court ruled
that venue was proper in the Eastern District of Wis-
consin for the crime of attempted possession.
After this ruling, the defense requested that the district
court instruct the jury that, if venue were not proper in
the district charged, the defendant should not be con-
victed. The defense submitted that venue was in issue
because Mr. Muhammad’s counsel had moved to dismiss
on venue grounds and had raised this objection before the
close of the Government’s case. The Government argued
that there were no disputed facts relating to venue and
therefore an instruction was not required and the issue
could be resolved as a matter of law. The district court
agreed with the Government and ruled that, because the
relevant facts necessary to determine venue were not
disputed, it could resolve the issue as a matter of law.
Accordingly, the district court refused to give an instruc-
tion. The jury returned a verdict of guilty on both counts
charged in the indictment and returned a special verdict
as to the weight of the cocaine recovered from the car.
II
DISCUSSION
A.
Mr. Muhammad renews his submission before the
district court that venue in the Eastern District of Wiscon-
sin was improper. In assessing this contention, we begin
with a discussion of the governing legal principles.
No. 05-4717 9
1.
The constitutional venue provisions at the heart of this
case are rooted in our Nation’s colonial experience. They
are far more than a legal technicality. During the colonial
period, officials of the Crown became concerned that
American colonial courts would not protect adequately
royal interests. Drew L. Kershen, Vicinage, 29 Okla. L. Rev.
803, 805 (1976). Therefore, Parliament revived an ancient
statute that permitted Americans, charged with a crime on
colonial soil, to be moved to England or another colony for
trial. Id. at 805-06. This practice angered colonial Ameri-
cans, and the practice was listed in the Declaration of
Independence as one of the reasons justifying independ-
ence. Specifically, King George III was criticized “for
transporting us beyond Seas to be tried for pretended
offenses.” The Declaration of Independence para. 20 (U.S.
1776); see also Albert W. Alschuler & Andrew G. Deiss, A
Brief History of the Criminal Jury in the United States, 61
U. Chi. L. Rev. 867, 875 (1994).
This historical experience led to the inclusion of an
explicit provision in the Constitution to guard against a
repetition of the colonial era abuse. Article III of the
Constitution of the United States generally requires that the
trial of any crime be held in the state where that crime
was committed. U.S. Const. Art. III § 2 cl. 3. The Sixth
Amendment further states that “[i]n all criminal prosecu-
tions, 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. The Federal Rules of Criminal Procedure
provide for the practical application of this guarantee by
providing that “the prosecution shall be had in a district in
which the offense was committed.” Fed. R. Crim. P. 18.
10 No. 05-4717
In protecting these constitutional guarantees, our col-
leagues on the United States Court of Appeals for the
Second Circuit were not far from the mark in United States
v. Reed, 773 F.2d 477 (2d Cir. 1985), when they noted that
the present case law of the Supreme Court of the United
States does not set forth, in any definitive way, a com-
prehensive discussion of the values protected by the
constitutional venue provisions. Nevertheless, the Court
has given us significant assistance in discerning those
values. The Supreme Court has stated that venue determi-
nations “raise[] matters that touch closely the fair adminis-
tration of criminal justice and public confidence in it . . . .
Questions of venue in criminal cases . . . raise deep issues
of public policy . . . .” United States v. Johnson, 323 U.S. 273,
275-76 (1944). Certainly, given our Nation’s history,
one underlying policy concern is the protection of a
defendant from prosecution in a place far from his home
and the support system that is necessary to mount an
adequate defense. See United States v. Cores, 356 U.S. 405,
407, 410 (1958). Justice Joseph Story articulated this
value in his treatise:
The object . . . is to secure the party accused from being
dragged to a trial in some distant state, away from his
friends, witnesses, and neighborhood; and thus sub-
jected to the verdict of mere strangers, who may feel
no common sympathy, or who may even cherish
animosities, or prejudices against him. Besides this; a
trial in a distant state or territory might subject a party
to the most oppressive expenses, or perhaps even to the
inability of procuring proper witnesses to establish his
innocence.
Joseph Story, Commentaries on the Constitution § 925
(Carolina Academic Press reprint 1987) (1833), reprinted in
No. 05-4717 11
United States v. Palma-Ruedas, 121 F.3d 841, 861-62 (3d Cir.
1997) (Alito, J., dissenting). The Court also has articulated
a concern that a criminal trial take place where the crime
took place. See Johnson v. United States, 351 U.S. 215, 220-
21 (1956); see also Travis v. United States, 364 U.S. 631, 640-
41 (1961) (Harlan, J., dissenting).
The Supreme Court has set forth the basic inquiry that
the lower courts must undertake in addressing the ques-
tion of venue. First, we must ascertain whether there is any
statutory directive on the matter of venue. In the absence of
such legislative direction, which is the situation before us
here, we should use as a “general guide,” United States v.
Cabrales, 524 U.S. 1, 6 (1998), “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 (1946); see also
Cabrales, 524 U.S. at 6-7. We shall examine each of these
factors. In doing so, however, we shall not forget that
the Supreme Court has referred to these two factors
simply as a guide, not a rigid test. Nor shall we forget the
admonition of our sister circuits that
there is no single defined policy or mechanical test
to determine constitutional venue. Rather the test is
best described as a substantial contacts rule that takes
into account a number of factors—the site of the
defendant’s acts, the elements and nature of the crime,
the locus and effect of the criminal conduct, and the
suitability of each district for suitable fact-finding.
Reed, 773 F.2d at 481; see also United States v. Zidell, 323 F.3d
412, 423 (6th Cir. 2003) (quoting United States v. Williams,
274 F.3d 1079, 1084 (6th Cir. 2001)).
Finally, throughout our inquiry, we must keep in mind
that, because venue is not an element of the offense, the
12 No. 05-4717
Government has the burden of establishing venue by a
preponderance of the evidence rather than by the higher
standard of beyond a reasonable doubt. United States v.
Tingle, 183 F.3d 719, 727 (7th Cir. 1999).
2.
We turn first to the “nature of the crime alleged.” Ander-
son, 328 U.S. at 703. In undertaking this part of the analy-
sis, we are aided significantly by the thoughtful approach
set forth by our colleagues in the First Circuit in United
States v. Georgacarakos, 988 F.2d 1289, 1293 (1st Cir. 1993)
(“To determine venue, we examine the key verbs in the
statute defining the criminal offense to find the scope of
relevant conduct.”) (internal citations and quotation
marks omitted).
In the context of this case, there are two substantive
criminal statutes pertinent to this issue: (1) Section
841(a)(1), together with its penalty provision, subsection
(b)(1)(B), of Title 21 proscribe the possession of cocaine
with intent to distribute; (2) Section 846 of Title 21 pro-
scribes an “attempt” to commit the criminal act proscribed
by the earlier section. As suggested by the First Circuit,
we must focus on the key verbs in this statutory prohibition
in order to determine where, for purposes of the constitu-
tional venue guarantee, we can say that the crime took
place. Id.The key verbs in the first statutory section under scrutiny
are “possess” and “distribute.” Section 846 of Title 21, the
second section, proscribes an “attempt” to commit the
criminal act proscribed by the earlier section. Here, the
key verb is “attempt.” In short, the Government charged
Mr. Muhammad with: (1) having acted with the intent to
No. 05-4717 13
possess the cocaine with the intent to distribute it; and
(2) having taken a substantial step toward the comple-
tion of that criminal objective. United States v. Haddad, 976
F.2d 1088, 1094 (7th Cir. 1992). In determining the scope
of the criminal acts described by these verbs, we recall
several basic criminal law principles. First, an attempt is
an inchoate crime. It does not require the completion of
the underlying offense. United States v. Rosales-Cortez, 19
F.3d 1210, 1217 (7th Cir. 1994). Second, distribution and
possession with intent to distribute are continuing crimes.3
Congress has determined that, with respect to a continu-
ing crime, venue is proper in any district where the
crime began, continued or was completed. See 18 U.S.C.
§ 3237(a).4 However, actions that are merely preparatory
3
See United States v. Medina, 992 F.2d 573, 587 (6th Cir. 1993);
United States v. Uribe, 890 F.2d 554, 559 (1st Cir. 1989); United
States v. Baskin, 886 F.2d 383, 388 (D.C. Cir. 1989); United States
v. Stitzer, 785 F.2d 1506, 1519 (11th Cir. 1986); United States v.
Brunty, 701 F.2d 1375, 1382 (11th Cir. 1983); see also United States
v. Fleischli, 305 F.3d 643, 658 (7th Cir. 2002) (possession of a
firearm) (superseded by statute on other grounds); United States
v. Tingle, 183 F.3d 719, 727 (7th Cir. 1999) (distribution).
4
18 U.S.C. § 3237(a) provides:
(a) Except as otherwise expressly provided by enactment of
Congress, 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.
Any offense involving the use of the mails, transportation in
interstate or foreign commerce, or the importation of an
object or person into the United States is a continuing
(continued...)
14 No. 05-4717
are not probative in determining the nature of the crime.
Tingle, 183 F.3d at 726.
As our sister circuits have pointed out, to satisfy the
terms of the continuing offense venue statute, it is not
essential that the defendant ever have been physically
present in the district in question, so long as the offense
continued into the district. Zidell, 323 F.3d at 422. More-
over, by its nature, a criminal attempt can be completed
long before the underlying criminal act. As soon as the
defendant has the requisite intent and undertakes a
substantial act in furtherance of the commission of the
underlying criminal offense, the criminal attempt is
completed.
3.
Following the “general guide” set forth by the Supreme
Court in Anderson and in Cabrales, we now turn to a
determination of the “location of the act or acts constitut-
ing” the crime in question. At the outset, we take note of a
point emphasized by the Court of Appeals for the Second
Circuit in United States v. Reed, 773 F.2d 477 (2d Cir. 1985):
[A]n analytical flaw . . . has plagued analysis in this
area. Both courts and commentators have tended to
construe the constitutional venue requirement as fix-
ing a single proper situs for trial. It is clear, however,
4
(...continued)
offense and, except as otherwise expressly provided by
enactment of Congress, may be inquired of and prosecuted
in any district from, through, or into which such commerce,
mail matter, or imported object or person moves.
No. 05-4717 15
where the acts constituting the crime and the nature
of the crime charged implicate more than one location,
the constitution does not command a single exclusive
venue. The constitution requires only that the venue
chosen be determined from the nature of the crime
charged as well as from the location of the act or acts
constituting it, and that it not be contrary to an explicit
policy underlying venue law.
773 F.2d at 480.
Reed also warns that an overly mechanistic approach to
the location of the defendant’s acts may limit unrealistically
the permissible venues in terms of the policy concerns that
underlie the constitutional venue guarantee. Most impor-
tantly, the Second Circuit noted that “places that suffer the
effects of a crime are entitled to consideration for venue
purposes. Such districts have an obvious contact with the
litigation in their interest in preventing such effects from
occurring. To some extent this factor overlaps with the
definition and nature of the crime.” Id. at 482.
In this case, we must apply these principles to a crim-
inal undertaking that began in the Eastern District of
Wisconsin, drew upon resources from the Eastern District
of Wisconsin for supplemental support, and was, without
any doubt, intended, from its very beginning, to have its
sole effect in the Eastern District of Wisconsin. It was there
that Mr. Muhammad intended to possess his dangerous
drugs for distribution. The plan that was designed to
bring these drugs to Wisconsin is, unfortunately, not an
unusual event in today’s United States. Criminal
undertakings—many of them drug transactions—that
transcend state and other governmental boundaries occur
regularly. In enacting the venue statute for continuing
crimes, Congress recognized that, while remaining true to
16 No. 05-4717
the constitutional guarantees, our venue rules must be
sufficiently malleable to accommodate the reality that
criminal activity may implicate many locations.
It well may be that prosecution of Mr. Muhammad in
a federal district in Texas or Arizona also would have
been permissible. However, as Justice Harlan reminded
us in his dissenting opinion in Travis, 364 U.S. at 640, the
fact that other venues are appropriate certainly does not
preclude the possibility that the present one, here the
Eastern District of Wisconsin, is also a constitutionally
appropriate venue.
Mr. Muhammad submits that venue in Wisconsin is
precluded by our holding in United States v. Tingle, 183 F.3d
719, 727 (7th Cir. 1999), because, he submits, his actions
in the Eastern District of Wisconsin were merely prepara-
tory. As that case came to us, the venue issue involved a
single count of the distribution of cocaine. While the
indictment charged that the distribution had occurred in
both the Eastern District of Wisconsin and the Northern
District of Illinois, the Government had failed to demon-
strate that any activity involving that particular count
occurred in Wisconsin. Therefore, venue in the Eastern
District of Wisconsin was improper. By contrast, we are
dealing here with an attempt count that alleges that Mr.
Muhammad attempted to possess cocaine with intent to
distribute in the Eastern District of Wisconsin. The evi-
dence demonstrates that all of his efforts were aimed at
his possessing that cocaine in Wisconsin.
The undertaking to bring that cocaine into Wisconsin
began in Wisconsin when Mr. Muhammad recruited the
assistance of Willis and made some purchases to use in
the execution of the plan. During the trip, when the
search of his baggage in New Mexico made it clear that
No. 05-4717 17
transportation of the cocaine back to Wisconsin in the
duffle bags by bus would be a risky business, Mr. Muham-
mad developed an alternative plan by calling two
women in Milwaukee, convincing them to come to
Phoenix and then having them act as “mules” for the trip
back to Milwaukee. He then undertook substantial steps
to organize a return trip to Wisconsin. He rented an
automobile for the women who were to act as mules for
the transport of the cocaine; he set up a two-car convoy
for the trip. He would lead the way; the car carrying
the cocaine was to follow, but not too closely. The convoy
then started out for Wisconsin. Had it not been for the
intervention of the state trooper, Mr. Muhammad’s plan
would have brought him and his cocaine to Wisconsin,
ready for distribution.
4.
As we noted earlier, our colleagues in other circuits have
applied the “general guide” of the Supreme Court by
applying a “substantial contacts” approach to determine
whether a particular jurisdiction can serve as the venue
for a federal criminal trial in a manner consistent with
the guarantees of the constitutional venue provisions.
Under that approach, a court considers “ ‘the site of the
defendant’s acts, the elements and the nature of the crime,
the locus and effect of the criminal conduct, and the
suitability of each district for accurate fact-finding.’ ” Zidell,
323 F.3d at 423 (quoting Williams, 274 F.3d at 1084); see
also Reed, 773 F.2d at 481; cf. United States v. Frederick,
835 F.2d 1211, 1215 (7th Cir. 1987) (noting, in the context
of a conspiracy count, that “[p]roper venue is not limited
to districts where the defendants were physically present
when they committed unlawful acts. So long as an overt
18 No. 05-4717
act in furtherance of the conspiracy is intended to have an
effect in the district where the case is finally brought, venue is
proper.” (emphasis added)).
Permitting venue for this case in the Eastern District of
Wisconsin is certainly compatible with the criteria of
this approach. Although the defendant’s acts occurred
in several states, they were aimed at only one
state—Wisconsin. The alleged crime was the inchoate one
of attempted possession with intent to distribute, and,
at the time his plan was thwarted, Mr. Muhammad cer-
tainly had moved far beyond mere preparatory acts.
Rather, he had constructive possession of the cocaine and
had placed in motion a carefully constructed plan that was
designed to place those drugs within the Eastern District
of Wisconsin. Clearly, Mr. Muhammad intended that
the effect of his actions was to be felt in that district.
Since most of the witnesses were based in Wisconsin, that
venue certainly had at least the same capacity to permit
the gathering of necessary information as any of the other
possible venues. The defendant, moreover, was certainly
not deprived of his support system in mounting his
defense. Wisconsin is his home state.
Accordingly, we must conclude that the district court
correctly determined that venue in the Eastern District
of Wisconsin was constitutionally permissible.
B.
Mr. Muhammad also challenges the district court’s
refusal to instruct the jury on venue. We review a district
court’s denial of a request for a jury instruction for abuse of
discretion. United States v. Smith, 308 F.3d 726, 740 (7th Cir.
No. 05-4717 19
2002). We have held that a defendant is not entitled to a
venue instruction unless venue is specifically at issue. See,
e.g., United States v. Rodgers, 755 F.2d 533, 549 (7th Cir. 1985)
(citing United States v. Massa, 686 F.2d 526, 530 (7th Cir.
1982)). When venue is undisputed, determination by the
district court as a matter of law is appropriate. Massa, 686
F.2d at 531.
Mr. Muhammad submits that venue is in dispute, and,
therefore, that the district court abused its discretion in not
giving an instruction. In Rodgers, we determined that the
defendant was disputing liability for distribution, not the
location of the distribution. Consequently, an instruction on
venue was not necessary. Rodgers, 755 F.2d at 549. The
district court took a similar view of the situation here. It
believed that the only issue before the court was whether
Mr. Muhammad knew about the cocaine in the second
car of the caravan.
Upon examination of the record, we believe that the
situation is somewhat more nuanced. First, although the
principal factual dispute at trial centered on whether
Mr. Muhammad had knowledge of the cocaine that was
found in the car the Juarez sisters were driving, Mr.
Muhammad also raised the issue of venue. Before the
close of the Government’s case, Mr. Muhammad’s counsel
made an oral motion to dismiss for lack of proper venue.
When that motion was denied, counsel subsequently
requested a jury instruction on venue. In Massa, we said
that an instruction on the issue of venue is warranted
particularly where “the defendant objects to the lack of an
instruction, thereby calling the issue to the attention of the
district court.” Massa, 686 F.2d at 530. On the other hand, as
our colleagues in the Third Circuit succinctly pointed out
in United States v. Perez, 280 F.3d 318 (3d Cir. 2002), “[e]ven
20 No. 05-4717
if a defendant properly objects to venue, however, it does
not become a fact question for the jury unless the defendant
also places it in issue by establishing a genuine issue of
material fact with regard to venue.” Id. at 335 (emphasis
added).
Here, Mr. Muhammad attempted to place venue in
issue by inviting the district court’s attention to the fact that
the rental car in which he was leading the caravan was due
to be returned to the rental company at its Phoenix facility
by a deadline that precluded a trip to Milwaukee and a
return trip to Phoenix. This deadline, the defense argued,
raised not only a question as to whether Mr. Muhammad
knew about the cocaine in the other car, but, in the alterna-
tive, raised a question about Mr. Muhammad’s intended
destination for the contraband.
Because “[v]enue is ordinarily a question of fact for the
jury to decide,” United States v. Bascope-Zurita, 63 F.3d 1051,
1062 (8th Cir. 1995) (internal citations and quotation
marks omitted), we agree with our sister circuits that, in a
case such as this one, the best practice would have been to
give a venue instruction. See United States v. Winship, 724
F.2d 1116, 1126 n.13 (5th Cir. 1984). However, as we said
in United States v. Marrinson, 832 F.2d 1465, 1475 (7th Cir.
1987), the defendant must, by his factual submissions,
“make venue a serious issue.” Id. Whether assessed from a
quantitative or a qualitative perspective, the evidence that
Mr. Muhammad intended the cocaine to reach Wisconsin
so that he could control it there for distribution was
overwhelming. By contrast, the fact that the rental car
was to be returned to Phoenix is very weak evidence that
Mr. Muhammad intended the contraband to arrive at a
different location. Indeed, as the evidence at trial demon-
strated, he dropped the vehicle off in Oklahoma City
No. 05-4717 21
despite the earlier designation of Phoenix. Finally, it is
worthy of note that, although the jury was not given an
instruction on venue, they were presented with evidence
of the rental contract and its designation of Phoenix and,
nevertheless, they decided, at least implicitly, that both
Mr. Muhammad and the cocaine were Milwaukee bound.
As we said on a similar occasion, “[p]erhaps another trial
judge would have given a venue instruction out of abun-
dance of caution, but the failure to do so in this case
was not error.” Marrinson, 832 F.2d at 1475. We need only
add that, if it was error, it was certainly harmless.
C.
Mr. Muhammad submits that he was prejudiced by
the introduction of evidence, followed by the commentary
of the prosecutor, that he had contacted his lawyer when
the Juarez sisters were stopped by a state trooper.5 In his
5
At trial, the district court read a stipulation to the jury which
stated that Mr. Muhammad’s attorney had given the men a ride
to the airport in Milwaukee. In addition, the attorney’s tele-
phone numbers were identified in the stipulation. The district
court also admitted an exhibit which listed Mr. Muhammad’s
telephone activities during the trip. During summation, the
Government’s attorney referenced the exhibit which docu-
mented Mr. Muhammad’s telephone calls to “give[] you a
window as to what was going on inside the car occupied by
the defendant and Ken.” R.108 at 538. Later in the closing
argument, the Government’s attorney stated:
He is calling an attorney. And remember, Ken said that [he]
heard him talking on the phone. [Ken didn’t] know who he
(continued...)
22 No. 05-4717
view, the introduction of this evidence and the commen-
tary of counsel violated his constitutional rights under
the Fifth and Sixth Amendments.6
The parties agree that no objection was made to this
evidence or to the prosecutorial comments. Because Mr.
Muhammad did not make a timely objection, he forfeited
this issue for appeal. Consequently, our review is for
plain error. See United States v. Luepke, ___ F.3d ___, No. 06-
3285, 2007 WL 2091227, slip op. at 10 (7th Cir. July 24,
2007). In order to find that a deprivation of substantial
rights constituted plain error we must determine: “(1) that
error occurred; (2) that the error was plain; and (3) that
the error affected the defendant’s substantial rights.” Id.“If these criteria are met, we may reverse, in an exercise
of discretion, if we determine that the error seriously
affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotations omitted).
Here, the Government tried to introduce evidence of
Mr. Muhammad’s phone call to his attorney as substantive
5
(...continued)
was talking to. But he said they may need a lawyer. And we
know who he was talking to. He was talking to a lawyer.
Why? Speeding? In Arizona? Give me a break. You know he
knew what was up. He knew that cocaine was going to be
found.
R.108 at 540.
6
It is clear that the Sixth Amendment right to counsel does not
attach until the initiation of adversary criminal proceedings.
See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). No prosecution
had been commenced at the time Mr. Muhammad placed a
telephone call to his attorney. Therefore, the Sixth Amendment
affords him no protection.
No. 05-4717 23
evidence of guilt. This situation is different from one in
which the Government attempts to impeach a defendant
with his silence or the invocation of his right to an attor-
ney. In Jenkins v. Anderson, 447 U.S. 231, 238 (1980), the
Supreme Court held that the Fifth Amendment’s privilege
against self-incrimination is not violated when the Gov-
ernment uses a defendant’s pre-arrest silence to impeach
his credibility. Id. Jenkins explicitly reserved, however,
the question of whether such evidence could be used
against a defendant, not for impeachment purposes, but
for substantive evidence of guilt. Id. at 236 n.2.
We have held, in United States ex rel. Savory v. Lane, 832
F.2d 1011 (7th Cir. 1987), that the prohibition on the use of
a defendant’s silence as substantive evidence of guilt
“applies equally to a defendant’s silence before trial, and
indeed, even before arrest.” Id. at 1017. In Ouska v. Cahill-
Masching, 246 F.3d 1036 (7th Cir. 2001),7 we revisited our
7
There is currently a division among the federal Courts of
Appeals as to whether the prosecution may admit properly
evidence of a defendant’s pre-arrest silence as substantive
evidence of guilt. Our colleagues on the Sixth Circuit, in Combs
v. Coyle, 205 F.3d 269 (6th Cir. 2000), canvassed this division as
it existed in 2000. Id. at 282. At that time, the First, Seventh and
Tenth Circuits had held that the prosecution may not com-
ment on a defendant’s pre-arrest silence, holding that such
comment violates the Fifth Amendment. Id. The Fifth, Ninth and
Eleventh Circuits, however, had held that the use of a defen-
dant’s pre-arrest silence in the Government’s case-in-chief
presented no constitutional violation. No federal Courts of
Appeals have revisited the issue in the context of pre-arrest
silence since the Sixth Circuit analyzed the division of authority
on this issue in 2000.
(continued...)
24 No. 05-4717
holding in Savory and again held that the prosecution’s
attempt to use pre-arrest, pre-Miranda silence as sub-
stantive evidence of guilt violates a defendant’s constitu-
tional rights under the Fifth Amendment. Id. at 1049.8
In this case, the Government did not comment on Mr.
Muhammad’s pre-arrest silence. Rather, the Government
introduced evidence that Mr. Muhammad had called his
attorney after the women traveling in the second car of the
caravan were stopped by the trooper. The Supreme Court,
interpreting post-Miranda warnings silence has stated that
“silence does not mean only mute-ness; it includes the
statement of a desire to remain silent as well as of a desire
to remain silent until an attorney has been consulted.”
Wainwright v. Greenfield, 474 U.S. 284, 295 n.13 (1986). The
question therefore is whether the prosecution’s comment
on a defendant’s pre-arrest consultation with counsel, as
opposed to silence, likewise falls within the ambit of the
Fifth Amendment’s protection against self-incrimination.
Mr. Muhammad contends that the Government’s intro-
duction of evidence regarding a phone call that he placed
7
(...continued)
In addition, the Eighth and Ninth Circuits have both held that
comment on the post-arrest, pre-Miranda silence of a defendant
violates the Fifth Amendment. See United States v. Frazier, 408
F.3d 1102, 1109-11 (8th Cir. 2005); United States v. Whitehead, 200
F.3d 634, 639 (9th Cir. 2000).
8
Both United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.
1987), and Ouska v. Cahill-Masching, 246 F.3d 1036 (7th Cir. 2001),
came to this court on collateral review. However, our holding
that the introduction of a defendant’s pre-arrest silence as
substantive evidence of guilt applies with equal force in the
context of a direct appeal.
No. 05-4717 25
to his attorney violated his Fifth Amendment right against
self-incrimination because the comments permitted the jury
to draw the inference that he had knowledge that there
was cocaine in the trunk of the car. Neither this court nor
the Supreme Court has held that the introduction of
substantive evidence about a defendant’s attempt to
contact his attorney in order to prove guilt violates a
defendant’s constitutional rights.
We need not decide this issue today. Given the ambiguity
in the present case law, any error was certainly not “plain.”
It was neither “clear” nor “obvious.” United States v. Olano,
507 U.S. 725, 735 (1993). Neither the Supreme Court nor
this court has held expressly that admitting such evidence
for use in the prosecution’s case-in-chief amounts to a
constitutional violation.
Moreover, even if we were able to say that the error
was “plain,” we could not conclude, given the quantum
and quality of the evidence, that Mr. Muhammad was
harmed by the admission of the testimony. On the issue of
whether he knew of the presence of the cocaine, the
evidence supporting the Government’s case can only be
described as extremely strong. Finally, if we were to reach
the issue, concerns about the fairness, integrity or public
reputation of the proceedings certainly would not justify,
as a matter of our discretion, the reversal of Mr. Muham-
mad’s conviction.
Conclusion
For these reasons, the judgment of the district court is
affirmed.
AFFIRMED
26 No. 05-4717
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-14-07