United States v. Alejandro Gonzalez , 683 F.3d 1221 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-10380
Plaintiff-Appellee, D.C. No.
v.  3:10-cr-00834-
ALEJANDRO GONZALEZ, WHA-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted
June 13, 2012—San Francisco, California
Filed June 27, 2012
Before: Ronald M. Gould, Richard C. Tallman, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tallman
7675
UNITED STATES v. GONZALEZ 7677
COUNSEL
Erick Guzman, Esq., Santa Rosa, California, for the
defendant-appellant.
Aaron Wegner, Assistant United States Attorney, United
States Attorney’s Office, San Francisco, California, for the
plaintiff-appellee.
7678 UNITED STATES v. GONZALEZ
OPINION
TALLMAN, Circuit Judge:
The United States Constitution and federal law require that
crimes be prosecuted where the offense was committed. This
venue requirement, however, is more easily stated than
applied. Determining where an offense occurred can be quite
tricky—particularly for continuing crimes, like conspiracy,
where the conspirators’ activities often have a ripple-like
effect that may involve numerous districts.
Here, the district court correctly determined that venue for
a drug-sale conspiracy was proper in the Northern District of
California based on two telephone calls initiated by a govern-
ment informant, who was in the district, to defendant-
appellant Alejandro Gonzalez (“Gonzalez”), who was located
outside of the district. By using those calls to negotiate the
terms of a drug deal to be completed in the Eastern District
of California, Gonzalez propelled the conspiracy into the
Northern District of California. We have jurisdiction, 28
U.S.C. § 1291, and we affirm.
I
The parties stipulated to the following facts at a bench trial
before the district judge: At the direction of Drug Enforce-
ment Administration (“DEA”) agents, a confidential infor-
mant (“CI”) placed at least two telephone calls to Gonzalez’s
cell phone number. The CI was in the Northern District of
California during the calls, but Gonzalez was not. Nothing in
the stipulated facts indicates whether Gonzalez knew or had
reason to know that the CI was calling from the Northern Dis-
trict of California.1
1
At a pretrial hearing, the government proffered that it had evidence
demonstrating that Gonzalez knew or should have known that the CI was
in the Northern District of California based on prior drug deals between
UNITED STATES v. GONZALEZ 7679
During the recorded telephone conversations, Gonzalez
negotiated the sale and delivery of five kilograms of cocaine
to the CI in exchange for $85,000. Gonzalez also said that he
would bring another individual (known as “the guy”) with
him to deliver the drugs. Gonzalez and “the guy” met the CI
and an undercover DEA agent in a Chili’s parking lot in
Modesto, California, in the Eastern District of California.
Gonzalez delivered the cocaine to the DEA agent and was
arrested shortly thereafter.
Gonzalez was indicted in the Northern District of Califor-
nia on one count of conspiracy to possess with intent to dis-
tribute cocaine, in violation of 21 U.S.C. § 846, and two
counts of use of a telephone to commit a felony drug offense,
in violation of 21 U.S.C. § 843(b). Gonzalez moved to dis-
miss the indictment based on improper venue. The district
court denied the motion. At the stipulated-facts bench trial,
Gonzalez again moved for acquittal under Federal Rule of
Criminal Procedure 29 based on improper venue. The district
court again denied the motion, found Gonzalez guilty on all
three counts, and sentenced him to seventy-eight months
imprisonment. On appeal, he claims that the district court
erred in holding that venue on the drug-conspiracy offense
was proper in the Northern District of California.2
II
We review the district court’s determination on venue de
novo. See United States v. Ruelas-Arreguin, 219 F.3d 1056,
1059 (9th Cir. 2000).3 The government bears the burden of
the CI and Gonzalez. None of those underlying facts, however, were
included in the factual stipulation at the bench trial. Because foreseeability
is not required to establish venue, see infra, we do not address whether it
would be proper for us to consider evidence outside of the stipulation.
2
Gonzalez does not challenge his conviction on two counts of use of a
telephone to commit a felony drug offense.
3
Because the parties stipulated to the facts this appeal presents a purely
legal question. See United States v. Ziskin, 360 F.3d 934, 942-43 (9th Cir.
2003).
7680 UNITED STATES v. GONZALEZ
establishing proper venue by a preponderance of the evidence.
See United States v. Chi Tong Kuok, 671 F.3d 931, 937 (9th
Cir. 2012) (citation omitted).
III
[1] The government must prosecute an offense in a district
where the crime was committed. See U.S. Const. art. III, § 2,
cl. 3 (“The Trial of all Crimes . . . shall be held in the State
where the said Crimes shall have been committed . . . .”); id.
amend. VI (“[T]he 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 . . . .”); see also
Fed. R. Crim. P. 18 (“Unless a statute or these rules permit
otherwise, the government must prosecute an offense in a dis-
trict where the offense was committed.”). Congress has pro-
vided that venue for a continuous crime, such as conspiracy,
lies in any district where the “offense was begun, continued,
or completed.” 18 U.S.C. § 3237(a). It is by now well settled
that venue on a conspiracy charge is proper where the con-
spiracy was formed or where any overt act committed in fur-
therance of the conspiracy occurred. See United States v.
Corona, 34 F.3d 876, 879 (9th Cir. 1994) (“Although [the
defendant] never set foot there, Nevada was a proper venue
for the conspiracy charge (count one) because it was the site
of the initial agreement and subsequent phone calls [by the
defendant’s coconspirators] planning the drug transaction.”).
[2] The CI’s presence in the Northern District of California
during the telephone calls with Gonzalez sufficed to establish
venue there on the conspiracy charge. It is undisputed that
Gonzalez used the calls with the CI to arrange a drug sale,
including negotiating the amount of cocaine, the price, and
the place of delivery, thereby taking an overt act in further-
ance of the drug-selling scheme. See id.
[3] It makes no difference that the CI sought to frustrate
the conspiracy. A conspirator acting alone, with an unwitting
UNITED STATES v. GONZALEZ 7681
third party or with a government agent, may take acts in fur-
therance of the conspiracy sufficient to support venue. See,
e.g., United States v. Angotti, 105 F.3d 539, 545-46 (9th Cir.
1997) (holding that venue for a conspiracy charge had been
established based on the preparation and transmission of a fal-
sified document by a coconspirator in the district to an out-of-
district bank). Although “there can be no indictable conspir-
acy with a government informer who secretly intends to frus-
trate the conspiracy,” see United States v. Escobar de Bright,
742 F.2d 1196, 1198 (9th Cir. 1984) (internal quotation marks
and citation omitted), Gonzalez does not dispute that the gov-
ernment established beyond a reasonable doubt that he con-
spired to effect the drug sale with another (i.e., “the guy”). To
determine whether venue is proper we ask not whether all of
the elements of a conspiracy were committed in the district of
venue, but rather, whether a conspirator committed an act in
furtherance of the conspiracy in that district. See Corona, 34
F.3d at 879.4
[4] Nor does it make any difference that Gonzalez never
set foot in the Northern District of California and did not initi-
ate the calls himself. It was sufficient that, in furtherance of
the conspiracy, Gonzalez conducted communications with
someone located in the Northern District of California. We
have never required a defendant’s physical presence in the
district of venue in a conspiracy case. See Corona, 34 F.3d at
4
To establish a conspiracy to possess with intent to distribute cocaine,
in violation of 21 U.S.C. § 846, as distinguished from the general conspir-
acy statute found in 18 U.S.C. § 371, the government need not prove the
commission of an overt act in furtherance of the conspiracy. See United
States v. Jackson, 167 F.3d 1280, 1285 (9th Cir. 1999) (citing United
States v. Shabani, 513 U.S. 10, 14-16 (1994)). Nevertheless, we have held
that a section 846 offense occurs for purposes of venue where a conspira-
tor commits an overt act in furtherance of the scheme. See Corona, 34
F.3d at 879; see also Angotti, 105 F.3d at 543 (“[E]ven though a crime
may have been completed earlier, it does not follow that the crime then
terminated, and that what transpired . . . was irrelevant for venue pur-
poses.” (internal quotation marks and citation omitted)).
7682 UNITED STATES v. GONZALEZ
879 (“It is not necessary that the defendant himself have
entered or otherwise committed an overt act within the dis-
trict, as long as one of his coconspirators did.” (internal quota-
tion marks, citation, and alteration omitted)). Moreover,
because conspiracy is a continuing offense, the crime occurs
both where a communication is made and where it is received.
See Andrews v. United States, 817 F.2d 1277, 1279 (7th Cir.
1987) (holding that prosecution for using the telephone to
facilitate unlawful distribution of cocaine was proper based on
a telephone call initiated by a government informant in the
district to a defendant outside the district); see also United
States v. Johnson, 323 U.S. 273, 275 (1944) (“[A]n illegal use
of the mails or of other instruments of commerce may subject
the user to prosecution in the district where he sent the goods,
or in the district of their arrival, or in any intervening dis-
trict.”).
[5] We agree with the Second Circuit that “[w]hen a con-
spirator uses a telephone call—by whomever initiated—to
further a criminal scheme, the conspirator effectively propels
not only his voice but the scheme itself beyond his own physi-
cal location into that of the person with whom he is speak-
ing.” United States v. Rommy, 506 F.3d 108, 122 (2d Cir.
2007) (citations omitted) (“[A] telephone call placed by a
government actor within a district to a conspirator outside the
district can establish venue within the district provided the
conspirator uses the call to further the conspiracy.”); see also
United States v. Cordero, 668 F.2d 32, 43-44 (1st Cir. 1981)
(holding that venue on a conspiracy charge was proper based
on telephone calls from an undercover agent in the district of
venue to conspirators outside that district).
[6] Finally, it does not matter whether Gonzalez knew or
should have known that the CI was located in the Northern
District of California during the calls. Simply put, section
3237(a) does not require foreseeability to establish venue for
a continuous offense. See 18 U.S.C. § 3237(a) (“Except as
otherwise expressly provided by enactment of Congress, any
UNITED STATES v. GONZALEZ 7683
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.”); see also
Angotti, 105 F.3d at 545 (holding that venue on a conspiracy
charge was established by a coconspirator’s overt act in the
district where trial was held, even though the defendant
claimed he could not have foreseen where the overt act would
occur).5 “[V]enue is similar in nature to a jurisdictional ele-
ment, and typically lacks any sort of explicit knowledge or
foreseeability prerequisite.” United States v. Johnson, 510
F.3d 521, 527 (4th Cir. 2007) (citations omitted) (concluding
that foreseeability is not required under 15 U.S.C. § 78aa, the
venue statute applicable to securities offenses).
We acknowledge that “venue will often be possible in dis-
tricts with which the defendant had no personal connection,
and which may occasionally be distant from where the defen-
dant originated the actions constituting the offense.” Angotti,
105 F.3d at 543. Yet, while the venue requirement protects
the accused from “the unfairness and hardship” of prosecution
“in a remote place,” United States v. Cores, 356 U.S. 405, 407
(1958), “the constitutional text makes plain [that] unfairness
is generally not a concern when a defendant is tried in a dis-
trict ‘wherein the crime shall have been committed,’ ”
Rommy, 506 F.3d at 119 (quoting U.S. Const. amend. VI.).6
5
But see United States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003)
(“[V]enue is proper in a district where (1) the defendant intentionally or
knowingly causes an act in furtherance of the charged offense to occur in
the district of venue or (2) it is foreseeable that such an act would occur
in the district of venue.”); 2 Wright, Federal Practice and Procedure § 307
(“There is a split in the circuits regarding whether the government must
prove the defendant intended the act that furnishes venue in the district,
or at least show that the act was foreseeable.” (citing Angotti and Svo-
boda)).
6
To the extent Gonzalez argues that the government improperly “manu-
factured” venue by placing the CI in the Northern District of California,
we have not yet decided whether manufactured venue is a defense, Chi
7684 UNITED STATES v. GONZALEZ
Where an otherwise proper venue would be inconvenient or
burdensome, a defendant may always move to transfer to
another venue. See Fed. R. Crim. P. 21(b) (“Upon the defen-
dant’s motion, the court may transfer the proceeding, or one
or more counts, against that defendant to another district for
the convenience of the parties, any victim, and the witnesses,
and in the interest of justice.”). Gonzalez made no transfer
motion in this case.
IV
[7] Gonzalez effectively propelled the drug-selling con-
spiracy into the Northern District of California by negotiating
the terms of a substantial drug transaction on a telephone call
with a CI who was located in that district. Venue on the con-
spiracy charge was therefore proper in the Northern District
of California.
AFFIRMED.
Tong Kuok, 671 F.3d at 937-38. Regardless, Gonzalez has not put forward
any evidence suggesting that the government engaged in “extreme” law
enforcement tactics to manufacture venue. See id. at 938 (noting that to the
extent the principles of manufactured jurisdiction can be extended to
venue, it would be “limited to cases involving ‘extreme’ law enforcement
tactics”). Indeed, there was nothing extreme about the CI calling Gonzalez
from the San Francisco Bay Area to see whether Gonzalez was willing to
engage in a drug sale, which the two ultimately agreed to consummate in
Modesto.