Court: Court of Appeals for the Ninth Circuit; September 7, 1994; Federal Appellate Court
Victor Corona appeals his conviction and sentence for conspiracy to possess and distribute cocaine, along with three related substantive counts. The Ninth Circuit Court of Appeals, presided over by Judges Norris, Thompson, and Trott, heard the case after it was tried in the District of Nevada. The conspiracy originated in Nevada, but the actual drug distribution occurred in California. The court found improper venue for the substantive counts in Nevada, leading to their reversal, while affirming the conspiracy conviction.
Key facts include the involvement of confidential informant Josiah Specht and undercover agent Scott Jackson, who interacted with Corona's coconspirators in Nevada regarding a cocaine deal. The transaction was delayed and ultimately took place in California, where Corona delivered cocaine to Benavidez and Carrillo, who then transported it to Specht's residence. During the arrest, a loaded handgun registered to Corona was found in the vehicle he occupied.
Additionally, an incident involving U.S. Marshals attempting to apprehend Corona in California resulted in an assault charge when he evaded them. Evidence presented at trial included phone lists found in Corona's wallet, which were deemed relevant under Rule 404(b). Despite a defense motion to sever the assault charge from the other counts, the court initially denied it but later granted it after the government's case. Ultimately, Corona was convicted on conspiracy and distribution counts and received concurrent sentences totaling 210 months for the first three counts and 60 months for unlawful firearm use.
Corona contests the appropriateness of the venue in Nevada for counts two through four, asserting that the substantive crimes occurred exclusively in California. The district court's decision on a venue change is reviewed for abuse of discretion, while the legal basis for the motion is reviewed de novo. Constitutional and procedural rules mandate that trials occur in the state where the crimes were committed. Venue issues in criminal cases encompass substantial public policy considerations.
Despite Corona's absence from Nevada, the venue was deemed proper for the conspiracy charge (count one) due to the initial agreement and planning calls taking place there. Venue for a conspiracy charge is valid in any district where an overt act occurred, even if the defendant did not personally commit an overt act in that district.
For counts two and three, which involve cocaine distribution, and count four, relating to firearm use during drug trafficking, all actions occurred in California, raising the question of whether Nevada could serve as a venue. The government references the Pinkerton principle, suggesting conspirators are accountable for each other's substantive offenses, but this principle does not apply to the venue determination.
Each charge must have an appropriate venue, requiring separate analysis for substantive crimes and conspiracy. The relevant legal standard indicates that crimes are "committed" where the act is performed. While some preliminary actions occurred in Nevada, these do not influence the venue, as only actions constituting the distribution are relevant. Since the distribution occurred entirely in California, Nevada was not a proper venue for these counts. Preparatory actions in Nevada do not affect the venue analysis.
Courts addressing venue issues for conspiracy and substantive offenses have consistently ruled that venue for substantive charges cannot be established merely by the existence of a conspiracy charge in a particular jurisdiction. In *United States v. Walden*, the Fourth Circuit determined that while venue for the conspiracy charge was appropriate in South Carolina due to sufficient planning there, it was not proper for substantive bank robbery charges related to banks outside the state. The court rejected the district court's view that any act in furtherance of a crime could establish venue, emphasizing the constitutional distinction between preparation for a crime and the actual commission of the crime.
In *Beech-Nut*, the Fourth Circuit reversed convictions for the substantive offense of introducing adulterated juice, ruling that actions taken to further a conspiracy did not constitute part of the substantive offense, as the defendants were only connected to the Eastern District of New York through phone orders.
In *United States v. Jordan*, the District Court of Nevada addressed a similar venue issue, concluding that while the conspiracy charge could be tried in Nevada, the substantive distribution offense, occurring solely in California, required the case to be tried there. The court highlighted that the government’s concern over undermining coconspirator liability was unfounded.
Furthermore, the ruling in *Pinkerton* and related case law does not support the notion that venue for substantive crimes automatically follows from a conspiracy charge. The government’s reliance on *United States v. Stitzer* was deemed inapplicable, as that case involved different facts and legal standards regarding possession with intent to distribute in the same jurisdiction where the trial took place.
The key verb test applied in this opinion aligns with the outcome in Stitzer, as possession occurred in the same state where the case was tried. However, the distribution crime in this case did not take place in Nevada, leading to the conclusion that venue was improper for counts two through four. The Fourth Circuit's statement in Walden emphasizes that the right to a trial by a local jury is fundamental and should occur at the site of the offense. Based on constitutional and rule-based venue principles, the court reverses the convictions on these counts, indicating that if the government wished to prosecute all offenses together, it should have done so in California.
Regarding the admission of evidence, Corona argues that the district court incorrectly admitted certain exhibits and testimony under Rule 404(b) of the Federal Rules of Evidence. The review of this evidence admission is conducted for abuse of discretion. Rule 404(b) permits the introduction of evidence of other crimes or bad acts to prove various elements, including intent and knowledge. A four-part test is used to determine admissibility: relevance to a material point, timeliness, sufficiency of evidence, and similarity to the charged offense.
The evidence of Corona's possession of drug customer lists is deemed relevant to demonstrating knowledge and intent, particularly in light of his prior conviction for heroin possession. Although the 404(b) evidence does not definitively prove his knowledge of a specific drug deal, it undermines his claims of ignorance. The eleven-month gap between his arrest and the discovery of the exhibits is not considered too remote for admissibility. The government presented sufficient proof that the exhibits were indeed customer lists, supported by Detective Wadley's expert testimony and the nature of the listings. Corona's explanations regarding these lists are viewed as dubious.
The final element of the four-part test for admissibility under Rule 404(b), similarity, is not strictly required when the evidence is offered to prove knowledge. The subsequent act must simply make the defendant's knowledge more probable. In this case, customer lists undermined Corona's innocent bystander defense. The district court properly admitted the 404(b) evidence, satisfying the four-part test without any abuse of discretion.
Regarding Count Five, Corona contended that the district court erred by initially denying his motion to sever this count and allowing evidence to be presented before eventually granting the severance. The court's decision to sever is reviewed for abuse of discretion, and evidentiary rulings are reversed only if they likely affected the verdict. Although Corona claimed prejudice from the testimony of two deputy U.S. Marshals regarding his flight, the district court struck this testimony and instructed the jury to disregard it multiple times. The presumption is that jurors follow the judge's instructions, and the district court's careful limiting instructions mitigate against finding an abuse of discretion. The evidence related to Count Five was minor in the context of the government's case against Corona, leading to the conclusion that the district court acted within its discretion.
In conclusion, the court affirmed Corona's conspiracy conviction but reversed the substantive counts due to improper venue, remanding for those counts' dismissal and for resentencing. The trial's adherence to Article III, Section 2 regarding venue was noted, and the issue of Double Jeopardy concerning potential retrial on substantive counts was left unaddressed, pending any future prosecution attempts. Additionally, the court did not resolve whether the evidence constituted other bad acts under Rule 404(b) since it concluded the district court's admission was appropriate regardless.
