Filed July 30, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 95-5554, 95-5601, 96-5160,
96-5161, 96-5162 and 96-5163
UNITED STATES OF AMERICA
v.
MILTON PALMA-RUEDAS
Appellant No. 95-5554.
UNITED STATES OF AMERICA
v.
JORGE LUIS PACHECO
Appellant No. 95-5601.
UNITED STATES OF AMERICA
v.
OMAR TORRES-MONTALVO
Appellant No. 96-5160.
UNITED STATES OF AMERICA
v.
JAIRO PEDROZA-ORTIZ
Appellant No. 96-5161.
UNITED STATES OF AMERICA
v.
RANDY ALVAREZ-QUINONES
Appellant No. 96-5162.
UNITED STATES OF AMERICA
v.
JACINTO RODRIGUEZ-MORENO, a/k/a Joel Moreno,
Joel Moreno-Llanos, Arturo Torres Celorio
Jacinto Rodriguez-Moreno,
Appellant No. 96-5163.
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal Nos. 95-cr-00070-3, 95-cr-00070-2,
95-cr-00070-1, 95-cr-00070-4, 95-cr-00070-5 and
95-cr-00070-6)
ARGUED NOVEMBER 12, 1996
BEFORE: ALITO, ROTH and LEWIS, Circuit Judges.
(Filed July 30, 1997)
Camille M. Kenny (ARGUED)
Fleming, Roth & Fettweis
744 Broad Street, Suite 701
Newark, NJ 07102
Attorney for Appellant,
Milton Palma-Ruedas
2
Jerome A. Ballarotto
143 Whitehorse Avenue
Trenton, NJ 08610
Attorney for Appellant,
Jorge Luis Pacheco
Mark W. Catanzaro (ARGUED)
513 South Lenola Road
Blason IV, Suite 208
Moorestown, NJ 08057
Attorney for Appellant,
Omar Torres-Montalvo
Dennis A. Durkin
Robert S. Cosgrove
Durkin & Durkin
P.O. Box 1289
West Caldwell, NJ 07007-1289
Attorney for Appellant,
Jairo Pedroza-Ortiz
Daniel A. Greenstone
Greenstone & Greenstone
401 Hackensack Avenue
Hackensack, NJ 07601
Attorney for Appellant,
Randy Alvarez-Quinones
John P. McDonald
McDonald, Rogers & Rizzolo
181 West High Street
Somerville, NJ 08876
Attorney for Appellant,
Jacinto Rodriguez-Moreno
3
Kevin McNulty
Office of United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102
George S. Leone (ARGUED)
Office of United States Attorney
4th and Cooper Streets
Mitchell H. Cohen Courthouse
One John F. Gerry Plaza
Camden, NJ 08101
Attorneys for Appellee
OPINION OF THE COURT
LEWIS, Circuit Judge.
Defendants -- Omar Torres-Montalvo ("Montalvo"), Jorge
Luis Pacheco ("Pacheco"), Randy Alvarez-Quinones
("Quinones"), Milton Palma-Ruedas ("Palma-Ruedas"), Jairo
Pedroza-Ortiz ("Ortiz"), and Jacinto Rodriguez-Moreno
("Moreno") -- appeal their convictions on charges arising
from a drug conspiracy and kidnapping scheme. All six
defendants were convicted by a jury in the United States
District Court for the District of New Jersey of kidnapping
and conspiracy to kidnap, in violation of 18 U.S.C.
§ 1201(a)(1) and 18 U.S.C. § 1201(c). Montalvo, Pacheco,
and Quinones were also convicted of conspiracy to
distribute and possess cocaine, in violation of 21 U.S.C.
§ 846. In addition, Moreno was convicted of using and
carrying a firearm in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1). In this consolidated
appeal, defendants challenge their convictions on
numerous grounds. We will discuss each of these
challenges in turn, focusing in more detail on Moreno's
claim that venue in New Jersey was improper to try the
§ 924(c)(1) count.
We will conclude that venue was improper in New Jersey
and, accordingly, we will reverse Moreno's conviction under
4
18 U.S.C. § 924(c)(1). We will affirm the defendants'
convictions on all other counts.
I.
Defendant Montalvo ran a cocaine distribution enterprise
out of Texas. In July of 1994, Ephrain Avendano
("Avendano"), the kidnapping victim, introduced Montalvo
to Fanol Ochoa ("Ochoa"), a New York drug dealer, so that
Montalvo and Ochoa could discuss a possible cocaine
transaction. Thereafter, Avendano served as the middleman
between Montalvo and Ochoa.
In October of 1994, Montalvo and another defendant,
Pacheco, arranged to sell Ochoa fourteen kilograms of
cocaine. Avendano acted as the middleman in this deal.
Montalvo hired Raul Lopez ("Lopez"), who later became a
key witness for the government, and another friend to "do
the run" from Texas to New York because Lopez owned a
car with a secret compartment. On October 29, 1994, while
en route to New York, Lopez was arrested and the fourteen
kilos of cocaine were seized. Montalvo called Avendano to
let him know that the deal had been thwarted and that he
had hired lawyers to represent Lopez.
In November of 1994, Montalvo and his cousin,
Defendant Quinones, met with Avendano. Montalvo told
Avendano that the seizure of the fourteen kilos and the
legal fees were "a big loss" and that he needed to make a
new deal to compensate for it. Avendano conveyed this
information to Ochoa, who agreed to strike another deal
with Montalvo for twenty kilograms of cocaine. Avendano,
again acting as the middleman, agreed to fly to Houston
and help Ochoa execute the deal with Montalvo. Avendano
arrived in Houston on December 11, 1994, and was met at
the airport by Ochoa and another man named "Baldy."
Ochoa told Avendano that the deal had been increased to
thirty kilograms of cocaine and that Montalvo had agreed to
give Ochoa the extra ten kilograms on credit. Ochoa then
informed Avendano of the plan to get the cocaine from
Montalvo: Avendano and Baldy were to meet Montalvo,
Baldy would put the cocaine in his car, and Avendano
would call Ochoa, who would then deliver the money.
5
Ochoa explained that he was not meeting Montalvo
personally because of "reasons of security."
Pursuant to this plan, Montalvo and Pacheco met
Avendano and Baldy. Baldy instructed Montalvo and
Pacheco to place the thirty kilos of cocaine in a suitcase,
and Baldy drove away with the drugs. When Avendano tried
to execute the last phase of the deal -- to call Ochoa to
secure payment for Montalvo -- Ochoa did not answer his
pager.
Obviously, Montalvo was not happy about being taken
advantage of by Ochoa for the price of the drugs, which was
nearly half-a-million dollars. And, in response, Montalvo
and Pacheco informed Avendano that he was "responsible"
for the money, warning him that they may have to turn him
over to the "Medellin people."
On December 12, 1994, Montalvo called Avendano's wife,
Marbel Avendano, and told her that he was holding Mr.
Avendano. Montalvo informed Mrs. Avendano that he could
not let Mr. Avendano go until he found Ochoa because
Avendano was "his only guarantee." Montalvo and Pacheco
then moved Avendano to an apartment in Houston and
then to a house. Avendano was kept in the house for two
weeks. Montalvo was armed at all times.
After hearing that Ochoa was in New York boasting about
how he had "ripped-off " Montalvo, Montalvo forced
Avendano to disclose the address of his mother and cousin
in Columbia and the address of his home in New Jersey.
Montalvo then informed Avendano that they were all going
to travel to Avendano's home in New Jersey to continue the
search for Ochoa. Montalvo warned Avendano not to try
anything "because it could work out worse for him."
That same day, Pacheco showed up at the apartment
with three men, Defendants Ortiz, Palma-Ruedas, and
Moreno, who had been hired to help look for Ochoa and
keep Avendano captive. Ortiz, Palma-Ruedas, and Moreno
travelled with Pacheco, Montalvo, and Avendano from Texas
to New Jersey. They arrived in New Jersey at Avendano's
apartment on December 28, 1994. Using Avendano's
apartment as a home base, the defendants spent the next
few days looking for Ochoa.
6
On January 1, 1994, they all went to Quinones's house
in Newburgh, New York. Mrs. Avendano stayed at the
Avendanos' apartment in New Jersey. Both Mr. Avendano
and Mrs. Avendano testified at trial that at this point they
thought they would never see each other again.
Before Avendano arrived with Pacheco at Quinones's
house, Montalvo had decided that the house was not safe
because police had inquired about the car with Texas plates
in the driveway. Montalvo then informed the group that
they were going to travel to Maryland that night. As they
got ready to leave, Montalvo told Avendano to carry the
guns so that if they were pulled over on the way, Avendano
would be responsible for the guns.
Montalvo, Pacheco, and Avendano travelled in one car,
and Ortiz, Palma-Ruedas, Moreno, and Quinones travelled
in another. Early in the morning on January 2, 1995, they
all arrived at a house in Maryland owned by Mr. Morillo.
Soon after their arrival in Maryland, Morillo showed off his
.357 magnum revolver to the men. Meanwhile, Montalvo
continued his search for Ochoa from the house in
Maryland. Once it became clear that Montalvo's search for
Ochoa was fruitless, tensions among the men began to run
high. At one point, Moreno told Montalvo that they "were
just wasting time" and that they should "just get it over
with and kill Avendano." Moreno then put Morillo's .357
magnum to the back of Avendano's neck, making it clear
that he was going to kill him. Shortly thereafter, Avendano
was able to escape from the rear of the house.
Avendano ran to a neighbor's house, where he frantically
begged the neighbor in broken English to let him use the
phone. Avendano called his wife in New Jersey, and his wife
got on the phone with the neighbor and asked him to call
the police because her husband was in danger. Mrs.
Avendano also called the police in New Jersey.
When the police arrived at the neighbor's house,
Avendano related the story of his kidnapping to the police.
Meanwhile, back in New Jersey, the police had also shown
up at the Avendanos' apartment with the FBI. The
Maryland police were able to corroborate Avendano's story
with the police in New Jersey. The Maryland police put the
7
Maryland house under surveillance, secured a search
warrant, and entered the house. All six defendants were
arrested, and the police seized the .357 magnum with
Moreno's fingerprints on it, Montalvo's pager, Montalvo's
cell phone, a faxed photograph of Ochoa, and papers
bearing the telephone numbers of Avendano's and Ochoa's
beepers.
All six defendants were indicted for: (1) kidnapping
Avendano; (2) conspiring to kidnap Avendano and his wife;
and (3) conspiring to distribute and possess with intent to
distribute cocaine. All defendants except Quinones were
indicted for kidnapping Mrs. Avendano. In addition, Moreno
was indicted for using and carrying a firearm in relation to
a crime of violence.
The defendants were jointly tried by jury in the United
States District Court for the District of New Jersey. At the
conclusion of the government's case, Palma-Ruedas, Ortiz,
and Moreno moved to dismiss the drug conspiracy charges
against them pursuant to Rule 29 of the Federal Rules of
Criminal Procedure.1 The district court granted their Rule
29 motion, finding that the government had failed to prove
that Palma-Ruedas, Ortiz, and Moreno had intended to join
a cocaine distribution conspiracy. J.App. at 470. The jury
found the defendants guilty of all remaining counts.2
_________________________________________________________________
1. Rule 29(a) provides, in pertinent part:
The court on motion of a defendant or of its own motion shall order
the entry of judgment of acquittal of one or more offenses charged
in the indictment or information after the evidence on either side is
closed if the evidence is insufficient to sustain a conviction of such
offense or offenses.
Fed. R. Crim. P. 29(a).
2. Montalvo was sentenced to life imprisonment on four counts to be
served concurrently. Pacheco was sentenced to 292-months
imprisonment on four counts to be served concurrently. Quinones was
sentenced to 151-months imprisonment on three counts to be served
concurrently. Palma-Ruedas was sentenced to 135-months
imprisonment on three counts to be served concurrently. Ortiz was
sentenced to 96-months imprisonment on three counts to be served
concurrently. Moreno was sentenced to 87-months imprisonment on
three counts to be served concurrently and 60-months imprisonment on
the § 924(c)(1) count to be served consecutively.
8
All six defendants appealed, and we consolidated their
appeals. The district court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction under 28 U.S.C. § 1291.
II.
A. Venue
Defendant Moreno was indicted and convicted of violating
18 U.S.C. § 924(c)(1). That section provides:
Whoever, during and in relation to any crime of
violence or drug trafficking crime . . . for which he may
be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years
. . . .
18 U.S.C. § 924(c)(1).
At the conclusion of the government's case, Moreno
moved to dismiss the § 924(c)(1) count for lack of venue.
Moreno argued that because the evidence conclusively
established that he had neither "used" nor "carried" the
.357 magnum revolver outside of Maryland, venue could
only properly lie in Maryland. The government conceded
that Moreno had only used or carried the gun in Maryland
but maintained that venue in New Jersey was proper
nonetheless. According to the government, venue was
proper in New Jersey for the gun charge because venue in
New Jersey was proper for the predicate offense of
kidnapping.
Having no guidance from this Circuit on the venue issue,
the district court was forced to choose between two
opposing analyses offered, respectively, by the Ninth Circuit
and the Fifth Circuit. Compare United States v. Corona, 34
F.3d 876, 879 (9th Cir. 1994) (holding that Nevada was
improper venue for trying defendant on § 924(c)(1) charge,
even though Nevada was proper venue for trying defendant
on underlying drug conspiracy, when defendant never
actually used or carried the firearm in Nevada), with United
States v. Pomranz, 43 F.3d 156 (5th Cir. 1995) (holding that
defendant was properly tried for unlawful use of a firearm
9
during drug trafficking offense in any district in which
venue was proper for underlying drug distribution
conspiracy). Apparently persuaded by the Fifth Circuit's
decision in Pomranz, the district court concluded that
Moreno could properly be tried in New Jersey for violation
of 18 U.S.C. § 924(c)(1). See J.App. at 468.
Moreno's appeal requires us to address, for the first time,
whether the Constitution requires a defendant to be tried
under § 924(c)(1) in the venue where the violation of that
statute took place. Or, to state the issue differently, can the
government try a defendant for using or carrying a firearm
in any venue where it may try the related crime when the
defendant neither carried nor used the firearm in that
venue? Because the district court's decision regarding
proper venue was an interpretation of law, we have plenary
review. United States v. Baxter, 884 F.2d 734, 735 (3d Cir.
1989).
Article III, Section II of the Constitution states in
pertinent part: "The Trial of all Crimes, except in Cases of
Impeachment, shall be . . . held in the State where the said
crimes shall have been committed . . . ." U.S. Const. art. III,
§ 2. Thus, by its explicit terms, the Constitution requires
crimes to be tried where they are committed.3
Moreover, we have emphasized that proper venue is not
just a mere formal requirement but, rather, a right of
_________________________________________________________________
3. This requirement is reinforced by the vicinage provision of the Sixth
Amendment, which provides:
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. (emphasis added). See United States v.
Anderson, 328 U.S. 699, 703 (1946).
In addition, Rule 18 of the Federal Rules of Criminal Procedure
provides:
Except as otherwise permitted by statute or by these rules, the
prosecution shall be had in a district in which the offense was
committed.
Fed. R. Crim. Proc. 18 (emphasis added).
10
constitutional dimension. See United States v. Baxter, 884
F.2d 734, 736 (3d Cir. 1989) ("[p]roper venue in criminal
trials is more than just a procedural requirement; it is a
safeguard guaranteed twice by the United States
Constitution itself."); see also United States v. Goldberg,
830 F.2d 459, 465 (3d Cir. 1987) ("The venue provisions of
the Constitution are important safeguards, protecting an
accused from unfairness and hardship in defending against
prosecution by the federal government.").
The government urges us to disregard these
constitutional dictates and adopt the approach of the Fifth
Circuit in Pomranz. Moreno urges us to adopt the approach
of the Ninth Circuit in Corona. Because Corona and
Pomranz elucidate the parameters of this issue, we will
discuss those cases in some detail.
In United States v. Corona, 34 F.3d 876, 879 (9th Cir.
1994), the Ninth Circuit reversed the conviction of the
appellant for the unlawful use of a firearm in violation of
§ 924(c)(1) because of improper venue. Adopting a "key
verbs" test, which examines the verbs in the statute that
define the criminal conduct to determine where the offense
was committed, the court held that Nevada was not the
proper venue for the substantive crimes arising from the
conspiracy -- distribution of cocaine and use of afirearm
during drug trafficking -- which occurred entirely in
California. Id. at 880. Because the defendant had not
distributed cocaine nor used a firearm in Nevada, venue
was improper, even though the conspiracy counts were
properly tried in Nevada.
In United States v. Pomranz, 43 F.3d 156 (5th Cir.), cert.
denied, 116 S. Ct. 513 (1995), the Fifth Circuit explicitly
rejected the Ninth Circuit's analysis. The Fifth Circuit noted
that the Ninth Circuit's approach would "effectively
undermine the Congressional intent to curb the violence
inherently associated with high level drug deals." Pomranz,
43 F.3d at 161. Because a violation of § 924(c)(1) is
necessarily intertwined with the predicate act of drug
trafficking or committing a violent crime, the Fifth Circuit
concluded that § 924(c)(1) violations can be properly tried in
the same venue as the underlying drug or violent crime
offense. Id. In reaching this conclusion, the court relied
11
heavily on policy concerns -- that the government would
have to "expend its limited resources in prosecuting a felon
a second time for this separate offense, or satisfy itself with
the punishment previously imposed and forfeit a conviction
on the weapons count." Id. at 161. Further, in addressing
the obvious constitutional concerns inherent in its decision
to allow venue, the court stated: "[W]e do not believe that
our holding seriously infringes on the defendant's rights
since this Court treats the right to venue with less
deference than other constitutional rights." Id. at 162.
Thus, while the Ninth Circuit, relying heavily on the
literal language of the Constitution and Rule 18 of the
Federal Rules of Criminal Procedure, found the rights
guaranteed by these provisions to outweigh concerns about
judicial economy, the Fifth Circuit adopted a more
pragmatic approach. The Ninth Circuit stated the tension
between the two approaches this way:
What the government is essentially arguing for is a rule
of law allowing venue over a substantive crime
committed in furtherance of a conspiracy in any
district where venue is proper for the conspiracy
charge. While such a rule might make some sense from
a policy standpoint, it runs counter to the venue
principles established by the Constitution, the Federal
Rules of Criminal Procedure, and the federal courts.
Corona, 34 F.3d at 879.
Relying heavily on the rationale articulated in Pomranz,
the government advances two arguments for finding venue
proper in this case. First, the government urges us to
consider the cost of forcing duplicative trials. Had the
government been forced to try Moreno on the gun charge in
Maryland, it contends, its resources would have been
dramatically strained because it would have also had to
retry Moreno on the underlying predicate offense of
kidnapping.
The government's second and related argument is that
when determining venue, a court must look closely to "the
nature" of § 924(c)(1). In other words, because a violation of
§ 924(c)(1) is dependent on the predicate offense -- in this
12
case, kidnapping -- it would be illogical to require the
§ 924(c)(1) offense to be tried in a different venue.
We reject both of the government's arguments. Instead,
we agree with the Ninth Circuit that to determine where
venue should lie under § 924(c)(1) the "verb test" is the
proper test.4 Applying that test here, we find that § 924(c)(1)
unambiguously designates the criminal conduct that is
prohibited as "using" or "carrying" afirearm. It follows that
one "commits" a violation of § 924(c)(1) in the district where
one "uses" or "carries" a firearm. Accordingly, we conclude
that because the crime committed by Moreno -- carrying or
using a firearm in relation to a crime of violence -- occurred
only in Maryland, Moreno could only have been properly
tried in Maryland.
Contrary to the government's assertions, application of
the verb test here would not cause it undue hardship. For
example, our holding would not prevent the government
from trying the predicate offense in any venue in which the
§ 924(c)(1) charge would be properly brought. Indeed, had
_________________________________________________________________
4. For a discussion of the "verb test," see Armistead M. Dobie, Venue in
Criminal Cases in the United States District Court, 12 Va. L. Rev. 287,
289 (1926) ("All federal crimes are statutory, and these crimes are often
defined . . . in terms of a single verb. That essential verb usually
contains the key to the solution of the question: In what district was the
crime committed?"). See generally 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 the relevant conduct.")(quoting United States v. Tedesco, 635 F.2d
902, 905 (1st Cir. 1980)); United States v. Donahue, 885 F.2d 45, 49 (3d
Cir. 1989) ("[I]t is often helpful to look at the statutory verb in the
description of the offense in determining where an offense was
committed."); United States v. Cofield, 11 F.3d 413, 416 (4th Cir. 1994)
(noting that "we have adopted the `verb test' as an interpretative aid");
United States v. Murphy, ___ F.3d ___, 1997 WL 349887, at *2 (4th Cir.
June 26, 1997) ("Where . . . Congress has not provided an express venue
provision in conjunction with a criminal offense, this circuit has looked
to the verbs defining the criminal offense and the purpose underlying the
criminal statute to determine proper venue."); United States v. Crawford,
___ F.3d ___, 1997 WL 339295, * 7 (8th Cir. June 23, 1997) (applying the
"active verb" or "key verb" test to the Child Support Recovery Act); United
States v. Ryan, 894 F.2d 355, 360 (10th Cir. 1990) ("Courts usually
examine the verbs employed in the statute to define the offense.").
13
the government wanted to try Moreno on all counts in a
single trial, it certainly could have done so in Maryland.5
Thus, the government overstates the potential hardship it
would face if forced to try § 924(c)(1) violations in the venue
where the gun was used or carried. Essentially, the
government wants to have the option of venue-- that is, it
does not want to be restricted to trying these cases in the
venue where the § 924 violation occurred.
Many constitutional guarantees for criminal defendants
are inefficient and costly -- the right to counsel comes to
mind. Nevertheless, these guarantees form the bedrock
principles of our criminal justice system and should not be
hastily balanced away. See United States v. Johnson, 323
U.S. 273, 276 (1944) ("If an enactment of Congress equally
permits the underlying spirit of the constitutional concern
for trial in the vicinage to be respected rather than to be
disrespected, construction should go in the direction of
constitutional policy . . . ."). Thus, here, where the statute
does not indicate the location of the crime for purposes of
determining venue, we must strictly construe the verbs that
define the criminal conduct to ensure that the defendant's
Sixth Amendment rights are protected.6
While of course, Congress cannot abrogate the venue
guarantee altogether, it can define a crime broadly such
that commission of that crime will likely cross state
borders. See Charles A. Wright, Federal Practice &
Procedure § 302, at 201 (2d ed. 1982). For example, 18
_________________________________________________________________
5. The government argues that the count charging Moreno with
kidnapping Mrs. Avendano could only have properly been tried in New
Jersey or New York, thus precluding a consolidated trial. Because
Moreno's violation of § 924(c)(1) was only related to the kidnapping of Mr.
Avendano, the fact that he committed a separate crime of kidnapping
Mrs. Avendano is not particularly relevant to our venue analysis.
6. The parade of horribles offered by the dissent to demonstrate the
inadequacies of the "verb test," while perhaps compelling on its own
terms, has no application in the context of this case. Although there may
be statutes in which the verbs defining the criminal conduct are
ambiguous, 18 U.S.C. § 924(c)(1) is not such a statute. Cf. United States
v. Angotti, 105 F.3d 539, 542 (9th Cir. 1997) (noting that the Corona
court "quite logically" held that "the crime of distribution of narcotics is
committed in the district where the narcotics are distributed").
14
U.S.C. §§ 659 & 660 allow the government to indict an
individual for "stealing" from interstate commerce in any
district in which the individual "possessed" the proceeds of
the theft. See id. Congress can also explicitly provide a
venue provision for any given offense, as long as the venue
bears some relation to the offense.7 But where, as here,
Congress has not explicitly indicated an intention to allow
multiple venue actions, we remain guided by the strict
language of the Constitution. See Anderson, 328 U.S. at
703 (holding that when "nothing in either the statute or the
legislative history . . . show[s] an intention on the part of
Congress to depart from the Sixth Amendment's command,"
courts must look to the nature of the crime and where it
was committed to determine venue); United States v.
Barsanti, 943 F.2d 428, 434 (4th Cir. 1991) ("Congress did
not expressly provide for venue in 18 U.S.C. § 1001;
therefore, we must look to the verbs of the statute for
guidance.").
In the specific context of § 924(c), Congress could have
drafted the statute to allow venue to lie in any district
where the government could properly bring the related
crime of violence or drug trafficking offense. 8 Congress did
not do so. Without such an explicit expression of
congressional intent, we decline the government's invitation
to construe liberally the venue requirement.
Because Moreno only used or carried the gun in
Maryland and because that conduct constitutes the
substantive offense under § 924(c)(1), venue in New Jersey
was improper. Accordingly, we reverse Moreno's conviction
under § 924(c)(1) for lack of venue.
B. Rule 404(b) Evidence
Defendants Montalvo, Pacheco, and Quinones argue that
_________________________________________________________________
7. For example, Congress has provided for continuing offenses to be tried
"in any district in which such offense was begun, continued, or
completed." 18 U.S.C. § 3237(a). And, murder offenses may be tried in
any district "where the injury was inflicted . . . without regard to the
place where the death occurs." 18 U.S.C. § 3236.
8. Indeed, the dissent artfully suggests just how such a statute might be
written. See Dissent at 33-34.
15
the district court abused its discretion in allowing the
admission of "other crimes" evidence of previous drug
transactions.9 Specifically, the defendants attack the
admission of testimony from Avendano, the kidnapping
victim, and Lopez, the drug courier, regarding the thwarted
fourteen-kilo cocaine deal. Defendants also challenge the
admission of Lopez's testimony about the five drug
transactions that preceded the fourteen-kilo deal. According
to defendants, they were prejudiced by the admission of
this evidence in violation of Rule 404(b) of the Federal Rules
of Evidence, which prohibits the admission of prior bad
acts when used to portray a defendant as a "bad person."
Because the fourteen-kilo deal was admitted solely to
portray the defendants as drug dealers and, thus,"bad
people," defendants contend that it was improperly
admitted.
Initially, we must determine whether evidence of the prior
cocaine transactions was probative of the charged conduct,
rather than merely probative of the defendants' character.
United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir. 1996).
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident
. . . .
Fed. R. Evid. 404(b).
Thus, for "other crimes" evidence to be admitted, it must
be logically relevant, under Rules 404(b) and Rule 402, to
any issue other than the defendant's propensity to commit
the crime, and its probative value must outweigh its
_________________________________________________________________
9. Evidence of the prior cocaine transactions was not admitted against
Quinones at trial. His argument is better understood as objecting to the
district court's refusal to sever his trial from the other defendants. In
essence, Quinones claims that his trial should have been severed
because evidence of the prior deals was admitted against his co-
defendants.
16
prejudicial effect. United States v. Himelwright , 42 F.3d
777, 781 (3d Cir. 1994). Because trial courts have
substantial leeway in making evidentiary rulings, we review
a district court's decision to admit 404(b) evidence for
abuse of discretion. Id. When, however, a district court does
not offer reasons for its evidentiary rulings, we need not
defer to the reasoning of the district court. Id.
1. The Fourteen-Kilo Deal.
When the government first sought to introduce the
fourteen-kilo cocaine deal, it offered it as part and parcel of
the drug conspiracy count of the indictment. According to
the government, the original fourteen-kilo deal was part of
the charged drug conspiracy because all of the players were
identical to the players in the thirty-kilo deal: Montalvo and
Pacheco were the sellers; Avendano was the middleman;
and Ochoa was the buyer. Under the government's theory,
because the first fourteen-kilo deal was thwarted when the
courier, Lopez, was arrested by police, Montalvo was eager
to "up the ante" on the next deal.
The district court, however, expressed unwillingness to
consider the fourteen-kilo deal as part of the same
conspiracy as the subsequent thirty-kilo deal because the
indictment only charged a conspiracy to distribute thirty
kilos of cocaine. Instead, the district court urged the
government to introduce the fourteen-kilo deal as 404(b)
evidence.
Consequently, the government introduced the fourteen-
kilo deal, offering the following reasons to explain why it
qualified under Rule 404(b):
[I]t provides the background and an explanation of the
relationship between Mr. Montalvo, Mr. Pacheco, and
Mr. Lopez . . . . There's an overlap in the 14 kilogram
transaction because that overlaps to Mr. Ochoa, the
guy who stole the 30 kilos in this case, and Avendano,
who was intended middleman in the 14 and the 30. It
also shows a method of operation. It also shows the
planning and preparation in terms of having a car
prepared to conceal these drugs. It's sort of a test run,
so to speak, Your Honor, to take it for a distance from
A to B, which is very short and then follow it up with
17
a matter of days and take it interstate from Houston
towards New York.
J.App. at 93-94.
Presumably adopting the government's analysis, the
district court admitted the prior drug deal:
I don't have any difficulty with that whatsoever. The
probative value of that is not substantially outweighed
by the danger of any kind of unfair prejudice. I've ruled
on that. Absolutely clear. Classic 404(b).
J.App. at 94.
We can infer that the district court adopted the
government's proffered reason for admitting the fourteen-
kilo deal as 404(b) evidence. See United States v. Sampson,
980 F.2d 883, 888 (3d Cir. 1992) (stating that a district
court's summary conclusion to admit 404(b) evidence may
be sufficient if the government thoroughly explains its
proffered reason for offering it). We agree that the
government has sufficiently shown that the fourteen-kilo
deal was a link in a chain of events that led to the charged
conduct and not merely evidence that the defendants were
more likely than not to have committed the charged
conduct. Thus, we conclude that the district court properly
determined that the fourteen-kilo cocaine deal qualified as
"other crimes" evidence under Rule 404(b).
Unfortunately, it is more difficult to decipher the
reasoning of the district court with regard to the balancing
analysis required by Rule 403.10 The district court merely
stated a conclusion that the probative value of the evidence
outweighed its prejudicial effect. Although the district court
may have in fact engaged in Rule 403 balancing, it did not
articulate on the record a rational explanation. See
_________________________________________________________________
10. Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of
cumulative evidence.
Fed. R. Evid. 403.
18
Government of Virgin Islands v. Harris, 938 F.2d 401, 420
(1991). Thus, we need not defer to the district court and
can conduct the requisite balancing analysis ourselves.
Himelwright, 42 F.3d at 781.
In our view, while the fourteen-kilo deal may have had
some prejudicial effect on Montalvo and Pacheco, the
evidence of the deal was substantially relevant to the
government's case against the defendants to outweigh any
risk of prejudice. Indeed, the fourteen-kilo deal went to the
heart of the government's theory of the case: The
government contended that the thirty-kilo deal, which led
to the kidnapping, was set up to offset the loss caused by
the thwarted fourteen-kilo deal.
In addition, the district court gave explicit limiting
instructions to the jury immediately after Lopez's testimony,
which described the fourteen-kilo deal.11 This limiting
instruction mitigated any potential prejudice against
Montalvo and Pacheco. See Sriyuth, 98 F.3d at 748
(recognizing that unfair prejudice can be minimized by a
limiting instruction). In other words, the limiting
instruction sufficed to enable the jury to compartmentalize
the evidence and consider it only for its proper purpose. Id.
(citing United States v. Driggs, 823 F.2d 52, 54 (3d Cir.
1987)).
Thus, in our view, the evidence of the fourteen-kilo deal
was highly probative to show method of operation and
preparation, while the prejudicial effect was minimal.
Accordingly, the fourteen-kilo deal was properly admitted as
"other crimes" evidence under Rule 404(b).
_________________________________________________________________
11. Specifically, the court instructed the jury to:
Use this evidence to decide whether or not defendant Montalvo and
defendant Pacheco had knowledge of the drug conspiracy charged in
the indictment and intended to participate in. Should you choose to
believe the evidence of these other cocaine transactions you've heard
this afternoon, I caution you, you may only use it for these limited
purposes. You may not use it to prove that defendant Montalvo and
defendant Pacheco are bad persons or that they were predisposed to
do bad things. . . .
J.App. at 281-82.
19
2. The Five Prior Drug Transactions.
The defendants also object to the admission of five prior
cocaine deals. The government offered evidence, through
the testimony of Lopez, of five prior cocaine transactions
purportedly to show Lopez's relationship with Montalvo and
Pacheco. In addition, the government contended that
Lopez's testimony about the prior deals was probative to
rebut Montalvo's and Pacheco's claim of noninvolvement
with Lopez. Lopez, however, had absolutely no involvement
with the charged drug conspiracy -- that is, the thirty-kilo
cocaine deal. The defendants therefore argue that the five
prior deals did not relate to anything at issue in the case.
Although it is clear that the district court found the
evidence to be "classic 404(b)," it is unclear from the record
whether the district court conducted a balancing analysis
under Rule 403. J.App. at 94. The district court judge
merely stated that: "[T]hat's other crimes evidence. I already
told you, I balanced -- I balanced that last night, I certainly
couldn't see the fourteen kilos as part of this transaction,
but I think it's appropriate other crimes evidence." J.App.
at 101. Moreover, the district court discussed the prior five
deals as part and parcel of the fourteen-kilo deal, rather
than as separate 404(b) evidence. Again, because the
district court did not offer reasons for its ruling, we must
engage in Rule 403 balancing as to the five prior deals
ourselves. See Himelwright, 42 F.3d at 781.
While the evidence of the five prior deals clearly shows a
relationship between Montalvo and Pacheco, we question
whether that evidence had much probative value because
the relationship between Montalvo and Pacheco had already
been established by the fourteen-kilo deal. On the other
side of the scale, however, the risk of prejudice to the
defendants by introducing that evidence was significant.
Through its admission, the government may have been able
effectively to convey to the jury that Montalvo and Pacheco
were career drug dealers and "bad people."
Nevertheless, we find it unlikely that "any prejudice
resulting from the admission of [the 404(b) evidence] . . .
`cause[d] the jury to base its decision on something other
than the established propositions in this case.' " United
20
States v. McGlory, 968 F.2d 309, 339 (3d Cir. 1992) (citing
Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980)). In other
words, given that the five prior deals were relatively small
scale and that evidence of the fourteen-kilo deal had
already been properly admitted, the admission of thefive
prior deals likely had no effect on the jury's decision.
Accordingly, while we are concerned with the district
court's failure to explain its reasons for admitting the five
prior cocaine deals, we do not think that the admission of
that evidence rises to the level of reversible error.
C. Severance
Moreno, Palma-Ruedas, Ortiz, and Quinones contend
that the district court abused its discretion in refusing to
sever their trials from the trial of Montalvo and Pacheco.
Specifically, Moreno, Palma-Ruedas, Ortiz and Quinones
claim that the district court wrongly balanced the prejudice
to the defendants against the advantages of joinder.
In reviewing orders denying motions to sever, we look to
the record as it existed when the motion was made, what
trial developments were then reasonably foreseeable, and in
that light decide whether the district court abused its
discretion in denying the severance motion. United States v.
Sandini, 888 F.2d 300, 305-06 (3d Cir. 1989); United States
v. Console, 13 F.3d 641 (3d Cir. 1993).
In general, we favor joint trials for defendants who are
indicted together. See Zafiro v. United States , 506 U.S. 534,
537 (1993); United States v. Balter, 91 F.3d 427, 432 (3d
Cir. 1996). The defendants acknowledge this preference
but, nevertheless, claim that evidence of the drug
conspiracy admitted against Montalvo and Pacheco was so
overwhelming that it "spilled over" to them.
As the Supreme Court noted in Zafiro, courts should
grant a severance motion "only if there is a serious risk that
a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence." Zafiro, 506
U.S. at 538-39. Such a risk may occur "when evidence that
the jury should not consider against a defendant and that
would not be admissible if a defendant were tried alone is
admitted against a codefendant." Id. at 539. According to
21
defendants, that is exactly what happened in this case.
That is, Moreno, Palma-Ruedas, Ortiz, and Quinones
contend that the jury could not possibly have
compartmentalized the drug evidence admitted against
Montalvo and Pacheco, even with explicit limiting
instructions.
When Moreno, Palma-Ruedas, Ortiz, and Quinones
moved to sever, the district court had before it only an
indictment charging all six defendants with conspiracy to
kidnap and distribute drugs. Thus, when the motion was
made, the district court had no reason to believe that
Moreno, Palma-Ruedas, Ortiz, and Quinones were situated
any differently with respect to the drug conspiracy than
Montalvo and Pacheco. Moreno, Palma-Ruedas, Ortiz, and
Quinones contend, however, that their severance argument
is bolstered, retrospectively, by the fact that, at the
conclusion of the government's case, the district court
acquitted the defendants of the drug conspiracy charge
pursuant to Rule 29. Yet, as the government properly
points out, even if these defendants had been tried
separately, evidence of the thirty-kilo drug deal would have
been admissible against each of them to prove motive for
the kidnapping charge. In other words, some evidence
relating to a drug transaction -- indeed, the largest
transaction -- was relevant to all of the charges and all of
the defendants. Thus, we are unpersuaded by the
defendants' contention that their trials were "tainted" by
the association with drugs.
Moreover, even if we were to find that the district court
abused its discretion in denying the severance motion, the
defendants must still pinpoint "clear and substantial
prejudice," which resulted in an unfair trial. United States
v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991). We are
convinced that by instructing the jury that evidence of the
prior drug transactions -- specifically, evidence of the
fourteen-kilo deal and the five smaller deals-- was to be
considered only against Montalvo and Pacheco, the district
court took sufficient steps to cure any prejudice caused by
admission of that evidence. See Zafiro, 506 U.S. at 539
(noting that "less drastic measures, such as limiting
instructions, often will suffice to cure any risk of
22
prejudice"). Accordingly, we conclude that defendants have
not shown clear or substantial prejudice as a result of the
district court's denial of their severance motion.
D. Variance
Ortiz, Moreno, and Palma-Ruedas argue that their
convictions should be vacated because there was a variance
between the indictment and the proof at trial, to the
prejudice of the their substantial rights. See Kotteakos v.
United States, 328 U.S. 750 (1946); United States v.
Salmon, 944 F.2d 1106, 1116 (3d Cir. 1991) (noting that
under Kotteakos, "a conviction must be vacated where a
variance between the indictment and proof at trial exists to
the prejudice of a defendant's substantial rights"). Ortiz,
Moreno, and Palma-Ruedas contend, through a creative
reading of the indictment, that the government actually
charged one broad conspiracy but at trial presented proof
of multiple conspiracies. Specifically, they contend that
there was a variance between the indictment and the proof
offered at trial because they were charged with a cocaine
conspiracy but convicted of a kidnapping conspiracy. We
reject this argument.
The second superseding indictment charged Ortiz,
Moreno, and Palma-Ruedas with conspiracy to distribute
cocaine and conspiracy to kidnap. J.App. at 20. At trial, the
existence of those two conspiracies was proven. While true
that Ortiz, Moreno, and Palma-Ruedas were convicted only
of the kidnapping conspiracy, the fact that they were
acquitted of one of the conspiracies does not establish a
prejudicial variance. On the contrary, the defendants were
indicted on a kidnapping conspiracy and convicted on a
kidnapping conspiracy; thus, there is no variance here.
E. Sufficiency of Evidence to Convict Quinones
Quinones argues that his convictions should be reversed
because the evidence against him was insufficient to
support a guilty verdict. Specifically, he argues that the
government failed to show that he had knowledge of the
objectives of the drug and kidnapping conspiracies or that
he willingly entered into such conspiracies.
In determining whether to sustain a conviction, we view
the evidence in the light most favorable to the government
23
and determine whether a trier of fact could have found each
element of the charged offense beyond a reasonable doubt.
United States v. Schramm, 75 F.3d 156, 159 (3d Cir. 1996).
In short, we "will reverse for insufficient evidence only
where the failure of the prosecution is clear." Government of
the Virgin Islands v. Isaac, 50 F.3d 1175, 1179 (3d Cir.
1995).
On a conspiracy charge, the government need not prove
conspiratorial intent through direct evidence. Rather, the
government can rely "entirely on circumstantial evidence to
prove that an alleged conspirator had the knowledge and
intent necessary to commit the crime." United States v.
Carr, 25 F.3d 1194, 1201 (3d Cir. 1994). Here, the
government presented testimony that Quinones was
present at the initial meeting in November of 1994 between
Avendano and Montalvo, in which they discussed
negotiating a possible deal with Ochoa. The government
also showed that Quinones travelled with all of the
kidnappers and Avendano from Quinones's house in New
York to Maryland. Moreover, it was established that
Quinones was present when Moreno threatened Avendano
with the .357 magnum and that Quinones made an attempt
to escape when the police entered the Maryland house.
From all of these circumstantial facts, a reasonable juror
could infer that Quinones knowingly and intentionally
participated in the drug and kidnapping conspiracies.
Accordingly, we conclude that the evidence was sufficient to
support Quinones's conviction on all counts.
F. Speedy Trial Act
Moreno filed a supplemental pro se brief alleging that the
government violated his right under the Speedy Trial Act to
be charged by indictment within thirty days after being
arrested or served with a complaint.
The Speedy Trial Act, 18 U.S.C. § 3161(b), requires that:
Any information or indictment charging an individual
with the commission of an offense shall be filed within
thirty days from the date on which such individual was
arrested or served with a summons in connection with
such charges.
24
Moreno contends that his conviction on the § 924 count
should be reversed because the government did not indict
him on this count within thirty days of his initial arrest. As
the government properly points out, however, Moreno was
not charged upon arrest with violating § 924. Rather, he
was initially charged on that count through a formal,
superseding indictment. Section 3161(b) plainly states that
it only applies if the arrest was made "in connection with
such charges." Because Moreno had already been arrested
on charges stemming from the first indictment, there was
no arrest in connection with the § 924(c)(1) charge.
Accordingly, the thirty-day time limit does not apply. See
United States v. Beal, 940 F.2d 1159, 1162 (8th Cir. 1991).
Moreover, Moreno failed to move for dismissal of the
indictment prior to trial. Section 3162(a)(2) of the Speedy
Trial Act clearly states: "Failure of the defendant to move
for dismissal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to
dismissal under this section." 18 U.S.C. § 3162(a)(2). See
also United States v. Patten, 826 F.2d 198, 199 (2d Cir.
1987) (per curiam) (rights under Act waived when
defendant did not request dismissal until after jury
selection began); United States v. Jernigan, 20 F.3d 621,
622 n.2 (5th Cir. 1994) (rights under Act waived when
defendant did not move for dismissal prior to trial).
Accordingly, we reject Moreno's Speedy Trial Act claim.
G. Suppression
Montalvo, Pacheco, Quinones, Moreno, and Palma-
Ruedas claim that the district court erred by failing to
suppress the evidence seized at the Maryland residence.
Specifically, the defendants contend that there was
insufficient probable cause to support a search warrant.
Defendants' claim is without merit. When the police came
to the house in Maryland, they were able to corroborate Mr.
Avendano's story through the police in New Jersey. Thus,
the magistrate clearly "had a `substantial basis for . . .
concluding' that a search would uncover evidence of
wrongdoing." Illinois v. Gates, 462 U.S. 213, 236 (1983)
(quoting Jones v. United States, 362 U.S. 257 (1960)).
Accordingly, there was sufficient probable cause to support
a search warrant.
25
Moreover, even if the warrant was not supported by
sufficient probable cause, suppression would be
inappropriate because the police reasonably relied on the
warrant. See United States v. Leon, 468 U.S. 897, 920-22
(1984); United States v. Williams, 3 F.3d 69, 74 (3d Cir.
1993). Accordingly, the district court properly admitted the
evidence seized from the Maryland house.
H. Admission of Hearsay Testimony
When the defendants were at the house of Quinones in
New York, a police detective came to the door to check on
a suspicious car in the driveway. Rosemary Alvarez,
Quinones's wife, answered the door with Montalvo. At trial,
the police detective testified that Alvarez told him that
Montalvo was "Carlos Torres."
Montalvo objects to the admission of the detective's
testimony, claiming that it was inadmissible hearsay.
Whether evidence is hearsay is a question of law subject to
plenary review. United States v. Sallins, 993 F.2d 344, 346
(3d Cir. 1993).
We agree with the district court that the detective's
testimony was not hearsay. The testimony was not
introduced to prove that Montalvo really was "Carlos
Torres" -- i.e., it was not admitted to prove the truth of the
matter asserted. See Fed. R. Evid. 801(c). Rather, the
testimony was offered to show consciousness of guilt and to
show that the statement was, in fact, false. See United
States v. Levy, 865 F.2d 551, 558 (3d Cir. 1989) (in banc)
(noting that "defendants' attempt to conceal their true
identities by providing aliases to the police upon arrest is
relevant as consciousness of guilt"); Anderson v. United
States, 417 U.S. 211, 219-20 (1974) (holding that
statements were not hearsay when admitted "to establish a
foundation for later showing, through other admissible
evidence, that they were false") (citations omitted).
Even though Montalvo did not offer the information
himself, he allowed Alvarez to offer the false statement
without correcting her. The statement was thus probative
regarding consciousness of guilt because the jury could
have reasonably inferred that Montalvo welcomed Alvarez's
misidentification of him. J.App. at 313. Further, we agree
26
with the district court that the admission of the statement
was not prejudicial. Thus, we conclude that the district
court properly admitted the testimony of the detective.
I. Evidence of Montalvo's Past Name
Montalvo argues that the district court abused its
discretion when it allowed the government to ask
Montalvo's former mother-in-law on cross-examination
whether she had ever known Montalvo by any other name.
On direct examination, Montalvo's mother-in-law repeatedly
referred to Montalvo as "Omar." On cross, the prosecutor
asked whether she had ever known Montalvo by any other
name. She replied that she had known him as "Rubin
Tascon" and that, in fact, "Rubin Tascon" was the name
that appeared on her daughter's marriage certificate.
The trial court enjoys "sound discretion" in determining
the scope of cross-examination. United States v. Werme,
939 F.2d 108, 117 (3d Cir. 1991). Here, the district court,
after considering Montalvo's objection, determined that the
prosecutor could elicit testimony tending to prove that
Montalvo's mother-in-law did not normally refer to him as
Omar. The testimony was probative because it tended to
support the inference that Montalvo knew he was breaking
the law and was trying to hide behind an alias. See Levy,
865 F.2d at 558. In addition, we agree with the district
court's determination that the witness's reference to
Montalvo's "real name" -- Rubin Tascon -- was not unduly
prejudicial. Accordingly, the district court did not abuse its
discretion in allowing the government to make this point on
cross-examination.
J. Government's Reference in Closing to Montalvo's
Past Names
Montalvo claims that he was denied a fair trial because
the government referred, in closing, to Montalvo's past
names. Because Montalvo made no objection to the
prosecutor's closing at trial, he is required to show plain
error. United States v. Anderskow, 88 F.3d 245, 249 (3d
Cir. 1996); see also United States v. Price, 76 F.3d 526, 530
(3d Cir. 1996) (defining plain error as " `egregious error or
a manifest miscarriage of justice' "). We conclude that
Montalvo cannot show plain error as required.
27
In closing, the government referred to "Carlos Torres" and
"Rubin Tascon" as names previously used by Montalvo. Yet,
as discussed in the previous section, both of these past
names had already been submitted to the jury through the
testimony of witnesses. Because we have concluded that
the district court did not abuse its discretion in admitting
evidence of Montalvo's aliases through the testimony of
witnesses, we can hardly conclude that the government's
reference to these names in closing rose to the level of plain
error.
K. Exclusion of Hearsay Testimony of Marilyn
Hernandez
Quinones argues that the district court committed
reversible error when it refused to admit the testimony of
Marilyn Hernandez regarding the meeting between
Avendano, Montalvo, and Quinones. The defense attempted
to admit Hernandez's statement that when Montalvo
introduced Avendano to Quinones at Quinones's house on
January 1, 1995, Quinones said, "Nice to meet you."
Quinones's theory was that this statement tended to rebut
Avendano's contention that Quinones was at the initial
meeting with Montalvo and Avendano in November 1994,
and that the statement showed that Quinones did not know
that Avendano was being held against his will.
The district court excluded the testimony as hearsay.
Quinones argues that the statement was not hearsay
because it was not being offered to prove the truth of the
statement. See Fed. R. Evid. 801(c). In the alternative, he
argues that even if the statement was hearsay, it was
admissible under Rule 803(3), which allows the admission
of statements of the declarant's then existing state of mind.
See Fed. R. Evid. 803(3). Thus, the first question is whether
or not the statements regarding the meeting between
Quinones and Avendano were offered to prove the matter
asserted -- i.e., that Quinones and Avendano had never
met before January 1, 1995.
The district court found that the statements were offered
precisely to prove the truth of the matter asserted-- that
is, that Quinones and Avendano did not know each other.
Quinones makes a hypertechnical, syntactic argument by
28
asserting that the relevance of the statement was not that
Quinones really thought that "it was nice" to meet
Avendano but, rather, merely that the statements were
said. Quinones's counsel, however, undermined this
argument in closing when he asserted that Quinones could
not have been at the November 1994 meeting "because they
never met before January 1, 1995." J.App. at 559; see
United States v. Sallins, 993 F.2d 344, 347 (3d Cir. 1993)
(noting that defense counsel's use of the statement for its
truth in closing argument confirms that the statement was
inadmissible hearsay). While Quinones may not have
offered the statement for its express meaning, he did offer
it for the implied assertion that he had never met
Avendano. Statements offered to support an implied
assertion are inadmissible hearsay. See United States v.
Reynolds, 715 F.2d 99, 104 (3d Cir. 1983).
Nor are we convinced by Quinones's argument that the
statement fell within Rule 803(3)'s exception to the hearsay
rule. Statements admitted to show state of mind under
Rule 803(3) "cannot be offered to prove the truth of the
underlying facts asserted." Stelwagon Mfg. Co. v. Tarmac
Roofing Sys., Inc., 63 F.3d 1267, 1274 (3d Cir. 1995).
Moreover, even if the statement was admissible, its
omission did not constitute prejudicial error. The district
court allowed the inference that the defense hoped to get
across by allowing Hernandez to testify that in her opinion
Quinones and Avendano were meeting for the first time.
J.App. at 396. Further, as noted earlier, defense counsel
was able to refer to the excluded statement in closing.
J.App. at 542, 551, 558-59. Thus, because defense counsel
was able to get the point across to the jury anyway, the
district court's ruling, if error, was harmless.
L. District Court's Comments on Defense Witness
Testimony
Quinones further argues that the district court's
response to the testimony of Marilyn Hernandez served to
undermine her credibility and unfairly prejudice Quinones.
As such, Quinones claims that the district court's failure to
remain neutral and detached constitutes plain error. We
are unpersuaded.
29
When reviewing for plain error, we look for errors that
"undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice." United States v.
Price, 13 F.3d 711, 724 (3d Cir. 1994) (quoting United
States v. Young, 470 U.S. 1, 16 (1985)). In response to
defense counsel's repeated attempts to elicit hearsay
testimony from Hernandez, the judge commented out of
frustration: "This is so bizarre." In our view, this statement
is nothing more than a benign reflection of the judge's
reaction to defense counsel's persistence. See United States
v. Beaty, 722 F.2d 1090 (3d Cir. 1983) (upholding
defendant's conviction when judge's actions reflected
"frustrat[ion] by counsel's repeated attempts to do that
which he had properly been forbidden to do"). In any event,
the judge immediately apologized to the jury, see J.App. at
397, and later instructed the jury to disregard any
comments that she may have made with regard to witness
testimony, reminding them that they were "the sole judges
of the credibility of the witnesses." Supp. App. at 192, 196-
97. Thus, we conclude that the judge's actions did not
"reach the point where it appear[ed] to the jury that the
court believe[d] the accused [was] guilty." Price, 13 F.3d at
723. Accordingly, we find no plain error.
M. Guard's Remark Regarding Defendant's
Incarceration
Finally, Palma-Ruedas argues that a court guard
impermissibly conveyed to the jury that he was
incarcerated, in violation of his due process right to a fair
trial. See Estelle v. Williams, 425 U.S. 501, 503-05 (1976)
(Fourteenth Amendment rights of defendant violated when
compelled to stand trial before jury while dressed in
identifiable prison clothes). We find that the guard's remark
here falls far short of the due process violation discussed in
Estelle.
On the seventh day of the trial, Palma-Ruedas's lawyer
told the district court that in the morning, as she was
coming into the courthouse with two jurors, a court
security officer told them: "You can't go down yet, your
packages are not here." One juror responded, "What
packages?" The officer responded, "The packages, if you
catch my meaning."
30
Palma-Ruedas claims that the guard's random remark
tainted the jurors and, accordingly, that his convictions
should be reversed. At trial, Palma-Ruedas noted to the
district court only that he "wanted to put it on the record"
and asked for no specific relief. In other words, Palma-
Ruedas did not ask for a mistrial, nor did he ask the court
to look into the matter further. Palma-Ruedas's failure to
seek relief is telling because it tends to show that, at the
time, Palma-Ruedas did not think the guard's remarks were
particularly damaging to his fair trial rights. See United
States v. Colletti, 984 F.2d 1339 (3d Cir. 1992) (noting that
defendant's failure to ask for correction at trial supports the
"inference that . . . the incident was not nearly as
significant as the present argument would suggest").
In any event, we are not convinced that the guard's
remark was unduly prejudicial. Indeed, we find it unlikely
that the jurors even had any idea what the guard was
talking about; jurors are not usually well-versed in the
jargon of courthouse guards. Moreover, even assuming the
jurors understood the guard's oblique reference, in our
view, this random remark to two jurors is insufficient to
constitute a violation of Palma-Ruedas's due process rights
to a fair trial. See United States v. Villabona-Garnica, 63
F.3d 1051, 1058 (11th Cir. 1995) (distinguishing Estelle
where the prison clothing was a "constant reminder" to the
jury that the defendant was incarcerated, from defendant's
remark on cross-examination that he was incarcerated).
For the foregoing reasons, we reverse Defendant Moreno's
§ 924(c)(1) conviction for improper venue. We affirm the
defendants' convictions in all other respects.
31
ALITO, Circuit Judge, concurring in part and dissenting in
part:
I join the opinion of the court except insofar as it reverses
Moreno's conviction under 18 U.S.C. § 924(c)(1) on the
ground that venue in the District of New Jersey was
constitutionally impermissible. The majority reaches this
result based on the so-called "verb test." Applying this test,
the majority holds that a violation of 18 U.S.C. § 924(c)(1)
may be prosecuted only where the defendant used or
carried the firearm and not where the defendant committed
the underlying crime of violence or drug trafficking crime.
Accord United States v. Corona, 34 F.3d 876, 879 (9th Cir.
1994).1
I disagree with this analysis and conclusion. Instead of
relying solely on the "verb test," I think that we should
inquire where, in substance, the offense was "committed."
United States Constitution, Art. III, sec. 2, cl. 3 & Amend.
VI. In other words, we should make a realistic appraisal of
the "nature of the crime" defined by the statute. Cf. United
States v. Anderson, 328 U.S. 699, 703 (1946). When the
offense created by 18 U.S.C. § 924(c)(1) is examined in this
way, it is apparent that the commission of the crime of
violence or drug-trafficking crime is a critical element of the
offense and that permitting venue in a district in which the
commission of this underlying crime occurred is consistent
with the Constitution's venue provisions.2 Accord United
States v. Pomranz, 43 F.3d 156, 161-62 (5th Cir. 1995);3
United States v. Friedman, 1996 WL 612456, *6 (E.D.N.Y.).
_________________________________________________________________
1. Although the majority interprets the Constitution's venue provisions
as embodying the "verb test," the majority seems to suggest (a) that
Congress can bypass the verb test by specifying venue itself and (b) that
this congressionally specified venue will pass constitutional muster "as
long as the venue bears some relation to the offense." (Maj. Op. at 14-
15)(footnote omitted). But if the majority is correct that the verb test is
constitutionally mandated, how can Congress bypass it and specify
venue in any place that merely "bears some relation to the offense"?
2. For convenience, I refer to Article III, section 2, clause 3 of the
Constitution and the relevant provision of the Sixth Amendment as the
Constitution's venue provisions. See footnote 6, infra.
3. Although I agree with the holding in Pomranz, I do not endorse all of
the reasoning in that opinion. Specifically, I do not think that the
prosecution's convenience or inconvenience per se (see 43 F.3d at 161
n.8) is a relevant factor in ascertaining the scope of the Constitution's
venue provisions.
32
I.
The criminal statute at issue here provides, in pertinent
part, as follows:
Whoever, during and in relation to any crime of violence
or drug trafficking crime . . . for which he may be
prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years.
. . .[4]
18 U.S.C. § 924(c)(1) (emphasis added). "[U]ses" and
"carries" are verbs. "[D]uring and in relation to any crime of
violence or drug trafficking crime" is a prepositional phrase.
Under the majority's "verb test," venue is proper in only
those districts in which occurred actions denoted in the
relevant criminal statute by verbs. Accordingly, in this case,
the majority concludes, the "verb test" restricts venue to the
District of Maryland, where Moreno carried a firearm, and
precludes venue in those other districts, including the
District of New Jersey, through which the crime of violence,
kidnapping, moved.
The verb test thus makes syntax constitutionally
determinative. Consider the result that would follow if 18
U.S.C. § 924(c) were rephrased slightly as follows:
Whoever during and in relation to commits any crime
of violence or drug trafficking crime . . . for which he
may be prosecuted in a court of the United States and
during and in relation to that crime uses or carries
a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years.
This version is wordier than the original, but its meaning is
the same. However, because of the addition of the verb
"commits," the "verb test" would presumably permit venue
in any district in which the crime of violence or drug
trafficking crime was committed. I cannot believe that the
_________________________________________________________________
4. The statute goes on to prescribe sentences of 10 or 30 years for cases
involving certain types of firearms. Id.
33
meaning of the constitutional restrictions on venue turns
on such syntactical trifles.
The apparent author of the "verb test," Judge Armistead
M. Dobie of the Fourth Circuit, does not seem to have
claimed any such office for his creation. In the article
usually cited as the source of the test, Judge Dobie wrote:
All federal crimes are statutory, and these crimes are
often defined, hidden away amid pompous verbosity, in
terms of a single verb. That essential verb usually
contains the key to the solution of the question: in
what district was the crime committed. Without the
exact language of the statute, particularly this verb,
paraphrases and loose citations in this field, are more
than inaccurate, they are positively misleading. When,
as is so often the case, the statute enumerates several
such verbs, only scrupulous, even meticulous, nicety
in exact quotation can prevent these statutes, as well
as the decisions under them, from proving a snare and
delusion to the unwary.
Armistead M. Dobie, Venue in Criminal Cases in the United
States District Court, 12 Va. L. Rev. 287, 289 (1926)
(emphasis added); see also United States v. Walden, 464
F.2d 1015, 1018 (4th Cir. 1972). As the quoted language
demonstrates, Judge Dobie did not suggest that the verb
test was "the proper" or "only" method to determine venue.
He merely suggested that the verb test was "usually" the
best method to determine venue. Cf. Norman Abrams,
Conspiracy and Multi-Venue in Federal Criminal
Prosecutions: The Crime Committed Formula, 9 UCLA L. Rev.
751, 777 (1962) (verb test, although important,"constitutes
only the first step" in determining venue).
II.
Article III, section 2, clause 3 of the Constitution provides
that "[t]he trial of all Crimes, except in Cases of
Impeachment . . . shall be held in the State where the said
crimes shall have been committed" (emphasis added).5
_________________________________________________________________
5. Federal Rule of Criminal Procedure 18 echoes this command,
providing that the "prosecution shall be had in a district in which the
offense was committed."
34
Similarly, the Sixth Amendment states that "[i]n 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"
(emphasis added).6 Is an offense "committed," for
constitutional purposes, in only those places in which
actions denoted by verbs occurred? Perhaps this is obvious
to the majority, but it is not apparent to me. Thus, the
constitutional text, by itself, does not seem to me to provide
a sufficient basis for adopting the verb test.
Nor am I aware of other evidence that these
constitutional provisions were meant to embody the verb
test, i.e., to force Congress to think about its use of
grammar in formulating criminal statutes. On the contrary,
the origin of these constitutional provisions shows that they
were adopted to achieve important substantive ends--
primarily, to deter governmental abuses of power. Cf.
United States v. Johnston, 323 U.S. 273, 276 (1944)
("Questions of venue in criminal cases . . . are not merely
matters of formal legal procedure. They raise deep issues of
public policy . . . .").
"As the difficulties between the American colonies and
Great Britain increased during the period immediately prior
to the American Revolution, those in authority who
represented the royal interests became concerned that royal
interests could not be adequately protected in American
courts, particularly when American colonists were charged
with crimes." Drew L. Kershen, Vicinage 29 Okla. L. Rev.
803, 805 (1976). In 1769, despite warnings that such a
measure might lead to war, Parliament revived an ancient
statute under which American colonists accused of treason
could be taken to England or another colony for trial. See
William Wirt Blume, The Place of Trial of Criminal Cases:
Constitutional Vicinage and Venue, 43 Mich. L. Rev. 59, 63-
64 (1944); Kershen, supra, 29 Okla. L. Rev. at 805-06.
_________________________________________________________________
6. Strictly speaking, Article III, section 2, clause 3 concerns venue (where
the trial occurs), whereas the Sixth Amendment concerns vicinage (where
the jury is drawn). It has been said, however, that"[t]his technical
distinction is of no importance." Charles A. Wright, 2 Federal Practice &
Procedure (Criminal), § 301 at 190 (1982 & 1996 Supp.).
35
During the next few years, Parliament enacted similar laws
applicable to persons charged with offenses such as
destroying dock yards, magazines, ships, ammunition, or
supplies. Blume, supra, 43 Mich. L. Rev. at 63; Kershen,
supra, 29 Okla. L. Rev. at 806-07. Resentment against
these measures was so deep that the Declaration of
Independence denounced King George III "[f]or transporting
us beyond Seas to be tried for pretended offenses." This
practice has been described as one of the precipitating
factors of the American Revolution. See, e.g., Blume, supra,
43 Mich. L. Rev. at 63-67.
After the Boston Massacre, Parliament also passed a law,
14 Geo. III, c.39 (1774), designed to protect British soldiers
who were charged in Massachusetts with capital offenses
based on actions taken in suppressing riots or enforcing
the revenue laws. Kershen, supra, 29 Okla. L. Rev. at 807.
If it appeared to the governor that "an indifferent trial"
could not be held in Massachusetts, the accused could be
tried in England or another colony. Id. "This circumvention
of the judgment of the victimized community was attacked
as a `Mock Trial' system in the Declaration of
Independence." Akhil Reed Amar, The Constitution and
Criminal Procedure -- First Principles 243 n.163 (1997).7
Following independence, several states adopted
constitutional provisions limiting a criminal prosecution to
the place where the crime was "committed"8 or where the
"facts" "ar[o]se"9 or "happen[ed].10 And a few years later,
similar safeguards were placed in Article III, section 2, and
the Sixth Amendment.11
_________________________________________________________________
7. The Declaration of Independence charged the king with "protecting
[troops], by a mock trial, from Punishment for any Murders which they
should commit on the Inhabitants of these States."
8. N.H. Const. of 1784, art. I, § 17.
9. Md. Const. of 1776, Declaration of Rights, art. 18.
10. Mass. Const. of 1780, Part first, art. 13.
11. At the Federal Constitutional Convention, several proposals were
introduced to restrict venue to the state where the offense was
"committed." See Francis Heller, The Sixth Amendment 22-24 (1951).
These proposals engendered little debate, none of which seems to have
focused on precisely what was meant by the place where an offense was
"committed." Id. Likewise, debate on the Sixth Amendment did not
elucidate this question. For a summary of this debate, see Kershen,
supra, 29 Okla. L. Rev. at 817-28.
36
Justice Story explained the purpose of these provisions
as follows:
The object . . . is to secure the party accused from
being dragged to a trial in some distant state, away
from his friends, and witnesses, and neighbourhood;
and thus subjected 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
the party to the most oppressive expenses, or perhaps
even to the inability of procuring the proper witnesses
to establish his innocence.
Joseph Story, Commentaries on the Constitution § 925
(Carolina Academic Press reprint 1987). Recent scholarship
has suggested another possible purpose: to protect a
community's right to have trials of local offenses occur in
the community. See Amar, supra, 124 & n.163.
Against this background, I reject the suggestion that the
meaning of the constitutional venue provisions is to be
determined by diagramming the language of the relevant
criminal statute. Would the framers have thought that
prosecuting an American colonist in England on a charge of
treason was permissible if Parliament had been able to craft
a treason statute in which a verb denoted an action
occurring in England? The answer is no. The constitutional
venue provisions were meant to put in place important
substantive protections against government abuse.12
_________________________________________________________________
12. It is crucial to understand that the venue protection is, at its heart,
a protection or check against a government seeking to overreach the
power granted to it by the people. A government (whether the English
Parliament or some modern-day Congress) consciously seeking to
overreach its powers and checked only by the verb test could bypass the
venue protections of Article III and the Sixth Amendment by carefully
placing verbs in its criminal statutes that would define the criminal acts
of a defendant in terms of their effect on entities or persons in regions
where prosecution would be easy for the government.
My point is simple. The verb test may be a usefulfirst cut at
determining venue. But as recent cases have demonstrated, verbs (and
hence the verb test) can be stretched broadly. Cf. United States v.
Angotti, 105 F.3d 539, 542-55 (majority) & 547 (Norris, J., dissenting)
37
III.
The Supreme Court has never embraced the "verb test."
Rather, the Court has instructed that venue must be
determined by looking to "the nature of the crime" and the
"location of the act or acts constituting it." United States v.
Anderson, 328 U.S. 699, 703 (1946). See also Travis v.
United States, 364 U.S. 631, 635 (1961); United States v.
Cores, 356 U.S. 405, 408 (1958). Nor, as far as I can tell,
has any court of appeals held that the "verb test" is the
only proper test for determining where venue is
constitutionally permitted. Most of the cases suggest that,
while the "verb test" may provide a usefulfirst cut at
determining venue, there are complicated crimes for which
a rigid grammar-based test may not be appropriate. See,
e.g., United States v. Cofield, 11 F.3d 413, 417 (4th Cir.
1994) (examination of the verbs in a statute is not the
exclusive method of determining venue; "there are crimes
where the situs is not so simple of definition") (quoting
_________________________________________________________________
(9th Cir. 1997) (in evaluating venue under a statute that made it
criminal to "knowingly make" certain false statements for the "purpose of
influencing" the actions of a federally insured institution, the court held
that a statement was "made" not only where it was physically submitted
to the local financial institution (an intermediary), but also at the point
where it was received by the institution or persons whom it ultimately
influenced); cf. also United States v. Crawford, 1997 WL 339295, *7-8,
115 F.3d 1397, __ (8th Cir. 1997) (in determining venue under a statute
criminalizing the "failure to make" child support payments to a child who
"resides" in another state, court held that the "failure to make" the
payments occurred not only in the states where the defendant was and
where the court order was imposed, but also where the child resided);
United States v. Murphy, 1997 WL 349887, *3, __ F.3d __, __ (4th Cir.
1997) (same conclusion as Crawford, but in reaching its outcome court
focussed on the verb "resides," even though"resides" refers to the child
and not the defendant). (I cite these cases, not to express agreement or
disagreement with their holdings, but as illustrations of the malleability
of the "verb test.") If we limit ourselves to the protection of the verb test,
we, in effect, eliminate our protection against a government that wants
to overreach its power and is willing to carefully structure its use of
grammar in criminal statutes to achieve that goal. It was an
overreaching government that the venue protection was geared towards,
not a government that was not careful enough with its use of grammar.
38
United States v. Billups, 692 F.2d 320, 332 (4th Cir. 1982));
United States v. Newsom, 9 F.3d 337, 339 (4th Cir. 1993)
("the verbs examination method is not exclusive") (quotation
omitted); United States v. Beddow, 957 F.2d 1330, 1335
(6th Cir. 1992) (employing a "substantial contacts" test for
determining venue); United States v. Beech-Nut Nutrition
Corp., 871 F.2d 1181, 1188-89 (2d Cir. 1989) (same);
United States v. Tedesco, 635 F.2d 902, 905 (1st Cir. 1980)
(verb test is "[o]ne" method of determining venue). Indeed,
even the Ninth Circuit, whose analysis and conclusion in
Corona the majority follows, has explicitly disavowed a
reading of Corona that would suggest that the verb test was
"the" interpretive tool to be used in determining venue. See
Angotti, 105 F.3d at 544 (leaving open the question whether
"focus on key verbs should be the exclusive measure of
venue").
IV.
Showing that rigid application of the "verb test" is wrong
is simpler than setting out an alternative "test" that works
in all cases, and I will not attempt to do the latter here. For
present purposes, it is enough to show that in a
prosecution under 18 U.S.C. § 924(c)(1) the commission of
the crime of violence or drug trafficking crime is a
sufficiently important element to permit venue in any
district in which the defendant engages in that conduct.
It is apparent from the text of 18 U.S.C. § 924(c)(1) that
the defendant's commission of the underlying crime of
violence or drug trafficking offense forms a vital part of the
evil that Congress sought to punish and prevent.13
_________________________________________________________________
13. This element involves conduct that is in itself wrongful; as the
District of Columbia Circuit has observed, this element is not simply a
jurisdictional " `hook' on which to hang a federalized prohibition against
the use and carrying of firearms." United States v. Anderson, 59 F.3d
1323, 1327 (D.C. Cir. 1995) (in banc); cf. Peter W. Low and Joseph L.
Hoffman, Federal Criminal Law 6 (1997) ("Nothing has so distorted
federal criminal law as the habit of defining federal crimes in such a way
as to make jurisdictional requirements appear to be penologically
significant elements of the offense. This confuses federal power to
prohibit certain conduct with the nature of the crime itself.") (citation
omitted); but cf. Abrams, supra, 9 UCLA L. Rev. at 779 (noting how
courts do on occasion interpret jurisdictional elements in a statute as
essential act elements for purposes of determining where the crime was
committed).
39
Although 18 U.S.C. §924(c)(1) has been held to create an
offense distinct from the underlying crime, see Anderson,
59 F.3d at 1326, it is noteworthy that this provision
prescribes the imposition of a penalty "in addition to the
punishment provided for [the] crime of violence or drug
trafficking crime." For this reason, 18 U.S.C. § 924(c)(1) has
been described as constituting, at least in part, a "penalty
enhancement statute." Anderson, 59 F.3d at 1326. This
surely demonstrates that a central focus, if not the central
focus, of the statute is the commission of the underlying
crime of violence or drug trafficking crime.
It is also telling that eight courts of appeals have held
that "only one § 924(c)(1) violation can be appended to any
single predicate crime." Anderson, 59 F.3d at 1328
(emphasis added); see also United States v. Cappas, 29
F.3d 1187, 1189 (7th Cir. 1994) (citing cases); United States
v. Lindsay, 985 F.2d 666, 674 (2d Cir. 1993); United States
v. Sims, 975 F.2d 1225, 1233 (6th Cir. 1992); United States
v. Moore, 958 F.2d 310, 312 (10th Cir. 1992); United States
v. Hamilton, 953 F.2d 1344, 1346 (11th Cir. 1992); United
States v. Privette, 947 F.2d 1259, 1262-63 (5th Cir. 1991);
United States v. Fontanilla, 849 F.2d 1257, 1258-59 (9th
Cir. 1988); but see United States v. Lucas, 932 F.2d 1210,
1222-23 (8th Cir. 1991). If the use or carrying of the
firearm were the heart of the offense and the commission of
the underlying crime of violence or drug trafficking crime
were a mere appendage that is insufficiently important to
confer venue, these holdings would be hard to understand.
Instead, one would expect these courts to have held that
every single use or carrying of a gun in the context of a
single drug crime or crime of violence would be a separate
offense. The contrary holding by eight of the nine circuits to
have addressed the issue reveals their understanding that
the underlying predicate offense in Section 924(c)(1) is at
the center of Congress's aim. See Pomranz, 43 F.3d at 160;
United States v. Taylor, 13 F.3d 986, 993-94 (6th Cir. 1994)
("the predicate offense, not the firearm, is the object of
§ 924(c)(1)"); United States v. Correa Ventura, 6 F.3d 1070,
1083 (5th Cir. 1993) (the "essence" of the offense was that
the defendant used a firearm while committing another
federal crime); but see Corona, 34 F.3d at 880 (predicate
40
drug crime during which the firearm was used was no more
than a preparatory act and hence could not confer venue).
Moreover, a defendant is at least as likely to have
significant ties to a place where he is alleged to have
committed the crime of violence or drug trafficking crime as
he is to have significant ties to the place where he is alleged
to have carried or used the firearm. And a defendant's
alleged commission of a crime of violence or drug trafficking
crime is at least as likely to present a central issue at trial
(thus making access to witnesses and proof important) as
is the element of carrying or using a firearm. For these
reasons, prosecuting a defendant under 18 U.S.C.
§ 924(c)(1) in a district in which the crime of violence or
drug trafficking crime took place does not involve the type
of government abuse that the constitutional venue
provisions were meant to prevent.
Section 924(c)(1)'s legislative history confirms the critical
importance of the element requiring proof that the
defendant committed a crime of violence or drug trafficking
offense. Representative Poff, Section 924(c)(1)'s sponsor,
stated that this provision targeted "the criminal rather than
the gun." Anderson, 59 F.3d at 1327 (citing 114 Cong. Rec.
at 22,231 (1968)). He explained that the provision sought to
persuade those individuals seeking to commit certain
felonies "to leave [their] gun[s] at home." Id. at 1328 (citing
114 Cong. Rec. at 22,231). Indeed, he said that "the
prosecution for the basic felony and the prosecution under
my substitute would constitute one proceeding out of which
two separate penalties may grow." Id. at 1327 (citing 114
Cong. Rec. at 22, 232) (emphasis added).
In sum, the predicate crimes defined in 18 U.S.C.
§ 924(c)(1), crimes of violence and drug trafficking crimes,
are essential elements of the course of conduct that
Congress sought to criminalize. I would hold, therefore,
that venue for a prosecution under this statute lies in any
district in which the defendant committed the underlying
crime of violence or drug trafficking offense.
V.
If the majority's adoption of the "verb test" is taken
seriously and applied in all future venue cases, it will lead
to difficulties.
41
For one thing, we will have to delve into questions of
grammar that most of us probably left behind in secondary
school. The majority suggests that venue questions require
us to identify the "key verbs" in the statute, but it is not
clear precisely what it means by a "key verb," a term that
I do not believe has grammatical significance. Does the
term "key verb" mean a verb in the main clause? Or does
it include any verb in a subordinate clause as well? This
point recently divided the district court and the Fourth
Circuit in applying the "verb test" to 18 U.S.C. § 228(a),
which provides in pertinent part as follows (emphasis
added):
Whoever willfully fails to pay a past due support
obligation with respect to a child who resides in
another State shall be punished as provided in
subsection (b).
The district court focused on the verb in the main clause
("fails") and held that venue was proper where the payment
was ordered to be paid, as opposed to where the child
resided. Murphy v. United States, 934 F. Supp. 736, 739-40
(W.D. Va. 1996). Reversing, the Fourth Circuit pointed to
the verb "resides" in the subordinate clause and concluded
that venue was also proper in the district of the child's
residence. Murphy, __ F.3d at __, 1997 WL 349887, *3.
Whether or not a verb in a subordinate clause may
qualify as a "key verb," I assume that a "verbal phrase," i.e.,
a participial, gerund, or infinitive phrase, cannot qualify. As
a grammar book explains:
Verbals are so called because they are formed from
verbs. In some respects they act like verbs. They may
express action; they may have modifiers; and they may
be followed by complements. In one important respect,
however, they are not like verbs: verbals are not used
as verbs in a sentence. They are used as other parts of
speech -- as nouns, as adjectives, or as adverbs.
John E. Warriner and Francis Griffith, English Grammar
and Composition 40-41 (1973).
If my assumption is wrong -- if verbal phrases can
qualify as "key verbs" -- then I challenge the majority to
42
explain why it is proper to look to this type of noun,
adjective, or adverb (i.e., a verbal serving as a noun,
adjective, or adverb) and not others. On the other hand, if
this assumption is right, then the verb test will lead to
some surprising results.
There are a great many federal criminal statutes that are
phrased along the following lines: It shall be unlawful to do
x. See, e.g., 18 U.S.C. §§ 602, 603, 607(a), 795(a), 842, 922,
964(a), 1082(a), 1731, 1752(a), 1962, 2342. In all of these
statutes, the "key verb," I take it, is "shall be" -- which
cannot possibly show where the offense was committed or
where it should be prosecuted. The crux of the offense is
expressed with an infinitive ("to do x") that functions as an
adverb that modifies the adjective "unlawful." Is it proper
under the "verb test" to rely on this adverbial phrase? If so,
why is it not proper in the case before us to rely on the
adverbial phrase "during and in relation to"?
Consider 18 U.S.C. § 922(g), a statute that, like 18 U.S.C.
§ 924(c)(1), deals with the subject of firearms possession.
Section 922(g) provides:
It shall be unlawful for any person --
(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one
year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any
controlled substance . . . ;
(4) who has been adjudicated as a mental defective or
who has been committed to a mental institution;
(5) who, being an alien, illegally or unlawfully in the
United States;
(6) who has been discharged from the Armed Forces
under dishonorable conditions;
(7) who, having been a citizen of the United States, has
renounced his citizenship; or
(8) who is subject to [a certain type of court order
restraining such person from, among other things,
43
harassing, stalking, or threatening an intimate partner
or his or her child]; or
. . .
(9) who has been convicted in any court of a
misdemeanor crime of domestice violence,
to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.
What are the "key verbs" in this statute? Is the only key
verb the verb "shall be" in the main clause? Or do the verbs
in the subordinate clauses qualify as well? If so, is venue
proper where an accused "has been convicted" (§ 922(g)(1)),
"is a fugitive" (§ 922(g)(2)),"is an unlawful" drug user or
addict (§ 922(g)(3)), "has been adjudicated as a mental
defective" or "has been committed to a mental institution"
(§ 922(g)(4)), etc? Or is it permissible to look to the verbal
phrases ("to ship or transport," etc.) as well?
Rather than relying on grammatical arcana, we should,
as I have argued above, look at the substance of the
statutes in question. Here are two examples of sets of cases
that exemplify this approach.
The Taft-Hartley Act, 29 U.S.C. Section 186(a), states in
relevant part:
(a) It shall be unlawful for any employer or association
of employers or any person who acts as a labor
relations expert, adviser, or consultant to an employer
or who acts in the interest of an employer to pay, lend,
or deliver, or agree to pay, lend, or deliver, any money
or other thing of value --
(1) to any representative of any of his employees who
are employed in an industry affecting commerce ; or . . .
(emphasis added). The verb in the main clause is "shall be."
"[A]cts" is the verb in the subordinate clause "who acts.
. . ." "[T]o pay, lend, . . ." is a verbal phrase that functions
as an adverb modifying "acts." "[A]ffecting commerce" is
another verbal phrase, specifically a participial phrase that
44
serves as an adjective modifying "industry." What are the
"key verbs" in this statute?
In United States v. Billups, supra, the Fourth Circuit said,
in effect, "We don't care." The court specifically refused to
apply the "verb test," observing that "this method is not
exclusive." 692 F.2d at 332. Instead, the court drew an
analogy to the Hobbs Act, 18 U.S.C. § 1951, which provides
in pertinent part:
(a) Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything in
violation of this section shall be fined . . . or
imprisoned . . ., or both.
Billups, 692 F.2d at 332 n.10 (emphasis added).
Noting that courts had held that venue in Hobbs Act
cases was proper wherever commerce was affected, the
Billups court concluded that the same rule should be
applied under the Taft Hartley Act. 692 F.2d at 332-33. The
fact that the Hobbs Act sets out the commerce element by
means of verbs ("obstructs, delays, or affects"), whereas the
Taft Hartley Act does not, was of no moment to either the
Billups court or the other courts that have analogized the
venue questions under the two acts. See id.; United States
v. Lewis, 797 F.2d 358, 367 (7th Cir. 1986); United States
v. Reed, 773 F.2d 477, 482 (2d Cir. 1985).
Two different obstruction of justice statutes, 18 U.S.C.
§§ U.S.C. 1513 and 1503, present a similar issue. Section
1513(b) provides:
Whoever knowingly engages in any conduct and
thereby causes bodily injury to another person or
damages the tangible property of another person, or
threatens to do so, with intent to retaliate against any
person for --
(1) the attendance of a witness or party at an official
proceeding, or any testimony given or any record,
45
document, or other object produced by a witness in an
official proceeding;
shall be fined . . . or imprisoned . . . or both.
(emphasis added).
In United States v. Cofield, 11 F.3d 413 (4th Cir. 1994),
the court held that even though the defendant's acts of
retaliation against a witness took place in the District of
Columbia, venue was proper in the Eastern District of
Virginia, because that was the location of the underlying
judicial proceeding in which the witness testified. The court
reached this conclusion even though there are no verbs in
Section 1513(b)(1)14 that would place venue in any location
other than that in which the acts of retaliation or threats
took place. Id. at 417 (rejecting the use of verb test for
Section 1513). The Cofield court, however, drew an analogy
to 18 U.S.C. § 1503, another obstruction of justice statute.
In cases under this provision, courts had looked to
congressional purpose in enacting the statute and had held
that venue was proper, not only where the obstructive acts
took place, but also where the effects of the obstruction
were felt, i.e., in the location of the judicial proceeding. 11
F.3d at 416-17 (citing United States v. Kibler, 667 F.2d 452
(4th Cir. 1982), and United States v Tedesco, 635 F.2d 902,
905-06 (1st Cir. 1980)). As in Billups, the Cofield court
looked to 18 U.S.C. § 1503 for guidance even though that
provision, unlike the provision before it, contained verbs
denoting actions that occurred in the district where the
judicial proceeding took place. See Kibler, 667 F.2d at 454;
Tedesco, 635 F.2d at 905. Section 1503 provides
punishment for:
Whoever . . . corruptly, or by threats of force, or by any
threatening letter or communication, influences,
obstructs, impedes, or endeavors to influence, obstruct,
or impede, the due administration of justice . . . .
(emphasis added). However, the Cofield court looked beyond
these linguistic details and reached its decision based on
_________________________________________________________________
14. Section 1513(b)(1) is referred to as Section 1513(a)(1) in Cofield, 11
F.3d at 416.
46
its view of the nature of the wrongful conduct that
Congress sought to reach.15
VI.
For these reasons, I would hold that venue in the District
of New Jersey was proper, and I would therefore affirm
Moreno's Section 924(c)(1) conviction.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
15. Two recent circuit cases (ones already discussed in part above)
involving challenges to convictions under a provision of the Child
Support Recovery Act of 1992 ("CSRA"), 18 U.S.C. § 228, illustrate the
importance and relevance of setting forth the correct venue analysis
here. See Murphy, __ F.3d __, __, 1997 WL 349887 (4th Cir. 1997) and
United States v. Crawford, 115 F.3d 1397, __, 1997 WL 339295 (8th Cir.
1997). The CSRA provides that whoever "willfully fails to pay a past due
support obligation with respect to a child who resides in another State"
is guilty of a federal crime. 18 U.S.C. § 228(a). The venue issue arises in
CSRA cases where a defendant is prosecuted for the "failure to pay" in
a state where his or her child resides, but which is neither the state in
which the defendant currently resides or the state to which the payment
is required to be paid under the relevant court order. In both Crawford
and Murphy, the courts held that venue was proper in the state where
the child resided, even though the defendant had no connection with
that state. See Crawford, 115 F.3d at __, 1997 WL 339295, *8, and
Murphy, __ F.3d at __, 1997 WL 349887, *4. For our purposes, it is
worth noting that although both Crawford and Murphy found that venue
was proper in the state of the child's residence under the verb test,
Crawford explicitly states that the "nature of the crime" venue test might
be more appropriate than the verb test for venue issues under the CSRA,
and Murphy acknowledges the validity of the "nature of the crime" test.
See Crawford, 115 F.3d at __, 1997 WL 339295, *8, and Murphy, __ F.3d
at__, 1997 WL 349887, * 4 (majority) & *6 (Williams, J., concurring).
47