A Bronx Tale

United States v. Davis, No. 10-3424-cr (2d Cir. August 8, 2012) (Leval, Raggi, Chin, CJJ)

Appellant Davis attempted to rob a drug dealer in Elmont, Queens. Once inside the dealer’s house, he shot and killed the dealer’s girlfriend, and shot at (but missed) the dealer’s mother. He was tried, convicted and sentenced on this - along with other offenses not challenged on appeal - in the Southern District

On appeal, he argued that there was no Southern District venue for the Elmont attempted robbery and associated weapons offenses. The circuit affirmed.

The opinion begins with a long and interesting discussion of venue, culminating with the circuit’s rule that for venue to lie there must be more than “some activity in the situs district” - there must be “substantial contacts.” Whether these exist depends on “the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding.”  To support venue, “what is begun and continued in a district must be a part of the actual charged crime, not merely steps preparatory” to it,” and the venue must have been “freely chosen” by the defendant, in the sense that the acts’ occurrence in the district of venue were, at least, “reasonably foreseeable to the defendant.”

Here, there was Southern District venue. First, Davis was charged under the Hobbs Act, which makes it a crime to obstruct commerce. In Hobbs Act cases, venue is proper in any district where commerce is (or would be, in the case of a conspiracy or attempt) affected or where the acts took place. Davis’ acts would have affected commerce in the Southern District because the target of the robbery was a large-scale drug dealer who acquired drugs from out of state and sold them to customers in the Bronx. Davis had previously robbed persons dealing drugs in the Bronx, and the Queens home of the victim here was close to the Bronx. At a minimum, the effect on commerce in the Bronx was reasonably foreseeable to Davis.

In addition, Davis purposefully took steps in the Southern District to advance the robbery, and those steps were not merely preparatory. When Davis arrived in Elmont to commit the robbery, he unexpectedly found that the other members of his crew were not there. This prompted him to call an associate in the Bronx and ask her to come to Queens o  find backup. That associate then called others in the Bronx in an effort to help him, acts that are “fairly chargeable to Davis” for purposes of venue.

Coffee, Tea or Venue?

United States v. Tzolov, No. 10-562-cr (2d Cir. June 15, 2011) (Feinberg, Parker, Wesley, CJJ)

Eric Butler, the appellant here, was one of the conspirators in a securities fraud scheme arising from the failure of the auction rate securities market. The scheme operated largely out of an office in Manhattan, but Butler was prosecuted in the Eastern District, where he was convicted of securities fraud and conspiracy to commit securities and wire fraud. The scheme’s ties to EDNY were, to put it mildly, scant - on occasion the defendants would fly out of JFK to meet with investors in other cities and try to scam them. But, apart from that, everything happened elsewhere.

On appeal, the circuit agreed that venue was improper in EDNY for the substantive securities fraud count, but affirmed as to the conspiracy counts. In light of the dismissal of one count, the court also remanded the case for resentencing.

Securities Fraud

The securities fraud statute has its own venue provision, 15 U.S.C. § 78aa, which provides that a criminal proceeding may be “brought in the district wherein any act or transaction constituting the violation occurred.” The circuit had “little difficulty concluding” that merely flying out of JFK did not satisfy this language. There was no evidence that those flights constituted an “act or transaction constituting” the securities fraud.

To the contrary, the conspirators made all of the fraudulent statements that constituted the fraud either in their Manhattan office or in meetings with investors. “None of this activity occurred in the Eastern District.” Nor did they commit securities fraud by boarding a plane at JFK. Those flights were not acts “constituting” securities fraud; they were merely “preparatory acts,” and, for a substantive crime, “venue is not proper in a district in which the only acts performed by the defendant were preparatory to the offense and not part of the offense.” Thus, venue was not proper in the Eastern District for the securities fraud count.

The Conspiracy Counts

The court reached a different conclusion for the conspiracy counts, because those counts “require[d] a different analysis.” For a conspiracy, “venue is proper in any district in which an overt act in furtherance of the conspiracy was committed.” That can be “any act performed by any conspirator for the purpose of accomplishing” the scheme’s objectives, even if not unlawful.

Here, a “reasonable jury” could have concluded that the defendants’ flights out of JFK to meet the investors that they were trying to con furthered the conspiracy because without the flights those face-to-face meetings would not have occurred. In addition, the flights showed the conspiracy “at work” and not just “a project still resting solely in the [conspirators’] minds.” Finally, the court reject the argument that the flights did not demonstrate “substantial contacts” with EDNY, such that venue there would be “unfair or prejudicial.” Although the court did not hold that any overt act in a situs district will constitute a “substantial contact,” it found that the flights out of JFK here were sufficient.

Southern Discomfort

United States v. Barrie, No. 09-3035-cr (2d Cir. August 31, 2010) (Katzmann, Hall, Chin, CJJ)

Alalim Barrie was convicted of bank fraud and aggravated identity theft in connection with a scheme in which he and his confederates obtained money from banks using counterfeit checks and stolen credit card accounts. Southern District venue was clearly proper with respect to the bank fraud, since Barrie transferred stolen money into banks located in the Bronx. But he argued that there was no Southern District venue for the associated identity theft, since all of the actions that constituted aggravated identity theft occurred outside the district.

While the circuit agreed with Barrie’s view of the facts, it nevertheless affirmed. In a prosecution under 18 U.S.C. § 1028A, venue is proper in “any district where the predicate felony offense was committed, even if the means of identification of another person was not transferred, possessed, or used in that district.”

This result is dictated by the language of § 1028A itself, which makes it a crime to commit identity theft “during and in relation to any” enumerated felony offense. Indeed, the Supreme Court has held that the nearly identical language of 18 U.S.C. § 924(c)(1), which makes it a crime to use or carry a firearm “during and in relation to any crime of violence,” allows venue to lie in any district in which venue is appropriate for the underlying crime of violence.

The same outcome is required here. The underlying bank fraud was “committed in all of the places that any part of it took place. Thus, for venue purposes it does not matter that" Barrie only committed identity theft in other districts. He did so “during and in relation to” a bank fraud that took place in the Southern District, and that was sufficient.

Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin - although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of venue. The court charged the jury that if it found that, after the conspiracy was formed, “a telephone call in furtherance of the conspiracy was made to a location in the [district] that would be sufficient, ... even if the call was made to an undercover agent or some other nonconspirator.” During deliberations, the jury sent the court a note asking if venue could be proved by a call from the agent to Rommy. The court answered in the affirmative - as long as the conspiracy was already formed and the call furthered it. The court also instructed that venue could be established if nonconspirator made the call, again, as long as the call was induced by the conspiracy or furthered it.

On appeal, the court upheld the instruction, a question of first impression here, agreeing with the First and Seventh Circuits that “a telephone call placed by a government actor within a district to a conspirator outside the district can establish venue within the district provided the conspirator uses the call to further the conspiracy.” In fact, the court stressed, who placed the call, just like its direction, is irrelevant. What matters is whether the conspirator used the telephone call to further the objectives of the conspiracy. By doing so, he “effectively propels not only his voice but the scheme itself beyond his own physical location into that of the person with whom he is speaking.”

The court also held that Rommy did not need to have actual knowledge that the call affected this district; reasonable foreseeability is sufficient.

This decision leaves open the somewhat mythical defense of “manufactured venue.” The defense arises from a footnote in a 1982 case, but the court has never actually applied it. Although two other courts have outright rejected it, and one more has questioned it, here the court did not weigh in because the “evidence clearly does not support its application to this case.”

Rommy’s case also contains an interesting discussion of evidence obtained in a foreign country through the Mutual Legal Assistance Treaty (“MLAT”) between the United States and the Netherlands. Like his venue claim, this issue was ultimately unavailing for Rommy: the actions complained of did not violate U.S. law, and the treaty does not create “any judicially enforceable individual right that could be implicated by the government’s conduct here.”

Lastly, Rommy claimed that his interview with a DEA agent while Rommy was in prison in Spain violated the Fifth and Sixth Amendments. But here there was no Miranda issue because Rommy’s statements were voluntary, and thus the interview did not constitute “interrogation.” His Sixth Amendment claim was a closer call; he was interviewed after having been indicted, and did not expressly waive counsel. The court ducked the issue by characterizing the interview as “a meeting that [Rommy] had requested with persons he knew were law enforcement officers [where he] was asked a few neutral follow-up questions in the course of a lengthy volunteered statement.” It held that, even if these “follow-up” questions violated the Sixth Amendment, any error in admitting Rommy’s statement was harmless.