Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding D.C. No. 3:10-cr-00834-HA-1
The opinion of the court was delivered by: Tallman, Circuit Judge:
Argued and Submitted June 13, 2012-San Francisco, California
Before: Ronald M. Gould, Richard C. Tallman, and Carlos T. Bea, Circuit Judges.
The United States Constitution and federal law require that crimes be prosecuted where the offense was committed. This venue requirement, however, is more easily stated than applied. Determining where an offense occurred can be quite tricky-particularly for continuing crimes, like conspiracy, where the conspirators' activities often have a ripple-like effect that may involve numerous districts.
Here, the district court correctly determined that venue for a drug-sale conspiracy was proper in the Northern District of California based on two telephone calls initiated by a government informant, who was in the district, to defendant-appellant Alejandro Gonzalez ("Gonzalez"), who was located outside of the district. By using those calls to negotiate the terms of a drug deal to be completed in the Eastern District of California, Gonzalez propelled the conspiracy into the Northern District of California. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.
The parties stipulated to the following facts at a bench trial before the district judge: At the direction of Drug Enforcement Administration ("DEA") agents, a confidential informant ("CI") placed at least two telephone calls to Gonzalez's cell phone number. The CI was in the Northern District of California during the calls, but Gonzalez was not. Nothing in the stipulated facts indicates whether Gonzalez knew or had reason to know that the CI was calling from the Northern District of California.*fn1
During the recorded telephone conversations, Gonzalez negotiated the sale and delivery of five kilograms of cocaine to the CI in exchange for $85,000. Gonzalez also said that he would bring another individual (known as "the guy") with him to deliver the drugs. Gonzalez and "the guy" met the CI and an undercover DEA agent in a Chili's parking lot in Modesto, California, in the Eastern District of California. Gonzalez delivered the cocaine to the DEA agent and was arrested shortly thereafter.
Gonzalez was indicted in the Northern District of California on one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and two counts of use of a telephone to commit a felony drug offense, in violation of 21 U.S.C. § 843(b). Gonzalez moved to dismiss the indictment based on improper venue. The district court denied the motion. At the stipulated-facts bench trial, Gonzalez again moved for acquittal under Federal Rule of Criminal Procedure 29 based on improper venue. The district court again denied the motion, found Gonzalez guilty on all three counts, and sentenced him to seventy-eight months ...