United States v. Bolden , 305 F. App'x 83 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAREEM MALCOLM L. BOLDEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cr-00428-TSE)
Submitted: November 24, 2008 Decided: December 29, 2008
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew A. Wartel, LAW OFFICES OF MATTHEW A. WARTEL, PLLC,
Alexandria, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, David Goodhand, Assistant United States
Attorney, Jeffrey Shih, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem Malcolm L. Bolden appeals his conviction,
following a jury trial, on one count of conspiracy to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006), and one count of conspiracy to import
more than five kilograms of cocaine into United States
territory, in violation of 21 U.S.C. §§ 952(a), 963 (2006). 1
Bolden was convicted upon retrial after the jury at his first
trial was unable to reach a unanimous verdict.
On appeal, Bolden raises two related issues. Bolden
first asserts the district court erred in denying his Fed. R.
Crim. P. 29 motion at the close of his first trial, in which he
argued the Government presented insufficient evidence to
establish the Eastern District of Virginia was an appropriate
venue for the trial. Because of this purported error, Bolden
next maintains that, prior to his second trial, the district
court erred in denying his motion for dismissal based on double
jeopardy. For the reasons set forth below, we reject both
contentions and affirm Bolden’s convictions.
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Bolden was sentenced to 121 months’ imprisonment, and does
not challenge his sentence on appeal.
2
I. Venue
The right to trial where the criminal act occurred is
rooted in the Sixth Amendment and Article III of the
Constitution. “The Supreme Court has cautioned that the
question of venue in a criminal case is more than a matter of
formal legal procedure; rather, it raises deep issues of public
policy in the light of which legislation must be construed.”
United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005)
(internal quotation marks and citation omitted).
The venue statute generally applicable to criminal
cases provides that “[e]xcept as otherwise expressly provided by
enactment of Congress, any offense against the United States
begun in one district and completed in another, or committed in
more than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or
completed.” 18 U.S.C. § 3237(a) (2006). “Where venue
requirements are met, the prosecution may proceed in that
district, notwithstanding the possibility that the gravamen of
the wrongdoing took place elsewhere.” United States v. Smith,
452 F.3d 323, 334 (4th Cir. 2006).
In a conspiracy case, the Supreme Court has long held
that venue is proper in any district in which any conspirator
performs an overt act in furtherance of the conspiracy or
performs acts that effectuate the object of the conspiracy, even
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though there is no evidence the particular defendant ever
entered that district or that the conspiracy was formed there.
Whitfield v. United States, 543 U.S. 209, 218 (2005) (holding
venue for money laundering conspiracy prosecution proper in “any
district in which an overt act in furtherance of the conspiracy
was committed”); Hyde v. United States, 225 U.S. 347, 356-67
(1912). This court has recognized that “in a conspiracy charge,
venue is proper for all defendants wherever the agreement was
made or wherever any overt act in furtherance of the conspiracy
transpires.” United States v. Bowens, 224 F.3d 302, 311 n.4
(4th Cir. 2000). Moreover, we have held that the acts of one
member of a conspiracy can be attributed to all other co-
conspirators for venue purposes, rejecting assertions of
“manufactured venue” and “venue entrapment.” United States v.
Al-Talib, 55 F.3d 923, 928-29 (4th Cir. 1995).
We review de novo the district court’s decision to
deny a Rule 29 motion. United States v. Smith, 451 F.3d 209,
216 (4th Cir. 2006); United States v. Ringer, 300 F.3d 788, 790
(7th Cir. 2002) (reviewing de novo the denial of a motion for
judgment of acquittal based on improper venue). The Government
must establish venue by a preponderance of the evidence, and
venue must be proper for each separate count of the indictment.
Ebersole, 411 F.3d at 524. In determining whether the
Government has established venue, the evidence must be viewed in
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the light most favorable to the Government. United States v.
Burns, 990 F.2d 1426, 1437 (4th Cir. 1993).
Our review of the record convinces us the Government’s
evidence was sufficient to establish venue in the Eastern
District of Virginia. According to the testimony of cooperating
witness Robert Wilson, Bolden served as a drug courier for
George Day, who, along with Darren Black, Wilson, and others,
distributed narcotics in and around cities located within the
jurisdiction of the Eastern District of Virginia. Specifically,
Wilson testified that, in late 1997, the beginning of the period
covered in the indictment, he sold cocaine in Alexandria,
Arlington, and Petersburg, Virginia. 2 Moreover, Wilson testified
that he flew from Reagan National Airport, located in Arlington,
to the Bahamas in order to purchase cocaine for distribution.
Although Bolden is correct in asserting the Government
did not present any evidence to demonstrate he personally
committed any acts in furtherance of the conspiracy in the
Eastern District of Virginia, this is not relevant to the
question of venue. As this court has noted, for some offenses,
there may be “more than one appropriate venue, or even a venue
in which the defendant has never set foot.” Ebersole, 411 F.3d
2The district court took judicial notice of the boundaries
of the Eastern District of Virginia.
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at 524 (internal quotation marks and citation omitted). The law
permits using a conspirator’s acts within a district to support
venue in that district for the trial of any co-conspirators.
Such is the case here. Wilson’s testimony regarding his, Day’s,
and Black’s actions within the Eastern District of Virginia in
furtherance of the conspiracy was more than sufficient to
demonstrate venue was appropriate on both charges. Accordingly,
we conclude the district court properly rejected Bolden’s
challenge to venue and thus properly denied his Rule 29 motion.
II. Double Jeopardy
Central to Bolden’s double jeopardy claim is his
contention that the district court erred in denying his Rule 29
motion. Only if the district court erred in denying the Rule 29
motion would Bolden’s second trial arguably be violative of the
Double Jeopardy Clause.
For the reasons discussed above, we conclude the
district court did not err in denying the Rule 29 motion. After
the denial of the Rule 29 motion, the first trial was declared a
mistrial because the jury could not reach a unanimous verdict.
Electing to retry Bolden following the mistrial simply did not
run afoul of the Double Jeopardy Clause. The Supreme Court
recognized as much in Richardson v. United States, 468 U.S. 317,
325-26 (1984), when it held that termination of a first trial
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because of a hung jury did not preclude a subsequent
prosecution. The Supreme Court explained that, “[r]egardless of
the sufficiency of the evidence” at the defendant’s first trial,
if a mistrial is declared because the jury is unable to reach a
verdict, the defendant “has no valid double jeopardy claim to
prevent his retrial.” Richardson, 468 U.S. at 326; see also
United States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005)
(“[I]t is well-settled that the Double Jeopardy Clause does not
preclude a retrial of a criminal charge that has resulted in a
hung jury.”). Accordingly, we find the district court properly
rejected Bolden’s double jeopardy claim.
For the foregoing reasons, we affirm the district
court’s judgment of conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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