United States v. Brian Hendrix , 675 F. App'x 385 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4219
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN K. HENDRIX,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:15-cr-00172-TSE-5)
Submitted: January 31, 2017 Decided: February 7, 2017
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory T. Hunter, Arlington, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Tracy Doherty-McCormick,
Assistant United States Attorney, Alexandria, Virginia; Lauren
Britsch, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Brian K. Hendrix of conspiracy to produce
child pornography, in violation of 18 U.S.C. § 2251(a), (e);
conspiracy to distribute and receive child pornography, in
violation of 18 U.S.C. § 2252(a)(2), (b); and conspiracy to
possess and access child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B), (b)(2). The district court sentenced Hendrix
to a total of 252 months in prison. Hendrix timely appeals.
At the close of the Government’s evidence, Hendrix filed a
motion for judgment of acquittal pursuant to Fed. R. Crim. P.
29, asserting that the Government failed to establish venue.
The Government had presented evidence that relevant events
occurred in Lorton, Virginia, but neglected to establish that
Lorton is in the Eastern District of Virginia. Rather than
granting the motion for acquittal, the district court took
judicial notice of the fact that Lorton is within the bounds of
the Eastern District of Virginia. Hendrix contends on appeal
that the court erred in denying the Rule 29 motion and in taking
judicial notice of venue.
We review the denial of a Rule 29 motion de novo. United
States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011). “As a
general proposition, venue is proper in any district where the
subject crime was committed.” United States v. Ebersole, 411
F.3d 517, 524 (4th Cir. 2005); Fed. R. Crim. P. 18 (requiring
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prosecution to take place in district where crime was
committed). Venue, which is not an element of the offense, need
be established by only a preponderance of the evidence.
Ebersole, 411 F.3d at 524. A district court may take judicial
notice that venue is proper in a particular district. United
States v. Kelly, 535 F.3d 1229, 1235–36 (10th Cir. 2008); United
States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006).
We conclude that the district court did not err when it
denied the motion for judgment of acquittal. Because the
location of Lorton, Virginia, is generally known to be in the
Eastern District of Virginia, as verifiable from “sources whose
accuracy cannot reasonably be questioned,” Fed. R. Evid.
201(b)(2), the district court did not err in judicially noticing
that fact and in concluding that venue was proper in the Eastern
District of Virginia.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decision process.
AFFIRMED
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