United States v. Sergio J. Granados ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2670
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * District of North Dakota.
*
Sergio Javier Granados, *
*
Defendant - Appellant. *
*
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Submitted: February 14, 1997
Filed: July 8, 1997
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Before MCMILLIAN, JOHN R. GIBSON, AND FAGG, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
A jury found Sergio Javier Granados guilty of various drug and
firearm charges. The district court sentenced Granados to 348 months of
imprisonment. Granados appeals, arguing that the district court: (1)
incorrectly denied his motion to dismiss four counts of his indictment for
improper venue; (2) violated his Sixth Amendment right to a fair and
impartial jury by conducting voir dire in a manner that prevented his
counsel from intelligently exercising preemptory challenges; (3) conducted
the trial in a manner that tainted the fairness of the trial; and (4) erred
in determining the quantity of drugs attributable to him, and thus
incorrectly calculated his base offense level. We reverse
Granados's sentence and remand for resentencing to determine the amount of
drugs attributable to him, but find no other reversible error by the
district court.
In early 1994 Granados began distributing cocaine in the Fargo, North
Dakota/Moorhead, Minneapolis area. Several others also were involved in
the distribution process. Eventually, the group distributed heroin as
well. Here, trial testimony was that the cocaine and heroin distributed
by the group came from the Chicago, Illinois area. Seven of Granados's co-
defendants pled guilty to numerous drug-related charges. Because Granados
does not appeal any issues that require detailed analysis of the facts, no
further information on the conspiracy is necessary.
I.
The district court issued an order stating that venue was appropriate because the indictment against
Granados included a drug conspiracy charge. Granados argues that the district court incorrectly denied his motion
to dismiss Counts II, IV, V, and VII of the indictment against him for improper venue
because these acts occurred in Minnesota. The government responds that
venue was proper for Counts IV and VII because possession with intent to
distribute is a continuing offense, and proper for Counts II and V because
Granados's actions in Fargo aided and abetted the distribution of cocaine
at the Minnesota locations.
"Proper venue is required by Article III, § 2 of the United States
Constitution and by the sixth amendment, as well as Rule 18 of the Federal
Rules of Criminal Procedure." United States v. Bascope-Zurita, 68 F.3d
1057, 1062 (8th Cir. 1995), cert. denied, 116 S. Ct. 741 (1996). See also
"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, cl. 3; "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. P. 18. Congress further
has provided that "any offense
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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) (1994).
The district court observed that the indictment included a conspiracy
charge, and found that acts in furtherance of the conspiracy took place in
Minnesota and North Dakota. Quoting Bascope-Zurita, 68 F.3d at 1062, the
district court held that "venue is proper in a conspiracy case in any
jurisdiction in which an overt act in furtherance of the conspiracy was
committed by any of the conspirators" and thus denied Granados's motion to
dismiss for improper venue.
At issue before us today, however, is not proper venue for the
conspiracy count against Granados, but rather whether venue was proper for
the substantive crimes stemming from the conspiracy counts. When a
defendant is charged with more than one count, venue must be proper with
respect to each count. See United States v. Corona, 34 F.3d 876, 879 (9th
Cir. 1994). Courts must perform a separate venue analysis for the
substantive crimes and the conspiracy, even if the substantive crimes are
committed in furtherance of the conspiracy. See id.Count IV charged Granados with violating, in North Dakota and
elsewhere, 21 U.S.C. § 841(a)(1) (1994) by possessing cocaine and heroin
with intent to distribute them and with distributing them at the Pierce
Trailer Court in Moorhead, Minnesota. Count VII charged Granados with
violating, in North Dakota and elsewhere, 21 U.S.C. § 841(a)(1) by
possessing cocaine and heroin with intent to distribute them and
distributing them at the apartments located at 2409 4th Avenue North in
Moorhead, Minnesota.
This circuit has recognized possession of drugs with intent to
distribute to be a continuing crime. See United States v. Swinney, 970
F.2d 494, 497 (8th Cir.), cert. denied, 506 U.S. 1011 (1992); United States
v. Kiser, 948 F.2d 418, 425 (8th Cir.
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1991), cert. denied, 503 U.S. 983 (1992); United States v. Delgado, 914
F.2d 1062, 1065-66 (8th Cir. 1990). "If the offense was begun in one
district and completed in another, or committed in multiple districts, the
government may try the case in any district where the offense was 'begun,
continued, or completed.'" Swinney, 970 F.2d at 497 (quoting Kiser, 948
F.2d at 425). Thus, Granados can properly be tried in any district where
he had possession of the cocaine, whether he intended to distribute the
cocaine in that district or somewhere else. See id.In this case trial testimony from several sources indicated that
Granados stored his drug supply at different locations in Fargo, North
Dakota. The cocaine eventually was supplied in smaller quantities to other
individuals who sold the cocaine to individual users under Granados's
direction. Because Granados possessed the cocaine in North Dakota, venue
was correct for Counts IV and VII which charged Granados with possessing
with the intent to distribute and distributing cocaine.
Count II of the indictment charged that in North Dakota and
elsewhere, Granados and others, knowingly and intentionally distributed
cocaine at the Ron Jo Apartments located in Moorhead, Minnesota in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1994), which makes
it a crime to aid and abet another in an illegal act. Count V charged that
in North Dakota and elsewhere, Granados knowingly and intentionally
distributed cocaine at the Skaff Apartments in Moorhead, Minnesota in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
We also hold that venue was correct for these counts that charged
Granados with distributing cocaine and with aiding and abetting in the
distribution of cocaine. The judge instructed the jury both on the
distribution charge and on the aiding and abetting charge, and therefore
the jury could have found liability for Counts II and V on either of these
theories.
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As discussed above, the trial testimony indicated that Granados
obtained drugs in Chicago and arranged to have these drugs transported to
Fargo. Granados used several locations in North Dakota to store large
quantities of drugs. From these storage locations Granados sometimes
packaged the drugs into small, sellable quantities that he then transferred
to his co-defendants to sell to users at the Ron Jo Apartments and the
Skaff Apartments, among other locations. The trial testimony further
established that Joe Greywind, Jose Garza, and Jose Camacho actually sold
the drugs that they obtained from Granados at either the Ron Jo or Skaff
Apartments or both. Though venue was not proper in North Dakota for
Granados's actual distribution of drugs at the Ron Jo and Skaff Apartments
in Minnesota, the jury reasonably could have found that Granados's actions
in Fargo, North Dakota aided and abetted Greywind, Garza, and Camacho in
distributing cocaine at these Minnesota apartments. We therefore hold that
venue is proper in North Dakota, where Granados committed his accessorial
acts. See United States v. Kilpatrick, 458 F.2d 864, 868 (7th Cir. 1972)
(venue proper where aider and abettor committed accessorial acts or where
principal committed substantive crime).
II.
Granados next argues that the district court violated his Sixth
Amendment right to a fair and impartial jury by conducting voir dire in a
manner that prevented his counsel from intelligently exercising preemptory
challenges. The form and scope of voir dire rests primarily in the
discretion of the district court. See United States v. Disbrow, 768 F.2d
976, 979 (8th Cir.), cert. denied, 474 U.S. 1023 (1985).
Our review of whether the district judge conducted voir dire in a way
that protected Granados's Sixth Amendment right to a fair and impartial
jury is limited to an abuse of discretion. See United States v. Spaar, 748
F.2d 1249, 1253 (8th Cir. 1984). The district court abuses its discretion
when the overall examination of the prospective jurors and the charge to
the jury fails to protect that defendant from
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prejudice or fails to allow the defense to intelligently use its preemptory
challenges. See id.In his argument that the district court conducted the voir dire
process unfairly, Granados raises two primary complaints: (1) that the
district court rushed through the process of questioning the potential
jurors in a way that prevented his counsel from getting the necessary
information about each potential juror to intelligently exercise preemptory
challenges; and (2) that the questions the district court asked the
potential jurors did not address the concerns involving gangs and prejudice
towards minorities expressed by Granados in his proposed voir dire
questions. The government responds that Granados's argument fails because
his counsel did not request that the district court ask the potential
jurors additional questions involving these concerns.
Review of the voir dire transcript indicates that the trial court
asked counsel on both sides whether they had any further questions of the
prospective jurors. Indeed, the trial court granted defense counsel's
request to ask additional questions several times. We further observe that
the trial court granted Granados's counsel's request for a break before
peremptory challenges. Generally, when Granados's counsel objected, the
trial court complied with his request. Where counsel failed to further
object, however, we cannot reverse the district court unless its actions
are plain error. See United States v. Griggs, 71 F.3d 276, 279 (8th Cir.
1995). The plain error standard allows us to provide a remedy to an
aggrieved defendant who shows the error was so prejudicial as to cause a
miscarriage of justice. See Hicks v. Mickelson, 835 F.2d 721, 724 (8th
Cir. 1987).
Here, we find no evidence of plain error. First, we observe that the
district judge asked a few questions of each juror individually, and asked
counsel on both sides a few times whether they had additional questions
they wanted him to ask. When a lawyer posed additional questions, the
court generally asked them. None of Granados's counsel's additional
questions concerned gangs or prejudice towards minorities, and his
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counsel did not further object. The court's failure to ask proposed voir
dire questions does not warrant a finding of plain error. See United
States v. Bowman, 602 F.2d 160, 165 (8th Cir. 1979). In light of the
initial questions asked by the judge and the additional questions proposed
by counsel on both sides, the questioning adequately covered the serious
areas for consideration in selecting a fair and impartial jury. See Hicks,
835 F.2d at 725. Further in light of the trial court's grant of a recess
requested by Granados's counsel before the beginning of peremptory
challenges, there was no rushing of the voir dire process, and even if the
court did rush the process, it was not plain error.
III.
Next, Granados argues that the district court lost its impartiality
and conducted the trial proceedings in a manner that tainted the fairness
of the proceedings by showing a bias and partiality towards the
prosecution. At trial, however, Granados's counsel failed to object to any
of the instances Granados raises on appeal as evidence of the trial court's
impartiality. We review for plain error arguments not raised before the
district court. See Griggs, 71 F.3d at 279. After careful review of the
trial transcript, we find no plain error.
IV.
In his last argument, Granados argues that the district court erred
in its determination of the quantity of drugs attributable to him, and thus
erred in calculating his base level offense under the Sentencing
Guidelines.
We review a district court's computation of the quantity of drugs
attributable to a defendant for clear error. See United States v. Rice,
49 F.3d 378, 382 (8th Cir.), cert. denied, 115 S. Ct. 2630 (1995). "'When
the defendant has objected to the [drug] quantity attributed to him in the
[Presentence Investigation Report], . . . Rule
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32(c)(3)(D) requires the district court to make findings that explain how
it has resolved this controverted issue.'" United States v. Coleman, 990
F.2d 419, 421 (8th Cir. 1993) (quoting United States v. Candie, 974 F.2d
61, 65 (8th Cir. 1992)). We often have emphasized the importance of and
need for specific findings regarding disputed matters in the presentence
investigation report. See id. "[S]trict compliance with Rule
32(c)(3)(D)'s requirement that the court make a finding as to each
controverted material fact in the [Presentence Investigation Report] is
essential to meaningful appellate review and the fairness of the sentencing
process." Id. at 421-22 (quotation omitted).
At the sentencing hearing Granados objected to the quantity of drugs
attributed to him and requested an evidentiary hearing on this issue. In
discussing whether an evidentiary hearing regarding quantity was necessary,
the district judge admitted that the trial testimony regarding quantity was
often vague and uncertain because only Granados's guilt or innocence was
at issue. Later, the district judge expressed concern that his
recollections of the trial testimony might not constitute a sufficient
record for substantiating a sentence. After further argument from counsel
and a brief recess, however, the district judge made a factual finding
attributing five kilos of controlled substances to Granados. This finding
was based upon the district judge's recollection of trial testimony
concerning a couple of locations where Granados had stored cocaine,
testimony that indicated that some of the cocaine had become unusable, and
testimony involving "descriptions of others to various quantities." The
judge, however, failed to make any specific quantity determinations.
Later, in an ex parte letter to John Schneider, United States Attorney, the
district judge stated that the "record of the sentencing hearing [did not]
justif[y] this finding of fact."
Based upon this record, there is no doubt that the district court did
not comply with Rule 32(c)(3)(D)'s strict requirement that the court make
findings that explain the controverted issue. See Coleman, 990 F.2d at
421. Here, the district judge made no specific findings and even admitted
that the record did not justify his fact finding. This
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requires reversal. The Sentencing Guidelines require strict compliance,
and those convicted are entitled to the articulation of findings required
by the rule.
Accordingly, we vacate Granados's sentence and remand for
resentencing.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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