United States v. Borda , 952 F. Supp. 2d 43 ( 2013 )

B.UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. Criminal Case No. 07-65 (GK)
CHRISTIAN FERNANDO BORDA and
ALVARO ALVARAN-VELEZ,
Defendants.
MEMORANDUM OPINION
On December 9, 2010, Defendants Christian Fernando Borda
("Borda") and Alvaro Alvaran-Velez ("Alvaran") were convicted by
a jury under the Controlled Substances Import and Export Act, 21
u.s.c. §§ 951 et seq., of conspiring to distribute five
kilograms or more of cocaine with the intent or knowledge that
the cocaine would be unlawfully imported into the United States.
See Verdict Form as to Borda [Dkt. No. 207]; Verdict Form as to
Alvaran [Dkt. No. 209]; 21 U.S.C. §§ 959, 960, 963.
More than two and a half years later, the case is before
the Court on Defendants' Supplemental Motion for Judgment of
Acquittal or Alternatively, Motion to Dismiss Indictment for
Lack of Venue [Dkt. No. 387]. Upon consideration of the Motion,
the Opposition [Dkt. No. 391], the Reply [Dkt. No. 396], the
entire record herein, and for the reasons set forth below,
Defendants' Motion is denied.
I . Background
On March 16, 2007, Defendants were indicted in the District
of Columbia for conspiracy to smuggle five kilograms or more of
cocaine into the United States. See 21 U.S.C. §§ 959(a) and
963. In 2008 and 2009, Defendants were arrested in Colombia,
where they were residing, and subsequently extradited to the
United States, where they appeared in this Court on December 9,
2009.
A jury trial began on November 1, 2010. The evidence at
trial established that Defendants and others arranged for two
loads of cocaine to be transported from Colombia to Mexico
concealed in commercial shipments of palm oil, and that they
discussed transporting a third load, but ultimately never did
so. All of Defendants' acts in negotiating and arranging the
shipments took place in Colombia and Mexico. The central issue
at trial was whether Defendants knew or intended that the
cocaine would reach the United States.
The jury returned guilty verdicts on December 9, 2010,
after which Defendants moved for judgment of acquittal under
Federal Rule of Criminal Procedure 2 9. The Court denied that
Motion in a Memorandum Opinion on March 9, 2011 [Dkt. No. 238].
Defendants then moved for a new trial under Federal Rule of
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Criminal Procedure 33, which the Court denied in a Memorandum
Opinion on April 27, 2011 [Dkt. No. 249]. Defendants next moved
to vacate the jury verdict and to dismiss the indictment under
the Fifth Amendment's Due Process Clause and Federal Rule of
Criminal Procedure 6(e), which the Court denied in a Memorandum
Opinion on November 27, 2012 [Dkt. No. 376]. Defendants also
moved to dismiss the case or for a new trial pursuant to Brady
v. Maryland, 373 U.S. 83 (1963). After post-trial discovery and
extensive briefing, the Court denied that Motion on April 22,
2013 [Dkt. No. 378]. The Court then scheduled sentencing.
Thereafter, on May 19, 2013, Defendants filed the instant
Supplemental Motion for Judgment of Acquittal or, Alternatively,
Motion to Dismiss for Lack of Venue [Dkt. No. 387]. The Court
ordered the Government to respond, which the Government did by
filing an Opposition [Dkt. No. 391] on June 10, 2013. On June
24, 2013, Defendants filed their Reply [Dkt. No. 396].
II. Standard of Review and General Principles of Venue
The Government's choice of venue is constrained in the
first instance by two constitutional provisions and one
procedural rule. Article III of the Constitution provides that:
Trial of all Crimes shall be held in the State
where the said Crimes shall have been committed; but
when not committed within any State, the Trial shall
be at such Place or Places as the Congress may by Law
have directed.
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U. S . Cons t . art . III, § 2, cl . 3. The Sixth Amendment states
that an "accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district where the
crime shall have been committed [.]" U. S . Cons t . amend . VI .
Rule 18 of the Federal Rules of Criminal Procedure implements
these directives and requires a criminal prosecution to take
place "in the district in which the offense was committed"
except when "a statute or the [] rules permit otherwise." Fed.
R. Crim. P. 18.
"[T] he government bears the burden of establishing by a
preponderance of the evidence that venue is proper with respect
to each count charged against the defendant." United States v.
Haire, 371 F.3d 833, 837 (D.C. Cir. 2004) vacated on other
grounds, 543 U.S. 1109 (2005) (citing United States v. Lam
Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991)). This does not
mean, however, that venue is an element of the offense that must
be decided by a jury. "Venue is a jury question only if 'the
defendant objects to venue prior to or at the close of the
prosecution's case-in-chief,' 'there is a genuine issue of
material fact with regard to proper venue, ' and 'the defendant
timely requests a jury instruction.'" United States v. Nwoye,
663 F.3d 460, 466 (D.C. Cir. 2011) (citing Haire, 371 F.3d at
840) .
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It is well established that a defendant can waive his venue
rights altogether "just by his failure to lodge an objection
prior to trial . " United States v. Burroughs, 161 F. App'x 13,
14 (D.C. Cir. 2005) (internal quotations marks omitted) (citing
Fed. R. Crim. P. 12 (b) (3), (e); United States v. Gaviria, 116
F.3d 1498, 1517 n.22 (D.C. Cir. 1997)); see also United States
v. Wilson, 26 F.3d 142, 151 (D.C. Cir. 1994) ("It has long been
settled in this circuit and elsewhere . . that a defendant may
waive his right to proper venue.") (citations omitted).
III. Analysis
Defendants make two main arguments as to why venue was
improper. First, they maintain that because some of the cocaine
at issue in the case made its way to New York and Texas, they
had a constitutional right to be tried in one of these states.
Mot. at 2-3. Second, they contend that even if the Constitution
didn't mandate an alternative venue, the venue statute relied
upon by the Government was actually inapplicable to their case,
and a different venue statute permitted them to be tried in New
York, New Jersey, Florida, or Texas, but not in Washington D.C.
Mot. at 7-9.
A. Defendants Waived Their Right to Challenge Venue Under
21 U.S.C. § 959{c)
Defendants were tried in this District pursuant to 21
U.S.C. § 959(c), which states:
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This section is intended to reach acts of manufacture
or distribution committed outside the territorial
jurisdiction of the United States. Any person who
violates this section shall be tried in the United
States district court at the point of entry where such
person enters the United States, or in the United
States District Court for the District of Columbia.
Defendants now argue that Section 959 (c) was inapplicable
to their case because they were charged with conspiracy under 21
U.S. C. § 963, rather than a direct violation of Section 959.
Defendants contend that a conspiracy to violate § 959 is subject
to the same penalties as a violation of § 959, but not the same
venue rule . 1 They assert that 18 U.S.C. § 3238 supplies the
proper venue rule instead.
Whatever the merits of Defendants' argument, they have long
since waived it. Prior to trial, the parties submitted a Joint
Pretrial Statement in which Defendants affirmatively agreed that
venue was proper under 21 U.S.C. § 959 (c), and stated that
"[t]he government is not required to show that any of the
alleged criminal acts occurred within the District of Columbia."
See Joint Pretrial Statement at 58 [Dkt. No. 99].
Defendants provide no justification for their belated
change of position on this point. None of the information they
1
Section 963 reads: "Any person who attempts or conspires to
commit any offense defined in this subchapter shall be subject
to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy." 21 U.S.C. § 963.
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purportedly learned for the first time at trial, or afterward,
is at all relevant to whether Section 959(c) applies to a
conspiracy prosecution under Section 963 as a matter of law.
Having affirmatively relieved the Government of any burden of
proof as to venue before trial, Defendants' may not now be heard
to complain that "[n]ot a scintilla of evidence links the
conspiracy to the District of Columbia." Mot. at 7. 2
B. The Constitution Did Not Require Defendants to Be
Tried in New York or Texas
Defendants' only effort to explain their multi -year delay
in asserting their constitutional challenge is their contention
that the Government's pre-trial discovery gave them no reason to
believe there was any evidence linking their crime with the
territorial United States. Mot. at 3. Instead, Defendants
claim to have been taken by surprise at trial when one of the
Government cooperators testified that some of the cocaine was
delivered to New York. Defendants also point to evidence they
2 Defendants contend that they may raise a venue objection at any
time prior to appeal of their case. Reply at 1-3. This is
wrong. Absent good cause, a criminal defendant waives an
objection to venue where "he failed to [make it] before trial."
Burroughs, 161 F. App'x at 14 (emphasis added) (citations
omitted); see also United States v. Cordero, 668 F.2d 32, 44
(1st Cir. 1982) (" [C] ourts have consistently ruled that a claim
of improper venue must be raised at least prior to verdict.")
(citations omitted). Here, Defendants not only failed to object
to § 959(c) before the conclusion of their trial, they
affirmatively agreed to it, and thereafter did not object until
two and a half years after their convictions. These facts
demonstrate a clear case of waiver.
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received after trial indicating that some of the cocaine was
sent to Texas. According to Defendants, before hearing their
co-conspirator's testimony at trial, they had no reason to know
they had a basis to challenge venue in the District of Columbia
under Article III of the Constitution. Mot. at 3. Even if this
is true, however, it does not explain why Defendants didn't
immediately object to venue upon hearing the testimony that
connected their crime with the state of New York, rather than
wait for two and a half years after their conviction.
In any event, the Court concludes that Defendants'
constitutional challenge is meritless. Where a crime was "not
committed within any State," the Constitution permits such crime
to be prosecuted in any district statutorily designated by
Congress. U.S. Const. art. III,§ 2, cl. 3. "The 'essence of
conspiracy is an agreement to commit an unlawful act.'" Mot. at
4 (emphasis added) (quoting United States v. Jimenez Recio, 537
u.s. 270, 274-75 (2003)). An "overt act" is not an element of
conspiracy under 21 U.S.C. § 963. United States v. Mejia, 448
F.3d 436, 445 (D.C. Cir. 2006) As Defendants themselves
concede, their agreement to smuggle cocaine occurred in Mexico
and Colombia, entirely outside of the United States. See Mot.
at 2 ("All negotiations and logistical operations occurred in
Columbia and Mexico.") (emphasis added) . Therefore, Defendants'
crime was "not committed within" any State.
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Columbia and Mexico.") (emphasis added) . Therefore, Defendants'
crime was "not committed within" any State.
The fact that some of the cocaine was ultimately delivered
to certain states by way of Defendants' co-conspirators may have
permitted the Government to prosecute Defendants in those
states. 18 U.S.C. § 3237(a); see, e.g., United States v.
Watson, No. 10-3010, 2013 WL 2395072, at *2 (D.C. Cir. June 4,
2013) ("venue is proper in any jurisdiction where any co-
conspirator committed an overt act in furtherance of the
conspiracy.") (citations omitted) However, it did not require
Defendants to be tried in those states because " [v] enue may be
proper in more than one district." Lam Kwong-Wah, 924 F. 2d at
301.
Instead, the Constitution requires only that Defendants be
tried in "such Place or Places as the Congress may by Law have
directed." U.S. Const. Art. III, § 2, cl. 3. See also Cook v.
United States, 138 U.S. 157, 182-183 (1891) ("A crime
commit ted against the laws of the United States, out of the
limits of a state, is not local, but may be tried at such place
as congress shall designate by law.") That mandate was
satisfied because, as discussed below, Defendants were
prosecuted in this District pursuant to 21 U.S.C. § 959(c).
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IV. CONCLUSION
For the foregoing reasons, Defendants' Supplemental Motion
for Judgment of Acquit tal or Alternatively, Motion to Dismiss
Indictment for Lack of Venue is denied. An Order will accompany
this Memorandum Opinion.
July 2, 2013
United States District Judge
Copies to: Attorneys of Record via ECF
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