APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal Nos. 95-cr-00070-3, 95-cr-00070-2, 95-cr-00070-1, 95-cr-00070-4, 95-cr-00070-5 and 95-cr-00070-6)
Before Avendano arrived with Pacheco at Quinones's house, Montalvo had decided that the house was not safe because police had inquired about the car with Texas plates in the driveway. Montalvo then informed the group that they were going to travel to Maryland that night. As they got ready to leave, Montalvo told Avendano to carry the guns so that if they were pulled over on the way, Avendano would be responsible for the guns.
Defendants -- Omar Torres-Montalvo ("Montalvo"), Jorge Luis Pacheco ("Pacheco"), Randy Alvarez-Quinones ("Quinones"), Milton Palma-Ruedas ("Palma-Ruedas"), Jairo Pedroza-Ortiz ("Ortiz"), and Jacinto Rodriguez-Moreno ("Moreno") -- appeal their convictions on charges arising from a drug conspiracy and kidnapping scheme. All six defendants were convicted by a jury in the United States District Court for the District of New Jersey of kidnapping and conspiracy to kidnap, in violation of 18 U.S.C. Section(s) 1201(a)(1) and 18 U.S.C. Section(s) 1201(c). Montalvo, Pacheco, and Quinones were also convicted of conspiracy to distribute and possess cocaine, in violation of 21 U.S.C. Section(s) 846. In addition, Moreno was convicted of using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. Section(s) 924(c)(1). In this consolidated appeal, defendants challenge their convictions on numerous grounds. We will discuss each of these challenges in turn, focusing in more detail on Moreno's claim that venue in New Jersey was improper to try the Section(s) 924(c)(1) count.
We will conclude that venue was improper in New Jersey and, accordingly, we will reverse Moreno's conviction under 18 U.S.C. Section(s) 924(c)(1). We will affirm the defendants' convictions on all other counts.
Defendant Montalvo ran a cocaine distribution enterprise out of Texas. In July of 1994, Ephrain Avendano ("Avendano"), the kidnapping victim, introduced Montalvo to Fanol Ochoa ("Ochoa"), a New York drug dealer, so that Montalvo and Ochoa could discuss a possible cocaine transaction. Thereafter, Avendano served as the middleman between Montalvo and Ochoa.
In October of 1994, Montalvo and another defendant, Pacheco, arranged to sell Ochoa fourteen kilograms of cocaine. Avendano acted as the middleman in this deal. Montalvo hired Raul Lopez ("Lopez"), who later became a key witness for the government, and another friend to "do the run" from Texas to New York because Lopez owned a car with a secret compartment. On October 29, 1994, while en route to New York, Lopez was arrested and the fourteen kilos of cocaine were seized. Montalvo called Avendano to let him know that the deal had been thwarted and that he had hired lawyers to represent Lopez.
In November of 1994, Montalvo and his cousin, Defendant Quinones, met with Avendano. Montalvo told Avendano that the seizure of the fourteen kilos and the legal fees were "a big loss" and that he needed to make a new deal to compensate for it. Avendano conveyed this information to Ochoa, who agreed to strike another deal with Montalvo for twenty kilograms of cocaine. Avendano, again acting as the middleman, agreed to fly to Houston and help Ochoa execute the deal with Montalvo. Avendano arrived in Houston on December 11, 1994, and was met at the airport by Ochoa and another man named "Baldy." Ochoa told Avendano that the deal had been increased to thirty kilograms of cocaine and that Montalvo had agreed to give Ochoa the extra ten kilograms on credit. Ochoa then informed Avendano of the plan to get the cocaine from Montalvo: Avendano and Baldy were to meet Montalvo, Baldy would put the cocaine in his car, and Avendano would call Ochoa, who would then deliver the money. Ochoa explained that he was not meeting Montalvo personally because of "reasons of security."
Pursuant to this plan, Montalvo and Pacheco met Avendano and Baldy. Baldy instructed Montalvo and Pacheco to place the thirty kilos of cocaine in a suitcase, and Baldy drove away with the drugs. When Avendano tried to execute the last phase of the deal -- to call Ochoa to secure payment for Montalvo -- Ochoa did not answer his pager.
Obviously, Montalvo was not happy about being taken advantage of by Ochoa for the price of the drugs, which was nearly half-a-million dollars. And, in response, Montalvo and Pacheco informed Avendano that he was "responsible" for the money, warning him that they may have to turn him over to the "Medellin people."
On December 12, 1994, Montalvo called Avendano's wife, Marbel Avendano, and told her that he was holding Mr. Avendano. Montalvo informed Mrs. Avendano that he could not let Mr. Avendano go until he found Ochoa because Avendano was "his only guarantee." Montalvo and Pacheco then moved Avendano to an apartment in Houston and then to a house. Avendano was kept in the house for two weeks. Montalvo was armed at all times.
After hearing that Ochoa was in New York boasting about how he had "ripped-off " Montalvo, Montalvo forced Avendano to disclose the address of his mother and cousin in Columbia and the address of his home in New Jersey. Montalvo then informed Avendano that they were all going to travel to Avendano's home in New Jersey to continue the search for Ochoa. Montalvo warned Avendano not to try anything "because it could work out worse for him."
That same day, Pacheco showed up at the apartment with three men, Defendants Ortiz, Palma-Ruedas, and Moreno, who had been hired to help look for Ochoa and keep Avendano captive. Ortiz, Palma-Ruedas, and Moreno travelled with Pacheco, Montalvo, and Avendano from Texas to New Jersey. They arrived in New Jersey at Avendano's apartment on December 28, 1994. Using Avendano's apartment as a home base, the defendants spent the next few days looking for Ochoa.
On January 1, 1994, they all went to Quinones's house in Newburgh, New York. Mrs. Avendano stayed at the Avendanos' apartment in New Jersey. Both Mr. Avendano and Mrs. Avendano testified at trial that at this point they thought they would never see each other again.
Montalvo, Pacheco, and Avendano travelled in one car, and Ortiz, Palma-Ruedas, Moreno, and Quinones travelled in another. Early in the morning on January 2, 1995, they all arrived at a house in Maryland owned by Mr. Morillo. Soon after their arrival in Maryland, Morillo showed off his .357 magnum revolver to the men. Meanwhile, Montalvo continued his search for Ochoa from the house in Maryland. Once it became clear that Montalvo's search for Ochoa was fruitless, tensions among the men began to run high. At one point, Moreno told Montalvo that they "were just wasting time" and that they should "just get it over with and kill Avendano." Moreno then put Morillo's .357 magnum to the back of Avendano's neck, making it clear that he was going to kill him. Shortly thereafter, Avendano was able to escape from the rear of the house.
Avendano ran to a neighbor's house, where he frantically begged the neighbor in broken English to let him use the phone. Avendano called his wife in New Jersey, and his wife got on the phone with the neighbor and asked him to call the police because her husband was in danger. Mrs. Avendano also called the police in New Jersey.
When the police arrived at the neighbor's house, Avendano related the story of his kidnapping to the police. Meanwhile, back in New Jersey, the police had also shown up at the Avendanos' apartment with the FBI. The Maryland police were able to corroborate Avendano's story with the police in New Jersey. The Maryland police put the
Maryland house under surveillance, secured a search warrant, and entered the house. All six defendants were arrested, and the police seized the .357 magnum with Moreno's fingerprints on it, Montalvo's pager, Montalvo's cell phone, a faxed photograph of Ochoa, and papers bearing the telephone numbers of Avendano's and Ochoa's beepers.
All six defendants were indicted for: (1) kidnapping Avendano; (2) conspiring to kidnap Avendano and his wife; and (3) conspiring to distribute and possess with intent to distribute cocaine. All defendants except Quinones were indicted for kidnapping Mrs. Avendano. In addition, Moreno was indicted for using and carrying a firearm in relation to a crime of violence.
The defendants were jointly tried by jury in the United States District Court for the District of New Jersey. At the conclusion of the government's case, Palma-Ruedas, Ortiz, and Moreno moved to dismiss the drug conspiracy charges against them pursuant to Rule 29 of the Federal Rules of Criminal Procedure. *fn1 The district court granted their Rule 29 motion, finding that the government had failed to prove that Palma-Ruedas, Ortiz, and Moreno had intended to join a cocaine distribution conspiracy. J.App. at 470. The jury found the defendants guilty of all remaining counts. *fn2 All six defendants appealed, and we consolidated their appeals. The district court had jurisdiction under 18 U.S.C. Section(s) 3231, and we have jurisdiction under 28 U.S.C. Section(s) 1291.
Defendant Moreno was indicted and convicted of violating 18 U.S.C. Section(s) 924(c)(1). That section provides:
Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years
18 U.S.C. Section(s) 924(c)(1).
At the conclusion of the government's case, Moreno moved to dismiss the Section(s) 924(c)(1) count for lack of venue. Moreno argued that because the evidence conclusively established that he had neither "used" nor "carried" the .357 magnum revolver outside of Maryland, venue could only properly lie in Maryland. The government conceded that Moreno had only used or carried the gun in Maryland but maintained that venue in New Jersey was proper nonetheless. According to the government, venue was proper in New Jersey for the gun charge because venue in New Jersey was proper for the predicate offense of kidnapping.
Having no guidance from this Circuit on the venue issue, the district court was forced to choose between two opposing analyses offered, respectively, by the Ninth Circuit and the Fifth Circuit. Compare United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1994) (holding that Nevada was improper venue for trying defendant on Section(s) 924(c)(1) charge, even though Nevada was proper venue for trying defendant on underlying drug conspiracy, when defendant never actually used or carried the firearm in Nevada), with United States v. Pomranz, 43 F.3d 156 (5th Cir. 1995) (holding that defendant was properly tried for unlawful use of a firearm during drug trafficking offense in any district in which venue was proper for underlying drug distribution conspiracy). Apparently persuaded by the Fifth Circuit's decision in Pomranz, the district court concluded that Moreno could properly be tried in New Jersey for violation of 18 U.S.C. Section(s) 924(c)(1). See J.App. at 468.
Moreno's appeal requires us to address, for the first time, whether the Constitution requires a defendant to be tried under Section(s) 924(c)(1) in the venue where the violation of that statute took place. Or, to state the issue differently, can the government try a defendant for using or carrying a firearm in any venue where it may try the related crime when the defendant neither carried nor used the firearm in that venue? Because the district court's decision regarding proper venue was an interpretation of law, we have plenary review. United States v. Baxter, 884 F.2d 734, 735 (3d Cir. 1989).
Article III, Section II of the Constitution states in pertinent part: "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, Section(s) 2. Thus, by its explicit terms, the Constitution requires crimes to be tried where they are committed. *fn3
Moreover, we have emphasized that proper venue is not just a mere formal requirement but, rather, a right of constitutional dimension. See United States v. Baxter, 884 F.2d 734, 736 (3d Cir. 1989) ("[p]roper venue in criminal trials is more than just a procedural requirement; it is a safeguard guaranteed twice by the United States Constitution itself."); see also United States v. Goldberg, 830 F.2d 459, 465 (3d Cir. 1987) ("The venue provisions of the Constitution are important safeguards, protecting an accused from unfairness and hardship in defending against prosecution by the federal government.").
The government urges us to disregard these constitutional dictates and adopt the approach of the Fifth Circuit in Pomranz. Moreno urges us to adopt the approach of the Ninth Circuit in Corona. Because Corona and Pomranz elucidate the parameters of this issue, we will discuss those cases in some detail.
In United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1994), the Ninth Circuit reversed the conviction of the appellant for the unlawful use of a firearm in violation of Section(s) 924(c)(1) because of improper venue. Adopting a "key verbs" test, which examines the verbs in the statute that define the criminal conduct to determine where the offense was committed, the court held that Nevada was not the proper venue for the substantive crimes arising from the conspiracy -- distribution of cocaine and use of afirearm during drug trafficking -- which occurred entirely in California. Id. at 880. Because the defendant had not distributed cocaine nor used a firearm in Nevada, venue was improper, even though the conspiracy counts were properly tried in Nevada.
In United States v. Pomranz, 43 F.3d 156 (5th Cir.), cert. denied, 116 S. Ct. 513 (1995), the Fifth Circuit explicitly rejected the Ninth Circuit's analysis. The Fifth Circuit noted that the Ninth Circuit's approach would "effectively undermine the Congressional intent to curb the violence inherently associated with high level drug deals." Pomranz, 43 F.3d at 161. Because a violation of Section(s) 924(c)(1) is necessarily intertwined with the predicate act of drug trafficking or committing a violent crime, the Fifth Circuit concluded that Section(s) 924(c)(1) violations can be properly tried in the same venue as the underlying drug or violent crime offense. Id. In reaching this conclusion, the court relied heavily on policy concerns -- that the government would have to "expend its limited resources in prosecuting a felon a second time for this separate offense, or satisfy itself with the punishment previously imposed and forfeit a conviction on the weapons count." Id. at 161. Further, in addressing the obvious constitutional concerns inherent in its decision to allow venue, the court stated: "[W]e do not believe that our holding seriously infringes on the defendant's rights since this Court treats the right to venue with less deference than other constitutional rights." Id. at 162.
Thus, while the Ninth Circuit, relying heavily on the literal language of the Constitution and Rule 18 of the Federal Rules of Criminal Procedure, found the rights guaranteed by these provisions to outweigh concerns about judicial economy, the Fifth Circuit adopted a more pragmatic approach. The Ninth Circuit stated the tension between the two approaches this way:
What the government is essentially arguing for is a rule of law allowing venue over a substantive crime committed in furtherance of a conspiracy in any district where venue is proper for the conspiracy charge. While such a rule might make some sense from a policy standpoint, it runs counter to the venue principles established by the Constitution, the Federal Rules of Criminal Procedure, and the federal courts.
Relying heavily on the rationale articulated in Pomranz, the government advances two arguments for finding venue proper in this case. First, the government urges us to consider the cost of forcing duplicative trials. Had the government been forced to try Moreno on the gun charge in Maryland, it contends, its resources would have been dramatically strained because it would have also had to retry Moreno on the underlying predicate offense of kidnapping.
The government's second and related argument is that when determining venue, a court must look closely to "the nature" of Section(s) 924(c)(1). In other words, because a violation of Section(s) 924(c)(1) is dependent on the predicate offense -- in this case, kidnapping -- it would be illogical to require the Section(s) 924(c)(1) offense to be tried in a different venue.
We reject both of the government's arguments. Instead, we agree with the Ninth Circuit that to determine where venue should lie under Section(s) 924(c)(1) the "verb test" is the proper test. *fn4 Applying that test here, we find that Section(s) 924(c)(1) unambiguously designates the criminal conduct that is prohibited as "using" or "carrying" afirearm. It follows that one "commits" a violation of Section(s) 924(c)(1) in the district where one "uses" or "carries" a firearm. Accordingly, we conclude that because the crime committed by Moreno -- carrying or using a firearm in relation to a crime of violence -- occurred only in Maryland, Moreno could only have been properly tried in Maryland.
Contrary to the government's assertions, application of the verb test here would not cause it undue hardship. For example, our holding would not prevent the government from trying the predicate offense in any venue in which the Section(s) 924(c)(1) charge would be properly brought. Indeed, had the government wanted to try Moreno on all counts in a single trial, it certainly could have done so in Maryland. *fn5 Thus, the government overstates the potential hardship it would face if forced to try Section(s) 924(c)(1) violations in the venue where the gun was used or carried. Essentially, the government wants to have the option of venue-- that is, it does not want to be restricted to trying these cases in the venue where the Section(s) 924 violation occurred.
Many constitutional guarantees for criminal defendants are inefficient and costly -- the right to counsel comes to mind. Nevertheless, these guarantees form the bedrock principles of our criminal justice system and should not be hastily balanced away. See United States v. Johnson, 323 U.S. 273, 276 (1944) ("If an enactment of Congress equally permits the underlying spirit of the constitutional concern for trial in the vicinage to be respected rather than to be disrespected, construction should go in the direction of constitutional policy . . . ."). Thus, here, where the statute does not indicate the location of the crime for purposes of determining venue, we must strictly construe the verbs that define the criminal conduct to ensure that the defendant's Sixth Amendment rights are protected. *fn6
While of course, Congress cannot abrogate the venue guarantee altogether, it can define a crime broadly such that commission of that crime will likely cross state borders. See Charles A. Wright, Federal Practice & Procedure Section(s) 302, at 201 (2d ed. 1982). For example, 18 U.S.C. Section(s) 659 & 660 allow the government to indict an individual for "stealing" from interstate commerce in any district in which the individual "possessed" the proceeds of the theft. See id. Congress can also explicitly provide a venue provision for any given offense, as long as the venue bears some relation to the offense. *fn7 But where, as here, Congress has not explicitly indicated an intention to allow multiple venue actions, we remain guided by the strict language of the Constitution. See Anderson, 328 U.S. at 703 (holding that when "nothing in either the statute or the legislative history . . . show[s] an intention on the part of Congress to depart from the Sixth Amendment's command," courts must look to the nature of the crime and where it was committed to determine venue); United States v. Barsanti, 943 F.2d 428, 434 (4th Cir. 1991) ("Congress did not expressly provide for venue in 18 U.S.C. Section(s) 1001; therefore, we must look to the verbs of the statute for guidance.").
In the specific context of Section(s) 924(c), Congress could have drafted the statute to allow venue to lie in any district where the government could properly bring the related crime of violence or drug trafficking offense. *fn8 Congress did not do so. Without such an explicit expression of congressional intent, we decline the government's invitation to construe liberally the venue requirement.
Because Moreno only used or carried the gun in Maryland and because that conduct constitutes the substantive offense under Section(s) 924(c)(1), venue in New Jersey was improper. Accordingly, we reverse Moreno's conviction under Section(s) 924(c)(1) for lack of venue.
Defendants Montalvo, Pacheco, and Quinones argue that the district court abused its discretion in allowing the admission of "other crimes" evidence of previous drug transactions. *fn9 Specifically, the defendants attack the admission of testimony from Avendano, the kidnapping victim, and Lopez, the drug courier, regarding the thwarted fourteen-kilo cocaine deal. Defendants also challenge the admission of Lopez's testimony about the five drug transactions that preceded the fourteen-kilo deal. According to defendants, they were prejudiced by the admission of this evidence in violation of Rule 404(b) of the Federal Rules of Evidence, which prohibits the admission of prior bad acts when used to portray a defendant as a "bad person." Because the fourteen-kilo deal was admitted solely to portray the defendants as drug dealers and, thus,"bad people," defendants contend that it was improperly admitted.
Initially, we must determine whether evidence of the prior cocaine transactions was probative of the charged conduct, rather than merely probative of the defendants' character. United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir. 1996).
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident
Thus, for "other crimes" evidence to be admitted, it must be logically relevant, under Rules 404(b) and Rule 402, to any issue other than the defendant's propensity to commit the crime, and its probative value must outweigh its prejudicial effect. United States v. Himelwright, 42 F.3d 777, 781 (3d Cir. 1994). Because trial courts have substantial leeway in making evidentiary rulings, we review a district court's decision to admit 404(b) evidence for abuse of discretion. Id. When, however, a ...