Wisconsin
venue is OK
Contraband
need not actually arrive in venue
By
David Ziemer
david.ziemer@wislawjournal.com
Sept.
24, 2007
|
What
the court held
Case:
U.S. v. Muhammad, No. 05-4717
Issues:
Is venue for a drug trafficking charge proper in Wisconsin,
even though the drugs never arrived in Wisconsin?
Holdings:
Yes.
Where the defendant is charged with attempt to possess in
Wisconsin, rather than possession itself, venue is proper.
|
The
fact that the drugs never arrived in Wisconsin is no bar to a
drug trafficking prosecution in Wisconsin, under a Sept. 14 decision
from the Seventh Circuit.
Bilal
Muhammad and an associate, James Willis, took a bus from Milwaukee
to Arizona. During the trip, Muhammad’s bag was searched.
After arriving in Arizona, he made arrangements for Linda and
Tanya Juarez to fly from Milwaukee to Arizona, under the guise
of helping Linda’s aspirations as a clothing designer.
After
the Juarez sisters arrived, Muhammad rented two cars, and four
persons proceeded to drive to Milwaukee: the Juarez sisters in
the front car, and Muhammad and Willis in the second.
The
Juarez sisters were stopped by police in Texas, and Tanya consented
to a search of the vehicle, which led to the discovery of three
kilograms of cocaine in a suitcase in the trunk.
Muhammad
called his attorney after the Juarez sisters were stopped, and
continued driving to Oklahoma City. From there, Willis took a
bus back to Milwaukee, and Muhammad took a plane.
Charged
in Wisconsin
Muhammad
was charged in the Eastern District of Wisconsin with attempt
to possess and distribute cocaine, and persuading another person
to hinder the communication of information to a law enforcement
officer.
Muhammad
challenged the venue of the case in Wisconsin, but District Court
Judge Rudolph T. Randa denied the challenge. Muhammad also requested
that the jury be instructed on venue, but that request was also
denied.
Muhammad
was convicted, and he appealed, but the Seventh Circuit affirmed
in a decision by Judge Kenneth F. Ripple.
The
court concluded that venue in Wisconsin violated neither the Constitution,
nor Fed. R. Crim. P. 18, which provides that “the prosecution
shall be had in a district in which the offense was committed.”
Key
to its decision was that Muhammad was not charged with possessing
the cocaine in Wisconsin, but with attempting to possess it in
Wisconsin. Once a defendant takes a substantial act to further
the underlying criminal offense, the criminal attempt is completed.
Thus, it did not matter that the cocaine itself never made it
to Wisconsin.
Justification
of Venue
The
court found that the sole effect of Muhammad’s actions would
have been in the Eastern District of Wisconsin had the crime been
completed, observing, “Had it not been for the intervention
of the state trooper, Mr. Muhammad’s plan would have brought
him and his cocaine to Wisconsin, ready for distribution.”
The
court distinguished its holding in U.S. v. Tingle, 183 F.3d 719
(7th Cir. 1999), in which the defendant was charged with distribution
of cocaine, but the government failed to demonstrate that any
activity occurred in Wisconsin. In contrast, in the case at bar,
Muhammad was only charged with attempt.
The
court also concluded that it was not error for the district court
to refuse to submit the issue of venue to the jury.
Where
a judge denies a motion to dismiss for lack of venue, the issue
becomes one for the jury, but only if the defendant raises a genuine
issue of material fact regarding venue.
The
court concluded that Muhammad failed to raise a genuine issue
of fact.
The
only evidence he presented that the cocaine was not headed to
Wisconsin was that his agreement with the car rental company provided
that the car was to be returned in Phoenix, rather than Milwaukee,
and by a date that precluded a round trip between the cities.
However,
the court found this evidence weak, noting that Muhammad had no
problems when he actually returned his vehicle in Oklahoma City,
despite the designation of Phoenix. Given the overwhelming evidence
of guilt, the court concluded that, even if it was error not to
submit the venue question to the jury, the error was harmless.
Seeking
Counsel
Before
concluding, the court addressed whether it was error for the court
to allow the jury to hear that Muhammad contacted an attorney
after the Juarez sisters were stopped by the trooper. Muhammad
did not object at trial, so the court reviewed for plain error.
In
Jenkins v. Anderson, 447 U.S. 231 (1980), the U.S. Supreme Court
held that it does not violate the Fifth Amendment to impeach a
defendant with his silence or invocation of his right to counsel,
but reserved the question whether it could be used as substantive
evidence of guilt.
The
Seventh Circuit has since held that pre-arrest silence may not
be used as substantive evidence of guilt. U.S. ex rel. Savory
v. Lane, 832 F.2d 1011 (7th Cir. 1987).
In
the case at bar, the question was whether pre-arrest consultation
with counsel, like pre-arrest silence, falls within the ambit
of the right against self-incrimination.
However,
the court determined it need not resolve the answer, because even
if admission of the calls was error, it is not plain error, given
the absence of any binding precedent on the issue.
Accordingly,
the court affirmed.
Click here for
Case Analysis.
David
Ziemer can be reached by email.
