Case o' The Week: Venue on the Menu - Gonzalez and Manufactured Venue
A snitch makes two calls from NorCal, to a defendant outside of our district. No facts show the defendant knew the snitch was in the Northern District. The calls ultimately produce a large drug sale, in distant Modesto (the Eastern District of California). The defendant never steps foot in the Northern District of California, and has no ties here other than the snitch’s calls. Where does venue lie?
Welcome to San Francisco. United States v. Gonzalez, 2011 WL 2402057 (9th Cir. June 27, 2012), decision available here.
Players: Decision by Judge Tallman, joined by Judges Gould and Bea. Hard-fought case by NorCal defense attorney Erick Guzman. Appeal from decision of District Judge William H. Alsup.
Facts: A snitch in the Northern District of California called Gonzalez twice to negotiate a drug deal. Id. at *1. During both calls Gonzalez was outside of the district. Id. No facts before the Ninth showed that Gonzalez knew the snitch was in the Northern District when the calls were made. Id.
A large cocaine deal followed, in the Eastern District of California. Id.
Based on the snitch’s two calls, Gonzalez was indicted in the Northern District. He moved to dismiss the indictment based on improper venue. Id. at *1. The motion was denied, a stipulated facts bench trial followed, Gonzalez took the venue challenge up. Id.
Issue(s): “On appeal, [Gonzalez] claims that the district court erred in holding that venue on the drug-conspiracy offense was proper in the Northern District of California.” Id. at *1.
Held: “The CI’s presence in the Northern District of California during the telephone calls with Gonzalez sufficed to establish venue there on the conspiracy charge.” Id. at *2. “It [does not] make any difference that Gonzalez never set foot in the Northern District of California and did not initiate the calls himself. It was sufficient that, in furtherance of the conspiracy, Gonzalez conducted communications with someone located in the Northern District of California.” Id. at *2. “[I]t does not matter whether Gonzalez knew or should have known that the CI was located in the Northern District of California during the calls.” Id. at *3. “Gonzalez effectively propelled the drug-selling conspiracy into the Northern District of California by negotiating the terms of a substantial drug transaction on a telephone call with a CI who was located in that district. Venue on the conspiracy charge was therefore proper in the Northern District of California.” Id. at *4.
Of Note: Defender Jon Sands has worried that the broad venue holding of Gonzalez has worrisome ramifications for internet crimes. He’s right. Consider eager FBI Agent Robin Andrews, who generated a series of child porn cases by surfing on her Tucson computer. See blog here.
Prepare to defend cases with no ties to your district, for distant clients who made the poor choice of using a computer (or smart phone!) to further a crime.
How to Use: The government, Gonzalez (persuasively) argued, manufactured venue in the Northern District by using a CI here to make the calls. Id. at *3 & n.6. For the second time this year the Ninth dodges this issue – conceding that manufactured venue may be a defense, but finding that there were no ‘extreme’ law enforcement tactics used to manufacture venue here. Id.; see also Kuok blog here.
Keep slugging away at the “manufactured venue” argument – it remains a possible challenge for a prosecutorial gambit that seems both tremendously unfair and ripe for abuse. The third time “manufactured venue” hits the Ninth this year may be the charm.
For Further Reading: Everyone agrees -- it is outrageous and offensive to manufacture venue, to drag a defendant into a distant district where there are no roots or ties, and to force the defense to fight serious federal allegations in a completely foreign district.
At least, all agree that manufactured venue is outrageous when the defendant is a large corporation, when the plaintiff is a patent troll, and when the venue is the Eastern District of Texas. See patent troll article here.
There, are, of course, distinctions between Gonzalez and a patent troll case. San Francisco is more pleasant than Tyler Texas, as a venue into which to be dragged.
"Welcome to San Francisco" image from http://masterbrands.us/category/adventure/
"Patent Troll" image from http://www.extremetech.com/wp-content/uploads/2011/12/patent_troll.jpg
Steven Kalar, Senior Litigator, Northern District of California Website at www.ndcalfpd.org