Case o' The Week: Venue, Anew - Hsuing and Venue in Federal Criminal Trials

  “Better late than never.”

  True, if you’re the government, and you’re arguing venue.

United States v. Hsuing, 2015 WL 400550 (9th Cir. Jan. 30, 2015) (Ord. amend.), decision available here.

Players: Decision by Judge McKeown, joined by Chief Judge Thomas and District Judge Kendall. Appeal of convictions from trial before Northern District of California District Judge Susan Illston.

Facts: Foreign companies and foreign-national executives were tried for price-fixing under the Sherman Act, for TFT-LCD technologies (flat panel screens). Id. at *1. (The colorful image to the left is the tech under a microscope).

   The defendants met repeatedly in Taiwan, and there fixed prices to charge US customers. Id. During closing arguments, the defense argued that the government had not proved venue. Id. at *3. In rebuttal, the government addressed venue for the first time, arguing defendants’ negotiations of fixed- priced technologies with HP in Cupertino was sufficient to prove venue. Id. at *3. Defense objections that this misrepresented the evidence were overruled. Id.

Issue(s): “[T]he defendants appeal on the basis of improper venue. Four issues are subsumed in the venue challenge (i) our standard of review (ii) the proper standard for proof at trial (iii) whether the government’s representation in closing arguments constituted prosecutorial misconduct, and (iv) whether the government proved venue.” Id. at *4.

Held: “[W]e review de novo whether venue was proper.” Id. at *4. 
  “It is well established that a preponderance of the evidence is the proper standard of proof for venue.” Id. 
  “The defendants accuse the government of sandbagging by relying on ‘late-breaking theories’ of venue in rebuttal. However, the defense invited a response by raising the venue issue in the first place. A prosecutor may respond in rebuttal to an attack made in the defendant’s closing argument.” Id. “[T]he prosecutor did not commit misconduct by making these statements during closing argument, and the district court properly overruled the defendant’s objection.” Id. 
  “Finally, the evidence referenced by the government was sufficient to establish venue by a preponderance of the evidence.” Id. at *5.

Of Note: Read the opening brief by able appellate counsel – one gets the sense that the government’s venue theory was late and, to be charitable, the proof, thin. 2013 WL 526193 at *64. Some of the govt’s venue theories were first “unfurled in post-trial briefing.” Id. The brief rejection of the venue argument in Hsuing also fails to wrestle with an interesting defense argument for a “reasonable doubt” standard (notably, the states are nearly evenly split on whether venue must be proven beyond a reasonable doubt, id. at *81 & n.15).

How to Use: An odd beast, venue. Proof of venue is the government’s burden, but as noted above, need only be shown by a preponderance. Id. at *4. Failure to prove venue can lead to a Rule 29 victory, but the district court can find venue as a matter of law (even when the jury did not find venue proper!). Id. at *4 (citing United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012)). Some impressive defense talent slugged away at venue in Hsiung; it is a disappointing decision, but the appellate briefing is well worth a read when mulling a venue attack.

                                               

For Further Reading: Practice tip. If these are the facial expressions of your panel during a Ninth Circuit argument, things are not going well.

   This screen shot is from the argument in Johnny Baca v. Derral Adams. If you have not yet watched the video of this remarkable Ninth habeas argument, do so now - it is available here.  

   In Baca, outraged Judges Kozinski, W. Fletcher, and Wardlaw wonder why California judges were not cracking down on prosecutorial misconduct. See L.A. Times article here.  

   By the end of the argument, Judge Kozinzki – encourages – the Deputy AG to make AG Harris aware of the prosecutorial misconduct in the case within 48 hours. Id.; video at 30:11. The AG’s office quickly folded its tent: Mr. Baca will get a new trial. See Prosecutorial Accountability blog article, here. 

   Recall that in 2013, (then) Chief Judge Kozinski warned, "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." See CJ Kozinski's 2013 dissent in Olsen, available here; Huff post here; see also recent McDavid Brady / Giglio debacle in the ED Cal. 

    Prescient.

Image of TFT-LCD technology from "Dell axim LCD under microscope" by Deglr6328, Gabelstaplerfahrer - Transferred from en.wikipedia to Commons.. Licensed under CC BY-SA 3.0 via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Dell_axim_LCD_under_microscope.jpg#mediaviewer/File:Dell_axim_LCD_under_microscope.jpg

Image of (skeptical) Judges Wardlaw, Reinhardt, and W. Fletcher, in Baca v. Adams, from https://www.youtube.com/watch?v=2sCUrhgXjH4

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth a Tough Venue Venue - Lukashov, Jury Verdicts, and Venue

Professor Glanville Williams

“It used to be said that hard cases make bad law - a proposition that our less pedantic age regards as doubtful. What is certain is that cases in which the moral indignation of the judge is aroused frequently make bad law.” 

  Glanville Williams, The Sanctity of Life and the Criminal Law, 105 (1957).

  Professor Williams knew of what he spoke. United States v. Lukashov, 2012 WL 4075751 (9th Cir. Sept. 18, 2012), decision available here.

Players: Decision by Judge Gould, joined by Judges Schroeder and Alarcón.

Facts: Lukashov was a trucker. Id. at 1. At his girlfriend’s request, he took her 8-year old daughter with him on a trip from Oregon to various states, and back. Id. Lukashov sexually abused the girl during the trip. Id. He was charged with aggravated sexual abuse, travel with intent to engage in illicit sexual, and transportation with intent to engage in criminal sexual. Id. at *2. 

Over defense objection, the district court gave a venue instruction with all of the government’s venue theories. Id. The jury found Lukashov guilty of the agg sex abuse count, not guilty on the “travel” count, and could not reach a verdict on the “transportation” count. In a special verdict the jury explained that the government had not proved that the offense began and ended in Oregon. Id. at *3. 

The district court rejected defense post-trial challenges to venue, finding as a matter of law that venue had been established. Id. at *5. 

Lukashov was sentenced to 30 years. Id.

Issue(s): “[T]the unusual circumstances of this case, where the district court first gave an instruction on venue and then, after the jury's determination of guilt beyond a reasonable doubt in substance, decided the venue question of when the crime was completed as a matter of law, require us to take a fresh look at the governing principles. We have found no prior precedent holding that the evidence in a case permitted the trial court, as the district court did here, to take the venue issue from the jury and determine it as a matter of law.” Id. at *10.

Held: “[W]e formulate the following rule to be applied: Where a rational jury could not fail to conclude that a preponderance of the evidence establishes venue, then a court is justified in determining venue as a matter of law.” Id. 

“The district court correctly perceived that once the jury found beyond a reasonable doubt that Lukashov had sexually abused T.F. on the trip to New York and back to Portland, the government had ‘necessarily’ proved venue by a preponderance of the evidence because the offense continued into and was completed in Oregon as a matter of law. No rational jury could have failed to so conclude. We hold that venue was proper under the first paragraph of § 3237(a) . . . .” Id. at *12.

Of Note: Stand back a bit from the details of this case, and you’ll find a troubling new Ninth rule. It is undisputed that the jury must decide venue by a preponderance of evidence. Here, the jury made a special finding that venue in Oregon was not proved. Thus, the venue question wasn’t just taken from the jury by the Ninth – it was decided despite the jury. 

The Ninth’s new rule – converting this issue to a question of law for the judge – seems directly at odds with the post-Apprendi emphasis on the ascendant power of the jury. As described below, this rule should be treated as a very limited holding. (Read the oddly-detailed description of the sexual abuse at the outset of the case, and it also fair to surmise that grim facts are coloring the venue analysis).

How to Use: Lukashov does not stand for the broad proposition that criminal venue is a question of law for the judge. Instead, the case is properly read as a very limited holding on highly unusual facts. Closely read, Lukashov allows a judge to deny a post-verdict challenge when bungled jury instructions produce a venue verdict inconsistent with facts necessarily proved for the substantive offenses. We respectfully view Lukashov as already treading thin constitutional ice – expand its venue holding at all, and it crashes through.

                                               

For Further Reading: For a useful overview of the history and law of federal criminal venue, see a description written for Congress: Charles Doyle, Venue: A Legal Analysis of Where a Crime May Be Tried, available here. 

Image of Professor Glanville Williams from http://elsareview.org/wp-content/uploads/2011/11/glanville-williams.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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



  
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Case o' The Week: Ninth Rejects Gov't's "Attempt" Attempt - Kuok and 18 USC Section 2

This holding ain't easy, but it's good, and well-worth the mulling it takes to understand:

It is a crime to cause someone to attempt to unlawfully export restricted military gear -- but it is not a crime to attempt to cause someone to do so.  United States v. Kuok, __ F.3d __, 2012 WL 118571 (9th Cir. Jan. 17, 2012), decision available here.


Players: Decision by Judge Bybee (above right), big win by San Diego Ass’t Federal Defender Todd Burns.

Facts: Kuok, a citizen of Macau, attempted to cause undercover ICE agents to unlawfully export restricted military gear. Id. at *1.They didn’t, of course: instead they arrested Kuok as he hit the Atlanta airport on his way to Panama to complete the deal. Id. at *2. He was charged in San Diego (more on that below) with attempting to export restricted military gear without the required license: a violation of the “Armed Export Control Act” or “AECA.” Id. at *1. That statute does not have an “attempt” provision. Id. at *7. Kuok was convicted at trial. 

Issue(s): “Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.” Id. at *7. “In response, the government points to 18 USC § 2(b), which states: ‘Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.’” Id. at *7.
                       
Held: “[T]he government’s case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the [restricted material] without a license.” Id. at *7 (emphases in original). “The government’s argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.” Id. “We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok’s conviction on count three.” Id. at *9.

Of Note: While this is a nice little win on an obscure and rarely-used statute, it is an important victory on a much bigger principle. The government’s argument in Kuok was dangerous: it would have created criminal liability if you attempted to cause a federal agent to do something. Id. at *7. The theory would have done so by radically expanding an already expansive statute: 18 USC § 2, the general federal “principal / aider & abettor” provision. Put differently, the government wanted to make it a crime for an aider and abettor to attempt to cause an offense – even if that offense was impossible (like getting federal agents to export restricted gear) and even if that offense was never completed. Judge Bybee doesn’t buy it, and explains why in a thoughtful and extended discussion. Kuok will be an key opinion for both “principal” and “attempt” law in the circuit.

How to Use: Why San Diego? Just because the ICE agents decided to cash Kuok’s money order there. Id. at *4. This smacks of “manufactured venue” – agents cherry-picking the district by manipulating the facts of the offense. Judge Bybee doesn’t bite, and because the Court doesn’t find the venue-manufacture “extreme” in this case Kuok’s venue challenge fails. Id. Critically, however, the Court declines to“decide the issue today” of whether “manufactured venue” exists as a defense in the Circuit. Id. If your case involves venue-manipulation, take a close look at Kuok’s venue discussion, and specifically the distinction between manufacture of jurisdiction and manufacture of venue. Id.
  
For Further Reading: How could Kuok be any better? By giving us a terrific defense of the duress defense – with a reversal for failure to give duress instructions. Id. at *13. Kuok is now one of the important, post-Dixon decisions in the Ninth on the right to a duress instruction.  For a recent discussion of the federal duress defense – and its kissing cousin, “necessity,” – see Monu Bedi, Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role, available here.


Image of the Honorable Judge Jay Bybee from http://oneutah.org/wp-content/uploads/2009/04/bybee.jpg


Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.org


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