March 30, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1890
UNITED STATES,
Appellee,
v.
PETER N. GEORGACARAKOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
Seth M. Kalberg, Jr. for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Richard S. Cohen, United States Attorney and Jonathan
Chapman, Assistant United States Attorney were on brief, for
appellee.
March 30, 1993
BOWNES, Senior Circuit Judge. The defendant, Peter BOWNES, Senior Circuit Judge
N. Georgacarakos, appeals his conviction of possession with
intent to distribute and distribution of cocaine on the
grounds that the district court's jury instructions on venue
were erroneous, and that his defense was flawed by the
ineffective assistance of counsel. We decline to consider
the defendant's ineffective assistance claim which was not
raised before the district court. The jury instructions on
venue, to which defendant-appellant now objects, were not
objected to after the charge as required by Fed. R. Crim. P.
30. We find that the instructions did not constitute plain
error and affirm the conviction.
I.
BACKGROUND
During October, 1991, Frank "Tony" Porcaro agreed
to cooperate with the Drug Enforcement Administration ("DEA")
office and the South Portland Police Department in Maine on
supervised undercover drug purchases from drug dealers. In
his role as an undercover informant, Porcaro contacted the
defendant, whom he had known for several months, and asked
the defendant to help him purchase cocaine. Porcaro told the
defendant that he owed money to dangerous people, that he had
resorted to desperate methods to get money for repayment, and
that he had to get cocaine in order to pay them back. After
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several calls from Porcaro, the defendant agreed to help him
buy cocaine. The DEA and South Portland police instructed
and supervised Porcaro in the undercover operation, and
provided Porcaro with all necessary equipment including
substantial amounts of money for the cocaine purchases and a
"body wire" recording device to record his conversations with
the defendant.
The defendant and Porcaro made two trips to
Lawrence, Massachusetts, one on October 25 and the other on
November 15, 1991, to purchase cocaine. On both days, the
defendant called his source in Lawrence before he and Porcaro
began their journey. Porcaro drove borrowed cars on both
trips and the defendant was the only passenger. The
defendant admits that he purchased cocaine with Porcaro's
money and then gave the cocaine to him. He testified at
trial and argues on appeal that he purchased and gave the
cocaine to Porcaro in Massachusetts. Porcaro testified to
the contrary that on both occasions the defendant kept the
cocaine until they reached their destinations in Maine.
Porcaro testified that on October 25, the defendant kept the
cocaine in his pants until they reached Scarborough where he
handed Porcaro the cocaine wrapped in a napkin. As to the
November 15 trip, Porcaro testified that the defendant again
kept the cocaine during the trip back to Maine and that he
never saw the cocaine. Porcaro testified that he drove to a
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prearranged meeting place, a motel parking lot in South
Portland. In the parking lot, Porcaro got out of the car,
and police and DEA agents surrounded the car. Two of the
agents testified that they saw the defendant moving and
leaning forward toward the dashboard before he put his hands
up as ordered. The agents found a package of cocaine in the
glove compartment of the car after the defendant was
arrested.
Venue was the primary focus of the defense.
Defense counsel objected to the district court's proposed
jury instructions on venue before counsels' closing arguments
to the jury and before the court gave the charge to the jury.
When the court gave counsel an opportunity to object to the
instructions after the charge and before the jury retired,
defense counsel raised other issues, but did not object again
to the instructions on venue. The jury found that venue was
proper in Maine, and found the defendant guilty on both
counts. This appeal followed.
II.
ANALYSIS
The defendant raises two issues on appeal: (1)
error in the district court's jury instructions on venue, and
(2) ineffective assistance of counsel due to trial counsel's
failure to pursue the defense of entrapment.
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A. Jury Instructions on Venue
During the charge to the jury, the district court
gave instructions on venue which the defendant claims are
contrary to the law because they allowed the jury to take an
impermissibly broad view of conduct relevant to proving
venue. Proper venue in a criminal prosecution is a
constitutional right:
the Framers wrote into the Constitution that "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed. . ." Article III, 2, cl. 3. As though to underscore the importance of this safeguard, it was reinforced by the provision of the Bill of Rights requiring trial "by an impartial jury of the State and district wherein the crime shall have been committed." Sixth Amendment.
United States v. Johnson, 323 U.S. 273, 275 (1944); see also
Fed. R. Crim. P. 18. If the federal statute defining the
crime charged does not indicate a method for determining the
location of the crime for venue, the location "must be
determined from the nature of the crime alleged and the
location of the act or acts constituting it." United States
v. Anderson, 328 U.S. 699, 703 (1946). Because venue is not
an element of the offense, the government bears the burden of
proving venue by a preponderance of the evidence rather than
by the higher standard, beyond a reasonable doubt. United
States v. Hall, 691 F.2d 48, 50 (1st Cir. 1982).
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The defendant in this case was charged in two
counts with violation of 21 U.S.C. 841(a)(1) and
841(b)(1)(C): Count One charged possession with intent to
distribute and distribution of cocaine on October 25, 1991,
and Count Two charged possession with intent to distribute on
November 15, 1991. The statute does not indicate a method
for determining venue. Continuing crimes, i.e., crimes
committed in more than one district, are governed by 18
U.S.C. 3237(a).1 Distribution and possession with intent
to distribute drugs are continuing crimes. United States v.
Uribe, 890 F.2d 554, 558-59 (1st Cir. 1989); United States v.
Kiser, 948 F.2d 418, 425 (8th Cir. 1991), cert. denied, 112
S. Ct. 1666 (1992). Therefore, venue for the crimes
prosecuted in this case was proper in any district where the
crimes began, continued or were completed.
In order to decide where the crimes occurred, we
must determine what acts by the defendant constituted the
crimes charged. Johnston v. United States, 351 U.S. 215,
220-21 (1956). To determine venue, we examine "the key verbs
1 18 U.S.C. 3237(a) provides in pertinent part:
(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
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in the statute defining the criminal offense" to find the
scope of relevant conduct. United States v. Tedesco, 635
F.2d 902, 905 (1st Cir. 1980), cert. denied, 452 U.S. 962
(1981); see also United States v. Griffin, 814 F.2d 806, 810
(1st Cir. 1987). The key verbs relevant to the crimes
charged in this case are "distribute" and "possess with
intent to distribute." Actions which are merely preparatory
or prior to the crime are not probative in determining venue.
United States v. Beech-nut Nutrition Corp., 871 F.2d 1181,
1190 (2d Cir.), cert. denied sub nom., Lavery v. United
States, 493 U.S. 933 (1989). Therefore, only actions by the
defendant which constitute either distributing or possessing
with intent to distribute cocaine are probative in
determining venue for those offenses. Griffin, 814 F.2d at
810; United States v. Davis, 666 F.2d 195, 200 (5th Cir. Unit
B 1982). Jury instructions on venue must restrict the
jury's focus to the defendant's conduct which constituted the
crimes charged.
The jury instructions which the defendant
challenges were as follows:
Now both counts charge that the crimes occurred in the district of Maine and elsewhere. It is sufficient if the government proves by a preponderance of the evidence, in other words, that it is more likely than not, that any act in
furtherance of the crimes charged
occurred in Maine. Offenses beginning in
one district and completed in another or
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committed in more than one district may be prosecuted in either such district. . . . Let me summarize this for you. If you are convinced beyond a reasonable doubt that the defendant distributed cocaine and possessed cocaine with the intent to distribute it, on a date reasonably near October 25, 1991, and you are convinced that it is more likely than not that the defendant did any act in Maine in
furtherance of this crime, then you must
convict him on Count One. Otherwise, you must acquit him on Count One. If [you] are convinced beyond a reasonable doubt that the defendant possessed cocaine with the intent to distribute it on a date reasonably near November 15, 1991, and you are convinced that it is more likely than not that the defendant did any act in Maine in
convict him on Count Two. Otherwise, you must acquit him on Count Two.
Record at 461, 464 (emphasis added). The emphasized
language, which is challenged by the defendant, appropriately
describes venue for a conspiracy charge or for aiding and
abetting others in commission of a crime. Uribe, 890 F.2d at
558; see also United States v. Lam Kwong-Wah, 924 F.2d 298,
301 (D.C. Cir. 1991) ("It is a well-established rule that 'a
conspiracy prosecution may be brought in any district in
which some overt act in furtherance of the conspiracy was
committed by any of the co-conspirators,'" (citation
omitted)); United States v. Long, 866 F.2d 402, 407 (11th
Cir. 1989) (discussing similarity of proof necessary to
establish venue for conspiracy and aiding and abetting).
Group crimes, such as conspiracy and aiding and abetting, may
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have a broad scope of conduct relevant to venue due to
multiple participants and the participatory nature of the
crimes. In individual crimes, such as distribution and
possession with the intent to distribute cocaine, "actions in
furtherance of the crime" could be interpreted by a jury to
include conduct other than possessing and distributing
cocaine which is merely preparatory or prior to the crimes.
We agree with the defendant, therefore, that the district
court's instructions on venue were overly broad and were
erroneous.
Because the defendant failed to object to the
instructions on venue after the charge to the jury as
required by Fed. R. Crim. P. 30, we review the instructions
under the plain error standard.2 United States v. Arias-
Santana, 964 F.2d 1262, 1268 (1st Cir. 1992); United States
v. Mendoza-Acevedo, 950 F.2d 1, 4-5 (1st Cir. 1991). "Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the
2 Fed. R. Crim. P. 30 provides in pertinent part:
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.
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court." Fed. R. Crim. P. 52(b). To cause reversal of
conviction, plain error must be so egregious as to "undermine
the fundamental fairness of the trial and contribute to a
miscarriage of justice." United States v. Young, 470 U.S. 1,
16 (1985). When reviewing jury instructions for plain error,
we examine the instructions in the context of the entire
charge, and as part of the record of the trial, to determine
whether they undermined the fundamental fairness of the
trial. Id. at 15-16; United States v. Park, 421 U.S. 658,
674 (1974) (challenged jury instructions are to be "viewed as
a whole and in the context of the trial"); United States v.
Weston, 960 F.2d 212, 216 (1st Cir. 1992) ("In assessing
claims of plain error, we consider the instructions as a
whole, taking into account whether the putative errors so
skewed the entire trial that the defendant's conviction
offends due process."). The question is whether the
erroneous instructions allowed the jury to find venue in
Maine in violation of the defendant's constitutional right to
venue in the district where the crimes were committed.
The defendant urges us to reverse his conviction
based upon the rule "'that when a case is submitted to the
jury on alternative theories the unconstitutionality of any
of the theories requires that the conviction be set aside.'"
United States v. Rodriguez, 465 F.2d 5, 10 (2d Cir. 1972)
(quoting Leary v. United States, 395 U.S. 6, 31-32 (1969))
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(footnotes omitted). In Leary, id., the defendant challenged
the constitutionality of a statutory presumption which was
the basis for one of two alternative theories of guilt
presented to the jury. The Supreme Court held that the
statutory presumption was unconstitutional and reversed the
conviction. In Rodriguez, 465 F.2d 5, the issue of venue of
the crime of uttering a forged check was submitted to the
jury on two alternative theories of guilt: aiding and
abetting the crime or that the crime of uttering a forged
check was a "continuing offense" pursuant to 18 U.S.C.
3237. The court held that because the crime of uttering a
forged check was not a continuing offense, one of the
theories was incorrect, and reversed the conviction based on
the Leary rule.
In this case, the jury instructions did not present
two alternative theories of guilt. Rather, the instructions
impermissibly broadened the scope of conduct which the jury
might have considered in determining venue. The Leary rule,
therefore, is inapposite to this case. An analogous rule,
which is more closely related to this case, provides "that a
general verdict must be set aside if the jury was instructed
that it could rely on any of two or more independent grounds,
and one of those grounds is insufficient, because the verdict
may have rested exclusively on the insufficient ground."
Zant v. Stephens, 462 U.S. 862, 881 (1983). An exception to
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the rule exists if uncertainty as to the grounds for the
jury's verdict can be eliminated. United States v. Ochs, 842
F.2d 515, 520 (1st Cir. 1988). Based on a review of the
trial record, there can be no uncertainty that the jury's
verdict on venue was based on sufficient grounds.
There were two versions of events of the trips
presented to the jury through testimony at trial. Porcaro,
the informant, testified that during both trips to
Massachusetts, the defendant kept the package of cocaine with
him until they arrived back in Maine. Based on Porcaro's
testimony, there is no question that the jury could
sustainably have found that the defendant possessed and
distributed the cocaine in Maine during the October 25 trip,
and possessed the cocaine in Maine during the November 15
trip. The defendant testified, however, that during their
first trip to Massachusetts he handed the package of cocaine
to Porcaro while they were still in Lawrence and Porcaro put
the package under his seat. The defendant testified that
during the second trip he handed the package of cocaine to
Porcaro before they left Lawrence, and Porcaro put it into
the glove compartment. The defendant contends that he did
not possess or distribute the cocaine in Maine on either
trip. He argues that if the jury believed him, there was no
proper basis for venue in Maine because the crimes occurred
in Massachusetts.
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The defendant relies on three cases involving
possession with intent to distribute drugs in which the
courts found that venue was improper because the defendants
were prosecuted in districts in which they had neither actual
nor constructive possession of the contraband. In United
States v. Delgado, 914 F.2d 1062, 1064-65 (8th Cir. 1990),
the court found that venue was improper in North Dakota for
prosecution of the defendant for possession with intent to
distribute cocaine because neither the defendant nor the
cocaine ever entered North Dakota. In United States v.
Medina-Ramos, 834 F.2d 874, 877 (10th Cir. 1987), the court
found that venue was improper in New Mexico where the cocaine
travelled without the defendants who were removed from the
train in California because "the locus of the constructive
possession, the locus of a crime committed by constructive
possession, cannot be a place where the defendant has never
been, personally or by a person whose acts are attributable
to him." Id. In United States v. Davis, 666 F.2d at 200, the
court found that venue, for a substantive possession charge,
was improper in Georgia because the defendants never actually
or constructively possessed the drugs while they were in
Georgia. None of these cases are apposite.
The defendant's reasoning ignores his close
connection with the cocaine during both trips back to Maine,
even according to his own version of events. The defendant
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rode back to Maine with the cocaine in the car, in
circumstances which show that he had either actual or joint
constructive possession of the cocaine in Maine. Illegal
possession of drugs "can be actual or constructive, sole or
joint." United States v. Wight, 968 F.2d 1393, 1397 (1st
Cir. 1992); United States v. Vargas, 945 F.2d 426, 428 (1st
Cir. 1991). Although mere association with someone who
possesses drugs is insufficient to show possession,
constructive possession exists if the defendant knows the
drugs are available and has the power and intent to exercise
dominion and control over them. United States v. Garcia, No.
92-1427, slip op. at 6-7 (Feb. 4, 1993, 1st Cir.) (finding
joint constructive possession of a package of cocaine found
in the bedroom closet of two defendants). "The typical
constructive possession case in the criminal law is where the
defendant and the object are in the same jurisdiction, but
the defendant does not have the object in hand and indeed may
try to disclaim ownership or possession." Medina-Ramos, 834
F.2d at 876. Joint possession occurs when both the defendant
and another person share power and intent to exercise
dominion and control over contraband. Wight, 968 F.2d at
1398 (finding joint constructive possession of a weapon where
defendant was a passenger in the van, was in charge of the
drug transaction, and the weapon was accessible to defendant
in the van); United States v. Batista-Polanco, 927 F.2d 14,
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18-19 (1st Cir. 1991) (finding joint constructive possession
of heroin by defendant sitting at a table with others where
heroin was being packaged). Constructive possession may be
proven by direct or circumstantial evidence. United States
v. Martinez, 922 F.2d 914, 923-24 (1st Cir. 1991).
The district court instructed the jury on
constructive and joint possession, without objection.3
During their deliberations, the jury requested a copy of the
indictment and a written clarification of the instructions on
possession, distribution, and intent to distribute. After
3 The law recognizes also different kinds of possession. A person may have actual possession or constructive possession. And possession may be sole or possession may be joint. Neither proof of physical proximity to the cocaine, nor the mere association with someone who does control it is alone enough to establish actual or constructive possession. A person who has direct physical control of something on or around his person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to take control over something later is in constructive possession of it. If one person alone has actual or constructive possession, possession is sole, sole possession. If two or more persons share actual or constructive possession, possession is joint. Joint possession. Whenever I have used the word possession in these instructions, I mean actual as well as constructive, and joint as well as sole possession. Record at 463.
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discussion with counsel, the trial judge sent the jury copies
of the indictment and of the instructions, which he had
previously read to them, on possession, distribution and
intent to distribute and joint and constructive possession.
The jury was thoroughly instructed that possession includes
joint and constructive possession in addition to actual
possession. The defendant does not dispute that he bought
the cocaine for Porcaro and always intended to give it to
him. Intent to distribute, therefore, is not disputed. The
defendant argues that distribution of the cocaine to Porcaro
in Massachusetts ended the crimes there. We disagree. The
crimes continued into Maine because the cocaine remained
accessible to the defendant who had purchased it, who knew
where it was, and who could have retrieved it at any time.
The defendant remained in constructive joint possession of
the cocaine during the trip back to Maine based on his own
testimony. Accepting the defendant's version of events,
constructive possession ended and distribution occurred, on
the first trip, when Porcaro dropped him off in Maine and he
left the cocaine in the car with Porcaro. The defendant was
not charged with distribution on the second trip. Therefore,
even based on the defendant's version of events for both
trips, the defendant's continued joint constructive
possession of the cocaine with Porcaro and his distribution
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to Porcaro in Maine, on the first trip, was sufficient to
establish venue in Maine.
When proof of venue is so clear that no reasonable
juror could have found otherwise, an erroneous jury
instruction on venue is not plain error. See, e.g., United
States v. Martinez, 901 F.2d 374, 376 (4th Cir. 1990)
(holding that failure to instruct on venue was not reversible
error where clear proof of venue existed); see also United
States v. Moeckly, 769 F.2d 453, 461 (8th Cir. 1985), cert.
denied, 476 U.S. 1104 (1986). Although the district court's
instructions on venue included an overly broad description of
conduct relevant for determining venue, the error did not
result in a violation of the defendant's constitutional right
to venue in the district where the crimes were committed. If
the jury believed Porcaro's testimony, the government proved
actual possession and distribution of the cocaine in Maine.
Even if the jury believed the defendant's testimony, that he
delivered the cocaine to Porcaro in Massachusetts, the
evidence at trial established constructive and/or joint
possession of the cocaine in Maine. Based on either version
of events, the jury had sufficient grounds to find proper
venue. We hold that the erroneous instructions did not
result in a miscarriage of justice in this case, and
therefore, did not constitute plain error.
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B. Ineffective Assistance of Counsel
The defendant appeals his conviction on the
additional ground that he lacked effective assistance of
counsel due to his trial counsel's failure to pursue an
entrapment defense. The defendant argues that the facts and
circumstances of the case support an entrapment defense.
During cross-examination of the defendant, the prosecutor
asked whether defense counsel was relying on an entrapment
defense. Defense counsel, when pressed, responded that he
would have to consult with the defendant before he could be
sure. The court then proceeded on the assumption that
entrapment would not be used as a defense unless defense
counsel notified the court otherwise. Defense counsel
apparently did not raise the entrapment defense again. The
issue of ineffective assistance of counsel was not raised
before the trial court.
The general rule is that we will not hear a claim
of ineffective assistance of counsel raised for the first
time on direct appeal. United States v. Roccio, 981 F.2d
587, 590 (1st Cir. 1992); United States v. McGill, 952 F.2d
16, 19 (1st Cir. 1991); United States v. Austin, 948 F.2d
783, 785 (1st Cir. 1991) ("In the vast majority of
ineffective assistance of counsel claims sought to be brought
on direct appeal after completion of a trial on the merits,
no record exists for the appellate court to examine in
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assessing the validity of the claim."). A claim of
ineffective assistance of counsel which involves matters not
fully developed in the trial record, but necessary for
determination of the claim, is not ripe for decision on
direct appeal. United States v. Sutherland, 929 F.2d 765,
774 (1st Cir.), cert. denied sub nom., Fini v. United States,
112 S. Ct. 83 (1991); cf. United States v. Natanel, 938 F.2d
302, 309 (1st Cir. 1991) (finding an exception to the rule
"where the critical facts [were] not genuinely in dispute and
the record [was] sufficiently developed to allow reasoned
consideration of the ineffective assistance of counsel
claim"), cert denied, 112 S. Ct. 986 (1992). A fact-specific
claim of ineffective assistance of counsel is not appropriate
for review on direct appeal. United States v. Hunnewell, 891
F.2d 955, 956 (1st Cir. 1989). Moreover, the trial judge has
a better perspective "to appraise defense counsel's
representation in the district court proceedings." United
States v. Sanchez, 917 F.2d 607, 612-13 (1st Cir. 1990), cert
denied, 111 S. Ct. 1625 (1991).
The Sixth Amendment right to counsel in a criminal
prosecution includes the right to reasonably effective
assistance of counsel. Strickland v. Washington, 466 U.S.
668, 686-87 (1984). To prevail on a claim of ineffective
assistance of counsel, "a criminal defendant must show both
that counsel fell short of the applicable performance
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standard and that prejudice resulted." Natanel, 938 F.2d at
309. When applying the performance test, we examine what
counsel "knew, or should have known, at the time his tactical
choices were made and implemented." Id. To prove the second
part of the test, a defendant "must show not only that
counsel was deficient but also that 'counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.'" Sutherland, 929 F.2d at 774
(quoting Strickland, 466 U.S. at 687).
Defense counsel's failure to pursue the entrapment
defense is not sufficiently developed in the trial record for
us to evaluate effectiveness of representation. We cannot
determine from the record, for example, whether counsel made
a tactical decision not to pursue entrapment, and to focus
the defense on the venue issue instead. See, e.g., United
States v. Tabares, 951 F.2d 405, 409 (1st Cir. 1991).
Because the entrapment defense was not fully developed, and
the government indicated that it would present additional
evidence to counter the defense, we also cannot determine the
likelihood of prejudice resulting from failure to use the
defense of entrapment. Defendant's brief on appeal
acknowledges that factual development of the claim of
ineffective assistance of counsel might be necessary. We
agree, and decline to decide this issue leaving it to be
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addressed, if defendant chooses, through collateral attack
pursuant to 28 U.S.C. 2255.
Affirmed.
Dubitante follows.
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SELYA, Circuit Judge (dubitante). Although concurring SELYA, Circuit Judge (dubitante).
in the court's judgment, I write separately because I have
serious reservations as to whether the district judge's
charge on the issue of venue, taken as a whole, constituted
error at all. Be that as it may, the court, after finding
what it thinks is error, concludes that the perceived error
was neither plain nor prejudicial, see ante at 16-17, and
decides that the defendant's conviction should stand. See
ante at 20. Given that unexceptionable outcome, further
pursuit of my point would be a purely academic exercise
which, on balance, is probably best foregone. After all, as
the Roman maxim has it, si finis bonus est, totum bonum exit.
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