The opinion of the court was delivered by: GESELL
The Government has introduced substantial evidence in this case from which a reasonable jury could -- and, in the Government's view, should find that Oliver North accepted or agreed to receive the gratuity at issue in Count Ten in Washington, D.C. This finding would be solidly based on direct evidence of events that undisputedly took place in the District of Columbia, as well as reasonable and logical inferences that can be drawn from those events. Because the Government need prove venue only by a preponderance of the evidence, not beyond a reasonable doubt, and because the evidence must be viewed in the light most favorable to the Government, defendant's motion for a judgment of acquittal should be denied.
When viewed in the light most favorable to the Government, the evidence in this case is more than adequate to prove that the defendant accepted or agreed to receive the security fence in Washington, D.C. The evidence shows that, by May, 1986, defendant North had spent the prior 18 months or more in his secret effort "to keep the Contras together body and soul," tr. 2/23/89 at 2070 (Calero); tr. 3/1/89 at 2755 (Owen); tr. 3/13/89 at 4098, 4202 (McFarlane). Although he accomplished this goal in a number of different ways, a key part of North's project was to direct the opening up of a Southern front in Nicaragua with the assistance of Richard Secord and his organization acting under North's direction, tr. 3/2/89 at 2895, 2907-10, 2985-86 (Quintero) ; tr. 3/6/89 at 3151, 3168, 3179 (Gadd), 3274 (Dutton); tr. 3/13/89 at 4167, 4184 (McFarlane). In 1986, North expanded the operation by enlisting Secord to assist with the Iran initiative.
The North-Secord relationship, which is the crux of the charge in Count Ten, thus had its locus in North's position as NSC staff member in Washington, D.C. It was through this position that North directed both Contra-related and Iran-related business to Secord, and North's continued employment at the NSC was essential to the continuation of Secord's involvement in these projects. Not surprisingly, when the specific events at issue in Count Ten began, they centered around the location that was at the core of the North-Secord relationship -- North's office at the OEOB in Washington, D.C.
In late April, 1986, Secord told Glenn Robinette, a security consultant whose office is in Washington, D.C., tr. 3/21/89 at 5073, that North and his family had been the object of threats, tr. 3/21/89 at 5074. He solicited Robinette's assistance to "give some support" to North in this connection. Tr. 3/21/89 at 5076. On April 30, 1986, Robinette went to the North household, met Mrs. North, and walked through the North home to determine what "could be used" to provide the family with increased security, tr. 3/21/89 at 5076-77. Robinette then "contacted several security equipment suppliers" to determine what equipment was available and how much it would cost, tr. 3/21/89 at 5077. Although there is no direct testimony that North knew about Robinette's visit, a jury could reasonably find -- especially in light of North's professed concern about the security of his household -- that North knew of Robinette's intended visit and approved it in advance.
On May 5, 1986, North, Secord, and Robinette met in North's office at the OEOB in Washington, D.C. Tr. 3/21/89 at 5078. Robinette at this time had completed his "preliminary review" and "was prepared to discuss what [Robinette] thought should be done" with respect to a security system, tr. 3/21/89 at 5078. Robinette told North that he wanted to install a security system to "frighten away or scare any intruders or people coming to the home," tr. 3/21/89 at 5081. At the end of the meeting, North "seemed to accept what [Robinette] told him as a preliminary plan, equipment and plans and procedures," tr. 3/21/89 at 5081 (emphasis added). North said "something to [the] effect" of "go ahead and keep working on it," tr. 3/22/89 at 5189. Robinette accordingly continued his work on the system, and was recompensed for his time by Secord. On May 10, there was another meeting at which more specific plans were discussed, and the security system -- paid for entirely by Secord -- was installed the following month.
I. THE DEFENDANT MUST SATISFY A VERY RIGOROUS STANDARD TO OBTAIN A JUDGMENT OF ACQUITTAL ON VENUE GROUNDS.
As the terms of Rule 29 itself make clear, the ground of a motion for judgment of acquittal must be that the evidence is "insufficient to sustain a conviction." Thus, before removing a case from the jury, a court must "view the evidence in the light most favorable to the Government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." United States v. Reese, 183 U.S. App. D.C. 1, 561 F.2d 894, 898 (D.C. Cir. 1977); see United States v. Singleton, 226 U.S. App. D.C. 422, 702 F.2d 1159, 1163 (D.C. Cir. 1983); Curley v. United States, 81 App. D.C. 389, 160 F.2d 229, 232 (D.C. Cir.), cert. denied, 331 U.S. 837 (1947).
Because the evidence at this stage must be viewed in the light most favorable to the Government, the Rule 29 standard is difficult for a defendant to meet, even when his motion alleges failure of proof with respect to an element that must be proved beyond a reasonable doubt. It is substantially more difficult -- and the burden on the Government substantially lighter -- where the motion is based on a challenge to the Government's proof of venue. Where venue is in issue, the Government need only show by a preponderance of the evidence that venue is properly laid in the district of trial, and the proof may be direct or circumstantial. United States v. Taylor, 828 F.2d 630, 633 (10th Cir. 1987) (citing cases); United States v. Griley, 814 F.2d 967, 973 (4th Cir. 1987); United States v. Davis, 666 F.2d 195, 199 (5th Cir. 1982); United States v. Rivamonte, 666 F.2d 515 (11th Cir. 1982); United States v. Potamitis, 739 F.2d 784, 791 (2d Cir.), cert. denied, 469 U.S. 918, 83 L. Ed. 2d 232, 105 S. Ct. 297 (1984); United States v. Jones, 174 F.2d 746, 748-49 (7th Cir. 1949). Thus, the "standard of review . . . is whether, viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by a preponderance of direct or circumstantial evidence that the crimes charged occurred within the district." United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985).
One further legal point should be kept in mind in evaluating defendant's motion. Venue may be proper in more than one district for any given crime. See United States v. DeLoach, 210 App. D.C. 48, 654 F.2d 763, 765-67 (D.C. Cir. 1980), cert. denied, 450 U.S. 933 (1981); United States v. Reed, 773 F.2d 477, 480 (2d Cir. 1985).
Thus, defendant's arguments that North accepted or agreed to receive the gratuity at issue at the May 10 meeting in Virginia in no way refute the Government's contention that he did so at the May 5 meeting in Washington. An official can agree to receive a single gratuity on more than one occasion, just as parties to a contract can agree on the broad outlines of a contract at one time and then later agree on the details of each party's performance and the continued need for the contractual relationship. Even if defendant had undoubtedly and irrefutably established that North agreed to receive the security fence at a later meeting in Virginia, such a conclusion is in no way inconsistent with North's prior agreement, albeit in more general terms, to receive the system at the May 5 meeting in Washington.
II. THE GOVERNMENT HAS MET ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT VENUE IS PROPERLY LAID IN THIS DISTRICT WITH RESPECT TO COUNT TEN.
Defendant's motion for judgment of acquittal is misplaced because there is direct as well as circumstantial evidence of venue in Washington, D.C. The indictment charges that North did "accept, receive and agree to receive" a thing of value in Washington, D.C. It is undisputed that Robinette, North, and Secord met on May 5 in North's office. Robinette told North at that meeting that Robinette wanted to install at North's home a security system having certain functions. Robinette directly testified -- in his own words and not in response to a leading question -- that, at the conclusion of that meeting, North "seemed to accept" what Robinette told him. Tr. 3/21/89 at 5081 (emphasis added). This is direct evidence, given in his own words by a participant in the meeting, that North committed the offense charged -- he accepted the offer of a security system -- at his office in Washington, D.C. on May 5, 1986. Even without more, it is ample evidence to overcome a motion for acquittal on venue grounds.
Yet there is more. There is no dispute that Robinette had visited North's house and had put substantial time into planning for the security system prior to the May 5 meeting and that he received payment for this time from Secord. Tr. 3/22/89 at 5189. Robinette testified that North ...