The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,
Defendant Cobar filed a motion  to dismiss the case for lack of venue under Article III, Section 2 of the United States Constitution. The government filed an opposition  thereto, and Cobar filed his reply brief . Defendant Luis Angel Gonzales-Largo filed a motion  to join defendant Cobar's motion to dismiss the indictment for lack of venue. On September 26, 2006, the parties participated in oral argument before this Court on the issue of proper venue.
Upon a thorough review of each party's filings, arguments, the applicable law and the entire record herein, this Court has determined that defendant Cobar's motion to dismiss the case for lack of venue shall be GRANTED, and that defendant Gonzales-Largo's motion to dismiss for lack of venue shall be GRANTED.
Defendants Rene Oswald Cobar and Luis Angel Gonzales-Largo are two of three people charged in a one-count indictment that alleges a conspiracy to distribute an illegal drug.*fn1 Count One charges the defendants with conspiracy to distribute five (5) kilograms or more of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, intending or knowing that it would be unlawfully imported into the United States from Guatemala, Nicaragua, and from elsewhere outside of the United States, in violation of Title 21, United States Code, Sections 959 and 960.
The present dispute before this Court concerns the propriety of venue. The law concerning venue is clear. Article III, Section 2 of the U.S. Constitution provides that:
The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State the Trial shall be at such Place or Places as the Congress may by Law have directed.*fn2
The Sixth Amendment to the Constitution supplements the venue protections afforded to defendants by providing that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where the crime shall have been committed. . . ." U.S. Const. amend. VI.*fn3 Put simply, venue exists only in the district where the crime charged was committed. Moreover, in light of the constitutional significance placed on venue, "[t]he government bears the burden of establishing by a preponderance of the evidence that venue is proper with respect to each count charged against the defendant." United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991).
In order to determine where proper venue for trial lies, this Court must assess the locus delicti of the charged offense. See United States v. Rodriguez-Moreno, 526 U.S. 275, 280-81 (1999); United States v. Cabrales, 524 U.S. 1, 6-7 (1998). In analyzing the locus delicti, the Court must determine the conduct constituting the offense, and the location where the alleged criminal conduct was completed. Rodriguez-Moreno, 526 U.S. at 279. The defendant currently stands charged with conspiring to extraterritorially distribute or manufacture controlled substances with the intent or knowledge that these controlled substances would be unlawfully imported into the United States.*fn4 Accordingly, we must now examine the locus delicti of criminal conspiracy.
A. Conduct Constituting the Offense
The crime of conspiracy is "an agreement to commit an unlawful act." United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (quoting Iannelli v. United States, 420 U.S. 770, 777 (1975)). It is "a distinct evil" from the underlying substantive offense, and is punishable in itself, regardless of whether the substantive crime is committed. Salinas v. United States, 522 U.S. 52, 65 (1997). At common law, the crime of conspiracy was indictable upon the formation of the agreement, and no overt act in furtherance of the conspiracy was required. Hyde v. United States, 225 U.S. 347, 359 (1911). Over time, federal statutes began to include as a required element of conspiracy proof of an overt act in furtherance of conspiracy. Id. at 356-57; see also 18 U.S.C. § 371 (general federal conspiracy statute). Recently, however, in enacting the drug conspiracy statutes, Congress returned to the common law understanding of conspiracy by omitting the overt act requirement found in the general conspiracy statute. 21 U.S.C. §§ 846 and 963; see also United States v. Yonn, 702 F.2d 1341, 1348 n.6 (11th Cir. 1983) ("[N]o averment of overt acts in a § 963 charge is required in this circuit."); United States v. Dean, 666 F.2d 174, 178 (5th Cir. 1982) ("The government need not show that either man committed an overt act in furtherance of the conspiracy [under § 963].)"; United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980) (holding that "overt acts in furtherance of [schemes to import or distribute controlled substances] need be neither pleaded nor proven"). As a result, a defendant can be found guilty of conspiracy to unlawfully import a controlled substance s under § 963 upon the formation of the unlawful agreement to import the controlled substance.
The government contends that, for venue purposes, the conspiracy charge under § 963 must be read within the context of the underlying crime that the defendants are charged with conspiring to violate. The defendants have been indicted for conspiring to violate a law that, according to its statutory language, is extraterritorial in nature because it "is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States." 21 U.S.C. § 959(c). Reading the two provisions together, the conspiracy provision must also be extraterritorial because the defendants conspired to violate a law governing extraterritorial conduct. Therefore, the government argues, a defendant can neither violate nor conspire to violate § 959 without the crime occurring outside the United States, and consequently, outside the jurisdiction of any state. Congress designated that proper venue for violation of § 959 lies in the United States District Court for the District of Columbia or in the district where the defendant is first brought. Therefore, the government argues venue is proper before this Court for a trial for a § 963 conspiracy to violate § 959(a).
The government's position is untenable for a number of reasons. First, the government's position improperly conflates the charge of conspiracy with the underlying substantive offense. As the indictment indicates, the defendant stands charged with conspiracy to violate an extraterritorial provision, and not a violation of the extraterritorial provision itself. This is undoubtedly due to the fact that the defendants never consummated the object of their illegal agreement. The indictment indicates that an alleged illegal agreement was entered into by the defendants to distribute and import narcotics into the United States, but admits that the actual distribution and importation of the narcotics never occurred. The commission of these acts of importation and distribution would undoubtedly have served to further the conspiracy and make the defendant eligible for prosecution under § 959. The fact that the government concedes ...