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United States v. Borda

United States District Court, District Circuit

July 2, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTIAN FERNANDO BORDA and ALVARO ALVARAN-VELEZ, Defendants.

MEMORANDUM OPINION

GLADYS KESSLER, UNITED STATES DISTRICT JUDGE

On December 9, 2 010, Defendants Christian Fernando Borda ("Borda") and Alvaro Alvaran-Velez ("Alvaran") were convicted by a jury under the Controlled Substances Import and Export Act, 21 U.S.C. §§ 951 et seq., of conspiring to distribute five kilograms or more of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. See Verdict Form as to Borda [Dkt. No. 207]; Verdict Form as to Alvaran [Dkt. No. 209]; 21 U.S.C. §§ 959, 960, 963.

More than two and a half years later, the case is before the Court on Defendants' Supplemental Motion for Judgment of Acquittal or Alternatively, Motion to Dismiss Indictment for Lack of Venue [Dkt. No. 387]. Upon consideration of the Motion, the Opposition [Dkt. No. 391], the Reply [Dkt. No. 396], the entire record herein, and for the reasons set forth below, Defendants' Motion is denied.

I. Background

On March 16, 2007, Defendants were indicted in the District of Columbia for conspiracy to smuggle five kilograms or more of cocaine into the United States. See 21 U.S.C. §§ 959(a) and 963. In 2008 and 2009, Defendants were arrested in Colombia, where they were residing, and subsequently extradited to the United States, where they appeared in this Court on December 9, 2009.

A jury trial began on November 1, 2 010. The evidence at trial established that Defendants and others arranged for two loads of cocaine to be transported from Colombia to Mexico concealed in commercial shipments of palm oil, and that they discussed transporting a third load, but ultimately never did so. All of Defendants' acts in negotiating and arranging the shipments took place in Colombia and Mexico. The central issue at trial was whether Defendants knew or intended that the cocaine would reach the United States.

The jury returned guilty verdicts on December 9, 2010, after which Defendants moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. The Court denied that Motion in a Memorandum Opinion on March 9, 2011 [Dkt. No. 238]. Defendants then moved for a new trial under Federal Rule of Criminal Procedure 33, which the Court denied in a Memorandum Opinion on April 27, 2011 [Dkt. No. 249]. Defendants next moved to vacate the jury verdict and to dismiss the indictment under the Fifth Amendment's Due Process Clause and Federal Rule of Criminal Procedure 6(e), which the Court denied in a Memorandum Opinion on November 27, 2012 [Dkt. No. 376]. Defendants also moved to dismiss the case or for a new trial pursuant to Brady v. Maryland, 373 U.S. 83 (1963). After post-trial discovery and extensive briefing, the Court denied that Motion on April 22, 2013 [Dkt. No. 378]. The Court then scheduled sentencing.

Thereafter, on May 19, 2013, Defendants filed the instant Supplemental Motion for Judgment of Acquittal or, Alternatively, Motion to Dismiss for Lack of Venue [Dkt. No. 387]. The Court ordered the Government to respond, which the Government did by filing an Opposition [Dkt. No. 391] on June 10, 2013. On June 24, 2013, Defendants filed their Reply [Dkt. No. 396].

II. Standard of Review and General Principles of Venue

The Government's choice of venue is constrained in the first instance by two constitutional provisions and one procedural rule. Article III of the Constitution provides that:

Trial of all Crimes . . . 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.

U.S. Const, art. III, § 2, cl. 3. The Sixth Amendment states that an "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. Rule 18 of the Federal Rules of Criminal Procedure implements these directives and requires a criminal prosecution to take place "in the district in which the offense was committed" except when "a statute or the[] rules permit otherwise." Fed. R. Crim. P. 18.

"[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. Haire, 371 F.3d 833, 837 (D.C. Cir. 2004), vacated on other grounds, 543 U.S. 1109 (2005) (citing United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991)). This does not mean, however, that venue is an element of the offense that must be decided by a jury. "Venue is a jury question only if 'the defendant objects to venue prior to or at the close of the prosecution's case-in-chief, ' 'there is a genuine issue of material fact with regard to proper venue, ' and 'the defendant timely requests a jury instruction.'" United States v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011) (citing Haire, 371 F.3d at 840) .

It is well established that a defendant can waive his venue rights altogether "just by his failure to lodge an objection prior to trial." United States v. Burroughs, 161 F.App'x 13, 14 (D.C. Cir. 2005) (internal quotations marks omitted) (citing Fed. R. Crim. P. 12(b)(3), (e); United States v. Gaviria, 116 F.3d 1498, 1517 n.22 (D.C. Cir. 1997)); see also United States v. Wilson, 26 F.3d 142, 151 (D.C. Cir. 1994) ("It has long been settled in this circuit ...


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