United States v. Gonzalez

Venue is proper in any location where acts or communications take place that further a conspiracy, regardless of the knowledge by the co-conspirators of the locations of their co-conspirators.

A confidential informant (CI), under the direction of DEA agents and located in the Northern District of California, placed two calls to Gonzalez’s cell phone while the defendant was located outside of the Northern District, in order to set up a drug deal to be completed in the Eastern District. “Gonzalez was indicted in the Northern District of California on one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and two counts of use of a telephone to commit a felony drug offense, in violation of 21 U.S.C. § 843(b).” Defendant was found guilty on all three counts and appealed, claiming venue was not proper in the Northern District. Reviewing under a de novo standard, the Court pointed out that “a conspiracy charge is proper where the conspiracy was formed or where any overt act committed in furtherance of the conspiracy occurred.” The CI’s presence in the Northern District was sufficient to establish venue for a conspiracy charge, regardless of the fact that the CI intended to frustrate the conspiracy. It was also sufficient that Gonzalez conducted communications in furtherance of the conspiracy with someone in the Northern District; physical presence of the defendant has never been required in the venue for a conspiracy charge. The Court noted that the use of the phone projects the scheme of the speaker to the location of the listener, if done in furtherance of the conspiracy. “Congress has provided that venue for a continuous crime, such as conspiracy, lies in any district where the ‘offense was begun, continued, or completed.’ 18 U.S.C. § 3237(a).” Section 3237(a) does not require foreseeability to establish venue; thus, Gonzalez was not required to have known or should have known that the CI was in the Northern District.