United States v. Alejandro Gonzalez
683 F.3d 1221
9th Cir.2012Background
- Gonzalez was charged in the Northern District of California with conspiracy to possess with intent to distribute cocaine and two counts of using a telephone to commit a drug offense.
- A government informant (CI) in the Northern District made at least two calls to Gonzalez, who was located outside the district.
- The CI and Gonzalez negotiated a five-kilogram cocaine deal via those calls, with delivery to occur in the Eastern District of California (Modesto).
- Gonzalez met the CI and an undercover agent in Modesto to deliver the cocaine and was arrested afterward.
- The district court held venue proper in the Northern District of California for the conspiracy charge; Gonzalez challenged venue on appeal.
- The court addresses whether venue for a continuing conspiracy offense may lie where communications and overt acts occur, even if the conspirator is physically outside the district.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue for the conspiracy count lies in the district where overt acts occurred | Gonzalez argues venue should be restricted to his physical location. | Gonzalez contends the district where acts occurred is improper for conspiracy. | Venue proper where overt acts occurred; district where CI in ND Cal coordinated acts. |
| Whether a conspirator’s communications via a district-based call suffices for venue | Gonzalez argues venue depends on his own acts in district. | Gonzalez argues communications from the CI cannot establish venue for him. | A conspirator’s acts via district-based calls can establish venue. |
| Whether it matters that the CI was planted and the defendant did not foresee the district location | Gonzalez asserts foreseeability should govern venue. | Gonzalez argues foreseeability is required for manufactured venue. | Foreseeability not required;venue may be based on acts in or through a district. |
Key Cases Cited
- United States v. Corona, 34 F.3d 876 (9th Cir. 1994) (venue for conspiracy proper where initial agreement or overt acts occurred)
- United States v. Angotti, 105 F.3d 539 (9th Cir. 1997) (venue established by coconspirator’s overt act in district of venue)
- United States v. Rommy, 506 F.3d 108 (2d Cir. 2007) (telephone calls can propel scheme beyond defendant’s location for venue)
- United States v. Cordero, 668 F.2d 32 (1st Cir. 1981) (venue proper based on conspiratorial acts outside district if connected to the conspiracy)
- United States v. Jackson, 167 F.3d 1280 (9th Cir. 1999) (overt acts not required for § 846 conspiracy, but venue can rely on overt acts in furtherance)
- United States v. Shabani, 513 U.S. 10 (1994) (section 846 conspiracy venue concepts cited in context)
- United States v. Svoboda, 347 F.3d 471 (2d Cir. 2003) (discusses venue principles for conspiracy and foreseeability considerations)
- United States v. Kuok, 671 F.3d 931 (9th Cir. 2012) (foreseeability and manufactured venue considerations discussed)