United States v. Borda
952 F. Supp. 2d 43
D.D.C.2013Background
- Defendants Christian Fernando Borda and Alvaro Alvaran-Velez were indicted for conspiring to distribute ≥5 kg of cocaine with intent/knowledge it would be unlawfully imported to the U.S.; convicted by a jury on December 9, 2010 under 21 U.S.C. §§ 959, 960, 963.
- Negotiations and arrangements for two cocaine shipments occurred in Colombia and Mexico; some of the cocaine later reached U.S. states (e.g., New York, Texas) via co-conspirators.
- Defendants were extradited from Colombia, tried in the District of Columbia pursuant to 21 U.S.C. § 959(c), and unsuccessfully moved for acquittal/new trial and other relief at multiple stages.
- Over two years after conviction, Defendants filed a Supplemental Motion for Judgment of Acquittal or, alternatively, to dismiss the indictment for lack of venue, arguing (1) constitutional right to be tried where cocaine arrived (NY/TX) and (2) that § 959(c) did not supply venue for a § 963 conspiracy charge.
- The Government opposed; the Court denied the supplemental motion, finding Defendants waived their statutory venue objection and that the Constitution did not mandate trial in NY or TX.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper statutory venue for conspiracy charged under § 963 | Venue in D.C. is proper under 21 U.S.C. § 959(c) | § 959(c) applies only to direct violations of § 959; conspiracy under § 963 should follow § 3238 or other venue rules | Defendants waived pretrial agreement that § 959(c) applied; court enforces waiver and rejects belated statutory-venue challenge |
| Constitutional right to be tried in states where contraband arrived | Government: Article III/ Sixth Amendment permit trial in districts Congress designates for extraterritorial crimes (e.g., § 959(c) including D.C.) | Defendants: Due process / Sixth Amendment required trial in NY or TX because cocaine reached those states | Court: No constitutional requirement to try defendants in NY/TX; offenses occurred outside any State and Congress may designate venue; multiple districts may be proper, so D.C. venue is constitutional |
| Timeliness / waiver of venue objections | Government: Defendants waived venue objections by agreeing pretrial that § 959(c) applied and by failing to object during trial | Defendants: New evidence at trial and post-trial revealed connections to NY/TX, so they lacked earlier basis to object | Court: Waiver applies; defendants affirmatively agreed to § 959(c) pretrial and waited years after conviction to object; absent good cause, objection is untimely |
| Multi-district venue permissibility for extraterritorial conspiracies | Government: Venue may be proper in any district where Congress or statute permits (and where co-conspirator acts occur) | Defendants: Even if multiple districts possible, they insisted D.C. was improper for their conspiracy charge | Court: Venue can be proper in more than one district; presence of overt acts in other districts does not negate Congress’s statutory designation allowing trial in D.C. |
Key Cases Cited
- United States v. Haire, 371 F.3d 833 (D.C. Cir.) (government bears preponderance burden to establish proper venue)
- Lam Kwong-Wah v. United States, 924 F.2d 298 (D.C. Cir.) (venue may be proper in more than one district)
- United States v. Nwoye, 663 F.3d 460 (D.C. Cir.) (venue is a jury question only under specified conditions and timely objection)
- United States v. Mejia, 448 F.3d 436 (D.C. Cir.) (overt act is not an element of conspiracy under § 963)
- Jimenez Recio v. United States, 537 U.S. 270 (U.S.) (conspiracy defined as agreement to commit unlawful act)
- Cook v. United States, 138 U.S. 157 (U.S. 1891) (Congress may designate venue for crimes committed outside a state)