United States v. Richard Dean Miller

America, STATES UNITED

Plaintiff-Appellee, MILLER, Defendant-

Richard Dean

Appellant,

No. 94-8079. Appeals, Court of

Tenth Circuit.

April brief), Attorney, him on the Cas- WY,

per, Plaintiff-Appellee. for SEYMOUR, Judge, Before Chief BARRETT, KERN,* Judge, Circuit Judge. District SEYMOUR, Judge. Chief in Richard Dean Miller was indicted Wyoming, District of tried before possess convicted of metham- phetamine with intent to distribute viola- appeal, §§ tion of U.S.C. 846. On Mr. Miller asserts as error the trial court’s failure to instruct the on the element of below, venue.1 For the reasons set out reverse.

I. The indictment Mr. Miller with participation drug conspira- distribution cy Wyoming “within the District of and else- Rec., I where.” vol. at 1. Mr. Miller lived trial, Montana. At no evidence was offered that Mr. had ever traveled to or com- in Wyoming mitted overt acts in furtherance Instead, conspiracy. the evidence acquired showed that Mr. Miller metham- phetamine conspirators from other in Mon- alleged Wyo- tana. The overt acts ming Davis, alleged were acts Mike eoeonspirator pled guilty. who had Mr. Davis, Cody, Wyoming, who resided near testified that on several occasions he traveled purchase quantities to Montana to ounce methamphetamine from Mr. Miller. Mr. telephone Davis also testified that he made arrange Mr. pur- calls to Miller to these occasion, chases. each On Mr. Davis re- Wyoming turned to and resold the metham- phetamine jurisdiction. in that presentation government’s After WY, Pretty, Cheyenne, Ronald G. for De- due, acquittal Mr. Miller moved for fendant-Appellant. part, to lack of venue. The trial court denied Crank, motion, finding Patrick J. Assistant the evidence of venue (David Attorney Freudenthal, go jury. D. sufficient to In the * Kern, Terry Judge, tencing improperly quanti- The Honorable C. Chief Unit- the court assessed the ed States District Court Northern District ty drugs determining relevant conduct. Be- Oklahoma, sitting by designation. issue, cause we hold for Mr. Miller on the venue impermis- 1. Mr Miller also asserts that the court ap- we do not reach the other raised issues sibly considered his off-the-record statements in peal. confession, admitting prior his and that at sen- cases, therefore, merely conference, are not matters of Mr. Miller’s counsel instruction legal procedure. They deep raise is- formal failure to instruct objected to the public policy____” Id. at sues of element of venue. specifically on the objection. Mr. Miller’s at 250-51. denied trial court sought to include each also counsel fact,” question Venue is “a United of the elements on the substantive struction (10th Rinke, 581, 778 F.2d 584 States jury must an instruction that the States, v. United Wilkett Wyo- conspiracy in “the district of find (10th 1007, Cir.1981)), 655 F.2d 1011 which Ree., request X 80. This was ming.” vol. at ordinarily by jury.2 must be decided con- jury instructions did denied. The also Record, 1363, 873 F.2d 1370 United States v. instructed that “You are tain the statement: (10th Cir.1989); Winship, United States v. any dis- conspiracy may prosecuted be (5th 1116, Cir.1984); 724 F.2d 1124 United continued, began, trict where the (8th Cloud, v. Black 590 F.2d 272 Rec., X at conspiracy ended.” vol. or the Cir.1979); States, Green United However, jury that the was not told (5th Cir.1962); 856 venue, prove nor was government must (2d Cir.1951).3 Gillette, F.2d finding issue. jury required make a on this commentator has described the division One jury judge respect of labor between and II. properly to venue: venue has been ‘Whether technicality. The mere Venue is not a proved question is a of fact for the but explicit right proper venue has defendant’s properly must have been instructed III, § cl. roots Article constitutional finding. to make this there has Whether “requires that the trial of crime be which justify finding sufficient been evidence in which the crime held the state question on venue is a of law for the court.” Amendment, committed,” and in the Sixth 2 Charles Alan Wright, Federal Practice by guarantees trial “a of the state which 1982) (2d § at 225 ed. and Procedure the crime was commit- and district which (footnotes omitted). Medina-Ramos, 834 ted.” United States (10th Cir.1987). right Although venue is a of consti These re- F.2d dimension, has character in Fed. tutional been quirements are codified P. R.Crim. crime,” every per- as “an element of Win “[ejxcept as otherwise ized which states rules, ship, this court and others by by pros- mitted statute or these differently consistently venue have treated had in a district which ecution shall be other, elements of Supreme from “substantive” was committed.” The offense Wilkett, See, e.g., that failure to treat offense. pointed has out Court (dismissal venue, un for want of only may impose at 1011-12 seriously not rights venue accused, a failure to an essential element hardship prove but like unfairness and on double charged, does not raise encourage forum-shopping fed- the offense might also barrier). Johnson, held that venue jeopardy We have prosecutors. States v. eral United proved a reasonable L.Ed. need be not. (1944). criminal cases is an in federal “Questions of venue in criminal doubt. “Venue evidence, Rinke, sufficiency id. of the resolved was States v. 778 F.2d 581 In United Cir.1985), the case was tried to the court. The at 1371. place judge factfinder and sat in was the the other issues. In affirm- on as on recently Supreme has confirmed 3. The Court court, ing ruling we stated that of the right that the to a criminal includes sufficiency of review for standard every element of the to have a decide whether, “making all reasonable in- evidence is Gaudin, - charged. States v. crime See United credibility favor of the choices in ferences -, -, proved fact," government has finder of in Gau- the Court by preponderance of the evidence. 778 F.2d at to address the din did not have occasion added). Similarly, (emphasis in United like v element treatment of a nonsubstantive Cir.1989), Record, F.2d 1363 States v. -- n. 1. S.Ct. at 2313 enue Id. at n. apparently agreed parties to submit the issue only question judge, to be and the of venue Record, 1370; prosecution’s case which must error. 873 F.2d at see also element elements, by proved, Grammatikos, unlike the other United States v. Record, preponderance (2d Cir.1980). of the evidence.” 873 1013, 1022 must deter- We 1366; Winship, F.2d at accord 724 F.2d at mine whether the district court failed after applied also a more 1124. We have relaxed request by Mr. Miller to submit the issue of rights waiver of venue standard and, so, venue to the whether Mr. finding waivers of than for other constitution- Miller’s conviction must be reversed. rights in A al criminal trials. defendant can The record indicates that the district court rights by his inaction. See waive give specific failed to instruction Wright, Federal Practice and Procedure (2d despite objections. defendant’s 1982); § at 219-220 ed. Jackson, government concedes district Cir.1973) (finding waiver if fails failing jury specif- to erred submit to the object trial where lack of ven- before refuge ic venue instruction but seeks indictment); apparent ue is on the face of the fact that the court did submit an instruction Bohle, United States v. 445 F.2d 58-59 stated, which “You are instructed that a con- (7th Cir.1971) (same), overruled on other spiracy may any prosecuted district Lawson, grounds by United States v. continued, conspiracy began, where the or Cir.1981); F.2d 301-02 United Ree., ended.” vol. X at 104. Jones, (2d Cir.1947) States F.2d government characterizes this (same); States, Jenkins v. United general venue, declaration as a instruction on (10th Cir.1968) (defendant raise Aplee. Br. at the instruction did not in- acquittal venue issue a motion for if indict- jury required form the that it was to make venue); alleges proper ment United States v. findings on the issue of or that Sandini, (3d Cir.1986) F.2d enter a verdict it must find either an Cloud, (same); Black 590 F.2d at 272 agreement or conspira- some overt act (same).4 Rather, Wyoming. tor in instructing after Finally, perhaps for reasons related conspiracy, on the court waiver, relaxed standard for courts found, simply conspiracy, declared that if application plain seem to disfavor the er prosecuted began, could be it where contin- ror to failure to instruct on venue. See ued, consequence, or ended. aAs Massa, United States v. required was never to make a determination (7th Cir.1982); White, United 611 that venue existed in the ease. (5th Cir.1980); 536-37 question The we must resolve is Honneus, (1st failure to instruct the on under Cir.1974). have held We that failure to in circumstances constitutes on struct other essential elements of reversible error. This is an issue of first crime, requested by even when not the de impression noting for this court. fendant, After per is structural error and se re that “it Record is ‘fundamental error’ to fail versible. United States v. (10th Cir.1996) (en necessary to instruct the as as to to the ele- banc II.A); part Winship, “By charged,” 724 F.2d at 1124. ments of the offense 873 F.2d at contrast, particular “[ojther of a circumstances we observed that courts have case determine whether failure to instruct on developed examining particular rules cir- plain Winship, venue is error.” 724 F.2d at requiring cumstances of a case rather than automatic reversal for the failure to instruct venue,” (citing on id. at 1370-71

III. Moeckly, 769 F.2d 453 Cir.1985), Winship, We have said that failure to instruct 724 F.2d 1116 Cir.1984)). requested on venue when to do so is We did not have occasion to de- acquit, rights. 4. The district court found that Mr. Miller had and thus had not waived his venue properly raised the venue issue his motion to view, holding ed a that venue is in Record because broader velop such a rule question submit the venue issue not when there is about agreed had parties there occurred, court, and thus had waived where the crime “but also ... issue objection. when defendants can be convicted of the implicit finding offenses without an ease, preserved his In this Mr. the acts used to establish venue have review un objection and we therefore below proven.” Moeckly, been 769 F.2d at 461. harmless error. the standards of der Fed. We believe this is the better view. 52(a). gov on the The burden is R.Crim.P. doubt prove a reasonable ernment proof al The burden v. Loui is harmless. Sullivan error ways government. remains with the siana, 275, 279, 113 S.Ct. to have a test the defendant is entitled (1993); 2081-82, Carella weight of evidence even if he can adduce California, 491 U.S. S.Ct. entirety none of his own. Where the (1989) (Scalia, 2423-24, 105 illegal activity alleged defendant’s to have J., California, 386 concurring); Chapman v. place jurisdiction, taken within the trial 824, 828, 17 L.Ed.2d proffered illegal no trial evidence is adopted “in circuits have Several place act was committed some other in determining failure to issue” test for place alleged juris that the is not within the error, is or is struct on venue reversible diction, any failing specifically in defect in the Fifth Circuit is harmless. The rule by instruct on venue would be cured the to instruct on venue is revers that “failure See, e.g., verdict. testimony in puts trial ible error when (2d Cir.1975) (fail Jenkins, requests defendant the instruc issue and the ure to instruct is harmless where all evidence Winship, 724 F.2d at 1125. The Sev tion.” of commission of crime is situated has concluded that enth Circuit jurisdiction).5 This is so because in issue, is in an instruction where venue convicting charged, jury of the offense a given. particularly true should be This is necessity illegal finds an act within the trial proffered is or the when an instruction However, jurisdiction. in a multidistrict in objects to the lack of an instruc- case, dictment, such as we have this tion, thereby calling atten- the issue to the jury could find the elements of the But tion of the district court. where finding predicate offense without the factual issue, is not in no court has ever held jurisdiction. proper venue in the trial given. must be venue instruction Green, 309 F.2d at 856-57. We there Massa, 530. adopt the rule that failure to instruct on fore requested, is reversible error when implied that to Both of these circuits have beyond doubt that issue,” unless it is a reasonable “in must place venue a defendant charged of jury’s guilty verdict on the testimony proffer trial or otherwise create necessarily incorporates fense dispute respect factual with to the location of Eighth proper venue.6 the crime. The Circuit has articulat- dissent, Contrary jurisdictions assertion of the Dis- decisions in other have Several disput purported, factually apply venue was not senting Op. where n. the test we at 755 ed, properly that venue had been to determine analysis, not structural error harmless error See, e.g., a matter of law.” Unit established "as analysis analysis. Typically, eval- harmless error Netz, ed Cir. by jury, actually uates verdict rendered ( Massa, 1985); United States v. would to determine if the same verdict seeks (7th Cir.1982). To the extent these decisions a trial error in the have been rendered absent suggest request to instruct on that denial of Here, jury. presentation to the of evidence error, agree. we venue would not be cannot the evidence of venue error does not concern language was used in the context jury presented but cases where the evidence of criminal on that evidence. instructed to render a verdict jurisdiction, activity was located within the trial Thus, if the we the error harmless would find Thus, any undisputed. and such evidence was jury actually venue. rendered a verdict on to instruct would have been error in the failure harmless. Supreme prevents jury rendering We note that the Court has en- from a verdict gaged analysis considering Thus, in a entirely.” similar on an element Id. at 1059. whether the use of an unconstitutional evi- jury a failure to instruct the on an element of dentiary presumption “[bjecause instructions crime is reversible error California, be harmless. See Carella v. jur[y] ... ... did not render a case[ ] 263, 266, 2419, 2421, 105 verdict, formal or otherwise” on the contest- The Court focused on ed element. Id. at 1060. we have whether, instruction, despite a flawed significant outlined the differences between required had nonetheless been to find venue and substantive elements of the crime predicate facts to establish the element Wiles, particularly such as that at issue in subject which was presump- the erroneous context, plain error Wiles is instructive tion: actually its focus on the verdict rendered presume ‘When a is instructed to jury. facts, predicate malice from it still must present In the specific there was no find the existence of those facts instruction to the on the element of cases, many In reasonable doubt.... and the specifi was therefore not predicate conclusively facts establish cally required to render verdict on that tent, so that no rational could find opinion element. open Our Wiles left

that the defendant committed the relevant possibility that in some circumstances a fail criminal act but did not intend to cause instruct, ure to injury____ even on a substantive In that ele event the erroneous ment, simply will not lead to error superfluous.” instruction is where the required was nonetheless otherwise to ren Id., Clark, Rose 580- der a verdict on In the element. quoted approval Justice Sealia’s obser (1986)) (citation omitted). As Justice Sealia vation that the failure to instruct on an ele Carella, observed in analysis harmless-error “ may jury ment ‘if harmless the verdict typical in this context is “unlike the form of points effectively on other embraces con [the analysis” such we because are not concerned tested if impossible, upon element] or it is with whether the verdict rendered on the evidence, the found have what the verdict supported by element properly is other ad- did find without evidence, [the contested ele mitted but rather with whether a ment] as well.’” Id. verdict in fact rendered on the element California —Roy, -, ---, spite in of the erroneous instruction. Id. at (Sealia, J., (Scalia, 109 S.Ct. at 2421-22 concur- J., ring).7 concurring)). support We find additional in this rule making In inquiry suggested by the pronouncement our recent en banc regarding Wiles, Moeckly, Roy, we do not examine consequences

the of failure to instruct on a the jury evidence to determine what the substantive element of a offense. charged properly would have found if instructed. To We held en banc we must reverse if the impermissibly do so would jury substitute the did not render a verdict on an essential judgment of jury. this court for that of charged element of the the offense as a result of Wiles, (en Wiles, a 102 F.3d at 1058-59 banc as to failure to instruct. 102 F.3d at II.A). Cir.1996) (en part found, The district part banc as to and Mr. II.A). We focused on dispute, whether “the element- Miller does not that the evidence of error, specific omission, i.e. the instructional venue was sufficient to survive Mr. Miller’s applies typical 7. The dissent the encompassed more form of verdict on the substantive crimes a analysis, examining harmless error the record as verdict on the issue of venue. The dissent's a whole to merely determine if there was sufficient evi- canvass of the evidence of venue does not apparently dence evidentiary of venue. The support dissent relies on evaluate the for a verdict guilty already the fact that by jury, the rendered a verdict in rendered the but instead substi- below, this case. As we discuss we are unable to tutes the evaluation of the court for a verdict conclude by jury. reasonable doubt that never rendered Rec., Wyoming and elsewhere.” not District of question for us is acquit.8 The motion evidence, by jury, if vol. I at 1. The was never instructed believed venue, but whether single conspiracy it must find to establish that to find this is sufficient necessity made logical agreement as a matter act in fur- either an overt in order to element finding on the omitted Wyoming. in Al- conspiracy therance of the Id. at actually rendered. verdict reach the though alleged by acts the indictment overt impossible Wyoming, it is Mr. Davis entering a verdict of. determine by contends government here The al- of the overt acts guilty, found particular guilty of the finding Mr. Miller jurisdiction in fact indictment, leged Wyoming did proof place. “This is not a case where the factual take necessarily must have found Wyoming charges necessarily satis- in find- to be of the resulted predicates for venue cases, indeed Moeckly, courts have ing In some venue.” 769 F.2d at fied. on venue to be Thus, say failure to instruct found cannot that a verdict on was convicted where the defendant harmless the venue element was fact subsumed alleging the indictment on a general guilty verdict.9 for- single agreement within mation See, v. Bos- e.g., jurisdiction. Finally, government asserts well, in the record to there is substantial evidence (‘Where itself locates the indictment by preponder Wyoming establish venue think conspiracy, we place of formation evidence. Even if this contention ance of the sufficient with re- general- instruction is accurate, question of it is irrelevant to the eases, question.”) In such spect to the venue has been a verdict on the whether there necéssarily to render a .verdict over of venue. No matter how element agreement formation of found the evidence, speculation as to whelming the our separate jurisdiction, and jury might reach not sub the verdict a results redundant. The would be struction actual verdict. stitute for an recognition comport with our in these cases (en II.A); part see at 1058 banc as to does not lead that a failure to instruct Louisiana, also Sullivan necessity jury by reversible error where verdict on the substance renders a by jury a trial does not element. magnitude of the evidence depend on the “Although defendant. arrayed against in wording of the on the Reliance contains sufficient evidence this record jury’s general verdict can dictment and [venue], no there is which a could find here, howev government’s case not save the that this essential in the record indication it must find The was instructed er. Cloud, actually finding made.” Black Miller a reasonable doubt guilty Mr. by judge “Findings F.2d at 273. made alleged in the indict single conspiracy of the finding jury’s deficiencies cannot cure alleged conspiracy indictment ment. The innocence of a defendant guilt as to the jurisdiction: “within the than one in more Smith, defendant from there. calls to the drag conspiracy venue for a defen In a " jurisdiction in which the either in the dant ‘lies F.2d at 697. any agreement conspiratorial was formed or in act in furtherance jurisdiction in which an overt by the fact that the is bolstered 9. Our conclusion by any conspiracy of the was committed closing implied argument that the prosecutor ” Rinke, conspirators.' F.2d at 584 — 85 conspiracy find the existence could Smith, Davis, rec., believing vol. XI at Mr. without (10th Cir.1982)). purposes of For agreement finding between Mr. an or without imputed any conspirator are to the other acts of Davis, by finding merely an but and Mr. Thus, example, up we have conspirators. for other Mon- agreement Mr. Miller and between charge though even for a held venue rec., conspirators, XI at 5. vol. tana-based jurisdiction been to the had neither alleged conspirator Davis was any there. It was sufficient committed acts nor Wyo- acts in overt to have committed indictment coconspirator had sold defendant’s the. Rec., ming. vol. I at 5-7. telephone drags jurisdiction and had made in the resulting separately from the court’s failure to instruct instruct on the issue of it an element of crime.” venue was harmless. to find Cabana Bullock, 376, 384-85, 474 U.S. 106 S.Ct. guarantees The United States Constitution (1986).10 689, 696, 88 L.Ed.2d 704 an rights, accused certain fundamental trial including right be tried the state peculiar Due to the characteristics of ven- Const, where the crime was committed. U.S. fact that in the usual will ue—the case there Const, Ill, 3; § art. cl. U.S. amend VI. complete overlap be between the factual The Sixth Amendment of the United States predicates predi- of venue and the factual that, guarantees Constitution cates offense—failure to prosecutions, In all criminal the accused struct will often be harmless.11 we enjoy right speedy public shall to a general not let this must state of affairs blind trial, by impartial jury an of the State and instances, us to those as with a multidistrict district wherein the shall crime have been conspiracy, where the verdict will not committed; which district shall have been by necessity incorporate finding on venue. previously law, ascertained and to be very Faced with a situation similar to this informed of the nature and cause of the ease, observed, Fifth Circuit “The dan- accusation; to be confronted with the wit- gers of abuse are manifold the Government him; against compulsory nesses to have can obtain indictment for in a process obtaining witnesses in his fa- district other than the district where vor, and to have the assistance of counsel actually merely by offense was committed for his defense. act, alleging that one which need never be Const, Therefore, amend. VI. venue is proved, was committed that district.” Green, right fundamental trial rights similar to the (emphasis 309 F.2d at 856 trial, speedy to a to a to confront wit original). nesses, And, and to counsel.1 like other fun judgment of the district RE- court is rights,2 damental trial may be waived. VERSED, and we REMAND this case for Mahaffey Hudspeth, proceedings. further (10th Cir.) (like to a trial in cases, personal criminal venue “is also a priv BARRETT, Judge, Senior Circuit waived”), ilege may denied, which be cert. dissenting: 317 U.S. 63 S.Ct. 87 L.Ed. 535 respectfully My I States, dissent. review of the See also Jenkins v. United (10th Cir.1968) (“im case law leads me to conclude error resulting from waived,” the district court’s failure to but is not 10. agree trial); States, (right speedy we its Singer view of the “in v. United test, agree Eighth issue” (1965) cannot with the 380 U.S. 85 S.Ct. Moeckly trial); Texas, Circuit's conclusion (right that where venue Pointer v. 380 U.S. finding guilt is in issue and a on the offense 13 L.Ed.2d encompass does not witnesses); (right to confront failure to instruct on venue can nevertheless be Wainwright, Gideon v. 792, merely harmless because the evidence (1963) on venue counsel). (right 9 L.Ed.2d 799 to was "substantial.” 769 F.2d at 462. 514, e.g. Wingo, 2. See Barker v. 407 U.S. 92 S.Ct. that, judges although 11. We caution trial 2182, (1972) (right speedy 33 L.Ed.2d 101 to trial predicates may usually factual of venue be con- waived); States, may be Patton v. United 281 U.S. gruent predicates with the factual for a 276, 253, (1930) (right 50 S.Ct. 74 L.Ed. 854 to offense, charged congruence verdict on the waived); Alabama, may Boykin trial be v. may always practice not be clear. The better is 238, 243, 1709, 1712, 395 U.S. 89 S.Ct. 23 to instruct the on venue whenever the issue (1969) (right L.Ed.2d 274 to confront witnesses court, brought is to the attention of so the waived); Zerbst, may 458, be Johnson v. 304 U.S. explicit finding. can make an factual 1019, (1938) (right 58 S.Ct. 82 L.Ed. 1461 to 1116, Winship, United States v. 724 F.2d 1126 n. waived). may assistance of counsel be See also (5th Cir.1984). 13 1140, Dobey, United States v. 751 F.2d 1142 Cir.), denied, 818, 63, cert 474 U.S. 106 S.Ct. 88 Carolina, 213, e.g. Klopfer v. (1985), 1. See examples North 386 U.S. L.Ed.2d 52 for additional of 223, 988, 993-94, (1967) 87 S.Ct. right. 18 L.Ed.2d 1 waiver of a fundamental

755 trial); acquittal jurisdiction” termines moves for “the waived when verdict); Massa, following Light 526, a trial United States v. or new 530 States, 207, (7th Cir.1982) (venue 208 v. juris- United is “more akin to foot failing point raise the at the (“By to than diction to the substantive elements of appeal, crime”). a by failing to take direct trial and example, For if a case is dis- appellant right waived whatever he has for improper missed “[t]he termi- venue.”); might question proof of have to resolution, nation of the not ‘a [is] case cor- Looney, 219 556 v. not, or all of rect of some or the federal Bickford ” Cir.1955) (“The right of accused to be Wilkett, charged.’ of elements the offense is particular personal tried in a (quoting F.2d at Lee v. 655 United waived”). may privilege which States, 432 30 n. 97 S.Ct. U.S. right (1977)). not As a fundamental trial venue is And, 2145 n. L.Ed.2d 80 53 dis- legal “merely procedure.” of formal a matter missal for lack of venue does not involve Johnson, 273, 276, 323 United v. U.S. jeopardy prosecution issues of nor bar double (1944). 249, 250, L.Ed. 236 How 65 S.Ct. 89 Wilkett, 655 venue. F.2d at fundamental, ever, is a matter how “venue no Jackalow, 1012.3 See v. United States 66 process goes matter rather than sub (1 Black) 484, (1861) (spe- U.S. 17 L.Ed. 225 among rights determining which stantive granted). cial verdict aside new trial — set competent various courts will decide the waiver, guarantee Absent failure to Miller, Dredging Co. v. case.” American fundamental constitutional is er 443, 453, 981, 988, 127 114 S.Ct. 510 U.S. not always ror. such error does (1994). wholly is “Venue neu L.Ed.2d 285 require of a conviction as reversal “most tral; procedure, of than question it more is constitutional can be harmless.” errors Ari else, prove it does not anything either Fulminante, 279, 306, v. zona 499 U.S. disprove guilt of the accused” “unlike the (1991) (col 1246, 1263, S.Ct. guilt on facts which bear or inno substantive lecting examples of harmless constitutional States, cence in the case.” Wilkett United errors). connecting The “common thread” (10th Cir.1981), cert. of the cases harmless constitutional error “is denied, 454 U.S. S.Ct. that each ‘trial involved error’-—error which words, In other is during presentation .of occurred the case jurisdiction than more akin to to an “ele and which therefore be Hyde ment” of a crime. See States, context quantitatively assessed of oth 349 & U.S. presented er evidence order determine (equating 795 & 56 L.Ed. venue); Elliott, beyond [it] was harmless reason jurisdiction Brown with 307-08, able doubt.” Id. at S.Ct. at (1912) (the L.Ed. de- 1264.4 Sixth Amendment Accordingly, majority’s held that because did not reversal of Miller's otherwise, verdict, government render formal or on an not bar the from re- conviction does crime, Genser, the district court's trying essential element of him. See United (“[T]he (10th Cir.1983) failure on that element structural Supreme instruct and, error, thus, analysis not amenable under princi- Court one of the identified as 'venerable at 1060. This is anal- Fed.R.Crim.P. 52. Id. jurisprudence' propo- ples jeopardy double erroneously applies ysis majority here —“fail- appeal judgment sition successful of a ‘[t]he requested, when conviction, ure to instruct on any ground on other than beyond a it is reasonable reversible error unless insufficiency to support of the evidence the ver- jury's doubt that the verdict on of- prosecution poses dict ... no bar further necessarily incorporates fense charge.'") the same 752) (Majority Opinion (emphasis venue." Scott, 2193- added). dealing we are not In this (citation omitted)). 57 L.Ed.2d 65 error; dealing with we are trial error. structural contrast, requires Wiles, In structural error reversal court did In contrast to the district here 4. conviction, of a such error renders the because to essential not fail instruct on an element conspiracy, vehicle for the failed to trial unreliable determination offense of but rather instruct an Wiles, 1043, Therefore, guilt. right. v. I believe of United States 102 F.3d on a trial reliance Cir.1996), (10th granted, analysis reh'g Wiles is 1056 1516, 106 F.3d on or reference to the errone- (10th 1997). ultimately misleading. and Cir. ous 1997 WL 61512 In

756 Louisiana, verdict.’” Sullivan v.

In this the district court did not U.S. 508 2078, 2081, 113 S.Ct. 124 L.Ed.2d the issue of specifically instruct the (1993) (emphasis original) Chap 182 approach IWhile believe the better venue. California, 18, man v. 24, 386 U.S. S.Ct. 87 to question the of venue the is to submit (1967)). 824, 828, 17 inqui L.Ed.2d 705 “The it,5 requests properly the it when words, whether, ry, a in other is not trial if, when, clear a district court is not even error, guilty that without occurred the jury.6 to the submit the issue of venue should rendered, surely verdict would have been but clear, however, question is a It that venue actually whether the verdict rendered government must of fact which the establish in this trial was surely to the unattributable of the evidence. by preponderance Sullivan, 279, 508 at error.” U.S. 113 S.Ct. Rinke, (10th 581, 584 v. original). at (emphasis 2081 must The error Cir.1985). Taylor, v. See also United States quantitatively “be of assessed the context Cir.1987) (en banc) 630, 633 presented other evidence deter order to (“[T]he Government bears the burden of was beyond [it] mine whether harmless proving by preponderance of the Fulminante, reasonable doubt.” at 499 U.S. evidence.”). Therefore, assuming without 308, say 111 at 1264. This is not S.Ct. deciding, that the district court’s failure to reviewing that court its the substitute instruct on the issue of venue was finder; judgment that of for the fact error, presentation error was of court does not examine the deter evidence to and, thus, to the “trial error.”7 the case mine would what have found had such, disregarded” As the error “shall be as Sullivan, See error. there been no U.S. 508 unless it substantial harmless “affects 279, Rather, at at 113 S.Ct. 2081-82. 52(a).8 rights.” Fed.R.Crim.P. presented examines evidence ... “Harmless-error review looks to the the error substantially determine if affected jury actually rested its Id. which basis on ‘the the verdict rendered. Although requested each necessary 5. that in instruc- constitute dicta statements not for the disposition tion on the substantive elements of an the case. of instruction must find the Wyoming," district of was not a "the Examples involving 7. of cases defects structural ROA, proper request. 80. Vol. X at While mechanism, in the constitution of trial which the substantive elements of the must be crime standards, by defy analysis "harmless error” doubt, proved see reasonable Sullivan counsel, deprivation right clude: total Louisiana, 275, v. 508 U.S. 113 S.Ct. Wainwright, Gideon v. 372 U.S. S.Ct. 2078, 2080-81, (1993), 124 L.Ed.2d 182 (1963); judge 9 L.Ed.2d 799 not who was by preponderance need be established Ohio, Tumey impartial, v. 273 U.S. 47 S.Ct. Rinke, the evidence. United (1927); 71 L.Ed. unlawful exclusion of (10th Cir.1985); Taylor, v. grand jury, defendant’s members of race from a (en banc). Vasquez Hillery, 474 U.S. 106 S.Ct. Therefore, if venue is to it must be instructed (1986); right self-represen- separately so done from the substantive elements trial, Wiggins, tation at McKasklev. 465 U.S. crime and burden under the 177-78 n. 950-51 n. e.g. Taylor, proof. See 828 F.2d at 633. (1984); public L.Ed.2d 122 and the to a trial, Georgia, Waller 2210, 2217, 49 n. Record, majority

6. The relies on United States S.Ct. Arizona Cir.1989), for the Fulminante, proposition that venue "must be decided 1246, 1264-65, 113 L.Ed.2d 302. These errors 749). jury.” (Majority Opinion at I affecting are "structural defects the framework misplaced unpersuasive reliance find this proceeds, within which sim- rather than the court’s view of statement in Record both ply process in the trial Id. at error itself.” government agreed Record that “venue 1265. was an issue for the trial court ord, Rec- to decide.” stated, F.2d at 1370. The court "The case, however, Miller failed to submit a written instant oversight by does not involve either the issue of instruction on court, venue to the district the trial court or its denial of a request preserved objection charge jury regarding his lack ven- he ue, parties agreed issue at the instruction conference and in his as thereof Therefore, province acquittal. within the of the trial Id. at motion for court.” review Therefore, plain "at this "issue” was not issue” harmless error rather than Fed. error. and, such, in the case as the court's I believe R.Crim.P. 52.

757 any jurisdiction case, in which an act in general the returned overt In this conspiracy conspiracy of to finding guilty furtherance of the was committed Miller verdict and intent to distribute to dis- possess by any conspirators.” with of the United States charged methamphetamine Petersen, (10th Cir.1979) as in the 1313, tribute 1333 122). II, (ROA, Doc. In denied, Vol. omitted), indictment. (quotation cert. 447 U.S. conspiracy of to find defendant (1980). order 905, 2985, 100 64 854 S.Ct. L.Ed.2d 841(a) §§ 21 and in violation of U.S.C. Brown, See also find, beyond a jury must reasonable McDonald, 1136; Hudspeth 56 L.Ed. 120 ‘“(1) doubt, agreement [an] another (10th Cir.1941) (“[V]enue F.2d 966 (2) law; knowledge of to violate the person conspiracy laid was either where (3) objectives conspiracy; of the essential formed or overt act in furtherance where involvement; voluntary and knowing and committed.”), denied, 314 thereof was cert. alleged conspira among the interdependence U.S. 86 L.Ed. 496 ” Lopez, 100 States v. F.3d tors.’ United record, Cir.1996) After review I (10th a careful of the (quoting United States v. Cir.1995) (10th Edwards, believe evidence adduced at trial is suffi- F.3d — denied, omitted), proper cient to that in establish venue was cert. U.S. (quotation (1996)). -, 2497, 135 Wyoming. in the District of The evidence is is Accordingly, coconspirator where the defendant tried this case that: Mike revealed (Davis) purposes guilt of the actual bought irrelevant for from methamphetamine Davis Evidence, Montana, or (ROA, of defendant. Billings, or innocence in IX at Miller Vol. thereof, proper regarding venue 47-50, the lack Supp. X at & Vol. 58-65 & jury’s 4rS, 10-12, 15-16, 21-22, 25, 29, 60, trial does not affect the factual of the IVol. at guilt of or innocence 62); the actual (ROA, determination Wyoming, of Davis is a resident is that not to of the defendant. 7); Supp. Wyo- Davis Vol. I at returned always say that an error in venue is harm (ROA, ming methamphetamine, with the of affect ver Evidence venue does 22), less. 7,18, it to Supp. Vol. I at and distributed improper is no to the extent that venue dict (ROA, Larry Cody, Wyoming, in Gureski constitutionally verdict could be valid 40-41, 44, IX 59 & Vol. at regardless overwhelming evi reached of the 39-41, 45-47, X at & I at Supp. Vol. Vol. against dence the defendant. 18, 22-24); from and Davis called Miller Ill, 3; § 2 Const. amend. art. cl. U.S. Const. Wyoming arrange purchase for of Therefore, must the court determine VI. (ROA, methamphetamine, IX at Vol. record, whether, reviewing the whole after 31). I that Supp. 74-75 & The fact Vol. proper of venue there was sufficient evidence Wyoming himself nor did not travel to in the district court’s failure to such commit act furtherance an overt of separately on the issue venue struct immaterial, provid- conspiracy Wyoming harmless error a reasonable doubt.9 act furtherance ed an overt See United conspiracy was committed there. as It is established that “venue (10th Smith, F.2d all of a prosecution of members of (“Clearly [coconspirator’s] sale jurisdiction which the lies either marijuana telephone calls agreement in Gillette his conspiratorial was formed or forth standard of review set majority the district de- fact 9. The states that Rinke, acquittal “finding F.2d for nied Miller’s motion Cir.1985), go jury.” and United evidence of sufficient Cir.1996), 748). reh’g granted, Although my reading (Majority Opinion at Cir.1997), does findings WL 61512 leads me to believe of the district court's "whether, i.e., apply, viewing evidence in not court found venue was and that that the light favorable to the Government of most there was sufficient evidence credibility making charges, overly inferences and it is all reasonable to consider the not fact, Therefore, the finder the Govern- I choices in favor of of clear from the record. shall assume proved by preponderance majority of direct purposes opinion that the ment of this for the specific finding evidence the crimes and that there was no circumstantial is correct Hence, prosecution. within the district” of because there has occurred on the issue venue. Rinke, 778 F.2d at been no finder coconspirator] and Smith from [another overt acts furtherance of the Gillette were

conspiracy. proper Wyoming Venue was or not Smith had ever been there McDonald,

himself.”); 120 F.2d at 966. methamphetamine

Davis’ of to Gure- re-sales Cody, Wyoming,

ski in are sufficient to es-

tablish that venue District Wyoming conspirators, including

of for all

Miller.

Therefore, I would affirm Miller’s convic-

tion and sentence.10

TOWERRIDGE, INC., as sued of America for the Benefit

Towerridge, Inc., Plaintiff-Appellee

Cross-Appellant,

T.A.O., INC., Casualty and Mid-Continent

Co., Defendants-Appellants

Cross-Appellees.

Nos. 96-6107. Appeals,

United States Court of

Tenth Circuit.

April I believe Miller’s other contentions discussion these issues would be a waste merit, are without I will not address them judicial at this resources. majority's holding time in view because

Case Details

Case Name: United States v. Richard Dean Miller

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 15, 1997

Citation: 111 F.3d 747

Docket Number: 94-8079

Court Abbreviation: 10th Cir.