                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           October 27, 2005
                              No. 05-10319
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                  D. C. Docket No. 04-00014-CR-WCO-2-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MARTELLE TOWAYNE CONNER,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (October 27, 2005)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Martelle Towayne Conner appeals his convictions on one count of
conspiring to knowingly cause false representations to be made with respect to

information required to be kept in the records of a federal firearms licensee, in

violation of 18 U.S.C. § 371, and one count of aiding and abetting another so as to

cause false representations to be made with respect to information required to be

kept in the records of a federal firearms licensee, in violation of 18 U.S.C. §§

924(a)(1)(A), 2. The three issues on appeal are: (1) whether the evidence was

sufficient to support the government’s contention that codefendant Martin was not

the “transferee;” (2) whether the district court abused its discretion when it

provided the jury with the government’s modified charge on the law of aiding and

abetting; and (3) whether the evidence was insufficient to support venue. We find

no reversible error and therefore affirm.

                                            I.

      In reviewing a conviction for sufficiency of the evidence, we examine the

evidence de novo in the light most favorable to the government, to determine

whether a rational jury could have concluded beyond a reasonable doubt that the

defendant was guilty of the crimes charged. United States v. McCrimmon, 362

F.3d 725, 728 (11th Cir. 2004) (per curiam).

      In United States v. Nelson, 221 F.3d 1206, 1209 (11th Cir. 2000), we held

that false representations relating to information such as the identity of the actual



                                            2
buyer of the firearm are prohibited under § 924(a)(1)(A). The “actual buyer” for

the purpose of ATF 4473 Form is the person who supplies the money for and

intends to possess the firearms, not the “straw man” or agent. Id. at 1210.

      In this case, the following evidence produced at trial was sufficient to

support the jury’s verdict: (1) Conner was several months behind on his rent; (2)

Conner asked codefendant Martin to purchase firearms for Conner; (3) Conner told

Martin that he would provide the money to purchase the firearms; (4) Conner told

Martin that he intended to sell the firearms in New York; (5) while in the shop,

Conner passed money, from behind, to Martin for the firearms; (6) after Martin

purchased the firearms, Conner took possession; (7) Conner knew of the firearms

transaction form from his 1996 purchase of firearms; and (8) one of the firearms

listed on the 1996 transaction record was recovered in New York.

      Upon the basis of this evidence, a rational jury could find beyond a

reasonable doubt that Conner was the actual buyer for purposes of the firearms

transaction record. Therefore, we affirm Conner’s conviction for knowingly

causing false representations to be made with respect to the records of a federal

firearms licensee.

                                         II.

      To properly preserve an objection to instructions charged to the jury, Federal



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Rule of Criminal Procedure 30(d) requires that a party inform the trial court of the

specific objection and the grounds for the objection before the jury retires to

deliberate.

      We review a district court’s refusal to give a particular jury instruction for

abuse of discretion. United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir.

2003). The failure of a district court to give an instruction is reversible error where

the requested instruction (1) was correct, (2) was not substantially covered by the

charge actually given, and (3) dealt with some point in the trial so important that

failure to give the requested instruction seriously impaired the defendant’s ability

to conduct his defense. Id. at 1223.

      Title 18 U.S.C. § 2(b) states that “[w]hoever willfully causes an act to be

done which if directly performed by him or another would be an offense against

the United States, is punishable as a principal.” In United States v. Walser, 3 F.3d

380, 388 (11th Cir. 1993), we held that “[t]he standard test for determining guilt by

aiding and abetting is to determine whether a substantive offense was committed

by someone, whether there was an act by the defendant which contributed to and

furthered the offense, and whether the defendant intended to aid its commission.”

(internal quotation omitted). We further stated that a defendant “may be indicted

as a principal for the commission of a substantive crime and convicted upon



                                           4
evidence that he or she aided and abetted only.” Id. Therefore, a defendant “is

criminally culpable for causing an intermediary to commit a criminal act even

though the intermediary has no criminal intent and is innocent of the substantive

crime.” Id.

      In United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004), we

affirmed the conviction of a defendant where the jury was wrongly charged with

Pattern Instruction No. 7 for aiding and abetting because improperly putting the § 2

liability theory before the jury was harmless error. In Hornaday, we applied the

standard of non-constitutional error harmlessness set forth in Kotteakos v. United

States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), that a non-

constitutional error is harmless if, viewing the proceeding in its entirety a court

determines that the error did not affect the verdict, or had a “very slight effect.”

Hornaday, 392 F.3d at 1315.

      In this case, Conner properly preserved his objection to the charged jury

instructions when he objected with specificity before the jury retired for

deliberations. However, Conner fails to show that charging the jury with the

modified version of Pattern Instruction No. 7 is reversible error under the abuse of

discretion test. See Yeager, 331 F.3d at 1223. Here, Conner requested an

instruction pertaining to aiding and abetting. Although the instruction requested



                                            5
was correct, the instruction actually charged substantially covered what Conner

requested. The charged instruction included language taken directly from 18

U.S.C. § 2(b) that addressed the aiding and abetting theory of the indictment.

      Moreover, Conner’s objection fails as to the third element of the abuse of

discretion test because the instruction charged did not seriously impair Conner’s

ability to conduct his defense. We have held that 18 U.S.C. § 2(b) allows a

defendant to be indicted as a principal for the commission of a substantive crime

and be convicted upon evidence that he aided and abetted only. See United States

v. Hamblin, 911 F.2d 551, 557-58 (11th Cir. 1990); Walser, 3 F.3d at 388. Thus,

under §2(b) Conner may be held liable for causing Martin, the straw man, to

commit a criminal act even though Martin had no criminal intent and is innocent of

the substantive crime. Therefore, we discern no reversible error in the district

court’s use of the modified jury instruction.

                                         III.

      Proof of jurisdiction and venue are essential elements of any crime in the

sense that the burden is on the government to prove their existence. United States

v. Barnes, 681 F.2d 717, 722 (11th Cir. 1982). Venue is proper in any district in

which the offense was committed, Fed. R. Crim. P. 18; 18 U.S.C. § 3237(a), and

“the offense of conspiracy is ‘committed’ in any district in which an overt act is



                                           6
performed in furtherance of the conspiracy.” United States v. Lewis, 676 F.2d 508,

511 (11th Cir. 1982). The government need prove facts supporting venue only by

a preponderance of the evidence. United States v. DeLeon, 641 F.2d 330, 336 (5th

Cir. Unit A Apr. 1981).1

       In Weaver v. United States, 298 F.2d 496 (5th Cir. 1962), we faced a

challenge similar to the one presented in this case. First, we noted that a district

court could take judicial notice of certain facts, including whether particular streets

were located within a city in the lower court’s judicial district, but we also

observed that such an action was not required where the indictment language,

opening statements, and witness testimony supported such an inference. Id. at 497-

99. Because the events and testimony at trial in this case closely parallel those in

Weaver, we find that Weaver is controlling.

       Judicial notice may be taken of an adjudicative fact not reasonably disputed

because it is either: (1) generally known within the territorial jurisdiction of the

trial court; or (2) capable of “accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201. Title 28

U.S.C. § 90 provides that Georgia shall be divided into three judicial districts, with



       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.

                                                7
four separate divisions comprising the Northern District. Under § 90(a)(1), the

Gainesville Division includes Barrow County, where Winder is located. The

provisions of § 90 are also referred to in an Appendix to the Local Rules of the

Northern District of Georgia. N. D. Ga. App. A-2.

      In United States v. Benson, 495 F.2d 475 (11th Cir. 1974), we reviewed a

conviction for robbery committed within the territorial jurisdiction of the United

States. At trial, evidence showed that acts were committed at Fort Rucker, in

Alabama, but it did not show that the fort was within the territorial jurisdiction of

the United States. Id. at 481. On appeal, the Benson panel noted that the “court

will take judicial notice of the facts which vest the United States with jurisdiction,”

which would serve as “a valid substitute for proof.” Id. (internal marks and

quotation omitted). We find that Benson is directly applicable here.

      In this case, the indictment read that the charged conduct took place in the

Northern District of Georgia, and both counts one and two specified that certain

predicate acts took place at a pawn shop located in Winder, Georgia. Testimony at

trial supported a finding that the firearms were purchased and the forms completed

at a pawn shop in Winder, Georgia, which is located in Barrow County in the

Gainesville Division in the Northern District of Georgia. Because both Weaver

and Benson reject similar challenges, and because it would be appropriate to take



                                           8
judicial notice that Winder is in the Northern District of Georgia, we affirm the

district court’s rejection of Conner’s venue challenge.

                                     Conclusion

      Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error. Accordingly, we affirm.

      AFFIRMED.




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