                        B.UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,

              Plaintiff,

                   v.                            Criminal Case No. 07-65 (GK)

CHRISTIAN FERNANDO BORDA and
ALVARO ALVARAN-VELEZ,

              Defendants.


                                MEMORANDUM OPINION

      On December       9,    2010,    Defendants          Christian    Fernando       Borda

("Borda")     and Alvaro Alvaran-Velez               ("Alvaran") were convicted by

a jury under the Controlled Substances Import and Export Act, 21

u.s.c.   §§     951     et    seq.,    of      conspiring       to     distribute       five

kilograms or more of cocaine with the intent or knowledge that

the cocaine would be unlawfully imported into the United States.

See Verdict Form as to Borda             [Dkt. No. 207]; Verdict Form as to

Alvaran [Dkt. No. 209]; 21 U.S.C.               §§    959, 960, 963.

      More than two and a half years later,                      the case is before

the   Court    on Defendants'         Supplemental          Motion     for   Judgment     of

Acquittal     or   Alternatively,        Motion       to    Dismiss     Indictment       for

Lack of Venue      [Dkt. No. 387].            Upon consideration of the Motion,

the   Opposition      [Dkt.    No.    391],    the Reply        [Dkt.    No.   396],    the
entire        record    herein,     and        for     the    reasons          set    forth      below,

Defendants' Motion is denied.

I .     Background

        On March 16, 2007, Defendants were indicted in the District

of Columbia for conspiracy to smuggle five kilograms or more of

cocaine       into     the United States.               See    21     U.S.C.         §§    959(a)      and

963.      In 2008       and 2009,        Defendants were arrested in Colombia,

where    they     were    residing,        and       subsequently          extradited            to    the

United States,          where they appeared in this Court on December 9,

2009.

        A jury trial began on November 1,                        2010.          The evidence at

trial    established        that    Defendants           and    others         arranged         for    two

loads     of    cocaine     to     be     transported          from       Colombia         to    Mexico

concealed       in     commercial       shipments        of    palm oil,             and   that       they

discussed       transporting        a    third       load,     but    ultimately never                 did

so.     All     of Defendants'           acts    in negotiating and arranging the

shipments took place in Colombia and Mexico.                                The central            issue

at     trial    was     whether     Defendants           knew       or    intended          that       the

cocaine would reach the United States.

        The    jury     returned        guilty       verdicts        on    December         9,     2010,

after    which       Defendants         moved    for     judgment         of    acquittal         under

Federal       Rule of Criminal           Procedure 2 9.              The Court denied that

Motion in a Memorandum Opinion on March 9,                               2011    [Dkt. No.         238].

Defendants       then     moved    for     a     new    trial       under Federal               Rule   of

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Criminal      Procedure 33,    which the           Court denied in a             Memorandum

Opinion on April 27,         2011    [Dkt. No.        249]. Defendants next moved

to vacate the jury verdict and to dismiss the indictment under

the     Fifth Amendment's     Due     Process        Clause      and   Federal     Rule    of

Criminal Procedure 6(e), which the Court denied in a Memorandum

Opinion on November 27,             2012     [Dkt.    No.   376].       Defendants also

moved to dismiss the case or for a new trial pursuant to Brady

v. Maryland, 373 U.S. 83            (1963).        After post-trial discovery and

extensive briefing,        the Court denied that Motion on April                          22,

2013    [Dkt. No. 378].      The Court then scheduled sentencing.

        Thereafter,   on May 19,           2013,     Defendants filed the instant

Supplemental Motion for Judgment of Acquittal or, Alternatively,

Motion to Dismiss for Lack of Venue                    [Dkt. No.       387].     The Court

ordered the Government to respond,                   which the Government did by

filing an Opposition         [Dkt. No.        391]    on June 10,        2013.     On June

24, 2013, Defendants filed their Reply [Dkt. No. 396].

II.     Standard of Review and General Principles of Venue

        The   Government's    choice        of     venue    is    constrained       in    the

first     instance    by     two      constitutional             provisions       and     one

procedural rule.      Article III of the Constitution provides that:

        Trial of all Crimes        shall be held in the State
        where the said Crimes shall have been committed; but
        when not committed within any State, the Trial shall
        be at such Place or Places as the Congress may by Law
        have directed.




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U. S .    Cons t .      art .      III,   §    2,     cl .       3.     The Sixth Amendment                       states

that      an    "accused shall                enjoy the               right     to a       speedy and public

trial,      by an impartial jury of the State and district where the

crime      shall        have       been       committed [.]"                   U. S .     Cons t .      amend .       VI .

Rule      18    of    the       Federal       Rules      of           Criminal       Procedure          implements

these      directives              and    requires           a        criminal           prosecution          to     take

place       "in       the       district        in     which           the     offense           was    committed"

except when             "a statute or the []                     rules permit otherwise."                            Fed.

R. Crim. P. 18.

           "[T] he       government           bears      the          burden of            establishing             by    a

preponderance of the evidence that venue is proper with respect

to each count charged against the defendant."                                                United States v.

Haire,         371    F.3d       833,     837       (D.C.        Cir.        2004)          vacated          on     other

grounds,          543       U.S.     1109       (2005)            (citing          United        States        v.     Lam

Kwong-Wah,           924 F.2d 298,              301     (D.C.          Cir.        1991)).        This does not

mean, however,              that venue is an element of the offense that must

be decided by a                 jury.         "Venue is a               jury question only if                        'the

defendant            objects        to    venue       prior            to    or     at     the    close        of     the

prosecution's               case-in-chief,'                  'there           is     a     genuine           issue       of

material        fact        with regard to proper venue, '                                and    'the defendant

timely requests a                   jury instruction.'"                       United States v.                    Nwoye,

663      F.3d 460,          466     (D.C.      Cir.      2011)          (citing Haire,                 371    F.3d at

840) .




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        It is well established that a defendant can waive his venue

rights        altogether          "just     by his       failure    to    lodge    an objection

prior to trial . "               United States v. Burroughs,                161 F. App'x 13,

14     (D.C.      Cir.    2005)       (internal quotations marks omitted)                  (citing

Fed.     R.       Crim.   P.    12 (b) (3),      (e);    United States v.          Gaviria,      116

F.3d 1498,           1517 n.22         (D.C.    Cir.     1997));    see also United States

v. Wilson,          26 F.3d 142, 151             (D.C. Cir. 1994)         ("It has long been

settled in this circuit and elsewhere .                             . that a defendant may

waive his right to proper venue.")                        (citations omitted).

III. Analysis

        Defendants          make      two      main     arguments    as    to    why   venue     was

improper.           First, they maintain that because some of the cocaine

at issue in the case made its way to New York and Texas,                                        they

had a constitutional right to be tried in one of these states.

Mot. at 2-3.              Second, they contend that even if the Constitution

didn't        mandate      an alternative venue,               the venue         statute   relied

upon by the Government was actually inapplicable to their case,

and a different venue statute permitted them to be tried in New

York, New Jersey,               Florida, or Texas, but not in Washington D.C.

Mot. at 7-9.

        A.         Defendants Waived Their Right to Challenge Venue Under
                   21 U.S.C. § 959{c)

        Defendants             were    tried     in     this   District         pursuant   to     21

U.S.C.        §   959(c), which states:


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        This section is intended to reach acts of manufacture
        or distribution committed outside the territorial
        jurisdiction of the United States. Any person who
        violates this section shall be tried in the United
        States district court at the point of entry where such
        person enters the United States, or in the United
        States District Court for the District of Columbia.

        Defendants now argue that              Section 959 (c)                  was   inapplicable

to their case because they were charged with conspiracy under 21

U.S. C.    §    963,   rather   than a       direct violation of                      Section 959.

Defendants contend that a conspiracy to violate                                 §   959 is subject

to the same penalties as a violation of                          §   959, but not the same

venue     rule . 1     They assert     that     18 U.S.C.             §    3238       supplies    the

proper venue rule instead.

        Whatever the merits of Defendants' argument, they have long

since waived it.          Prior to trial,            the parties submitted a Joint

Pretrial Statement in which Defendants affirmatively agreed that

venue     was    proper   under   21        U.S.C.     §        959 (c),        and   stated     that

"[t]he     government      is   not        required        to     show      that      any   of    the

alleged criminal acts occurred within the District of Columbia."

See Joint Pretrial Statement at 58 [Dkt. No. 99].

        Defendants      provide       no     justification                for       their   belated

change of position on this point.                     None of the information they


1
   Section 963 reads: "Any person who attempts or conspires to
commit any offense defined in this subchapter shall be subject
to the same penalties as those prescribed for the offense, the
commission  of  which was     the object  of  the  attempt  or
conspiracy." 21 U.S.C. § 963.


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purportedly learned for the first time at trial,                            or afterward,

is   at    all    relevant     to    whether       Section       959(c)     applies       to   a

conspiracy prosecution under Section                     963     as   a   matter of       law.

Having affirmatively relieved the Government                          of any burden of

proof as to venue before trial, Defendants' may not now be heard

to   complain       that   "[n]ot      a   scintilla        of    evidence        links    the

conspiracy to the District of Columbia."                      Mot. at 7. 2

      B.     The Constitution Did Not Require Defendants to Be
             Tried in New York or Texas

      Defendants'      only effort to explain their multi -year delay

in asserting their constitutional challenge is their contention

that the Government's pre-trial discovery gave them no reason to

believe     there    was   any      evidence      linking      their      crime    with    the

territorial       United     States.       Mot.     at   3.       Instead,        Defendants

claim to have been taken by surprise at trial when one of the

Government       cooperators     testified that          some of          the   cocaine was

delivered to New York.              Defendants also point to evidence they

2 Defendants contend that they may raise a venue objection at any
time prior to appeal of their case.        Reply at 1-3.    This is
wrong.     Absent good cause, a criminal defendant waives an
objection to venue where "he failed to [make it] before trial."
Burroughs,    161 F. App'x at 14       (emphasis added)   (citations
omitted); see also United States v. Cordero, 668 F.2d 32, 44
 (1st Cir. 1982) (" [C] ourts have consistently ruled that a claim
of improper venue must be raised at least prior to verdict.")
 (citations omitted).    Here, Defendants not only failed to object
to §     959(c)  before the conclusion of their trial,          they
affirmatively agreed to it, and thereafter did not object until
two and a half years after their convictions.           These facts
demonstrate a clear case of waiver.

                                           - 7 -
received after              trial        indicating         that    some    of    the    cocaine was

sent     to Texas.            According to Defendants,                     before hearing their

co-conspirator's testimony at trial,                           they had no reason to know

they had a basis to challenge venue in the District of Columbia

under Article III of the Constitution.                               Mot. at 3.          Even if this

is    true,        however,       it     does       not     explain       why    Defendants    didn't

immediately              object     to    venue      upon     hearing       the     testimony    that

connected their crime with the state of New York,                                        rather than

wait for two and a half years after their conviction.

         In        any     event,        the    Court         concludes          that     Defendants'

constitutional challenge is meritless.                                  Where a crime was "not

committed within any State," the Constitution permits such crime

to     be     prosecuted          in     any    district           statutorily      designated     by

Congress.            U.S.    Const. art.            III,§ 2,        cl.    3.     "The    'essence of

conspiracy is an agreement to commit an unlawful act.'"                                       Mot. at

4    (emphasis added)             (quoting United States v. Jimenez Recio,                        537

u.s. 270, 274-75 (2003)).                       An "overt act"             is not an element of

conspiracy under 21 U.S.C.                      §    963.     United States v. Mejia,             448

F.3d        436,     445     (D.C.       Cir.       2006)          As     Defendants       themselves

concede,           their agreement to smuggle cocaine occurred in Mexico

and Colombia,              entirely outside of the United States.                           See Mot.

at   2      ("All        negotiations and logistical                    operations occurred in

Columbia and Mexico.")                    (emphasis added) .              Therefore, Defendants'

crime was "not committed within" any State.

                                                    - 8 -
Columbia and Mexico.")                   (emphasis added) .                Therefore, Defendants'

crime was "not committed within" any State.

        The fact that some of the cocaine was ultimately delivered

to certain states by way of Defendants' co-conspirators may have

permitted        the     Government             to      prosecute          Defendants       in        those

states.      18        U.S.C.        §    3237(a);           see,     e.g.,     United     States        v.

Watson,    No.     10-3010,      2013 WL 2395072,                    at *2     (D.C.    Cir.   June 4,

2013)     ("venue       is     proper          in     any        jurisdiction      where       any      co-

conspirator        committed             an     overt        act      in     furtherance         of     the

conspiracy.")          (citations omitted)                        However,     it did not require

Defendants to be tried in those states because " [v] enue may be

proper in more than one district."                                Lam Kwong-Wah,         924   F. 2d at

301.

        Instead,       the Constitution requires only that Defendants be

tried in "such Place or Places as the Congress may by Law have

directed."        U.S. Const. Art.                   III,    §    2, cl. 3.      See also Cook v.

United States,           138    U.S.          157,     182-183        (1891)     ("A crime

commit ted   against           the       laws    of     the       United      States,    out     of     the

limits of a state,             is not local, but may be tried at such place

as     congress        shall    designate              by        law.")        That     mandate        was

satisfied        because,            as        discussed            below,       Defendants           were

prosecuted in this District pursuant to 21 U.S.C.                                  §    959(c).




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IV.   CONCLUSION

      For the foregoing reasons,      Defendants'    Supplemental Motion

for   Judgment   of Acquit tal   or Alternatively,    Motion to Dismiss

Indictment for Lack of Venue is denied.       An Order will accompany

this Memorandum Opinion.




July 2, 2013
                                  United States District Judge



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