11-4450-cr
United States v. Shepard
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of October, two thousand twelve.

PRESENT: GUIDO CALABRESI,
         REENA RAGGI,
         SUSAN L. CARNEY,
                   Circuit Judges.

----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                            No. 11-4450-cr

STEPHANIE SHEPARD, A/K/A Craze, A/K/A Crazy,
                                 Defendant-Appellant.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                                  JOHN MERINGOLO, Esq., New York,
                                                          New York.

APPEARING FOR APPELLEE:                                   JANIS M. ECHENBERG (Andrew L.
                                                          Fish, on the brief), Assistant United States
                                                          Attorneys, for Preet Bharara, United States
                                                          Attorney for the Southern District of New
                                                          York, New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (George B. Daniels, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of conviction entered on October 26, 2011, is AFFIRMED.

       Stephanie Shepard, who stands convicted after a jury trial of conspiracy to distribute

and possess with intent to distribute more than 1,000 kilograms of marijuana, see 21 U.S.C.

§§ 841(a)(1), 846, here challenges the denial of her motion for a judgment of acquittal, see

Fed. R. Crim. P. 29, on the ground that the trial evidence was insufficient to establish (1) her

involvement in the charged conspiracy, or (2) venue in the Southern District of New York.

We review de novo the denial of a motion for acquittal, viewing the evidence in the light

most favorable to the government and drawing all reasonable inferences in its favor. See

United States v. Abu-Jihaad, 630 F.3d 102, 134–35 (2d Cir. 2010), cert. denied, 131 S. Ct.

3062 (2011). In doing so, we are mindful that the government was required to prove

Shepard’s participation in the charged conspiracy beyond a reasonable doubt, see id., but was

required to establish venue only by a preponderance of the evidence, see United States v.

Rommy, 506 F.3d 108, 119 (2d Cir. 2007). We assume the parties’ familiarity with the facts

and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

1.     Participation in the Charged Conspiracy

       Shepard’s sufficiency challenge to the jury’s finding that she participated in the

charged conspiracy warrants little discussion. The trial evidence easily established that

                                               2
Shepard’s former boyfriend, David Adams, led a large-scale marijuana trafficking

organization that distributed at least 1,000 kilograms of marijuana in the New York

metropolitan area in 2008 and 2009. The trial testimony revealed that, in furtherance of the

scheme, Shepard and other conspirators independently sold between 40 and 100 pounds of

marijuana weekly. Shepard’s contention that these figures “must be viewed with several

grains of salt,” Appellant’s Br. 21, is an argument appropriately addressed to a jury, which

we must assume resolved it favorably to the prosecution, see United States v. Abu-Jihaad,

630 F.3d at 134; see also United States v. Johnson, 633 F.3d 116, 118 (2d Cir.) (per curiam)

(reiterating that “defendants are responsible for all reasonably foreseeable quantities of drugs

distributed by a conspiracy of which they were members”), cert. denied, 131 S. Ct. 2980

(2011).

       Co-conspirators testified that they personally delivered marijuana to Shepard in

exchange for proceeds of at least $50,000 to be transmitted from her to Adams. Further,

records of a prepaid cellular telephone, registered in Shepard’s name, indicated her use of

that device to communicate with Adams regarding drug transactions. Shepard’s nickname,

“Crazy,” appeared in a ledger of drug transactions kept by Adams. Moreover, evidence of

amounts Shepard paid in cash for rent and various luxury items far exceeded her declared

income of $15,000 per year.

       Although Shepard challenges the persuasiveness of this evidence, we are required to

assume that the jury “resolved all questions of witness credibility and competing inferences

in favor of the prosecution.” United States v. Abu-Jihaad, 630 F.3d at 134; see also United

                                               3
States v. Truman, 688 F.3d 129, 140 (2d Cir. 2012) (holding that cooperator status and

history of drug use did not render witness’s “testimony incredible as a matter of law”).

       Accordingly, we reject Shepard’s sufficiency challenge as without merit.

2.     Venue

       Shepard submits that she could not be prosecuted in the Southern District of New

York for a conspiracy based in Brooklyn and Queens because the evidence failed to show

that she ever personally traveled to the Southern District in furtherance of the charged

conspiracy or that any such travel by a co-conspirator was reasonably foreseeable to her. The

argument fails.

       Because “[c]onspiracy is a continuing offense,” United States v. Payne, 591 F.3d 46,

69 (2d Cir. 2010), it may be prosecuted “in any district in which [it] was begun, continued,

or completed,” 18 U.S.C. § 3237(a); see U.S. Const. art. III, § 2, cl. 3; id. amend. VI; Fed.

R. Crim. P. 18. Thus, venue for a conspiracy charge properly lies “in any district in which

an overt act in furtherance of the conspiracy was committed.” United States v. Tzolov, 642

F.3d 314, 319–20 (2d Cir. 2011) (internal quotation marks omitted); see also United States

v. Royer, 549 F.3d 886, 896 (2d Cir. 2008). Indeed, proof of such activity in a district “by

any of the coconspirators” will support venue there as to all of them. United States v.

Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987).

       Here, the record evidence shows that on December 2, 2009, members of the

conspiracy—including its ringleader, Adams—transported nearly 150 kilograms of marijuana

destined for Brooklyn into Manhattan because they feared that they were being trailed by

                                             4
police or robbers. This foray into Manhattan to avoid detection or conflict—and, thus, to

continue the conspiracy—is sufficient to support venue in the Southern District. See United

States v. Tzolov, 642 F.3d at 320 (stating that venue may be grounded in any act that is

“performed by any conspirator for the purpose of accomplishing the objectives of the

conspiracy”).

       Second, co-conspirators Kelly Campbell and David Montero testified that they

frequently drove to New Jersey to pick up marijuana that they would then bring back to

Brooklyn. This testimony further supports venue in the Southern District, even without

evidence regarding the specific routes traversed, because any local juror could reasonably

infer that the conspirators necessarily hauled their contraband back to Brooklyn via

Manhattan, the Bronx, or the Verrazano Narrows. See United States v. Ramirez-Amaya, 812

F.2d at 816 (holding flight of contraband “over the Narrows, a body of water that lies within

the joint jurisdiction of the Southern and Eastern Districts of New York,” sufficient to confer

venue in Southern District); see also United States v. Tzolov, 642 F.3d at 320 (“[V]enue for

a conspiracy may be laid in a district through which conspirators passed in order to commit

the underlying offense.”)

       Campbell also testified that, during the summer of 2008, he traveled from Brooklyn

to Manhattan on at least one occasion to deliver marijuana for Adams. Campbell’s failure

to recount every detail of this delivery with precision does not undermine his clear testimony

that he entered the Southern District to consummate a transaction in furtherance of the

conspiracy. See United States v. Truman, 688 F.3d at 139 (reaffirming that, in context of

                                              5
sufficiency review, cooperating witness’s testimony, even if incomplete, must be viewed in

light most favorable to government). Nor does it matter that Shepard herself did not begin

selling drugs for the conspiracy until 2009. See United States v. Blackmon, 839 F.2d 900,

911 (2d Cir. 1988) (“[A] coconspirator is liable for acts committed in furtherance of the

conspiracy prior to his entry into the conspiracy.”).

       Insofar as Shepard submits that these acts in the Southern District were not reasonably

foreseeable to her and, therefore, cannot support venue, we are not persuaded. See generally

United States v. Rommy, 506 F.3d at 122 (requiring some sense that defendant chose venue).

The proximity of the conspiracy’s Brooklyn-Queens base of operation to parts of the

Southern District of New York, as well as the need to traverse that district in procuring

marijuana from New Jersey, permitted a reasonable jury to make a preponderance finding

that the aforementioned acts’ occurrence in the Southern District was reasonably foreseeable

to Shepard. See United States v. Davis, 689 F.3d 179, 188–89 (2d Cir. 2012) (holding

proximity of targeted Long Island residence to Southern District of New York, combined

with co-conspirators’ prior robberies in Bronx, to support venue in Southern District based

on foreseeability that robbery target dealt drugs there).

       Because we hold the evidence already discussed sufficient to support venue in the

Southern District of New York, we need not reach the government’s argument that venue is

further supported by text messages from Shepard received by Adams in Manhattan on the

date of his arrest.



                                              6
3.    Conclusion

        We have considered Shepard’s other arguments and conclude that they are without

merit. The judgment of conviction is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




                                          7
