                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4630


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KAREEM MALCOLM L. BOLDEN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cr-00428-TSE)


Submitted:    November 24, 2008            Decided:   December 29, 2008


Before TRAXLER, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew A. Wartel, LAW OFFICES OF MATTHEW A. WARTEL, PLLC,
Alexandria, Virginia, for Appellant.     Chuck Rosenberg, United
States Attorney,    David   Goodhand,  Assistant  United  States
Attorney,   Jeffrey  Shih,    Special  Assistant  United  States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Kareem       Malcolm   L.    Bolden    appeals       his    conviction,

following a jury trial, on one count of conspiracy to distribute

five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2006), and one count of conspiracy to import

more       than    five     kilograms     of    cocaine     into    United     States

territory, in violation of 21 U.S.C. §§ 952(a), 963 (2006). 1

Bolden was convicted upon retrial after the jury at his first

trial was unable to reach a unanimous verdict.

              On appeal, Bolden raises two related issues.                     Bolden

first asserts the district court erred in denying his Fed. R.

Crim. P. 29 motion at the close of his first trial, in which he

argued       the    Government       presented      insufficient         evidence    to

establish the Eastern District of Virginia was an appropriate

venue for the trial.              Because of this purported error, Bolden

next maintains that, prior to his second trial, the district

court erred in denying his motion for dismissal based on double

jeopardy.          For    the   reasons   set   forth     below,   we    reject     both

contentions and affirm Bolden’s convictions.




       1
       Bolden was sentenced to 121 months’ imprisonment, and does
not challenge his sentence on appeal.



                                           2
                                       I.     Venue

            The right to trial where the criminal act occurred is

rooted     in    the     Sixth        Amendment    and        Article      III    of      the

Constitution.           “The     Supreme      Court     has     cautioned        that    the

question of venue in a criminal case is more than a matter of

formal legal procedure; rather, it raises deep issues of public

policy in the light of which legislation must be construed.”

United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005)

(internal quotation marks and citation omitted).

            The    venue       statute      generally     applicable        to    criminal

cases provides that “[e]xcept as otherwise expressly provided by

enactment of Congress, any offense against the United States

begun in one district and completed in another, or committed in

more than one district, may be inquired of and prosecuted in any

district    in    which        such     offense    was     begun,         continued,      or

completed.”        18      U.S.C.       § 3237(a)       (2006).           “Where        venue

requirements      are     met,    the       prosecution       may    proceed      in    that

district, notwithstanding the possibility that the gravamen of

the wrongdoing took place elsewhere.”                     United States v. Smith,

452 F.3d 323, 334 (4th Cir. 2006).

            In a conspiracy case, the Supreme Court has long held

that venue is proper in any district in which any conspirator

performs    an    overt    act     in    furtherance       of       the   conspiracy       or

performs acts that effectuate the object of the conspiracy, even

                                              3
though    there       is    no   evidence         the    particular    defendant      ever

entered that district or that the conspiracy was formed there.

Whitfield v. United States, 543 U.S. 209, 218 (2005) (holding

venue for money laundering conspiracy prosecution proper in “any

district in which an overt act in furtherance of the conspiracy

was committed”); Hyde v. United States, 225 U.S. 347, 356-67

(1912).     This court has recognized that “in a conspiracy charge,

venue is proper for all defendants wherever the agreement was

made or wherever any overt act in furtherance of the conspiracy

transpires.”          United States v. Bowens, 224 F.3d 302, 311 n.4

(4th Cir. 2000).            Moreover, we have held that the acts of one

member    of    a     conspiracy      can    be    attributed    to     all   other   co-

conspirators          for    venue     purposes,          rejecting     assertions     of

“manufactured venue” and “venue entrapment.”                          United States v.

Al-Talib, 55 F.3d 923, 928-29 (4th Cir. 1995).

               We review de novo the district court’s decision to

deny a Rule 29 motion.                United States v. Smith, 451 F.3d 209,

216 (4th Cir. 2006); United States v. Ringer, 300 F.3d 788, 790

(7th Cir. 2002) (reviewing de novo the denial of a motion for

judgment of acquittal based on improper venue).                         The Government

must establish venue by a preponderance of the evidence, and

venue must be proper for each separate count of the indictment.

Ebersole,       411     F.3d     at   524.          In    determining     whether      the

Government has established venue, the evidence must be viewed in

                                              4
the light most favorable to the Government.                                United States v.

Burns, 990 F.2d 1426, 1437 (4th Cir. 1993).

             Our review of the record convinces us the Government’s

evidence     was     sufficient       to   establish            venue       in    the     Eastern

District of Virginia.              According to the testimony of cooperating

witness     Robert     Wilson,      Bolden        served      as      a    drug       courier   for

George Day, who, along with Darren Black, Wilson, and others,

distributed narcotics in and around cities located within the

jurisdiction of the Eastern District of Virginia.                                 Specifically,

Wilson testified that, in late 1997, the beginning of the period

covered     in   the    indictment,        he      sold       cocaine        in       Alexandria,

Arlington, and Petersburg, Virginia. 2                    Moreover, Wilson testified

that he flew from Reagan National Airport, located in Arlington,

to the Bahamas in order to purchase cocaine for distribution.

             Although Bolden is correct in asserting the Government

did   not    present     any       evidence       to     demonstrate             he    personally

committed     any    acts     in    furtherance          of     the       conspiracy       in   the

Eastern     District     of    Virginia,          this     is      not     relevant       to    the

question of venue.          As this court has noted, for some offenses,

there may be “more than one appropriate venue, or even a venue

in which the defendant has never set foot.”                               Ebersole, 411 F.3d


      2
       The district court took judicial notice of the boundaries
of the Eastern District of Virginia.



                                              5
at 524 (internal quotation marks and citation omitted).                    The law

permits using a conspirator’s acts within a district to support

venue in that district for the trial of any co-conspirators.

Such is the case here.         Wilson’s testimony regarding his, Day’s,

and Black’s actions within the Eastern District of Virginia in

furtherance     of   the     conspiracy       was   more   than    sufficient      to

demonstrate venue was appropriate on both charges.                   Accordingly,

we   conclude    the    district     court      properly     rejected      Bolden’s

challenge to venue and thus properly denied his Rule 29 motion.



                             II.   Double Jeopardy

          Central       to   Bolden’s     double     jeopardy      claim    is    his

contention that the district court erred in denying his Rule 29

motion.   Only if the district court erred in denying the Rule 29

motion would Bolden’s second trial arguably be violative of the

Double Jeopardy Clause.

          For     the    reasons    discussed       above,    we    conclude      the

district court did not err in denying the Rule 29 motion.                        After

the denial of the Rule 29 motion, the first trial was declared a

mistrial because the jury could not reach a unanimous verdict.

Electing to retry Bolden following the mistrial simply did not

run afoul of the Double Jeopardy Clause.                     The Supreme Court

recognized as much in Richardson v. United States, 468 U.S. 317,

325-26 (1984), when it held that termination of a first trial

                                          6
because   of    a    hung   jury   did    not   preclude      a   subsequent

prosecution.    The Supreme Court explained that, “[r]egardless of

the sufficiency of the evidence” at the defendant’s first trial,

if a mistrial is declared because the jury is unable to reach a

verdict, the defendant “has no valid double jeopardy claim to

prevent his retrial.”        Richardson, 468 U.S. at 326; see also

United States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005)

(“[I]t is well-settled that the Double Jeopardy Clause does not

preclude a retrial of a criminal charge that has resulted in a

hung jury.”).       Accordingly, we find the district court properly

rejected Bolden’s double jeopardy claim.

          For   the    foregoing   reasons,     we   affirm   the   district

court’s judgment of conviction.          We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                    AFFIRMED




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