Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2365
UNITED STATES OF AMERICA,
Appellee,
v.
SURISADDAI ARTEAGA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.
June 28, 2004
Per Curiam. We consolidated the instant appeal for
argument with, inter alia, the appeal in United States v. Salinas,
No. 03-2376. The consolidated appeals were argued on May 5, 2004.
We decided Salinas and issued the opinion therein earlier today.
See United States v. Salinas, ___ F.3d ___ (1st Cir. 2004).
There is a threshold issue in this case, not presented in
Salinas. Arteaga made a pretrial motion to dismiss for improper
venue, but the district court denied it "without prejudice," and
the case went to trial. Arteaga did not thereafter renew her venue
challenge and the jury convicted her of passport fraud.
This chronology presents a theoretical question of
waiver. We say "theoretical" because the government explicitly
waives any such objection, urging us instead "to address the venue
issue on the merits." Appellee's Br. at 9. Doing so, the
government adds, "is in the best interests of justice and judicial
economy." Id. at 10.
We accept the parties' joint exhortation. Here, the
facts essential to a venue determination are known in advance and
are undisputed, so we see no harm in treating Arteaga's challenge
to venue as properly raised by a pretrial motion. See Fed. R. Crim
P. 12(b)(2) (explaining that a "party may raise by pretrial motion
any defense, objection, or request that the court can determine
without a trial of the general issue"); see also United States v.
Carey, 152 F. Supp. 2d 415, 419 (S.D.N.Y. 2001) (concluding that
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when the government has provided the court with a full proffer of
facts it intends to introduce to establish venue, the court may
decide whether venue is proper prior to trial pursuant to a motion
made under Fed. R. Crim. P. 12); Fed. R. Crim. P. 12(d) (requiring
court to decide "every pretrial motion before trial unless it finds
good cause to defer a ruling"); see generally 1A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 191 (3d ed. 1999). Under the circumstances, we regard
the issue of venue as adequately preserved.
Once this threshold point is resolved, we need go no
further. Our Salinas opinion is fully dispositive of the merits
question raised in Arteaga's appeal. Consequently, for the reasons
set forth in Salinas, we reverse the district court's venue
determination, vacate Arteaga's conviction, and remand with
instructions to dismiss the indictment without prejudice for lack
of venue.
Reversed and remanded.
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