United States v. Rommy

06-0520-cr
United States v. Rommy

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

August Term, 2006

(Argued: November 28, 2006 Decided: November 5, 2007)

Docket No. 06-0520-cr

U NITED S TATES OF A MERICA,

Appellee,
—v.—

H ENK R OMMY,

Defendant-Appellant.

Before:
J ACOBS, Chief Judge, W ALKER, and R AGGI, Circuit Judges.

__________________

Appeal from a judgment of conviction entered in the United States District Court for

the Southern District of New York on a single count of conspiracy to import “ecstasy” into

the United States in violation of 21 U.S.C. §§ 952(a), 963. Rommy contends that the district

court erred (1) in instructing the jury that venue in the Southern District of New York could

be established by a telephone call placed by an undercover agent in that district to Rommy

in the Netherlands; and (2) in admitting evidence obtained in violation of the mutual legal
assistance treaty in effect between the United States and the Netherlands, as well as various

provisions of the Constitution and the Federal Rules of Evidence.

A FFIRMED.

R ICHARD D. W ILLSTATTER, Green & Willstatter, White Plains, New York, for
Defendant-Appellant.

K EVIN R. P UVALOWSKI, Assistant United States Attorney (Scott L. Marrah,
Assistant United States Attorney, on the brief), for Michael J. Garcia,
United States Attorney for the Southern District of New York, New
York, New York, for Appellee.

R EENA R AGGI, Circuit Judge:

Defendant Henk Rommy appeals from a judgment of conviction entered on January

27, 2006, in the United States District Court for the Southern District of New York (Jed S.

Rakoff, Judge), following a jury trial at which he was found guilty on one count of

conspiracy to import methylenedioxymethamphetamine, commonly known as “MDMA” or

“ecstasy,” into the United States in violation of 21 U.S.C. §§ 952(a), 963. Presently

incarcerated serving a twenty-year sentence, Rommy challenges his conviction on the

grounds that the district court erred (1) in charging the jury that venue in the Southern

District of New York could be established by a telephone call placed by an undercover agent

in that district to Rommy in the Netherlands; and (2) in admitting evidence obtained in

violation of the mutual legal assistance treaty in effect between the United States and the

2
Netherlands, as well as various provisions of the Constitution and the Federal Rules of

Evidence. Because we conclude that the alleged errors are either without merit or, in any

event, harmless, we affirm the judgment of conviction.

I. Factual Background

From at least 1980, Dutch national Henk Rommy, also known as the “Cobra,” headed

an international drug ring that trafficked in large quantities of controlled substances. The

trial evidence establishing Rommy’s guilt included the testimony of co-conspirators,

recorded conversations between Rommy and both a government informant and an

undercover agent of the Drug Enforcement Administration (“DEA”), and statements

volunteered by Rommy to federal agents with whom he asked to speak while incarcerated

in Spain pending extradition to the United States.

A. Co-conspirator Testimony

1. Background Evidence as to Rommy’s European Drug Trafficking

Thomas Bosch, a Swiss banker turned drug trafficker, testified that, in the late 1980s

and continuing for more than a decade thereafter, he and confederate Jack Zuchetto smuggled

hundreds of kilograms of hashish from Rommy in the Netherlands to buyers in Switzerland.1

In or about 2000, Bosch learned from Zuchetto that Rommy was experiencing problems

1
Although Bosch’s testimony about dealing drugs with Rommy in Europe was quite
detailed, we here provide only a brief summary as background to the events supporting the
charged conspiracy.

3
smuggling ecstasy pills into Switzerland and that he sought their assistance in transporting

a 100,000 pill shipment from the Netherlands to Zurich. Bosch testified that the pills in

question were light blue in color and stamped with the logo of the late Italian fashion

designer Gianni Versace. After successfully completing this delivery, Bosch helped smuggle

two more shipments of ecstasy pills into Switzerland for Rommy.

2. Rommy Recruits Bosch to Smuggle Ecstasy into the United States

In 2000, Rommy also asked Bosch to smuggle one million ecstasy pills into the United

States. Bosch explained that he had acquired some familiarity with transporting drugs into

this country because, in the three preceding years, he and his fiancée, Daniela Rinaldi, had

smuggled approximately 120 kilograms of hashish and marijuana into the United States,

concealing the drugs in recreational vehicles shipped from Europe. Rommy told Bosch that

he wanted the ecstasy imported into New York. When Bosch expressed a preference for

Miami as the port of entry, Rommy agreed, advising Bosch that his New York contacts could

travel to Miami to pick up the shipment. Eventually, Bosch and Rommy decided that half

the pill shipment would be given to Rommy’s New York confederates while Bosch would

transport the remainder into Mexico for sale in that country. Bosch would convert the

proceeds from the ecstasy shipment into cocaine for delivery to Rommy in Europe. In return,

Rommy would pay Bosch one dollar per pill successfully smuggled, for an anticipated total

of $1 million.

4
 When, in late 2000, it came time to execute the million-pill shipment, Bosch could not

locate Rommy. In fact, Rommy had been arrested by Dutch authorities in connection with

an unrelated investigation into his drug activities. He remained incarcerated from November

2000 until May 2001.

3. Rommy’s Involvement in the Allen/Bosch/Rinaldi Shipment

In 2000, Bosch and Rinaldi successfully smuggled a load of ecstasy into the United

States for a different Dutch trafficker named Redouan. Redouan arranged for the drugs to

be sold in Miami by Thomas Allen. Upon the successful completion of this scheme, Bosch,

Rinaldi, and Allen decided to team up to import another ecstasy shipment totaling 800,000

pills into the United States in 2001. As Bosch and Rinaldi each testified, Allen agreed to

procure the pills in the Netherlands and to be financially responsible for half the shipment;

Bosch and Rinaldi agreed to transport the pills into the United States and to be financially

responsible for the remaining half.

After the 800,000 ecstasy pills were successfully smuggled into Miami, Allen told

Rinaldi that Allen’s half of the shipment had to be sold first because it belonged to the

“Cobra” (i.e., Rommy), who wanted his money right away. In fact, Allen did sell his half of

the shipment; meanwhile Bosch and Rinaldi were arrested by Florida authorities in

possession of the remaining 400,000 pills.

5
 B. The DEA Undercover Investigation

1. Dutch Authorities Alert DEA Agents to Rommy’s Interest in
Smuggling Ecstasy into the United States

In early 2000, at the same time that Rommy was plotting with Bosch, Rinaldi, and

Allen to smuggle ecstasy pills into the United States, Dutch authorities contacted DEA agents

stationed in the Netherlands to advise them that a confidential informant, Alexander Van der

Laan DeVries (“DeVries”), had been approached by Rommy to transport ecstasy to New

York City. 2 After debriefing DeVries, the DEA decided to use him to introduce Rommy to

an undercover agent, Mark Grey, whose purported criminal connections at New York ports

would allow him to smuggle ecstasy into New York cached in vintage cars.

2. The Treaty Requests for Dutch Assistance

To facilitate this plan, in April 2000, pursuant to a mutual legal assistance treaty then

in effect between the United States and the Netherlands, see Treaty on Mutual Assistance in

Criminal Matters, June 12, 1981, U.S.-Neth., 35 U.S.T. 1361, T.I.A.S. No. 10,734

(“MLAT”), the United States formally requested Dutch authorization to employ various

investigative techniques in the Netherlands. Specifically, the United States sought to use

DeVries in an undercover capacity and, pursuant thereto, to make audio or video recordings

in the Netherlands of conversations between the confidential informant and Rommy.

2
Because DeVries did not testify at trial, the jury heard no specific evidence about this
initial recruitment.

6
Authorization was also requested for United States officials to wiretap Rommy’s telephone

in the Netherlands. Dutch authorities denied the April 2000 request.

A second MLAT request from the United States, in September 2002, sought access

to evidence and witnesses developed by Dutch authorities in the course of their investigations

into Rommy’s criminal activities. In granting this request, the Netherlands provided the

United States with a transcript of an October 30, 2000 telephone call intercepted by the

Dutch police in which Rommy and an unnamed confederate discussed the limited supplies

of “Versace t-shirts.” At trial, the government would use Bosch’s testimony about ecstasy

pills stamped with the Versace logo to argue that this conversation related to drugs. See infra

at [59-60].

3. The Recorded Telephone Calls

Despite the denial of the initial MLAT request, United States authorities proceeded

with their plan to use DeVries in an undercover investigation of Rommy, but they conducted

no electronic monitoring in the Netherlands. Instead, between October 2001 and March

2003, DEA agents working in Manhattan recorded five telephone calls in which Rommy,

DeVries, and Agent Grey engaged in thinly veiled discussions about smuggling ecstasy into

New York. Because the location of the parties and the initiator of the calls are issues relevant

to the venue argument on appeal, we duly note these facts.

It is undisputed that the first recorded call was placed by DeVries in Manhattan to

7
Rommy in the Netherlands on October 20, 2001. In that conversation, DeVries not only told

Rommy that he was in New York City, he specifically reported that he was standing near the

site of the recently destroyed World Trade Center. With respect to the smuggling plan,

Rommy asked DeVries if his “friend” (Agent Grey) was going “to look at the car.”

Telephone Tr. Oct. 20, 2001, at 1. When DeVries replied that this had already been done,

Rommy inquired, “Do you think he can sell it, do you think?” Id. DeVries assured Rommy

of his friend’s ability to do what was necessary, and advised that he (DeVries) would be back

in the Netherlands the following week.

It would be almost a year before the next recorded call on September 17, 2002. On

that date, DeVries was again in Manhattan meeting with federal agents at the United States

Attorney’s Office. According to the agent who recorded this call, Rommy, who was then in

the Netherlands, placed the call to the informant’s cell phone. At trial, Rommy’s counsel

disputed his client’s initiation of the call, an argument made possible by the fact that the

recording of the start of the call was inaudible. In the ensuing conversation, DeVries

reported that he was “going to come to Spain with Mark [i.e., Agent Grey].” Telephone Tr.

Sept. 17, 2002, at 2. Rommy stated that he would meet the men there. The Spain meeting,

scheduled for October 4, 2002, never took place because, from October 2-4, Rommy was

once again detained by Dutch authorities conducting an unrelated investigation.

A third recorded telephone call occurred on October 17, 2002. Agent Grey testified

8
that, on that date, while in his Manhattan office, he received an unexpected call on an

undercover telephone from Rommy and DeVries who were then together in the Netherlands.

Because it took Grey a few moments to attach a recording device to the telephone, the initial

part of the conversation was not recorded. Grey testified, however, that the first voice he

heard on the line was Rommy’s, who introduced himself as “Alex’s friend” and who

apologized for missing the meeting in Spain. Trial Tr. 61. The defense challenged this

account, arguing that DeVries placed the call because his was the first voice recorded

speaking with Grey. The government disputed this contention, noting that, within moments,

Grey asked DeVries to “put him [i.e., Rommy] back on.” Telephone Tr. Oct. 17, 2002, at

2 (emphasis added). In the course of this conversation, Rommy stated that he was “famous

in Holland,” to which Grey replied that he was not interested in fame, just in “do[ing] some

business together.” Id. at 3. Rommy told Grey, “don’t worry. I see you soon.” Id.

It was undisputed that the fourth and fifth recorded calls were placed by Agent Grey

in Manhattan to Rommy in the Netherlands. In the fourth call, on February 25, 2003, for

which DeVries was present with Rommy, the three men planned a meeting. In agreeing to

the proposed schedule, Rommy stated, “Ok, no problem. I can do a lot of things.”

Telephone Tr. Feb. 25, 2003, at 3. In the final recorded telephone conversation on March

14, 2003, Rommy was initially distracted, explaining, “I have a lot of problems. Somebody

9
must pay me some money, about, ah, $240,000.” Telephone Tr. Mar. 14, 2003, at 2. Soon

thereafter, however, Rommy confirmed that he would meet with Grey the following week.

4. The Videotaped Meeting in Bermuda

On March 23, 2003, Rommy met with Agent Grey and DeVries at a hotel in Bermuda

to finalize a deal to import 300,000 ecstasy pills into New York City. In a videotaped

meeting lasting more than an hour, Rommy provided the most compelling evidence of his

own guilt. Speaking openly of his experience in narcotics trafficking generally and ecstasy

trafficking in particular, Rommy explained that ecstasy pills were made from special oils

produced in China. According to Rommy, two liters of the oil could yield 8,000 ecstasy pills

for a total cost of $2,500; those 8,000 pills, in turn, could command $150,000 on the open

market. Rommy stated that he had “friends” who could get 2,000-3,000 liters of the oil per

year, Videotape Tr. Mar. 23, 2003, at 48, and he bragged of his connections with Dutch drug

laboratories that “make the best stuff,” id. at 50.

Agent Grey represented to Rommy that his contacts at the ports in New York would

allow him to get drug-laden cars through customs without inspection. Grey nevertheless told

Rommy that, once he got the ecstasy pills into the United States, he did not want to be

responsible for their disposal. Rommy assured Grey that he already had people in New York

City ready to accept the ecstasy shipment, and that these individuals would pay Grey in “cash

right away” upon delivery. Id. at 37. When Grey indicated a preference to be paid in pills,

10
Rommy agreed to give Grey one-third of the shipment — 100,000 out of a total of 300,000

pills — as a transportation fee.

C. Rommy’s Prison Interview in Spain

Following the Bermuda meeting, United States authorities made an international

request for Rommy’s provisional arrest. On November 12, 2003, Spanish authorities, acting

on this request, took Rommy into custody and detained him in a Madrid prison. While

extradition proceedings were pending, Rommy, through his girlfriend Laura de Vreeze,

requested a meeting with DEA representatives in Spain. At the time, Rommy had been

represented for more than eight months in the extradition proceedings by two Spanish

attorneys.

In response, DEA Special Agent John Fernandez, accompanied by a DEA intelligence

analyst, an inspector from the Spanish police, and Ms. de Vreeze, met with Rommy in the

Madrid prison on August 26, 2004.3 At no time during this meeting was Rommy advised that

he had rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), or asked for an explicit

waiver of those rights. Instead, after introducing himself, Agent Fernandez asked Rommy

why he had requested a meeting. Rommy replied that he was facing extradition to the United

3
At the time of this meeting, Agent Fernandez had been working as a DEA country
attaché in Spain for less than a month, having previously been assigned to the agency’s Los
Angeles field office. Although Rommy was detained on the request of the United States,
Fernandez asserted that, at the time of the Madrid prison meeting, he knew nothing about any
DEA undercover investigation into Rommy’s drug activities.

11
States where he knew that penalties for drug trafficking were more severe than in Europe.

He had sought a meeting to proffer his cooperation to the DEA “in setting up other

traffickers that he knew, in exchange for leniency at sentencing.” Trial Tr. 556. Agent

Fernandez told Rommy that he could not promise any leniency because Rommy’s immediate

fate lay in the hands of Spanish authorities and, even if he were extradited to the United

States for prosecution, leniency “was ultimately the decision of a judge.” Id. Agent

Fernandez then offered to end the meeting, but Rommy stated that he still wished to go

forward and provide information.

Rommy proceeded to speak at some length and in detail about areas of potential

cooperation. He described himself as a well-known international drug broker whose

nickname was the “Cobra.” To confirm his notoriety, Rommy showed Agent Fernandez

press clippings from Dutch newspapers that included his photo and reported on his criminal

exploits. Rommy emphasized his ability to target very high-level traffickers and proceeded

to disclose names and background information on more than a dozen such persons, including

Bosch, Zuchetto, Allen, and DeVries. Rommy expressed confusion as to his own arrest,

insisting that he had never sent ecstasy to the United States despite being pushed to do so by

others, notably, DeVries. Rommy stated that DeVries had recently arranged a meeting in

Bermuda where Rommy had spoken with a smuggler who could clear drugs into New York’s

ports. Unfamiliar with any of the persons or facts disclosed by Rommy — not even with the

12
fact that the “smuggler” whom Rommy met in Bermuda was an undercover DEA agent —

Fernandez simply took notes as Rommy spoke, interrupting the defendant only to ask follow-

up questions that sought the spelling of names, the dates when recounted events occurred,

and, on one occasion, a clarification as to a substance that Rommy referred to as “BM K,”

apparently an ingredient of ecstasy.

Several weeks later, Agent Fernandez and Rommy’s lawyers discussed a possible

second meeting. Fernandez reported that Rommy’s lawyers were enthusiastic about such a

meeting and expressed disappointment when it did not materialize.

D. Rommy’s United States Prosecution

1. Indictment

Rommy was originally indicted by a grand jury in the Southern District of New York

in July 2002, well before his provisional arrest in Spain. That initial indictment charged

Rommy with one count of conspiracy to import ecstasy into the United States in violation of

21 U.S.C. §§ 952(a), 963. Two superseding indictments were filed in November and

December 2003, expanding the time frame of the charged conspiracy and adding a forfeiture

allegation.

2. Suppression Motions

After extradition to the United States and before trial, Rommy moved to suppress

various evidence, including (1) the recorded telephone calls and the videotape of the

13
Bermuda meeting, which he challenged as the fruits of an unlawful DEA undercover

operation conducted in violation of the MLAT; and (2) the statements he made to the DEA

while incarcerated in Spain pending extradition, which he claimed were procured in violation

of the Fifth and Sixth Amendments. The district court denied these motions as without merit.

3. The Challenged Venue Charge

Rommy’s trial commenced on September 20, 2005. The government introduced the

extensive incriminating evidence already detailed. As was his right, Rommy offered no

evidence. He did, however, move for a judgment of acquittal pursuant to Rule 29 of the

Federal Rules of Criminal Procedure based on the government’s alleged failure to establish

venue in the Southern District of New York. The district court denied the motion but

pursued the venue question further with counsel at the charging conference.

Specifically, the district court rejected defendant’s request to instruct the jury that

venue in the Southern District of New York had to be proved beyond a reasonable doubt,

charging instead that the government could carry its venue burden by a preponderance of the

evidence. The district court further proposed to charge the jury — by way of example — that

a telephone call made in furtherance of the conspiracy by a defendant outside the Southern

District to a non-conspirator within the district could establish venue in the district. While

acknowledging the existence of some cases indicating that even calls “going the other way,”

i.e., from a non-conspirator in the district to a defendant outside the district, might suffice,

14
Trial Tr. 632, the court reserved judgment on that possibility: “I think I want to think a little

bit more about this issue of the [outgoing] phone call,” id. at 634. In the end, the issue was

left unresolved, and the court charged the jury as follows with respect to venue:

Finally, you must determine whether any action in furtherance of the alleged
conspiracy occurred at least in part in the Southern District of New York. This
is called “venue,” and, unlike all the other requirements, which must be proven
beyond a reasonable doubt, the government is only required to prove venue by
a preponderance of the evidence; that is, that it is more probable than not.
[Court defines Southern District] It is not necessary that the government prove
that all or even most of the conspiracy was carried out in the Southern District
of New York. Rather, it is sufficient if you find by a preponderance of the
evidence that any act in furtherance of the conspiracy occurred at least in part
in the Southern District of New York. For example, if you find by a
preponderance of the evidence that after the alleged conspiracy was formed,
a telephone call in furtherance of the conspiracy was made to a location in the
[district], that would be sufficient to fulfill the venue requirement, even if the
call was made to an undercover agent or some other nonconspirator.

Id. at 748-49.

In the course of its deliberations, however, the jury itself raised the outgoing call issue,

asking, “[C]an venue be proved by an outgoing call; in other words, if [S]pecial [A]gent Grey

made a call out to Henk Rommy on October 17, does that constitute venue[?]” Id. at 773.

Disclosing the inquiry to counsel, the district court observed, “So the issue that we have

ducked has come back and can no longer be ducked.” Id. Rommy’s counsel demurred,

insisting that the outgoing call issue had already been decided in Rommy’s favor, that

counsel had relied on that decision in summation, and that any response allowing the jury to

base venue on an outgoing call would violate Federal Rule of Criminal Procedure 30(b),

15
which requires the trial court to inform parties before summations of its rulings on requested

instructions. The district court disagreed. It observed that it had given the jury “an example”

of an incoming call supporting venue, but this was “not a definitive ruling excluding all other

possibilities.” Id. at 774. It concluded that venue could be established by an outgoing call

from Agent Grey within the district to Rommy outside the district “if [the call] meets the

other requirements for an act in furtherance of a conspiracy.” Id. at 778. The court rejected

defense counsel’s argument that Rommy would “have to know that Agent Grey was in New

York at the time” of the outgoing call for such a call to establish venue. Id. The court also

denied Rommy’s request to charge the jury further on the issue of manufactured venue,4

finding that the issue was “totally before [the jury],” and that the requested instruction was

not responsive to the jury’s particular inquiry. Id. at 780.

Following this colloquy, the district court responded to the jury’s venue inquiry as

follows:

The first question is, can venue be proved by an outgoing call. The answer to
that is yes, a call that originates in the Southern District of New York can go
somewhere else if it meets the other requirements to support venue just like an
incoming call. In the instructions I used an example of an incoming call, but
an outgoing call that meets the requirements would also support venue in the
Southern District of New York.

4
Defense counsel requested that the district court “add some language” that “if the
defendant was manipulated in calling this district” to “manufacture” venue, venue would be
improper in the district. Trial Tr. 781.

16
 The second question is, “In other words, if [S]pecial [A]gent Grey made a call
out to Henk Rommy (10/17) does that constitute venue.” The answer to that
is it could. Remember, you have to find before you can find that any such call
in either direction supports venue that, first, there was already a conspiracy
formed and, second, that the call in some manner furthered the conspiracy.

Now, a third party can initiate a call, it doesn’t have to be a co-conspirator,
obviously, [S]pecial [A]gent Grey was not a co-conspirator; on the other hand,
a call that is initiated by someone who is not a co-conspirator would not count
unless it was a call that in some fashion was either induced by the ongoing
conspiracy or in some way furthered the ongoing conspiracy.

Id. at 782-83.

On September 30, 2005, the jury returned a guilty verdict.

4. Sentencing

At sentencing, the district court found that Rommy had conspired to import at least

1.7 million ecstasy pills into the United States. This quantity included the aborted one-

million pill agreement with Bosch and Rinaldi; the 400,000 pills that Rommy gave Thomas

Allen as part of the 800,000 pill Allen/Bosch/Rinaldi shipment in 2001; and the 300,000 pills

discussed with Grey and DeVries in Bermuda. With an offense level of 40 and a criminal

history of V, Rommy’s Sentencing Guidelines range provided for a prison term of 360

months to life. This range was, however, limited by the statutory maximum term of twenty

years’ incarceration. See 21 U.S.C. §§ 960(b)(3), 963.

Rejecting defense arguments for leniency, the district court sentenced Rommy to the

maximum twenty-year prison term, observing that he was “a hardened, sophisticated, career

17
criminal” who had organized “international drug deals whose scope and sophistication is

outweighed only by their intrinsic value.” Sentencing Tr. Jan. 17, 2006, at 21. In addition

to twenty years’ incarceration, the court sentenced Rommy to three years’ supervised release,

a $100 special assessment, and a forfeiture judgment in the amount of $1 million.

Rommy timely appealed the judgment of conviction.

II. Discussion

A. Challenge to Venue Instructions

Rommy asserts that the district court’s jury instructions as to venue were flawed in

two respects: (1) in identifying the government’s venue burden as a preponderance of the

evidence rather than proof beyond a reasonable doubt, and (2) in allowing the jury to find

venue in the Southern District of New York based on calls made by an undercover agent in

Manhattan to defendant in the Netherlands. We review legal challenges to jury instructions

de novo, and, even where we identify error, we will reverse a conviction “only if the charge,

taken as a whole, was prejudicial.” United States v. Gaines, 457 F.3d 238, 244 (2d Cir.

2006) (quoting United States v. Caban, 173 F.3d 89, 94 (2d Cir. 1999)); see United States

v. Ford, 435 F.3d 204, 209-10 (2d Cir. 2006); see also United States v. Ramirez, 420 F.3d

134, 139 (2d Cir. 2005) (noting that questions of law pertaining to venue are reviewed de

novo). In this case, we conclude that neither of defendant’s challenges to the venue charge

has merit.

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 1. The Preponderance Burden

Rommy’s argument that venue must be proved beyond a reasonable doubt requires

little discussion.

The government’s burden to establish venue originates in two provisions of the

Constitution. Article III, section 2, states, in relevant part, that criminal trials “shall be held

in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl.

3. The Sixth Amendment further guarantees that a criminal defendant “shall enjoy the right

to a speedy and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed.” Id. amend. VI. In furtherance of these provisions, Rule 18 of

the Federal Rules of Criminal Procedure requires that, “[u]nless a statute or these rules

permit otherwise, the government must prosecute an offense in a district where the offense

was committed.” Fed. R. Crim. P. 18.

As this court has frequently observed, the venue requirement, despite its constitutional

pedigree, “is not an element of a crime” so as to require proof beyond a reasonable doubt;

rather, venue need be proved only “by a preponderance of the evidence.” United States v.

Ramirez, 420 F.3d at 139 (emphasis added); United States v. Chen, 378 F.3d 151, 159 (2d

Cir. 2004); United States v. Svoboda, 347 F.3d 471, 485 (2d Cir. 2003); United States v.

Bala, 236 F.3d 87, 95 (2d Cir. 2000); United States v. Smith, 198 F.3d 377, 382 (2d Cir.

19
1999). 5 To the extent Rommy persists in arguing that venue is an element, his argument is

convincingly refuted by the fact that the law treats objections to venue as waived “unless

‘specifically articulated’ in defense counsel’s motion for acquittal.” United States v.

Potamitis, 739 F.2d 784, 791 (2d Cir. 1984) (quoting United States v. Grammatikos, 633 F.2d

1013, 1022 (2d Cir. 1980)); accord United States v. Bala, 236 F.3d at 95.

Accordingly, we reject Rommy’s burden challenge to the district court’s venue

instruction as meritless.

2. Basing Venue on the Site of a Government Actor’s Outgoing Call to
a Conspirator

Whatever burden applies to venue, Rommy submits that the district court’s response

to the jury’s venue inquiry was flawed in three respects: (a) the court erred as a matter of law

in instructing that telephone calls from a government actor in Manhattan to Rommy in the

Netherlands could establish venue in the Southern District of New York; and, even if such

calls could support venue, the instruction (b) ran afoul of Fed. R. Crim. P. 30(b) because it

contradicted representations made to counsel at the charging conference; and (c) should have

included a charge on “manufactured venue.” We are not persuaded.

5
Because venue is not an element of a crime, a question might be raised as to whether
venue disputes must, in fact, be submitted to a jury. See United States v. Jenkins, 510 F.2d
495, 498 & n.4 (2d Cir. 1975) (noting issue without deciding it); see also United States v.
Hart-Williams, 967 F. Supp. 73, 76-78 (E.D.N.Y. 1997) (concluding that venue need not be
decided by jury), aff’d on other grounds, 129 F.3d 115 (Table), 1997 W L 701374 (2d Cir.
Nov. 10, 1997). Since the question was not briefed in this case, we do not attempt to resolve
it here.

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 a. Telephone Calls in Furtherance of a Conspiracy Can Establish
Venue Either Where Placed or Received

(1) The Venue for Conspiracy

The venue requirement serves to shield a federal defendant from “the unfairness and

hardship” of prosecution “in a remote place.” United States v. Cores, 356 U.S. 405, 407

(1958). As the constitutional text makes plain, however, unfairness is generally not a

concern when a defendant is tried in a district “wherein the crime shall have been

committed.” U.S. Const. amend. VI.

The site of a crime’s commission is not always readily determined. The commission

of some crimes can span several districts. In such circumstances, Congress has instructed

that venue properly lies in “any district in which such offense was begun, continued, or

completed.” 18 U.S.C. § 3237(a); see United States v. Ramirez, 420 F.3d at 139. Applying

this rule to the continuing crime of conspiracy, this court has held that venue may lie in any

district in which the conspiracy was formed or in any district in which a conspirator

committed an overt act in furtherance of the criminal scheme. See United States v. Geibel,

369 F.3d 682, 696 (2d Cir. 2004); United States v. Smith, 198 F.3d at 382; United States v.

Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987). Thus, a defendant need not himself have

ever been physically present in a district for a conspiracy charge against him to be venued

there. See United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994) (holding with respect

21
to venue that conspiracy defendant “need not have been present in the district as long as an

overt act in furtherance of the conspiracy occurred there”). 6

(2) Telephone Calls as Overt Acts

(a) Calls Between Conspirators

It is beyond question that telephone calls can constitute overt acts in furtherance of

a conspiracy. See United States v. Smith, 198 F.3d at 382; United States v. Naranjo, 14 F.3d

at 147; United States v. Friedman, 998 F.2d 53, 57 (2d Cir. 1993). In cases involving

telephone calls between co-conspirators in different districts, we have ruled that venue lies

“in either district as long as the calls further the conspiracy.” United States v. Smith, 198

F.3d at 382. In such circumstances, the direction of the call is irrelevant to venue. Id.

(noting that in United States v. Friedman, 998 F.2d at 57, where defendant in Long Island

placed calls in furtherance of conspiracy to confederate in Manhattan, venue was established

6
Mindful of these principles, Rommy does not contend that he could not be
prosecuted anywhere in the United States. Overt acts committed by co-conspirators Bosch,
Rinaldi, and Allen in Miami would presumably have supported venue in the Southern District
of Florida. Even if Rommy could argue that the charged conspiracy was committed, if at all,
“out of the jurisdiction of any particular State or district,” he would not escape federal
prosecution because venue would then exist in the district to which he was “first brought”
into the United States to answer the indictment. See 18 U.S.C. § 3238.
It appears that Rommy never moved for a change of venue to the Southern District of
Florida or the district where he first entered the United States (if it was not the Southern
District of New York), in all likelihood because such venues were no more convenient for
this Dutch national than the Southern District of New York. See Fed. R. Crim. P. 21(b)
(providing for transfer of venue “for the convenience of the parties and witnesses and in the
interest of justice”).

22
in the Southern District of New York, and concluding “[t]here is no reason why the opposite

calling pattern should not also establish venue”); accord United States v. Kim, 246 F.3d 186,

193 n.5 (2d Cir. 2001) (observing that phone call “to or from” a district can establish venue

in that district as to any member of conspiracy).

Rommy submits that the reasoning in these cases cannot support venue in a district

from which a non-conspirator initiates a call to a conspirator outside the district. To the

extent the conspirator uses such a telephone call to further the conspiracy, we disagree.

(b) Calls Between Conspirators and Non-
Conspirators

(i) Calls Placed by Conspirators

When one of the participants in a telephone call is a non-conspirator, such as a

government actor, we have already ruled that a call in furtherance of the conspiracy placed

by a conspirator outside the district to a government actor within the district is sufficient to

establish venue in the district with regard to any member of the conspiracy “at least in the

absence of unfairness or hardship . . . arising from trial in that district, or artificial creation

of venue in that district by the Government.” United States v. Naranjo, 14 F.3d at 146

(holding that telephone call from conspirator in Eastern District of New York to undercover

agent in Southern District of New York established venue in Southern District as to

defendant who was member of conspiracy); see also United States v. Stewart, 878 F.2d 256,

258 (8th Cir. 1989) (upholding venue in North Dakota when Colorado defendant placed call

23
to telephone in North Dakota that was programmed to forward calls to undercover agent in

Minnesota). In light of this precedent, Rommy’s own telephone calls from the Netherlands

to government actors in Manhattan certainly support venue in the Southern District of New

York.

(ii) Calls Placed by Government Actors

a) The Conspirator’s Use of Such a
Call to Further the Conspiracy
Renders It an Overt Act

On this appeal, however, we must consider whether the district court erred in allowing

the jury to base its venue finding on a different scenario: telephone calls from government

actors within the district to Rommy in the Netherlands. Although this court has not

previously considered whether such circumstances can establish venue in the district where

the call was initiated, two of our sister circuits have answered that question in the affirmative.

In United States v. Cordero, 668 F.2d 32 (1st Cir. 1981), the First Circuit considered

whether telephone calls from an undercover agent in the District of Puerto Rico to

conspirators outside that district could establish venue in Puerto Rico to prosecute a

conspiracy to import drugs into the island. In an opinion by then-Judge Breyer, the First

Circuit ruled that such outgoing calls supported venue in Puerto Rico:

Sorren and Cordero [the co-conspirators] spoke to Jimenez [the undercover
agent] while he was in Puerto Rico and provided him with key information,
which was then communicated to others. The fact that Jimenez placed the
calls to Cordero and to Sorren who were outside the Commonwealth, does not

24
 change the fact that Cordero and Sorren transmitted this information through
Jimenez who was inside Puerto Rico. Moreover, they knew he was in Puerto
Rico and they knew the offense was bound for completion in Puerto Rico. It
is not as if Jimenez were a traveler making chance use of a telephone at a bus
stop. Thus, we think it highly likely that the offense was “continued” in Puerto
Rico.

Id. at 44 (citations omitted).

In Andrews v. United States, 817 F.2d 1277 (7th Cir. 1987), an Illinois defendant was

prosecuted in the Western District of Wisconsin for unlawfully using a telephone to facilitate

cocaine distribution in violation of 21 U.S.C. § 843(b). The trial evidence showed that, while

in Illinois, the defendant had received at least one telephone call from an undercover agent

in the Western District of Wisconsin who indicated interest in buying cocaine. The Seventh

Circuit upheld venue in Wisconsin, observing that “section 843(b) proscribes a continuing

offense and, as a result, the crime is committed both where the call originates and where it

is received.” Id. at 1279. The Seventh Circuit noted that “it appears clear from the record

that [defendant] knew that at least one phone call was from [Wisconsin],” but it reserved

decision on “whether venue would be proper in Wisconsin without the defendant’s

knowledge that the call originated from there.” Id. at 1280 n.2. In response to defendant’s

complaint that, “allowing venue to be determined by the origin of the call, when the

defendant does not make the call, could lead to forum-shopping on the part of the

government,” id. at 1279, the Seventh Circuit observed that there was no evidence of forum-

shopping in the case before it. “To the extent that [forum-shopping] is a concern in a given

25
case, it is more appropriately handled at the trial level by a transfer to a more reasonable

forum, pursuant to Fed. R. Crim. P. 21.” Id. at 1279-80.

We agree with the First and Seventh Circuits that a telephone call placed by a

government actor within a district to a conspirator outside the district can establish venue

within the district provided the conspirator uses the call to further the conspiracy. Indeed,

we conclude that the critical factor in conspiracy venue analysis is not whether it is a

conspirator or a government actor who initiates the call; nor does it matter whether the

conspirator is communicating with someone who is a knowing confederate, an undercover

agent, or an unwitting third-party. What is determinative of venue — as the district court

emphasized to the jury — is whether the conspirator used the telephone call to further the

objectives of the conspiracy. See United States v. Naranjo, 14 F.3d at 147 (“We see no basis

for imposing any more rigorous requirement concerning the content of the phone calls than

that they do further the conspiracy.”).

When a conspirator uses a telephone call — by whomever initiated — to further a

criminal scheme, the conspirator effectively propels not only his voice but the scheme itself

beyond his own physical location into that of the person with whom he is speaking. See

United States v. Johnson, 323 U.S. 273, 275 (1944) (holding that venue may constitutionally

lie in any area through which “force propelled by an offender operates”). In short, the

conspirator avails himself of modern technology to commit at long distance the identical

26
overt act that he would commit by being in the same room with a person and whispering a

conspiracy-furthering message directly into his listener’s ear. In the latter circumstance, the

conspirator’s commission of an overt act does not depend on whether the listener rather than

the conspirator initiates the conversation. Nor does it matter whether the listener is a

confederate, an innocent third party, or an undercover agent. What matters is that the

conspirator speaks, not to hear the sound of his own voice, but to communicate to his listener

because he thinks that, by doing so, he furthers a conspiratorial goal. Thus, the overt act may

properly be understood to have occurred at the site where the listener receives the

conspirator’s message. That an instrument of commerce or technology permits the

conspirator to communicate with his listener while physically removed from him does not

alter the fact that the conspirator has committed an overt act at the recipient’s location. It

means simply that his communication is a continuing act, supporting venue in the district of

its initiation as well as the district of its receipt. As the Supreme Court recognized more than

sixty years ago with respect to use of the mails, venue may constitutionally lie “in the district

where [a defendant] sent the goods, or in the district of their arrival, or in any intervening

district.” Id.7

7
In Johnson, the Supreme Court observed that various federal statutes sometimes
place limitations on venue that might not be constitutionally required. See United States v.
Johnson, 323 U.S. at 276-77 (comparing different statutes). No such statutory limits are at
issue in this case.

27
 Accordingly, even with respect to telephone calls placed by non-conspirators to

conspirators, we adhere to our precedent that the direction of the call is irrelevant to venue.

Calls “to or from” a district can constitute overt acts sufficient to establish venue, provided

that the conspirator uses the call to further the objectives of the conspiracy. United States

v. Kim, 246 F.3d at 193 n.5 (emphasis added); see also United States v. Smith, 198 F.3d at

382; United States v. Naranjo, 14 F.3d at 147; United States v. Friedman, 998 F.2d at 57.

b) The Foreseeability of Venue

Rommy submits that, even if a call initiated by a government actor to a conspirator

can support venue in the calling district, the district court erred in refusing to instruct the jury

that the defendant had to know his caller’s location. See United States v. Reed, 773 F.2d

477, 481 (2d Cir. 1985) (discussing fairness of venue in the “sense of having been freely

chosen by [the defendant] as the place at which the [overt] acts were committed”); see also

United States v. Ramirez, 420 F.3d at 143 (observing that “inquiry should not end with

finding that venue properly lay” pursuant to statute; court should determine whether location

of venue is constitutional).8 Rommy notes that such knowledge was present in both Andrews

8
As Ramirez explained, the constitutional inquiry focuses on “whether a given venue
is ‘unfair or prejudicial’ to the defendant” as compared to some other venue to which the
charged crime bears substantial contacts. 420 F.3d at 143 (quoting United States v.
Saavedra, 223 F.3d 85, 93 (2d Cir. 2000) (discussing four factors generally indicative of
substantial contacts: “(1) the site of the crime, (2) its elements and nature, (3) the place
where the effect of the criminal conduct occurs, and (4) suitability of the venue chosen for
accurate factfinding”)). Because Rommy cannot show that being prosecuted in the Southern
District of New York, as compared to some other United States venue (jurisdiction not being

28
and Cordero. See United States v. Andrews, 817 F.2d at 1280 n.2 (noting fact without

deciding whether it was essential to venue); United States v. Cordero, 668 F.2d at 44.

Preliminarily, we observe that the law does not require a defendant to have actual

knowledge that an overt act will occur in a particular district to support venue at that

location. At most, it asks that the overt act’s occurrence in the district of venue have been

reasonably foreseeable to a conspirator. See United States v. Rowe, 414 F.3d 271, 279 (2d

Cir. 2005) (holding that, in prosecution for electronically advertising to distribute child

pornography in violation of 18 U.S.C. § 2251(d), even though defendant posted

advertisement from home in Kentucky, venue was proper in Southern District of New York

because defendant “must have known or contemplated that the advertisement would be

transmitted by computer to anyone the whole world over who logged onto the site” (internal

quotation marks omitted)); 9 United States v. Svoboda, 347 F.3d at 483 (collecting cases with

respect to foreseeability of venue). In this case, although the district court did not

specifically instruct the jury as to the foreseeability of venue in the Southern District of New

at issue in this case), “imposed an additional hardship on [him], prejudiced [him], or
undermined the fairness of [his] trial,” United States v. Saavedra, 223 F.3d at 94, no real
constitutional venue concerns arise in this case. Nevertheless, to the extent knowledge or,
more accurately, foreseeability, of where an overt act will occur can mitigate fairness
concerns as to venue, we proceed to discuss why Rommy’s challenge necessarily fails.
9
Unlike Rowe, this case does not present novel issues of foreseeability arising from
the use of increasingly sophisticated communications technology. Thus, we have no
occasion to explore that subject beyond its discussion in Rowe.

29
York, the evidence supporting that conclusion is so compelling that, if there was an error in

that omission, it was plainly harmless. See generally Neder v. United States, 527 U.S. 1, 10-

16 (1999); California v. Roy, 519 U.S. 2, 5 (1996). 10

The first recorded telephone call of the investigation, placed by DeVries to Rommy

on October 20, 2001, establishes Rommy’s knowledge that he was being called from the

Southern District of New York. In reporting to Rommy that he had successfully made

contact with someone who could help them smuggle drugs, DeVries stated, “I am with my

friend [i.e., Agent Grey] in New York.” Telephone Tr. Oct. 20, 2001, at 2. Indeed, DeVries

effectively told Rommy that he was in Manhattan by noting that, as they spoke, he was

looking at the site of the recently collapsed World Trade Center. From this conversation,

Rommy would have to have foreseen the reasonable likelihood that future telephone calls

from the smuggler contact (Agent Grey) would emanate from his base of operations in New

York.11 See generally United States v. Svoboda, 347 F.3d at 483 (holding that defendant,

who was “savvy investor,” could reasonably foresee that his stock trades would be executed

10
Neder and Roy applied harmless error analysis to courts’ failures to charge
elements of crimes that the government was obliged to prove beyond a reasonable doubt.
Accord Peck v. United States, 106 F.3d 450, 454-57 (2d Cir. 1997). It necessarily follows
that harmless error analysis can be applied to a possible charging omission with respect to
venue, which is not an element of the crime and requires only proof by a preponderance of
the evidence.
11
Because Rommy did not ask the district court to distinguish between the Southern
and Eastern Districts of New York in charging the jury, we have no occasion to consider the
fact that the city’s boroughs span both venues.

30
on either NYSE or AM EX in Southern District of New York); United States v. Kim, 246

F.3d at 193 (holding that defendant who knew his victim paid invoices from a bank located

in the Southern District of New York could reasonably foresee mailings in that district).

Thus, if the district court had instructed the jury on Rommy’s ability to foresee the location

of the government agent’s calls, we have no doubt that the jury would still have found venue.

Indeed, this conclusion is only reinforced by evidence that it was Rommy’s specific

conspiratorial purpose to smuggle ecstasy pills into New York. Rommy acknowledged both

to his confederates Bosch and Rinaldi and to Agent Grey that fellow conspirators were

already in New York ready to accept delivery of the smuggled pills and to pay for their

transport. It was in this context that Rommy encouraged DeVries to find someone to

facilitate the pill shipment through New York’s ports. Once DeVries told Rommy that he

had located such a “friend in New York,” Telephone Tr. Oct. 20, 2001, at 2, Rommy “must

have known or contemplated” that subsequent telephone calls from this smuggler would

likely emanate from New York, United States v. Rowe, 414 F.3d at 279 (internal quotation

marks omitted).

Like Cordero, then, this is not a case in which venue in the Southern District of New

York is the product of some “chance use of a telephone” by a government agent. United

States v. Cordero, 668 F.2d at 44. Rather, the calls here at issue were placed from or to the

Southern District of New York because Rommy himself had identified New York as the

31
desired destination point of his smuggling scheme and was aware that individuals who could

further the scheme were located in New York. See id. (citing defendants’ knowledge that

undercover agent was in District of Puerto Rico and that drug smuggling scheme “was bound

for completion in Puerto Rico” in concluding that call from agent to defendants “continued”

crime in that district).

Accordingly, we conclude that the district court correctly charged the jury that a call

placed by a government actor in Manhattan to Rommy in Amsterdam could establish venue

in the Southern District of New York provided Rommy used the call to further the objectives

of the charged conspiracy.

b. The Challenged Charge Did Not Violate Fed. R. Crim. P. 30

Rommy contends that the challenged jury charge nevertheless violated Rule 30 of the

Federal Rules of Criminal Procedure because it was at odds with agreements reached at the

charging conference about how the jury would be instructed as to venue. We disagree.

Rule 30 both permits parties to “request in writing” specific jury instructions, see Fed.

R. Crim. P. 30(a), and requires the trial court to rule on those requests “before closing

arguments,” id. 30(b). The rule is grounded in “basic concepts of fairness,” allowing

“counsel to conform their arguments to the law as it will thereafter be presented by the judge

to the jury.” United States v. James, 239 F.3d 120, 124 (2d C ir. 2000) (internal quotation

marks omitted). The rule can thus be violated by a trial judge “giving instructions that he did

32
not inform counsel he would give, or by not giving instructions that he informed counsel he

would.” Id. Reversal on the basis of a Rule 30 violation is warranted, however, only “where

the defendant can show that he was substantially misled in formulating his [closing]

arguments or otherwise prejudiced.” Id. (internal quotation marks omitted); accord United

States v. Prawl, 168 F.3d 622, 629 (2d Cir. 1999); United States v. Adeniji, 31 F.3d 58, 64

(2d Cir. 1994). That is not this case.

The question whether venue could be based on a call from a government actor in the

Southern District of New York to Rommy in the Netherlands was first raised in connection

with defendant’s Rule 29 motion for acquittal. The district court concluded, “I don’t have

to reach that [question]” because there is evidence of “a call initiated by the defendant” to

the Southern District of New York. Trial Tr. 613. When the issue resurfaced at the charging

conference, the record shows that the district court made no ruling: “I think I want to think

a little bit more about this issue of the [outgoing] phone call.” Id. at 634. Ultimately, it opted

to finesse the point, offering the jury an illustrative example of venue that did not address the

possibility of outgoing calls establishing venue:

For example, if you find by a preponderance of the evidence that after the
alleged conspiracy was formed, a telephone call in furtherance of the
conspiracy was made to a location in the Southern District of New York, that
would be sufficient to fulfill the venue requirement, even if the call was made
to an undercover agent or some other nonconspirator.

Id. at 748-49 (emphasis added).

33
 Neither the prosecution nor the defense requested the district court to decide the

outgoing call issue before summation. Rather, the parties, no less than the district court,

apparently took a chance that the jury might decide the case without any need to resolve the

outgoing-call question. The gamble did not pay off. The jury’s direct inquiry about outgoing

calls, posed in the midst of deliberations, required the district court to address the question

left unanswered at the charging conference: whether the outgoing-call evidence could

support venue.

In these circumstances, we identify no Rule 30 violation. As our case law makes

plain, when a defendant is on notice that the propriety of a particular jury instruction is

subject to further consideration by the court, he cannot claim to have been substantially

misled in framing his summation. See United States v. Eisen, 974 F.2d 246, 256-57 (2d Cir.

1992) (holding that where defendant “was on notice that his requested charge was the subject

of further consideration,” he “could not have been substantially misled by the Court in

formulating his summation argument” (internal quotation marks omitted)). Indeed, although

Rommy contends that the challenged instruction was prejudicial because it “cut the legs out

from beneath” his manufactured venue argument, Appellant’s Br. 35, the instruction did no

such thing. Assuming the viability of a manufactured venue defense — which is debatable,

see infra at [35-38] — that doctrine functions only as a basis for rejecting venue in cases in

which the factual predicates for venue are established. Cf. United States v. Myers, 692 F.2d

34
823, 847 n.21 (2d Cir. 1982) (challenging venue, despite overt acts in Eastern District of

New York, based on purported government overreaching in steering those acts into district).

By instructing the jury that outgoing calls from, as well as incoming calls to, a government

agent in the Southern District of New York could constitute factual predicates for venue in

that district, the district court in no way undermined Rommy’s argument that, whatever

predicates might support venue in the Southern District of New York, those predicates had

been unfairly manufactured by the government to prosecute Rommy in a district that had no

actual connection to the charged crime.

c. The District Court Did Not Err in Failing to Charge
“Manufactured Venue” in Response to the Jury Inquiry

Rommy asserts that the district court committed reversible error in failing to include

a “manufactured venue” charge in its response to the jury inquiry about outgoing calls.

Specifically, Rommy faults the court for not instructing the jury that, if Agent Grey placed

telephone calls to Rommy for the purpose of “manufacturing venue” in the Southern District

of New York, venue in that district could not be sustained.

Rommy’s argument fails for several reasons. First, the district court acted well within

its discretion in concluding that the requested instruction was not strictly responsive to the

jury’s inquiry as to whether outgoing calls generally, and Agent Grey’s October 17 call in

particular, could support venue.12 While an accused is entitled to have the trial court include

12
The district court’s response is quoted in its entirety supra at [16-17].

35
in its initial instructions to the jury “any defense theory for which there is a foundation in the

evidence,” United States v. Allen, 127 F.3d 260, 265 (2d Cir. 1997) (internal quotation marks

omitted), a trial court responding to a note from a deliberating jury is only required to answer

the particular inquiries posed. The trial court enjoys considerable discretion in construing

the scope of a jury inquiry and in framing a response tailored to the inquiry. See United

States v. Young, 140 F.3d 453, 456 (2d Cir. 1998) (noting that response to jury request “is

a matter committed to the sound exercise of a trial court’s discretion”). In doing so, it is not

required to reference specific arguments advanced or defenses raised by counsel in urging

particular outcomes; cf. Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003) (“Because the

jury may not enlist the court as its partner in the factfinding process, the trial judge must

proceed circumspectly in responding to inquiries from the jury.”). That conclusion applies

with particular force in this case because Rommy argued manufactured venue to the jury

without requesting any such instruction from the court in the initial charge. In these

circumstances, he can hardly claim reversible error in the district court’s refusal to charge the

concept in response to a jury note that did not inquire on that subject.

Further, this court has never specifically ruled that a defendant is entitled to a

manufactured venue charge. The concept derives from a footnote in United States v. Myers,

in which this court did no more than leave open the possibility of invalidating venue in

circumstances where the “key events occur in one district, but the prosecution, preferring trial

36
elsewhere, lures a defendant to a distant district for some minor event simply to establish

venue.” 692 F.2d at 847 n.21 (citing United States v. Archer, 486 F.2d 670, 682 (2d Cir.

1973) (holding that government agents cannot manufacture federal jurisdiction)); see United

States v. Naranjo, 14 F.3d at 147 (rejecting defendant’s claim that government “artificially

created venue” in district). Myers itself presented no such venue concern because the “key

events” of the crime had, in fact, occurred in the district of prosecution. United States v.

Myers, 692 F.2d at 847 n.21. Thus, we had no occasion conclusively to decide the

availability of such a defense, much less the propriety of submitting it to a jury.

In the quarter century since Myers, this court has never vacated a conviction on the

basis of manufactured venue. Several of our sister circuits, moreover, have specifically

rejected or at least questioned the doctrine. See United States v. Rodriguez-Rodriguez, 453

F.3d 458, 462 (7th Cir. 2006) (rejecting both manufactured venue and manufactured

jurisdiction); United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995) (“There is no such

thing as manufactured venue or venue entrapment.” (internal quotation marks omitted)); see

also United States v. Spriggs, 102 F.3d 1245, 1250 (D.C. Cir. 1996) (expressing reservations

as to “manufactured venue”); Andrews v. United States, 817 F.2d at 1279-80 [7th Cir.]

(observing that appropriate way to address prosecution venue shopping is through transfer

pursuant to Fed. R. Crim. P. 21). However convincing their reasoning, we need not here

conclusively decide the continued vitality of the manufactured venue doctrine because the

37
record evidence clearly does not support its application to this case. See United States v.

Stewart, 433 F.3d 273, 310 (2d Cir. 2006) (holding that refusal to give charge requested by

defense does not warrant reversal unless “instruction is legally correct, represents a theory

of defense with basis in the record that would lead to acquittal, and the theory is not

effectively presented elsewhere in the charge” (internal quotation marks and citations

omitted)).

Rommy was not “lure[d]” telephonically into the Southern District of New York to

pursue a smuggling conspiracy otherwise focused elsewhere. United States v. Myers, 692

F.2d at 847 n.21. To the contrary, Rommy selected the district as the destination objective

of the charged conspiracy. It was he who proposed smuggling ecstasy into New York, first

to Bosch and then to DeVries and Agent Grey, telling them that he had confederates in place

in New York ready to accept delivery of ecstasy pills. When Bosch expressed a preference

to import the pills through Miami, Rommy stated that his New York associates would travel

to Florida to arrange for the drugs’ transportation to New York. Rommy reiterated his New

York objective to Agent Grey both guardedly in the recorded telephone conversations and

bluntly in the videotaped Bermuda meeting. Viewed in this context, Rommy’s five recorded

telephone conversations with government actors in New York cannot be viewed as “minor

event[s]” engineered “simply to establish venue.” Id. Rather, they were overt acts critical

38
to the furtherance of a criminal scheme that Rommy wished to realize in the Southern District

of New York.

Accordingly, we identify no error in the district court’s refusal to charge manufactured

venue in response to the jury’s venue inquiry.

B. Evidentiary Challenges

Rommy submits that a number of erroneous evidentiary rulings require reversal of his

conviction. Specifically, he asserts that (1) the district court erred in failing to suppress the

five telephone calls recorded in New York and the videotape of the meeting in Bermuda as

fruits of DEA violations of the Mutual Legal Assistance Treaty (“MLAT”) in effect between

the United States and the Netherlands; (2) his post-indictment statements to DEA agents

while incarcerated in a Madrid prison should have been suppressed for failure to secure

waivers of his Fifth and Sixth Amendment rights; and (3) by allowing the prosecution to read

into evidence the transcript of a telephone conversation recorded in 2000 by Dutch

authorities, the district court violated Fed. R. Evid. 803(5) and 901(a), as well the Due

Process and Confrontation Clauses of the Constitution. None of these arguments warrants

reversal.

1. The MLAT Challenge to the Admission of Recorded Evidence

Rommy contends that the DEA violated the MLAT in effect between the United

States and the Netherlands, as well as Dutch domestic law, by employing a confidential

39
informant (DeVries) to gather evidence in the Netherlands after Dutch officials had denied

the United States’ MLAT request to conduct an undercover investigation in their country.

Rommy submits that the treaty violation required the district court to suppress all evidence

obtained from DeVries’s use as an informant in the Netherlands and all fruits derived

therefrom, specifically, the five telephone calls with Rommy in the Netherlands that were,

in fact, recorded in New York, and the videotaped meeting between Rommy, DeVries, and

Agent Grey in Bermuda.

On review of a district court’s ruling on a motion to suppress evidence, we examine

findings of fact for clear error, viewing the evidence in the light most favorable to the

government, and we apply de novo review to the district court’s conclusions of law. See

United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004); United States v. Casado, 303

F.3d 440, 443 (2d Cir. 2002). Following these principles, we conclude that Rommy’s treaty

argument fails for two reasons.

First, Rommy cannot demonstrate a treaty violation. The Treaty on Mutual Assistance

in Criminal Matters between the United States and the Netherlands, a self-executing

agreement that entered into force in this country on September 15, 1983, see Treaty on

Mutual Assistance in Criminal Matters, June 12, 1981, U.S.-Neth., 35 U.S.T. 1361, T.I.A.S.

No. 10,734, provides various means for the governments of the two countries to provide legal

assistance to one another in criminal matters, see id. art. 1 (describing type of assistance

40
available); see also id. arts. 13-16 (outlining procedures for making and responding to

requests for assistance). It also places certain limitations on how information obtained

pursuant thereto may be used. See id. art. 11. By its express terms, however, the treaty has

no application to evidence obtained outside the MLAT process. Article 18, subsection 1,

states:

Assistance and procedures provided by this Treaty shall be without prejudice
to, and shall not prevent or restrict, any assistance or procedure available under
other international conventions or arrangements or under the domestic laws of
the Contracting Parties.

Id. art. 18, subsec. 1. This does not mean that United States or Dutch authorities, operating

without MLAT authorization, may act with impunity in conducting law enforcement

investigations in each others’ countries. To the contrary, it means that, when securing

evidence without MLAT authorization, foreign government officials lacking diplomatic

immunity must conduct themselves in accordance with applicable “domestic laws.” Id.

Thus, when DEA agents proceeded to use DeVries as a confidential informant in the

Netherlands even after their MLAT request to do so was denied, they did not violate the

treaty. They did, however, subject themselves and their informant to any constraints imposed

on private actors by Dutch law. We need not here decide whether any DEA actions violated

Dutch domestic law.13 The admissibility of evidence in a United States court depends solely

13
Although DeVries supplied the DEA with information obtained in the course of his
undercover dealings with Rommy, it does not appear that the DEA recorded any

41
on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d

Cir. 1998) (observing that “federal law governs the admissibility of evidence in a federal

criminal trial”); United States v. Brown, 52 F.3d 415, 420 (2d Cir. 1995) (noting that “federal

law is applicable in a federal prosecution even when state police officers [are] involved” in

investigating case); United States v. Pforzheimer, 826 F.2d 200, 203 (2d Cir. 1987) (stating

that “federal law governs federal prosecutions in federal court” (internal quotation marks

omitted)); cf. United States v. Alvarez-Machain, 504 U.S. 655, 670 (1992) (holding that

defendant’s forcible abduction from Mexico, authorized by DEA officials, did not prohibit

trial in United States for violations of United States criminal laws). Rommy makes no claim

on appeal that the DEA’s undercover investigation generally, or its recording of the

telephone calls in the United States or the meeting in Bermuda specifically, violated any

United States law.

A second reason Rommy’s MLAT argument fails is that he cannot demonstrate that

the treaty creates any judicially enforceable individual right that could be implicated by the

government’s conduct here. As the Supreme Court has long observed, absent explicit treaty

language conferring individual enforcement rights, treaty violations are generally addressed

conversations or conducted any wiretaps in the Netherlands, as proposed in the original
MLAT request. Indeed, nothing in the record indicates that Dutch authorities think that their
law was violated in this case. A contrary inference might be drawn from the fact that the
Netherlands granted the United States’ second MLAT request, sharing its own evidence
against Rommy for use in the Southern District prosecution.

42
by the signatory sovereigns through diplomatic channels. See Head Money Cases, 112 U.S.

580, 598 (1884) (noting that “treaty is primarily a compact between independent nations” and

“depends for the enforcement of its provisions on the interest and the honor of the

governments which are parties to it”). For any number of reasons, sovereigns may elect to

overlook non-compliance with particular treaty requirements in given cases. Thus, a proper

respect for the diplomatic choices of sovereign nations prompts courts generally to apply “a

strong presumption against inferring individual rights from international treaties.” United

States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001).

In United States v. Davis, 767 F.2d 1025 (2d Cir. 1985), we were required to consider

a similar use-limitation provision in an MLAT between the United States and Switzerland.

We concluded that the “clear and unambiguous language” reflected the intention of the

signatory states that the Treaty “would not — except in certain specifically designated

circumstances — confer judicially enforceable rights on individuals,” and that any potential

exceptions were “not implicated” in Davis’s case. Id. at 1030. Accordingly, we rejected his

claim that evidence allegedly obtained in violation of that treaty should be excluded.14

14
The Davis panel referred to the question as one of “standing.” Id. We think that
the use of the term was analytically incorrect. Neither Rommy nor Davis failed to allege,
e.g., a “direct injury” as the constitutional standing doctrine requires. See, e.g., City of Los
Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Nor does it make sense in this context to
discuss the Supreme Court’s “prudential” standing doctrine, which may prevent parties from
asserting 1) the rights of someone not before the court, 2) generalized grievances, or 3) rights
outside the “zone of interests” protected by a given statutory or constitutional provision. See,

43
 Here, the signatories’ intent not to create judicially enforceable individual rights is

equally clear. Article 18, subsection 2, of the MLAT states:

Except where this Treaty specifically sets forth rules for the admissibility of
evidence, the provisions of this Treaty shall not give rise to a right on the part
of any person to take any action in a criminal proceeding to suppress or
exclude any evidence. This Treaty does not expand or limit rights to judicial
review otherwise available under domestic law.

MLAT, art. 18, subsec. 2.

Rommy argues that Article 11, subsection 2, of the treaty “specifically” addresses “the

admissibility of evidence,” and therefore provides an exception to this general bar to the

creation of individual rights. That provision states:

The Requesting State shall not use any evidence obtained under this Treaty,
nor any information derived therefrom, for purposes other than those stated in
the request, without the prior consent of the Requested State.

Id., art. 11, subsec. 2.

Assuming arguendo that this language does create a judicially enforceable individual

right, i.e., that a criminal defendant could object in court to the use of certain evidence “for

purposes other than those stated in the request,” id., the provision is of no help to Rommy.

The evidence Rommy seeks to exclude — the five telephone calls with Rommy in the

Netherlands (recorded in New York) and the recording of the meeting in Bermuda — were

obtained after a request from the United States to make such recordings was refused.

e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975).

44
Accordingly, we have no difficulty concluding that this evidence was not “obtained under”

the M LAT and is, therefore, not subject to the strictures of Article 11. Id. Because the

challenged recordings were not obtained pursuant to treaty and nothing in Article 11,

subsection 2, purports to regulate the admissibility of evidence obtained outside the treaty

process, the propriety of suppressing any such evidence is governed solely by United States

domestic law. See generally Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2678-82 (2006)

(observing that exclusionary rule “is an entirely American legal creation” and that application

of rule is governed by United States domestic law).

Because Rommy’s MLAT-based argument for suppression of evidence thus lacks any

foundation in the text of the treaty, we conclude that it was properly denied.

2. The Constitutional Challenges to the Madrid Prison Statements

Unrefuted record evidence demonstrates (1) that Rommy himself requested a meeting

with DEA agents at the M adrid prison where he was incarcerated pending extradition to the

United States; (2) that Rommy’s avowed purpose was to persuade the agents that he could

provide extensive information on large-scale drug traffickers; (3) that, in the course of the

meeting, Rommy in fact volunteered incriminating information about himself 15 and more

than a dozen other traffickers, none of whom were known to the agents in attendance; and

15
While Rommy admitted drug trafficking in Europe, he was careful to insist that he
had never transported drugs to the United States, despite the purported importuning of
various persons, including DeVries.

45
(4) that Rommy arranged for his girlfriend, but not his lawyers, to attend the meeting.

Rommy nevertheless contends that, because the agents posed questions at the meeting, his

statements were inadmissible at trial without a waiver of his Fifth Amendment Miranda

rights and his Sixth Amendment right to counsel.

At the outset, we observe that neither in the district court nor on this appeal do the

parties dispute the applicability of Fifth and Sixth Amendment protections to the custodial

interrogation of a foreign national outside the United States by agents of this country engaged

in a criminal investigation. See generally United States v. Bin Laden, 132 F. Supp. 2d 168,

185-89 (S.D.N.Y. 2001) (positing right to Miranda warnings in that context). The only issues

presented for our review are whether the agents’ actions at the Madrid prison meeting

constituted interrogation for purposes of the Fifth Amendment or the deliberate elicitation

of incriminating statements for purposes of the Sixth Amendment.

On review of a motion to suppress evidence, we examine the record in the light most

favorable to the government, see United States v. Oates, 560 F.2d 45, 49 (2d Cir. 1977),

reviewing the district court’s factual findings for clear error and its legal conclusions de

novo, see United States v. Rodriguez, 356 F.3d at 257-58; United States v. Garcia, 339 F.3d

116, 118-19 (2d Cir. 2003).

46
 a. Fifth Amendment Claim

Rommy’s Fifth Amendment claim is based solely on his failure to be advised of and

to waive the rights identified in Miranda v. Arizona, 384 U.S. at 479; accord Dickerson v.

United States, 530 U.S. 428, 443-44 (2000) (reaffirming Miranda). He does not claim that

his statements were otherwise coerced.

Because Miranda warnings are intended “to dissipate the compulsion inherent in

custodial interrogation and, in so doing, guard against abridgment of the suspect’s Fifth

Amendment rights,” Moran v. Burbine, 475 U.S. 412, 425 (1986), it naturally follows that

Miranda’s warning and waiver requirements apply only in the context of “custodial

interrogation,” i.e., a person must have been both in custody and subjected to interrogation

for statements made without warnings or waiver to be inadmissible in the government’s case

in chief. Miranda v. Arizona, 384 U.S. at 444; accord United States v. Newton, 369 F.3d

659, 669 (2d Cir. 2004). Miranda defined “interrogation” as “questioning initiated by law

enforcement officers.” 384 U.S. at 444. The Supreme Court later refined this definition to

include “not only . . . express questioning, but also . . . any words or actions on the part of

the police . . . that the police should know are reasonably likely to elicit an incriminating

response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnotes

omitted); see id. at 300-01 (defining interrogation as “either express questioning or its

functional equivalent”); accord Rosa v. McCray, 396 F.3d 210, 220-21 (2d Cir. 2005);

47
United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989). Because the underlying

purpose of the Miranda rule is to dispel compulsion, the relevant inquiry in deciding whether

words or actions constitute interrogation focuses “primarily upon the perceptions of the

suspect, rather than the intent of the police.” Rhode Island v. Innis, 446 U.S. at 301; see

Wayne R. LaFave et al., 2 Criminal Procedure § 6.7(a), at 543 (2d ed. 1999) (contrasting

Miranda’s focus on perception of suspect in determining whether incriminating statements

are product of interrogation with Sixth Amendment’s focus on intent of police in deciding

whether statements were deliberately elicited in violation of right to counsel).

As Miranda itself recognized, however, “[v]olunteered statements of any kind are not

barred by the Fifth Amendment” and, thus, do not require preliminary advice of rights.

Miranda v. Arizona, 384 U.S. at 478 (“There is no requirement that police stop a person who

enters a police station and states that he wishes to confess to a crime, or a person who calls

the police to offer a confession or any other statement he desires to make.” (footnote

omitted)); accord Rhode Island v. Innis, 446 U.S. at 300. In Edwards v. Arizona, the

Supreme Court explained that, even if a defendant has asserted his Fifth Amendment right

to counsel, if the defendant “himself initiates further communication” with law enforcement,

“nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely

listening to his voluntary, volunteered statements and using them against him at the trial.”

451 U.S. 477, 485 (1981).

48
 Edwards cautioned, however, that

[i]f, as frequently would occur in the course of a meeting initiated by the
accused, the conversation is not wholly one-sided, it is likely that the officers
will say or do something that clearly would be “interrogation.” In that event,
the question would be whether a valid waiver of [the defendant’s Fifth
Amendment rights] had occurred . . . .

Id. at 486 n.9. Romm y asserts that his case fits this scenario. While he concedes that he

initiated the meeting with DEA agents at which the challenged statements were made, he

submits that because the conversation was “not wholly one-sided,” it must be viewed as

interrogation requiring advice of rights. Id.

In fact, Edwards draws no bright line requiring a finding of custodial interrogation in

every case in which a law enforcement officer interrupts a defendant’s volunteered narrative

to ask a question. As a leading commentator has observed, “Miranda covers only police

conduct likely to be coercive . . . which cannot be said of a question that does nothing more

than seek clarification of what the defendant has already volunteered.” LaFave et al., 2

Criminal Procedure § 6.7(d), at 567. This comports with the Supreme Court’s instruction

that “[f]idelity to the doctrine announced in Miranda requires that it be enforced strictly, but

only in those types of situations in which the concerns that powered the decision are

implicated.” Berkemer v. McCarty, 468 U.S. 420, 437 (1984). A number of our sister

circuits have concluded that Miranda concerns are not implicated in follow-up questions to

volunteered statements. See United States v. Koontz, 143 F.3d 408, 411 (8th Cir. 1998)

49
(holding “statements made in response to a law enforcement officer’s attempt to seek

clarification of a defendant’s remarks, during an interview requested by the defendant, are

not the products of interrogation” (internal quotation marks omitted)); United States v.

Gonzales, 121 F.3d 928, 940 (5th Cir. 1997) (ruling that “when a suspect spontaneously

makes a statement, officers may request clarification” of ambiguities “without running afoul

of the Fifth Amendment”); Andersen v. Thieret, 903 F.2d 526, 532 (7th Cir. 1990) (rejecting

custodial interrogation challenge when, in response to suspect’s volunteered statement, “I

stabbed her,” police asked, “Who?”); United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.

1985) (holding that no interrogation occurred where, in response to suspect’s volunteered

statement, “You can’t take that,” police inquired, “why,” and suspect replied, “I can’t run my

business without that”). But see United States v. Crowder, 62 F.3d 782, 785-86 (6th Cir.

1995) (holding that police officer interrogated suspect when, after suspect stated that shotgun

was “in the wood,” officer asked clarifying question about location).

We do not — indeed, without review of a full record, we cannot — here decide

whether we would reach the same conclusion as our sister circuits in each of these cases. We

note simply our agreement with the general principle recognized therein: where a person in

custody volunteers incriminating information to the police, simple clarifying questions do not

necessarily constitute interrogation. In so holding, we recognize that follow-up questions can

take a variety of forms. Careful inquiry into the underlying facts and circumstances may thus

50
be necessary to determine whether a suspect in a particular case would have reasonably

understood that the follow-up questions were seeking only to clarify information already

volunteered rather than to compel further incriminatory disclosures. In this respect, absent

extraordinary circumstances, a court may generally conclude that follow-up questions asking

only for volunteered information to be repeated or spelled do not constitute interrogation.

The same conclusion might also easily apply to discrete questions seeking confirmation of

what appears implicit in the volunteered disclosure.16 But where questions seek to “expand

the scope” of volunteered statements, a more searching inquiry may be necessary to

determine whether they have moved beyond neutral clarification to interrogation. LaFave

et al., 2 Criminal Procedure § 6.7(d), at 566-67 (suggesting that defendant’s statement given

after follow-up questions is appropriately deemed “volunteered only if the questions are

neutral efforts to clarify what has already been said rather than apparent attempts to expand

the scope of the statement previously made”).

This case, however, presents us with no such concerns. Although Rommy claimed

that the agents asked more than follow-up questions at the Madrid meeting, nothing in the

record indicates clear error in the district court’s contrary conclusion.17 As the district court

16
For example, when a volunteered statement, “I bought the drugs on March 15,”
prompts an agent to ask, “Of this year?” the exchange is unlikely to constitute interrogation
even if the defendant responds to the former inquiry by saying, “No, 2006.”
17
Although Rommy faults the district court for failing to conduct an evidentiary
hearing on the scope of the agents’ questions, defense counsel explored the issue on cross-

51
expressly found, Rommy not only “voluntarily initiated the meeting with the DEA agents,”

he “chose the subjects” discussed. United States v. Rommy, No. 02 Cr. 994 (JSR), 2005 WL

1941625, at *2 (S.D.N.Y. July 28, 2005). Agent Fernandez testified without contradiction

at trial that, because he knew nothing about Rommy’s drug activities or the activities of the

persons named, the Madrid meeting was basically a narrative by Rommy,18 punctuated only

by questions to clarify the spellings or dates of information being volunteered and, on one

occasion, to understand a drug abbreviation. On de novo review of Rommy’s legal

challenge, we conclude that such questions did not transform the meeting into an

interrogation requiring the advice or waiver of Miranda rights. Nothing in the record

supports a conclusion that Rommy could have perceived the agents to be seeking

incriminating information beyond what he had already volunteered. See Rhode Island v.

Innis, 446 U.S. at 301.

In an effort to avoid this conclusion, Rommy asserts that Agent Fernandez’s statement

about leniency converted the prison meeting into an interrogation. In support, he cites United

States v. Montana, in which this court held that a federal agent’s “unsolicited statement

examination of Agent Fernandez at trial and developed no evidence at odds with the district
court’s pre-trial findings. In any event, as we note infra at [58-59], even if Rommy could
persuade us that his Madrid prison statement should have been suppressed, the admission of
this evidence was plainly harmless in light of other overwhelming evidence of guilt.
18
Rommy’s natural loquaciousness in touting his drug experience and familiarity with
large-scale traffickers was apparent on the videotape of the Bermuda undercover meeting.

52
informing the defendants that any cooperation would be brought to the attention of the

Assistant United States Attorney constituted interrogation.” 958 F.2d 516, 518 (2d Cir.

1992) (internal quotation marks omitted). This case is plainly distinguishable from Montana.

Most obviously, Agent Fernandez’s statement about leniency was not “unsolicited,” but a

direct response to Rommy’s assertion that his purpose in asking for a meeting with DEA

agents was to obtain leniency. In United States v. Miller, we held that an agent’s statement

to a defendant that he “could help himself by cooperating did not constitute interrogation

since it was not unsolicited but was made in response to [defendant’s] own question as to

what penalties he faced.” 116 F.3d 641, 680 (2d Cir. 1997). In fact, this case raises even

fewer concerns than Miller because Agent Fernandez did not suggest to Rommy that he

“could help himself by cooperating” with the DEA. Id. Quite the contrary, the agent warned

Rommy that cooperation might not result in his obtaining the desired leniency, whereupon

the agent even offered to terminate the meeting. Under these circumstances, Rommy cannot

claim that his decision to proceed with the meeting and to volunteer extensive statements was

the product of interrogation.

Accordingly, we conclude that the district court properly refused to suppress Rommy’s

Madrid statements on Fifth Amendment grounds.

53
 b. Sixth Amendment Claim

Rommy submits in the alternative that suppression of the Madrid statements was

required because they were made after he had been indicted in the United States and without

a knowing and intelligent waiver of his Sixth Amendment right to counsel.

The Sixth Amendment states, in pertinent part, that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.

Const. amend. VI. The right attaches at the “initiation of adversary judicial proceedings,”

such as arraignment or the filing of an indictment, United States v. Gouveia, 467 U.S. 180,

188 (1984); United States v. Yousef, 327 F.3d 56, 140 (2d Cir. 2003), and extends to all

“critical stages” of a criminal prosecution, including post-indictment interviews with law

enforcement authorities, Michigan v. Jackson, 475 U.S. 625, 630 (1986); see Patterson v.

Illinois, 487 U.S. 285, 290 (1988); Maine v. Moulton, 474 U.S. 159, 170 (1985). Once the

right attaches, “the Sixth Amendment renders inadmissible in the prosecution’s case in chief

statements deliberately elicited from a defendant without an express waiver of the right to

counsel.” Michigan v. Harvey, 494 U.S. 344, 348 (1990) (internal quotation marks omitted);

accord Massiah v. United States, 377 U.S. 201, 206 (1964); United States v. Edwards, 342

F.3d 168, 182 (2d Cir. 2003). In contrast to the Fifth Amendm ent’s interrogation inquiry,

which focuses “primarily upon the perceptions of the suspect,” Rhode Island v. Innis, 446

U.S. at 301, deliberate elicitation under the Sixth Amendment “covers only those statements

54
obtained as a result of an intentional effort” on the part of government officials to secure

incriminating statements from the accused, United States v. Stevens, 83 F.3d 60, 64 (2d Cir.

1996) (emphasis added); see also Fellers v. United States, 540 U.S. 519, 524 (2004) (noting

that Sixth Amendment deliberate elicitation standard is “expressly distinguished” from Fifth

Amendment’s custodial interrogation standard); LaFave et al., 2 Criminal Procedure § 6.7(a),

at 543.

Rommy submits that, absent an explicit waiver of the right to counsel,19 the Sixth

Amendment, in fact, erects a higher bar to the admission of uncounseled statements than the

Fifth Amendment. While acknowledging that “nothing in the Sixth Amendment prevents a

suspect charged with a crime and represented by counsel from voluntarily choosing, on his

own, to speak with police in the absence of an attorney,” Michigan v. Harvey, 494 U.S. at

352; see Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986), Rommy points to language from

various Supreme Court cases in urging a conclusion that any government action beyond

merely listening to the defendant requires an express waiver of the right to counsel. See

United States v. Henry, 447 U.S. 264, 271-73 (1980) (holding that, even though prison

informant had not actually questioned the defendant, he was not simply “a passive listener”

but had “stimulated” conversations amounting to deliberate elicitation); cf. Kuhlmann v.

19
Because the district court concluded that Rommy’s statements were volunteered,
it appears not to have made a specific ruling as to waiver of Sixth Amendment rights.

55
Wilson, 477 U.S. at 459 (holding that, to pursue Sixth Amendment claim, “defendant must

demonstrate that the [government] took some action, beyond merely listening, that was

designed deliberately to elicit incriminating remarks”); United States v. Edwards, 342 F.3d

at 182 (observing that, if “defendant proceeds to make incriminating statements ‘without any

prompting or questioning by [government] officers,’ his Sixth Amendment rights are not

violated even if he had previously requested counsel” (alteration in original) (quoting United

States v. Stevens, 83 F.3d at 64 (2d Cir. 1996))).

Because the concerns animating the Sixth Amendment right to counsel differ from

those animating the Fifth Amendment’s prohibition on compelled incrimination, the Supreme

Court has itself differentiated the deliberate elicitation inquiry from the custodial

interrogation inquiry. See Fellers v. United States, 540 U.S. at 524. Compare United States

v. Wade, 388 U.S. 218, 226 (1967) (observing that Sixth Amendment right to counsel

“guarantee[s] that [the accused] need not stand alone against the State at any stage of the

prosecution, formal or informal, in court or out, where counsel’s absence might derogate

from the accused’s right to a fair trial”), with Moran v. Burbine, 475 U.S. at 425 (explaining

that purpose of Miranda warnings “is to dissipate the compulsion inherent in custodial

interrogation and, in so doing, guard against abridgment of the suspect’s Fifth Amendment

rights”). Understanding these different concerns proves most important in dealing with

classic situations where the Sixth, but not the Fifth, Amendment protections apply, e.g.,

56
where police engage a person not in custody whose Sixth Amendment right to counsel has

attached, or where a prison informant somehow importunes a defendant to make

incriminating statements. See generally Kuhlmann v. Wilson, 477 U.S. at 459 (noting that

“primary concern of the Massiah line of decisions is secret interrogation by investigatory

techniques that are the equivalent of direct police interrogation”). It is less obvious why the

two standards should yield different results in this case where an indicted defendant,

participating in a meeting that he had requested with persons he knew were law enforcement

officers, was asked a few neutral follow-up questions in the course of a lengthy volunteered

statement.

We recognize that when an agent, listening to a defendant’s volunteered statement,

asks him to spell a name, clarify a date, or explain an abbreviation, he does more than merely

listen to what the defendant is saying. See id. at 459; cf. United States v. Henry, 447 U.S.

at 271 n.9 (observing that electronic recording device poses no deliberate elicitation concern

because it “has no capability of leading the conversation into any particular subject or

prompting any particular replies”). But it is far from clear that such limited follow-up

questions could be found to “stimulate” discussion, to “lead[] the conversation into any

particular subject,” or to “prompt[] any particular replies” beyond what Rommy himself had

volunteered. United States v. Henry, 447 U.S. at 271 n.9.

57
 We need not decide whether the DEA’s follow-up questioning constituted deliberate

elicitation, however, because even if that questioning rendered Rommy’s volunteered prison

statement inadmissible under the Sixth Amendment, the error would certainly be plainly

harmless in light of other overwhelming evidence of guilt. See, e.g., Mitchell v. Esparza, 540

U.S. 12, 17-18 (2003) (“A constitutional error is harmless when it appears beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained.”

(internal quotation marks omitted)); see United States v. Dhinsa, 243 F.3d 635, 649-50 (2d

Cir. 2001) (collecting cases discussing harmless error in light of erroneous admission of

evidence).

To the extent Rommy’s Madrid prison statement acknowledged his own history of

drug trafficking in Europe and similar criminal activity by Bosch, Rinaldi, Zuchetto, Allen,

and DeVries, among numerous others, the statement corroborated similar testimony by Bosch

and Rinaldi, which, in turn, may have lent credibility to their account of Rommy’s interest

in smuggling ecstasy into New York. But, wholly apart from this co-conspirator testimony,

the charged conspiracy was overwhelmingly established by Rommy’s own words, recorded

on five telephone conversations and at a meeting in Bermuda. On these recordings, the jury

heard Rommy actively and explicitly negotiating the shipment of 300,000 ecstasy pills from

Europe to New York. Further, on these recordings, particularly the Bermuda videotape,

58
Rommy acknowledged that he had confederates in place in New York ready to take

possession and dispose of the pills upon their arrival in the United States.

On such a record, we can confidently conclude that any error in the admission of the

Madrid prison statements was harmless beyond a reasonable doubt.

3. Challenges to the Dutch Wiretap Transcript

Rommy asserts that the district court erred in allowing the prosecution to read into

evidence the transcript of an October 30, 2000 telephone call originally recorded by Dutch

authorities in which an unidentified person informs Rommy that another unnamed individual

has only 6,000 “Versace t-shirts” remaining. The government argued to the jury that this

evidence corroborated Bosch’s background testimony that, at Rommy’s behest, he had

transported a shipment of ecstasy pills stamped with the Versace logo to Switzerland.

Apparently, the prosecution proffered the transcript rather than the recording itself because

Dutch authorities declined to provide the latter in light of the fact that, under Dutch law, the

recording should have been destroyed some time earlier. Rommy contends that the

transcript’s admission did not comport with Fed. R. Evid. 803(5) (providing hearsay

exception for past recollection recorded), Fed. R. Evid. 901 (providing for evidence

authentication), or the Due Process and Confrontation Clauses of the Constitution.

59
 We review a district court’s evidentiary rulings deferentially for abuse of discretion,

see United States v. Dupre, 462 F.3d 131, 136 (2d Cir. 2006); United States v. Paulino, 445

F.3d 211, 217 (2d Cir. 2006), and identify none in this case.

a. Authentication Challenge — Fed. R. Evid. 901

To lay a proper foundation for the admission of a transcript into evidence, the

government must “produce clear and convincing evidence of authenticity and accuracy.”

United States v. Ham ilton, 334 F.3d 170, 186 (2d Cir. 2003) (internal quotation marks

omitted); see United States v. Anderson, 452 F.3d 66, 77 (1st Cir. 2006) (observing that

“when transcripts are offered for use, either as evidence or a jury aid, they should be

authenticated in the same manner as tape recordings that are offered in evidence” (internal

quotation marks omitted)). Under Rule 901 of the Federal Rules of Evidence, authentication

is satisfied “by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Fed. R. Evid. 901(a). Illustrative examples of such evidence include the

testimony of a “witness with knowledge” that “a matter is what it is claimed to be,” id.

901(b)(1), or testimony “describing a process or system used to produce a result and showing

that the process or system produces an accurate result,” id. 901(b)(9). Where evidence

includes a voice identification, authentication may be satisfied “by opinion [testimony] based

upon hearing the voice at any time under circumstances connecting it with the alleged

60
speaker.” Id. 901(b)(5); see United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001);

United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990).

In this case, the district court acted well within its discretion in finding the challenged

transcript adequately authenticated by prosecution witness Antoinette Leichel, a Dutch

detective sergeant personally involved in the wiretap investigation from which the transcript

derived. Although Det. Leichel had no specific present recollection of the October 30, 2000

call or of preparing the corresponding transcript, she testified that it had been her general

practice upon listening to calls intercepted during the investigation to prepare a

contemporaneous transcript. This testimony, together with the Dutch production of the

transcript in response to the United States’ second MLAT request, demonstrated a

sufficiently reliable process to authenticate the transcript as a product of the Dutch wiretap

investigation.

Insofar as Rommy challenges the authentication of his voice, Det. Leichel testified

that Rommy was not originally a subject of the wiretap investigation. Nevertheless, when

his voice was identified by a fellow officer familiar with it from another investigation, that

served as the basis for her initial identification on the transcripts. About a month after the

October 30, 2000 intercept, however, Det. Leichel spoke directly with Rommy at the time

of his arrest and personally recognized his voice as the one she had heard on the recorded

telephone calls and identified as his on the transcripts. Although Rommy complains that Det.

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Leichel lacked personal knowledge of Rommy’s voice at the time she made an initial

attribution with respect to the October 30 call, Rule 901 expressly states that voice

identification can be authenticated based upon “hearing the voice at any time.” Fed. R. Evid.

901(b)(5) (emphasis added).

b. Hearsay Challenge — Rule 803(5)

Rommy submits that the district court erred in receiving the transcript into evidence

as Det. Leichel’s recorded past recollection of what she had heard on the intercepted

telephone call. Fed. R. Evid. 803(5) recognizes as a hearsay exception

[a] memorandum or record concerning a matter about which a witness once
had knowledge but now has insufficient recollection to enable the witness to
testify fully and accurately, shown to have been made or adopted by the
witness when the matter was fresh in the witness’ memory and to reflect that
knowledge correctly.

For a statement to come within this rule, a proponent must show that (1) the witness’s

memory of the events detailed in the record was sufficiently impaired; (2) the witness

prepared or adopted the record at or near the time of the events reported; and (3) at that time,

the record correctly reflected the witness’s knowledge of the reported events. See Parker v.

Reda, 327 F.3d 211, 213 (2d Cir. 2003).

Det. Leichel’s testimony satisfied all three requirements in establishing the transcript

as a record of the words she heard when she listened to the intercepted October 30

conversation. To the extent Rommy reiterates his complaint that Det. Leichel had no

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personal knowledge of his voice at the time she prepared the transcript, his challenge fails.

Any error in the admission of the attribution was harmless in light of Det. Leichel’s

testimony at trial regarding her present recollection of hearing Rommy’s voice at the time of

his arrest, and her conclusion that it was the same as the one she had understood to be his on

the wire intercepts.20

c. Due Process Challenge

Rommy contends that admission of the transcript without the underlying tape

recording violated his due process right to a fair trial because he was thus precluded from

preparing a competing transcript or proving that the voice on the call was not his.

“The fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (internal quotation marks omitted). In this case, Rommy had ample opportunity at

trial to alert the jury to the unavailability of the actual recording and to challenge the

reliability of the transcript. Further, cross-examination afforded Rommy the opportunity to

challenge Det. Leichel’s present voice identification by highlighting her inability to recall

either the October 30 intercept or the preparation of the transcript, as well as her lack of

personal familiarity with Rommy’s voice at the time of the alleged recording and transcript

20
Det. Leichel’s identification of Rommy’s voice provided an adequate foundation
for the district court to admit the substance of his recorded statements for their truth as party
admissions. See Fed. R. Evid. 801(d)(2). Rommy raises no hearsay challenge to this ruling.

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preparation. Under these circumstances, we conclude that the unavailability of the original

recording did not deprive Rommy of due process. See United States v. Maxwell, 383 F.2d

437, 441-43 (2d Cir. 1967) (rejecting due process challenge to admission of transcript where

underlying recording had been accidentally erased and transcript preparer testified as to

accuracy); see also United States v. Ross, 33 F.3d 1507, 1514 n.10 (11th Cir. 1994)

(concluding, in case in which original recordings were destroyed by Spanish authorities, that

due process challenge to transcripts was without merit “in light of [defendant’s] ability to

cross-examine the government witnesses” who had prepared transcripts).21

d. Confrontation Clause

Rommy finally claims that the identification of his voice on the transcript violated his

Sixth Amendment right to confrontation because that identification derived from the hearsay

statement of a Dutch police colleague of Det. Leichel’s who did not testify at trial. As we

have already observed, the government did not rely on the transcript to identify Rommy’s

voice; it relied on Det. Leichel’s trial testimony. In any event, Rommy’s confrontation

challenge is meritless.

21
Insofar as Rommy cites cases noting that tape recordings, not transcripts, are the
best evidence of a recorded conversation, these cases reach that conclusion in circumstances
where the recording is available for trial, which, as the district court expressly found, is not
this case.

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 The Sixth Amendment guarantees an accused the right “to be confronted with the

witnesses against him” in all criminal prosecutions. U.S. Const. amend VI. In Rommy’s

case, the prosecution never attempted to use Leichel’s colleague as an absent “witness”

against Rommy. Rather, the existence of this colleague was elicited on cross-examination

by the defense. The defense purpose was not to prove the truth of the colleague’s

identification but to suggest the unreliability of Leichel’s own claim that she made an

independent identification of Rommy’s voice after speaking with him at his arrest. Cf.

United States v. Crawford, 541 U.S. 36, 59, n.9 (2004) (noting that Confrontation Clause

does not bar even the government from using testimonial statements “for purposes other than

establishing the truth of the matter asserted”).

In sum, we conclude that none of Rommy’s challenges to the district court’s

admission of the October 30 transcript has merit.

III. Conclusion

To summarize, we conclude that:

(1) the district court (a) properly instructed that venue must be proved by a

preponderance of the evidence, rather than beyond a reasonable doubt; (b) correctly charged

that a call placed by a government actor in Manhattan to the defendant in Amsterdam could

establish venue in the Southern District of New York, provided the defendant used the call

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to further the charged conspiracy; (c) committed no violation of Fed. R. Crim. P. 30; and (d)

properly declined to charge manufactured venue in response to the jury’s venue inquiry;

(2) the district court correctly refused to suppress recorded evidence as fruits of

alleged DEA violations of the MLAT in effect between the United States and the

Netherlands;

(3) defendant’s Fifth and Sixth Amendment challenges to statements made to DEA

agents at a defense-initiated prison meeting in Madrid are without merit or harmless; and

(4) the district court’s receipt into evidence of a telephone transcript prepared by

Dutch authorities did not violate the Federal Rules of Evidence, or the Due Process or

Confrontation Clauses of the Constitution.

A FFIRMED.

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