PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4060
SPENCER BOWENS, a/k/a Scooter,
a/k/a Clyde, a/k/a Melvin McCurdy,
a/k/a Doc Johnson,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-98-110)
Argued: February 29, 2000
Decided: August 18, 2000
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed in part and vacated in part by published opinion. Judge
Michael wrote the opinion, in which Judge Niemeyer and Judge Trax-
ler joined.
_________________________________________________________________
COUNSEL
ARGUED: Craig Stover Cooley, Richmond, Virginia, for Appellant.
David John Novak, Assistant United States Attorney, Richmond, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
A federal jury in the Eastern District of Virginia convicted Spencer
Bowens of conspiracy to possess and distribute crack cocaine, powder
cocaine, and heroin, in violation of 18 U.S.C. § 846; two counts of
harboring a fugitive from arrest, in violation of 18 U.S.C. § 1071; and
obstruction of justice, in violation of 18 U.S.C.§ 1503. Bowens
appeals his conviction and sentence for conspiracy and his convic-
tions for harboring a fugitive. He argues (1) that his conspiracy con-
viction must be reversed because the district court refused to instruct
the jury on multiple conspiracies, (2) that his two convictions for har-
boring must be reversed because of improper venue, and (3) that his
life sentence for conspiracy to distribute crack cocaine must be set
aside because it is impossible to tell from the jury's verdict whether
he was convicted for conspiracy to distribute crack or heroin. We con-
clude that the evidence did not support the existence of multiple con-
spiracies, so we affirm the conspiracy conviction. Because Bowens'
acts of harboring, the sole essential conduct element of the charged
offense, occurred outside the Eastern District of Virginia, venue in
that district was improper. We therefore vacate the harboring convic-
tions. Finally, we hold that the district court committed plain error by
sentencing Bowens for conspiracy to distribute crack cocaine in the
absence of a special verdict. However, we decline to notice that plain
error in light of the overwhelming, uncontroverted evidence that
Bowens did in fact conspire to distribute crack cocaine. We therefore
affirm Bowens' sentence on the conspiracy count.
I.
The drug conspiracy charged in this case concerned a large crack
distribution network known as the "Poison Clan." The Poison Clan
started out in Brooklyn, New York, in the mid-to-late 1980s. Later,
it extended north to Albany and the outskirts of Boston and south to
Baltimore, Washington, Richmond, Raleigh, Charlotte, and Colum-
bia, among other cities. Couriers used cars outfitted with secret com-
partments to transport crack from New York to points north and
south. (They made some deliveries of powder cocaine to the Caroli-
nas, where it then was cooked into crack.) The couriers returned to
2
New York with the proceeds, which were substantial. For example,
by the end of 1993 the organization's Richmond operations, where
shifts of dealers sold crack 24 hours a day, generated as much as
$80,000 per week. At the same time, the organization was making
weekly deliveries of crack to Albany and Baltimore while it looked
for still other opportunities to expand.
A man named Dean Beckford was the head of the Poison Clan.
Bowens was Beckford's confederate, eventually overseeing the orga-
nization's crack dealing operations in North and South Carolina.
Bowens' responsibilities included procuring drugs for couriers to
deliver to co-conspirators in the Carolinas, arranging meetings
between couriers and local dealers, and (on at least one occasion)
cooking powder cocaine into crack. In March 1994 Bowens traveled
from New York to Columbia, South Carolina, where he remained
long enough to set up a crack distribution operation on behalf of the
Poison Clan. Beckford sent couriers to Columbia with cocaine; Bow-
ens sent them back to Beckford with cash. Beckford and Bowens
referred to one another as "partners" and split the proceeds from the
organization's Carolina drug operations equally between themselves.
Other members of the organization testified that receiving a command
from Bowens was tantamount to receiving a command from Beckford
and that Bowens was Beckford's "surrogate."
In May 1995 members of the Poison Clan's Richmond contingent
began to suspect that they were under government surveillance. Wary
of the increased attention, Beckford and the man who oversaw the
Richmond operations, Ricardo Laidlaw, closed up shop in Richmond.
Laidlaw relocated to Brockton, Massachusetts, where he continued to
distribute crack for the Poison Clan. In Brockton the organization
once again attracted the attention of the police, forcing Laidlaw to
abandon that location and return to New York. The move provided lit-
tle cover, however, for in New York the members of the Poison Clan
found that "federal agents [were] everywhere." Throughout the sum-
mer of 1996 Bowens and Laidlaw repeatedly warned Beckford that
he was "hot," and the three men began to discuss plans for going into
hiding. Bowens had family in South Carolina, and he suggested that
Beckford and Laidlaw could hide there without attracting the atten-
tion of the police. When Bowens' aunt died in late August 1996, he
drove Beckford's Cadillac to St. Stephens, South Carolina, to attend
3
the funeral. While there, he registered the car in the name of his cou-
sin, Harold Bowens, and obtained South Carolina plates.
Bowens and Laidlaw's fears that the police were closing in were
well founded. On June 7, 1996, a federal grand jury in the Eastern
District of Virginia had returned a sealed indictment charging twenty-
three members of the Poison Clan, including Beckford and Laidlaw,
with conspiracy to distribute crack and powder cocaine. Additional
charges against Beckford included two counts of murder. That same
day, arrest warrants had also been issued (under seal) for all twenty-
three defendants. Bowens was not indicted in this first round.
Over the course of the summer of 1996 the FBI and the New York
City Police Department located most of the indicted members of the
Poison Clan. The FBI carried out a coordinated arrest plan in New
Haven, New York, Richmond, and Fort Lauderdale on August 26,
1996. Although Beckford and Laidlaw were in New York on that day,
they and a third member of the Poison Clan, Mark Phillips, success-
fully evaded arrest. The three decided that it was time to flee New
York. Beckford called Bowens in South Carolina, informed him of
the FBI's push to make arrests, and told him that they were heading
south to meet him. Before leaving, however, Beckford obtained four
kilograms of cocaine powder to supply the organization's North Caro-
lina market.
Garth Sambrano drove Beckford, Laidlaw, and Phillips to Wil-
mington, North Carolina, where they met up with Bowens and yet
another member of the ring, David Armstrong. In Wilmington, Beck-
ford, Laidlaw, and Bowens discussed the fact that Beckford and
Laidlaw were wanted by the authorities. Armstrong and Sambrano
were excluded from these conversations, however, since they were
not "in the inner circle." After a few days in Wilmington, Beckford,
Bowens, Laidlaw, Phillips, and Armstrong drove to St. Stephens.
They stayed there for the next few weeks at the home of Armstrong's
parents, who were also cousins of Bowens.
From St. Stephens, Beckford arranged for a courier to deliver pow-
der cocaine to Sambrano in Raleigh. When the drugs arrived, Beck-
ford, Bowens, Laidlaw, Phillips, and Armstrong drove to Raleigh,
where Armstrong had an apartment. Beckford, Bowens, and Laidlaw
4
cooked the cocaine powder into crack and then turned it over to Sam-
brano for distribution. Bowens directed Laidlaw to"tip" Armstrong
$200 for the use of his apartment, and Laidlaw did so.
In early October 1996 Beckford and Bowens decided to return to
New York, where Beckford's fiancee still lived and where Beckford
planned to get a phony New Jersey driver's license with Bowens'
help. While in New York, Beckford continued to send cocaine to
Laidlaw in Raleigh. After about a month Beckford returned to
Raleigh, while Bowens, who had been shot and wounded in the mean-
time, stayed behind in New York. Beckford was not gone for long,
however; in late November he drove back to New York to buy an
engagement ring for his fiancee. A few days later, on November 26,
1996, Beckford was arrested in Oceanside, New York.
Upon learning of Beckford's arrest, Bowens telephoned Laidlaw.
Bowens urged Laidlaw to work with him to "keep the operation
going." Laidlaw and the other North Carolina members of the group
continued selling the crack that they had on hand, periodically send-
ing cash to Bowens in New York. In January 1997 Bowens persuaded
Laidlaw, Phillips, and Sambrano to send him $55,000 in cash for
more crack that Bowens promised to ship. The money was sent, but
Bowens never delivered the drugs. In August 1997 Laidlaw and Phil-
lips were arrested in North Carolina. They cooperated with the
authorities and provided information that led to Bowens' indictment
and arrest in the spring of 1998. The indictment charged Bowens with
one count of conspiracy to distribute crack cocaine, powder cocaine,
and heroin; two counts of concealing a person from arrest; one count
of money laundering; and one count of obstruction of justice, for
instructing a grand jury witness to lie.1
At trial Bowens requested a multiple conspiracy instruction, which
the district court denied. Bowens also requested a jury instruction that
would have required the government to prove venue on the harboring
charges, that is, that the acts of harboring occurred in the Eastern Dis-
trict of Virginia. Bowens argued that the government's evidence
showed acts of harboring only in South Carolina. The district court
_________________________________________________________________
1 The money laundering charge was eventually dismissed by the gov-
ernment.
5
denied the request for a venue instruction, reasoning that since the
arrest warrants for Beckford and Laidlaw were issued in the Eastern
District of Virginia, venue was established there as a matter of law.
The jury convicted Bowens on the conspiracy count, both counts of
concealing a person from arrest, and the one count of obstruction of
justice. The district court sentenced Bowens to life in prison for the
conspiracy conviction. Bowens also received concurrent sentences of
60 months for each of his two convictions for harboring and 120
months for obstruction of justice. He appeals his conviction and sen-
tence for conspiracy and his convictions for harboring.2
II.
We first address Bowens' argument that the district court commit-
ted reversible error when it denied his request to instruct the jury on
multiple conspiracies. The gist of Bowens' argument is that the gov-
ernment's own evidence demonstrated that the various groups in the
(alleged) single conspiracy lacked any mutual interest in sustaining an
overall enterprise. Consequently, Bowens contends, the evidence sup-
ported a conclusion that there were multiple, competing conspiracies
rather than a single, overarching one. We disagree.
"A court need only instruct on multiple conspiracies if such an
instruction is supported by the facts." United States v. Mills, 995 F.2d
480, 485 (4th Cir. 1993). Bowens argues that the facts show that the
distributor groups in the various cities each had their own interests
that placed them at odds with one another, thereby precluding a single
conspiracy. For example, Bowens relies on evidence that deliveries of
crack to Richmond were sometimes delayed because the couriers
went to the Carolinas first, that Richmond distributors for the Poison
Clan did not share in the proceeds from drug sales in the Carolinas,
and that Bowens ripped off his North Carolina accomplices by steal-
ing $55,000 from them. None of this evidence suggests multiple con-
spiracies. Occasionally favoring the Carolina distributors as drugs
_________________________________________________________________
2 Bowens initially challenged all of his convictions on the ground that
the government had violated 18 U.S.C. § 201(c)(2) by offering his co-
conspirators lenity in exchange for their testimony. Bowens has with-
drawn that challenge in light of our recent decision in United States v.
Richardson, 195 F.3d 192, 194-97 (4th Cir. 1999).
6
were resupplied was a business decision that did not undermine the
existence of the single conspiracy. Nor does the fact that members
were only compensated for their own transactions disprove their par-
ticipation in a single, broad conspiracy. Finally, the fact that Bowens
stole from his confederates does not mean they were not in business
together.
A single conspiracy exists when there is an agreement to engage
in one overall venture to deal in drugs. See United States v. Leavis,
853 F.2d 215, 218 (4th Cir. 1988). Bowens suggests that because he
had nothing to do with the Poison Clan's Richmond contingent, he
was not part of some big conspiracy that included Richmond. The
government, however, proved that the Poison Clan was a large crack
distribution ring, led by Beckford, that operated up and down the East
coast, including in Richmond. And Bowens had a hand in most of
what Beckford did. Bowens was intimately involved in the leadership
of the Poison Clan. He and Beckford referred to each other as "part-
ners," and Bowens was described as Beckford's surrogate and as a
member of "the inner circle." At one point, Bowens was dispatched
to set up a crack distribution operation in South Carolina. Bowens
was also Beckford's counselor and confidant, advising him to flee
New York when Beckford became "hot." He arranged a hiding place
for Beckford so that when Beckford evaded capture the first time,
their drug partnership was able to continue. Bowens provided Beck-
ford with a falsified South Carolina vehicle registration and a phony
New Jersey driver's license. While Beckford hid out in the Carolinas
he and Bowens continued to run the drug ring together, arranging the
delivery of powder cocaine, cooking the powder into crack, distribut-
ing the crack to dealers, and sharing equally in the proceeds. When
Beckford finally was arrested, Bowens said he wanted to "keep the
operation going." Other factors also linked the Poison Clan's various
distribution units, including those in the Carolinas where Bowens
devoted much of his efforts. The several contingents of the Clan used
common methods of operation (the same drug couriers using the same
means of transporting and concealing the drugs). They also had com-
mon participants (Beckford and Laidlaw, among others) and common
leadership and direction (Beckford). Rather than showing multiple
conspiracies, the evidence showed that the members of the Poison
Clan, including Bowens, were linked by a "mutual interest in sustain-
ing [one] overall enterprise," an enterprise based on a single conspir-
7
acy. See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).
Because the evidence did not support the existence of multiple con-
spiracies, the district court did not err in refusing to instruct the jury
on this subject.
III.
Bowens also appeals his two convictions for harboring or conceal-
ing a fugitive from arrest, arguing that venue for those offenses was
not proper in the Eastern District of Virginia. There was no evidence
that Bowens engaged in any act in the Eastern District of Virginia to
harbor or conceal Beckford or Laidlaw. Nonetheless, the government
makes two alternative arguments to support its venue selection: first,
that venue was proper in the Eastern District of Virginia because an
element of the offense (issuance of the warrant) occurred there; sec-
ond, that venue was proper because Bowens' offense interfered with
the administration of justice in the Eastern District of Virginia.
Because both of these arguments fail, we vacate Bowens' harboring
convictions.
A.
Proper venue in a criminal prosecution is a constitutional right:
"The Trial of all Crimes . . . shall be held in the State where the said
Crimes shall have been committed." Art. III,§ 2, cl. 3. Article III's
command is reinforced by the Sixth Amendment, which provides a
criminal defendant with the right to a trial "by an impartial jury of the
State and district wherein the crime shall have been committed." See
also Fed. R. Crim. P. 18 ("Except as otherwise permitted by statute
or these rules, the prosecution shall be had in a district in which the
offense was committed."). The government bears the burden of prov-
ing venue (by a preponderance of the evidence). See United States v.
Barsanti, 943 F.2d 428, 434 (4th Cir. 1991). When a defendant is
charged with multiple counts, venue must be proper on each count.
See United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999).
While the venue rule -- trial in the district where the crime is com-
mitted -- seems straightforward, the place of the crime can be diffi-
cult to determine. Of course, Congress can prevent some of that
difficulty by including an express venue provision in a criminal stat-
8
ute. See, e.g., 18 U.S.C. § 228(e) (designating venue in prosecutions
for failure to pay child support); 18 U.S.C. § 1073 (designating venue
in prosecutions for flight to avoid prosecution or giving testimony);
18 U.S.C. § 1074(b) (same); 18 U.S.C. § 1512(h) (designating venue
in prosecutions for obstruction of justice and witness or juror tamper-
ing). When Congress does not indicate just where it considers the
place of the crime to be, the place "must be determined from the
nature of the crime alleged and the location of the act or acts consti-
tuting it." United States v. Anderson, 328 U.S. 699, 703 (1946). As
the Supreme Court has recently instructed, "[i]n performing this
inquiry, a court must identify the conduct constituting the offense (the
nature of the crime) and then discern the location of the commission
of the criminal acts." United States v. Rodriguez-Moreno, 526 U.S.
275, 279 (1999). The inquiry into the place of the crime may yield
more than one appropriate venue, see 18 U.S.C. § 3237(a), or even a
venue in which the defendant has never set foot, see Hyde v. United
States, 225 U.S. 347 (1912). In any event, the district "where the
criminal act is done . . . determines the jurisdiction" where the case
must be tried. Anderson, 328 U.S. at 705.
Here, the relevant statute, 18 U.S.C. § 1071, contains no venue provi-
sion.3 Thus, as the Supreme Court has instructed, we must determine
(1) the "nature of the crime" of concealing a person from arrest (the
conduct constituting the offense) and (2) the location of that criminal
conduct. See Rodriguez-Moreno, 526 U.S. at 279. Section 1071 pro-
hibits "harbor[ing] or conceal[ing] any person for whose arrest a war-
rant or process has been issued under the provisions of any law of the
United States, so as to prevent his discovery and arrest, after notice
or knowledge of the fact that a warrant or process has been issued for
the apprehension of such person." Thus, there are four essential ele-
ments of a harboring offense: (1) that a federal warrant had been
issued for a fugitive's arrest, (2) that the defendant knew that the war-
_________________________________________________________________
3 Section 1071 is part of Title 18, ch. 49, which contains four sections
dealing with fugitives from justice. The proper venue for a § 1071 prose-
cution appears to be a question of first impression. Likewise, we do not
know of any case discussing the proper venue for a prosecution under
§ 1072, which prohibits harboring or concealing an escaped prisoner.
The remaining two sections of Title 18, ch. 49 contain explicit venue
provisions. See 18 U.S.C. §§ 1073, 1074.
9
rant had been issued, (3) that the defendant harbored or concealed the
fugitive, and (4) that the defendant intended to prevent the fugitive's
discovery or arrest. See United States v. Silva , 745 F.2d 840, 848 (4th
Cir. 1984).
In order to prove that a defendant has illegally harbored a fugitive
from arrest, the government must prove that somebody (other than the
defendant) was a fugitive. Accordingly, the issuance of a federal
arrest warrant is an essential element of the government's case. Venue
does not necessarily lie, however, in every district where an essential
element of the offense has transpired. Rather, venue is limited to the
place "where the criminal act is done." Anderson, 328 U.S. at 705. See
also United States v. Cabrales, 524 U.S. 1, 7-8 (1998). We under-
stand this requirement to limit venue in a criminal trial to the place
of the essential conduct elements of the offense. The only conduct
proscribed by § 1071 is the act of harboring or concealing the fugi-
tive. Consequently, venue will lie only where acts of harboring or
concealing take place.
Our conclusion that venue is limited to the place where the essen-
tial conduct elements occur, without regard to the place where other
essential elements of the crime occur, is compelled by the Supreme
Court's two recent decisions dealing with venue in criminal prosecu-
tions, United States v. Cabrales, 524 U.S. 1 (1998), and United States
v. Rodriguez-Moreno, 526 U.S. 275 (1999). In the first case, Cabrales
was indicted in Missouri for laundering money generated by Missouri
drug sales. Although she also was indicted as a co-conspirator in the
Missouri drug activity, see United States v. Cabrales, 109 F.3d 471,
472 (8th Cir. 1997), Cabrales had laundered the money exclusively in
Florida. The Missouri district court dismissed the money laundering
charges for lack of proper venue, the government appealed, and the
Eighth Circuit affirmed. At the Supreme Court the government
pointed out that an essential element of a money laundering charge
under 18 U.S.C. §§ 1956(a)(1)(B)(ii), 1957(a) is proof that the funds
in question were the product of criminal activity. In Cabrales' case
that criminal activity occurred in Missouri, so venue was proper there,
the government argued. See Cabrales, 524 U.S. at 7-8. The Supreme
Court disagreed unanimously:
Whenever a defendant acts "after the fact" to conceal a
crime, it might be said, as the Government urges in this
10
case, that the first crime is an essential element of the sec-
ond, and that the second facilitated the first or made it prof-
itable by impeding its detection. But the question here is the
place appropriate to try the "after the fact" actor. As the
Government recognizes, it is immaterial whether that actor
knew where the first crime was committed. The money
launderer must know she is dealing with funds derived from
"specified unlawful activity," here, drug trafficking, but the
Missouri venue of that activity is, as the Eighth Circuit said,
"of no moment."
Id. (internal citations omitted). Since Cabrales' money laundering
conduct occurred entirely in Florida, venue was not proper in Mis-
souri. See id. at 10.
The very next term the Supreme Court decided Rodriguez-Moreno.
In that case the defendant (Rodriguez-Moreno) was charged with a
violation of 18 U.S.C. § 924(c)(1), which makes it a crime to "use[ ]
or carr[y] a firearm" "during and in relation to a crime of violence."
On the way to being charged with a gun crime, Rodriguez-Moreno
had kidnaped a drug dealer, held him for a few days in New Jersey,
and then moved him to another location in Maryland. While in Mary-
land Rodriguez-Moreno obtained a gun and used it to threaten the vic-
tim. Rodriguez-Moreno was later tried and convicted in the District
of New Jersey on the § 924(c)(1) (gun) charge. The Third Circuit
reversed the gun conviction for improper venue, reasoning that
Rodriguez-Moreno had neither "used" nor "carried" the gun in New
Jersey. See United States v. Rodriguez-Moreno , 121 F.3d 841, 850
(3d Cir. 1997). The Supreme Court reinstated the conviction. The
court of appeals had erred, the Supreme Court held, because it "over-
looked an essential conduct element of the § 924(c)(1) offense," spe-
cifically, the requirement that the defendant commit a crime of
violence. See Rodriguez-Moreno, 526 U.S. at 280.
Significantly, the Rodriguez-Moreno Court distinguished Cabrales
by observing that the "existence of criminally generated proceeds"
was only a "circumstance element" of money laundering. See
Rodriguez-Moreno, 526 U.S. at 280 n.4. The "circumstance element"
was supplied by proof of a prior crime, one committed before the
money laundering conduct began. See Cabrales, 524 U.S. at 7-8. The
11
"`anterior criminal conduct that yielded the funds allegedly laun-
dered'" therefore did not provide a basis for venue. See Rodriguez-
Moreno, 526 U.S. at 280 n.4 (quoting Cabrales, 524 U.S. at 7); see
also Cabrales, 524 U.S. at 8 n.2 (citing United States v. Lanoue, 137
F.3d 656, 661 (1st Cir. 1998) (stating that for crime of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
venue lies only where the firearm is actually possessed)). In contrast,
the underlying crime of violence required by § 924(c)(1) was an "es-
sential conduct element" of that offense. See Rodriguez-Moreno, 526
U.S. at 280 & n.4. In other words, committing a crime of violence is
conduct the defendant himself engages in as part of the gun offense
under § 924(c)(1). Thus, only the essential conduct elements of an
offense, not the circumstance elements, provide a basis for venue.
Applying that distinction to § 1071, it is clear that the issuance of a
warrant for a person's arrest is merely a circumstance element (albeit
an essential element) of the harboring offense. The place where that
warrant is issued, like the place of the drug trafficking in Cabrales,
is "of no moment."4
We therefore hold that the place where a criminal offense is com-
mitted is determined solely by the essential conduct elements of that
offense. We further hold that the only essential conduct element of
harboring or concealing a fugitive from arrest under 18 U.S.C. § 1071
is the act of harboring or concealing. It thus follows that venue in the
Eastern District of Virginia cannot be predicated on the fact that the
arrest warrants for Beckford and Laidlaw were issued there.
_________________________________________________________________
4 At first blush, it might seem that this rule imposes a significant limita-
tion on permissible venues. It does not. In determining venue for a partic-
ular offense, not only is the conduct of the defendant himself considered,
but the conduct of anyone with whom he shares liability as a principal
is as well. Thus, in a conspiracy charge, venue is proper for all defen-
dants wherever the agreement was made or wherever any overt act in fur-
therance of the conspiracy transpires. See Hyde , 225 U.S. at 356-67.
Likewise, a defendant who is charged as an aider or abettor is subject to
venue in any place where the principal could be tried. See id. at 362-67;
United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999). Finally, as we
explain in greater detail below, see part III.B., venue is proper where the
effects of criminal conduct are felt when Congress defines the essential
conduct elements of the offense in terms of those effects.
12
B.
We turn now to the government's alternative argument that venue
was proper in the Eastern District of Virginia because the act of har-
boring or concealing a fugitive from arrest interferes with the due
administration of justice in the district where the warrant was issued.
As the government points out, we previously have held that in deter-
mining the proper venue for criminal prosecutions, the inquiry into
the "nature of the crime" permits, indeed requires, an inquiry into
Congress's purposes in enacting a particular criminal statute. See
United States v. Murphy, 117 F.3d 137, 139 (4th Cir. 1997); United
States v. Cofield, 11 F.3d 413, 416-17 (4th Cir. 1993). Using that
approach, we have looked to the effect that Congress sought to pre-
vent by criminalizing specific conduct and have held that venue is
proper wherever that effect is felt. See Murphy , 117 F.3d at 140;
Cofield, 11 F.3d at 419. The government specifically relies on a line
of cases in which we have held that in prosecutions for crimes in the
nature of obstruction of justice, venue is proper in the district where
the obstruction would take effect. See Cofield , 11 F.3d at 419; United
States v. Kibler, 667 F.2d 452, 454-55 (4th Cir. 1982). According to
the government, harboring a fugitive is similar in nature to obstruc-
tion of justice in that it impedes the due administration of justice in
the court that issued the arrest warrant. As a result, the government
argues, venue for a § 1071 prosecution should lie in the district where
the effects of the criminal conduct are felt, that is, where the arrest
warrant was issued.
We do not reach the question whether harboring a fugitive is in
some sense an obstruction of justice crime. Instead, we conclude that
the Supreme Court's recent decisions in Cabrales and Rodriguez-
Moreno require us to determine venue solely by reference to the
essential conduct elements of the crime, without regard to Congress's
purpose in forbidding the conduct. Venue may nevertheless be proper
where the effects of criminal conduct are felt, but only when an essen-
tial conduct element is itself defined in terms of its effects. We elabo-
rate further below.
As we have already discussed, in Anderson the Supreme Court laid
out the two-part inquiry that guides venue analysis in the absence of
explicit direction from Congress: the place of committing the crime
13
"must be determined from the nature of the crime alleged and the
location of the act or acts constituting it." Anderson, 328 U.S. at 705.
Our own venue decisions have construed the command to determine
"the nature of the crime" as requiring an examination of the legislative
purpose of the criminal statute at issue. See Murphy, 117 F.3d at 139;
Cofield, 11 F.3d at 416-17. For example, in Cofield the defendant had
assaulted a witness in retaliation for her testimony in a criminal trial,
in violation of 18 U.S.C. § 1513(a) (now § 1513(b)). Although the
assault took place in the District of Columbia, Cofield was tried and
convicted in the Eastern District of Virginia, the place of the trial. We
acknowledged that the conduct proscribed by § 1513(a) -- "caus[ing]
bodily injury to another person" with intent to retaliate for that per-
son's testimony in an official proceeding -- had taken place exclu-
sively in the District of Columbia. Nonetheless, we consulted the
legislative history of § 1513 and determined that "the congressional
purpose in enacting the statute was to protect the integrity of the judi-
cial system," Cofield, 11 F.3d at 417, making § 1513 something of an
obstruction of justice statute. We then relied on other cases and stat-
utes involving obstruction of justice ("crimes of the same genre," id.
at 419) to hold that venue for prosecution of a crime that threatens the
integrity of the judicial process lies wherever the judicial process is
affected. Venue for Cofield's prosecution therefore was proper in the
Eastern District of Virginia. See id. at 418-419.
Our reasoning in Cofield, however, cannot be reconciled with the
Supreme Court's later decisions in Cabrales and Rodriguez-Moreno.
Rather, the Supreme Court's recent venue decisions instruct that "the
nature of the crime" refers only to the conduct constituting the
offense, see Rodriguez-Moreno, 526 U.S. at 279, and that the conduct
constituting the offense is limited to essential conduct elements, see
id. at 279 n.2; Cabrales, 524 U.S. at 7-9. Accord Cofield, 11 F.3d at
421-24 (Luttig, J., dissenting); United States v. Murphy, 117 F.3d
137, 142 (4th Cir. 1997) (Williams, J., concurring). Our conclusion
that venue must be determined solely by reference to the proscribed
conduct is compelled by the Supreme Court's unanimous opinion in
Cabrales. Emphasizing that the Florida money laundering at issue in
that case facilitated drug activity in Missouri and impeded its detec-
tion, the government urged the Court to consider"the interests of the
community victimized by drug dealers." Cabrales, 524 U.S. at 8, 9.
In making this argument, the government explicitly and extensively
14
relied on the legislative history of the money laundering statute. See
Brief for the United States, Cabrales, No. 97-643, 1998 WL 90828,
at *14 ("Congress has criminalized money laundering precisely
because it facilitates the profitable commission of the underlying
offenses."); id. at 1998 WL 90828, *17 ("Congress viewed money
laundering as a logical and prevalent outgrowth of the specified
unlawful activities." (citing S. Rep. No. 433, 99th Cong., 2d Sess. 2,
4 (1986); H.R. Rep. No. 855, 99th Cong., 2d Sess. Pt. 1, at 8, 13
(1986)); id. at 1998 WL 90828, *18-19 ("[T]he determination that
particular funds were illegally derived is central to the purpose and
proper application of the federal money laundering provisions."). The
Court refused to adopt the government's reasoning or to consider the
effects of money laundering on the Missouri community at all. See
Cabrales, 524 U.S. at 9. The unmistakable import of that refusal is
that proper venue is limited to the place where the defendant's crimi-
nal acts are committed, without respect to Congress's underlying pur-
poses in criminalizing those acts.
At the same time, we do not understand the Supreme Court's recent
decisions to have altered the well-established rule that Congress may,
consistent with the venue clauses of Article III and the Sixth Amend-
ment, define the essential conduct elements of a criminal offense in
terms of their effects, thus providing venue where those effects are
felt. See United States v. Johnson, 323 U.S. 273, 275 (1944) (observ-
ing that the Constitution permits Congress to "provide that the locality
of a crime shall extend over the whole area through which the force
propelled by an offender operates"); see also Rodriguez-Moreno, 526
U.S. at 279 n.2 (declining to reach government's argument that
"venue may be based upon the effects of a defendant's conduct other
than the one in which he performs the acts constituting the offense").
Thus, in a prosecution under the Hobbs Act, venue is proper in any
district where commerce is affected because the terms of the statute
itself forbid affecting commerce in particular ways. See 18 U.S.C.
§ 1951 (anyone who "in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in
commerce" by robbery, extortion, or threat of violence to person or
property is subject to criminal penalties); United States v. Stephenson,
895 F.2d 867, 875 (2d Cir. 1990); United States v. Lewis, 797 F.2d
358, 367 (7th Cir. 1986). Similarly, a former version of 18 U.S.C.
§ 1503 prohibited influencing, intimidating, or impeding a witness or
15
influencing, obstructing, or impeding the administration of justice.
Because the essential conduct elements were defined not just in terms
of the forbidden act, i.e., "assault" or "retaliate," but rather in terms
of their effects (intimidation of a witness or obstruction of the admin-
istration of justice), venue was proper in the district where those pro-
scribed effects would be felt. See Kibler, 667 F.2d at 454-55 (4th Cir.
1982) (construing 18 U.S.C. § 1503 (1981)); see also United States
v. Bradley, 540 F. Supp. 690, 694-95 (D. Md. 1982) (in prosecution
for "causing" a destructive device or substance to be placed on an air-
craft, in violation of 18 U.S.C. § 32(a)(2), venue lay in the district
where an innocent third party placed the defendant's bomb on a
plane). Those decisions are consistent with the requirement that venue
be predicated solely on essential conduct elements. This is because
the criminal statutes involved in those cases did not merely proscribe
particular acts, but actually defined the essential conduct elements in
terms of their particular effects, e.g., "affecting" interstate commerce
and "obstructing" or "impeding" the administration of justice.
When Congress defines the essential conduct elements of a crime
in terms of their particular effects, venue will be proper where those
proscribed effects are felt. The essential conduct element of § 1071,
"harboring or concealing a person," is not defined in terms of its par-
ticular effects. The statute does, however, contain the words "so as to
prevent [the fugitive's] discovery and arrest." In some circumstances,
"prevent" might be an essential conduct element that is described in
terms of its effects. See, e.g., 18 U.S.C. § 593 (officer or member of
the armed forces who "prevents or attempts to prevent . . . any quali-
fied voter of any State from fully exercising the right of suffrage at
any general or special election" commits a crime); 18 U.S.C.
§ 1169(b) (any person who "inhibits or prevents" certain individuals
from making reports of child abuse in Indian country commits a
crime); 18 U.S.C. § 1509 ("Whoever, by threats or force, willfully
prevents . . . or willfully attempts to prevent . . . the due exercise of
rights or the performance of duties under any order, judgment, or
decree of a court of the United States" commits a crime). Here, how-
ever, the language "so as to prevent [the fugitive's] discovery and
arrest" defines the requisite intent for the offense of harboring, not an
essential conduct element. See Silva, 745 F.2d at 848. Because § 1071
contains no other language that might be construed as an essential
conduct element, venue for a prosecution under that section is proper
16
only where defendant actually harbors or conceals a fugitive. Thus,
the possible disruption of the administration of justice in the district
issuing the arrest warrant is of no consequence in determining venue
for a prosecution under § 1071. We therefore hold that the district
court erred in considering the effect of Bowens' harboring offense in
determining venue.
C.
In summary, we hold that venue for a criminal prosecution must be
determined solely in reference to the essential conduct elements of the
charged offense. Venue will lie wherever those essential conduct ele-
ments have occurred. Venue will also lie where the effects of the
defendant's conduct are felt, but only when Congress has defined the
essential conduct elements in terms of those effects. The sole essential
conduct element of 18 U.S.C. § 1071 is the act of concealing a fugi-
tive, and that conduct is defined in the statute without reference to its
effects. Bowens' acts of harboring occurred outside the Eastern Dis-
trict of Virginia. We therefore hold that venue in that district was
improper, and we vacate Bowens' two convictions for violation of 18
U.S.C. § 1071.5
IV.
Last, Bowens challenges his life sentence on the drug conspiracy
conviction. The indictment charged Bowens with conspiracy to dis-
tribute crack cocaine, powder cocaine, and heroin. The district court
instructed the jury that it should convict on the conspiracy charge if
it found beyond a reasonable doubt that Bowens had entered an agree-
ment to distribute any of those three substances. Neither Bowens nor
the government requested a special verdict, and the jury returned a
general verdict of guilty. At sentencing, without objection from Bow-
ens, the district court calculated his sentence on the assumption that
the object of the conspiracy had been distribution of crack cocaine.
On that basis, Bowens received a life sentence. Bowens now argues
that it is impossible to determine which of the charged objects of the
_________________________________________________________________
5 Because we vacate Bowens' § 1071 convictions for lack of venue, we
need not reach his argument that the evidence of harboring or concealing
was insufficient to sustain the verdict.
17
conspiracy (distribution of crack cocaine, cocaine powder, or heroin)
the jury convicted him on. Consequently, Bowens contends, the dis-
trict court committed plain error by imposing the sentence based on
the most heavily punishable object of the conspiracy. We agree that
the district court committed plain error at sentencing. However, we
may excuse Bowens' failure to raise the issue in the district court, and
notice the error ourselves, only if it seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. We con-
clude that the evidence of a crack conspiracy was so overwhelming
that there is no question that the jury must have found Bowens guilty
of conspiracy to distribute crack cocaine. Accordingly, we decline to
notice the error and we affirm the sentence.
When a jury returns an ambiguous guilty verdict in a multiple-drug
conspiracy, the defendant "may be sentenced only up to the maximum
for the least-punished drug offense on which that conspiracy is
based." United States v. Rhynes, 196 F.3d 207, 238 (4th Cir. 1999),
rev'd in part on rehearing in banc, No. 97-4466, 2000 WL 929704
(4th Cir. July 10, 2000). See also Edwards v. United States, 523 U.S.
511, 515 (1998); United States v. Quicksey, 525 F.2d 337, 340-41 (4th
Cir. 1975). The statutory maximum sentence for conspiracy to distrib-
ute the quantity of heroin proved at trial (27.56 grams) is twenty
years. See 21 U.S.C. § 841(b)(1)(C). As a result, Bowens argues, he
must be retried on the conspiracy count or resentenced consistent with
conviction for a heroin conspiracy. See Rhynes , 196 F.3d at 239-40;
Quicksey, 525 F.2d at 341.
Since Bowens did not object to the general verdict, request a spe-
cial verdict, or object to being sentenced based on conspiracy to dis-
tribute crack cocaine, we review his claim for plain error. See Rhynes,
196 F.3d at 237; Fed. R. Crim. P. 52(b). "Rule 52(b) contains three
elements that must be established before we possess the authority to
notice an error not preserved by a timely objection: The asserted
defect in the trial proceedings must, in fact, be error; the error must
be plain; and, it must affect the substantial rights of the defendant."
United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996) (citing
United States v. Olano, 507 U.S. 725, 731-32 (1993)). Even when all
three of these elements are present, we should decline to notice an
error unless it "`seriously affect[s] the fairness, integrity or public rep-
18
utation of judicial proceedings.'" Olano, 507 U.S. at 736 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).
The first three requirements easily are satisfied here, since we
found the identical error to be plain and to affect substantial rights in
Rhynes. See Rhynes, 196 F.3d at 237-40. Nonetheless, we are con-
vinced that the fourth factor is not present: the error works no injus-
tice and does not "seriously affect[ ] the fairness, integrity, or public
reputation of the judicial proceedings." Olano, 507 U.S. at 736. In
contrast to Rhynes, in this case it is not"impossible to determine on
which statutory object or objects . . . the conspiracy conviction was
based." Rhynes, 196 F.3d at 238. Rather, the overwhelming and
essentially uncontroverted evidence shows that Bowens was a major
participant in a large crack distribution conspiracy. Therefore, we
decline to notice the error.
This was not a trial about a heroin conspiracy. Every government
witness who testified about the conspiracy testified to crack dealings,
preparation of crack, and delivery of either crack cocaine itself or
powder cocaine to be cooked into crack. Laidlaw testified that in June
1992 the Poison Clan was delivering three to four kilograms of crack
cocaine to Richmond every month. By the end of 1993 a courier
named Wayne Douglas Smith was making weekly deliveries of crack
to Richmond (and returning with $70,000 to $80,000 in proceeds),
even as he made other crack deliveries to representatives of the Poi-
son Clan in Albany and Baltimore. In May of 1996 yet another cou-
rier was delivering between two and two-and-a-half kilograms of
crack cocaine to Richmond two or three times a month. Once Bowens
was in the Carolinas, a courier named Alfred Cockfield made at least
two deliveries to Raleigh, each time consisting of four kilograms of
cocaine powder. Three different witnesses testified about Bowens
helping to cook one of those four-kilogram deliveries into crack for
North Carolina distribution. The substance of this testimony was
essentially uncontroverted, as the defense was almost exclusively
directed at attempting to impeach the government's witnesses. See
United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998) (declin-
ing to notice plainly erroneous instruction on "use or carry" element
of 18 U.S.C. § 924(c) in light of "overwhelming" and "essentially
uncontroverted" evidence that defendant carried a firearm during and
in relation to a drug trafficking crime).
19
In contrast to this overwhelming evidence of a large, complex net-
work dedicated to buying powder cocaine, cooking it into crack, dis-
tributing it to cities along the east coast, and delivering the cash
proceeds back to the organization's leaders in New York, no witness
testified to buying, manufacturing, or selling heroin. The only testi-
mony pertaining to heroin at all was that of Sharon Gelzer, a courier
who was arrested while making a delivery for Bowens, and that of the
police officer who arrested her. Gelzer was arrested with two kilo-
grams of cocaine powder and 27.56 grams of heroin in a piece of lug-
gage that Bowens had given her to carry. On a previous occasion,
Gelzer testified, she had successfully delivered two kilograms of (pre-
sumably powder) cocaine from Bowens to another member of the
organization, Willie Richardson, in South Carolina. Thus, assuming
that the jury believed Gelzer's testimony that she was involved in one
delivery of heroin for Bowens, it likewise would have believed her
testimony that she was involved in the delivery of at least two, if not
four, kilograms of powder cocaine from Bowens to the organization's
South Carolina dealers. And we know that Bowens' confederates
would have cooked that powder cocaine into crack because the only
evidence concerning the organization's South Carolina activity was
that it sold crack there. Consequently, even the isolated reference in
the record to heroin is inseparable from the overwhelming evidence
of a conspiracy to distribute crack cocaine. Under these circum-
stances, we are confident that no miscarriage of justice will result, nor
will the fairness or integrity of the proceedings be affected, from our
declining to notice the error in sentencing. Bowens' sentence is there-
fore affirmed.
V.
For the reasons stated, we affirm Bowens' drug conspiracy convic-
tion and his life sentence for conspiracy to distribute crack cocaine.
We vacate Bowens' two convictions for harboring a fugitive.
AFFIRMED IN PART AND VACATED IN PART
20