FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-30270
Plaintiff-Appellee,
v. D.C. No.
CR-04-00106-EJL
MARK CASCH,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted May 1, 2006*
Portland, Oregon
Filed May 24, 2006
Before: John T. Noonan, A. Wallace Tashima, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Noonan
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
5759
UNITED STATES v. CASCH 5761
COUNSEL
Greg Silvey, Boise, Idaho, for the defendant-appellant.
Nancy Cook, Assistant United States Attorney, Coeur
d’Alene, Idaho, for the plaintiff-appellee.
OPINION
NOONAN, Circuit Judge:
Mark Casch appeals his conviction of conspiracy to possess
with intent to distribute methamphetamine and cocaine in vio-
lation of 21 U.S.C. §§ 841(a)(1) and 846. He contends that the
court erred by failing to instruct on venue and consequently
allowing him to be convicted on conduct uncharged in the
indictment. Ruling on an issue of first impression in this cir-
cuit, we affirm the judgment of the district court.
PROCEEDINGS
On February 23, 2005, Casch was charged in a single para-
graph superseding indictment with conspiracy, from July
1999 to May 18, 2004, to possess with intent to distribute 500
grams or more of methamphetamine and 500 grams or more
of cocaine “in the District of Idaho and elsewhere.”
Three witnesses testified for the government to sales or
deliveries of the drugs by Casch in Idaho. Three more wit-
nesses testified to purchases of drugs by Casch in the state of
Washington. Three additional witnesses testified to drug
transactions by Casch that occurred in both Idaho and Wash-
ington.
5762 UNITED STATES v. CASCH
In Instruction No. 23, the district court instructed the jury
that the government must prove the defendant entered an
agreement to commit at least one of the crimes charged in the
indictment. The defense objected as follows:
Instruction No. 23 does not have any kind of juris-
dictional element to it. I guess it may indirectly
because it says “did commit one crime as charged in
the superseding indictment.” And then if you look in
the superseding indictment, it does refer to the Dis-
trict of Idaho. So I guess like if all this stuff hap-
pened in Wisconsin, obviously this Court may not
have jurisdiction over this matter and the jury would
not have any jurisdiction to convict him if it
occurred like in Wisconsin or someplace. It just
seems like there needs to be something that this hap-
pened in the District of Idaho.
The court responded that the issue was “really a question
of law for the Court . . . . The Court would rule that as a mat-
ter of law, that venue jurisdiction does lie with this Court.”
The jury returned a verdict of guilty. Casch was sentenced
to 16 years in prison. He now appeals his conviction.
ANALYSIS
The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall have
been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the
Congress may by Law have directed. U.S. Const.,
Art. III, § 3.
[1] Embedded in the Constitution as a significant section of
the article creating the federal judicial system, this provision
determining the venue for federal criminal trials is part of the
UNITED STATES v. CASCH 5763
bedrock of our federal system. Persons charged with crimes
are to be tried where the crimes are said to have been done.
Division of venue by states trumps the national interest in
having a single place where all offenses against the nation
might be tried.
Casch contends that the indictment charging him with
offenses committed “in the District of Idaho or elsewhere”
permitted the jury, uninstructed as to venue, to convict him on
crimes committed in Washington. Casch characterizes this
result as a constructive amendment of the indictment. But
there was no “complex of facts” presented at trial “distinctly
different from those in the indictment.” United States v.
Adamson, 291 F.3d 606, 615 (9th Cir. 2006). Nor was there
a fatal variance. Id.
Casch also argues that the jury was free to be not unani-
mous, some members finding him guilty on account of his
conduct in Idaho, others on account of his conduct in Wash-
ington. He insists that it was for the jury to determine where
venue lay. Uninstructed, the jury did not do so. His point mer-
its examination.
[2] Venue is a question of fact: is there a match between the
place of commission of the crimes and the state where the
trial is taking place? United States v. Miller, 111 F.3d 747,
749 (10th Cir. 1997). Venue is not an element of the charged
crime, but establishment of venue is part of the prosecution’s
burden. Id. at 749-50. In a jury trial, it is not for the court to
determine that venue exists, and it is error for the court to
decline to give the instruction. Id. at 750.
[3] The error, which deprives the command in Article III of
effect, is of constitutional magnitude, but it is not structural —
that is, it does not deprive the trial of fundamental fairness.
See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). The
error is consequently susceptible of harmless error analysis.
5764 UNITED STATES v. CASCH
[4] Casch was properly convicted in this case if he was
convicted of a conspiracy entered into by him to possess
methamphetamine and cocaine with intent to distribute them
in Idaho. The evidence at trial was overwhelming that he had
formed such a conspiracy. It is a speculation without sub-
stance that any juror thought him innocent of conspiracy in
Idaho but guilty in Washington or that a less than unanimous
jury convicted him of the crimes in Idaho. See United States
v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003). Casch
was convicted of a crime in the venue in which he had com-
mitted it. See United States v. Martinez, 901 F.2d 374, 377
(4th Cir. 1990); United States v. Moeckly, 769 F.2d 453, 462
(8th Cir. 1985). Relying on these cases, we adopt their harm-
less error test in contrast to the apparently more vigorous stan-
dard set by the Tenth Circuit in Miller. See 111 F.3d at 753-
54. Because the evidence that Casch committed conspiracy in
Idaho was “substantial” and “uncontroverted,” the district
court’s error was harmless. See Martinez, 901 F.3d at 377;
Moeckly, 769 F.3d at 462. Here, as in Martinez, “proof of
venue may be so clear that failure to instruct on the issue is
not reversible error.” 901 F.2d at 376.
Accordingly, the judgment of the district court is
AFFIRMED.