United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 10, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-50029
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THERESA LUCRETIA STRAIN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Theresa Lucretia Strain was convicted by a jury of one count
of harboring or concealing a fugitive, her husband Robert
Navarrette Chavez, in violation of 18 U.S.C. § 1071. The
conviction would have been an easy affirmance if the case had been
tried in New Mexico. But it was not. We reverse because the
evidence is insufficient to prove that the crime of harboring or
concealing a fugitive occurred in the Western District of Texas,
where the case was tried. See U.S. CONST. art. III, § 2, amend. VI.
I
The events leading up to Theresa Strain’s conviction began on
June 18, 2003, when a federal warrant was issued for Robert
Chavez’s arrest on various narcotics and firearms charges. On June
24, Deputy U.S. Marshals Steve Clark and Phillip Maxwell went to
Strain’s Midland, Texas, residence in an attempt to locate Chavez.
Clark informed Strain and two of her roommates of Chavez’s
outstanding arrest warrant. Maxwell further explained to Strain
that if she in any way assisted Chavez, she could be exposing
herself to criminal penalties. Strain responded that she had not
spoken to Chavez for two months, but then admitted that he had
called her at work on a few occasions, but not within the last two
weeks (which would place these calls before June 18, when Chavez
was indicted).
Approximately two days after the marshals’ visit, one of
Strain’s roommates, Elizabeth Rodriguez, called the marshals’
office and told them that Strain had asked her to watch Strain’s
children so she could travel “to the next town”. Rodriguez
testified at trial that she believed that Strain was referring to
Big Spring, Texas, which is located approximately forty miles from
Midland. Rodriguez further testified that Strain never told her
why she made the trip.
Then, according to Strain, on the night of June 27, Chavez
called her at the Pizza Hut in Midland where she worked, told her
that he wanted to turn himself in to the authorities, and
instructed her to meet him in Carlsbad, New Mexico. She then drove
to Carlsbad with her three children. Upon meeting Strain in
Carlsbad on June 28, Chavez told her to rent a motel room. Strain
2
did so, and Chavez later met her there. That night and the
following day, Strain testified, they discussed Chavez’s plan to
turn himself in. When Strain awoke on the morning of June 30,
however, Chavez had already exited through the window. Strain
testified that, because he left his personal effects in the room,
she thought he would be returning, and thus set out with her
children to get something to eat.
While driving, Strain was stopped by officers with the Pecos
Valley Drug Task Force, who observed that none of her three
children were wearing seatbelts. The officers became suspicious
when they saw that she was wearing nothing but a nightgown. Strain
explained that she was on vacation and staying in a local motel.
When asked where her husband was, she replied that he was wanted
for drug violations and that she had not seen him in two months.
Because they did not believe Strain’s story, the officers asked to
search her motel room, and she consented.
Upon discovering men’s clothing in the motel room, the
officers advised Strain of her rights. At that point, she admitted
that Chavez had been in the room that morning and that a Cadillac
parked outside belonged to him. The officers then noticed that the
bathroom window was open, and a footprint on the wall indicated
that someone had climbed out of it. Less than one hour later, a
patrol unit found Chavez in an empty lot nearby.
Strain was indicted on one count of harboring or concealing a
fugitive in violation of 18 U.S.C. § 1071. Strain’s indictment
3
charged that the offense occurred in the Western District of Texas
and the District of New Mexico. She was tried and convicted in the
Western District of Texas’s Midland Division. Strain challenged
venue at trial via two motions for acquittal under FED. R. CRIM. P.
29(a), one at the close of the Government’s case and one at the
close of all evidence. The district court denied both motions.
The court, however, gave the jury special instructions regarding
proof of venue by a preponderance of the evidence. The jury
returned a special verdict finding that “the offense charged ...
was begun in the Western District of Texas”. As such, venue was
deemed proper and Strain was convicted. She now appeals the
conviction.
II
The right of the accused to be tried in the state and district
where the alleged offense was committed –- that is, the venue
requirement –- finds its source in both the United States
Constitution1 and federal statutory law.2 In the case before us,
there is some dispute between the parties as to what standard we
1
Article III, § 2 provides that the “trial of all Crimes ...
shall be held in the State where said Crimes shall have been
committed”. The Sixth Amendment further entitles the accused to
trial “by an impartial jury of the State and district wherein the
crime shall have been committed”.
2
See, e.g., 18 U.S.C. § 3237(a) (providing that, where the
Government alleges a continuing offense committed in multiple
districts, it must show that the trial is taking place “in any
district in which [the] offense was begun, continued, or
completed”); see also FED. R. CRIM. P. 18.
4
are to apply in reviewing questions of venue. As the Government
points out, we previously have said that “[w]e review all questions
concerning venue under the abuse of discretion standard”. United
States v. Brown, 250 F.3d 907, 912 (5th Cir. 2001). Strain,
however, asserts that venue is a legal issue and is thus reviewed
de novo.
The source of the parties’ disagreement is an imprecise
framing of the question for review. Strain, however, does allege
a specific, reversible error. She contends that, given the lack of
evidence to support venue, the district court erred in denying her
motions for acquittal. Thus, the relevant question for this court
is whether the Government presented the jury with sufficient
evidence to support a finding that Strain’s offense “was begun,
continued or completed in the Western District of Texas”, such that
FED. R. CRIM. P. 29(a) would not mandate acquittal for failure to
prove venue. As such, we will review to determine whether, ”after
viewing the evidence in the light most favorable to the
prosecution, any rational finder of fact could have found” that
venue was proven by a preponderance of the evidence.3 Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
A
3
Although venue is an element of any criminal offense, the
prosecution’s burden of proof in establishing venue differs from
the burden of proving other elements. The prosecution need only
show the propriety of venue by a preponderance of the evidence, not
beyond a reasonable doubt. United States v. Winship, 724 F.2d 1116,
1124 (5th Cir. 1984).
5
We first consider whether Strain has waived her objection to
venue by failing to raise it before trial. Generally, “[a]
defendant indicted by an instrument which lacks sufficient
allegations to establish venue waives any future challenges by
failing to object before trial”. United States v. Carreon-Palacio,
267 F.3d 381, 392-93 (5th Cir. 2001). However, “where adequate
allegations are made but the impropriety of venue only becomes
apparent at the close of the government’s case, a defendant may
address the error by objecting at that time, and thus preserving
the issue for appellate review”. Id.
Strain’s objection to venue essentially runs as follows:
Strain’s indictment contained an allegation that venue was proper.
Further, Strain was aware that the Government intended to present
evidence of events –- most notably, her telephone conversations
with Chavez –- that might have formed the basis for venue in the
Western District of Texas, depending upon how they were presented
to the jury at trial. Strain’s claim is that the evidence finally
presented to the jury was not sufficient to support a finding that
venue was proper.
We agree that Strain’s objection as to the sufficiency of the
evidence could not have been raised adequately before the
prosecution presented the entirety of its case. Strain did not
know exactly what evidence the Government might present at trial.
Indeed, it appears that the Government itself was somewhat confused
as to what evidence it would present in support of venue, given the
6
incorrect assertion in its brief to this court that Big Spring,
Texas, to which Strain supposedly traveled on or about June 26,
lies in the Western District of Texas.4 Strain did expect,
however, that the Government would call Elizabeth Rodriguez to
testify regarding Strain’s telephone conversations with Chavez.
During its examination of Rodriguez, however, the Government failed
to elicit any testimony regarding those conversations. Thus, it
appears that the impropriety of venue would have become apparent to
Strain only after the prosecution had presented its evidence.
Strain’s objection was therefore preserved by her motions for
acquittal under FED. R. CRIM. P. 29(a) at the close of the
prosecution’s case and at the close of evidence. See id.
B
We turn now to the substance of Strain’s appeal. Where, as
here, a criminal statute lacks an express venue provision, the
Government must show by preponderance of the evidence that the
trial is occurring in a district “where the offense [was] done”.
See United States v. Anderson, 328 U.S. 699, 705 (1946); see also
FED. R. CRIM. P. 18. Where the Government alleges a single
continuing offense committed in multiple districts, it must show
that the trial is taking place “in any district in which [the]
4
In fact, as the Government noted at oral argument, Big
Spring lies in the Northern District of Texas. As such, we
disregard the Government’s contention that Rodriguez’s testimony
regarding Strain’s alleged trip to Big Spring might form the basis
for the jury’s finding of venue in the Western District.
7
offense was begun, continued, or completed”. 18 U.S.C. § 3237(a).
Under either standard, the venue inquiry hinges to a large extent
on how we define the offense.
The offense of which Strain was convicted is defined by 18
U.S.C. § 1071 as “harbor[ing] or conceal[ing] any person for whose
arrest a warrant or process has been issued under the provisions of
any law of the United States, so as to prevent his discovery or
arrest, after notice or knowledge that a warrant or process has
been issued ...”. Strain does not dispute that a warrant had been
issued for Chavez’s arrest or that she had actual knowledge of that
warrant. The issuance of the warrant and Strain’s knowledge of it,
however, are “circumstance elements” of the offense of harboring,
insofar as they do not involve any proscribed conduct by the
accused. See United States v. Bowens, 224 F.3d 302, 311 (4th Cir.
2000) (citing United States v. Rodriguez-Moreno, 526 U.S. 275, 280
n.4 (1999); United States v. Cabrales, 524 U.S. 1, 7-8 (1998)).5
5
The Government’s argument on this point is different from
that which it advanced in Bowens. Instead of asserting that venue
is proper in the district where a fugitive’s warrant was issued,
the Government here contends that “awareness of [a] federal
warrant” is a “conduct element” of 18 U.S.C. § 1071, such that
venue will lie in the district where the accused became aware that
said warrant was issued. Though distinct, both arguments are
meritless for the same reason: they seek to lay venue somewhere
other than the place “where the criminal act is done”. See
Anderson, 328 U.S. at 705. The only acts prohibited by § 1071 are
harboring and concealing. Becoming aware that a federal warrant
has been issued does not necessarily involve conduct of any kind by
the accused. It certainly does not involve “conduct constituting
the offense” proscribed by § 1071. See Rodriguez-Moreno, 526 U.S.
at 279. As such, it is a “circumstance element” of the offense,
and therefore not a basis upon which venue may be established.
8
As such, neither may serve as a basis for establishing venue in the
Western District of Texas. See id. Thus, the narrow question at
issue here is whether a jury reasonably could have concluded that
Strain’s conduct concerning Chavez, while she was in the Western
District of Texas, constituted the beginning, continuation, or
completion of the act of “harbor[ing] or conceal[ing] ... so as to
prevent his discovery or arrest”. 18 U.S.C. § 1071.
This court has been clear in its holding that 18 U.S.C. § 1071
“requires some affirmative action to support a conviction. Failure
to disclose a fugitive’s location and giving financial assistance
do not constitute harboring, but any physical act of providing
assistance ... to aid the prisoner in avoiding detection and
apprehension will make out a violation of section 1071”. United
States v. Green, 180 F.3d 216, 220 (5th Cir. 1999) (quoting United
States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990)).
On appeal, the Government advances two basic arguments as to
how a jury reasonably might conclude that Strain committed a
“physical act of ... assistance” while in the Western District of
Texas. First, the Government contends that it is more likely than
not that, during her June 27 telephone conversation with Chavez,6
6
The Government presents its argument on this point in less
precise terms, asserting that it can be inferred that Strain warned
Chavez of the marshals’ investigation at some point during one of
their “several” telephone conversations. We focus our inquiry on
the June 27 conversation because it is the only conversation
reflected in the record that occurred after the marshals’ visit on
9
Strain warned him to stay away from Midland. In the alternative,
the Government contends that Strain’s telephone conversations and
subsequent journey across the Western District of Texas toward
Carlsbad constituted the beginning of a continuing act of harboring
that was completed in New Mexico. We will address both contentions
in turn.
(1)
The Government first contends that a jury reasonably could
infer from the evidence presented that, during the June 27
telephone conversation, Strain “warned Chavez about the outstanding
warrant and the fact that officials had come to her residence
looking for him”. The Government argues that such a warning is an
act of concealing in violation of § 1071, and thus, establishes
venue in the Western District of Texas. Strain, however, denies
having provided Chavez with such a warning and insists that the
purpose of her final telephone conversation was to plan Chavez’s
surrender to authorities.7
June 24.
7
The Government cites our decision in United States v.
O’Banion to argue that the jury was entitled to reject Strain’s
characterization of the June 27 conversation as a matter of witness
credibility. 943 F.2d 1422, 1427 (5th Cir. 1991). While this is
certainly true, the jury’s right to reject a witness’s account of
events does not entitle it to substitute another account for which
there is no evidentiary support. See, e.g., United States v. Davis,
666 F.2d 195, 199 (5th Cir. 1980) (noting that a jury’s inferences
regarding venue must be supported by “evidence in the record as a
whole”). The relevant question, then, is whether there is support
in the record for the alternative account of the June 27
conversation proposed by the government.
10
We will assume, arguendo, that the alleged telephonic warning
is a “physical act” of concealing within the meaning of our holding
in Green. The relevant question thus becomes whether, under a
preponderance of evidence standard, the evidence actually presented
would permit a jury reasonably to infer that such a warning
occurred.
The Government cites our opinion in Weaver v. United States
for the proposition that a jury’s inferences based on
circumstantial evidence may form the basis for a finding that venue
has been established.8 See 298 F.2d 496, 497-98 (5th Cir. 1962).
Obviously, this is correct; circumstantial evidence may be
admissible to prove venue, just as it may be admissible for any
other purpose. Our holding in Weaver, however, does not alter the
general rule that a jury’s inferences must be supported by some
evidence in the record as a whole. See, e.g., United States v.
Davis, 666 F.2d 195, 199 (5th Cir. 1980).
In the case before us, there is no evidentiary hook to which
the jury might attach the inference suggested by the Government.
The only hook available is the telephone conversation occurring on
8
In Weaver, we held that a jury reasonably could infer venue
in the Southern District of Alabama from testimony that the
defendant was observed committing the violation on certain streets,
the names of which were, if not peculiar to Mobile, Alabama,
certainly uncommon and well-known to its inhabitants. In affirming
Weaver’s conviction, we noted that the inferential step involved
was sufficiently minor as to permit taking of judicial notice as to
the city in which the named streets were located. 298 F.2d at 498-
99.
11
June 27, the night before Strain left for Carlsbad. The only
evidence in the record concerning the content of that conversation
comes from the testimony of Strain herself. To be sure, the
entirety of the Government’s argument relating to “concealing by
warning” rests on this testimony:
Q. All right. Now, after you had this
conversation with Deputy Maxwell, did
Robert Chavez try to get in touch with
you again?
A. They said that he had called during the
day, but I wasn’t there. And then a
couple of nights before he had called and
said he –- he was very depressed. He had
a lot of things on his mind, like about
he didn’t want to live no more. But he
wanted to talk through to see where he
wanted to turn himself in. We were
having a real personal discussion.
***
Q. Did you tell Mr. Chavez –- did you give
Mr. Chavez Mr. Maxwell’s number and tell
him to turn himself in to Mr. Maxwell?
A. I told him everything that had been going
on for the last two months. I told him
everybody who came up to me, who
approached me with this. And he also
told me that he wasn’t wanted; that
everybody –- they were just trying to get
to this other guy that he knows; that
they’re just saying that so I would
probably say something that I wasn’t
supposed to, and that –- he said that he
didn’t want to go through Maxwell because
I –- what I had told him Maxwell said.
He told me, “Oh, okay. I’m going to walk
up to Maxwell, and he’s just going to
drop me like that.” And I was like, “I
know this other guy.” That is when I
brought in the other –- Roberts.
12
On cross-examination, the Government had a clear opportunity to
elicit more information concerning the content of the telephone
conversation, but elected to ask only one question, which had no
relevance to the “warning” theory it advances on appeal:
Q. But you admit you were called in Midland;
you agreed to meet Robert, who you knew
was a fugitive in Carlsbad; is that
correct?
A. Uh-huh.
Although there is ample evidence to show that, during this
telephone conversation, Strain made plans to meet and harbor Chavez
in New Mexico, there is nothing in the testimony to suggest that
Strain warned Chavez to stay away from Midland in general or her
residence in particular. Indeed, an opposite inference is
suggested when the conversation is considered in the context of the
record as a whole: she gave no such “warning” because a “warning”
would have been superfluous. Chavez apparently had fled Midland
immediately after his indictment was issued,9 and thus, was aware
that authorities were searching for him there. Further, the record
lends no doubt that, at the time of the conversation, Strain was
aware of Chavez’s presence in New Mexico and his strategy of
avoiding Midland. Moreover, even if we assume that a “warning” to
stay away from Midland implicitly was tucked into this conversation
9
In his affidavit in support of Strain’s indictment, Deputy
Marshall Maxwell stated that, after his indictment on June 18,
2003, Chavez “immediately absconded and fled the jurisdiction of
the Western District of Texas to avoid prosecution”.
13
somewhere, an observation of the obvious would not have provided
Chavez any measure of “aid ... in avoiding detection or
apprehension”. See Green, 180 F.3d at 220. All of the evidence –-
that is, all of the evidence –- that speaks to this subject matter
unequivocally suggests that at the time of this telephone
conversation, Chavez knew of the risk of apprehension and was
intentionally avoiding Midland in general and thus, by necessity,
Strain’s residence in particular.
In sum, the Government, which had the burden of proof, has
failed to proffer evidence from which a jury could infer that it
was more likely than not that the alleged warning occurred; the
conversation upon which the government relies only shows that
Strain had a general desire to assist Chavez, and made plans to do
so in New Mexico.
(2)
Finally, the Government contends that, even if Strain’s
telephone conversations were not, in themselves, violations of §
1071, they were part of a continuing offense, begun in the Western
District of Texas, such that venue would be proper under 18 U.S.C.
§ 3237(a). On its face, this argument has some appeal. Given the
particular facts of this case, however, we cannot agree.
A continuing offense is “a continuous, unlawful act or series
of acts set on foot by a single impulse and operated by an
unintermittent force”. United States v. Asibor, 109 F.3d 1023,
1031 (5th Cir. 1997) (quoting United States v. Midstate
14
Horticultural Co., 306 U.S. 161, 166 (1939)). Obviously, under
certain circumstances, an act of harboring or concealing in
violation of § 1071 may fall under this definition. That is to
say, once the offense of harboring has actually commenced, it may
be continued or completed in other districts or states, where venue
may be proper. Nonetheless, § 3237(a) does not exempt continuing
offenses from the general principle that preparatory acts alone
cannot support venue. See United States v. Beech-Nut Nutrition
Corp., 871 F.2d 1181, 1189-90 (2d Cir. 1989). Strain’s telephone
conversations with Chavez and subsequent journey through the
Western District of Texas toward Carlsbad, although indispensable
to the ultimate act of harboring in New Mexico, were preparatory
acts for the commission of the actual crime –- much like purchasing
a gun and traveling to a bank to commit a robbery –- and thus
insufficient to support a finding of venue.
III
In sum, we hold that the jury’s finding of venue is not
supported by evidence. As noted supra, a necessary corollary of
this holding is that the district court’s denial of Strain’s motion
for acquittal under FED. R. CRIM. P. 29(a) was in error. For the
reasons above, we reverse the ruling, vacate the judgment and
remand to the district court for entry of a judgment of acquittal.
REVERSED, VACATED and
REMANDED WITH INSTRUCTIONS.
15