[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 27, 2005
No. 05-10319
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00014-CR-WCO-2-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTELLE TOWAYNE CONNER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 27, 2005)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Martelle Towayne Conner appeals his convictions on one count of
conspiring to knowingly cause false representations to be made with respect to
information required to be kept in the records of a federal firearms licensee, in
violation of 18 U.S.C. § 371, and one count of aiding and abetting another so as to
cause false representations to be made with respect to information required to be
kept in the records of a federal firearms licensee, in violation of 18 U.S.C. §§
924(a)(1)(A), 2. The three issues on appeal are: (1) whether the evidence was
sufficient to support the government’s contention that codefendant Martin was not
the “transferee;” (2) whether the district court abused its discretion when it
provided the jury with the government’s modified charge on the law of aiding and
abetting; and (3) whether the evidence was insufficient to support venue. We find
no reversible error and therefore affirm.
I.
In reviewing a conviction for sufficiency of the evidence, we examine the
evidence de novo in the light most favorable to the government, to determine
whether a rational jury could have concluded beyond a reasonable doubt that the
defendant was guilty of the crimes charged. United States v. McCrimmon, 362
F.3d 725, 728 (11th Cir. 2004) (per curiam).
In United States v. Nelson, 221 F.3d 1206, 1209 (11th Cir. 2000), we held
that false representations relating to information such as the identity of the actual
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buyer of the firearm are prohibited under § 924(a)(1)(A). The “actual buyer” for
the purpose of ATF 4473 Form is the person who supplies the money for and
intends to possess the firearms, not the “straw man” or agent. Id. at 1210.
In this case, the following evidence produced at trial was sufficient to
support the jury’s verdict: (1) Conner was several months behind on his rent; (2)
Conner asked codefendant Martin to purchase firearms for Conner; (3) Conner told
Martin that he would provide the money to purchase the firearms; (4) Conner told
Martin that he intended to sell the firearms in New York; (5) while in the shop,
Conner passed money, from behind, to Martin for the firearms; (6) after Martin
purchased the firearms, Conner took possession; (7) Conner knew of the firearms
transaction form from his 1996 purchase of firearms; and (8) one of the firearms
listed on the 1996 transaction record was recovered in New York.
Upon the basis of this evidence, a rational jury could find beyond a
reasonable doubt that Conner was the actual buyer for purposes of the firearms
transaction record. Therefore, we affirm Conner’s conviction for knowingly
causing false representations to be made with respect to the records of a federal
firearms licensee.
II.
To properly preserve an objection to instructions charged to the jury, Federal
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Rule of Criminal Procedure 30(d) requires that a party inform the trial court of the
specific objection and the grounds for the objection before the jury retires to
deliberate.
We review a district court’s refusal to give a particular jury instruction for
abuse of discretion. United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir.
2003). The failure of a district court to give an instruction is reversible error where
the requested instruction (1) was correct, (2) was not substantially covered by the
charge actually given, and (3) dealt with some point in the trial so important that
failure to give the requested instruction seriously impaired the defendant’s ability
to conduct his defense. Id. at 1223.
Title 18 U.S.C. § 2(b) states that “[w]hoever willfully causes an act to be
done which if directly performed by him or another would be an offense against
the United States, is punishable as a principal.” In United States v. Walser, 3 F.3d
380, 388 (11th Cir. 1993), we held that “[t]he standard test for determining guilt by
aiding and abetting is to determine whether a substantive offense was committed
by someone, whether there was an act by the defendant which contributed to and
furthered the offense, and whether the defendant intended to aid its commission.”
(internal quotation omitted). We further stated that a defendant “may be indicted
as a principal for the commission of a substantive crime and convicted upon
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evidence that he or she aided and abetted only.” Id. Therefore, a defendant “is
criminally culpable for causing an intermediary to commit a criminal act even
though the intermediary has no criminal intent and is innocent of the substantive
crime.” Id.
In United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004), we
affirmed the conviction of a defendant where the jury was wrongly charged with
Pattern Instruction No. 7 for aiding and abetting because improperly putting the § 2
liability theory before the jury was harmless error. In Hornaday, we applied the
standard of non-constitutional error harmlessness set forth in Kotteakos v. United
States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), that a non-
constitutional error is harmless if, viewing the proceeding in its entirety a court
determines that the error did not affect the verdict, or had a “very slight effect.”
Hornaday, 392 F.3d at 1315.
In this case, Conner properly preserved his objection to the charged jury
instructions when he objected with specificity before the jury retired for
deliberations. However, Conner fails to show that charging the jury with the
modified version of Pattern Instruction No. 7 is reversible error under the abuse of
discretion test. See Yeager, 331 F.3d at 1223. Here, Conner requested an
instruction pertaining to aiding and abetting. Although the instruction requested
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was correct, the instruction actually charged substantially covered what Conner
requested. The charged instruction included language taken directly from 18
U.S.C. § 2(b) that addressed the aiding and abetting theory of the indictment.
Moreover, Conner’s objection fails as to the third element of the abuse of
discretion test because the instruction charged did not seriously impair Conner’s
ability to conduct his defense. We have held that 18 U.S.C. § 2(b) allows a
defendant to be indicted as a principal for the commission of a substantive crime
and be convicted upon evidence that he aided and abetted only. See United States
v. Hamblin, 911 F.2d 551, 557-58 (11th Cir. 1990); Walser, 3 F.3d at 388. Thus,
under §2(b) Conner may be held liable for causing Martin, the straw man, to
commit a criminal act even though Martin had no criminal intent and is innocent of
the substantive crime. Therefore, we discern no reversible error in the district
court’s use of the modified jury instruction.
III.
Proof of jurisdiction and venue are essential elements of any crime in the
sense that the burden is on the government to prove their existence. United States
v. Barnes, 681 F.2d 717, 722 (11th Cir. 1982). Venue is proper in any district in
which the offense was committed, Fed. R. Crim. P. 18; 18 U.S.C. § 3237(a), and
“the offense of conspiracy is ‘committed’ in any district in which an overt act is
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performed in furtherance of the conspiracy.” United States v. Lewis, 676 F.2d 508,
511 (11th Cir. 1982). The government need prove facts supporting venue only by
a preponderance of the evidence. United States v. DeLeon, 641 F.2d 330, 336 (5th
Cir. Unit A Apr. 1981).1
In Weaver v. United States, 298 F.2d 496 (5th Cir. 1962), we faced a
challenge similar to the one presented in this case. First, we noted that a district
court could take judicial notice of certain facts, including whether particular streets
were located within a city in the lower court’s judicial district, but we also
observed that such an action was not required where the indictment language,
opening statements, and witness testimony supported such an inference. Id. at 497-
99. Because the events and testimony at trial in this case closely parallel those in
Weaver, we find that Weaver is controlling.
Judicial notice may be taken of an adjudicative fact not reasonably disputed
because it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of “accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201. Title 28
U.S.C. § 90 provides that Georgia shall be divided into three judicial districts, with
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
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four separate divisions comprising the Northern District. Under § 90(a)(1), the
Gainesville Division includes Barrow County, where Winder is located. The
provisions of § 90 are also referred to in an Appendix to the Local Rules of the
Northern District of Georgia. N. D. Ga. App. A-2.
In United States v. Benson, 495 F.2d 475 (11th Cir. 1974), we reviewed a
conviction for robbery committed within the territorial jurisdiction of the United
States. At trial, evidence showed that acts were committed at Fort Rucker, in
Alabama, but it did not show that the fort was within the territorial jurisdiction of
the United States. Id. at 481. On appeal, the Benson panel noted that the “court
will take judicial notice of the facts which vest the United States with jurisdiction,”
which would serve as “a valid substitute for proof.” Id. (internal marks and
quotation omitted). We find that Benson is directly applicable here.
In this case, the indictment read that the charged conduct took place in the
Northern District of Georgia, and both counts one and two specified that certain
predicate acts took place at a pawn shop located in Winder, Georgia. Testimony at
trial supported a finding that the firearms were purchased and the forms completed
at a pawn shop in Winder, Georgia, which is located in Barrow County in the
Gainesville Division in the Northern District of Georgia. Because both Weaver
and Benson reject similar challenges, and because it would be appropriate to take
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judicial notice that Winder is in the Northern District of Georgia, we affirm the
district court’s rejection of Conner’s venue challenge.
Conclusion
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. Accordingly, we affirm.
AFFIRMED.
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