UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 93-7187
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LONNIE CALDWELL and
JAMES PHILLIPS,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Mississippi
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(March 4, 1994)
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and LITTLE,* District
Judge.
LITTLE, District Judge:
Defendants-appellants Lonnie Caldwell and James Phillips were
found guilty in the Northern District of Mississippi of conspiring
to distribute marijuana. The United States District Court for the
Northern District of Mississippi found that venue was not in issue
insofar as Lonnie Caldwell had made numerous telephone calls in
furtherance of the conspiracy to the residence of a Larry Fulgham,
who lived in the Northern District of Mississippi. The appellants
appeal their convictions on grounds that the trial judge
*
District Judge of the Western District of Louisiana, sitting by designation.
incorrectly ruled that venue was proper, erroneously denied
objections concerning the admissibility of a co-conspirator's
statement, and improperly denied the appellants' request for a jury
determination on the issue of venue. For the reasons that follow,
we affirm the rulings of the district court.
I.
In early December of 1990, Larry Fulgham received a telephone
call from Lonnie Caldwell. As a consequence of this conversation,
Fulgham agreed to meet Caldwell in Leesville, Louisiana, where he
was recruited into an organization that smuggled marijuana out of
Mexico and into Texas, Louisiana, Indiana, and Kentucky, among
other places. A plan was formulated whereby Caldwell would call
Fulgham at his residence in Choctaw County, located in the Northern
District of Mississippi, and leave instructions on where Fulgham
was to go to pick up a load of marijuana. Fulgham would then
travel to the designated location, acquire the substance, and haul
it to the ultimate destination, typically Kentucky. James Phillips
participated in the organization by helping grow and deliver the
contraband.
The conspiracy came to an end on 6 February 1991, when Fulgham
contacted the Vicksburg, Mississippi Police Department and
confessed that he was part of a marijuana distribution business and
that he had hauled marijuana from Texas and Louisiana to Kentucky
on four or five occasions. Fulgham agreed to cooperate with law
enforcement officials in return for immunity from prosecution.
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Acting as a government informant, Fulgham called Caldwell from
Mississippi numerous times in an attempt to induce Caldwell to make
a sale in Mississippi. Caldwell could not be persuaded, although
he did consent to organizing a sale in Dallas, Texas. With the
help of Fulgham, a "buy-bust" operation was conducted in Dallas, at
which time the appellants were arrested and indicted for conspiracy
to distribute and to possess with the intent to distribute
marijuana.
At trial, the district judge took judicial notice of the fact
that Choctaw County is located in the Northern District of
Mississippi. Evidence was presented by the government that the
phone calls placed by Caldwell to Fulgham's home in Choctaw County
were made in furtherance of the conspiracy. At the close of the
government's case, the defense moved for an acquittal. The court
denied the motion, having found that statements made by Caldwell
during telephone conversations with Fulgham were made in
furtherance of the conspiracy and were sufficient to establish
venue in the Northern District. It is in regard to these findings
that the appellants have placed their primary reliance in the
appeal to this court.
II.
Appellant James Phillips argues that the trial court erred in
admitting into evidence tape recorded statements of co-conspirator
Lonnie Caldwell for purposes of implicating Phillips in the
conspiracy. The court finds no merit in this contention. The
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record reveals that the district court acted well within its
discretion when it accepted the conversations into evidence for
purposes of proving Phillips' involvement with the conspiracy. See
Bourjaily v. United States, 483 U.S. 171 (1987); United States v.
James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917 (1979).
Next, the appellants contend that the district court
improperly predicated venue on the existence of the Caldwell-
Fulgham telephone calls. This argument is also without merit. In
cases involving conspiracy offenses, venue is proper in any
district where the agreement was formed or an overt act occurred.
United States v. Winship, 724 F.2d 1116, 1125 (5th Cir. 1984);
United States v. Pozos, 697 F.2d 1238, 1244 (5th Cir. 1983). The
Supreme Court has upheld the application of this rule, even where
it permits trial against defendants in a district they never even
set foot in prior to trial. See Hyde v. United States, 225 U.S.
347, 362 (1912); Winship, 724 F.2d at 1125.
In this case, Larry Fulgham testified that he received
telephone calls from Lonnie Caldwell at his residence in Choctaw
County instructing him to pick up marijuana for delivery to various
locations. This testimony was corroborated by numerous
conversations between the two men that were taped by the
government. Telephone calls to a particular destination containing
detailed pick-up and drop-off instructions are certainly overt acts
made in furtherance of the conspiracy. See United States v.
Nicoll, 664 F.2d 1308, 1311 (5th Cir.), cert. denied, 457 U.S. 1118
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(1982); United States v. Strickland, 493 F.2d 182, 187 (5th Cir.),
cert. dismissed, 419 U.S. 801 (1974). As such, it was not in error
for the trial judge to find venue in the district in which the
calls were received. See United States v. Barnes, 681 F.2d 717,
724 (11th Cir.), reh'g denied, 694 F.2d 233 (11th Cir. 1982), cert.
denied, 460 U.S. 1046 (1983) (drug trafficking crime "is
`committed' for venue purposes both in the district where the call
was made and in the district where the call was received."); see
also United States v. Lewis, 676 F.2d 508, 511 (11th Cir.), cert.
denied, 459 U.S. 976 (1982).
Finally, the appellants assert that the trial court's ruling
upon venue as a matter of law and corresponding denial of the
appellants' jury instruction concerning venue constitutes
reversible error. For a third time, we disagree.
As stated by this circuit in United States v. White, 611 F.2d
531, 536-37 (5th Cir.), cert. denied, 446 U.S. 992 (1980), "failure
to instruct on venue is reversible error when trial testimony puts
venue in issue and the defendant requests the instruction."
(citing Green v. United States, 309 F.2d 852, 856-57 (5th Cir.
1962)). In that case, we declined to rule that a trial court's
failure to instruct the jury on venue would constitute reversible
error in all cases. Id. at 537. Rather, the critical factor to be
analyzed in determining whether the district court committed
reversible error is whether the testimony at trial puts venue in
issue. We use as a guide the analogous case of Winship, in which
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the defendants' timely request for a jury instruction on venue was
denied. On appeal, this court found that the evidence of overt
acts in furtherance of a conspiracy in the Western District of
Louisiana was overwhelming. In the absence of contradictory
evidence, it was concluded that venue was not an issue within the
meaning of White and Green. 724 F.2d at 1125. Along these same
lines, we find that the evidence presented in this case regarding
the existence of venue in the Northern District of Mississippi is
of sufficient weight to conclude that venue was not in issue. We
arrive at this determination upon reviewing the record, which
reveals that the government presented evidence indicating telephone
conversations made in furtherance of the conspiracy in the relevant
jurisdiction. There was no other testimony controverting either
the admissibility or the truthfulness of that evidence. The
appellant's case therefore falls beyond the protection afforded by
White and Green and renders harmless the trial court's reluctance
to instruct the jury on venue.1
III.
For the foregoing reasons, we conclude that the district court
did not err in finding the existence of a conspiracy and admitting
relevant evidence against appellant Phillips; neither do we find an
1
As we stated Winship, 724 F.2d at 1126 n.13, "[w]hen a venue instruction is
requested, the burden of giving an instruction weighs lightly against the value of
safeguarding venue rights. The better procedure is to give the venue instruction
when requested, regardless of whether the trial court believes trial testimony has
put venue in issue." Thus, while we find the trial court's failure to instruct the
jury harmless error in this case, we reaffirm the general principle stated above.
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error in the court's finding of venue in the Northern District of
Mississippi. Finally, we hold that the trial court's refusal to
instruct the jury on venue constitutes harmless error given the
magnitude of evidence eliminating venue as an issue. Accordingly,
the trial court's judgment is AFFIRMED.
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