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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2003 Decided June 22, 2004
No. 02-3009
UNITED STATES OF AMERICA,
APPELLEE
v.
JOHN HAIRE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00426–01)
Edward DeV. Bunn, appointed by the court, argued the
cause and filed the briefs for appellant.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Elizabeth Tros-
man, and John Crabb, Jr., Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, HENDERSON and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: John Haire appeals from a judg-
ment of conviction entered upon a jury verdict of guilty of two
counts of drug conspiracy in violation of 21 U.S.C. §§ 846 and
963. He assigns errors relating to venue, discovery, and
admission of evidence. Upon review, we conclude that the
district court committed no error and affirm its judgment for
the reasons more fully set out below.
I. BACKGROUND
Appellant stood trial under an indictment charging him
with one count of conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846 and one count of conspiracy to
import five kilograms or more of cocaine in violation of 21
U.S.C. § 963. The evidence at trial disclosed that the investi-
gation leading to appellant’s indictment began with the arrest
of Herbert Leininger in November of 1999 for offenses
involving multiple kilograms of cocaine. Leininger subse-
quently pleaded guilty and cooperated with law enforcement,
principally giving evidence against his source, Kevin Cleary,
evidence which ultimately led to the conviction of Kevin
Cleary, his brother Michael Cleary, and Kevin Cleary’s
source Terry Colligan. Leininger had never met appellant
Haire and did not know his name, but did give information to
authorities that he knew that one of Colligan’s drivers (appar-
ently Haire) was in Tampa, Florida.
The brothers Cleary thereafter followed Leininger’s path
and pleaded guilty under agreements to cooperate with inves-
tigators. Kevin Cleary admitted buying cocaine from Colli-
gan over a six-year period from 1993 to 1999 and selling it to
Leininger, who transported it to the District of Columbia.
Cleary identified appellant as Colligan’s partner in at least
the first two years of the operation, and described appellant
as the person who drove the cocaine from Mexico into the
United States. As part of his cooperation, Kevin Cleary set
up a meeting with Colligan at Cleary’s home. The meeting
3
was audio- and video-taped and involved discussion of import-
ing more cocaine from Mexico and Belize. Colligan was
subsequently arrested and, following the by then well-
established precedent, pleaded guilty and agreed to cooper-
ate.
As part of his cooperation, Colligan provided evidence
against appellant and testified for the government at his trial.
According to Colligan’s testimony, he met appellant in the
early 1990s in Florida. In 1993, appellant visited Colligan in
Cancun, Mexico, where Colligan lived, and purchased a kilo of
cocaine through a source introduced by Colligan. Thereafter,
Colligan and appellant packaged the cocaine. Appellant flew
with it to Nuevo Laredo, Mexico, and from there transported
it by car across the border into the United States and back to
Tampa, Florida. This transaction was the beginning of ex-
tensive dealing in cocaine by appellant, Colligan, and others.
Colligan’s cooperation with authorities after his own guilty
plea included tape-recording telephone conversations with
appellant. The conversations addressed cocaine smuggling
and eventually resulted in appellant setting up a meeting in
April, 2001, between himself and an undercover detective in
Florida. After that meeting, appellant was arrested and
admitted to extensive drug-related criminal activity.
At trial, in addition to the cooperating defendants discussed
above, the prosecution offered substantial corroborating evi-
dence. The only evidence connecting the conspiracy with
Washington, D.C. was the evidence relating to the obtaining,
possession, and distribution of several kilograms of cocaine in
the District by Herbert Leininger. After presentation of
evidence by the defense, the district court submitted the case
to the jury. The jury found defendant guilty of both counts.
The district court entered concurrent sentences of 240
months incarceration followed by five years of supervised
release on the two counts. Appellant brought the present
appeal.
II. ANALYSIS
Appellant alleges a plethora of errors by the district judge,
lumping them under three headings: venue; discovery and
4
cross-examination rights; and, ‘‘inadmissable other wrongs,
irrelevant and prejudicial evidence.’’ While we have reviewed
all of appellant’s allegations of error, and find none of them to
warrant relief, most do not require separate discussion. As
to those that do, none of the assignments states a reversible
error, if, indeed, any of them state error at all.
A. Venue
Defendant first contends that venue in the District of
Columbia was improper. He separately claims that there was
insufficient evidence that the alleged crimes occurred in the
District of Columbia. Stripped of rhetoric, these two claims
are indistinguishable. On the record, they are also meritless.
We note at the outset that ‘‘the government bears the burden
of establishing by a preponderance of the evidence that venue
is proper with respect to each count charged against the
defendant.’’ United States v. Lam Kwong–Wah, 924 F.2d
298, 301 (D.C. Cir. 1991). Therefore, we review the sufficien-
cy of the evidence, doing so ‘‘in the light most favorable to the
government,’’ id., as with any other sufficiency question on
appeal. Appellant’s argument, as we understand it, is that
the government proved not one but several conspiracies; if
appellant was involved in any conspiracy, it was with Colli-
gan’s roommate and had no nexus to the District of Columbia.
The government counters that there is one continuing con-
spiracy linking the co-conspirators from their Mexico pur-
chases to their Washington, D.C., sales and possession for
sale. As to whether the evidence proved a single conspiracy
or multiple conspiracies, we have held that issue ‘‘is primarily
a question of fact for the jury.’’ United States v. Childress,
58 F.3d 693, 709 (D.C. Cir. 1995) (internal quotation marks
and citations omitted). Appellate review is ‘‘limited to wheth-
er there is sufficient evidence—when viewed in the light most
favorable to the government—to support a jury finding of a
single conspiracy agreed to by the individual appellants.’’ Id.
The evidence at trial, taken in the light most favorable to
the prosecution, supported a jury finding of what is commonly
called a ‘‘chain’’ conspiracy.
5
As we have observed before, under a chain-conspiracy
analysis:
the government need not prove a direct connection be-
tween all the conspirators. A single conspiracy may be
established when each conspirator knows of the existence
of the larger conspiracy and the necessity for other
participants, even if he is ignorant of their precise identi-
ties. When the conspirators form a chain, each is likely
to know that other conspirators are required.
United States v. Tarantino, 846 F.2d 1384, 1392 (D.C. Cir.
1988). As we held in Tarantino, this Circuit’s landmark
decision on the subject of chain conspiracies, ‘‘[a] single
conspiracy is proven if the evidence establishes that each
conspirator had the specific intent to further the common
unlawful objective.’’ Id. More generally, the existence of
such a vertically integrated, loose-knit combination may raise
the inference that each conspirator had agreed with the
others (some whose specific identity may be unknown) to
further a common unlawful objective, e.g., distribution of
narcotics. Id. at 1393. As in Tarantino, as in Childress, and
as in other chain-conspiracy cases, the government offered
evidence in Haire’s trial from which a reasonable jury could
find, as alleged in Count One, that such a vertically integrated
loose-knit combination existed; that part of the objective of
the conspiracy was to distribute drugs in Washington, D.C.,
and that this objective was accomplished. That said, we then
recognize the ‘‘well established rule’’ that prosecutions for
conspiracy ‘‘may be brought in any district in which some
overt act in furtherance of the conspiracy was committed by
any of the co-conspirators.’’ Lam Kwong–Wah, 924 F.2d at
301 (citing cases) (internal quotation marks and citation omit-
ted).
As to Count Two, the case for affirmance is even stronger.
Under 18 U.S.C. § 3237(a), Congress expressly provided that,
subject to exceptions not here relevant, ‘‘any offense TTT
involving TTT the importation of an object TTT into the United
States is a continuing offense and TTT may be inquired of and
prosecuted in any district from, through, or into which such
6
TTT imported object moves.’’ The ‘‘object’’ in Count Two is
the imported cocaine, at least some of which moved into the
District of Columbia. In short, appellant’s argument that
there was insufficient evidence of venue, more specifically,
that the evidence would not support a conspiracy that in-
volved both the defendant and the District of Columbia, does
not constitute reversible error or indeed error at all.
B. The Failure to Instruct on Venue
Appellant also alleges error in the failure of the district
court to instruct the jury on the ‘‘element’’ of venue. He
makes no claim that he requested such instruction but offers
the rather breathtaking proposition that ‘‘the government had
the burden of proving venue and requesting the jury instruc-
tion thereon.’’ Appellant’s Br. at 17. Certainly the govern-
ment had the burden of proving venue, but this falls far short
of assigning the government the burden of requesting an
instruction. Undaunted by the lack of precedent, appellant
asserts that ‘‘if the government fails to request the instruction
and it did, and if the court fails to instruct the jury on venue
and it did, the case must be reversed.’’ Id. For this proposi-
tion, appellant cites United States v. Lam Kwong–Wah, 924
F.2d at 301–02. In that case, however, the court’s discussion
of the government’s failure to obtain a proper jury instruction
had to do with a much more discrete question than the
sweeping theory advanced by appellant in the present case.
In Lam Kwong–Wah, the government was arguing for venue
on the theory that the appellant therein aided and abetted the
attempted distribution of heroin that occurred in a venue with
which no evidence connected him. Because the government
had not advanced the aiding and abetting theory at all in the
trial court, we reversed the conviction. Indeed, we expressly
stated, ‘‘because the government failed to advance any such
argument or proof or to obtain a proper jury instruction, we
reversed Lam’s conviction on the charge of attempted distri-
bution of heroin.’’ Id. at 302. No such loose end is flapping
in the present case. The government charged conspiracy and
offered evidence of conspiracy. The jurors were instructed
on conspiracy and it is on a conspiracy theory that, the
government argues, the defendant is responsible for acts that
7
occurred in the venue of trial. In short, the government had
no duty to request such an instruction. The burden to
request the instruction was the defendant’s. This he did not
do.
The Federal Rules of Criminal Procedure expressly pre-
scribe in the version of Rule 30 in effect at the time of Haire’s
trial that:
No party may assign as error any portion of the [jury]
charge or omission therefrom unless that party objects
thereto before the jury retires to consider its verdict,
stating distinctly the matter to which that party objects
and the grounds of the objection.
As the Supreme Court has repeatedly noted, this rule of
procedure embodies the historic principle ‘‘that a right ‘may
be forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
jurisdiction to determine it.’ ’’ Johnson v. United States, 520
U.S. 461, 465 (1997) (quoting United States v. Olano, 507 U.S.
725, 731 (1993)) (other citations omitted).
We pause for further discussion of the absence of instruc-
tion on venue only because of occasional references in case
law that ‘‘venue is an element of every offense.’’ United
States v. Perez, 280 F.3d 318, 329 (3rd Cir. 2002) (collecting
cases). But cf. Maldonado–Revera, 922 F.2d 934, 969 (2nd
Cir. 1990) (‘‘venue however is not an element of the offense’’).
There is of course considerable support for the proposition
that the failure to charge on an element of the offense is
error. As the Supreme Court has stated, ‘‘[t]he Constitution
gives a criminal defendant the right to have a jury determine,
beyond a reasonable doubt, his guilt of every element of the
crime with which he is charged.’’ United States v. Gaudin,
515 U.S. 506, 522–23 (1995) (holding that materiality is an
element of false statement prosecutions which must be sub-
mitted to the jury). That said, failure to instruct remains
subject to the federal rules and, if forfeited by failure to
request under Rule 30, it would be noticed by us only under
the plain-error standard of Rule 52(b) which allows, ‘‘plain
errors affecting substantial rights to be noticed even though
8
there was no objection.’’ Johnson, 520 U.S. at 466. In the
present record, we see no plain error, and we see no error
‘‘affect[ing] substantial rights,’’ as a plain error must be to be
reversible in the absence of a proper objection or request at
trial. Id. at 468.
We would be cutting ourselves totally off from the reality of
criminal trial-practice if we did not recall that the instructions
offered daily by district courts in criminal cases typically do
not detail the element of venue in the absence of a request
from the defense. We will consider then the question, ‘‘When
must an instruction on venue be given?’’ a question explored
at length by the Third Circuit in United States v. Perez,
supra. The Perez court first noted, as referenced above, that
venue is often described as an element of every offense and
that criminal defendants generally have the right to a jury
determination of guilt of every element, and further noted
that courts describing venue as an element ‘‘often distinguish
it from ‘substantive’ or ‘essential’ elements.’’ Id. at 330
(collecting cases). This makes much sense. Indeed, we
agree with the Third Circuit’s further observation ‘‘that while
one might call venue an element, ‘it is an element more akin
to jurisdiction than to the substantive elements of the
crime.’ ’’ Id. (quoting United States v. Massa, 686 F.2d 526,
530 (7th Cir. 1982) (other citations omitted)). We, therefore,
join the Third and Seventh Circuits and hold that ‘‘although
an element strictly speaking, venue does not automatically
present a question for the jury.’’ Id. (citing Massa).
The Third Circuit in Perez offered an educational history of
the various treatments in various circuits of the necessity for
instruction, that is, when the failure to instruct the jury on
venue could constitute reversible error. Without recreating
the excellent discussion by our fellow circuit, we refer the
interested reader to that decision, id. at 330–35, and join in
that Circuit’s conclusion that the instruction is necessary only
when the question of venue is genuinely in issue. We cannot
improve upon that Circuit’s conclusion that venue becomes a
jury question and the trial court must specifically instruct the
jury on venue, in cases where there is no facially-obvious
9
defect in the allegations of venue, when the following three
conditions are met:
(1) the defendant objects to venue prior to or at the close
of the prosecution’s case-in-chief, (2) there is a genuine
issue of material fact with regard to proper venue, and
(3) the defendant timely requests a jury instruction.
Id. at 334.
In the case at bar, there is no genuine issue of material fact
as to the commission of acts in furtherance of the offense in
the District of Columbia and the defendant did not request
the venue instruction at trial. We therefore conclude that the
district court did not err in failing to instruct the jury on
venue.
C. Denial of Discovery and Cross–Examination Rights
Again, appellant lumps a broad range of arguments under a
single heading. Most of these arguments do not warrant
separate discussion, but we have attempted to distill from it
the most discrete contentions of appellant and will discuss
them briefly. To provide the proper context, we will outline
the trial court history of the discovery questions.
Before trial, appellant moved to compel discovery regard-
ing his co-conspirators’ statements, ill-gotten gains acquired
by co-conspirators, and the files and notes relating to the
debriefings of the cooperating witnesses. The trial court held
a hearing on these motions at which the government repre-
sented that it would disclose to the defendant all information
that could be used to impeach the government’s witnesses two
days before trial. The trial court carefully ordered, in re-
sponse to a request by the defense counsel, that if any of the
co-conspirators had failed to name appellant as a co-
conspirator when they might have been expected to do so in
the original debriefings, the government must present those
to the defense, or at the least hand them over to the court for
in camera inspection. The government fulfilled its promise to
turn over potential impeachment materials at least two days
before trial, excluding two items, which it described to the
court in an ex parte submission. The court reviewed the
10
debriefing notes for material discoverable under the Jencks
Act, 18 U.S.C. § 3500, or under Brady v. Maryland, 373 U.S.
83 (1963). The court found no further discoverable evidence.
D. The Law of Criminal Discovery
Discovery in criminal cases, as relevant to the present case,
is largely governed by Federal Rule of Criminal Procedure 16
and the Jencks Act. Rule 16 provides that: ‘‘this rule does
not authorize the discovery or inspection of TTT statements
made by prospective government witnesses except as provid-
ed in 18 U.S.C. § 3500.’’ Fed. R. Crim. P. 16(a)(2). Section
3500, the Jencks Act, provides, in pertinent part, that: ‘‘no
statement or report in the possession of the United States
which was made by a Government witness or prospective
government witness (other than the defendant) shall be the
subject of subpoena, discovery, or inspection until said wit-
ness has testified on direct examination in the trial of the
case.’’ 18 U.S.C. § 3500(a). It further provides that after a
government witness ‘‘has testified on direct examination, the
court shall, on motion of the defendant, order the United
States to produce any statements of the witness TTT in the
possession of the United States which relates to the subject-
matter as to which the witness has testified.’’ We find
nothing in the appellant’s argument that suggests that the
United States failed to comply with the obligations imposed
by the Jencks Act, the Federal Rules, or any other authority.
Indeed, it appears that the prosecution in fact supplied the
Jencks material before trial, a salutary practice which we
commend but which is not compelled by the statute.
Of course in addition to the statutory obligations, the
Supreme Court has expressly held that the Constitution
requires the prosecution to disclose information that is favor-
able to the accused and that is material either to guilt or
punishment. Brady v. Maryland, 373 U.S. 83 (1963); see
also Giglio v. United States, 405 U.S. 150, 154–55 (1972);
United States v. Bagley, 473 U.S. 667, 676 (1985) (extending
the Brady obligation beyond regular exculpatory evidence to
evidence material to impeachment). Appellant alleges a vio-
lation of his Brady rights. However, he has set forth nothing
11
that makes out such a violation. Brady does not require that
the prosecutor ‘‘deliver his entire file to defense counsel, but
only [that he] disclose evidence favorable to the accused, that
if suppressed, would deprive the defendant of a fair trial.’’
Bagley, 473 U.S. at 675 (footnote omitted). On appeal, appel-
lant has made no showing that the government suppressed
either exculpatory or impeachment evidence, let alone any
material raising a reasonable probability of a different result
in the proceeding. We will not find error on the mere
speculation that files, such as the debriefing material not
disclosed herein, may contain Brady information. See United
States v. Williams–Davis, 90 F.3d 490, 514 (D.C. Cir. 1996)
(‘‘It is unwise to infer the existence of Brady material based
on speculation alone.’’) (citation omitted).
In short, we hold that appellant has established no error
relating to discovery, or material made available for cross-
examination. While appellant also argues that the district
court erred in limiting his cross-examination, we have re-
viewed the cited portions of the transcript and find nothing
beyond reasonable management of the progress of the trial.
E. Evidentiary Rulings
Haire argues that his ‘‘convictions were the result of inad-
missible other wrongs, irrelevant and prejudicial evidence.’’
He argues that the court’s rulings on such evidence violated
the restrictions in Federal Rule of Evidence 404(b), which
renders evidence of other crimes, wrongs or bad acts not
admissible to show character or action in conformity there-
with. He also argues that the Court’s ruling violated Rule
403, which provides that evidence, though relevant, is to be
excluded if it is substantially more prejudicial than probative.
We have reviewed the cited portions of the transcript and
find that most of the questioned evidence was not 404(b)
evidence at all, but was in fact direct evidence of some acts
connected with the conspiracy. As to that which arguably
may have been covered by that rule, we find neither error nor
abuse of discretion. Likewise, we see no error on the part of
the district court in conducting the balancing between preju-
dice and relevance required by Rule 403.
12
III. CONCLUSION
In sum, we find no reversible error and order that the
judgment on appeal be affirmed.