United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2004 Decided December 21, 2004
No. 03-3061
UNITED STATES OF AMERICA,
APPELLEE
v.
JEFFREY L. MORGAN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00180-10)
Michele J. Woods, appointed by the court, argued the cause
for appellant. With her on the briefs was Joseph M. Catoe.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Roy W. McLeese, III,
and Laura A. Ingersoll, Assistant U.S. Attorneys.
Before: EDWAR D S, HENDERSON, and ROBERTS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
2
EDWARDS, Circuit Judge: Appellant Jeffrey Morgan
appeals from his conviction in the District Court for receiving
stolen federal property in violation of 18 U.S.C. § 641 (2000).
His sole contention on appeal is that venue was improper in the
District of Columbia ("District" or "D.C.").
Appellant's prosecution arose out of an indictment charging
him, along with 10 co-conspirators, with participating in an
elaborate conspiracy to defraud the United States. Appellant
was also charged with receiving stolen government property, the
only charge of which he was convicted. The evidence
introduced at trial regarding appellant's role in the conspiracy
related solely to one stolen computer that was ultimately found
in his possession. It is undisputed that appellant physically
received this computer (which was stolen in the District) in
Maryland, and that the computer thereafter remained in
Maryland until it was recovered by the authorities.
The Government claims that venue was proper in the
District of Columbia on two alternative grounds. First, the
Government asserts that appellant "constructively received" the
computer at the moment it was stolen. Second, the Government
argues that the offense for which appellant was convicted is one
"involving . . . transportation in interstate . . . commerce," and,
under 18 U.S.C. § 3237(a) (2000), may therefore be prosecuted
in any district through which the computer moved. We reject
both of these contentions.
All of appellant's conduct constituting his alleged
commission of the offense occurred in Maryland. The evidence
in this case does not permit the conclusion that appellant
constructively possessed the computer at any time while it was
in the District, and we therefore need not reach the question
whether a conviction for receiving stolen government property
under 18 U.S.C. § 641 can be premised on a theory of
constructive receipt. Furthermore, appellant's conviction was
not for an "offense involving" transportation in interstate
3
commerce as required by 18 U.S.C. § 3237(a) ¶ 2. Accordingly,
we hold that venue in the District of Columbia is improper and
reverse appellant's conviction.
I. BACKGROUND
The charges in this case arose from an elaborate conspiracy
centered around Elizabeth Mellen and her scheme to defraud her
employer, the U.S. Department of Education ("Department").
Mellen, appellant's aunt, worked as a senior telecommunications
manager for the Department at an office building located in the
District. She was responsible for the Department's
telecommunication expenditures and for ordering its related
goods and services. Mellen's responsibilities also included
supervising the Department's telephone installations and
maintenance and the technicians who performed that work.
Robert Sweeney was one of those technicians. Sweeney
was employed by Bell Atlantic Federal Systems and was
assigned to work on the telecommunication systems at the
Department. Sweeney was required to account for his time and
the materials he ordered to perform his work. At the end of each
month, Sweeney would present his expenses to Mellen for her
approval. After Mellen signed off, Sweeney would submit them
to Bell Atlantic, which, in turn, billed the Department.
At some point, Mellen began to ask Sweeney to run
personal errands for her. In return, Mellen permitted Sweeney
to submit false claims for overtime pay. Eventually, Mellen had
Sweeney order and obtain various telephones, computers,
printers, cameras, and copiers for her personal use. Sweeney
knew that these items, the expenses for which were ultimately
billed to the Department, were not legitimate items for him to
order.
Items that Sweeney ordered would arrive at a large Bell
Atlantic warehouse located at 58-62 L Street in Northeast
Washington, D.C. When the items arrived, Sweeney would call
4
Mellen for further instructions, retrieve the items from the
warehouse, and deliver them in accordance with Mellen's
instructions. Sometimes he would simply deliver the items to
Mellen's office or to an unlocked car which would be parked
outside of the building in which Mellen worked. Other times,
Sweeney would deliver the items to various locations that
Mellen would specify.
On one occasion, Mellen had Sweeney order five
computers, one of which is the subject of appellant's conviction.
After picking up the computers at the warehouse, Sweeney and
Lewis Morgan (a Department employee, unrelated to appellant,
who also made deliveries for Mellen not in connection with his
official duties) used a Bell Atlantic van to deliver them to
locations specified by Mellen.
One of those computers was to be delivered to Susanne
Morgan's house in Maryland. Susanne Morgan, who also
worked at the Department, was appellant's mother and Mellen's
twin sister. Sweeney contacted appellant – who was living at his
mother's house at the time – advising him that the computer was
going to be delivered and requesting that appellant be present to
accept it. As a result, appellant was present when Sweeney and
Lewis Morgan arrived at Susanne Morgan's house and delivered
the computer.
The computer was initially set up in the basement of
Susanne Morgan's house. In the spring or summer of 1999,
appellant moved out of his mother's home and into the home of
his brother, which was also located in Maryland. Appellant
brought the computer with him to his brother's home and kept it
next to his bed, where, months later, it was ultimately found and
seized by federal agents.
5
II. ANALYSIS
A. Standard of Review and General Principles Governing
Venue
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.
Haire, 371 F.3d 833, 837 (D.C. Cir. 2004) (citing United States
v. Lam, 924 F.2d 298, 301 (D.C. Cir. 1991)). In reviewing
whether the Government has properly established venue, we
view the evidence in the light most favorable to the
Government. Id.
Proper venue in criminal proceedings was "a matter of
concern to the Nation's founders." United States v. Cabrales,
524 U.S. 1, 6 (1998). Indeed, the Constitution "twice safeguards
the defendant's venue right: Article III, § 2, cl. 3, instructs that
'Trial of all Crimes . . . shall be held in the State where the said
Crimes shall have been committed'; the Sixth Amendment calls
for trial 'by an impartial jury of the State and district wherein the
crime shall have been committed.'" Id.; see also United States
v. Passodelis, 615 F.2d 975, 977 n.3 (3d Cir. 1980) (noting that
although, read literally, the provision in the Sixth Amendment
is a vicinage rather than venue provision, because it specifies the
place from which the jurors are to be selected rather than the
place of trial, the distinction has never been given any weight,
"perhaps . . . because the requirement that the jury be chosen
from the state and district where the crime was committed
presupposes that the jury will sit where it is chosen").
Mindful that "[q]uestions of venue in criminal cases . . .
raise deep issues of public policy," the Supreme Court has
articulated a rule endorsing a restrictive construction of venue
provisions:
If an enactment of Congress equally permits the underlying
spirit of the constitutional concern for trial in the vicinage
6
to be respected rather than to be disrespected, construction
should go in the direction of constitutional policy even
though not commanded by it.
United States v. Johnson, 323 U.S. 273, 276 (1944). Although
the specific holding in Johnson was mooted by statute in 1948,
the rule of construction announced in that case survives. See,
e.g, United States v. Cores, 356 U.S. 405, 407 (1958) ("The
provision for trial in the vicinity of the crime is a safeguard
against the unfairness and hardship involved when an accused
is prosecuted in a remote place. Provided its language permits,
the Act in question should be given that construction which will
respect such considerations."); see also United States v.
Brennan, 183 F.3d 139, 147 (2d Cir. 1999) (noting that Johnson
rule of construction retains vitality).
B. The Locus Delicti
Rule 18 of the Federal Rules of Criminal Procedure
provides that, unless otherwise permitted by statute or the Rules,
"the government must prosecute an offense in a district where
the offense was committed." F ED . R. CRIM . P. 18. When the
statute proscribing the offense does not contain an express venue
provision, "'[t]he locus delicti must be determined from the
nature of the crime alleged and the location of the act or acts
constituting it.'" Cabrales, 524 U.S. at 6-7 (quoting United
States v. Anderson, 328 U.S. 699, 703 (1946)). "In performing
this inquiry, a court must initially identify the conduct
constituting the offense (the nature of the crime) and then
discern the location of the commission of the criminal acts."
United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999).
Here, Morgan was convicted of violating 18 U.S.C. § 641.
That statute provides that any person who "receives, conceals,
or retains [any record, voucher, money, or thing of value of the
United States or of any department or agency thereof] with
intent to convert it to his use or gain, knowing it to have been
7
embezzled, stolen, purloined or converted" commits a criminal
offense. It is undisputed that Morgan did not receive the
computer until it arrived in Maryland. It is also undisputed that
the computer thereafter remained in Maryland until it was
recovered by the authorities. The Government contends,
however, that Morgan "constructively received" the computer at
the moment Sweeney removed the computer from the
warehouse, and therefore Morgan committed acts constituting
the offense within the District of Columbia. The Government's
position is meritless.
Because a person may be said to "receive" a thing when he
"take[s] possession" of it, W EBSTER ' S T HIRD N EW
INTERNATIONAL DICTIONARY 1894 (1993), and because it is
well settled that criminal possession may be either actual or
constructive, see, e.g., United States v. Alexander, 331 F.3d 116,
127 (D.C. Cir. 2003), it is plausible that one may receive stolen
property within the meaning of 18 U.S.C. § 641 by obtaining
constructive possession of it. See also 3 WAYNE R. LAFAVE,
SUBSTANTIVE CRIMINAL LAW § 20.2(b), at 157 (2d ed. 2003); 3
CHARLES E. TORCIA, WHARTON'S CRIMINAL LAW § 444, at 612-
15 (15th ed. 1995). However, we have never explicitly held that
a conviction for receiving stolen property may be premised upon
such a theory of constructive receipt, and we have no need to do
so today. For even assuming that a conviction under § 641 can
be had on such evidence, we conclude that the evidence in this
case does not support a finding that Morgan constructively
possessed the computer within the District.
A finding of constructive possession requires evidence
establishing that the defendant had the ability to exercise
"knowing dominion and control" over the items in question.
Alexander, 331 F.3d at 127 (internal quotation marks omitted).
The evidence proffered by the Government in this case, even
when viewed in the light most favorable to it, does not permit
the conclusion that Morgan had the ability to exercise knowing
8
dominion and control over the computer within the District of
Columbia.
The Government relies on two pieces of evidence in support
of its argument: (1) evidence indicating that, at some time prior
to the delivery of the computer, Jeffrey Morgan approached
Sweeney and Lewis Morgan at the Department of Education and
asked them when he would be receiving his computer; and (2)
evidence that Sweeney called Jeffrey Morgan to arrange for the
delivery of the computer to Susanne Morgan's address. From
these pieces of evidence, the Government argues that it is
reasonable to infer that both Sweeney and Jeffrey Morgan
considered Jeffrey Morgan to be the intended recipient of the
computer, even though it was being delivered to Susanne
Morgan's address. However, even assuming that the
Government is correct that this evidence supports the inference
that both parties considered appellant to be the intended
recipient of the computer, this, without more, is simply
insufficient to support a finding that appellant had the ability to
exercise "knowing dominion and control" over the computer
when it was in the District of Columbia.
On the contrary, the evidence in this case indicates that if
anyone exercised dominion and control over the computers
Sweeney was transporting, it was Mellen. It is undisputed that
Sweeney ordered the computers at Mellen's direction and
delivered them according to Mellen's instructions and to the
locations she specified. Moreover, although Sweeney contacted
appellant to arrange for delivery of one of the computers to
Susanne Morgan's address (at Mellen's direction), there is no
indication that Mellen relinquished her control over the
computer. Indeed, on one occasion, Mellen directed Sweeney
to pick up a television from the Bell Atlantic warehouse and
bring it to a location in D.C. While Sweeney was in transit,
however, Mellen redirected the delivery to a new location in
Maryland. See Trial Tr. of 10/29/02 a.m. session at 52-53,
9
reprinted in Appendix at 159-60. The Government identifies
nothing to suggest that Mellen could not similarly have
redirected the computer in question before it arrived at Susanne
Morgan's house.
In short, the evidence identified by the Government does
not permit the conclusion that appellant constructively possessed
the computer once Sweeney removed it from the warehouse.
Therefore, we reject the Government's argument that venue lies
because appellant constructively received the computer in the
District of Columbia.
C. Continuing Offense Under 18 U.S.C. § 3237(a)
The Government additionally relies on 18 U.S.C. § 3237(a)
as a basis for venue in the District. This general venue provision
deals with so-called continuing offenses, and provides that:
Except as otherwise expressly provided by enactment
of Congress, any offense against the United States begun in
one district and completed in another, or committed in more
than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or
completed.
Any offense involving the use of the mails,
transportation in interstate or foreign commerce, or the
importation of an object or person into the United States is
a continuing offense and, except as otherwise expressly
provided by enactment of Congress, may be inquired of and
prosecuted in any district from, through, or into which such
commerce, mail matter, or imported object or person
moves.
18 U.S.C. § 3237(a).
The Government does not invoke the first paragraph of §
3237(a). Instead, the Government relies only on the second
paragraph, contending that, because the computer was
10
transported across state lines, Morgan was convicted of an
offense involving transportation in interstate commerce. Thus,
according to the Government, venue is proper in D.C. or
Maryland.
There is no doubt that Sweeney transported the computer in
interstate commerce when he drove it from D.C. to Maryland.
But this information, without more, is no more telling than is
information about the state in which the computer was
manufactured before it was shipped to D.C. The important
question here is whether Morgan's receipt of the computer in
Maryland – the offense for which he was convicted – was an
"offense involving" interstate transportation under § 3237(a) ¶
2. We conclude that it was not.
The most natural reading of § 3237(a) ¶ 2 is to construe
"any offense involving" by reference to the elements of the
offense at issue. "Offense" obviously refers to a particular
crime, so the language of the statute invites consideration of
only the elements of that crime in determining whether the
offense involved "the use of the mails," "transportation in
interstate or foreign commerce," or "the importation of an object
or person into the United States." For example, in a case in
which a man drives from his home in D.C. to New York,
strangles a federal officer to death in New York in violation of
18 U.S.C. § 1114 (2000), then returns to his home in D.C., the
circumstances surrounding the crime include the killer's travel
in interstate commerce, but his crime is not an "offense
involving" transportation in interstate commerce. In other
words, a faithful reading of the precise words of the statute in
the order in which they are written suggests that an "offense
involv[es]" transportation in interstate commerce only when
such transportation is an element of the offense.
In United States v. Brennan, 183 F.3d 139 (2d. Cir. 1999),
the Second Circuit held that the mail fraud statute, 18 U.S.C. §
1341 (1994) – which makes it unlawful to "place[]," "deposit[],"
11
or "take[] or receive[]" any mail matter as part of a scheme to
defraud – does not proscribe conduct involving "the use of the
mails" within the meaning of § 3237(a) ¶ 2. Brennan, 183 F.3d
at 146-47. The court concluded that "§ 3237(a) is best read as
not applying to statutes, like the mail fraud statute, that specify
that a crime is committed by the particular acts of depositing or
receiving mail, or causing it to be delivered, rather than by the
more general and ongoing act of 'us[ing] the mails.'" Id. at 147
(alteration in original); accord United States v. Ross, 205 F.2d
619, 621 (10th Cir. 1953) ("[T]he unlawful act defined in [18
U.S.C.] § 1461 [(1952)] is the deposit for mailing and not a use
of the mails which may follow such deposit. That act is
complete when the deposit is made and is not a continuing act.
It does not involve a use of the mails.").
In reaching this conclusion, the Second Circuit noted that
the relevant portion of § 3237(a) was passed by Congress in
response to the Supreme Court decision in United States v.
Johnson, 323 U.S. 273 (1944). Johnson involved a
prosecution under the National Denture Act of 1942, 56
Stat. 1087, the current version of which is codified at 18
U.S.C. § 1821. The statute generally made it unlawful "to
use the mails or any instrumentality of interstate commerce
for the purpose of sending or bringing into" any state or
territory a denture constructed from a cast not taken by a
dentist licensed to practice in the state into which the
denture was sent. The defendants were charged with
having violated the statute by depositing illicit dentures into
the mails at Chicago for delivery in Delaware. See 323
U.S. at 274. The government filed an information against
defendants in Delaware. See id. The information was
quashed on the ground that venue was proper only in the
Northern District of Illinois. See id.
12
The Supreme Court affirmed, construing the statute to
permit "trial of the sender of outlawed dentures to be
confined to the district of sending, and that of the importer
to the district into which they are brought." Id. at 275. The
Court acknowledged that Congress was empowered
expressly to create a "continuing offense" by, in effect,
defining "the locality of a crime [to] extend over the whole
area through which force propelled by an offender
operates"; if Congress had utilized this power in the denture
context, the Court stated, the sender would have been
subject to prosecution in the district of sending, in the
district of arrival, and in any intervening district. See id.
However, "such leeway not only opens the door to needless
hardship to an accused by prosecution remote from home
and from appropriate facilities for defense. It also leads to
the appearance of abuses, if not to abuses, in the selection
of what may be deemed a tribunal favorable to the
prosecution." Id.
Emphasizing that "[t]hese are matters that touch closely
the fair administration of criminal justice and public
confidence in it, on which it ultimately rests," Johnson
articulated a rule favoring restrictive construction of venue
provisions: "[i]f an enactment of Congress equally permits
the underlying spirit of the constitutional concern for trial
in the vicinage to be respected rather than to be
disrespected, construction should go in the direction of
constitutional policy even though not commanded by it."
Id. at 276. . . .
As noted, Congress passed § 3237(a) in response to
Johnson. See Reviser's Note, 18 U.S.C.A. § 3237(a); Pratt
v. First California Co., Inc., 517 F.2d 11, 13 (10th Cir.
1975). In doing so, Congress did what Johnson indicated
it could: it expressly determined that offenses involving
"the use of the mails" were "continuing offenses." . . .
13
Passage of § 3237(a), however, could not and did not
alter the constitutional and policy concerns underlying the
Court's restrained view of venue; and it did not affect the
general validity of the Johnson rule of construction.
Brennan, 183 F.3d at 146-47 (citations omitted) (alterations in
original).
Thus, under the Brennan and Ross constructions of §
3237(a) ¶ 2, what was relevant was whether the statute
specifying the offense included "the use of the mails" as an
element. Under this approach, receipt of stolen property under
18 U.S.C. § 641 is not an "offense involving" transportation in
interstate commerce, for it does not require any such
transportation for the commission of the offense.
The Government insists that whether an offense involves
interstate transportation under § 3237(a) ¶ 2 "is not a question
to be answered by looking to the elements of the offense, but
instead to be answered by looking to the facts in each particular
case." Br. for Appellee at 34. This is gobbledygook. In an
effort to confine this otherwise unintelligible argument, the
Government urges that Morgan's offense "involv[ed]"
transportation in interstate commerce because "the
transportation in interstate commerce was integral to [Morgan's]
actual, physical receipt of the stolen government property." Id.
at 40. More gobbledygook.
The Government's position appears to be almost limitless in
its expansion of the availability of venue under § 3237(a) ¶ 2.
Under its approach, venue in a prosecution for receiving stolen
property would lie in any district through which the goods had
passed. Thus, if the computer in this case had been driven from
California, rather than from D.C., venue would apparently lie in
each and every district through which the delivery truck drove.
Indeed, we cannot discern any reasonable principle that would
confine the Government's logic to the offense of receiving stolen
14
property. The implication of the Government's approach is that
any offense involves transportation in interstate commerce so
long as the interstate transportation is among the circumstances
related to the commission of the offense. It is rare that a crime
does not involve circumstances in which a person or
instrumentality related to the crime has not passed through
interstate commerce. Thus, under the Government's theory, §
3237(a) ¶ 2 would apply to almost every offense. This view is
obviously untenable.
Although § 3237(a) ¶ 2 has been applied by other courts in
a variety of contexts, see 2 CHARLES ALAN WRIGHT, FEDERAL
PRACTICE AND PROCEDURE § 303, at 319 n.19 (3d ed. 2000)
(collecting and describing cases), the Government can identify
no case in which a court has construed § 3237(a) ¶ 2 so
expansively. See Recording of Oral Argument at 13:20-:37.
And we have found none. Even in the few cases in which courts
have applied § 3237(a) ¶ 2 to offenses that do not include
transportation in interstate commerce as an element, they have
always required a tight connection between the offense and the
interstate transportation.
For example, the Eleventh Circuit has employed § 3237(a)
¶ 2 in two cases where the offense occurred on a form of
interstate transportation. See United States v. Breitweiser, 357
F.3d 1249 (11th Cir. 2004) (offenses committed while on an
airplane); United States v. McCulley, 673 F.2d 346 (11th Cir.
1982) (same). The court reasoned that § 3237 was "designed to
prevent a crime which has been committed in transit from
escaping punishment for lack of venue." Breitweiser, 357 F.3d
at 1253-54 (internal quotation marks omitted).
The Government cites United States v. DeKunchak, 467
F.2d 432 (2d Cir. 1972), but the decision in that case plainly
does not support the expansive reading of § 3237(a) ¶ 2 that the
Government advances here. In DeKunchak, the defendant was
convicted for receiving, selling, and disposing of stolen goods
15
in violation of 18 U.S.C. § 2315 (1970). That offense, however,
by its terms applies only to goods "which are a part of, or which
constitute interstate or foreign commerce." Indeed, the Second
Circuit noted that the legislative history explicitly states that
Congress intended § 2315 and the related 18 U.S.C. § 2314
(which criminalizes the transportation of stolen goods in
interstate commerce) to be covered by § 3237.
In sum, we refuse to countenance the Government's theory
that Morgan's receipt of the computer was an "offense
involving" transportation in interstate commerce simply because
the computer traveled across state lines before reaching Morgan.
It is not surprising that no court has ever approved the theory
submitted by the Government here, for such an interpretation
would result in a stunning expansion of permissible venue sites
under § 3237(a) ¶ 2. As the Supreme Court instructed in
Johnson: "[i]f an enactment of Congress equally permits the
underlying spirit of the constitutional concern for trial in the
vicinage to be respected rather than to be disrespected,
construction should go in the direction of constitutional policy
even though not commanded by it." 323 U.S. at 276. We adopt
a restrictive construction of the venue provision in § 3237(a) ¶
2, both because the statute commands it and because, even if the
statute admits of two equally plausible constructions, "the
constitutional concern for trial in the vicinage" controls. The
Government's position urging otherwise is entirely untenable,
and we reject it.
III. CONCLUSION
We hold that the District of Columbia was an improper
venue for appellant's prosecution under 18 U.S.C. § 641.
Accordingly, the judgment of the District Court is reversed.