US v. Kareem Bolden, No. 07-4630 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4630 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KAREEM MALCOLM L. BOLDEN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:06-cr-00428-TSE) Submitted: November 24, 2008 Decided: December 29, 2008 Before TRAXLER, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew A. Wartel, LAW OFFICES OF MATTHEW A. WARTEL, PLLC, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, David Goodhand, Assistant United States Attorney, Jeffrey Shih, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kareem Malcolm L. Bolden appeals his conviction, following a jury trial, on one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and one count of conspiracy to import more than five kilograms of cocaine into United States territory, in violation of 21 U.S.C. §§ 952(a), 963 (2006). 1 Bolden was convicted upon retrial after the jury at his first trial was unable to reach a unanimous verdict. On appeal, Bolden raises two related issues. Bolden first asserts the district court erred in denying his Fed. R. Crim. P. 29 motion at the close of his first trial, in which he argued the Government presented insufficient evidence to establish the Eastern District of Virginia was an appropriate venue for the trial. Because of this purported error, Bolden next maintains that, prior to his second trial, the district court erred in denying his motion for dismissal based on double jeopardy. For the reasons set forth below, we reject both contentions and affirm Bolden s convictions. 1 Bolden was sentenced to 121 months imprisonment, and does not challenge his sentence on appeal. 2 I. Venue The right to trial where the criminal act occurred is rooted in the Constitution. Sixth The Amendment Supreme and Court Article has III cautioned of the that the question of venue in a criminal case is more than a matter of formal legal procedure; rather, it raises deep issues of public policy in the light of which legislation must be construed. United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005) (internal quotation marks and citation omitted). The venue statute generally applicable to criminal cases provides that [e]xcept 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 completed. requirements which 18 are such offense U.S.C. met, the was § 3237(a) begun, (2006). prosecution may continued, Where proceed in or venue that district, notwithstanding the possibility that the gravamen of the wrongdoing took place elsewhere. United States v. Smith, 452 F.3d 323, 334 (4th Cir. 2006). In a conspiracy case, the Supreme Court has long held that venue is proper in any district in which any conspirator performs an overt act in furtherance of the conspiracy or performs acts that effectuate the object of the conspiracy, even 3 though there is no evidence the particular defendant ever entered that district or that the conspiracy was formed there. Whitfield v. United States, 543 U.S. 209, 218 (2005) (holding venue for money laundering conspiracy prosecution proper in any district in which an overt act in furtherance of the conspiracy was committed ); Hyde v. United States, 225 U.S. 347, 356-67 (1912). This court has recognized that in a conspiracy charge, venue is proper for all defendants wherever the agreement was made or wherever any overt act in furtherance of the conspiracy transpires. United States v. Bowens, 224 F.3d 302, 311 n.4 (4th Cir. 2000). member of a conspirators Moreover, we have held that the acts of one conspiracy for venue can be attributed purposes, to manufactured venue and venue entrapment. other co- assertions rejecting all of United States v. Al-Talib, 55 F.3d 923, 928-29 (4th Cir. 1995). We review de novo the district court s decision to deny a Rule 29 motion. United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006); United States v. Ringer, 300 F.3d 788, 790 (7th Cir. 2002) (reviewing de novo the denial of a motion for judgment of acquittal based on improper venue). The Government must establish venue by a preponderance of the evidence, and venue must be proper for each separate count of the indictment. Ebersole, 411 F.3d at 524. In determining whether the Government has established venue, the evidence must be viewed in 4 the light most favorable to the Government. United States v. Burns, 990 F.2d 1426, 1437 (4th Cir. 1993). Our review of the record convinces us the Government s evidence was sufficient District of Virginia. witness Robert to establish venue in the Eastern According to the testimony of cooperating Wilson, Bolden served as a drug courier for George Day, who, along with Darren Black, Wilson, and others, distributed narcotics in and around cities located within the jurisdiction of the Eastern District of Virginia. Specifically, Wilson testified that, in late 1997, the beginning of the period covered in the indictment, he sold Arlington, and Petersburg, Virginia. 2 cocaine in Alexandria, Moreover, Wilson testified that he flew from Reagan National Airport, located in Arlington, to the Bahamas in order to purchase cocaine for distribution. Although Bolden is correct in asserting the Government did not present committed Eastern any any acts District question of venue. evidence in of to furtherance Virginia, this demonstrate of is the not he personally conspiracy in the relevant to the As this court has noted, for some offenses, there may be more than one appropriate venue, or even a venue in which the defendant has never set foot. 2 Ebersole, 411 F.3d The district court took judicial notice of the boundaries of the Eastern District of Virginia. 5 at 524 (internal quotation marks and citation omitted). The law permits using a conspirator s acts within a district to support venue in that district for the trial of any co-conspirators. Such is the case here. Wilson s testimony regarding his, Day s, and Black s actions within the Eastern District of Virginia in furtherance of the conspiracy was more than demonstrate venue was appropriate on both charges. we conclude the district court properly sufficient to Accordingly, rejected Bolden s challenge to venue and thus properly denied his Rule 29 motion. II. Central to Double Jeopardy Bolden s double jeopardy claim is his contention that the district court erred in denying his Rule 29 motion. Only if the district court erred in denying the Rule 29 motion would Bolden s second trial arguably be violative of the Double Jeopardy Clause. For the reasons discussed above, we conclude district court did not err in denying the Rule 29 motion. the After the denial of the Rule 29 motion, the first trial was declared a mistrial because the jury could not reach a unanimous verdict. Electing to retry Bolden following the mistrial simply did not run afoul of the Double Jeopardy Clause. The Supreme Court recognized as much in Richardson v. United States, 468 U.S. 317, 325-26 (1984), when it held that termination of a first trial 6 because of prosecution. a hung jury did not preclude a subsequent The Supreme Court explained that, [r]egardless of the sufficiency of the evidence at the defendant s first trial, if a mistrial is declared because the jury is unable to reach a verdict, the defendant has no valid double jeopardy claim to prevent his retrial. Richardson, 468 U.S. at 326; see also United States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005) ( [I]t is well-settled that the Double Jeopardy Clause does not preclude a retrial of a criminal charge that has resulted in a hung jury. ). Accordingly, we find the district court properly rejected Bolden s double jeopardy claim. For the foregoing reasons, court s judgment of conviction. we affirm the district We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7

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