Petition for Writ of Certiorari — Tyrone Woolaston, Petitioner v. United States

Supreme Court briefAug 31, 2022

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No. 22In the

Supreme Court of the United States

TYRONE WOOLASTON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of A ppeals For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Christopher LaVigne

Counsel of Record

John Nathanson

Robert Lewis

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

(212) 848-4432

christopher.lavigne@sherman.com

Counsel for Petitioner

315082

A

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

Whether manufactured venue is a valid criminal defense that a defendant is entitled to present to

a jury when it is undisputed that the Government transported a confidential informant across State

lines to a favored, neighboring district to orchestrate minor and unnecessary communications with

the defendant’s alleged co-conspirator for the express and sole purpose of establishing venue in

the Government’s preferred, neighboring district.

(I)

LIST OF PARTIES & CORPORATE DISCLOSURE STATEMENT

The following list provides the names of all parties to the proceedings below:

Petitioner Tyrone Woolaston was the appellant in the Court of Appeals.

The United States of America was the appellee in the Court of Appeals.

RELATED CASES STATEMENT

United States of America v. Tyrone Woolaston, 18-cr-212, U.S. District Court for the Southern

District of New York. Judgment entered December 18, 2020.

United States of America v. Tyrone Woolaston, No. 20-4233, U.S. Court of Appeals for the

Second Circuit, Judgment entered June 9, 2022.

(II)

TABLE OF CONTENTS

Opinions Below ...............................................................................................................................1

Jurisdiction .......................................................................................................................................1

Constitutional Provisions .................................................................................................................1

Statement of The Case .....................................................................................................................2

A.

Factual Background .................................................................................................5

B.

District Court Proceedings .......................................................................................8

C.

Court of Appeals Proceedings ...............................................................................11

Reasons To Grant The Petition ......................................................................................................12

I.

II.

Venue is A Constitutional Right That Cannot Be Manipulated By The Government

To Prosecute Cases in Its Preferred Forums ......................................................................12

A.

Manufactured Venue Is A Defense That Is Satisfied When The Government

Purposefully Manipulates Venue Where It Otherwise Does Not Exist .................14

B.

The Second Circuit’s Newly Created Requirements For Manufactured Venue

Should Be Rejected ................................................................................................19

1.

There Is No Distant District Requirement .................................................19

2.

There Is No Requirement Of Tangible Hardship Or Unfairness ...............21

The Courts OF Appeals Are Split as to Whether Manufactured Venue is a Defense .......24

A.

The Eleventh Circuit Appears To Recognize The Manufactured Venue

Defense When The Government Purposefully Manipulates Venue ......................25

B.

The D.C. And Ninth Circuits Hold That The Manufactured Venue Defense

May Be Raised When It Involves Extreme Or Outrageous Government

Conduct ..................................................................................................................26

C.

The First, Fourth, And Seventh Circuits Reject The Defense Of

Manufactured Venue ..............................................................................................27

D.

The Second Circuit Recognizes The Possibility Of The Manufactured Venue

Defense, Subject To Proof Of A Distant District And Tangible Hardship Or

Unfairness ..............................................................................................................27

E.

The Court Should Recognize And Standardize The Manufactured Venue

Defense ..................................................................................................................28

(III)

III. The Issue Presented is Important, and This Case Presents An Opportunity To

Resolve The Circuit Conflict ...........................................................................................30

Conclusion ....................................................................................................................................31

Appendix

Appendix A – Court of Appeals Summary Order (March 29, 2022)…………………………...1A

Appendix B – District Court Opinion & Order (January 7, 2020)……………………………...8A

Appendix C – Trial Transcript (February 19, 2019)…………………………………………...37A

Appendix D – Trial Transcript (February 14, 2019)…………………………………………...49A

Appendix E – Trial Transcript (February 12, 2019)…………………………………………...54A

Appendix F – Order Denying Rehearing (June 2, 2022)………………………………………64A

(IV)

TABLE OF AUTHORITIES

Page(s)

Cases:

Hertz Corp. v. Friend, 559 U.S. 77 (2010) ....................................................................................16

Holmes v. South Carolina, 547 U.S. 319 (2006) ...........................................................................12

Hyde v. United States, 225 U.S. 347 (1912) ..............................................................................2, 14

Lee v. Illinois, 476 U.S. 530...........................................................................................................12

Mathews v. United States, 485 U.S. 58 (1988) ..............................................................................12

Travis v. United States, 364 U.S. 631 (1961) ....................................................................15, 18, 23

United States v. Al-Talib, 55 F.3d 923 (4th Cir. 1995) ............................................................27, 29

United States v. Archer, 486 F.2d 670 (2d Cir. 1973) ...................................................................15

United States v. Auernheimer, 748 F.3d 525 (3d Cir. 2014) ................................................. passim

United States v. Black, 733 F.3d 294 (9th Cir. 2013) ....................................................................28

United States v. Brantley, 777 F.2d 159 (4th Cir. 1985) ...............................................................15

United States v. Brennan, 183 F.3d 139 (2d Cir. 1999).....................................................14, 19, 21

United States v. Cabrales, 524 U.S. 1 (1998) ................................................................................14

United States v. Chi Tong Kuok, 671 F.3d 931 (9th Cir. 2012) .....................................................26

United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998) ...................................................17, 25, 28

United States v. Dhavamani, No. 20-4306, 2021 WL 4786614 (4th Cir. Oct. 14, 2021)..............15

United States v. Gonzalez, 683 F.3d 1221 (9th Cir. 2012) ............................................................26

United States v. Johnson, 323 U.S. 273 (1944) .................................................................14, 18, 29

United States v. Kirk Tang Yuk, 885 F.3d 57 (2d Cir. 2018) (Dissent, Chin, J.) ...........................17

United States v. Lewis, 676 F.2d 508 (11th Cir. 1982) ............................................................25, 28

United States v. Naranjo, 14 F.3d 145, 146 (2d Cir. 1994) ..........................................16 18, 20, 27

United States v. Myers, 692 F.2d 823 (1982), cert. denied, 461 U.S. 961 (1983) ................. passim

(V)

United States v. Paul, 110 F.3d 869 (2d Cir. 1997) .......................................................................24

United States v. Pedroza, 750 F.2d 187 (2d Cir. 1984) .................................................................24

United States v. Ramirez-Amaya, 812 F.2d 813 (2d Cir. 1987).....................................................17

United States v. Rodriguez-Rodriguez, 453 F.3d 458 (7th Cir. 2006) .....................................27, 29

United States v. Rommy, 506 F.3d 108 (2d Cir. 2007) ............................................................17, 27

United States v. Russell, 411 U.S. 423 (1973) ...............................................................................26

United States v. Rutigliano, 790 F.3d 389 (2d Cir. 2015) .......................................................18, 19

United States v. Salinas, 373 F.3d 161 (1st Cir. 2004) ..................................................................22

United States v. Scott, 270 F.3d 30 (1st Cir. 2001)......................................................................222

United States v. Sitzmann, 893 F.3d 811 (D.C. Cir. 2018) .......................................................24, 26

United States v. Spriggs, 102 F.3d 1245 (D.C. Cir. 1997)..................................................... passim

United States v. Stratton, 649 F.2d 1066 (5th Cir. 1981) ..............................................................21

United States v. Thompson, 25 F.3d 1558 (11th Cir. 1994)...........................................................12

United States v. Tzolov, 642 F.3d 314 (2d Cir. 2011) ....................................................................19

United States v. Valenzuela, 849 F.3d 477 (1st Cir. 2017) ......................................................27, 29

Statutes and Constitutional Provisions

18 U.S.C. § 924(c)(1)(A)(i) ...........................................................................................................10

18 U.S.C. § 3237(a) .......................................................................................................................14

21 U.S.C. § 841(b)(1)(A) ...............................................................................................................10

21 U.S.C. § 846 ..............................................................................................................................11

28 U.S.C. § 1254(1) .........................................................................................................................1

U.S. Const. Amend. V .....................................................................................................................1

U.S. Const. Amend. VI ....................................................................................................2, 4, 14, 19

U.S. Const. Art. III, § 2, cl. 3 .....................................................................................................1, 14

(VI)

PETITION FOR A WRIT OF CERTIORARI

Petitioner Tyrone Woolaston respectfully petitions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is unreported and available at No. 20 4233-CR, 2022 WL

905404 (2d Cir. Mar. 29, 2022) (USSC App. A). The opinion of the District Court is unreported

and available at No. 18-CR-212 (AJN), 2020 WL 91488 (S.D.N.Y. Jan. 07, 2020) (USSC App. B).

JURISDICTION

The judgment of the Court of Appeals was entered on March 29, 2022. Petitioner’s timely request

for re-hearing en banc was denied on June 2, 2022. This Court has jurisdiction under 28 U.S.C.

1254(1)

CONSTITUTIONAL PROVISIONS

Article III, section 2 of the Constitution provides:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be

held in the State where the said Crimes shall have been committed; but when not committed within

any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

U.S. Const. Art. III, § 2, cl. 3. The Fifth Amendment to the Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for public use, without just

compensation.

U.S. Const. Amend. V. The Sixth Amendment to the Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed, which district

shall have been previously ascertained by law, and to be informed of the nature and cause of the

(1)

accusation; to be confronted with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

U.S. Const. Amend. VI.

STATEMENT OF THE CASE

This case is about the Government’s manipulation of Constitutional venue requirements

by transporting a confidential informant across State lines for the express and sole purpose of

engaging in minor and unnecessary communications with Petitioner Tyrone Woolaston’s coconspirator so the Government could establish venue in its preferred district. This fact pattern—

which the Second Circuit characterized as “troubling”—highlights the need for this Court to

define the contours of the manufactured venue defense, which has led to conflict amongst the

U.S. Courts of Appeals and within the Second Circuit itself. The Framers of the U.S.

Constitution ensured that criminal defendants could only be prosecuted in the State and district in

which the offense was committed. They did so by memorializing that right in two separate

sections of the U.S. Constitution—Article III, Section 2, Clause 3 and the Sixth Amendment.

This Court has closely guarded that right ever since, forewarning in the venue context in Hyde v.

United States that “to extend the jurisdiction of conspiracy by overt acts may give to the

government a power which may be abused.” 225 U.S. 347, 363 (1912).

Just the sort of abuse that concerned this Court happened in this case, as it has in

numerous others. This was through the Government’s calculated efforts to orchestrate minor,

incidental events in its underlying investigation to establish venue in the district of the

Government’s choosing, where it did not otherwise exist. Here, Petitioner Tyrone Woolaston

became ensnared in a Government-orchestrated sting operation from June 2015 to February 2018

(the “Sting”) that purported to target narcotics smuggling at the Newark Airport in Newark, New

Jersey. The Sting focused exclusively on activity at the Newark Airport and on conduct and

(2)

individuals in New Jersey. It was developed through consensually recorded meetings and events

that took place in New Jersey, and culminated with arrests in New Jersey. Even the courtauthorized wiretaps were approved in the District of New Jersey.

The Government, however, chose to charge Woolaston and his co-conspirator for

participation in a narcotics conspiracy and use of firearms in connection with that conspiracy in

the Southern District of New York (S.D.N.Y.). In an effort to create a plausible connection to the

S.D.N.Y., Government agents orchestrated a phone call at the eleventh hour from their confidential

informant in a Manhattan hotel (the “Manhattan Hotel”) to Woolaston’s co-conspirator in New

Jersey. Government agents drove the informant from New Jersey to Manhattan shortly after the

informant met with Woolaston’s co-conspirator in New Jersey, booked the informant a hotel room

in Manhattan, and directed him to place this telephone call to Woolaston’s co-conspirator in New

Jersey for the sole and express purpose of manufacturing venue in the S.D.N.Y. The call (which

was not recorded) and a series of benign text messages that followed were completely incidental

and unnecessary to the sting investigation and the conspiracy—there was no discussion of

conducting any business or narcotics trafficking in the S.D.N.Y., nor did Woolaston or his coconspirator ever set foot in the S.D.N.Y. Nevertheless, the Government relied on these gratuitous

communications to file its case in its preferred jurisdiction, the S.D.N.Y. While Woolaston was

precluded from questioning case agents on their intent, the record supports the conclusion that the

agents went to these lengths because they were concerned that the District of New Jersey would

potentially decline the case or not be as aggressive as federal prosecutors from the S.D.N.Y.

At trial, Woolaston attempted to raise a manufactured venue defense in light of this

improper Government conduct. The District Court agreed that the Government manufactured

venue in the Government’s preferred district but forbade Woolaston from presenting this defense

(3)

(including by refusing a jury instruction). The District Court made this decision in reliance on an

incorrect and blanket finding that the Government is permitted to manufacture venue as a matter

of law. On appeal, the Second Circuit recognized the outrageous conduct of the Government by

concluding that it was “troubled by the government’s orchestration of minor events in S.D.N.Y.

merely to create venue there” and noted that it could amount to reversal “[u]nder different

circumstances.”

USSC App. A, p.2.

The Second Circuit nonetheless concluded that a

manufactured venue defense was not available to Woolaston because the S.D.N.Y. neighbored the

District of New Jersey, and Woolaston failed to articulate some form of tangible unfairness or

hardship—beyond the fundamental unfairness in being prosecuted in an impermissible,

manufactured forum in violation of the Constitution. Id.

The Second Circuit’s decision misstates the law and would overrun the Constitutional text

that mandates all criminal defendants be prosecuted “in the State and district wherein the crime

shall have been committed.” U.S. Const. Amend. VI. The Court should take this opportunity to

delineate the core test for manufactured venue, which should be whether the Government

purposefully created venue in a district where it did not otherwise exist (i.e., in a district with no

independent, non-Government orchestrated connection to the offense) and which two Circuits

previously endorsed, see infra, II.A,B. The Second Circuit’s newly articulated test—requiring

proximity and tangible hardship/unfairness for this defense—adds to a growing circuit split

amongst the U.S. Courts of Appeals, which now employ four separate standards concerning the

availability of this defense. Absent this Court’s intervention, a defendant’s ability to raise this

defense will be dependent, and potentially outcome-determinative, on the law of the district into

which the defendant was impermissibly lured.

(4)

A. Factual Background

The Sting that ensnared Woolaston began in June 2015, when United States Department of

Homeland Security (“HSI”) Agents from New Jersey started investigating purported drug

smuggling at the Newark Airport. The Government utilized two confidential informants in the

Sting, one of whom (“Jerry”) befriended Woolaston’s alleged co-conspirator Xavier Williams. At

all relevant times, Woolaston was working as a baggage handler and fireman in New Jersey. See

C.A.A. 255.1 Woolaston’s alleged co-conspirator Williams was also living and working in New

Jersey. C.A.A. 1313.

In March 2017, HSI decided to kickstart this then-dormant investigation, C.A.A. 464-65.

It re-enlisted Jerry—a long-time drug dealer—to target Woolaston’s co-conspirator Xavier

Williams and propose a drug transaction to take place at the Newark Airport. C.A.A. 468, 675,

1148-50, 1230-32. What ensued was a seven-month effort to lure both Williams and Woolaston

into a February 11, 2018 controlled delivery of sham cocaine at the Newark Airport. During this

time, Jerry bombarded Williams with over 50 phone calls to ensure the Sting went forward. C.A.A.

1844-46. Jerry promised to pay $45,000 cash in exchange for Williams and Woolaston agreeing

to pick up five kilograms of sham cocaine from a flight arriving at the Newark Airport on February

10, 2018. C.A.A. 790-91. As a sweetener, Jerry provided Williams and Woolaston with an

“initial” cash payment of $4,000 during an in person meeting in New Jersey on January 6, 2018.

C.A.A. 24-30 (¶ 12), 772-73. The supervising HSI Agent admitted that HSI made this payment to

“lock in a conspiracy.” C.A.A. 485 (“by them receiving money to smuggle narcotics, or what they

References to the Appendix of Petitioner’s Petition for Writ of Certiorari are cited as “USSC

App. __.” References to the Appendix of Petitioner’s brief in the United States Court of

Appeals for the Second Circuit are cited as “C.A.A. __” References to the Special Appendix of

Petitioner’s brief in the United States Court of Appeals for the Second Circuit are cited as

“S.P.A. __.”

1

(5)

believed to be narcotics, that’s to lock them into the conspiracy”). And even after this exchange,

in recognition of Woolaston’s continued misgivings, the lead HSI Agent remarked that he could

not understand why Woolaston did not “want the money” being offered by Jerry. C.A.A. 183435.

The key events of the Sting took place in New Jersey. Notwithstanding the hundreds of

hours of consensually recorded and wiretapped phone calls, and the hundreds of text messages

collected between Williams and Woolaston, the Government did not present a single shred of

credible evidence that showed Woolaston or Williams ever committed (or planned to commit) a

single act in furtherance of the conspiracy in the S.D.N.Y. The evidence revealed that both

conspirators lived and worked in New Jersey, communicated about the Sting while in New Jersey,

met with Jerry in New Jersey, and according to the Government, smuggled narcotics through the

Newark Airport (which is in New Jersey). See, e.g., C.A.A. 930, 1026, 1219-20. Neither

Woolaston nor Williams ever set foot in the S.D.N.Y. in connection with the Sting. See C.A.A.

1220. So too with the investigation—it was conducted in New Jersey, by New Jersey HSI Agents,

who obtained all relevant warrants and Title III Court Orders through the U.S. District Court for

the District of New Jersey. See, e.g., C.A.A. 324-25, 493-95.

As the Sting progressed, the investigating New Jersey HSI Agents recognized this

problem—i.e., there was no connection to the S.D.N.Y. The S.D.N.Y. was the Agents’ preferred

forum because they perceived the S.D.N.Y. U.S. Attorney’s Office to be more aggressive in

prosecuting narcotics sting investigations and feared a declination from the District of New

Jersey U.S. Attorney’s Office. C.A.A. 501-02, 1033; see also C.A.A. 2255-56, 2301-02.2

This conclusion is based on limited discovery concerning the background of the investigation.

As explained below, because the District Court concluded the Government could manufacture

venue, it refused to let Woolaston get discovery or examine New Jersey HSI agents concerning

2

(6)

Accordingly, at the Sting’s eleventh hour (a mere one month before the arrests), the New Jersey

HSI Agents injected an S.D.N.Y. connection to this New Jersey conspiracy by orchestrating a

telephone call to be placed on January 6, 2018 from Jerry in Manhattan to Williams in New

Jersey. The “telephonic luring” of Williams was elaborate. At the Agents’ direction, Jerry took

a flight on January 6 to meet with Williams in New Jersey. C.A.A. 1761. On January 6, the

New Jersey HSI Agents met and picked up Jerry in New Jersey after he met with Williams in

New Jersey and gave Williams an upfront $4,000 cash payment; drove him across the Hudson

River to Manhattan; and dropped him off at the Manhattan Hotel. C.A.A. 453-55, 1217, 1220,

1313-14 . They paid for Jerry to spend one night at the Manhattan Hotel, id., with explicit

instructions (repeated on multiple occasions) that he needed to call Williams from his room at

the Manhattan hotel, see C.A.A. 1220-21, 1313, 1814 (series of January 6, 2018 text messages

from New Jersey HSI Agent to Jerry stating “just don’t forget to call [Williams]”; “[p]lease don’t

forget”; “[m]aybe send him a WhatsApp message if he doesn’t answer by the time you leave”).

This was unnecessary and entirely gratuitous. Jerry had been with Williams earlier in New

Jersey that day and provided him with the promised $4,000 upfront cash payment; there was no

investigative reason to drive him across the Hudson River to make a follow-up phone call that

evening. C.A.A. 1217. There had been no discussion or contemplation of using the S.D.N.Y. as

a distribution or meeting point during the course of the Sting, and neither Woolaston, Williams,

nor Jerry had set foot in the S.D.N.Y. in connection with the Sting.

Jerry followed these directives and called Williams from the Manhattan Hotel. At trial,

Williams recalled that Jerry called him at some point after the January 6 meeting, identified that

their reasons for preferring the S.D.N.Y. to the District of New Jersey, which was Constitutional

error and limits the full record on this issue.

(7)

he was in “the City” (not specifying S.D.N.Y.), and that they discussed “drug trafficking.” C.A.A.

783. But this call—unlike more than fifty others that Jerry placed—was not recorded by Jerry or

the New Jersey HSI Agents, and Williams could not remember any specific details about it.

C.A.A. 783, 1223. There is nothing in the record to suggest that that this call was integral to the

alleged conspiracy, that New York was discussed as a potential destination for the cocaine, or that

New York played any role in this Sting. The Government attempted to bolster its venue evidence

through a series of innocuous text messages that Jerry exchanged with Williams on the evening of

January 6 and the morning of January 7, consistent with the New Jersey HSI Agents’ directions,

2018. E.g., C.A.A. 1510, 1762. These unremarkable messages did not advance the conspiracy—

they reflect Williams sending messages concerning the status of Woolaston’s arrival at Williams’

home in New Jersey on the evening of January 6, with Williams noting “[h]e just came by.”

C.A.A. 1761-62. No evidence established where Jerry even was when the messages were

exchanged, with some indicating he was checked in at an airport that afternoon, which presumably

was either Newark Airport or Laguardia or JFK in the E.D.N.Y. Id. As with the orchestrated

phone call, the text messages contained no evidence that Jerry and Williams discussed committing

crimes in, or extending the alleged conspiracy to, Manhattan.

B. District Court Proceedings

There was a ten-day trial in S.D.N.Y. in February 2019. One of Woolaston’s key

defenses at trial was lack of venue. In response, the Government principally relied on the

January 6-7, 2018 orchestrated communications, even though they were a miniscule fraction of

the consensual recordings, text messages, wiretap recordings, and witness testimony that entirely

centered on events that took place in New Jersey. As a fallback, the Government introduced

implausible testimony from Williams (who became a cooperating witness) concerning a

purported trip that Woolaston took with Williams in 2013 from New Jersey to Queens, New

(8)

York (in the E.D.N.Y.) so that Woolaston could discuss a potential drug transaction with an

unknown third party. Williams could not recall the route he took, but the Government called an

investigator to testify that it most likely was through the S.D.N.Y given the available driving

routes between New Jersey and Queens. C.A.A. 880-81, 1077. Woolaston vigorously contested

the evidence surrounding this 2013 trip, as it was based on Williams’ sole testimony, there was

no corroboration of this meeting or drug transaction ever taking place, and Williams had no

firsthand knowledge of who this third party was, what was discussed between him and

Woolaston, or how this meeting or transaction was connected to the conspiracy or the Sting

(which it predated by two years). C.A.A. 880-882, 1337.

Woolaston attempted to raise a manufactured venue defense at trial, given that the core

venue evidence relied upon by the Government was its January 6-7 orchestrated communications

and the de minimis evidence concerning the 2013 trip was beyond slender. Woolaston submitted

a proposed jury instruction on his manufactured venue defense, attempted to question New

Jersey HSI Agents concerning their purpose and intent in directing Jerry to contact Williams

from Manhattan, and proffered the basis for this defense on multiple occasions. C.A.A. 148-49,

343-45, 495, 499-508, 738, 2344-49. The District Court held multiple arguments on this issue

and found that the Government deliberately placed Jerry in the Manhattan Hotel to artificially

create venue in the S.D.N.Y., the Government’s preferred venue. See, e.g., USSC App. C, Tr.

1026 (“The government’s intent [in directing Jerry to communicate with Williams from

Manhattan] was to obtain jurisdiction in the Southern District. There isn’t any question about

that.”); USSC App. C, Tr. 1028 (“I think it's perfectly clear that's what the purpose of the call

was [to obtain venue in the S.D.N.Y.]”); see also USSC App. D, Tr. 510 (“I think it is obvious

that the government intended to create venue. The facts are there. There is no question in my

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mind at this point.”) Notwithstanding these findings, the District Court held that “[i]t is

appropriate for the government to do what they did as a matter of law.” USSC App. C, Tr. 1025

The District Court went on to prohibit Woolaston from arguing manufactured venue to the jury

or even to use the term during trial. See, e.g., USSC App. D, Tr. 510-11; C.A.A. 499-508, 738,

1252-1261. The District Court compounded this error by refusing to allow Woolaston to

examine any law enforcement or Government witnesses concerning their purpose in arranging

for Jerry to stay at the Manhattan Hotel, C.A.A. 495, 499, 738, 1260, and by refusing to instruct

the jury on manufactured venue at all, C.A.A. 1372, 1549-1551. On the latter, the District Court

concluded that this was a “very difficult” issue, but that “there is no authority that tells me what

more would be required” from the standard venue charge and that “[a]s much as I would like to

be a hero, I don’t think it is appropriate under these circumstances.” USSC App. C, Tr. 1034.

Even though the jury heard no argument or instruction on manufactured venue, the jury

still submitted four separate notes on this topic, including whether Woolaston needed to have

“actual knowledge” that an overt act occurred in the S.D.N.Y. and requests to review evidence

concerning the January 6-7 orchestrated communications. C.A.A. 1584, 1596. On February 21,

2018, the jury convicted Petitioner on two counts of conspiring to distribute five or more kilograms

of cocaine, in violation of Title 21, United States Code, Sections 846 and 841(b)(1)(A), and using

a firearm in furtherance of that conspiracy, in violation of Title 18, United States Code, Section

924(c)(1)(A)(i). On April 9, 2019, Woolaston renewed his motion for acquittal and moved for a

new trial, including on the grounds that he was deprived of his Constitutional right to present a

defense on manufactured venue and that evidence of venue was insufficient. C.A.A. 1852-2118.

The District Court denied those motions on January 7, 2020. USSC App. B. On December 18,

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2020, the District Court sentenced Woolaston to 180 months’ imprisonment (the mandatory

minimum for these offenses) and a $200 special assessment. SPA 1–8.

C. Court Of Appeals Proceedings

Woolaston appealed his conviction, arguing, inter alia, that the District Court

wrongfully deprived him of his Constitutional right to present a defense (manufactured venue) and

that venue was improper in the S.D.N.Y. In a Summary Order, a panel of the Second Circuit

affirmed the conviction. The Circuit agreed with the District Court’s determination that the

Government had deliberately manufactured venue, stating that it was “troubled by the

government’s orchestration of minor events in S.D.N.Y. merely to create venue there.” USSC

App. A, at 3. The Circuit explained that this Government misconduct could constitute reversal

“under different circumstances,” but declined to do so here because the manufactured venue

defense “would be unavailing to Petitioner.” USSC App. A, at 3. The Circuit explained two

perceived gaps, which amount to two newly articulated requirements for this defense in the Second

Circuit. First, it explained that “concern over a distant district is critical” (emphasis added) for

purposes of manufactured venue, and that such a “concern is absent here because” the S.D.N.Y.

and District of New Jersey neighbor one another. Id. Second, it noted that Woolaston “does not

explain what other unfairness or hardship he faced from being prosecuted in New York instead of

New Jersey.” Id. The Second Circuit appeared to contemplate that such unfairness or hardship

encompassed something tangible, such as traveling long distances, inconvenience, or difficulties

in getting witnesses or evidence. Id. Accordingly, the Circuit rejected Woolaston’s argument that

the District Court’s refusal to permit Woolaston to present a manufactured venue defense

warranted reversal, and also found that the District Court properly refused to instruct the jury on

manufactured venue.

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Petitioner filed a timely petition for rehearing en banc, which the Court of Appeals denied

on June 2, 2022. USSC App. F.

REASONS TO GRANT THE PETITION

I. VENUE IS A CONSTITUTIONAL RIGHT THAT CANNOT BE MANIPULATED

BY THE GOVERNMENT TO PROSECUTE CASES IN ITS PREFERRED

FORUMS

The Constitution guarantees criminal defendants a meaningful opportunity to present a

complete defense to criminal charges. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006)

(“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a

complete defense.”) (internal quotations omitted). This includes the right to make arguments to

the jury and to get instructions to the jury on viable defenses. See Mathews v. United States, 485

U.S. 58, 63 (1988) (“As a general proposition a defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for a reasonable jury to find in his

favor”); United States v. Thompson, 25 F.3d 1558, 1564 (11th Cir. 1994) (“[C]ourts should not

prohibit a defendant from presenting a theory of defense to the jury.”). It also includes the right

to question witnesses. See Lee v. Illinois, 476 U.S. 530, 540) (“‘[T]he right of confrontation and

cross-examination is an essential and fundamental requirement for the kind of fair trial which is

this country’s constitutional goal.’”) (citations omitted).

Here, it is undisputed that the Government manufactured venue and that Woolaston was

prohibited from presenting this defense (including through a jury instruction) because of the

District Court’s erroneous determination that the Government can “manufacture venue…as a

matter of law.” C.A.A. 1252. While the Second Circuit disagreed with that blanket statement, it

tacked on two novel requirements which it concluded prevented application of the manufactured

venue defense to Woolaston’s case, and affirmed the District Court’s refusal to present this defense

to the jury. This Constitutional error necessitates reversal because it violated Woolaston’s

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Constitutional right to present a defense and to be prosecuted in a lawful venue. See Matthews,

485 U.S. at 66 (reversing and remanding for failure to provide instruction on entrapment defense);

United States v. Auernheimer, 748 F.3d 525, 539-40 (3d Cir. 2014) (Constitutional limitations on

venue are “structural” in nature and “extraordinarily important”). Moreover, this error is not simply

cured by evidence in the record concerning a purported trip that Woolaston took with Williams to

Queens (in the E.D.N.Y.) at an unknown time in 2013 to discuss an alleged drug transaction with

an unknown person with unknown connections to this conspiracy. That evidence was hotly

contested by Woolaston, was based on Williams’ sole testimony, was uncorroborated, and

Williams lacked firsthand knowledge concerning what was discussed between Woolaston and the

third party or details about the potential drug transaction. Woolaston’s manufactured venue

defense would have permitted the jury to hear a critical defense to the evidence the Government

presented concerning venue and this error cannot be considered harmless. See, e.g., Matthews,

485 U.S. at 62 (“[E]ven if the defendant denies one or more elements of the crime, he is entitled

to an entrapment instruction whenever there is sufficient evidence from which a reasonably jury

could find entrapment.”).3 Both the Second Circuit and District Court erred in finding that this

defense could not be presented and reversal and remand is warranted.

A. Manufactured Venue Is A Defense That Is Satisfied When The Government

Purposefully Manipulates Venue Where It Otherwise Does Not Exist

The manufactured venue defense should be recognized and satisfied if the Government

purposefully manipulates the Constitutional venue rights to gain venue in a district where it

otherwise does not exist (i.e., with no preexisting, independent connection to the offense).

In considering the evidence on venue, the jurors focused their review entirely on the January 67 communications as demonstrated by their notes. See Statement of Case, B, supra. These notes

reflect that the January 6-7 communications played a significant role in the jurors’ deliberations

on venue and the jurors should have been permitted to hear the manufactured venue defense.

33

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This is necessary to ensure protection of the Constitutional right to venue, which “has been

fundamental since our country’s founding.” Auernheimer, 748 F.3d at 532 (“The proper place of

colonial trials was so important to the founding generation that it was listed as a grievance in the

Declaration of Independence.”); see also United States v. Cabrales, 524 U.S. 1, 6 (1998) (“Proper

venue in criminal proceedings was a matter of concern to the Nation’s founders. Their complaints

against the King of Great Britain, listed in the Declaration of Independence, included his

transportation of colonists ‘beyond Seas to be tried.’”). The Constitution twice protects a criminal

defendant’s venue rights. Article III, Section 2 provides that “Trial shall be held in the State where

the said Crimes shall have been committed.” U.S. Const. Art. III, § 2, cl. 3. The Sixth Amendment

of the Constitution requires all criminal prosecutions to be in the “State and district wherein the

crime shall have been committed.” U.S. Const. Amend VI. The drafters of the Federal Rules of

Criminal Procedure likewise require that “the government must prosecute an offense in a district

where the offense was committed.” Fed. R. Crim. P. 18. Courts regularly recognize a defendants’

absolute “entitle[ment] to . . . prosecution in a lawful venue.” United States v. Brennan, 183 F.3d

139, 149 (2d Cir. 1999) (citing cases). This is because questions of venue are Constitutional and

not mere “matters of formal legal procedure,” United States v. Johnson, 323 U.S. 273, 276 (1944).

The manufactured venue doctrine—like the entrapment doctrine—provides recourse and a

check on Government overreach concerning these Constitutional rights. This is especially critical

in conspiracy prosecutions, like here, because venue may lay in any district in which the “offense

was begun, continued, or completed.” 18 U.S.C. § 3237(a). While this Court has never addressed

the manufactured venue defense, it has consistently cited the threat of government overreach when

it comes to establishing venue in conspiracy cases. In Hyde, when this Court addressed what

constitutes proper venue for a charge of conspiracy, the Court was apprehensive of the possibility

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that “extend[ing] the jurisdiction of conspiracy by overt acts may give to the Government a power

which may be abused.” 225 U.S. at 363. Later, in Johnson, the Court forewarned that the “doctrine

of the continuing offense” may lead “to the appearance of abuses, if not to abuses, in the selection

of what may deemed a tribunal favorable to the prosecution.” 323 U.S. at 276. And in Travis v.

United States, 364 U.S. 631, 634 (1961), the Court warned that “venue provisions in Acts of

Congress should not be so freely construed as to give the Government the choice of a tribunal

favorable to it.” (internal quotation omitted); see also Auernheimer, 748 F.3d at 541 (“Venue issues

are animated in part by the danger of allowing the [G]overnment to choose its forum free from any

external constraints.”).

Consistent with these principles, almost forty years ago, the Second Circuit in United States

v. Myers, 692 F.2d 823, 847 n.21 (1982), cert. denied, 461 U.S. 961 (1983), recognized the

possibility of a defense of “manufactured venue.” In a frequently cited (and often debated)

footnote, the Second Circuit stated that a defense of manufactured venue may lie when “key events

occur in one district, but the prosecution, preferring trial elsewhere, lures a defendant to a distant

district for some minor event simply to establish venue.” Id. This doctrine builds on the concept

of manufactured jurisdiction which some Circuits have also recognized. See, e.g., United States

v. Archer, 486 F.2d 670, 681 (2d Cir. 1973) (“Whatever Congress may have meant by [18 U.S.C.]

§ 1952(a)(3), it certainly did not intend to include a telephone call manufactured by the

Government for the precise purpose of transforming a local bribery offense into a federal crime.”);

United States v. Dhavamani, No. 20-4306, 2021 WL 4786614, at *1 (4th Cir. Oct. 14, 2021) (“In

this circuit, the manufactured jurisdiction doctrine prohibits government agents from manipulating

events to create the interstate element of a crime ‘for the sole purpose of transforming a state crime

into a federal crime.’”) (citation omitted); United States v. Brantley, 777 F.2d 159, 163 (4th Cir.

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1985) (“[F]ederal agents may not manufacture jurisdiction by contrived or pretensive means.”).

Unlike Constitutional venue provisions, the Constitutional jurisdictional provisions (in Article III,

Section 2, Clause 1) do not bestow individual rights, they simply empower federal courts to hear

certain cases, as determined by Congress. See Hertz Corp. v. Friend, 559 U.S. 77, 84 (2010)

(stating that Article III, Section 2 “does not automatically confer diversity jurisdiction upon the

federal courts [but] authorizes Congress to do so and, in doing so, to determine the scope of the

federal courts' jurisdiction within constitutional limits.”). A fortiori, a manufactured venue

defense—which serves to protect one of the Constitutional rights guaranteed in the Bill of Rights—

should be entitled to even greater weight.

Since Myers, however, courts across the country have struggled to articulate a bright-line

test for whether and when a manufactured venue defense should apply. See infra II.E. While

some courts have held out the possibility that the doctrine could be raised, others summarily

concluded (without instruction from this Court) that the Government has free reign to dictate venue

by orchestrating a minor act purportedly in furtherance of the conspiracy in a district most

favorable to the prosecution. See infra II. No bright-line application or rule, one way or the other,

has emerged.

While the Second Circuit has never reversed a case on manufactured venue grounds, it

historically (and before outlining its new rule in this case) focused on whether the Government

purposefully orchestrated events to lay venue in districts with no pre-existing connection to the

conspiracy. In United States v. Naranjo, for example, venue in the S.D.N.Y. for a defendant

located in the E.D.N.Y. was predicated on “many” telephone calls between a co-conspirator and

an undercover FBI agent in Manhattan in furtherance of the conspiracy. 14 F.3d 145, 146 (2d Cir.

1994). Although the Second Circuit rejected the defendant’s manufactured venue argument, it did

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so because the Government “did not orchestrate the phone call in order to lay the groundwork for

venue in the Southern District,” and because “the agent did not go to Manhattan in order to create

venue there.” Id. at 147 (emphasis added). The Second Circuit therefore found that venue was

proper, and may only be proper, “in the absence of . . . artificial creation of venue in [the S.D.N.Y.]

by the Government.” Id. at 146 (emphasis added). See also United States v. Ramirez-Amaya, 812

F.2d 813, 816 (2d Cir. 1987) (“[W]hile we would be loath to uphold venue on the basis of the

flight path of an aircraft manned solely by government agents if there were an indication that its

route had been significantly out of the ordinary, considering its point of departure and its

destination, there is no such indication here.”) (emphasis added); United States v. Rommy, 506

F.3d 108, 124, 126-27 (2d Cir. 2007) (rejecting manufactured venue defense because defendant’s

communications with undercover agents “cannot be viewed as minor event[s] engineered simply

to establish venue.”) (internal quotations omitted); United States v. Kirk Tang Yuk, 885 F.3d 57,

93 (2d Cir. 2018) (“Our decisions have left open the possibility of finding that venue was not

established where law enforcement engaged in conduct intended to create venue where it otherwise

did not exist.”) (Dissent, Chin, J.).

As discussed below, see II A,B infra., other Circuits have recognized the viability of a

manufactured venue defense where the Government purposefully took investigative steps—such

as an orchestrated undercover phone call—to establish venue. In United States v. Dabbs, 134 F.3d

1071, 1078 (11th Cir. 1998), for example, the defendants argued that the Government “improperly

orchestrated [] contact for the purpose of creating venue.” The court denied the defendants’

manufactured venue argument because “the appellants fail to show that the government

orchestrated the undercover operation in order to create venue.” See also United States v. Spriggs,

102 F.3d 1245, 1251 (D.C. Cir. 1997) (“assum[ing]” that “there would be a fatal impropriety where

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‘the key events occur in one district, but the prosecution, preferring trial elsewhere, lures a

defendant to a distant district for some minor event simply to establish venue.’”) (quoting Myers,

692 F.2d at 847 n.21).

These decisions are predicated on the concern, first raised in Travis, that broad

interpretations, or manipulations, of venue enable the Government to forum shop and prosecute

cases in the districts within which they perceive an advantage. 364 U.S. at 634. In Naranjo, for

example, the Court emphasized that the Government did not “maliciously attempt to prosecute her

in the Southern District because that District would be more favorable to its case,” 14 F.3d at 148;

see also United States v. Rutigliano, 790 F.3d 389, 399 (2d Cir. 2015) (emphasizing that “there is

no basis to conclude that the government preferred to try these defendants in the Southern District

(instead of the Eastern District [where the defendants worked]).)”

Drawing off this line of cases and principles, and enforcing its precedent that recognizes

the danger of Government overreach in the context of venue for conspiracy prosecutions, the Court

should grant this Petition and recognize that manufactured venue is a defense when the

Government purposefully creates venue in a district where it would otherwise not exist (i.e., with

no independent, non-Government orchestrated connection). In Johnson, the Court observed in the

venue context that if a statute “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.

Following this principle necessitates recognizing the manufactured venue defense to further the

“Constitutional policy” of the Sixth Amendment and Article III. It will ensure that the Government

cannot manipulate venue in sting and conspiracy investigations to charge cases in its preferred

forums.

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B. The Second Circuit’s Newly Created Requirements For Manufactured Venue

Should Be Rejected

The Second Circuit’s new “distant district” and “unfairness or hardship” requirements—

which the Circuit found were not satisfied in Woolaston’s case—have no basis in the text of the

Constitution and should be rejected.

1.

There Is No Distant District Requirement

First, regarding the need for a “distant district,” the Constitution requires cases to be

prosecuted in the “State and district wherein the crime shall have been committed,” Const. Amend.

VI, not in the “neighboring” State or district where it was committed. The Second Circuit’s

proximity requirement stems from stray language in certain cases that cite distance as an important

consideration in determining whether venue was in fact manufactured. In Rutigliano, for example,

the Second Circuit held that the “concern over a distant district is critical” in the context of

manufactured venue and noted that the defendants “were not lured to a faraway land” 790 F.3d at

399. (quoting Spriggs, 102 F.3d at 1251). But that statement arose in the context of considering

how the manufactured venue doctrine can be a check against “bias and inconvenience.” Id. It was

not intended to be, nor should it be, a requirement for the manufactured venue defense.

Venue is infirm, and convictions must be reversed, if the evidence at trial showed that a

defendant’s criminal conduct was not in the district of prosecution.

No carve-out to this

Constitutional right exists simply because the evidence showed that the defendant engaged in

conduct “close” to the district of prosecution or in a neighboring district. See United States v.

Tzolov, 642 F.3d 314, 319 (2d Cir. 2011) (finding venue improper in the E.D.N.Y., even though

criminal conduct occurred in the S.D.N.Y); Brennan, 183 F.3d at 149 (reversing conviction in the

E.D.N.Y. on venue grounds and rejecting argument that lack of venue was harmless because it

would have been proper in S.D.N.Y., a neighboring district to E.D.N.Y.) (citing cases). For the

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same reason, no carve-out should be applied to the manufactured venue doctrine simply because

Government luring took place “near” the district of offense. It is therefore unsurprising that the

Second Circuit’s decision in this case cannot be squared with its decision in Naranjo, 14 F.3d at

146. There, in declining to find that manufactured venue was appropriate, the Naranjo Court did

not discuss the proximity of the districts as even a relevant factor, despite the S.D.N.Y. (the district

of prosecution) and E.D.N.Y. (the district where the defendant resided and operated during the

investigation) being next to one another.

Further, seeking recourse for being charged in a distant district is already covered in the

Federal Rules of Criminal Procedure pertaining to transfers, which allows them on the basis of

convenience (which necessarily encompasses distance). See, e.g., Fed. R. Crim. P. 21. Permitting

manufactured venue to only be raised when a defendant is lured to a distant district, as opposed to

a proximate one, is an unprincipled distinction that is incompatible with the Constitutional venue

requirement and would override a key purpose behind the manufactured venue doctrine—

combatting the unfairness of the Government choosing what district of prosecution would be most

favorable to it.

Moreover, the Second Circuit’s current standard is completely unworkable in practice as

the Circuit fails to define what constitutes a “distant district.” This will turn into a guessing

game, i.e., is it a matter of physical distance or convenience?

Would Philadelphia or

Washington D.C. be far enough from Manhattan under the Second Circuit’s test? Or is it the

proximity of the judicial districts? This amorphous standard distorts the plain language of

Article III, Section 2 and the Sixth Amendment to the Constitution—simply that crimes be

charged in the State and district where the crime occurred, not near to where it occurred.

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2.

There Is No Requirement of Tangible Hardship Or Unfairness

Second, as discussed above, the harm and unfairness at issue here is a defendant being

prosecuted in a venue unrelated to the key conduct at issue, in a manner inconsistent with a

Constitutional requirement, based on an election made by the Government. That is a significant

and sufficient harm; no other harm, hardship, or unfairness is needed to support the defense. The

Second Circuit’s interjection of a need to show “unfairness or hardship”—which apparently

contemplates tangible inconvenience such as traveling long distances, or challenges in getting

witnesses or evidence— ignores the fundamental unfairness of (and the attendant deprivation of

Constitutional rights and harm caused by) the Government orchestrating or manufacturing the

Constitutional requirements of venue, which cannot be encroached. See Brennan, 183 F.3d at

149 (defendants possess an absolute “entitle[ment] to . . . prosecution in a lawful venue)”;

Auernheimer, 748 F.3d at 539-40 (Constitutional limitations on venue are “structural” in nature

and “extraordinarily important”; “[I]f venue is improper no constitutionally valid verdict could

be reached regardless of the potentially overwhelming evidence against the defendant.”) (internal

quotations omitted); United States v. Stratton, 649 F.2d 1066, 1076 n.15 (5th Cir. 1981) (“A

defendant’s ‘interest in being tried only in a district where venue properly lay’ clearly constitutes

a ‘substantial’ right.”) (citation omitted).

Further, the net effect of the Second Circuit’s decision is that when conducting sting

investigations in conspiracy cases, the Government will be permitted to forum shop within any of

the districts located in the vicinity of the actual district of the offense. In major metropolitan cities

(like New York, Washington, D.C., or Atlanta), this would enable the Government to choose the

site of prosecution from multiple districts, including those encompassed in outlying suburbs or

surrounding areas, irrespective of the locus of the defendant’s or his/her co-conspirators’ conduct

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that is at issue. This is because the manufactured district of prosecution may not be “distant” from

the actual district of the offense, and defendants will have hurdles in showing tangible harm,

inconvenience, or unfairness. This will incentivize the Government to manipulate venue and

prosecute cases in whatever forum appears most favorable, either because of views of the

composition of the local jury pool, local court practices or precedent, reputation of local judges at

sentencing, or perception or relationships with the local U.S. Attorney’s Office. This risk is

especially acute concerning investigations of political figures because investigating case agents

could orchestrate minor events in a perceived favorable “blue” district when the target of an

investigation hails from a “red” political party.

The Constitutional venue provisions provide an essential check against these dangers. See

United States v. Salinas, 373 F.3d 161, 169 (1st Cir. 2004) (“Over time, one of the primary

concerns motivating the limitation of venue has been the danger of allowing the government to

choose its forum.”); Auernheimer, 748 F.3d at 540 (stating that “a defendant who has been

convicted ‘in a distant, remote, or unfriendly forum solely at the prosecutor’s whim,’ has had his

substantial rights compromised”) (emphasis added); United States v. Scott, 270 F.3d 30, 36-37 (1st

Cir. 2001) (noting that the Constitution’s venue provisions serve to prevent “government forum

shopping” or the selection of a venue with “the barest connection” to the crime or the defendant).

The manufactured venue defense is critical to ensure that these provisions are honored, and not

undercut by the Government’s orchestration of minor events in particular districts because it

“prefer[s] trial” in those districts. Myers, 692 F.2d at 847 n.21; Spriggs, 102 F.3d at 1251.

Even if there is some additional harm, hardship, or unfairness required beyond prosecution

in a manufactured, impermissible forum—which there is not—Woolaston has demonstrated that

by establishing the Government’s undisputed intent to manufacture venue in its preferred district

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(the S.D.N.Y.). C.A.A. 1253 (“The government’s intent was to obtain jurisdiction in the Southern

District. There isn’t any question about that.”); C.A.A. 737 (“I think it is obvious that the

government intended to create venue. The facts are there. There is no question in my mind at this

point.”); USSC App. A, at 2 (referencing “the government’s orchestration of minor events in

S.D.N.Y. merely to create venue there”). This is the exact fact pattern that gave rise to the

manufactured venue doctrine in this first place, about which numerous courts expressed concern

but found not to be present in their respective cases, see I.A supra. The Constitutional venue

provisions were enacted for this express purpose and the Government cannot override them by

orchestrating minor connections to bring cases in their chosen forum. See Travis, 364 U.S. at 634

(holding that “venue provisions in Acts of Congress should not be so freely construed as to give

the Government the choice of a tribunal favorable to it.”).

Moreover, because the District Court refused to permit Woolaston from pursuing any

manufactured venue defense, he was deprived of getting any discovery, questioning Government

witnesses on this very point (i.e., their purpose and beliefs as to why the S.D.N.Y. was the

preferable forum), or arguing this defense to the jury. Woolaston should not be faulted for not

making more of a showing on tangible hardship or unfairness when the very rulings he challenges

prevented him from getting critical and necessary information that bore on these very issues. See,

e.g., C.A.A. 737-38. Reversal and remand are warranted on this ground alone because, even

adopting the Second Circuit’s test, Woolaston should have been permitted to develop the record

concerning the Government’s intent, hardship, and unfairness both before and during trial. Instead,

the District Court and Second Circuit curtailed that right on an incomplete record, and based on

the erroneous conclusion that the Government can manufacture venue as a matter of law or that

the two newly created requirements were not satisfied as a matter of law. This is Constitutional

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error because defendants are entitled to present a defense so long as there is an evidentiary basis

for doing so, “even if the trial court determines that the evidentiary foundation of the defense

theory is only tenuous.” United States v. Paul. 110 F.3d 869, 871 (2d Cir. 1997) (citing cases);

see also United States v. Pedroza, 750 F.2d 187, 205 (2d Cir. 1984) (“It is well established that [a]

criminal defendant is entitled to have instructions presented relating to any theory of defense for

which there is any foundation in the evidence, no matter how weak or incredible that evidence may

be.”) (internal quotations omitted). Further, “the factual issues underlying the [defense] theory

should be resolved by the jury,” not by the Court like it was here. Paul, 110 F.3d at 871.

Woolaston’s Constitutional rights to present a defense were therefore undisputedly violated and

he should therefore be granted a new trial to present a manufactured venue defense under whatever

standard the Court articulates.

II.

THE COURTS OF APPEALS ARE SPLIT AS TO WHETHER

MANUFACTURED VENUE IS A DEFENSE

Compounding the novelty of the Second Circuit’s two-part requirement and internal

conflict in its precedent is that the other Courts of Appeals are split as to whether manufacture

venue is a defense. In United States v. Sitzmann, the D.C. Circuit considered whether the

government may manufacture venue and recognized the divergent approaches of different

circuits. 893 F.3d 811, 823 (D.C. Cir. 2018). The court observed that “several circuits have

rejected the concept of manufactured venue or venue entrapment,” while “[o]ther circuits,

including [the D.C. Circuit] have reserved ruling on the question of whether ‘manufactured

venue’ is a viable theory, but have suggested that such a theory may only apply in ‘cases

involving extreme law enforcement tactics.’” Id. (citations omitted). The Circuit split reflects

that lower courts are grappling over how to address the Government’s broad powers in

manipulating Constitutional venue requirements to the district of their choosing. This has

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draconian effects on criminal defendants, where a defense to venue, and the contours of it,

may only be available depending on where they are prosecuted. Put differently, the

Government can creatively look to manufacture venue in favorable districts found in

Circuits that refuse to recognize the defense or, in the Second Circuit, in districts that are

proximate to the district of prosecution. Only this Court can resolve this open question and

should do so by holding that manufactured venue is a defense and that venue may not lie when it is

purposefully created by the Government in a district where it would otherwise not exist (i.e.,

with no independent, non-Government orchestrated connection).

A. The Eleventh Circuit Appears To Recognize The Manufactured Venue Defense

When The Government Purposefully Manipulates Venue

As discussed supra I.A, Courts in the Eleventh Circuit recognize that a defendant may raise

a manufactured venue defense if the Government purposely took investigative steps—such as an

orchestrated undercover phone call—to establish venue. See Dabbs, 134 F.3d at 1078 (rejecting

manufactured venue argument because “the appellants fail[ed] to show that the government

orchestrated the undercover operation in order to create venue.”); United States v. Lewis, 676 F.2d

508, 511 at n.3 (11th Cir. 1982) (observing that a defense of improper venue failed because

“federal authorities did not orchestrate the phone call [establishing venue] in order to lay the

groundwork for venue”).

B. The D.C. And Ninth Circuits Hold That The Manufactured Venue Defense May Be

Raised When It Involves Extreme Or Outrageous Government Conduct

Courts in the D.C. and Ninth Circuits have held that situations may arise in which the

manufactured venue defense is available. These Courts analyze whether the Government’s actions

causing the connection to the district violate due process or are “outrageous” or “extreme.” The

D.C. Circuit specifically labeled manufactured venue as an issue of due process, explaining that

“‘a situation [may arise] in which the conduct of law enforcement agents is so outrageous that due

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process principles would absolutely bar the Government from invoking judicial processes to obtain

a conviction.’” Spriggs, 102 F.3d at 1251 (quoting United States v. Russell, 411 U.S. 423, 431432 (1973). In response to the defendants’ argument that venue was manufactured because it was

“purposefully” created by the Government, the D.C. Circuit “assume[d]” that “there would be a

fatal impropriety where ‘the key events occur in one district, but the prosecution, preferring trial

elsewhere, lures a defendant to a distant district for some minor event simply to establish venue.’”

Id. (quoting Myers, 692 F.2d at 847 n.21). But, unlike here, the D.C. Circuit found such facts were

not present.

Among other things, the “local drug trade is concentrated” in the district of

prosecution and the district was “integral to the alleged conspiracy.” Id.; see also Sitzmann, 893

F. 3d at 823 (rejecting manufactured venue challenge because no facts satisfied the Spriggs test,

and overt acts occurred in “many places”).

Courts in the Ninth Circuit similarly hold that the manufactured venue defense may be

available where the Government engaged in extreme law enforcement tactics to manipulate venue.

In United States v. Chi Tong Kuok, for example, the defendants raised a manufacturing defense on

appeal, which the Court rejected because “there was nothing ‘extreme’” about the undercover

operation, which was based in the district of prosecution, targeted an overseas national, and cashed

a money order in the district of prosecution. 671 F.3d 931, 938 (9th Cir. 2012), See also United

States v. Gonzalez, 683 F.3d 1221, 1126 n.6 (9th Cir. 2012); (declining to find that the government

“engaged in ‘extreme’ law enforcement tactics to manufacture venue” based on informant

telephone calls with the defendant concerning amount, price, and location for narcotics

transactions).

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C. The First, Fourth, And Seventh Circuits Reject The Defense Of Manufactured

Venue

Three circuits outright reject or express serious doubt towards the manufactured venue

defense. According to the Fourth Circuit, “[t]here is no such thing as ‘manufactured venue’ or

‘venue entrapment.’” United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995). The Seventh

Circuit similarly approved of Government manipulation of venue. See United States v. RodriguezRodriguez, 453 F.3d 458, 462 (7th Cir. 2006) (“In drugs cases, for example, prosecutors may

choose the crime’s location by deciding where undercover agents offer to buy or sell drugs from

suspects, or from what districts they place phone calls that set up transactions.”) The Court found

that orchestrating venue is not forbidden and that the entrapment doctrine “does not limit venue.”

Id. And the First Circuit, agreeing with the Fourth and the Seventh Circuits, also rejected the

manufactured venue defense, subject to a possible exception for extreme government conduct. See

United States v. Valenzuela, 849 F.3d 477, 489 (1st Cir. 2017) (“We therefore join the other circuits

in rejecting the manufactured venue doctrine. However, even if such a doctrine were to be

available in extreme cases of government misconduct, that would simply not be the case here.”).

D. The Second Circuit Recognizes The Possibility Of The Manufactured Venue

Defense, Subject To Proof Of A Distant District And Tangible Hardship Or

Unfairness

As noted above, the Second Circuit first raised the issue of manufactured venue in

Myers, 692 F.2d at 847 n.21.

In several subsequent opinions, the Second Circuit continued to

acknowledge that the doctrine of manufactured venue may be a necessary defense when the

government takes affirmative steps to create venue for a crime where it otherwise would not exist.

See, e.g., Naranjo, 14 F.3d at 146; Rommy, 506 F.3d at 124, 126-127. The Second Circuit below

recognized the potential viability of the defense but added two new elements—a “distant district”

(27)

and tangible hardship or unfairness—that are inconsistent with the Second Circuit’s precedent and

which further cloud the applicability of the manufactured venue defense.

E. The Court Should Recognize And Standardize The Manufactured Venue Defense

Given the Government’s power in investigating and prosecuting conspiracy cases, and the

split in authority concerning whether manufacturing venue encroaches a defendants’ venue rights,

the Court should grant certiorari to clearly delineate the contours of this defense. If a similar case

arose in the Eleventh Circuit, Woolaston should have been permitted to present his manufactured

venue defense to the jury. The District Court and Second Circuit found that the Government

engineered “minor events” in the S.D.N.Y. to establish venue there, USSC App. A, at 2, which is

the same fact pattern the Eleventh Circuit indicated would not sustain venue, see Dabbs, 134 F.3d

at 1079 n. 10; Lewis, 676 F.2d at 511 n.3. In the D.C. or Ninth Circuit, the district court would have

evaluated the nature of the New Jersey HSI Agents’ conduct and whether it was extreme, outrageous,

or a due process violation, which generally involves situations where the “government’s conduct

violates fundamental fairness.” United States v. Black, 733 F.3d 294, 302 (9th Cir. 2013). This test

would have been satisfied. The Second Circuit found the New Jersey HSI Agents’ conduct

“troubling” because they deliberately orchestrated “minor events” to lay venue in their preferred

district of prosecution, which potentially could have been grounds for reversal. USSC App. A, at 2.

This was for good reason. The New Jersey HSI Agents deliberately picked up and drove Jerry across

State lines to the S.D.N.Y.—after he had just met with Williams earlier that day and gave him a

$4,000 upfront payment—for the sole purpose of having him place a gratuitous telephone call to

Williams to enable the New Jersey HSI Agents and prosecutors to proceed in their preferred forum.

But for the distance of districts, this fact pattern is the same one that the Spriggs Court characterized

as having a “fatal impropriety”—i.e., “where the key events occur in one district, but the prosecution,

(28)

preferring trial elsewhere, lures a defendant to a distant district for some minor event simply to

establish venue.” Spriggs, 102 F.3d at 1251. And unlike in Spriggs, the S.D.N.Y. was not “‘integral

to the alleged conspiracy,’” Id.(citation omitted), it was simply the New Jersey HSI Agents’ and

prosecutors’ preferred district in which to charge the case. In short, the fact pattern of this case is

the same one that Courts have routinely indicated would support manufactured venue and is

distinguishable from those where the defense was rejected.

If Woolaston’s facts arose in the First, Fourth, or Seventh Circuit, the district court would

very likely take the approach the District Court did here and deny Woolaston’s request to present a

defense based on manufactured venue. Yet such a decision would be based on broad language from

those Circuits that outright prohibit a manufactured venue defense, rather than on analogous facts.

This broad prohibition on manufactured venue rests in large part on the erroneous conclusion that

“[s]uch substantive concerns of criminal law bear little relationship to a procedural concept such as

venue.” Al-Talib, 55 F.3d at 929. But this Court had already made clear that “[q]uestions of venue

in criminal cases, therefore, are not merely matters of formal legal procedure,” Johnson, 323 U.S. at

276, and that venue is a Constitutional right that cannot be abridged.4

The divergence of the various Circuits becomes more problematic when considering

how other Circuits may handle a situation like this. Courts in such districts must now weigh

four different standards based on the existing landscape—focus on whether the agents

4

Moreover, all of the First, Fourth, or Seventh Circuit cases that rejected manufactured venue are

distinguishable. See, e.g., Valenzuela, 849 F.3d at 488-489 (co-conspirator (though driven by

government agent) participated in a critical meeting in the district); Al-Talib, 55 F.3d at 928 (finding

that defendant's acts independent of government's sting operation were sufficient to find venue);

Rodriguez-Rodriguez, 453 F.3d at 462 (declining to endorse manufactured venue in illegal reentry

case where defendant claimed he was “found” in district where he was apprehended, rather than

district he was transferred to pursuant to outstanding warrant).

(29)

orchestrated communications to establish venue (the Eleventh); whether the defendant was

lured to a distant district and can show tangible hardship or unfairness (the Second); whether

the agents engaged in extreme or outrageous conduct (the D.C. or Ninth); or simply refuse to

permit any such defense and allow manufactured venue full-stop (the First (with an exception

for extreme cases), Fourth, or Seventh).

III.

THE ISSUE PRESENTED IS IMPORTANT, AND THIS CASE PRESENTS

AN OPPORTUNITY TO RESOLVE THE CIRCUIT CONFLICT

This Petition presents a question of exceptional importance in criminal and Constitutional

law. See Fed. R. App. P. 35(b)(1)(B). Numerous defendants have raised the manufactured venue

defense since it was recognized in Myers, 692 F.2d 823, almost 40 years ago. The resulting lack

of clarity has encouraged the Government to manufacture venue in sting investigations for

conspiracy cases, which runs roughshod over the Constitutional right to be prosecuted in a lawful

venue.

This case also provides clear facts that would permit this Court to address this issue of

exceptional importance and fundamental fairness in Government conspiracy prosecutions. It is

undisputed that the Government manufactured venue by “orchestrat[ing] minor [] events in

S.D.N.Y. merely to create venue there.” USSC App. A, at 2; see also USSC App. D, Tr. 510

(“I think it is obvious that the government intended to create venue. The facts are there. There is

no question in my mind at this point.”). This fact pattern—unlike any of the other manufactured

venue cases cited above, which the Circuits emphasized did not have such undisputed facts of

manufactured venue—cannot be countenanced. It would embolden Government agents and

prosecutors to continue stretching the bounds of conspiracy law and bring indictments in the

districts of their choosing, based on preferences in jury composition, local practices of judges,

(30)

prosecutors, or defense counsel, sentencing patterns, or any other factors that have no bearing

on the commission or location of the actual offense.

CONCLUSION

The petition for a writ of certiorari should be granted.

SHEARMAN & STERLING LLP

Christopher LaVigne

Counsel of Record

John Nathanson

Robert Lewis

599 Lexington Avenue

New York, NY 10022

(212) 848-4432 (telephone)

(646) 848-4432 (facsimile)

christopher.lavigne@shearman.com

Counsel for Defendant Tyrone Woolaston

(31)

APPENDIX

APPENDIX A

Case 20-4233, Document 112-1, 03/29/2022, 3286741, Page1 of 5

20-4233-cr

United States v. Tyrone Woolaston

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

29th day of March, two thousand twenty-two.

Present:

ROSEMARY S. POOLER,

ROBERT D. SACK,

MYRNA PÉREZ,

Circuit Judges.

________________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

20-4233-cr

TYRONE WOOLASTON,

Defendant-Appellant. 1

________________________________________________________

Appearing for Appellant:

Robert Lewis, Shearman & Sterling LLP (Christopher L. LaVigne,

on the brief), New York, N.Y.

Appearing for Appellee:

Nathan Rehn, Assistant United States Attorney (Alison Moe,

David Abramowicz, Assistant United States Attorneys, on the

brief), for Audrey Strauss, United States Attorney for the Southern

District of New York, New York, N.Y.

1

The Clerk of Court is directed to amend the caption as set forth above.

Case 20-4233, Document 112-1, 03/29/2022, 3286741, Page2 of 5

Appeal from the United States District Court for the Southern District of New York (Nathan, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Tyrone Woolaston appeals from a judgment of conviction entered on December 18, 2020

by the United States District Court for the Southern District of New York (Nathan, J.). Following

a trial before Judge Robert W. Sweet, a jury convicted Woolaston of conspiracy to distribute and

possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846

(“Count One”), and of using and carrying a firearm in furtherance of the conspiracy charged in

Count One, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (“Count Two”). Judge Alison J. Nathan,

assigned to the case after Judge Sweet’s death, denied Woolaston’s post-trial motions for a

judgment of acquittal and for a new trial. United States v. Woolaston, No. 18-cr-212 (AJN), 2020

WL 91488 (S.D.N.Y. Jan. 7, 2020). Judge Nathan then sentenced Woolaston to 120 months’

imprisonment on Count One and a consecutive term of 60 months’ imprisonment on Count Two,

followed by five years of supervised release. We assume the parties’ familiarity with the

underlying facts, procedural history, and specification of issues for review.

I.

Venue

Woolaston argues that there was insufficient evidence of venue in the Southern District of

New York (“S.D.N.Y.”), and that Judge Sweet erred in instructing the jury on venue. We disagree.

In a conspiracy case like this one, “venue is proper in any district in which an overt act in

furtherance of the conspiracy was committed by any of the coconspirators.” United States v.

Svodoba, 347 F.3d 471, 483 (2d Cir. 2003) (internal quotation marks omitted). “Because venue is

not an element of a crime, the government need establish it only by a preponderance of the

evidence.” United States v. Ramirez, 420 F.3d 134, 139 (2d Cir. 2005). We review the sufficiency

of venue evidence “de novo, considering the evidence in the light most favorable to the

government,” United States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012), and “deferring to the jury’s

assessments of the witnesses’ credibility,” United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997).

The government introduced evidence that two overt acts occurred in S.D.N.Y. First, Xavier

Williams testified that in 2013, he drove Woolaston from New Jersey to Queens to meet with a

customer of Woolaston’s alleged cocaine-trafficking operation to “work[] on another drug

shipment.” App’x at 671. An investigative analyst testified that there was no practical way to make

this drive without passing through Manhattan, the Bronx, or the Verrazzano-Narrows Bridge, all

of which are in S.D.N.Y. See United States v. Kirk Tang Yuk, 885 F.3d 57, 72 (2d Cir. 2018). This

evidence of a trip through S.D.N.Y. to further the charged conspiracy suffices to sustain venue

there. Id. Woolaston objects that the details of this meeting were “beyond slender,” Appellant’s

Br. at 34, and that the government produced no corroborating evidence. But “a federal conviction

may be supported by the uncorroborated testimony of even a single accomplice if that testimony

is not incredible on its face.” United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018) (internal

quotation marks and ellipsis omitted). Moreover, “any lack of corroboration goes only to the

weight of the evidence, not to its sufficiency. The weight is a matter for argument to the jury, not

a ground for reversal on appeal.” United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989).

2

Case 20-4233, Document 112-1, 03/29/2022, 3286741, Page3 of 5

Woolaston’s counsel apprised the jury of the absence of corroborating evidence of the Queens

meeting. Having heard Woolaston’s arguments, the jury was entitled to credit Williams’s

testimony, which was not incredible on its face.

Venue was also proper on the government’s second proffered basis: a series of phone calls

and text messages in 2018 between Williams and a government confidential informant, “Jerry,”

while Jerry was in a hotel in Manhattan. “[A] telephone call placed by a government actor within

a district to a conspirator outside the district can establish venue within the district provided the

conspirator uses the call to further the conspiracy.” United States v. Rommy, 506 F.3d 108, 122

(2d Cir. 2007). Woolaston argues that Homeland Security Investigations (“HSI”) agents

improperly “manufactured” this overt act in S.D.N.Y. by, among other things, booking Jerry’s

Manhattan hotel, driving him there from New Jersey, and repeatedly instructing him to call

Williams from the hotel. We have held out the possibility of venue being improper where “key

events occur in one district, but the prosecution, preferring trial elsewhere, lures a defendant to a

distant district for some minor event simply to establish venue.” United States v. Myers, 692 F.2d

823, 847 n.21 (2d Cir. 1982). Given that the key events in this case principally occurred in the

District of New Jersey (“D.N.J.”), we are troubled by the government’s orchestration of minor

events in S.D.N.Y. merely to create venue there. Under different circumstances, that conduct could

possibly furnish grounds for reversal. Nevertheless, we need not decide whether a manufactured

venue defense exists in this Circuit, because even if it did, it would be unavailing to Woolaston.

We have stated that “[t]he concern over a distant district is critical, as 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.” United States v. Rutigliano, 790 F.3d 389, 399 (2d Cir. 2015)

(internal quotation marks omitted). As S.D.N.Y. and D.N.J. are neighboring districts, that concern

is absent here. And even if, as Woolaston argues, prosecution in a distant district should not be an

essential element of a manufactured venue defense, he does not explain what other unfairness or

hardship he faced from being prosecuted in New York instead of New Jersey.

For similar reasons, we sustain Judge Sweet’s jury instructions on venue. We review “a

claim of error in jury instructions de novo,” United States v. Aina-Marshall, 336 F.3d 167, 170 (2d

Cir. 2003), reversing a conviction based on the trial judge’s refusal to issue a requested instruction

only if “that instruction is legally correct, represents a theory of defense with [a] basis in the record

that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge,”

United States v. Vasquez, 82 F.3d 574, 577 (2d Cir. 1996). Judge Sweet did not err in refusing to

instruct the jury, as Woolaston requested, that “venue is not proper if you find that there would be

no basis for venue in the Southern District of New York absent a Government-manufactured

connection.” App’x at 148-49. Because this formulation of the manufactured venue defense fails

to account for the concern over a distant district or other exceptional circumstances, it was not

“legally correct.” Vasquez, 82 F.3d at 577.

II.

Entrapment

Woolaston next argues that he was entrapped as a matter of law. We again disagree.

Entrapment is an affirmative defense with two elements: “(1) government inducement of

the crime, and (2) lack of predisposition on the defendant’s part.” United States v. Bala, 236 F.3d

3

Case 20-4233, Document 112-1, 03/29/2022, 3286741, Page4 of 5

87, 94 (2d Cir. 2000) (quoting United States v. Salerno, 66 F.3d 544, 547 (2d Cir. 1995)). If, as

here, the defendant establishes inducement, “the prosecution must prove predisposition to commit

the crime beyond a reasonable doubt.” United States v. Kopstein, 759 F.3d 168, 173 (2d Cir. 2014).

Predisposition may be demonstrated through “(1) an existing course of criminal conduct similar to

the crime for which the defendant is charged, (2) an already formed design on the part of the

accused to commit the crime for which he is charged, or (3) a willingness to commit the crime for

which he is charged as evidenced by the accused’s ready response to the inducement.” Id. (quoting

United States v. Al-Moayad, 545 F.3d 139, 154 (2d Cir. 2008)). The evidence sufficiently

demonstrated Woolaston’s predisposition to commit the charged offenses. Williams testified that

Woolaston bragged to him about having a “crew” of nine people who helped him smuggle cocaine

from Jamaica. App’x at 786. Williams also testified that he later participated in Woolaston’s

scheme. In 2018, Woolaston suggested to Jerry, the government informant, that a previous drug

shipment had been seized by law enforcement and refused to finalize a plan without first “talking

to my team.” App’x at 1686. And while planning the final stages of the sham transaction,

Woolaston told Williams he was not afraid to “show [a] man my gun,” App’x at 1738, and

promised to “come in there blazing” if necessary, App’x at 829. A reasonable jury could conclude

that this evidence, and other evidence like it, evinced both Woolaston’s experience in narcotics

trafficking and his willingness to use guns in connection with it.

We also affirm Judge Sweet’s jury instruction on entrapment. There is no material

difference between instructing the jury, as Judge Sweet did, that “[p]redisposition is measured

independently from the government’s inducement,” App’x at 1553, and instructing them, as

Woolaston requested, that “[t]he government cannot rely on conduct that was [in]duced by

government agents to prove that the defendant was predisposed to commit the charged crime,”

App’x at 1385. After all, it “would be impossible for the jury to measure predisposition

independently from the Government’s inducement if they rely on induced conduct.” Woolaston,

2020 WL 91488, at *10. Thus, Woolaston’s proposed instruction may have been “legally correct,”

but his challenge fails because his proposed instruction’s theory of defense was “effectively

presented elsewhere in the charge.” Vasquez, 82 F.3d at 577.

III.

Evidentiary Rulings

Finally, Woolaston requests a new trial on the grounds that Judge Sweet erred in (1)

admitting evidence of gun-related items found in a safe attributed to Woolaston and of previous

illegal firearms purchases Woolaston had made, and (2) excluding video excerpts of Williams’s

post-arrest interview with HSI investigators. We review evidentiary rulings “under a deferential

abuse of discretion standard.” United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015). “But

even when an evidentiary ruling is ‘manifestly erroneous,’ the defendant will not receive a new

trial if admission of the evidence was harmless.” United States v. Siddiqui, 699 F.3d 690, 702 (2d

Cir. 2012) (citation omitted). We reject Woolaston’s evidentiary challenges.

Judge Sweet properly admitted testimony about the gun paraphernalia found in the safe.

We have “approved the admission of firearms as evidence of narcotics conspiracies, because drug

dealers commonly keep firearms on their premises as tools of the trade.” United States v. Vegas,

27 F.3d 773, 778 (2d Cir. 1994) (citation and internal quotation marks omitted). The tools-of-thetrade argument “applies with extra force” where, as here, there is evidence that the firearms are

4

Case 20-4233, Document 112-1, 03/29/2022, 3286741, Page5 of 5

stored in the same container as drugs or drug paraphernalia. Id. at 779; App’x at 809 (“Q: What

happened to the cocaine? / A [Williams]: He put away some into his safe and he took some with

him. / Q: Who put some into his safe? / A: Tyrone [Woolaston].”). As for Woolaston’s previous

illegal firearms purchases, “evidence of . . . an existing course of criminal conduct similar to the

crime for which [the defendant] is charged” is probative of the defendant’s predisposition to

commit the crime. United States v. Brunshtein, 344 F.3d 91, 101 (2d Cir. 2003) (quoting Salerno,

66 F.3d at 547). Woolaston’s entrapment defense put his predisposition at issue. This testimony

was therefore relevant to the central question of whether Woolaston was “an unwary innocent”

ensnared by the government’s investigation or “an unwary criminal who readily availed himself

of the opportunity to perpetrate the crime.” Mathews v. United States, 485 U.S. 58, 63 (1988)

(internal quotation marks omitted).

Finally, we decline to order a new trial because of Judge Sweet’s exclusion of portions of

Williams’s post-arrest interview. Although Woolaston should have been permitted to introduce

portions of the video to impeach Williams, the exclusion of that evidence does not warrant a new

trial. On cross examination of Williams and the HSI agents, Woolaston’s counsel was able to

explore the inconsistencies between Williams’s post-arrest interview and his direct examination at

trial, his lucidity during the post-arrest interview, and the fact—relevant to Woolaston’s argument

concerning Williams’s bias—that the government had offered him substantial benefits for

cooperating in the case against Woolaston. Given this, we cannot conclude that the video itself

would be more than “merely cumulative evidence.” United States v. Weiss, 930 F.2d 185, 199 (2d

Cir. 1991).

We have considered all of Woolaston’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

5

APPENDIX B

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 1 of 28

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

United States of America,

-v18-cr-212 (AJN)

Tyrone Woolaston,

OPINION & ORDER

Defendant.

ALISON J. NATHAN, District Judge:

On February 21, 2019, following a seven-day jury trial that began on February 11, 2019,

Defendant Tyrone Woolaston was convicted on two counts of a Superseding Indictment, Dkt.

No. 75. 1 See Trial Tr. at 1370-73. The Defendant now moves, pursuant to Federal Rules of

Criminal Procedure 29 and 33, for acquittal or, in the alternative, a new trial. For the following

reasons, the Defendant's motions are denied.

I.

BACKGROUND

For purposes of these motions, the evidence is viewed in the light most favorable to the

Government and all reasonable inferences are drawn in its favor. United States v. Glenn, 312

F .3d 58, 63 (2d Cir. 2002).

A.

The Charges

The indictment charged Woolaston with (1) conspiring to distribute and possess with

intent to distribute five kilograms or more of mixtures and substances containing a detectable

amount of cocaine in violation of21 U.S.C. §§ 841(a)(l) and 841(b)(1)(A) ("Count One"); and

(2) use of a firearm in furtherance of that narcotics conspiracy in violation of 18 U.S. C.

1

The late Honorable Robert W. Sweet presided over trial in this case, which was subsequently transferred

to the undersigned.

1

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 2 of 28

§ 924(c)(1)(A)(i) ("Count Two"). The Government alleged that these crimes arose out of

Woolaston's participation in a narcotics conspiracy operating in and around Newark Liberty

International Airport (the "Airport") to organize the smuggling of luggage containing cocaine

shipments from Caribbean islands.

I

B.

The Trial

At trial, it was largely undisputed that Woolaston had committed the charged crimes, and

the questions before the jury were whether venue was proper and whether Woolaston was

entrapped by the Government.

1.

The Government's Case

At trial, the Government presented evidence in the form of witness testimony, phone

records, recordings of wiretap interceptions, text message records, consensual recordings made

by the cooperating witness, and law enforcement testimony relating to the Defendant's actions

directly preceding his arrest. This evidence proved the following conspiracy.

a.

The Homeland Security Investigation

The charged conduct arose out of a sting operation. In 2015, a confidential informant

reached out to the Department of Homeland Security's Homeland Security Investigations

division with information about what he believed to be a narcotics trafficking network operating

out ofNewark Airport. Tr. 199. Agents in the division worked with the informant to approach

Xavier Williams, who they believed was involved in the network, as a target. They proposed a

sting operation in which Williams would use his contacts at the Airport to smuggle cocaine

through the airport, but Williams eventually backed out and the proposed transaction never

occurred.

2

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 3 of 28

In 2017, however, the contours of a new operation began to take shape.· In October

2017, Williams met with a confidential informant and discussed a new transaction: five

kilograms of cocaine would be smuggled into the United States by being placed in luggage on an

international commercial flight that would arrive at the Airport, after which a contact Williams

had at the airport could arrange to have the checked suitcase pulled off the international flight

and placed in the baggage claim for a domestic flight. Tr. 476-80; GX 401 T. During this

meeting, Williams communicated with Woolaston by text message, and ultimately took the

confidential informant to the firehouse at which Woolaston worked a second job as a firefighter.

Tr. 484-86; GX 204. There, Woolaston got into the car with Williams and the confidential

informant, who discussed the details of the plan: that the cocaine would be shipi?ed from the

Caribbean through the airport, the price per kilogram charged for the cocaine, the number of

kilograms to be smuggled, and available flights and dates on which the smuggling could occur.

GX 403T; Tr. 493-99. The confidential informant asked Woolaston questions about the plan to

which Woolaston responded. Id; Tr. 493-99. Woolaston made various remarks in response,

including "it is good, if you're saying it is what it is," stating that he would need to "talk[] to my

team," noting that he would need to see if "customs is really watching" the flight, and remarking

that a prior flight had gotten "bit." GX 403T.

In January 2018, the confidential informant again met with Williams. GX 411, 412. He

brought $10,000 in cash as a deposit for the anticipated deal. Tr. 546. Williams placed a

FaceTime call to Woolaston in order to show Woolaston this money. Tr. 546-51. Also during

the phone call, the confidential informant stated that he would be "in the city" later that day. GX

411 T. Later that night, Woolaston came to Williams's house, where Williams gave Woolaston

some of the cash to put in a safe he stored at Williams's house. Tr. 554-56. Williams told

3

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 4 of 28

Woolaston that the confidential informant "was in the city, and he would try to call us later." Tr.

556. The confidential informant then called Williams later that evening from his Manhattan

hotel to discuss what Williams described as "drug trafficking." Id. The next day, Williams

informed the confidential informant that he had spoken with Woolaston, who had asked if they

could move up the date of the planned flight. GX 810. Further, over the course of the evening,

Williams sent the confidential informant several text messages updating the confidential

informant on when Woolaston would be corning over. !d.

C.

The Operation and Arrests

Following the January 6 meeting, the confidential informant engaged in further telephone

and text communications with Williams. In these communications, they agreed that the

confidential informant would have five kilograms of cocaine transported to the Airport on an

international flight arriving February 10,2018 and that Williams and Woolaston would smuggle

the cocaine through the airport to deliver it to the confidential informant. Tr. 563-64.

Unbeknownst to Williams or Woolaston, the Homeland Security Investigations agents planned to

package sham cocaine into the anticipated suitcase on the agreed-upon flight and to take delivery

of the cocaine from Williams and Woolaston in an undercover operation.

On February 10, 2018, this is what they did. They placed the sham cocaine, concealed in

rum cake tins, into the expected suitcase on an international flight that arrived at the airport that

evening. Tr. 207, 215. After the flight unloaded, the suitcase did not arrive at the baggage

carousel. Tr. 217. Instead, on a phone call with Williams, Woolaston stated that he had the bag

and the pair discussed the narcotics and their packaging. Woolaston stated he was concerned

about how the drug transaction would proceed and both defendants indicated that they would

have guns. Tr. 576; GX 405T.

4

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 5 of 28

On February 11, 2018, the confidential informant and Williams agreed to meet at a hotel

in Secaucus, New Jersey to exchange the drugs for the cash. In anticipation of this meeting,

Williams and Woolaston debated whether Williams should hold some of the drugs back as

collateral. Tr. 594-602; 409T. Williams ultimately agreed to deliver only a portion of the sham

narcotics. Tr. 603-04. Woolaston also assured Williams that he would "come in there blazing"

if Williams had an issue during the exchange with the confidential informant. GX 413T; Tr.

594-602.

Williams and Woolaston arrived at the hotel separately. Tr. 46-48. Law enforcement

apprehended Williams carrying a duffel bag containing several kilos of the sham cocaine. They

then attempted to apprehend Woolaston: after they approached him in the hotel parking lot,

Woolaston dropped his bag and fled, losing his firearm in the ensuing chase. Tr. 48-53, 221.

Woolaston surrendered to law enforcement the following day. Tr. 221. Law enforcement

recovered the bag Woolaston dropped, which contained tins of sham cocaine, and the firearm, a

.40 caliber Glock pistol loaded with an extra-capacity magazine and outfitted with a laser sight.

Tr. 50-56, 65.

Following his arrest, Williams cooperated with law enforcement, including consenting to

a search of his residence. Tr. 66. This search revealed a police scanner, money counter, the rum

cake tins agents had placed inside the suitcase to conceal the sham cocaine, and a safe Woolaston

kept in Williams's basement. The safe contained a pistol, two laser-sights, four pistol

magazines, more than one hundred rounds of ammunition, and an ammunition speed-loading

device. Tr. 76-84.

D.

Defense Case

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The defense raised the affirmative defense of entrapment. The defense case consisted of

consensually recorded telephone calls between the confidential informant and Williams; business

records and supporting testimony reflecting the Defendant's attendance record; testimony from

the confidential informant and contemporaneous email and text records; and testimony from the

Homeland Security Investigations case agents. In its case, the defense argued that Woolaston

was absent from work during the purported 2015 transaction. Tr. 887-93. It also elicited

testimony that the agents had booked and arranged the Manhattan hotel, and from there

instructed the CI to call Williams multiple times. Tr. 993-94

It further elicited testimony that the confidential informant for the most part worked

directly only with Williams. Tr. 901. And the defense elicited testimony it argues goes to

Woolaston's resistance to the transaction, including the fact that at some points in 2016 and

2017, Williams may not have been responsive to the confidential informant's overtures, Tr. 91012, 967, prompting an agent to instruct the confidential informant to "sell" the plan to Woolaston

and Williams, Tr. 976; as well as that the confidential informant may have wanted to give

deposit money to Woolaston to "lock" him in to the plan. Tr. 962.

Finally, the defense elicited testimony that it argues went to Williams's credibility,

including law enforcement testimony it contends confirmed inconsistent statements Williams

made regarding the scope of his prior interactions with Woolaston and his ability to remember

his post-arrest interview. Tr. 626-28; Tr. 1050-52.

E.

The Charge

Judge Sweet instructed the jury on Woolaston's affirmative defense of entrapment and

included the instruction that as a matter of law the defense had established the first element,

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inducement. Tr. 1324-27. Judge Sweet declined, however, to instruct the jury on manufactured

venue.

F.

The Deliberations and Verdict

During deliberations the jury sent notes asking whether the Defendant had to have actual

knowledge that an act in furtherance of the conspiracy occurred in the Southern District for

venue to be proper. They also asked for Government exhibits relating to the January 2018

communications between the confidential informant and Williams. Tr. 1357; 1369. Following

deliberations, the jury returned a verdict finding Woolaston guilty on both counts of the

Superseding Indictment.

G.

Post-Trial

Following trial, the Defendant filed the instant motions for acquittal and new trial,

pursuant to Rules 29 and 33. The motions were fully briefed as of May 22, 2019, and this Court

held oral argument on June 26, 2019.

II.

LEGAL STANDARD

Under Federal Rule of Criminal Procedure 29, a district court "will grant a motion to

enter a judgment of acquittal on grounds of insufficient evidence if it concludes that no rational

trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v.

Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (citing Fed. ·R. Crim. P. 29(a), (c)). The Second

Circuit has stated that "[a] defendant who challenges the sufficiency of the evidence to support

his conviction 'bears a heavy burden,"' Id. (quoting United States v. Finley, 245 F.3d 199, 202

(2d Cir.2001)), although "not an impossible one." United States v. Kapelioujnyj, 547 F.3d 149,

153 (2d Cir. 2008) (citing United States v. Jones, 393 F.3d 107, 111 (2d Cir. 2004)). "Not only

must the evidence be viewed in the light most favorable to the Government and all permissible

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inferences drawn in the Government's favor, but the jury verdict must be upheld if 'any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt."'

Jackson, 335 F.3d at 180 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The evidence

"must be viewed in light of the totality ofthe Government's case, since one fact may gain color

from others." United States v. Tramunti, 500 F.2d 1334, 1338 (2d Cir. 1974).

Under Federal Rule of Criminal Procedure 33, "the court may vacate any judgment and

grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The district court

must strike a balance between weighing the evidence and credibility of witnesses and not

'wholly usurping' the role of the jury." United States v. Ferguson, 246 F.3d 129, 133 (2d Cir.

2001) (quoting United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000)). While "the trial court

has broader discretion to grant a new trial under Rule 3 3 than to grant a motion for acquittal

under Rule 29, ... it nonetheless must exercise the Rule 33 authority 'sparingly' and in 'the most

extraordinary circumstances."' Id at 134 (quoting United States v. Sanchez, 969 F.2d 1409,

1414 (2d Cir. 1992)). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict

stand would be a manifest injustice." Id That is, "[t]here must be a real concern that an

innocent person may have been convicted." Id (quotation omitted).

III.

DISCUSSION

The Defendant's motion raises five separate grounds for relief: (1) that there was

insufficient evidence for a jury to conclude that the Government established venue in the

Southern District ofNew York; (2) that there was insufficient evidence that Woolaston was

predisposed to engage in the narcotics transaction; (3) that Court improperly refused to instruct

the jury on a manufactured venue defense and precluded Woolaston from presenting such a

defense; (4) that the Court failed to properly instruct the jury on predisposition; and (5) that a

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new trial is warranted because of improperly admitted firearms evidence and the exclusion of

Williams's post-arrest statement.

A.

Sufficiency of the Evidence

1.

A Rational Jury Could Have Concluded that the Government

Established Venue in the Southern District of New York by a

Preponderance of the Evidence

First, the Defendant argues that no reasonable jury could find that venue was proper in

the Southern District ofNew York. Viewing the evidence in the light most favorable to the

Government and drawing all permissible inferences in its favor as it must on this Rule 29

motion, the Court disagrees.

Venue for a conspiracy charge lies in any district in which an overt act in furtherance of

the conspiracy took place provided that the act was performed by a co-conspirator and was

undertaken for the purpose of accomplishing the objectives of the conspiracy. United States v.

Kirk Tang Yuk, 885 F.3d 57, 68-69 (2d Cir. 2018). In the Second Circuit, there is the further

requirement that it was "reasonably foreseeable" to the defendant that a qualifying overt act

would take place in the District. !d. at 69-70 (quotation omitted). "Because venue is not an

element of a crime, the government must prove its propriety only be a preponderance of the

evidence." !d. at 71.

At trial, the Government introduced evidence from which a rational jury could conclude

that these elements were met by two different overt acts undertaken by the Defendant and his coconspirators: a 2013 trip to Queens and a 2018 communication between the confidential

informant and Williams.

The evidence of the 2013 trip to Queens was as follows. First, Williams testified that

roughly six years before the date of the trial, he and the Defendant drove to Queens from New

Jersey. Tr. 442. He further testified that the Defendant told him that the purpose of the trip was

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to meet a "Jamaican guy" in order to "work[] on another drug shipment." Tr. 442:1, 444:3.

Williams testified that only the Defendant actually went out of the car to speak with the Jamaican

man, but he did say that the drug shipment discussed by the Defendant was later seized by

customs. Tr. 443:21-22, 444:9. The Government also elicited testimony from an investigative

analyst that it is practically impossible to travel to Queens without passing through Manhattan,

the Bronx, or the Verrazzano-Narrows Bridge, all of which are within the Southern District of

New York. See Tr. 84 7-51. From this evidence, the jury could have concluded by a

preponderance of the evidence that the Defendant traveled through the Southern District in

furtherance of the charged narcotics conspiracy.

The Defendant makes a number of counterarguments about the evidence of the 2013 trip,

none availing. First, the Defendant argues that Williams's less than vivid recollection of the

2013 trip and self-interested motivation in testifying made it unreasonable for the jury to credit

his testimony. But at this stage, "the evidence [must] be viewed in the light most favorable to the

Government and all permissible inferences drawn in the Government's favor." Jackson, 335

F.3d at 180. Courts accord a "high degree of deference ... to the jury's evaluation of witness

credibility." Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012); see also

United States v. Landau, 155 F.3d 93, 104-5 (2d Cir. 1998). Such determinations should only be

disturbed in "an egregious case." Raedle, 670 F.3d at 418. That Williams was a cooperator and

had only a sparse memory of an event that occurred six years ago did not require the jury to

discredit his testimony.

Second, the Defendant contends that Williams's testimony did not sufficiently connect

the drug trafficking plot with the "Jamaican guy" to the charged conspiracy. However, Williams

testified that the Defendant had previously worked with the "Jamaican guy" to traffic drugs

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through the airport as part of"the defendant's cocaine smuggling operation," and that the

purpose of this particular trip was to discuss "another drug shipment." Tr. 439:20, 442:1, 444:3.

From this testimony, the jury could have reasonably found that it was more likely than not that

the 2013 trip was part of the charged conspiracy.

Additionally, the Defendant points to two jury notes as establishing that the jury

discredited Williams's testimony on the 2013 trip and relied only on the 2018 communications

(discussed below) to find venue. The jury notes asked whether the Defendant had to have actual

knowledge that an act in furtherance of the conspiracy occurred in the Southern District and

requested to see transcripts, WhatsApp messages, and call records relating to the 2018

communications. Tr. 1357, 1369. The Defendant argues that it would have been unnecessary

for the jury to make these requests if it was relying on the 2013 trip to find venue. But to the

contrary, the fact that the jury focused on the 2018 communications in its deliberation notes does

not establish anything more than that the jury had questions about those communications. Jurors

are not necessarily judicial minimalists seeking to rely on as few factual grounds as possible for

their verdict. They may have relied upon both the 2013 trip and the 2018 communications.

Alternatively, their deliberations might have focused first on the 2018 communications before

turning to the 2013 trip. It is impossible to draw any clear inferences from the jury's inquiries.

Defendant cites cases where courts relied on jury notes, but they are distinguishable.

United States v. Rivas involved a failure by the Government to disclose exculpatory evidence

under the Brady doctrine. 377 F.3d 195 (2d Cir. 2004). The jury asked a question during

deliberations about a part of the case for which the Brady material would have been exculpatory.

The court reasoned that the question "suggests that the jurors may have been concerned" about

that part of the case. Id. at 200. It relied in part on the jury's question to hold that there was a

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reasonable likelihood that the Brady violations affected the outcome of the case. !d. In contrast,

to Rivas, the Defendant asks the Court not to infer from the jury's question that they "may have"

relied on the 2018 communications to find venue or that there was a "reasonable likelihood" that

they relied on the 2018 communications. Defendant asks the Court to find that they did in fact

rely solely upon those communications, an inference that is significantly more attenuated than

the one made by the Rivas court. Defendant also cites to Graham v. Harris in support of its

argument. 452 F. Supp. 137 (S.D.N.Y 1978). In that case, the court relied upon jury requests to

have certain testimony read back to them as evidence that the length of the jury deliberations was

due to debate among the jurors, and was not the product of judicial coercion. Id. at 140. The

inference sought by the Defendant in this case is again considerably more speculative than

merely finding that the jury had discussions as to whether the 2018 communications established

venue. Likewise, in United States v. Le, the court inferred from the jury question, "[a]re we

allowed to consider the statements made to police as evidence, or only to impeach statements

made in court?" that jury did in fact understand that statements to police could be used as

impeachment evidence. 512 F.3d 128, 133 (5th Cir. 2007). This is a much more modest

inference than the one made by the Defendant in this case.

Furthermore, the courts in Rivas and Graham reasoned that the juries focused their

inquiries on the parts of those cases about which they had doubts or concerns. See 377 F.3d at

200; 452 F. Supp. at 140. If one were to apply this premise to the jury questions in this case, it

would suggest that the jury had doubt about the 2018 communications, which arguably makes it

more likely that they in fact relied upon the 2013 trip to find venue. In short, it would simply be

too speculative to infer the jury's reasoning from its notes to Judge Sweet.

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Independently, the Government's evidence established that the 2018 communications

were an act in furtherance of the conspiracy that occurred in Manhattan and were reasonably

foreseeable to the Defendant. As to an act in furtherance, the Government established that the

confidential informant called Williams from a Manhattan hotel on the evening of January 6,

2018 and that the subject of this phone call was drug trafficking. GX 301R; Tr. 550-56. The

Government further established that the confidential informant exchanged text messages with

Williams while the former was in Manhattan. GX 810. "A telephone call placed by someone

within the Southern District ofNew York--even a person acting at the government's directionto a co-conspirator outside the Southern District can render venue proper as to the out-of-district

co-conspirator so long as that co-conspirator 'uses the call to further the conspiracy."' Tang Yuk,

885 F.3d at 71 (quoting United States v. Rommy, 506 F.3d 108, 122 (2d Cir. 2007)); see also

United States v. Gomez, 751 F. App'x 63, 69 (2d Cir. 2018) (noting that a single telephone call

used to further a criminal scheme may be sufficient to establish venue).

The fact that the confidential informant would communicate with Williams while he was

in the Southern District was reasonably foreseeable to the Defendant. Williams testified to telling

the Defendant that the confidential informant would be in "the city," and that the confidential

informant "would try to call us later." Tr. 556; GX 411 T.

The Defendant's argument to the contrary is that Williams's testimony about the

communication was insufficiently specific to support the finding that the 2018 communications

were an act in furtherance of the conspiracy foreseeable to the Defendant. But at this stage, the

Court must "defer[] to the jury's assessments of the witnesses' credibility." United States v.

Johnson, 939 F.3d 82, 88 (2d Cir. 2019) (quotation omitted). The jury was entitled to find that

Williams testified accurately as to both the subject matter of the 2018 communications, as well

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as what he told the Defendant about the informant's location. They were further entitled to infer

that the informant and Williams were likely communicating about the charged conspiracy from

the fact that they had many communications of this nature and the call happened shortly after the

exchange of funds. See Tr. 449, 556. Similarly, the jury could reasonably infer that overt acts in

furtherance of the conspiracy, including further plans about how to proceed, were reasonably

foreseeable to the Defendant. Williams testified that he told the Defendant that the confidential

informant "was in the city, and [that] he would try to call us later." Tr. 556. The past pattern of

communications between the confidential informant and recent exchange of funds entitled the

jury to find that it would be reasonably foreseeable that the "call" from the confidential

informant would be in furtherance of the narcotics conspiracy.

Finally, the Defendant argues that Williams's reference to "the city" was too vague to

make it reasonably foreseeable to the Defendant that the confidential informant would be in the

Southern District ofNew York. The Court disagrees. In Tang Yuk, a co-conspirator told a

defendant, who was in Florida at the time, that he was "up in New York," before "discuss[ing]

several issues related to their drug trafficking conspiracy." 885 F.3d at 73-74. The Second

Circuit held that the jury was entitled to find that the reference to "New York" made it

reasonably foreseeable to that defendant that an act in furtherance of the conspiracy would occur

in Southern District ofNew York, as opposed to another part of the state. !d. at 73 n.4. "The

city," when spoken to someone in the New York metropolitan area, is no less of a specific

reference to the Southern District of New York than "New York" was when spoken to someone

in Florida. Based on Tang Yuk, the jury was entitled to find that venue was reasonably

foreseeable. The Defendant's sufficiency of the evidence challenge on venue is denied.

2.

A Rational Jury Could Find the Defendant Was Predisposed to

Engage in the Narcotics Transaction Beyond a Reasonable Doubt

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Next, the Defendant argues that there was insufficient evidence to prove he was

predisposed to engage in the narcotics transaction. The Court disagrees.

The affirmative defense of entrapment requires a defendant to make a prima facie

showing of inducement by the Government, after which the burden shifts to the Government to

prove beyond a reasonable doubt that the Defendant was predisposed to commit the crime.

United States v. Bala, 236 F.3d 87, 94 (2d Cir. 2000). Here, Judge Sweet found that inducement

had been proven as a matter of law, and the only question was predisposition. The purpose of

the predisposition element is to determine "whether the defendant was an unwary innocent or,

instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the

crime." United States v. Cromitie, 727 F.3d 194, 204 (2d Cir. 2013) (quoting Mathews v. United

States, 485 U.S. 58, 63 (1988)). The government carries its burden if it proves that "the

defendant is of a frame of mind such that once his attention is called to the criminal opportunity,

his decision to commit the crime is the product of his own preference and not the product of

government persuasion." Id at 215 (quoting United States v. Williams, 705 F.2d 603, 618 (2d

Cir. 1983)). Predisposition may be shown by evidence of existing criminal conduct similar to

the crime charged; an already formed design to commit the crime; or evidence that the defendant

is ready and willing to commit the crime. United States v. Brunshtein, 344 F.3d 91, 101-2 (2d

Cir. 2003).

The Defendant's arguments focus primarily on the Government's attempts to connect the

Defendant to the 2013 transaction and failed 2015 airport drug trafficking incidents involving

Williams. However, there is a strong record of the Defendant's predisposition, independent of

these two incidents.

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First, the recording of the October 27, 2017 meeting contains ample evidence from a

which a jury could conclude that the Defendant had deep experience in trafficking drugs through

Newark Airport and was ready, willing, and able to do so again. For example, the Defendant

mentions a previous incident in which a flight was "bit" by law enforcement. GX 403T at 5, 53.

He states that he cannot commit to a drug deal without "talking to my team first." !d. at 45. A

jury could reasonably find that this is a reference to other people with whom the Defendant

regularly works to traffic drugs.

The Defendant's language could also reasonably be interpreted as suggesting an ease and

familiarity with drug trafficking. Early on in the conversation, the Defendant uses drug

trafficking slang to refer to the amount of cocaine, asking "so what digit we're talking 'bout

sending?" !d. at 10. He then cautions everybody to "remember the weight." !d. at 11. During

the meeting, the Defendant also explains his plan, stating that he will "see if customs is really

watching" the flight carrying drugs. !d. at 25. And while the Defendant refuses to commit

without conferring with his team, he does state "it is good, if you're saying it is what it is,"

suggesting that he is "readily avail[ing] himself ofthe opportunity to perpetrate the crime." !d. at

13; Cromitie, 727 F .3d at 215 (quotation omitted). From this evidence alone, the jury could have

reasonably concluded that the Defendant was predisposed to engage in a narcotics conspiracy.

The Defendant argues that the above statements are inadmissible to prove predisposition

because they were made in response to the Government's inducement, but this is not so. It is

true "that conduct of a defendant, after contact by Government agents, offered to prove

predisposition, must be independent and not the product of the attention that the Government had

I

directed" towards the defendant. !d. at 209 (quotation omitted). But "what a defendant says

after [being] contacted by agents is generally admissible to prove predisposition because,

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although some post-contact conduct might be the product of inducement, it will be a rare

situation where a defendant can plausibly claim that the inducement caused him to say something

that evidenced predisposition." Id. The Defendant's statements therefore were admissible to

show predisposition.

Beyond the October 27, 2017 meeting, there was further evidence of predisposition. On

the morning of the would-be transaction, the Defendant, apparently while discussing a plan to

hold back some ofthe drugs states on a wiretapped call: "You ain't got nobody on your back ...

tell them to go suck their mother. We don't have anybody on our backs." GX 409T at 6. Later

that day, the Defendant resolves to hold back some of the drugs, stating repeatedly "I am not

letting you walk in there with all of it." GX 413T at 6. This evidence is particularly probative of

predisposition, because it shows a desire on the part of the Defendant to go beyond what the

Government had attempted to induce. It is evidence of an independent intent to commit a crime

that is "the product of his own preference." Cromitie, 727 F.3d at 215 (quoting United States v.

Williams, 705 F.2d 603, 618 (2d Cir. 1983)). Finally, the Defendant brought a firearm to the

transaction, which is a tool of the narcotics trade. He had a special compartment in his car for

his firearm and expressed a willingness to use the gun if necessary. See Tr. 133, 602. This is all

further evidence of the Defendant's experience in narcotics.

The Defendant argues that he was in fact reluctant to engage in the drug trafficking

operation. He points to text messages that appear noncommittal or cryptic in response to

Williams's inquires about drug trafficking. These messages were sent in the months after the

October meeting. As an initial matter, "moments of wavering ... do not preclude a finding of

predisposition." Id. Moreover, the jury was entitled to interpret these text messages as merely

communicating a reluctance to talk about drug trafficking in written form or maybe at that

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particular time. At other points, the Defendant expressed impatience with the Government

agents, and told Williams that he was considering working with another drug trafficking

conspiracy instead. GX 206 at 13 ("Dem can't crowd every lane especially if someone else will

pay full fare."). Whatsapp messages from Williams also show that the Defendant attempted to

move up the date of the drug trafficking. GX 81 0 at 2. The jury could have reasonably found

that the Defendant's intent to go through with the drug trafficking conspiracy remained strong in

this intermediate period.

In short, there is a bevy of evidence from which jury could have concluded beyond a

reasonable doubt that the Defendant was predisposed to commit this crime. The Defendant's

sufficiency of the evidence challenge fails.

B.

If a Manufactured Venue Defense Exists, This Case Does Not Implicate It

The Defendant next moves for a new trial on the grounds that he was improperly

precluded from asserting a manufactured venue defense. 2 At trial, the Defendant requested the

following instruction: "Venue is not proper if you find that the only facts establishing venue in

the Southern District of New York were injected into the charged conspiracy by the Government,

including through its informants, solely for the purpose of creating venue in this District." Dkt.

No. 94, at 30-31. Judge Sweet refrained from giving this instruction, because he concluded that

no manufactured venue defense existed in the Second Circuit. He likewise precluded the

Defendant from presenting a manufactured venue defense.

"A conviction will not be overturned for refusal to give a requested charge, however,

unless that instruction is legally correct, represents a theory of defense with basis in the record

2

In his reply, he also suggests that this may be a Rule 29 issue. For the same reasons the Court concludes

that a new trial is not warranted, it concludes that this case should not be dismissed because the Goverrunent

improperly relied on manufactured venue.

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that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge."

United States v. Vasquez, 82 F.3d 574, 577 (2d Cir. 1996). Additionally, a failure to properly

instruct a jury will be disregarded if it was plainly harmless. See United States v. Rommy, 506

F.3d 108, 124 n.1 0 (2d Cir. 2007) ("[H]armless error analysis can be applied to a possible

charging omission with respect to venue."). As discussed above, there were two events that the

jury could have relied upon to find venue in this District: the 2013 trip and the 2018

communication. The Defendant contends as a factual matter that the Government orchestrated

the 2018 communication from Manhattan for the purpose of establishing venue. However, as

explained below, even if the Defendant's version of events with respect to the 2018

communication is correct, the Court finds that it would not constitute a legally valid

manufactured venue defense-assuming that there is such a defense in this Circuit. There was

thus no need to instruct the jury on manufactured venue.

The Second Circuit has "had no occasion conclusively to decide the availability of [a

manufactured venue] defense." Id. at 127. Rather, it has repeatedly recognized the possibility

that the defense exists. In United States v. Meyers, the court acknowledged possible "concerns if

a case should arise in which key events occur in one district, but the prosecution, preferring trial

elsewhere, lures a defendant to a distant district for some minor event simply to establish venue."

692 F.2d 823, 847 n.21 (2d Cir. 1982). Similarly, in United States v. Ramirez-Amaya, the

Second Circuit stated, in dicta, that it "would be loath to uphold venue on the basis of the flight

path of an aircraft [trafficking drugs] manned solely by government agents ifthere were an

indication that its route had been significantly out of the ordinary, considering its point of

departure and its destination." 812 F.2d 813, 816 (2d Cir. 1987).

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Subsequent cases have avoided the question of whether the defense in fact exists. For

example, in United States v. Rutigliano, the court suggested that if a manufactured venue defense

was available, "the concern over a distant district" would be "critical." 790 F.3d 389, 399 (2d

Cir. 2015) (quotation omitted). It concluded that the events of that case that gave rise to venue in

the Southern District ofNew York, as opposed to the Eastern District, did not constitute "lur[ing]

to a faraway land," and that "there is no basis to conclude that the government preferred to try

these defendants in the Southern District (instead of the Eastern District)." !d. See also, Rommy,

506 F.3d at 127 (Defendant "selected the district as the destination objective of the charged

conspiracy"); United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994) ("The Government 'did

not orchestrate the phone call in order to lay the groundwork for venue' in the Southern

District.") (quoting United States v. Lewis, 676 F.2d 508, 511 n.3 (11th Cir. 1982)). Other

circuits have rejected a manufactured defense doctrine outright, finding that concerns about

venue shopping are properly addressed by a Rule 21 motion to transfer. See, e.g., United States

v. Celaya Valenzuela, 849 F.3d 477, 488 (1st Cir. 2017); United States v. Rodriguez-Rodriguez,

453 F.3d 458, 462 (7th Cir. 2006).

The most recent case in which the Second Circuit rejected a manufactured defense was

Tang Yuk. There, venue was based in part on a phone call by an informant, made at the

Government' s direction in Manhattan, that was in furtherance of a drug trafficking conspiracy.

Tang Yuk, 885 F.3d at 72 n.3. Unlike in this case, the defendants in Tang Yuk did not request

that the jury be instructed on manufactured venue. Instead, the contention was that the evidence

of venue was legally insufficient because it only showed that venue was manufactured. The

court rebuffed this argument. It noted that prior to the call, a co-conspirator had "voluntarily

entered the S.D.N.Y. when he transported cocaine over the Verrazano-Narrows Bridge on his

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way to Queens." !d. The Government had not overreached because the co-conspirator had

"independent of government action, brought 25 kilograms of heroin to the New York

metropolitan area" from Florida, where the defendants were located. !d. Therefore, "the

S.D.N.Y.'s connection to the unlawful activity predates the government's active involvement in

New York." !d.

The Court reads these cases as holding out the possibility of a narrow manufactured

venue defense for circumstances more extreme than the ones here. The Defendant was not tried

in a "distant district" but rather one adjacent to the District ofNew Jersey. Meyers, 692 F.2d at

847 n.21 (2d Cir. 1982). As the Rutigliano court noted, the "concern over a distant district"

would be paramount in a hypothetical manufactured venue defense, and the Southern District

was no more of a "faraway land" in this case than it was in that one. 790 F.3d at 399. Likewise,

it was not "significantly out ofthe ordinary" that law enforcement in the Southern District of

New York would be concerned about drug trafficking through one ofthe New York metropolitan

area's major airports. Ramirez-Amaya, 812 F.2d at 816. The Tang Yuk court appeared to find it

important that the co-conspirator in that case had not only transported drugs through the

Southern District specifically, but had "brought 25 kilograms of heroin to the New York

metropolitan area" as his final destination. 885 F.3d at 72 n.3 (emphasis added). Unlike in

Tang Yuk, the vast majority of the drug trafficking conspiracy in this case occurred in the New

York metropolitan area. And while Tang Yuk involved a volitional act in the Southern District

that predated the Government's involvement, the Court does not read that case as requiring such

an act for venue to be proper. The Tang Yuk opinion itself noted that it "need not address" the

hypothetical scenario of whether the Government could have manufactured venue in South

Dakota instead of the Southern District. !d.

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The Defendant's requested instruction, by failing to limit the manufactured venue defense

to cases involving distant districts or other exceptional circumstances, was therefore not "legally

correct." Vasquez, 82 F.3d at 577. Additionally, there is no "basis in the record" to support a

manufactured defense as it might exist. Id Judge Sweet correctly refrained from giving the

Defendant's requested instruction. He likewise properly precluded the Defendant from

presenting a manufactured venue defense. Therefore, the motion for a new trial on this basis is

denied.

C.

The Jury Was Properly Instructed on Entrapment

At trial, the Defendant requested but did not receive the following jury instruction on

entrapment:

The government cannot rely on conduct that was induced by government agents

to prove that the defendant was predisposed to commit the charged crime, but the

government may introduce post-inducement conduct to establish predisposition

by showing the defendant promptly availed himself of a government sponsored

opportunity to commit a crime

Tr. 1158:2-8. This language is taken directly from United States v. Baez, 761 F. App'x

23, 26 (2d Cir. 2019). Judge Sweet instead instructed the jury that "[p]redisposition is measured

independently from the government's inducement." Tr. 1326:5-7.

The Court agrees with Judge Sweet that the Defendant's requested instruction is

"substantially the same thing" as what the jury was actually told. Tr. 1159:14-15. As noted

above, a failure to give a jury instruction is improper only if "the theory is not effectively

presented elsewhere in the charge." Vasquez, 82 F.3d at 577. The predisposition inquiry focuses

on the defendant's state of mind. It ensures that a defendant's decision to commit a crime was

his own and not the product of the Government's "tempting innocent persons into violations."

Sherman v. United States, 356 U.S. 369, 372 (1958); see also Sorrells v. United States, 287 U.S.

22

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 23 of 28

435, 442 (1932) ("A different question is presented when the criminal design originates with the

officials of the Government, and they implant in the mind of an innocent person the disposition

to commit the alleged offense and induce its commission in order that they may prosecute.").

The fact that a defendant performed an act induced by the government shows that he developed

the intent to commit that act. But it tells us little about how that intent came about. That is why

"the Government cannot rely on conduct that was induced by government agents to prove that a

defendant was predisposed to commit the charged crime." Baez, 761 F. App'x at 26. The Court

sees no material difference between telling the jury that "[p]redisposition is measured

independently from the Government's inducement" and telling the jury that they cannot "rely on

conduct that was induced by Government agents" to find predisposition. Tr. 1326:5-7; Tr.

115 8:2-8. It would be impossible for the jury to measure predisposition independently from the

Government's inducement if they rely on induced conduct.

Furthermore, there appears to have been little danger that the jury would rely on induced

conduct. The Government's evidence of predisposition did not constitute induced conduct. The

Defendant counters that the Government did use statements in response to its inducement to

prove predisposition, such as those made during the October 27, 2017 meeting. But as noted

above, "what a defendant says after [being] contacted by agents is generally admissible to prove

predisposition." Cromitie, 727 F.3d at 209. It was therefore proper for the jury to rely on these

statements to find predisposition. Judge Sweet's jury instruction on entrapment was correct.

D.

The Inclusion of Firearms Evidence and Exclusion of Williams's Post-Arrest

Statement Do Not Warrant a New Trial

The Defendant next moves for a new trial on the basis that: 1) the court improperly

admitted evidence ofWoolaston's prior unlawful purchase of a firearm and evidence of a cache

23

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 24 of 28

of firearms and ammunition recovered from his residence on the day of his arrest; and 2)

improperly excluded video of Williams's post-arrest statement. A new trial is not warranted.

First, the Defendant argues that the firearms cache was not admissible to prove the

narcotics conspiracy under both Rule 403 and Rule 404(b). The Court disagrees.

Rule 404(b) allows the introduction of other acts and crimes evidence to prove things

other than the defendant's criminal propensity. It also allows the introduction of uncharged

criminal activity, provided that the activity "arose out of the same transaction or series of

transactions as the charged offense, if it is inextricably intertwined with the evidence regarding

the charged offense, or if it is necessary to complete the story of the crime on trial." United

States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000). Such prior acts must generally "share a

common temporal element" and a "unique locus" to the charged conduct. United States v.

Brand, 467 F.3d 179, 200 (2d Cir. 2006). At the same time, however, evidence of a defendant's

possession of a firearm is generally admissible as direct proof of a narcotics conspiracy charge

because firearms are tools of the narcotics trade. See, e.g., United States v. Vegas, 27 F.3d 773,

778 (2d Cir. 1994) ("[T]his Court has repeatedly approved the admission of firearms as evidence

of narcotics conspiracies, because drug dealers commonly keep firearms on their premises as

tools of the trade.") (quotation omitted).

The Defendant argues that the tools-of-the-trade argument is not available here because

Williams testified that he was unaware of any connections between the Defendant's firearms

cache and drug trafficking. See Tr. 812-814. However, the Government did not have to

introduce evidence directly connecting the firearms and the narcotics conspiracy for the firearms

evidence to be admissible. Rather, the firearms are themselves standalone evidence of the

existence of the narcotics conspiracy.

See United States v. Marmolejas, 112 F. App'X 779, 783

24

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 25 of 28

(2d Cir. 2004) (affirming admission of weapons recovered from van at time of arrest on "tools of

the trade" theory notwithstanding no evidence of connection to offense). For example, in United

States v. Muniz, the Second Circuit held that evidence of a gun found in the defendant's

apartment was admissible to prove narcotics trafficking. 60 F.3d 65, 71 (2d Cir. 1995). Even

though there was no evidence directly connecting the gun to the narcotics conspiracy,

"defendant's possession of the gun was relevant" because it "showed that at the time he was

charged with possession of the heroin, he had ~quipped himself with a tool of the narcotics

trade." Id; see also United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir. 1990)

("Evidence of [the] possession [of narcotics tools of the trade] at a closely related time is relevant

to the charged conspiracy and not a mere showing ofbad character, even if it relates to

transactions outside the scope of the indictment.").

Nor is it clear that the Government failed to present a connection between the cache and

the narcotics conspiracy, as there was evidence that some of the sham cocaine was stored in the

safe, and that the safe contained ammunition for the weapon brought by the Defendant to the

drug transaction. Tr. 80:24-81:2, 582:12. The Second Circuit has found firearms evidence to be

especially probative in narcotics conspiracy cases when the firearms are stored in the same

container as drugs or drug paraphernalia. See Vegas, 27 F.3d at 779; United States v. Wiener,

534 F.2d 15, 18 (2d Cir. 1976). Furthermore, there was reason to believe that Williams lacked

full knowledge of the purpose of the cache, since he testified that he was generally unfamiliar

with it. Tr. 774-775.

The prior firearms purchase was likewise admissible under a tools-of-the-trade theory.

Just as the contemporaneous firearms cache is evidence ofthe charged narcotics conspiracy, a

prior illegal firearms purchase is evidence of past narcotics conspiracies. And "evidence of ...

25

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 26 of 28

an existing course of criminal conduct similar to the crime for which [the defendant] is charged"

is probative ofthe Defendant's predisposition. Brunshtein, 344 F.3d at 101 (quotation omitted).

Testimony that the Defendant "was in possession of [a] tool[] of the drug trade," was therefore

"evidence that [the Defendant] was predisposed to traffic in narcotics." United States v. Ray,

367 F. App'x 478, 480-81 (4th Cir. 2010).

Moreover, the Defendant fails to identify prejudice resulting from the admission of the

weapons. The prejudicial effect of evidence is reduced when it"[does] not involve conduct any

more sensational or disturbing than the crimes with which [the defendant] was charged."

Roldan-Zapata, 916 F.2d at 804. At trial, the Government alleged that the Defendant had a

firearm on in him at the time of his flight from law enforcement. Tr. 53-54. They also

introduced statements by the Defendant concerning the use of firearms, such as his willingness to

"come in there blazing" if Williams encountered difficulties during the drug transaction. GX

413T; Tr. 594-602. This evidence rendered the admission of additional weapons evidence

nonprejudicial.

Finally, the Defendant argues that the Court improperly barred the Defendant from

introducing parts of Williams's arrest video to impeach him. However, "[a]n erroneous ruling on

the admissibility of evidence" does not mandate a new trial if the Court "can conclude with fair

assurance that the evidence did not substantially influence the jury." United States v. Rea, 958

F.2d 1206, 1220 (2d Cir. 1992). Here, even if the video footage should have been admitted, it

did not generate enough prejudice by itself to require a new trial. The Defendant was allowed to

develop almost all of the same impeachment theories at trial, just not with actual video footage.

First, he sought to use the video evidence to prove that Williams appeared lucid during the

interview. But the Defendant was allowed to elicit uncontroverted testimony of Williams's

26

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 27 of 28

lucidity from a case agent who attended the interview. See Tr. 1056:25-1057:5. The Defendant

also wanted to use the video to prove that Williams was promised benefits in exchange for his

cooperation. However, defense counsel did in fact question the case agent about these promises,

see Tr. 1041-56, and was even permitted to play part of the interview video that pertained to

these promises. Tr. 1050. Lastly, the Defendant planned on using the video footage to prove

that Williams made statements at the interview that were inconsistent with his testimony.

However, the defense was given the opportunity ask Williams about his prior inconsistent

statements, such as his claim at the interview that the Defendant made weekly drug runs. Tr.

694:21-695:5.

Because the video footage "would have been merely cumulative evidence," its exclusion

did not prejudice the Defendant enough to, by itself, require a new trial. United States v. Weiss,

930 F.2d 185, 199 (2d Cir. 1991); see also United States v. Palermo, 291 F. App'x 418, 420-21

(2d Cir. 2008). Defense counsel conceded this lack of prejudice at oral argument. Oral Arg. Tr.

23:10-11 ("Now, standing alone, is that enough for a new trial? I'm not going to sit here and say

that it was.").

IV.

CONCLUSION

For the above reasons, the Defendant's Rule 29 and Rule 33 motions are DENIED. The

Court will schedule the Defendant's sentencing by separate order.

This resolves Dkt. No. 122.

SO ORDERED.

27

Case 1:18-cr-00212-AJN Document 146 Filed 01/07/20 Page 28 of 28

Dated: January

2020

New York, New York

United States District Judge

28

APPENDIX C

935

J2JsWOO1

2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------x

3

UNITED STATES OF AMERICA,

4

v.

1

5

TYRONE WOOLASTON,

6

7

18 CR 212 (RWS)

Defendant.

------------------------------x

8

New York, N.Y.

February 19, 2019

10:30 a.m.

9

10

Before:

11

HON. ROBERT W. SWEET,

12

District Judge

13

14

15

16

17

18

19

20

21

22

23

APPEARANCES

GEOFFREY S. BERMAN

Interim United States Attorney for the

Southern District of New York

THANE REHN

ANDREA GRISWOLD

ALISON MOE

Assistant United States Attorneys

SHEARMAN & STERLING

Attorneys for Defendant

BY: CHRISTOPHER LaVIGNE

BRIAN CALANDRA

ELIZABETH ROBINSON

ALSO PRESENT:

CHRISTOPHER KALEY, Homeland Security Investigations Agent

MADISON DUNBAR, Paralegal

24

25

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1025

j2JQWOO2

1

MR. LaVIGNE:

Sorry.

2

(Agent exits the courtroom)

3

MR. LaVIGNE:

It has to do on the manufactured venue,

4

which we've more or less from my perspective I think tabled

5

I've abided by the Court's rulings in terms of asking about

6

instruction.

7

can speak to, you know, why the CI was directed --

Agent Kaley is going to be the main person who

8

THE COURT:

9

MR. LaVIGNE:

10

Not why, but what.

Can I elicit the following?

I'm asking

the question --

11

THE COURT:

12

MR. LaVIGNE:

13

put aside, you know --

14

15

Not why, but what.

THE COURT:

Sure.

Sure.

Can I elicit the fact that the only --

The only fact that was to manufacture the

venue.

16

MR. LaVIGNE:

17

THE COURT:

18

MR. LaVIGNE:

19

THE COURT:

20

MR. LaVIGNE:

21

THE COURT:

I'm not going to ask it that way.

But that's what you want?

Yes.

No.

All right.

You can ask him anything you want about

22

what the instructions were, but not why; the reason being, I

23

believe, that the government can manufacture venue, to use the

24

colloquial expression.

25

do what they did as a matter of law.

It is appropriate for the government to

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1026

j2JQWOO2

1

2

3

4

5

MR. LaVIGNE:

Honor.

I read the cases differently, your

We put a letter brief in on it.

THE COURT:

If the Court ruled --

I think it's pretty clear that the

government can do this.

MR. LaVIGNE:

I think under Archer and the Myers case

6

we cited, and the 1982 Second Circuit in the footnote, I think

7

that Judge Chin's dissent in the case I think is alive --

8

9

THE COURT:

Judge Chin's dissent simply said that

there can be cases when it's inappropriate.

10

MR. LaVIGNE:

11

THE COURT:

12

13

Right.

Well, OK, and this may be such a case, but

it's not going to turn on the government's instructions.

MR. LaVIGNE:

I think if you look at the basis for the

14

Archer decision, if the intent -- it does focus on intent.

15

know, it may be inappropriate.

16

THE COURT:

I don't think so.

There's no question

17

about what the government's intent was.

18

intent was to obtain jurisdiction in the Southern District.

19

There isn't any question about that.

20

21

MR. LaVIGNE:

Understood.

You

The government's

And I think the Second

Circuit --

22

THE COURT:

But that is not the issue.

23

MR. LaVIGNE:

I think under the Second Circuit law we

24

cited, it is, and there's a carve-out for the possibility of

25

manufacturing venue.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1027

j2JQWOO2

1

THE COURT:

What's the government's view?

2

MR. REHN:

Your Honor we disagree strongly, and we

3

briefed this extensively.

4

We think the Court has already ruled on this issue.

5

want to highlight in our briefing on venue, we've asked for a

6

supplemental instruction that was expressly affirmed by the

7

Second Circuit last year in the Kirk Tang Yuk case.

8

correct any misimpression the defense has tried to plant in the

9

jury's mind that it is somehow inappropriate for the informant

10

to place a call from New York.

11

specifically affirmed exactly what was done in this case and

12

approved an instruction --

13

THE COURT:

14

15

I understand that.

Yes, there's still -- venue must be proven

by the government, but we don't want the jury to be

17

misinformed.

THE COURT:

I think the government has correctly

19

stated it.

20

that it was for the purpose of establishing venue.

21

Just to

The Kirk Tang Yuk decision

16

18

We just

That doesn't end -- that, of course,

doesn't end the issue.

MR. REHN:

He is citing a dissenting opinion.

So, you can inquire as to what was said but not

MR. LaVIGNE:

I respect the Court's ruling.

I do

22

think the Myers case and the other cases we cited in here do

23

leave open -- do say that under the appropriate circumstances

24

manufactured venue is not appropriate.

25

those in his dissent.

Judge Chin relied upon

The Kirk Tang Yuk case is very, very

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1028

j2JQWOO2

1

different.

I don't want to belabor this because I know the

2

Court has ruled.

3

to become an issue.

4

elicit that.

5

conference, but I will obviously abide --

This is the final witness where this is going

I would urge me at least to be able to

We could then deal with this at the charging

6

THE COURT:

Elicit what?

7

MR. LaVIGNE:

8

was to enable the case to be --

9

THE COURT:

10

MR. LaVIGNE:

11

THE COURT:

Elicit that the purpose for that call

There is no dispute about that.

There is nothing in the record --

There is no dispute about that.

I mean, I

12

think it's perfectly clear that's what the purpose of the call

13

was.

14

jury because that -- my understanding is that that is an

15

appropriate thing for the government to do and that the cases

16

have so held.

17

No question about it.

MR. LaVIGNE:

But that is not an issue for the

Like I said, I don't want to belabor

18

this.

19

one where this possibility is still open.

20

case where it's inappropriate to manufacture venue, and I'm

21

asking to elicit --

22

THE COURT:

23

24

25

I think there are carve-outs.

I think the Myers case is

I do think this is a

What about this case makes it

inappropriate to manufacture venue?

MR. LaVIGNE:

Because, your Honor, it's entirely

manufactured.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1029

j2JQWOO2

1

THE COURT:

Well --

2

MR. LaVIGNE:

3

THE COURT:

4

you want to use it, it's fine.

5

that the government can obtain venue by a telephone call into

6

the district.

The use of the word manufacture is -- if

7

MR. LaVIGNE:

8

that black and white.

9

10

THE COURT:

white.

Your Honor, I do not think the cases are

I think in the Kirk Tang Yuk case --

You concede that what I said is correct.

MR. LaVIGNE:

12

THE COURT:

13

MR. LaVIGNE:

I do not, Judge.

Oh.

I believe what the cases say is that a

call from one district to another can establish venue.

15

THE COURT:

16

MR. LaVIGNE:

17

But I think the cases have held

Then what is -- you say it's not black and

11

14

No, no, but, Judge --

Sure.

And that under the appropriate

circumstances --

18

THE COURT:

Isn't that what I just said?

19

MR. LaVIGNE:

Well, can I just unpack that a little

20

bit, your Honor?

21

satisfy venue, but it also leaves open the possibility there's

22

a sliver of cases where it may not and it cannot.

23

Tang Yuk case --

24

25

Even if the government initiates it, it can

THE COURT:

That doesn't make sense.

And Kirk

That doesn't --

make sense.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1030

j2JQWOO2

1

MR. LaVIGNE:

Your Honor, the Kirk Tang Yuk case

2

addressed Judge Chin's dissent by actually saying the concern

3

and the closeness of the case, and they then note that there

4

was actions in New York that was independent of government

5

action.

6

THE COURT:

7

MR. LaVIGNE:

8

Well, that's true.

And here we don't have that.

In the

Myers case --

9

THE COURT:

I understand that.

10

MR. LaVIGNE:

But in the Myers case, the Second

11

Circuit case of 1982, that also left open the possibility and

12

cited Archer.

13

venue is still a defense, it's still viable, and I'd like to

14

present that to the jury.

15

16

I'm just saying it is possible manufactured

THE COURT:

in this case.

It is a defense, and it will be a defense

There is no question about that.

17

MR. LaVIGNE:

18

THE COURT:

19

result of the telephone calls.

20

MR. REHN:

OK.

But not manufactured venue and not as a

That's correct, your Honor.

The Kirk Tang

21

Yuk case is exactly on point, along with the Gomez case more

22

recently from October of last year.

23

ruled it's completely consistent with the facts in those cases

24

and the instructions that were expressly affirmed in those

25

cases.

The Court has already

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1031

j2JQWOO2

1

2

THE COURT:

I'll think about it some more but, OK.

Anything else?

3

MR. REHN:

Nothing further at this time.

4

THE COURT:

OK.

5

(Luncheon recess)

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1032

J2JsWOO3

Kaley - Direct

1

AFTERNOON SESSION

2

2:00 p.m.

3

(In open court; jury not present)

4

THE COURT:

I much appreciate the bulldog defense and

5

the return to this same issue again.

6

it is appropriate.

7

I understand it.

I think

I have no problem with it.

The problem that I have is that this is a difficult,

8

for me at any rate, trial judge, it is a difficult problem.

9

sense of the inappropriateness of this conduct is not material,

10

whether I think it is fair or not fair.

11

reached that conclusion.

12

My

I'll tell you why I

I think the governing law in this area is Judge

13

Carney's opinion, and it is a year ago.

14

eyesight.

15

conduct was inappropriate, I would not know how to instruct the

16

jury on the subject and why, because the language in the

17

majority opinion is crystal clear.

18

no room for doubt in the context of a conspiracy, phone calls

19

from one district to another by themselves can establish venue

20

in either district as long as the calls further the

21

conspiracy."

22

It is right in our

Even if I were to conclude that I thought this

That's what majority says.

"Our prior decisions need

The decsent cites the

23

South Dakota example, which is very powerful, but it did not

24

convince the majority.

25

that the defense relies upon.

The South Dakota example is the example

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1033

J2JsWOO3

1

Kaley - Direct

Now, my problem would be, if I were if I were to

2

venture beyond the majority opinion, I would have to construct

3

some kind of a test for the jury that the phone calls alone are

4

not enough, that something more would be required, and what

5

would the something more be.

6

I don't know.

That's a long way of saying, by the way, I think the

7

role of a district court judge in this and the propriety of

8

following the Court of Appeals' opinions is pretty clear,

9

because Judge Chin made a very powerful case for the decsent,

10

but it didn't work.

11

beginning.

12

So I'm back to where I was at the

I will say this.

I think it is apparent from this

13

record that the only purpose, that the primary purpose for

14

those calls was to establish venue.

15

clear, and I think the facts are established for that purpose,

16

but that isn't enough.

17

I think that is quite

Of course we have the whole Jamaica issue, and

18

Judge Chin sort of brushed that aside, and that's clearly a

19

credibility issue.

It's not my job.

20

The application to inquire as to the intent of the

21

agents in arranging the telephone calls is not going to be

22

permitted, but you can inquire as much as you want to as to

23

what the instructions were and so on.

24

OK?

25

MR. LAVIGNE:

Understood, Judge.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

1034

J2JsWOO3

1

Kaley - Direct

THE COURT:

Listen, it is a very difficult issue, but

2

my problem, had we dealt with this in a different context, not

3

the last witness and not just before going to the charge, maybe

4

we could have figured out some way of instructing the jury, but

5

I don't know how I could instruct the jury.

6

Let me put it this way.

I think it is clear that

7

there is no authority that tells me what more would be

8

required.

9

a hero, I don't think it is appropriate under these

10

circumstances.

Nobody's done that.

11

The jury.

12

THE DEPUTY CLERK:

13

MR. LAVIGNE:

As much as I would like to be

OK, Judge.

One thing before the defense rests, the

14

government indicated it is going to attempt to introduce a

15

rebuttal case.

16

17

18

THE COURT:

Well, lets worry about that when it

happens.

MR. LAVIGNE:

I am going to vigorously oppose that,

19

your Honor.

I just don't want us to segway from defense to

20

government.

I think it is entirely inappropriate.

21

22

23

24

25

THE COURT:

Well, it depends on what it is.

We'll see.

MR. LAVIGNE:

We'll hear about it.

I just want to

state that in case we don't switch gears.

THE COURT:

All right.

We'll cross that bring,

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

APPENDIX D

508

J2EsWOO1

2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------x

3

UNITED STATES OF AMERICA,

4

v.

1

5

TYRONE WOOLASTON,

6

7

18 CR 212 (RWS)

Defendant.

------------------------------x

8

New York, N.Y.

February 14, 2019

10:00 a.m.

9

10

Before:

11

HON. ROBERT W. SWEET,

12

District Judge

13

14

15

16

17

18

19

20

21

22

23

APPEARANCES

GEOFFREY S. BERMAN

Interim United States Attorney for the

Southern District of New York

THANE REHN

ANDREA GRISWOLD

ALISON MOE

Assistant United States Attorneys

SHEARMAN & STERLING

Attorneys for Defendant

BY: CHRISTOPHER LaVIGNE

BRIAN CALANDRA

ELIZABETH ROBINSON

ALSO PRESENT:

CHRISTOPHER KALEY, Homeland Security Investigations Agent

MADISON DUNBAR, Paralegal

24

25

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

509

J2EsWOO1

1

2

3

4

5

6

7

8

9

10

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SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

510

J2EsWOO1

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(Trial resumed; jury not present)

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THE COURT:

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One, I would like to get the special verdict forms

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that you all propose sooner rather than later, but no later

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than by the end of the day.

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to progress, but obviously I would like to see those, consider

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them, and that will, of course, be part of the charge

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conference.

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Two matters I would like to bring up.

Now, I don't know how we're going

That's point one.

Point two, I want to thank Mr. LaVigne for his nice

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memoranda on venue.

Very useful, very helpful, etc.

Here is

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my conclusion with respect to this issue at this time:

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There is an issue in this case about venue.

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for appropriate venue is whether it was foreseeable for the

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defendant that some act would take place in the Southern

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District.

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instructions, any of the acts, anything that was done with

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respect to the effort to "manufacture jurisdiction."

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The test

I will permit examination with respect to any of the

I will not permit any inquiry with respect to the

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government's intent.

I think it is obvious that the government

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intended to create venue.

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question in my mind at this point, but I don't think that there

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is anything wrong with that, under Judge Carney's opinion, but

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at the same time, that doesn't mean that the issue has been

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precluded, because it has not in my view.

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Appeals cases indicate that there is always the possibility of

The facts are there.

There is no

I think the Court of

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

511

J2EsWOO1

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an issue under these circumstances.

One final thought on this is I will not permit the use

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of the worse manufactured venue.

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is not necessary and could well be misleading.

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of the defense.

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not established that it is reasonably foreseeable for the

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defendant to have had the acts in the Southern District.

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is my view.

That is an implication that

It is not part

The defense is simply that the government has

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The jury.

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THE DEPUTY CLERK:

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(Continued on next page)

OK, Judge.

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SO

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Petition for Writ of Certiorari — Tyrone Woolaston, Petitioner v. United States | Frix