Petition for Writ of Certiorari — Moody v. United States

Supreme Court, U.S,

o.oo oe ae

SG- 114; |

' DR BOSERH F. SPANIOL, JR.

NO. ; Pe CLERK

IN THE =

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1986

RICHARD MOODY,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JON A. SALE

IRA N. LOEWY

Counsel of Record

BIERMAN, SONNETT, SHOHAT

& SALE, P.A.

Suite 500

200 S.E. First Street

Miami, Florida 33131

Telephone: (305) 358-7477

Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

WHETHER THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIR-

CUIT, IN ITS DECISION BELOW

HOLDING THAT VENUE IN A MARI-

JUANA IMPORTATION CASE COULD

PROPERLY BE LAID IN ANY DIS-

TRICT INTO WHICH ANY PORTION OF

THE IMPORTED MARIJUANA ULTI-

MATELY WAS BROUGHT, HAS DECIDED

AN IMPORTANT QUESTION OF

FEDERAL LAW WHICH HAS NOT BEEN,

BUT SHOULD BE, SETTLED BY THIS

COURT, PARTICULARLY WHERE THE

CIRCUIT COURT DECISION -CON-

PLICTS WITH PRINCIPLES

EXPRESSED BY THIS COURT IN ITS

PRIOR DECISIONS?

LIST OF INTERESTED PERSONS

The only persons having an interest

in the outcome of this case are the

Petitioner, his family and the United

States of America.

atin

TABLE OF CONTENTS

Page

OPINION BELOW e*eeeee#e#e#¢ aia tea aa i ais oe

Fue eae 4 0.04 KSA SMO aT EO eee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.........c00-. 3

STATEMENT OF THE CABE. scascsvsccsctsas 6

REASONS FOR GRANTING THE WRIT......16

THE UNITED STATES COURT OF

APPEALS FOR. THE ‘TRIRD

CIRCUIT, IN ITS DECISION

BELOW HOLDING THAT VENUE

IN A MARIJUANA IMPORTATION

CASE COULD PROPERLY BE

LAID IN ANY DISTRICT INTO

WHICH ANY PORTION OF THE

IMPORTED MARIJUANA ULTI-

MATELY WAS BROUGHT, HAS

DECIDED AN IMPOi.TANT QUES-

TION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD

BE, SETTLED BY THIS COURT,

PARTICULARLY WHERE THE

CIRCUIT COURT DECISION

CONFLICTS WITH PRINCIPLES

EXPRESSED BY THIS COURT IN

ITS PRIOR DECISIONS... cccccccc eld

e8 ty ei FL Sr rare er ea Lae

-ili-

TABLE OF AUTHORITIES

Page

Borchardt v. United States,

Wels _» ane Ct.

po RR yk REN eer ae 28

Travis v. United States,

, 8 Fe Me as. >t eee 17, 26

Ss

United States v. Cores,

| ee ee ae | ee 26

United States v. Godwin,

S46 F.26 165 (Stn Cir. 1977) ccse 23

United States v. Gray,

626 F.2d 494 (5th Cir.

1980), cert. denied,

S60 00, See Tee pa wc decdsceves 23

United States v. Jackson,

482 F.2d 1167 (10th Cir.

1973), cert. denied,

po ee ogee: sey. | he 23

United States v. Johnson,

32s UB. Ble teeeelcs cock 1,139, 2a8.27

United States v. Lember,

319 F.Supp. 249

| a OS | Se eee 21

United States v. Lowry,

676 F.26 593 (4th Cir. 1962).....23

United States v. Netz,

758 F.2d 1308 (8th Cir. 1985)....23

United States v. Sandini, et al.,

SOs Fuse 12s Cae Cie. THOS) ccccees 2

-iv-

Other Authorities

OF Bais et cs bn asec ek eeouse ea 27

18 U.S.C. §$3237(a)(1982).....4,17,22,26

i eo A |: ee iri iekawenwe 2,6

fe ee |, ee rere er ree Pree, PF

ae | ee re re ar 2,6,21

RS aes aa ene ss 0b be kekeennaes 2,6

, eS oa > Ly rt a rere 3

OO Mois Beer ha ckaces oven vere Tree 10

Pub. Bu Pease: Titte. ii.

§1204(a), 98 Stat. 2152

(effective October 12, 1984....4,17

ee Ie ae 2 ae ee ee ~ Tore eT ee catweene

SR No. 98-225, 98th Cong.,

2d Sess., reprinted in

£1984) U.S. Code Cong.

G Me. MWS FPPO ea wet cvcccces onceeee

ee oe ne Tey TPCT TTT Tee oo

U.S. Code Cong. & Admin. News....... sae

Uo. COMOt « MONEE. FEo ccc cctcvces Pee

U.6. Cenet. Ort. iti,

> ae Pe See i eat Gs Na aie ee

-Ve

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1986

RICHARD MOODY,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO TRE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, RICHARD MOODY, respect-

fully prays that a writ of certiorari

issue to review the judgment, opinion,

and order on rehearing of the United

States Court of Appeals for the Third

Circuit, entered in Case No. 86-3283 on

October 16, 1986, and November 10, 1986,

which affirmed the judgment of the

United States District Court for the

Western District of Pennsylvania.

inh te

OPINION BELOW

The United States Court of Appeals

for the Third Circuit announced its

opinion and judgment affirming the Peti-

tioner's convictions for conspiracy to

import marijuana, nvm violation of 21

U.S.C. §963, conspiracy to possess mari-

juana with intent to distribute, in

violation of 21 U.S.C. §846, importation

of marijuana, in violation of 21 U.S.C.

§952(a), and possession of marijuana

with intent to distribute, in violation

of 21 U.S.C. §841(a)(1), in United

States v. Sandini, et al., 803 F.2d 123

(3d Cir. 1986). That opinion is repro-

duced in the Appendix. (A.1-23). 3,

petition for panel rehearing and for

rehearing in banc was denied by the

Court on November 10, 1986. This order

is also reproduced in the Appendix.

(A.24-25).

JURISDICTION

Jurisdiction is invoked under 28

U.S.C. §1254(1). This petition is filed

within the authorized time period fol-

lowing the Third Circuit's order on

rehearing. Sup.Ct.R. 20.1.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Art.

ee ee Fay eee

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.

United States Constitution, Sixth

Amendment:

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

an Dus

the crimes shall have been

committed, which district shall

have been previously ascer-

tained by law....

18 U.S.C. §3237(a) (1982):

(a) Except as otherwise

expressly provided by enactment

of Congress, any offense

against the United States begun

in one district and completed

in another, or committed in

more than one district, may be

inquired of and prosecuted in

any district in which’ such

offense was begun, continued,

or completed.

Any offense involving the

use of the mails or transporta-

tion in interstate or foreign

commerce is a continuing

offense and, except as other-

wise expressly provided by

enactment of Congress, may be

inquired of and prosecuted in

any district through, or into

which such commerce or mail

matter moves.

Pub. L. 98-473, Title II, §1204(a),

98 Stat. 2152 (effective October 12,

1984):

Sec. 1204 (a) The second

paragraph of subsection (a) of

Beatson S22 Of Title i16,

United States Code is amended

to read as follows:

a

"Any offense involving the

use of the mails, transporta-

tion in interstate or foreign

commerce, or the importation of

an object or person into the

United States is a continuing

offense and, except as other-

wise expressly provided by

enactment of Congress, may be

inquired of and prosecuted in

any district from, through, or

into which such commerce, mail

matter, or imported object or

person moves.

STATEMENT OF THE CASE

On June 27, 1985, in the United

States District Court for the Western

District of Pennsylvania, RICHARD MOODY

was charged in four counts of a 23-count

indictment with conspiracy to import

marijuana, in violation of 21 U.S.C.

§963, conspiracy to possess marijuana

with intent to distribute, in violation

of 21 U.S.C. §846, importation of mari-

juana, in violation of 21 U.S.C. §952,

and possession of marijuana with intent

to distribute, in violation of 21 U.S.c.

§841. The same indictment charged a

number of defendants, including Hilmer

Sandini, one of MOODY's coconspirators,

in a large-scale cocaine trafficking

conspiracy. Prior to trial, MOODY filed

a motion for severance and relief from

prejudicial joinder, arguing that the

marijuana conspiracy was entirely

sie

a

separate from the cocaine conspiracy,

and that joinder could not be justified

by the mere fact that MOODY's cocon-

spirator Sandini was alleged to be a

participant in both conspiracies. MOODY

also argued that joinder was prejudicial

as to him because the introduction of

evidence concerning the cocaine con-

spiracy in his trial would deprive him

of a fair opportunity to have the jury

determine his guilt or innocence on the

marijuana charges. The trial court

agreed and entered an order for sever-

ance. MOODY's trial commenced _ on

December 18, 1985, and the jury returned

verdicts of guilty on all four counts on

December 20, 1985. On April 24, 1986,

MOODY was sentenced to concurrent terms

of imprisonment of 360 days on each

count, to be followed by aée special

parole term of two years. He was also

fined on all four counts for a total of

$16,000. (A.2-4).

-,

inl

According to the testimony, MOODY

was a member of a marijuana trafficking

conspiracy led by indicted coconspirator

EG Mills. MOODY supplied the airplane,

a Cesna 401, used in the group's impor-

tation of marijuana into the United

States, anc provided partial financing

for the purchase of the marijuana. The

Miils group started business in 1981.

They planned to purchase marijuana in

Jamaica, fly the marijuana from there to

the Bahamas and ship it from there by

boat to Florida. This trip was attempt-

ed for the first time in 1982. MOODY's

plane was used to move the contraband

from Jamaica to the Bahamas. The load

was then lost because Mills failed to

arrange for boats to carry the marijuana

from the Bahamas to Florida. Shortly

thereafter, a second trip was planned,

for which MOODY supplied $15,000 for the

Marijuana purchase as well as his air-

dle

plane. This mission also failed. MOODY

again agreed to supply $15,000 and the

use of his airplane for a third importa-

tion effort. (A.4-5).

The third trip from Jamaica, using

an airplane which was rented from Hilmer

Sendini, wes @ success. Eight hundred

pounds of marijuana was brought into

South Floridé where it was stored at a

business called Roy's Welding, which was

owned by Rex Foster, a coconspirator.

Tne individual who was chosen to

broker the mérijuana was a man named Dan

Richitelli. The day after the marijuana

arrived in South Florida, Richitelli

came to Roy's welding with an individual

named Ronald Todd, who purchased $50,000

worth of the marijuana and placed it in

the trunk of his car. Todd testified as

€ government witness at trial, stating

that he took this marijuana to the

Western District of Pennsylvania, where

he sold a portion of it. (A.7-8).

oiic

At the close of the government's

case, MOODY, through his counsel, moved

for a judgment of acquittal on Counts 2

and 4 of the indictment (the conspiracy

to import and substantive importation

counts) based upon the prosecution's

failure to prove venue in the Western

District of Pennsylvania. This motion

was denied, on its merits, by the trial

judge.

MOODY appealed his convictions and

sentences to the United States Court of

Appeals for the Third Circuit, which had

jurisciction over the appeal pursuant to

28 U.S.C. §1291 and Rule 4, F.R.A.P. On

appeél, MOODY argued that the trial

court erred in denying his motion for

judgment of acquittal on those’ two

counts. The basis of MOODY's argument

was the line of cases holding that venue

in importation cases is properly laid in

the district of the imported substance's

-)0-

“final destination." Based upon the

decisions in these cases, as well as the

constitutional provisions involved,

MOODY argued that venue could not, con-

stitutionally, be placed in any district

into which the substance ultimately was

brought. Rather, MOODY contended, the

offenses of conspiracy to import mari-

juana and importation of marijuana were

completed when the marijuana reached the

district which the conspirators intended

to be the final point of destination for

the contraband and the fact that the

contraband may subsequently have been

distributed by others into other

districts did not support a prosecution

brought in one of those districts. The

circuit court, however, ruled as fol-

lows:

14. Appellant Moody relies

on five cases in which nar-

cotics were destined for one

destination, seized at a port

of entry, i.e., California or

-ll-

Florida, and then sent on to

the destination originally

intended to be the final des-

tination by the defendant. See

United States v. Netz, 758 F.2d

t a ); United

States v. Lowry, 675 F.2d 593

T4th Cir. 1982); United States

v. Gray, 626 F.24 494 (5th Cir.

1580), cert. denied, 449 U.S.

1091 (1981); United States v.

Godwin, 546 F.2d 145 (Sth Cir.

1977); United States Vv.

Jackson, 482 F.2d 1167 (10th

Cit; setat, Sere, deniea, 414

U.S. 1159 (1974). In each of

these cases, the appellate

court concluded that the proper

venue for the prosecution was

the final destination of the

contraband rather than the port

at which the narcotics entered

the country. Appellant Moody

argues that the critical point

in these cases is that the

courts held that proper venue

was in the district that the

defendant intended to be the

final point of destination for

the contraband. Although the

facts of the cases support this

contention, there is no

language in any of the opinions

to support it. These courts

were concerned not with the

well-laid plans of defendants,

but with the artificiality of

assigning venue to the district

of the port of entry. They

were anxious to reject = an

earlier precedent from the

Eastern District of Virginia

asserting that the port of

wt Be

entry was the proper venue per

se in marijuana importation

Cases. See United States v.

Lember, 3195 F.Supp. 249 (£.D

Va. 1970). Thus, these courts

held not that the proper venue

for a violation of 21 U.S.C.

§952(a) is the destination

intended by the defendant, but

that

importation of a con-

trolled substance in

violation of 21 U.S.C.

§952(a) is a “continuous

Crime" that is not com-

plete until the controlled

substance reaches its

final destination point,

and that venue is proper

in any district along the

way.

Gray, 626 F.2d at 498 (citing

Tackson,, 482 F.2d at 1178);

accora, Godwin, 546 F.2d at

15. It is unrealistic to

assume that the "final destina-

tion" of all Florida-based drug

smugglers is Florida. Florida

is merely the conduit through

which many controlled = sub-

stances imported into this

country must pass before reach-

ing destinations outside of

that state. Appellant argues

that it would be unjust and

irrational to lay venue in any

jurisdiction where a small

amount of contraband imported

into Florida happened to find

ot Bu

its way. That is not what

happened in this case. This

case involves the transporta-

tion of $50,000 worth of mari-

juana purchased almost immedi-

ately after the drug's arrival

in this country by an

individual contracted by the

coconspirators' own specially-

selected marijuana broker.

Although the Western District

of Pennsylvania may not have

been the final destination

intendec by the appellant, it

was nevertheless the final des-

tination of a considerable

amount of the marijuana he

conspired to import into this

country. To adopt appellant

Moody's araument and hold that

Florida was the "final destina-

tion" for this contraband would

be to reinstate Lember 's

irrational. port of entry rule

rejected by the very authori-

ties appellant cites. Venue

was properly laid in the

Western District of

Pennsylvania.

It is this ruling by the Court of

Appeals which the Petitioner is asking

this court to review. A petition for

rehearing and for rehearing in banc was

denied by the circuit court on November

10, 1986. However, the circuit court,

recognizine the importance of this ques-

x

tion, granted a stay of mandate to

January 9, 1987, so as to allow Peti-

tioner the opportunity to petition this

court for entry of a writ of certiorari.

ate

REASONS FOR GRANTING THE WRIT

THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT,

IN ITS DECISION BELOW HOLDING

THAT VENUE IN A MARIJUANA

IMPORTATION CASE COULD PROPERLY

BE LAID IN ANY DISTRICT INTO

WHICH ANY PORTION OF THE

IMPORTED MARIJUANA ULTIMATELY

WAS BROUGHT, HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL

LAW WHICH HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS

COURT, PARTICULARLY WHERE THE

CIRCUIT COURT DECISION CON-

FLICTS WITH PRINCIPLES

EXPRESSED BY THIS COURT IN ITS

PRIOR DECISIONS.

The question of where an accused

shall stand trial was a matter of such

importance to those who wrote the Con-

stitution and the Bill of Rights that

they dealt with it in two separate pro-

visions. Article III, §2 of the Consti-

tution requires that “the trial of all

crimes ... shail be held in the state

where said crimes shall have been con-

Seeeeeises” 6 es «6COt. art. III, §2,

cl. 3. In addition, the Sixth Amendment

-16-

ae Se

to the Constitution provides that, “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 dis-

trict shall have been previously ascer-

tained by law...." U.S. Const. amend.

VI. Thus, this Court has, more than

once, stated that questions of venue in

criminal cases are more than matters of

mere procedure. They raise deep issues

of public policy in the light of which

legislation must be construed. United

States v. Johnson, 323 U.S. 273, 275

(1944); Travis v. United States, 364

U.S. 631, 634 (1961).

As pointed out by the Third Circuit

in its decision, federal venue in nar-

cotics importation cases is controlled

by 18 U.S.C. §3237(a). This statute, as

amended by Pub. L. 98-473, Title II,

el te

§1204(a), 98 Stat. 2152 (effective

October 12, 1984), classifies importa-

tion as a continuing offense and pro-

vides that it "may be inquired of and

prosecuted in any district from,

through, or into which such ... imported

opject ... moves.” The Third Circuit

held that "under the plain meaning of

the statutory language, venue is proper

in the Western District of Pennsylvania

because the ‘imported object,’ i.e., the

marijuana, ‘movefd]' into the Western

District of Pennsylvania." Petitioner

submits, however, that such an over

literal reading of the statute is incon-

sistent with its legislative history,

with this Court's prior precedents and

with the line of circuit court cases

which underlies the 1984 amendment to

the Act.2/

1/ Petitioner agrees that the question

(fn.cont. )

_

a eR ye, Ee SY Pee ee ee

ee

° Saar vnc de het les itera aT Cian kes Biba 6%

The doctrine of continuing offense

was explained by this Court in its

decision in United States v. Johnson,

323. U.8. 272 4eeeeee In an opinion

authored by Justice Frankfurter, this

Court held:

[Bly utilizing the doctrine of

a continuing offense, Congress

may, to be sure, provide that

the locality of a crime shall

extend over the whole area

through which force propelled

by an offender operates. Thus,

an illegal use of the mails or

of other instruments of com-

merce may subject the user to

prosecution in the district

where he sent the goods, or in

the district of their arrival,

or in any intervening district.

Plainly enough, such leeway not

only opens the door to needless

hardship to an accused by

prosecution remote from home

of whether the 1984 amendment applies to

crimes committed prior to its effective

date is inconsequential, inasmuch as the

amendment was enacted not to alter but

to clarify prior law in this area.

Additionally, this Court has held that

the ex post facto clause of the Consti-

tution does not preclude a change of the

Place of trial of an alleged offense

after its commission. Cook v. United

States, 138 U.S. 157 (1891).

-]|9-

ol ew a i li, ee ee

ba

‘

ms

2

and from appropriate facilities

for defense. It also leads to

the appearance of abuses, if

not to abuses, in the selection

of what may be deemed a

tribunal favorable to the

prosecution.

These are matters that

touch closely the fair adminis-

tration of criminal justice and

public confidence in it, on

which it ultimately § rests.

These are important ,factors in

any consideration of the effec-

tive enforcement of the

criminal law. They have been

adverted to, from time to time,

by eminent judges; and Congress

has not been unmindful of them.

Questions of venue in criminal

cases, therefore, are not mere-

ly matters of formal legal

procedure. They raise deep

issues of public policy in the

light of which legislation must

be construed. If an enactment

of Congress equally permits the

underlying spirit of the con-

stitutional 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 command-

ed by it.

323 U.S. at 275-76.

These principles are violated by

the circuit court's decision in the case

-20-

ee.

8 reer =

prem po ”

at bar. As shown by the legislative

history to the 1984 amendment of 21

U.S.C. §952(a), Congress's intent was

not to encourage the prosecution of

importation offenses in any district in

which the substance imported ultimately

was brought, up to and including the

district in which it finally was con-

sumed. Rather, Congress intended to

permit importation crimes to be

prosecuted not only in the district in

which the substance enters the United

States, but also in the district of its

destination. The amendment specifically

was designed to overcome the decision in

United States v. Lember, 319 F.Supp. 249

(E.D. Va. 1970), which held that venue

in importation cases is limited to the

Gistrict of entry and to adopt the

reasoning of a line of circuit court

cases holding that venue is properly

laid in the district of final destina-

atin

a

tion. The intent of Congress

is

expressed in the legislative history of

the

Act:

In addition, this Part amends

18 U.S.C. §3237 to add offenses

involving the importation of a

person or an object into the

United States and thereby to

Classify such offenses as con-

tinuing offenses for which

venue is appropriate in any

district in which the imported

object or person moves. This

is designed to overcome the

decision in United States v.

Lember, which limited venue in

Importation cases to the dis-

trict of entry rather than of

final destination. Such a

construction is unjustified and

would create difficulties since

the witnesses are usually

located in the place of des-

tination. Moreover, the dis-

trict of destination rather

than first entry normally has

the greater interest in vin-

dicating the offense.

United States Code Congressional and

Administrative News. SR No. 98-225,

98th Cong., 2d Sess., reprinted in

[1984] U.S. Code Cong. & Ad. News 3538.

§323

The 1984 amendment to 18 U.S.C.

7(a) thus is consistent with

-22—-

the

madman ae Gls wie. wlio kee.

__

line of circuit court cases holding that

venue in an importation case is properly

laid in the district which is the con-

traband's "final destination." See,

e.g., United States v. Netz, 758 F.2d

1308 (8th Cir. 1985): United States v.

Lowry, 675 F.2d 593 (4th Cir. 1982);

United States v. Gray, 626 F.2d 494 (5th

Cir. 1980), cert. denied, 449 U.S. 1091

(1981); United States v. Godwin, 546

F.2d 145 (5th Cir. 1977); United States

v. Jackson, 482 F.2d 1167 (10th Cir.

1973), cert. denied, 414 U.S. 1159

(1974). In each of these cases, the

appellate court concluded that the

proper venue for the prosecution was the

final destination of the contraband

rather than the port at which the nar-

cotics entered the country. What is

Significant is that in each of these

circuit court decisions, the facts sup-

ported the conclusion that the district

o33~

of "final destination” was the district

to which the importers intended to bring

the contraband from the outset. Thus,

the facts of each of these cases support

Petitioner's contention that those

courts held that proper venue was in the

district that the defendant intended to

be the final point of destination for

the contraband.

The facts of the case at bar

present a far different situation. In

this case the evidence, taken in the

light most favorable to the government,

showed that the Petitioner and his co-

conspirators made arrangements to import

800 pounds of marijuana into’ the

Southern District of Florida. Following

two unsuccessful attempts at importa-

tion, the marijuana was successfully

brought into Florida and stored at a

South Florida business location owned by

one of the Petitioner's coconspirators.

7)

It was only after the marijuana had been

brought into the Southern District of

Florida that Petitioner's coconspirators

contacted another individual, a _ so-

called “marijuana broker," who was not a

participant in the importation con-

spiracy. It was this “marijuana broker"

who, in turn, procured a buyer for

$50,000 worth of the marijuana. This

buyer also was not a member of the

importation conspiracy and was not a

principal in the importation. Yet

because this buyer, on his own initia-

tive, transported the portion of the

marijuana which he purchased into the

Western District of Pennsylvania, the

circuit court held that venue was proper

in the Western District of Pennsylvania

under the "final destination" doctrine.

Petitioner suggests to this Court

that the venue question raised in this

case does raise deep issues of public

a2S—

policy in the light of which 18 U.S.C.

§3237(a) and the so-called "final des-

tination" doctrine must be construed.

The liberal construction given to that

act by the Third Circuit ignores this

Court's warning "that venue provisions

in acts of Congress should not be so

freely construed as to give the govern-

ment the choice of "a tribunal favor-

able" to it. Travis v. United States,

364 U.S. 631, 634 (1961); United States

v. Johnson, 323 U.S. 273, 275 (1944).

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.

Cores, 356 U.86. 405, 407 (1958).

Provided its language permits, the act

in question should be given that con-

struction which will respect such con-

siderations. Id. Thus, if an enactment

-26-

of Congress equally permits the underly-

ing spirit of the constitutional concern

for trial in the vicinage to be

respected rather than to be disrespect-

ed, construction should go to the direc-

tion of constitutional policy even

though not commanded by it. United

States v. Johnson, 323 U.S. 273, 276

(1944). These decisions support Peti-

tioner's contention that it is a reason-

able and not a strained construction to

read the statute to mean that the crime

of importation is complete when the

contraband reaches the district intended

by the defendant to be the final point

of destination for the contraband.

The expansive reading given to 18

U.S.C. §3237(a) by the Circuit Court in

the case at bar represents a grave

erosion of a basic constitutional right

provided to a criminally accused in not

just one, but in two separate provisions

=,

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of our Constitution. The questions

raised herein, revolving around the

Classification of importation of contra-

band as a “continuing offense" and the

applicability of the “final destination”

doctrine are issues which are likely to

reoccur with frequency = and, unless

resolved by this Court, are likely to

result in uncertainty and further liti-

gation with respect to the proper juris-

diction for prosecution of such

offenses. Cf. Borchardt v. United

States, U.S. __, 105 8§.Ct. 341, 342

(1984)(Brennan, J. dissenting). This

Court is urgently requested to issue its

writ of certiorari and to take this

opportunity to resolve these important

federal issues once and for all.

-28-

‘CONCLUSION

For the above-stated reasons, 4a

writ of certiorari should issue to

review the judgment and opinion of the

United States Court of Appeals for the

Third Circuit.

Respectfully submitted,

BIERMAN, SONNETT, SHOHAT

& SALE, P.A.

Counsel for Petitioner

200 S.E. First Street,

Suite 500

Miami, Florida 33131

Telephone: (305) 358-7477

atu

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-3283

THE UNITED STATES

Vv.

HILMER BURDETTE SANDINI, ERNEST

| G. ROCKWELL, GEORGE WHITE KOST,

RONALD PAUL URBAN, CAROL ANN

HINEMAN SANDINI, SANDRA JEAN

SANDINI, MICHAEL FRAWLEY, DAVID

THOMPSON, GEORGE STRICKLER,

SHERMAN JOHN £GLUNT, SANTOS

RUIZ, ROBERT KOTULA, EUGENE

ANTHONY GESUALE, ROBERT MAKER,

VINCENT CIRAOLO, RICHARD MOODY,

EDWARD MILLS, REX FOSTER,

KENNETH HILL, HARRY JESSUP,

ROSE JESSUP

Richard Moody, Appellant

On Appeal from the United States

District Court for the

Western District of Pennsylvania

(Pittsburgh )

D.C. Civil No. 85-150

Submitted Under Third Circuit

Rule 12(6)

September 30, 1986

Before: WEIS, MANSMANN, and HUNTER

Circuit Judges

Opinion filed October 16, 1986

A-1

parents 8 te ae ah aS «ONIN Se Ea NOE

Jon A. Sale

Ira N. Loewy

Bierman, Sonnett, Shohat & Sale, P.A.

200 S.E. First Street, #500

Miami, Florida 33131

Attorneys for Appellant

J. Alan Johnson

United States Attorney

Constance M. Bowden

Assistant U.S. Attorney

633 U.S. Post Office and Courthouse

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

HUNGER, Circuit Judge:

1. On June 27, 1985, in the United

States District Court for the Western

District of Pennsylvania, appellant

Richard Moody was charged in four counts

of a 23 count indictment with conspiracy

to import marijuana in violation of 21

U.S.C. §963, conspiracy to possess mari-

juana with intent to distribute in

; violation of 21 U.S.C. §846, importation

of marijuana in violation of 21 U.S.C.

§$952(a), and possession of marijuana

with intent to distribute in violation

of 21 U.S.C. §841(a)(1). The same

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indictment charged a number of defen-

dants, including Hilmer Sandini, one of

Moody's coconspirators, in a large-scale

cocaine trafficking conspiracy. Prior

to trial, Moody filed a Motion for

Severance and Relief from Prejudicial

Joinder, arguing that the marijuana

conspiracy was entirely separate from

the cocaine conspiracy, and that joinder

could not be justified by the mere fact

that Moody's coconspirator Sandini was

alleged to be a participant in both

conspiracis. Moody also argued that

joinder was prejudicial as to him

because the introduction of evidence

concerning the cocaine conspiracy at his

trial would deprive him of a fair oppor-

tunity to have the jury determine his

guilt or innocence on the marijuana

charges. The trial court agreed, and on

August 27, 1985, entered an Order of

Severance. Moody's trial commenced on

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December 18, 1985, and the jury returned

verdicts of guilty on all four counts on

December 20, 1985. On April 24, 1986,

Moody was sentenced to concurrent terms

of imprisonment of 360 days on each

count, to be followed by aie special

parole term of two years. He was also

fined on all four counts a total of

$16,000. This appeal, in which Moody

challenges (a) the admission of alleged-

ly prejudicial evidence at trial and (b)

improper venue, followed.

2. According to the testimony,

Moody was a member of a marijuana traf-

ficking conspiracy led by indicted co-

conspirator Ed Mills. Moody supplied

the airplane, a Cessna 401, used in the

group's importation of marijuana into

the United States, and provided partial

financing for the purchase of the mari-

juana. The Mills group started business

in 1981. They planned to purchase mari-

A-4

juana in Jamaica, fly the marijuana from

there to the Bahamas, and ship it from

there by boat to Florida. This trip was

attempted for the first time in 1982.

Moody's plane was used to move the

contraband from Jamaica to the Bahamas.

The load was then lost because Mills

failed to arrange for boats to carry the

drugs from the Bahamas to Florida.

Shortly thereafter, a second trip was

planned, for which Moody- supplied

$15,000 for the drug purchase as well as

his airplane. This mission also failed.

Moody again agreed to supply $15,000 and

the use of this airplane for a third

importation effort, and this time his

partners promised him $60,000 for the

use of the plane and 1/3 of the balance

of all profits to compensate him for his

previous investments.

3. Around the same time that the

Mills group was planning its third mari-

A-5

juana run from Jamacia, the members of

the conspiracy met with Hilmer Sandini

and his associate Dan Mitrione at the

Clock Restaurant in Florida. This meet-

ing's participants discussed the mari-

juana importation scheme; a proposal by

Sandini that members of the Mills group

become involved in his cocaine importa-

tion scheme; the possible use by Sandini

of Moody's Cessna 401; and the rossible

use by Mills of Sandini's Cessna 411.

Moody, though present may not have

actively participated in any of these

conversations. After several more meet-

ings with the Mills group, Sandini

learned that neither Moody nor any of

his coconspirators was interested in the

cocaine venture. Sandini was also

rebuffed in his offer to broker the

marijuana haul once it arrived in

Florida.

4. Sandini finally became involved

in the marijuana importation scheme when

the Mills group used his plane instead

of Moody's to make the third run from

Jamaica. Sandini rented the plane to

the Mills group for $30,000, demanding

that $15,000 be paid when the plane took

off from Boca Raton Airpot, and $15,000

when it returned. Moody brought the

first $15,000, in cash, to the Boca

Raton Airport and delivered it to one of

his coconspirators, who later passed it

on to Sandini.

5. The third trip from Jamaica was

a success. Sandini was fully paid for

the use of his airplane upon the mari-

juana's arrival into the United States.

The Mills group immediately sold $50,000

worth of the marijuana to Ronald Todd,

whom they had met through Dan

Richitelli, the individual chosen to

broker the marijuana. Todd brought the

A-7

marijuana he had purchased into the

Western District of Pennsylvania.

6. Moody testified on his own

behalf at trial. Moody testified that,

in 1982, he decided that he wanted to

sell his airplane. In March or April

1982, he entered into a lease-purchase

agreement with Ed Mills. Moody only

received one payment on this lease-

purchase agreement, which consisted of

$15,000 in cash. Because Moody did not

believe that this much cash could be

kept safely, he returned it to Mills

several days later, at the Boca Raton

Airport. Moody also testified that his

meetings with Sandini concerned -

Sandini's interest in purchasing various

pieces of Moody's property, including

his Cessna 401. No sale ever came of

any of these discussions. At none of

the meetings between Moody and Sandini,

insists Moody, were drugs ever dis-

cussed.

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7. Appellant Moody's first point

of appeal is based on Federal Rules of

Evidence 404(b) and 403. Moody arques

that the admission at trial of evidence

regarding the meetings between the Mills

group and Hilmer Sandini was irrelevant

and prejudicial, because the profferred

testimony concerned a cocaine conspiracy

in which Moody was not involved. The

prosecution's purpose in introducing

this testimony, Moody argues, was the

"prejudicial and improper [one] of hom

ing that Moody had been associating with

some bad people." Brief for Appellant

at 16. Moody argues that no evidence of

these meetings should have been admitted

at trial, or, short of that, that any

reference to the cocaine conspiracy

should have been excluded. The govern-

ment argued successfully at trial that

the evidence of the Sandini meetings was

essential to its case because, without

A-9

SO aE

it, "{nJothing would make any sense."

Appendix at 245. On appeal, the govern-

ment argues that the Sandini meetings

were needed to show that, contrary to

Moody's testimony, Moody was fully aware

of how his airplane was being used by

Mills.

8. Before reaching the merits of

Moody's claims under Rules 404(b) and

403, we must determine whether appellant

is barred from raising these claims by

Federal Rule of Evidence 103(a)(1).

Rule 102(a) (1) restricts appellate

review of evidentiary errors to those in

which the complaining party has

"“stat[ed] the specific ground of objec-

tion, if the specific ground was not

apparent from the context onde

Although the degree of specificity

required by the Rule is not clear, it

has been established that general objec-

tions, such as the characterization of

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= ae na - ain aeons:

the offending evidence as irrelevant,

will not suffice. See, e.g., United

States v. Blackshear, 568 F.2d 1120,

1121 (5th Cir. 1978).

9. Appellant Moody's principal

ground for objecting to the admission of

the evidence of the Sandini meetings is

that these meetings constituted "other

acts" that were relied upon by the

prosecution to suggest that Moody had a

propensity for drug-related crime or a

generally bad character as demonstrated

by his association with Sandini. Such

tactics are prohibited by Rule 404(b),

which provides that “[e]vidence of other

crimes, wrongs, or acts is not admis-

sible to show that [the defendant] acted

in conformity therewith.” Appellant

Moody also argues that the testimony

about the Sandini meetings should have

been excluded under Rule 403, which

directs the trial judge to exclude any

A-11l

relevant evidence that is “substantially

outweighed by the danger of unfair

prejudice." Appellant did not properly

preserve either of these grounds of

objection for appeal. At no point

Guring the colloquy between defense

counsel, the United States Attorney and

the trial judge did defense counsel

specifically invoke either Rule 404(b)2/

or Rule 403, as required by Rule

103(a)(1) and our. precedents. See

Carter v. Hewitt, 617 F.2d 961, 966 n.4

(3d Cir. 1980); United States v. Long,

574 F.2d 761, 766 (3d Cir.), cert.

denied, 439 U.S. 985 (1978). Nor was

defense counsel's reliance on either of

these Rules "apparent from the context."

See United States v. Gibbs, 739 F.2d

1/ The United States Attorney, how-

ever, Gid remark that "“"[{iJf nothing

else, it would certainly be 404 anyway

because they are discussing at the same

time multiple acts.” Appendix at 246.

A-12

838, 849 (3d Cir. 1984), cert. denied,

U.S. (1985). The substance of the

colloquy was not of such a character to

put the trial judge on notice that an

objection based on Rule 404(b) or Rule

403 was at issue. Instead, defense

counsel simply repeated three times that

the information was “irrelevant.” The

trial judge's determination that the

evidence was admissible will not be

disturbed. See Kane v. Ford Motor Co.,

450 Fit Fit, FAG (Me Sie. «6A.

Therefore, appellant Moody's appeal must

fail as far as it relies on Rule 404(b)

and Rule 403 because those grounds for

objection were not properly preserved

for appellate review.

10. Appellant Moody's second point

of appeal is that the trial court erred

in denying his motion for judgment of

acquittal on Counts II and IV of the

indictment (the conspiracy to import and

A-13

es

substantive importation counts) based on

the prosecution's failure to prove venue

in the Western District of Pennsylvania.

The Constitution of the United States

restricts the government's choice of

venue in criminal cases. In Article

III, the Constitution requires that “the

trial of all crimes ... shall be held in

the State where said crimes shall have

been committed ...." U.S. Const. art.

133; Vee ee DS, The Sixth Amendment

further provides that "in all criminal

prosecutions, the accused shall enjoy

the right to a a speedy and public

trial, by an impartial jury of the State

and District wherein the crime shall

have been committed ...." U.S. Const.

amend. VI. Appellant Moody claims that

the alleged crime of importation ended

in Florida, and that the prosecution of

his case in the Western District of

Pennsylvania thus violated the U.S.

Constitution.

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11. The United States contends that

Moody has waived his right to object to

venue in the Western District of

Pennsylvania. The government correctly

asserts that objections to venue are

waived if not raised in a timely manner,

i.e., "at least prior to the close of

the government's case ... and perhaps

before the trial begins." United States

¥. Polin, 323 F.26 349, S77 (8é Cir.

1963). However, all circuits reaching

this question have mitigated the harsh-

ness of this rule by holding that venue

objections are waived only "when the

indictment ... clearly reveals [the

venue] defect but the defendant fails to

object." United States v. Price, 447

F.2d 23, 27 (2d Cir.), cert. denied, 404

U.8.: Fis CRPFA}. Consequently, where

there is a proper allegation of venue in

the indictment, but the government fails

to prove that allegation at trial, a

A-15

challenge to venue in a motion for

acquittal is timely. See 2 C. Wright,

Federal Practice and Procedure: Criminal

§306. p. 600, n. 9 and cases cited

therein (2d ed. 1982 & Supp. 1986).

Until the government rests its case, the

defendant has no notice that a facially

proper allegation of venue is in fact

defective, and thus there can be no

waiver until the close of the govern-

ment's case. United States v. Elack

Cieoe, $90 7.26 270, 272 (6th Cir.

1979); United States v. Bohle, 445 F.2d

54, 58 (7th Cir. 1971). Moody has not

waived his right to object to venue,

because venue in the Western District of

Pennsylvania was properly alleged in

Counts II and IV of the indictment,

which charged Moody with conspiracy to

import and importation of marijuana into

the Western District of Pennsylvanina.

See United States v. Netz, 758 F.2d

A-16

1308, 1311-12 (8th Cir. 1985)(no waiver

of objection to venue in the Western

District of Missouri where indictment

charged defendant with importation of

cocaine into the Western District of

Missouri).

12. Federal venue in = narcotics

importation cases is controlled by 18

U.S.C. §3237(a), which provides that

$3237. Offenses begun in one

district and completed in

another

(a) Except as otherwise

expressly provided by enactment of

Congress, any offense against the

United States begun in one district

and completed in another, or commit-

ted in more than one district, may

be inquired of and prosecuted in any

district in which such offense was

begun, continued, or completed.

Any offense involving the use

of the mails, transportation in

interstate or foreign commerce, or

the importation of an object or

person into the United States is a

continuing offense and, except as

otherwise expressly provided by

enactment of Congress, may be

inquired of and prosecuted in any

district from, through, or into

which such commerce, mail matter, or

imported object or person moves.

A-17

18 U8. §3237(a) (1982) (emphasis

added). Under the plain meaning of the

statutory language, venue is proper in

the Western District of Pennsylvania

because the "imported object," i.e., the

marijuana, "move[d]" into the Western

District of Pennsylvania.

13. Appellant Moody argues that 18

U.S.C. §3237(a) is inapplicable to him

because the statute was not enacted

until after the commission of the crime.

The government responds that the statute

was enacted not to alter but to clarify

prior law in this area. The resolution

of this debate is inconsequential.

Appellant Moody asks this court to apply

the teachings of a line of cases holding

that venue is properly laid in the dis-

trict of the marijuana's "final destina-

tion.” See, e.g., United States v.

Godwin, 546 F.2d 145 (5th Cir. 1977);

United States v. Jackson, 482 F.2d 1167

A-18

(10th Cir. 1973), cert. denied, 414 U.S.

1159 (1974). It is this same line of

cases that the government believes

underlies the amendment of 18 U.S.C.

§3237(a). Therefore, we will apply the

teachings of the final destination cases

to this appeal.

14. Appellant Moody relies on five

cases in which narcotics were destined

for one destination, seized at a port of

entry, i.e., California or Florida, and

then sent on to the destination

originally intended to be the final

destination by the defendant. See

United States v. Netz, 758 F.2d 1308

(8th Cir. 1985); United States v. Lowry,

675, 7.26 593 (4th Ciec. 3962): United

States v. Gray, 626 F.2d 494 (5th Cir.

1980), cert. denied, 449 U.S. 1091

(1981); United States v. Godwin, 546

F.2d 145 (5th Cir. 1977); United States

v. Jackson, 482 F.2d 1167 (10th Cir.

A-19

1973), cert. denied, 414 U.S. 1159

(1974). In each of these cases, the

appellate court conluded that the proper

venue for the prosecution was the final

destination of the contraband rather

than the port at which the narcotics

entered the country. Appellant Moody

argues that the critical point in these

cases is that the courts held that

proper venue was in the district that

the defendant intended to be the final

point of destination for the contraband.

Although the facts of the cases support

this contention, there is no language in

any of the opinions to support it.

These courts were concerned not with the

well-laid plans of defendants, but with

the artificiality of assigning venue to

the district of the port of entry. They

were anxious to reject an earlier

precedent from the Eastern District of

Virginia asserting that the port of

A-20

—— — — kk

entry was the proper venue per se in

marijuana importation cases. See United

States v. Lember, 319 F.Supp. 249 (E.D.

Va. 1970). Thus, these courts held not

that the proper venue for a violation of

21 U.S.C. §952(a) is the destination

intended by the defendant, but that

importation of a controlled sub-

stance in violation of 21 U.S.C.

§952(aj) is a “continuous crime" that

is not complete until the controlled

substance reaches its final destina-

tion point, and that venue is proper

in any district along the way.

Gray, 626 F.2d at 498 (citing Jackson,

482 F.2d at 1178); accord, Godwin, 546

F.2d at 147-47.

15. It is unrealistic to assume

that the "final destination" of all

Florida-based drug smugglers is Florida.

Florida is merely the conduit through

which many controlled substances import-

ed into this country must pass before

reaching destinations outside of that

state. Appellant argues that it would

A-21

be unjust and irrational to lay venue in

any jurisdiction where a small amount of

contraband imported into Florida hap-

pened to find its way. That is not what

happened in this case. This case

involves the transportation of $50,000

worth of marijuana purchased almost

immediately after the drug's arrival in

this country by an individual contracted

by coconspirators' own specially-

selected marijuana broker. Although the

Western District of Pennsylvania may not

have been the final destination intended

by the appellant, it was nevertheless

the final destination of a considerable

amount of the marijuana he conspired to

import into this country. To adopt

appellant Moody's argument and hold that

Florida was the "final destination” for

this contraband would be to reinstate

Lember's irrational port of entry rule

rejected by the very authorities appel-

A-22

lant cites. Venue was properly laid in

the Western District of Pennsylvania.

16. The appellant's conviction will

be affirmed.

A True Copy:

Teste:

Clerk of the United States

Court of Appeals for

the Third Circuit

A-23

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-3283

UNITED STATES OF AMERICA

Vv.

RICHARD MOODY,

Appellant

(D.C. Crim. No. 85-150)

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, SEITZ,

ADAMS, GIBBONS, HUNTER, WEIS,

HIGGINBOTHAM, SLOVITER, BECKER,

STAPLETON, MANSMANN, Circuit Judges.

The petition for rehearing filed by

appellant in the above entitled case

having been submitted to the judges who

participated in the decision of this

court and to all the other available

circuit judges of the circuit in regular

active service, and no judge who con-

curred in the decision having asked for

rehearing, and a majority of the circuit

A-24

judges of the circuit in regular active

service not having voted for rehearing

by the court in banc, the petition for

rehearing is denied.

BY THE COURT,

ee

Circuit Judge

DATED: NOV 10 1986

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