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            Title United States v. Palma-Ruedas

 

            Date 1997

            By

            Subject Other\Concurring & Dissenting

                

 Contents

 

 

Page 1

33 of 79 DOCUMENTS

UNITED STATES OF AMERICA v. MILTON PALMA-RUEDAS, Appellant No. 95-5554. UNITED STATES OF AMERICA v. JORGE LUIS PACHECO, Appellant No. 95-5601. UNITED STATES OF AMERICA v. OMAR TORRES-MONTALVO, Appellant No. 96-

5160. UNITED STATES OF AMERICA v. JAIRO PEDROZA-ORTIZ, Appellant No. 96-

5161. UNITED STATES OF AMERICA v. RANDY ALVAREZ-QUINONES, Appellant No. 96-5162. UNITED STATES OF AMERICA v. JACINTO RODRIGUEZ-MORENO, a/k/a Joel Moreno, Joel Moreno-Llanos, Arturo Torres Celorio Jacinto Rodriguez- Moreno, Appellant No. 96-5163.

Nos. 95-5554, 95-5601, 96-5160, 96-5161, 96-5162 and 96-5163

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

121 F.3d 841; 1997 U.S. App. LEXIS 21003

November 12, 1996, Argued

July 30, 1997, Filed

SUBSEQUENT HISTORY:   **1    Certiorari Denied January  26,  1998,  Reported  at:  1998  U.S.  LEXIS  769. Certiorari Denied February 23, 1998, Reported at:  1998

U.S.  LEXIS  1352.  Certiorari  Denied  March  23,  1998, Reported at:  1998 U.S. LEXIS 2035. Certiorari Granted June 8, 1998, Reported at: 1998 U.S. LEXIS 3868.

PRIOR  HISTORY:  APPEAL  FROM  THE  UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW  JERSEY.  (D.C.  Criminal  Nos.  95-cr--00070-3,

95-cr--00070-2, 95-cr--00070-1, 95-cr--00070-4, 95-cr--

00070-5 and 95-cr--00070-6).

DISPOSITION: Defendant Moreno's § 924(c)(1) con- viction for improper venue reversed. Defendants' convic- tions in all other respects affirmed.

CASE SUMMARY:

PROCEDURAL   POSTURE:   Defendants   appealed judgments from the United States District Court for the District of New Jersey, which convicted them of kidnap- ping and conspiracy to kidnap in violation of 18 U.S.C.S.

§§ 1201(a)(1) and 1201(c); conspiracy to distribute and possess cocaine in violation of 21 U.S.C.S. § 846; and using  and  carrying  a  firearm  in  relation  to  a  crime  of violence, in violation of 18 U.S.C.S. § 924(c)(1).

OVERVIEW:  Defendants  were  implicated  in  a  multi- state  drug  conspiracy  and  kidnapping  scheme.  All  six were convicted in a New Jersey federal court of kidnap- ping and conspiracy to kidnap in violation of 18 U.S.C.S.

§§  1201(a)(1)  and  1201(c).  Three  were  also  convicted

of conspiracy to distribute and possess cocaine in viola- tion of 21 U.S.C.S. § 846. One defendant was convicted of using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C.S. § 924(c)(1). On de- fendants' consolidated appeal, the court affirmed except as to the § 924(c)(1) conviction. Applying the "verb test" to the language of § 924(c)(1), the court held that venue was proper only in the district in which defendant actu- ally used or carried a firearm. The court noted that U.S. Const. art. III, § 2 and Fed. R. Crim. P. 18 required crimes to be tried in the place where they were committed. The court rejected the government's argument that venue un- der § 924(c)(1) was proper where the underlying crime of violence took place. Because the government only had proven that defendant had used a gun in Maryland, the court reversed the conviction for lack of venue.

OUTCOME:  Concluding  that  venue  was  improper  in New Jersey as to the offense of use or carrying of a firearm in relation to a crime of violence, the court reversed the conviction under that count and affirmed defendants' re- maining convictions for drug conspiracy and kidnapping.

LexisNexis(R) Headnotes

Criminal  Law  &  Procedure  >  Criminal  Offenses  > Weapons > Possession

HN1  See 18 U.S.C.S. § 924(c)(1).

Constitutional Law > The Judiciary > Jurisdiction Criminal Law & Procedure > Jurisdiction & Venue > Venue

HN2  See U.S. Const. art. III, § 2.

121 F.3d 841, *; 1997 U.S. App. LEXIS 21003, **1

Page 2

Criminal Law & Procedure > Jurisdiction & Venue > Venue

HN3   By  its  explicit  terms,  the  Constitution  requires crimes to be tried where they are committed. Constitutional Law > Criminal Process

HN4  In all criminal prosecutions, the accused shall en- joy the right to 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.

Criminal Law & Procedure > Jurisdiction & Venue > Venue

HN5  Except as otherwise permitted by statute or by the Federal Rules of Criminal Procedure, a prosecution shall be had in a district in which the offense was committed. Fed. R. Crim. P. 18.

Criminal Law & Procedure > Jurisdiction & Venue > Venue

HN6  Proper venue is not just a mere formal requirement but, rather, a right of constitutional dimension.

Criminal  Law  &  Procedure  >  Criminal  Offenses  > Weapons > Possession

Criminal Law & Procedure > Jurisdiction & Venue > Venue

HN7   To  determine  where  venue  should  lie  under  18

U.S.C.S. § 924(c)(1) the "verb test" is the proper test. One

"commits" a violation of § 924(c)(1) in the district where one "uses" or "carries" a firearm.

Governments > Legislation > Interpretation

Criminal Law & Procedure > Jurisdiction & Venue > Venue

HN8  Where a statute does not indicate the location of the crime for purposes of determining venue,  the court must strictly construe the verbs that define the criminal conduct to ensure that the defendant's rights under U.S. Const. amend. VI are protected.

Governments > Legislation > Interpretation

Criminal Law & Procedure > Jurisdiction & Venue > Venue

HN9  Where Congress has not explicitly indicated an in- tention to allow multiple venue actions, the court remains guided by the strict language of the Constitution. Criminal Law & Procedure > Appeals > Standards of Review > Standards Generally

Evidence > Relevance > Prior Acts, Crimes & Wrongs

HN10  In determining whether evidence was admitted in violation of Fed. R. Evid. 404(b), the reviewing court initially must determine whether the "other crimes" evi- dence was probative of the charged conduct, rather than merely probative of the defendants' character.

Evidence > Relevance > Prior Acts, Crimes & Wrongs

HN11  Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show  action  in  conformity  therewith.  It  may,  however, be admissible for other purposes,  such as proof of mo- tive,  opportunity,  intent,  preparation,  plan,  knowledge, identity, or absence of mistake or accident Fed. R. Evid.

404(b).

Evidence > Relevance > Prior Acts, Crimes & Wrongs

HN12   For  "other  crimes"  evidence  to  be  admitted,  it must  be  logically  relevant,  under  Fed.  R.  Evid.  404(b) and 402, to any issue other than the defendant's propen- sity  to  commit  the  crime,  and  its  probative  value  must outweigh its prejudicial effect.

Criminal Law & Procedure > Appeals > Standards of

Review > Standards Generally

Evidence > Relevance > Prior Acts, Crimes & Wrongs

HN13  Because trial courts have substantial leeway in making evidentiary rulings, the court of appeals review a district court's decision to admit Fed. R. Evid. 404(b) ev- idence for abuse of discretion. When, however, a district court  does  not  offer  reasons  for  its  evidentiary  rulings, the court of appeals need not defer to the reasoning of the district court.

Evidence > Relevance > Confusion, Prejudice & Waste of Time

HN14   Although  relevant,  evidence  may  be  excluded if its probative value is substantially outweighed by the danger  of  unfair  prejudice,  confusion  of  the  issues,  or misleading  the  jury,  or  by  considerations  of  undue  de- lay, waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.

Criminal Law & Procedure > Appeals > Standards of

Review > Abuse of Discretion

Criminal Law & Procedure > Pretrial Motions > Joinder

& Severance > Severance of Defendants

HN15  In reviewing orders denying motions to sever, the court of appeals looks to the record as it existed when the motion was made, what trial developments were then reasonably foreseeable, and in that light decides whether the district court abused its discretion in denying the sev- erance motion.

Criminal Law & Procedure > Pretrial Motions > Joinder

& Severance > Severance of Defendants

HN16  In general, the court of appeals favors joint trials for defendants who are indicted together.

Criminal Law & Procedure > Pretrial Motions > Joinder

& Severance > Severance of Defendants

HN17  Courts should grant a severance motion only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or

121 F.3d 841, *; 1997 U.S. App. LEXIS 21003, **1

Page 3

innocence.  Such  a  risk  may  occur  when  evidence  that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant.

Criminal Law & Procedure > Appeals > Standards of

Review > Harmless & Invited Errors

Criminal Law & Procedure > Pretrial Motions > Joinder

& Severance > Severance of Defendants

HN18  Even if the court of appeals finds that a district court abused its discretion in denying a severance motion, the defendant must still pinpoint clear and substantial prej- udice which resulted in an unfair trial.

Criminal Law & Procedure > Appeals > Standards of

Review > Substantial Evidence

HN19  In determining whether to sustain a conviction, the court of appeals views the evidence in the light most favorable  to  the  government  and  determines  whether  a trier of fact could have found each element of the charged offense beyond a reasonable doubt. The court of appeals will reverse for insufficient evidence only where the fail- ure of the prosecution is clear.

Criminal  Law  &  Procedure  >  Criminal  Offenses  > Inchoate Crimes > Conspiracy

HN20   On  a  conspiracy  charge,  the  government  need not prove conspiratorial intent through direct evidence. Rather, the government can rely entirely on circumstan- tial evidence to prove that an alleged conspirator had the knowledge and intent necessary to commit the crime. Criminal Law & Procedure > Pretrial Motions > Speedy Trial > Statutory Right

HN21  See 18 U.S.C.S. § 3161(b).

Criminal Law & Procedure > Appeals > Reviewability

> Waiver

Criminal Law & Procedure > Pretrial Motions > Speedy

Trial > Statutory Right

HN22  See 18 U.S.C.S. § 3162(a)(2).

Evidence  >  Criminal  Evidence  >  Hearsay  Rule  & Exceptions > Hearsay Rule Components

Criminal Law & Procedure > Appeals > Standards of

Review > De Novo Review

HN23  Whether evidence is hearsay is a question of law subject to plenary review.

Criminal Law & Procedure > Trials > Examination of

Witnesses > Cross-Examination

HN24  The trial court enjoys sound discretion in deter- mining the scope of cross-examination.

Evidence > Hearsay Rule & Exceptions > State of Mind

HN25  Statements admitted to show state of mind under Fed. R. Evid. 803(3) cannot be offered to prove the truth of the underlying facts asserted.

Criminal Law & Procedure > Appeals > Standards of

Review > Plain Error

HN26  When reviewing for plain error, the court of ap- peals  looks  for  errors  that  undermine  the  fundamental fairness  of  the  trial  and  contribute  to  a  miscarriage  of justice.

COUNSEL: Camille M. Kenny, (ARGUED), Fleming, Roth  &  Fettweis,  Newark,  NJ,  Attorney  for  Appellant, Milton   Palma-Ruedas.   Jerome   A.   Ballarotto,       NJ, Attorney  for  Appellant,  Jorge  Luis  Pacheco.  Mark  W. Catanzaro,  (ARGUED),  Moorestown,  NJ,  Attorney  for Appellant,  Omar  Torres-Montalvo.  Dennis  A.  Durkin, Robert  S.  Cosgrove,  Durkin  &  Durkin  West  Caldwell, NJ, Attorney for Appellant, Jairo Pedroza-Ortiz. Daniel A. Greenstone, Greenstone & Greenstone, Hackensack, NJ,  Attorney  for  Appellant,  Randy  Alvarez-Quinones. John  P.  McDonald  McDonald,  Rogers  &  Rizzolo,  NJ, Attorney for Appellant, Jacinto Rodriguez-Moreno.

Kevin   McNulty,   Office   of   United   States   Attorney, Newark,  NJ,  George  S.  Leone  (ARGUED),  Office  of United  States  Attorney,   Camden,   NJ,  Attorneys  for Appellee.

JUDGES: BEFORE: ALITO, ROTH and LEWIS, Circuit Judges. ALITO, Circuit Judge, concurring in part and dis- senting **2   in part

OPINIONBY: LEWIS

OPINION:   *845   OPINION OF THE COURT

LEWIS, Circuit Judge.

Defendants --  Omar Torres-Montalvo ("Montalvo"), Jorge   Luis   Pacheco   ("Pacheco"),  Randy   Alvarez- Quinones ("Quinones"), Milton Palma-Ruedas ("Palma- Ruedas"),   Jairo  Pedroza-Ortiz  ("Ortiz"),   and  Jacinto Rodriguez-Moreno  ("Moreno")  --  appeal  their  convic- tions on charges arising from a drug conspiracy and kid- napping scheme. All six defendants were convicted by a jury in the United States District Court for the District of New Jersey of kidnapping and conspiracy to kidnap, in vi- olation of 18 U.S.C. § 1201(a)(1) and 18 U.S.C. § 1201(c). Montalvo, Pacheco, and Quinones were also convicted of conspiracy to distribute and possess cocaine, in violation of 21 U.S.C. § 846. In addition, Moreno was convicted of using and carrying a firearm in relation to a crime of violence,  in  violation  of  18  U.S.C.  §  924(c)(1).  In  this consolidated appeal,  defendants challenge their convic- tions on numerous grounds. We will discuss each of these challenges in turn, focusing in more detail on Moreno's claim that venue in New Jersey was improper to try the §

121 F.3d 841, *845; 1997 U.S. App. LEXIS 21003, **2

Page 4

924(c)(1) count.

We will  conclude  that  venue  was  improper  in  New Jersey **3   and, accordingly, we will reverse Moreno's conviction under 18 U.S.C. § 924(c)(1). We will affirm the defendants' convictions on all other counts.

I.

Defendant  Montalvo  ran  a  cocaine  distribution  en- terprise   out   of   Texas.   In   July   of   1994,    Ephrain Avendano  ("Avendano"),  the  kidnapping  victim,  intro- duced Montalvo to Fanol Ochoa ("Ochoa"), a New York drug  dealer,  so  that  Montalvo  and  Ochoa  could  dis- cuss a possible cocaine transaction. Thereafter, Avendano served as the middleman between Montalvo and Ochoa. In October of 1994, Montalvo and another defendant, Pacheco,  arranged  to  sell  Ochoa  fourteen  kilograms  of cocaine. Avendano acted as the middleman in this deal. Montalvo hired Raul Lopez ("Lopez"), who later became a key witness for the government, and another friend to

"do  the  run"  from  Texas  to  New  York  because  Lopez owned a car with a secret compartment. On October 29,

1994, while en route to New York, Lopez was arrested

and the fourteen kilos of cocaine were seized. Montalvo called Avendano to let him know that the deal had been thwarted and that he had hired lawyers to represent Lopez. In  November  of  1994,  Montalvo  and  his  cousin, Defendant   Quinones,    met   with   Avendano.   **4  Montalvo told Avendano that the seizure of the fourteen kilos and the legal fees were "a big loss" and that he needed to make a new deal to compensate for it. Avendano con- veyed  this  information  to  Ochoa,  who  agreed  to  strike another deal with Montalvo for twenty kilograms of co- caine. Avendano, again acting as the middleman, agreed to fly to Houston and help Ochoa execute the deal with Montalvo. Avendano arrived in Houston on December 11,

1994, and was met at the airport by Ochoa and another man named "Baldy." Ochoa told Avendano that the deal had been increased to thirty kilograms of cocaine and that Montalvo had agreed to give Ochoa the extra ten kilo- grams on credit. Ochoa then informed Avendano of the plan to get the cocaine from Montalvo:  Avendano and Baldy were to meet Montalvo, Baldy would put the co- caine in his car,  and Avendano would call Ochoa,  who would then

121 F.3d 841, *846; 1997 U.S. App. LEXIS 21003, **4

Page 5

*846   deliver the money. Ochoa explained that he was not meeting Montalvo personally because of "reasons of security."

Pursuant  to  this  plan,  Montalvo  and  Pacheco  met Avendano  and  Baldy.  Baldy  instructed  Montalvo  and Pacheco to place the thirty kilos of cocaine in a suitcase, and Baldy drove away with the drugs. When Avendano

**5   tried to execute the last phase of the deal -- to call Ochoa to secure payment for Montalvo -- Ochoa did not answer his pager.

Obviously, Montalvo was not happy about being taken advantage of by Ochoa for the price of the drugs, which was  nearly  half-a--million  dollars.  And,  in  response, Montalvo and Pacheco informed Avendano that he was

"responsible" for the money, warning him that they may have to turn him over to the "Medellin people."

On December 12, 1994, Montalvo called Avendano's wife, Marbel Avendano, and told her that he was holding Mr. Avendano. Montalvo informed Mrs. Avendano that he could not let Mr. Avendano go until he found Ochoa because Avendano was "his only guarantee." Montalvo and  Pacheco  then  moved  Avendano  to  an  apartment  in Houston and then to a house. Avendano was kept in the house for two weeks. Montalvo was armed at all times. After  hearing  that  Ochoa  was  in  New  York  boast- ing about how he had "ripped-off" Montalvo, Montalvo forced Avendano to disclose the address of his mother and cousin in Columbia and the address of his home in New Jersey. Montalvo then informed Avendano that they were all going to travel to Avendano's home in New Jersey to continue **6   the search for Ochoa. Montalvo warned Avendano not to try anything "because it could work out

worse for him."

That same day, Pacheco showed up at the apartment with  three  men,  Defendants  Ortiz,  Palma-Ruedas,  and Moreno,  who  had  been  hired  to  help  look  for  Ochoa and  keep  Avendano  captive.  Ortiz,  Palma-Ruedas,  and Moreno travelled with Pacheco, Montalvo, and Avendano from Texas to New Jersey. They arrived in New Jersey at Avendano's apartment on December 28, 1994. Using

Avendano's  apartment  as  a  home  base,  the  defendants spent the next few days looking for Ochoa.

On January 1, 1994, they all went to Quinones's house in  Newburgh,  New  York.  Mrs.  Avendano  stayed  at  the Avendanos' apartment in New Jersey. Both Mr. Avendano and Mrs. Avendano testified at trial that at this point they thought they would never see each other again.

Before Avendano arrived with Pacheco at Quinones's house, Montalvo had decided that the house was not safe because  police  had  inquired  about  the  car  with  Texas plates in the driveway. Montalvo then informed the group that they were going to travel to Maryland that night. As they got ready to leave, Montalvo told Avendano to carry the guns so that if they were **7    pulled over on the way, Avendano would be responsible for the guns.

Montalvo,  Pacheco,  and  Avendano  travelled  in  one car,  and  Ortiz,  Palma-Ruedas,  Moreno,  and  Quinones travelled in another. Early in the morning on January 2,

1995,  they  all  arrived  at  a  house  in  Maryland  owned by  Mr.  Morillo.  Soon  after  their  arrival  in  Maryland, Morillo  showed  off  his  .357  magnum  revolver  to  the men.  Meanwhile,  Montalvo  continued  his  search  for Ochoa from the house in Maryland. Once it became clear that Montalvo's search for Ochoa was fruitless, tensions among the men began to run high. At one point, Moreno told Montalvo that they "were just wasting time" and that they  should  "just  get  it  over  with  and  kill  Avendano." Moreno then put Morillo's .357 magnum to the back of Avendano's  neck,  making  it  clear  that  he  was  going  to kill him. Shortly thereafter, Avendano was able to escape from the rear of the house.

Avendano ran to a neighbor's house, where he franti- cally begged the neighbor in broken English to let him use the phone. Avendano called his wife in New Jersey, and his wife got on the phone with the neighbor and asked him to call the police because her husband was in danger. Mrs. Avendano also **8   called the police in New Jersey.

When  the  police  arrived  at  the  neighbor's  house, Avendano related the story of his kidnapping to the police. Meanwhile, back in

121 F.3d 841, *847; 1997 U.S. App. LEXIS 21003, **8

Page 6

*847   New Jersey, the police had also shown up at the Avendanos' apartment with the FBI. The Maryland police were able to corroborate Avendano's story with the police in  New  Jersey.  The  Maryland  police  put  the  Maryland house under surveillance, secured a search warrant, and entered the house. All six defendants were arrested, and the police seized the .357 magnum with Moreno's finger- prints on it, Montalvo's pager, Montalvo's cell phone, a faxed photograph of Ochoa, and papers bearing the tele- phone numbers of Avendano's and Ochoa's beepers.

All six defendants were indicted for:  (1) kidnapping Avendano;  (2)  conspiring  to  kidnap  Avendano  and  his wife; and (3) conspiring to distribute and possess with in- tent to distribute cocaine. All defendants except Quinones were indicted for kidnapping Mrs. Avendano. In addition, Moreno was indicted for using and carrying a firearm in relation to a crime of violence.

The defendants were jointly tried by jury in the United States District Court for the District of New Jersey. At the conclusion **9    of the government's case, Palma- Ruedas,  Ortiz,  and  Moreno  moved  to  dismiss  the  drug conspiracy charges against them pursuant to Rule 29 of the Federal Rules of Criminal Procedure. n1 The district court granted their Rule 29 motion, finding that the gov- ernment  had  failed  to  prove  that  Palma-Ruedas,  Ortiz, and Moreno had intended to join a cocaine distribution conspiracy. J.App. at 470. The jury found the defendants guilty of all remaining counts. n2

n1 Rule 29(a) provides, in pertinent part: The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on ei- ther  side  is  closed  if  the  evidence  is insufficient to sustain a conviction of such offense or offenses.

Fed. R. Crim. P. 29(a).

n2  Montalvo  was  sentenced  to  life  imprison- ment  on  four  counts  to  be  served  concurrently. Pacheco was sentenced to 292-months imprison- ment  on  four  counts  to  be  served  concurrently. Quinones was sentenced to 151-months imprison- ment  on  three  counts  to  be  served  concurrently. Palma-Ruedas was sentenced to 135-months im- prisonment  on  three  counts  to  be  served  concur- rently. Ortiz was sentenced to 96-months impris-

onment on three counts to be served concurrently. Moreno was sentenced to 87-months imprisonment on three counts to be served concurrently and 60- months imprisonment on the § 924(c)(1) count to be served consecutively.

**10

All  six  defendants  appealed,  and  we  consolidated their appeals. The district court had jurisdiction under 18

U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.

§ 1291.

II.

A. Venue

Defendant Moreno was indicted and convicted of vi- olating HN1    18 U.S.C. § 924(c)(1). That section pro- vides:

Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which  he  may  be  prosecuted  in  a  court  of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . .

18 U.S.C. § 924(c)(1).

At the conclusion of the government's case, Moreno moved to dismiss the § 924(c)(1) count for lack of venue. Moreno argued that because the evidence conclusively es- tablished that he had neither "used" nor "carried" the .357 magnum revolver outside of Maryland, venue could only properly lie in Maryland. The government conceded that Moreno had only used or carried the gun in Maryland but maintained that venue in New Jersey was proper nonethe- less. According to the government, venue was proper in New  Jersey  for   **11    the  gun  charge  because  venue in  New  Jersey  was  proper  for  the  predicate  offense  of kidnapping.

Having no guidance from this Circuit on the venue issue,  the  district  court  was  forced  to  choose  between two opposing analyses offered, respectively, by the Ninth Circuit and the Fifth Circuit.   Compare United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1994) (holding that Nevada  was  improper  venue  for  trying  defendant  on  §

924(c)(1) charge, even though Nevada was proper venue for trying defendant on underlying drug conspiracy, when defendant never actually

121 F.3d 841, *848; 1997 U.S. App. LEXIS 21003, **11

Page 7

*848  used or carried the firearm in Nevada), with United States v. Pomranz, 43 F.3d 156 (5th Cir. 1995) (holding that defendant was properly tried for unlawful use of a firearm during drug trafficking offense in any district in which venue was proper for underlying drug distribution conspiracy). Apparently persuaded by the Fifth Circuit's decision  in  Pomranz,  the  district  court  concluded  that Moreno could properly be tried in New Jersey for viola- tion of 18 U.S.C. § 924(c)(1). See J.App. at 468.

Moreno's appeal requires us to address, for the first time, whether the Constitution requires a defendant to be tried under § **12    924(c)(1) in the venue where the violation of that statute took place. Or, to state the issue differently, can the government try a defendant for using or carrying a firearm in any venue where it may try the related crime when the defendant neither carried nor used the  firearm  in  that  venue?   Because  the  district  court's decision regarding proper venue was an interpretation of law, we have plenary review.  United States v. Baxter, 884

F.2d 734, 735 (3d Cir. 1989).

Article III, Section II of the Constitution states in per- tinent  part:   " HN2   The  Trial  of  all  Crimes,  except  in Cases  of  Impeachment,  shall  be  .  .  .  held  in  the  State where the said crimes shall have been committed . . . ." U.S. Const. art. III, § 2. Thus, HN3  by its explicit terms, the Constitution requires crimes to be tried where they are committed. n3

n3 This requirement is reinforced by the vic- inage  provision  of  the  Sixth  Amendment,  which provides:

HN4

In  all  criminal  prosecutions,  the  ac- cused 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 . . . .

U.S.  Const.  amend  VI.  (emphasis  added).  See United States v. Anderson, 328 U.S. 699, 703, 90 L. Ed. 1529, 66 S. Ct. 1213 (1946). In addition, Rule

18 of the Federal Rules of Criminal Procedure pro- vides:

HN5

Except   as   otherwise   permitted   by statute or by these rules, the prosecu- tion shall be had in a district in which the offense was committed.

Fed. R. Crim. Proc. 18 (emphasis added).

**13

Moreover,  we  have  emphasized  that   HN6   proper venue is not just a mere formal requirement but, rather, a right of constitutional dimension. See United States v. Baxter, 884 F.2d 734, 736 (3d Cir. 1989) ("proper venue in criminal trials is more than just a procedural requirement; it is a safeguard guaranteed twice by the United States Constitution itself."); see also United States v. Goldberg,

830 F.2d 459, 465 (3d Cir. 1987) ("The venue provisions of the Constitution are important safeguards, protecting an  accused  from  unfairness  and  hardship  in  defending against prosecution by the federal government.").

The government urges us to disregard these constitu- tional dictates and adopt the approach of the Fifth Circuit in Pomranz. Moreno urges us to adopt the approach of the Ninth Circuit in Corona. Because Corona and Pomranz elucidate  the  parameters  of  this  issue,  we  will  discuss those cases in some detail.

In United States v. Corona, 34 F.3d 876, 879 (9th Cir.

1994),  the  Ninth  Circuit  reversed  the  conviction  of  the appellant for the unlawful use of a firearm in violation of

§ 924(c)(1) because of improper venue. Adopting a "key verbs" test, which examines the **14  verbs in the statute that define the criminal conduct to determine where the offense was committed, the court held that Nevada was not the proper venue for the substantive crimes arising from the conspiracy -- distribution of cocaine and use of a firearm during drug trafficking --  which occurred en- tirely  in  California.   Id.  at  880.  Because  the  defendant had not distributed cocaine nor used a firearm in Nevada, venue was improper, even though the conspiracy counts were properly tried in Nevada.

In United States v. Pomranz, 43 F.3d 156 (5th Cir.), cert.  denied,  516  U.S.  986,  133  L.  Ed.  2d  422,  116  S. Ct. 513 (1995),  the Fifth Circuit explicitly  rejected the Ninth Circuit's analysis. The Fifth Circuit noted that the Ninth  Circuit's  approach  would  "effectively  undermine the Congressional intent to curb the violence inherently associated with high level drug deals." Pomranz, 43 F.3d at 161. Because a violation of § 924(c)(1) is necessarily intertwined with the predicate act of drug trafficking or committing a violent crime, the Fifth Circuit concluded that  §  924(c)(1)  violations  can  be  properly  tried  in  the same venue

121 F.3d 841, *849; 1997 U.S. App. LEXIS 21003, **14

Page 8

*849   as the underlying drug or violent crime offense. Id. In reaching this conclusion,   **15   the court relied heavily on policy concerns -- that the government would have  to  "expend  its  limited  resources  in  prosecuting  a felon a second time for this separate offense, or satisfy itself with the punishment previously imposed and forfeit a conviction on the weapons count." Id. at 161. Further, in addressing the obvious constitutional concerns inher- ent in its decision to allow venue, the court stated:  "We do not believe that our holding seriously infringes on the defendant's rights since this Court treats the right to venue with less deference than other constitutional rights." Id. at 162.

Thus, while the Ninth Circuit, relying heavily on the literal  language  of  the  Constitution  and  Rule  18  of  the Federal  Rules  of  Criminal  Procedure,  found  the  rights guaranteed  by  these  provisions  to  outweigh  concerns about judicial economy, the Fifth Circuit adopted a more pragmatic approach. The Ninth Circuit stated the tension between the two approaches this way:

What the government is essentially arguing for  is  a  rule  of  law  allowing  venue  over  a substantive crime committed in furtherance of a conspiracy in any district where venue is  proper  for  the  conspiracy  charge.  While

**16   such a rule might make some sense from  a  policy  standpoint,  it  runs  counter to  the  venue  principles  established  by  the Constitution, the Federal Rules of Criminal Procedure, and the federal courts.

Corona, 34 F.3d at 879.

Relying   heavily   on   the   rationale   articulated   in Pomranz,  the  government  advances  two  arguments  for finding venue proper in this case. First, the government urges us to consider the cost of forcing duplicative trials. Had the government been forced to try Moreno on the gun charge in Maryland, it contends, its resources would have been  dramatically  strained  because  it  would  have  also had to retry Moreno on the underlying predicate offense of kidnapping.

The government's second and related argument is that when determining venue, a court must look closely to "the nature" of § 924(c)(1). In other words, because a violation of § 924(c)(1) is dependent on the predicate offense -- in this case, kidnapping --  it would be illogical to require the § 924(c)(1) offense to be tried in a different venue.

We   reject   both   of   the   government's   arguments. Instead,  we agree with the Ninth Circuit that HN7  to

determine where venue should lie under § 924(c)(1) the

**17   "verb test" is the proper test. n4 Applying that test here, we find that § 924(c)(1) unambiguously designates the criminal conduct that is prohibited as "using" or "car- rying" a firearm. It follows that one "commits" a violation of § 924(c)(1) in the district where one "uses" or "car- ries" a firearm. Accordingly,  we conclude that because the crime committed by Moreno --  carrying or using a firearm in relation to a crime of violence -- occurred only in Maryland, Moreno could only have been properly tried in Maryland.

n4  For  a  discussion  of  the  "verb  test,"  see Armistead M. Dobie, Venue in Criminal Cases in the  United  States  District  Court,  12  Va.  L.  Rev.

287, 289 (1926) ("All federal crimes are statutory, and  these  crimes  are  often  defined  .  .  .  in  terms of a single verb. That essential verb usually con- tains  the  key  to  the  solution  of  the  question:   In what district was the crime committed?"). See gen- erally  United  States  v.  Georgacarakos,  988  F.2d

1289, 1293 (1st Cir. 1993) ("To determine venue, we examine 'the key verbs in the statute defining the criminal offense' to find the scope of the rele- vant conduct.")(quoting United States v. Tedesco,

635 F.2d 902, 905 (1st Cir. 1980)); United States v. Donahue, 885 F.2d 45, 49 (3d Cir. 1989) ("It is often helpful to look at the statutory verb in the de- scription of the offense in determining where an of- fense was committed."); United States v. Cofield, 11

F.3d 413, 416 (4th Cir. 1994) (noting that "we have adopted  the  'verb  test'  as  an  interpretative  aid"); United States v. Murphy, 117 F.3d 137, 1997 U.S. App. LEXIS 15380,  1997 WL 349887, at *2 (4th Cir. June 26, 1997) ("Where . . . Congress has not provided an express venue provision in conjunction with a criminal offense, this circuit has looked to the verbs defining the criminal offense and the pur- pose underlying the criminal statute to determine proper  venue.");  United  States  v.  Crawford,  115

F.3d  1397,  1997  WL  339295,  *7  (8th  Cir.  1997)

(applying  the  "active  verb"  or  "key  verb"  test  to the Child Support Recovery Act); United States v. Ryan, 894 F.2d 355, 360 (10th Cir. 1990) ("Courts usually examine the verbs employed in the statute to define the offense.").

**18

Contrary to the government's assertions, application of the verb test here would not cause it undue hardship. For example, our holding would not prevent the govern- ment from trying the predicate offense in any venue

121 F.3d 841, *850; 1997 U.S. App. LEXIS 21003, **18

Page 9

*850   in which the § 924(c)(1) charge would be prop- erly brought. Indeed, had the government wanted to try Moreno on all counts in a single trial, it certainly could have done so in Maryland. n5 Thus, the government over- states the potential hardship it would face if forced to try §

924(c)(1) violations in the venue where the gun was used or carried. Essentially, the government wants to have the option of venue--that is, it does not want to be restricted to trying these cases in the venue where the § 924 violation occurred.

n5 The government argues that the count charg- ing Moreno with kidnapping Mrs. Avendano could only have properly been tried in New Jersey or New York, thus precluding a consolidated trial. Because Moreno's violation of § 924(c)(1) was only related to the kidnapping of Mr. Avendano,  the fact that he committed a separate crime of kidnapping Mrs. Avendano is not particularly relevant to our venue analysis.

**19

Many  constitutional  guarantees  for  criminal  defen- dants  are  inefficient  and  costly  --  the  right  to  counsel comes to mind. Nevertheless, these guarantees form the bedrock  principles  of  our  criminal  justice  system  and should not be hastily balanced away. See United States v. Johnson, 323 U.S. 273, 276, 89 L. Ed. 236, 65 S. Ct. 249

(1944) ("If an enactment of Congress equally permits the underlying spirit of the constitutional concern for trial in the vicinage to be respected rather than to be disrespected, construction should go in the direction of constitutional policy . . . ."). Thus, here, HN8  where the statute does not indicate the location of the crime for purposes of de- termining venue, we must strictly construe the verbs that define the criminal conduct to ensure that the defendant's Sixth Amendment rights are protected. n6

n6 The parade of horribles offered by the dissent to demonstrate the inadequacies of the "verb test," while perhaps compelling on its own terms, has no application  in  the  context  of  this  case.  Although there may be statutes in which the verbs defining the criminal conduct are ambiguous,  18 U.S.C. §

924(c)(1) is not such a statute. Cf.   United States v. Angotti, 105 F.3d 539, 542 (9th Cir. 1997) (not- ing that the Corona court "quite logically" held that

"the crime of distribution of narcotics is committed in the district where the narcotics are distributed").

**20

While of course, Congress cannot abrogate the venue guarantee altogether, it can define a crime broadly such that  commission  of  that  crime  will  likely  cross  state borders.  See  Charles  A.  Wright,  Federal  Practice  & Procedure  §  302,  at  201  (2d  ed.  1982).  For  example,

18 U.S.C. §§ 659 & 660 allow the government to indict an individual for "stealing" from interstate commerce in any district in which the individual "possessed" the pro- ceeds  of  the  theft.  See  id.  Congress  can  also  explicitly provide a venue provision for any given offense, as long as the venue bears some relation to the offense. n7 But

HN9  where, as here, Congress has not explicitly indi- cated  an  intention  to  allow  multiple  venue  actions,  we remain guided by the strict language of the Constitution. See Anderson, 328 U.S. at 703 (holding that when "noth- ing in either the statute or the legislative history . . . shows an intention on the part of Congress to depart from the Sixth Amendment's command," courts must look to the nature of the crime and where it was committed to deter- mine venue); United States v. Barsanti, 943 F.2d 428, 434

(4th Cir. 1991) ("Congress did not expressly provide for venue in 18 U.S.C.   **21    § 1001; therefore, we must look to the verbs of the statute for guidance.").

n7 For example, Congress has provided for con- tinuing offenses to be tried "in any district in which such offense was begun, continued, or completed."

18 U.S.C. § 3237(a). And, murder offenses may be tried in any district "where the injury was inflicted

.  .  .  without  regard  to  the  place  where  the  death occurs." 18 U.S.C. § 3236.

In the specific context of § 924(c),  Congress could have drafted the statute to allow venue to lie in any dis- trict where the government could properly bring the re- lated  crime  of  violence  or  drug  trafficking  offense.  n8

Congress did not do so. Without such an explicit expres- sion of congressional intent, we decline the government's invitation to construe liberally the venue requirement.

n8 Indeed, the dissent artfully suggests just how such a statute might be written. See Dissent at 33-

34.

**22

Because  Moreno  only  used  or  carried  the  gun  in Maryland and because that conduct constitutes the sub- stantive offense under § 924(c)(1), venue in New Jersey was improper.

121 F.3d 841, *851; 1997 U.S. App. LEXIS 21003, **22

Page 10

*851   Accordingly, we reverse Moreno's conviction un- der § 924(c)(1) for lack of venue.

B. Rule 404(b) Evidence

Defendants Montalvo, Pacheco, and Quinones argue that the district court abused its discretion in allowing the admission  of  "other  crimes"  evidence  of  previous  drug transactions. n9 Specifically, the defendants attack the ad- mission of testimony from Avendano, the kidnapping vic- tim, and Lopez, the drug courier, regarding the thwarted fourteen-kilo cocaine deal. Defendants also challenge the admission of Lopez's testimony about the five drug trans- actions that preceded the fourteen-kilo deal. According to defendants, they were prejudiced by the admission of this evidence in violation of Rule 404(b) of the Federal Rules of Evidence, which prohibits the admission of prior bad acts when used to portray a defendant as a "bad per- son." Because the fourteen-kilo deal was admitted solely to portray the defendants as drug dealers and, thus, "bad people," defendants contend that it was improperly ad- mitted.

n9 Evidence of the prior cocaine transactions was not admitted against Quinones at trial. His ar- gument is better understood as objecting to the dis- trict court's refusal to sever his trial from the other defendants.  In  essence,  Quinones  claims  that  his trial should have been severed because evidence of the prior deals was admitted against his codefen- dants.

**23   HN10

Initially, we must determine whether evidence of the prior cocaine transactions was probative of the charged conduct, rather than merely probative of the defendants' character.  United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir. 1996).

Rule 404(b) provides:

HN11

Evidence  of  other  crimes,  wrongs,  or  acts is  not  admissible  to  prove  the  character  of a person in order to show action in confor- mity therewith. It may, however, be admissi- ble for other purposes, such as proof of mo- tive,  opportunity,  intent,  preparation,  plan, knowledge,  identity,  or absence of mistake or accident . . . .

Fed. R. Evid. 404(b).

Thus, HN12  for "other crimes" evidence to be admit- ted, it must be logically relevant, under Rules 404(b) and Rule 402, to any issue other than the defendant's propen- sity to commit the crime, and its probative value must out- weigh its prejudicial effect.  United States v. Himelwright

, 42 F.3d 777, 781 (3d Cir. 1994). HN13  Because trial courts have substantial leeway in making evidentiary rul- ings, we review a district court's decision to admit 404(b) evidence for abuse of discretion. Id. When,  however,  a district court does not offer reasons for its evidentiary rul- ings,   **24    we need not defer to the reasoning of the district court. Id.

1. The Fourteen-Kilo Deal.

When  the  government  first  sought  to  introduce  the fourteen-kilo cocaine deal, it offered it as part and parcel of the drug conspiracy count of the indictment. According to the government, the original fourteen-kilo deal was part of the charged drug conspiracy because all of the play- ers were identical to the players in the thirty-kilo deal: Montalvo and Pacheco were the sellers;  Avendano was the middleman; and Ochoa was the buyer. Under the gov- ernment's theory, because the first fourteen-kilo deal was thwarted when the courier, Lopez, was arrested by police, Montalvo was eager to "up the ante" on the next deal.

The district court, however, expressed unwillingness to  consider  the  fourteen-kilo  deal  as  part  of  the  same conspiracy as the subsequent thirty-kilo deal because the indictment only charged a conspiracy to distribute thirty kilos of cocaine. Instead, the district court urged the gov- ernment  to  introduce  the  fourteen-kilo  deal  as  404(b) evidence.

Consequently,  the  government  introduced  the  four- teen kilo deal, offering the following reasons to explain why it qualified under Rule **25   404(b):

It   provides   the   background   and   an   ex- planation  of  the  relationship  between  Mr. Montalvo, Mr. Pacheco, and Mr. Lopez . . . . There's an overlap in the 14 kilogram transac- tion because that overlaps to Mr. Ochoa, the guy who stole the 30 kilos in this case, and Avendano, who was intended middleman in the 14 and the 30. It also shows a method of operation. It also

121 F.3d 841, *852; 1997 U.S. App. LEXIS 21003, **25

Page 11

*852   shows the planning and preparation in terms of having a car prepared to conceal these drugs. It's sort of a test run, so to speak, Your Honor, to take it for a distance from A to B, which is very short and then follow it up with a matter of days and take it interstate from Houston towards New York.

J.App. at 93-94.

Presumably adopting the government's analysis, the district court admitted the prior drug deal:

I don't have any difficulty with that whatso- ever. The probative value of that is not sub- stantially outweighed by the danger of any kind of unfair prejudice. I've ruled on that. Absolutely clear. Classic 404(b).

J.App. at 94.

We can infer that the district court adopted the gov- ernment's proffered reason for admitting the fourteen kilo deal as 404(b) evidence. See United States   **26   v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992) (stating that a district court's summary conclusion to admit 404(b) ev- idence  may  be  sufficient  if  the  government  thoroughly explains  its  proffered  reason  for  offering  it).  We  agree that the government has sufficiently shown that the four- teen-kilo deal was a link in a chain of events that led to the charged conduct and not merely evidence that the de- fendants were more likely than not to have committed the charged conduct. Thus, we conclude that the district court properly determined that the fourteen-kilo cocaine deal qualified as "other crimes" evidence under Rule 404(b). Unfortunately,  it  is  more  difficult  to  decipher  the  rea- soning  of  the  district  court  with  regard  to  the  balanc- ing analysis required by Rule 403. n10 The district court merely  stated  a  conclusion  that  the  probative  value  of the evidence outweighed its prejudicial effect. Although the district court may have in fact engaged in Rule 403 balancing,  it  did  not  articulate  on  the  record  a  rational explanation. See Government of Virgin Islands v. Harris,

938  F.2d  401,  420  (1991).  Thus,  we  need  not  defer  to the district court and can conduct the requisite balancing analysis **27   ourselves.  Himelwright, 42 F.3d at 781.

n10 Rule 403 provides:

HN14

Although  relevant,  evidence  may  be excluded if its probative value is sub- stantially outweighed by the danger of unfair prejudice,  confusion of the is- sues, or misleading the jury, or by con-

siderations  of  undue  delay,  waste  of time,  or  needless  presentation  of  cu- mulative evidence.

Fed. R. Evid. 403.

In our view, while the fourteen-kilo deal may have had some  prejudicial  effect  on  Montalvo  and  Pacheco,  the evidence of the deal was substantially relevant to the gov- ernment's  case  against  the  defendants  to  outweigh  any risk of prejudice. Indeed, the fourteen-kilo deal went to the heart of the government's theory of the case: The gov- ernment contended that the thirty-kilo deal, which led to the kidnapping, was set up to offset the loss caused by the thwarted fourteen-kilo deal.

In  addition,  the  district  court  gave  explicit  limiting  in- structions  to  the  jury  immediately  after  Lopez's  testi- mony, which described the fourteen-kilo **28  deal. n11

This limiting instruction mitigated any potential prejudice against Montalvo and Pacheco. See Sriyuth, 98 F.3d at 748

(recognizing that unfair prejudice can be minimized by a limiting instruction). In other words, the limiting instruc- tion sufficed to enable the jury to compartmentalize the evidence and consider it only for its proper purpose. Id.

(citing United States v. Driggs, 823 F.2d 52, 54 (3d Cir.

1987)).

N11 Specifically, the court instructed the jury to:

Use this evidence to decide whether or not defendant Montalvo and defendant Pacheco  had  knowledge  of  the  drug conspiracy charged in the indictment and intended to participate in. Should you choose to believe the evidence of these other cocaine transactions you've heard  this  afternoon,  I  caution  you, you  may  only  use  it  for  these  lim- ited purposes.  You may not use it to prove that defendant Montalvo and de- fendant  Pacheco  are  bad  persons  or that they were predisposed to do bad things. . . .

J.App. at 281-82.

121 F.3d 841, *852; 1997 U.S. App. LEXIS 21003, **28

Page 12

Thus,     **29    in  our  view,  the  evidence  of  the  four- teen-kilo deal was highly probative to show method of operation  and  preparation,  while  the  prejudicial  effect was  minimal.  Accordingly,  the  fourteen-kilo  deal  was

properly admitted as "other crimes" evidence under Rule

404(b).

121 F.3d 841, *853; 1997 U.S. App. LEXIS 21003, **29

Page 13

*853   2. The Five Prior Drug Transactions.

The defendants also object to the admission of five prior cocaine deals. The government offered evidence, through the testimony of Lopez, of five prior cocaine transactions purportedly to show Lopez's relationship with Montalvo and Pacheco. In addition, the government contended that Lopez's testimony about the prior deals was probative to rebut Montalvo's and Pacheco's claim of noninvolvement with Lopez. Lopez, however, had absolutely no involve- ment  with  the  charged  drug  conspiracy  --  that  is,  the thirty-kilo cocaine deal. The defendants therefore argue that the five prior deals did not relate to anything at issue in the case.

Although it is clear that the district court found the evi- dence to be "classic 404(b)," it is unclear from the record whether the district court conducted a balancing analysis under  Rule  403.  J.App.  at  94.  The  district  court  judge merely stated **30   that: "That's other crimes evidence. I already told you, I balanced -- I balanced that last night, I certainly couldn't see the fourteen kilos as part of this transaction, but I think it's appropriate other crimes ev- idence." J.App. at 101. Moreover, the district court dis- cussed the prior five deals as part and parcel of the four- teen-kilo deal,  rather than as separate 404(b) evidence. Again, because the district court did not offer reasons for its ruling, we must engage in Rule 403 balancing as to the five prior deals ourselves. See Himelwright, 42 F.3d at 781.

While the evidence of the five prior deals clearly shows a relationship between Montalvo and Pacheco, we question whether that evidence had much probative value because the relationship between Montalvo and Pacheco had al- ready been established by the fourteen-kilo deal. On the other side of the scale, however, the risk of prejudice to the defendants by introducing that evidence was signif- icant. Through its admission, the government may have been able effectively to convey to the jury that Montalvo and Pacheco were career drug dealers and "bad people."

Nevertheless, we find it unlikely that "any prejudice re- sulting   **31    from  the  admission  of   the  404(b)  evi- dence  . . . 'caused the jury to base its decision on some-

thing other than the established propositions in this case.'"

United States v. McGlory, 968 F.2d 309, 339 (3d Cir. 1992)

(citing Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980)). In other words, given that the five prior deals were rela- tively small scale and that evidence of the fourteen-kilo deal had already been properly admitted, the admission of the five prior deals likely had no effect on the jury's decision. Accordingly, while we are concerned with the district court's failure to explain its reasons for admitting the five prior cocaine deals, we do not think that the ad- mission of that evidence rises to the level of reversible error.

C. Severance

Moreno,  Palma-Ruedas,  Ortiz,  and  Quinones  contend that the district court abused its discretion in refusing to sever their trials from the trial of Montalvo and Pacheco. Specifically, Moreno, Palma-Ruedas, Ortiz and Quinones claim that the district court wrongly balanced the preju- dice to the defendants against the advantages of joinder.

HN15

In reviewing orders denying motions to sever,  we look to the record **32    as it existed when the motion was made, what trial developments were then reasonably fore- seeable, and in that light decide whether the district court abused  its  discretion  in  denying  the  severance  motion. United States v. Sandini, 888 F.2d 300, 305-06 (3d Cir.

1989);  United  States  v.  Console,  13  F.3d  641  (3d  Cir.

1993).

HN16

In general, we favor joint trials for defendants who are in- dicted together. See Zafiro v. United States , 506 U.S. 534,

537, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993); United States  v.  Balter,  91  F.3d  427,  432  (3d  Cir.  1996).  The defendants  acknowledge  this  preference  but,  neverthe- less, claim that evidence of the drug conspiracy admitted against Montalvo and Pacheco was so overwhelming that it "spilled over" to them.

As  the  Supreme  Court  noted  in  Zafiro,   HN17   courts should grant a severance motion "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt

121 F.3d 841, *854; 1997 U.S. App. LEXIS 21003, **32

Page 14

*854   or innocence." Zafiro, 506 U.S. at 538-39. Such a  risk  may  occur  "when  evidence  that  the  jury  should not consider against a defendant and that would not be admissible if a defendant were tried alone **33   is ad- mitted against a codefendant." Id. at 539. According to defendants,  that  is  exactly  what  happened  in  this  case. That  is,  Moreno,  Palma-Ruedas,  Ortiz,  and  Quinones contend that the jury could not possibly have compart- mentalized the drug evidence admitted against Montalvo and Pacheco, even with explicit limiting instructions.

When  Moreno,   Palma-Ruedas,   Ortiz,   and  Quinones moved to sever,  the district court had before it only an indictment  charging  all  six  defendants  with  conspiracy to  kidnap  and  distribute  drugs.  Thus,  when  the  motion was  made,  the  district  court  had  no  reason  to  believe that Moreno, Palma-Ruedas, Ortiz, and Quinones were situated any differently with respect to the drug conspir- acy than Montalvo and Pacheco. Moreno, Palma-Ruedas, Ortiz, and Quinones contend, however, that their sever- ance  argument  is  bolstered,  retrospectively,  by  the  fact that, at the conclusion of the government's case, the dis- trict court acquitted the defendants of the drug conspiracy charge pursuant to Rule 29. Yet, as the government prop- erly points out, even if these defendants had been tried separately,  evidence  of  the  thirty-kilo  drug  deal  would have  been  admissible  against  each   **34    of  them  to prove motive for the kidnapping charge. In other words, some evidence relating to a drug transaction --  indeed, the largest transaction -- was relevant to all of the charges and all of the defendants. Thus, we are unpersuaded by the defendants' contention that their trials were "tainted" by the association with drugs.

Moreover, HN18  even if we were to find that the district court abused its discretion in denying the severance mo- tion, the defendants must still pinpoint "clear and substan- tial prejudice," which resulted in an unfair trial.  United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991). We are convinced that by instructing the jury that evidence of the prior drug transactions -- specifically, evidence of the fourteen-kilo deal and the five smaller deals--was to

be  considered  only  against  Montalvo  and  Pacheco,  the district court took sufficient steps to cure any prejudice caused  by  admission  of  that  evidence.  See  Zafiro,  506

U.S. at 539 (noting that "less drastic measures, such as limiting instructions,  often will suffice to cure any risk of prejudice"). Accordingly, we conclude that defendants have not shown clear or substantial prejudice as a result

**35    of  the  district  court's  denial  of  their  severance motion.

D. Variance

Ortiz, Moreno, and Palma-Ruedas argue that their con- victions should be vacated because there was a variance between the indictment and the proof at trial, to the preju- dice of the their substantial rights. See Kotteakos v. United States,  328  U.S.  750,  90  L.  Ed.  1557,  66  S.  Ct.  1239

(1946);  United  States  v.  Salmon,  944  F.2d  1106,  1116

(3d Cir. 1991) (noting that under Kotteakos, "a conviction must be vacated where a variance between the indictment and proof at trial exists to the prejudice of a defendant's substantial  rights").  Ortiz,  Moreno,  and  Palma-Ruedas contend,  through  a  creative  reading  of  the  indictment, that the government actually charged one broad conspir- acy but at trial presented proof of multiple conspiracies. Specifically, they contend that there was a variance be- tween the indictment and the proof offered at trial because they were charged with a cocaine conspiracy but convicted of a kidnapping conspiracy. We reject this argument.

The   second   superseding   indictment   charged   Ortiz, Moreno, and Palma-Ruedas with conspiracy to distribute cocaine and conspiracy to kidnap. J.App. at 20. At trial,

**36     the  existence  of  those  two  conspiracies  was proven. While true that Ortiz, Moreno, and Palma-Ruedas were convicted only of the kidnapping conspiracy, the fact that they were acquitted of one of the conspiracies does not establish a prejudicial variance. On the contrary, the defendants were indicted on a kidnapping conspiracy and convicted on a kidnapping conspiracy;  thus, there is no variance here.

121 F.3d 841, *855; 1997 U.S. App. LEXIS 21003, **36

Page 15

*855   E. Sufficiency of Evidence to Convict Quinones Quinones argues that his convictions should be reversed because the evidence against him was insufficient to sup- port a guilty verdict. Specifically, he argues that the gov- ernment failed to show that he had knowledge of the ob- jectives of the drug and kidnapping conspiracies or that he willingly entered into such conspiracies.

HN19

In determining whether to sustain a conviction, we view the evidence in the light most favorable to the govern- ment  and  determine  whether  a  trier  of  fact  could  have found each element of the charged offense beyond a rea- sonable doubt.   United States v. Schramm, 75 F.3d 156,

159 (3d Cir. 1996). In short, we "will reverse for insuffi- cient evidence only where the failure of the prosecution is clear."   **37   Government of the Virgin Islands v. Isaac,

50 F.3d 1175, 1179 (3d Cir. 1995).

HN20

On a conspiracy charge, the government need not prove conspiratorial intent through direct evidence. Rather, the government can rely "entirely on circumstantial evidence to prove that an alleged conspirator had the knowledge and intent necessary to commit the crime." United States v. Carr, 25 F.3d 1194, 1201 (3d Cir. 1994). Here, the gov- ernment presented testimony that Quinones was present at  the  initial  meeting  in  November  of  1994  between Avendano and Montalvo, in which they discussed nego- tiating a possible deal with Ochoa. The government also showed that Quinones travelled with all of the kidnap- pers and Avendano from Quinones's house in New York to Maryland. Moreover, it was established that Quinones was present when Moreno threatened Avendano with the

.357 magnum and that Quinones made an attempt to es- cape when the police entered the Maryland house.

From all of these circumstantial facts,  a reasonable ju- ror could infer that Quinones knowingly and intention- ally participated in the drug and kidnapping conspiracies. Accordingly, we conclude that the evidence was sufficient to support Quinones's **38   conviction on all counts. F. Speedy  Trial  Act  Moreno  filed  a  supplemental  pro  se brief alleging that the government violated his right un-

der  the  Speedy  Trial  Act  to  be  charged  by  indictment within thirty days after being arrested or served with a complaint.

The Speedy Trial Act, HN21   18 U.S.C. § 3161(b), re- quires that:

Any  information  or  indictment  charging  an  individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested  or  served  with  a  summons  in  connection  with such charges.

Moreno contends that his conviction on the § 924 count should be reversed because the government did not indict him on this count within thirty days of his initial arrest. As the government properly points out, however, Moreno was not charged upon arrest with violating § 924. Rather, he was initially charged on that count through a formal, superseding  indictment.  Section  3161(b)  plainly  states that it only applies if the arrest was made "in connection with  such  charges."  Because  Moreno  had already  been arrested on charges stemming from the first indictment, there  was  no  arrest  in  connection  with  the  §  924(c)(1) charge.   **39    Accordingly,  the thirty-day time limit does not apply. See United States v. Beal, 940 F.2d 1159,

1162 (8th Cir. 1991).

Moreover,  Moreno  failed  to  move  for  dismissal  of  the indictment  prior  to trial. HN22   Section 3162(a)(2)  of the Speedy Trial Act clearly states:  "Failure of the de- fendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of  the  right  to  dismissal  under  this  section."  18  U.S.C.

§ 3162(a)(2). See also United States v. Patten, 826 F.2d

198,  199 (2d Cir. 1987) (per curiam) (rights under Act waived  when  defendant  did  not  request  dismissal  until after jury selection began); United States v. Jernigan, 20

F.3d 621, 622 n.2 (5th Cir. 1994) (rights under Act waived when defendant did not move for dismissal prior to trial). Accordingly, we reject Moreno's Speedy Trial Act claim.

121 F.3d 841, *856; 1997 U.S. App. LEXIS 21003, **39

Page 16

*856   G. Suppression

Montalvo,              Pacheco,                 Quinones,              Moreno,                  and PalmaRuedas   claim   that   the   district   court   erred   by failing to suppress the evidence seized at the Maryland residence. Specifically, the defendants contend that there was  insufficient  probable  cause  to  support  a  search warrant.  Defendants'  claim  is  without   **40    merit. When  the  police  came  to  the  house  in  Maryland,  they were able to corroborate Mr. Avendano's story through the  police  in  New  Jersey.  Thus,  the  magistrate  clearly

"had a 'substantial basis for . . . concluding' that a search would  uncover  evidence  of  wrongdoing."  Illinois  v. Gates, 462 U.S. 213, 236, 76 L. Ed. 2d 527, 103 S. Ct.

2317  (1983)  (quoting  Jones  v.  United  States,  362  U.S.

257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960)). Accordingly, there was sufficient probable cause to support a search warrant.

Moreover, even if the warrant was not supported by suffi- cient probable cause, suppression would be inappropriate because the police reasonably relied on the warrant. See United States v. Leon, 468 U.S. 897, 920-22, 82 L. Ed. 2d

677, 104 S. Ct. 3405 (1984); United States v. Williams, 3

F.3d 69, 74 (3d Cir. 1993). Accordingly, the district court properly admitted the evidence seized from the Maryland house.

H. Admission of Hearsay Testimony

When the defendants were at the house of Quinones in New York, a police detective came to the door to check on a suspicious car in the driveway. Rosemary Alvarez, Quinones's wife,  answered the door with Montalvo. At trial, the police detective testified that Alvarez told him that Montalvo was "Carlos Torres."   **41

Montalvo objects to the admission of the detective's testi- mony, claiming that it was inadmissible hearsay. HN23  Whether evidence is hearsay is a question of law subject to plenary review.  United States v. Sallins, 993 F.2d 344,

346 (3d Cir. 1993).

We agree with the district court that the detective's testi-

mony was not hearsay. The testimony was not introduced to prove that Montalvo really was "Carlos Torres" -- i.e., it was not admitted to prove the truth of the matter as- serted.  See  Fed.  R.  Evid.  801(c).  Rather,  the  testimony was offered to show consciousness of guilt and to show that the statement was, in fact, false. See United States v. Levy, 865 F.2d 551, 558 (3d Cir. 1989) (in banc) (noting that "defendants' attempt to conceal their true identities by providing aliases to the police upon arrest is relevant as consciousness of guilt"); Anderson v. United States, 417

U.S. 211, 219-20, 41 L. Ed. 2d 20, 94 S. Ct. 2253 (1974)

(holding that statements were not hearsay when admit- ted "to establish a foundation for later showing, through other admissible evidence, that they were false") (citations omitted).

Even though Montalvo did not offer the information him- self, he allowed Alvarez to offer **42    the false state- ment without correcting her. The statement was thus pro- bative regarding consciousness of guilt because the jury could have reasonably inferred that Montalvo welcomed Alvarez's misidentification of him. J.App. at 313. Further, we agree with the district court that the admission of the statement  was  not  prejudicial.  Thus,  we  conclude  that the district court properly admitted the testimony of the detective.

I. Evidence of Montalvo's Past Name

Montalvo argues that the district court abused its discre- tion when it allowed the government to ask Montalvo's former mother-in--law on cross-examination whether she had  ever  known  Montalvo  by  any  other  name.  On  di- rect examination,  Montalvo's mother-in--law repeatedly referred to Montalvo as "Omar." On cross, the prosecu- tor asked whether she had ever known Montalvo by any other name. She replied that she had known him as "Rubin Tascon" and that, in fact, "Rubin Tascon" was the name that appeared on her daughter's marriage certificate.

HN24

The trial court enjoys "sound discretion" in determining the scope of cross-examination.  United States v. Werme,

939 F.2d 108, 117 (3d Cir. 1991). Here, the district court,

**43   after considering Montalvo's objection,

121 F.3d 841, *857; 1997 U.S. App. LEXIS 21003, **43

Page 17

*857    determined that the prosecutor could elicit tes- timony tending to prove that Montalvo's mother-in--law did not normally refer to him as Omar. The testimony was probative because it tended to support the inference that Montalvo knew he was breaking the law and was trying to  hide  behind  an  alias.  See  Levy,  865  F.2d  at  558.  In addition, we agree with the district court's determination that the witness's reference to Montalvo's "real name" -- Rubin Tascon -- was not unduly prejudicial. Accordingly, the district court did not abuse its discretion in allowing the government to make this point on cross-examination.

J. Government's Reference in Closing to Montalvo's

Past Names

Montalvo claims that he was denied a fair trial because the government referred,  in closing,  to Montalvo's past names. Because Montalvo made no objection to the pros- ecutor's closing at trial, he is required to show plain error. United  States  v.  Anderskow,  88  F.3d  245,  249  (3d  Cir.

1996); see also United States v. Price, 76 F.3d 526, 530

(3d Cir. 1996) (defining plain error as "'egregious error or a manifest miscarriage of justice' "). We conclude **44  that Montalvo cannot show plain error as required.

In closing, the government referred to "Carlos Torres" and

"Rubin Tascon" as names previously used by Montalvo. Yet, as discussed in the previous section, both of these past names had already been submitted to the jury through the testimony of witnesses. Because we have concluded that the district court did not abuse its discretion in admitting evidence of Montalvo's aliases through the testimony of witnesses, we can hardly conclude that the government's reference to these names in closing rose to the level of plain error.

K.   Exclusion   of   Hearsay   Testimony   of   Marilyn

Hernandez

Quinones  argues  that  the  district  court  committed  re- versible   error   when   it   refused   to   admit   the   testi- mony of Marilyn Hernandez regarding the meeting be- tween  Avendano,   Montalvo,   and  Quinones.  The  de- fense  attempted  to  admit  Hernandez's  statement  that

when  Montalvo  introduced  Avendano  to  Quinones  at

Quinones's  house  on  January  1,  1995,  Quinones  said,

"Nice to meet you." Quinones's theory was that this state- ment tended to rebut Avendano's contention that Quinones was at the initial meeting with Montalvo and Avendano in November 1994, and **45   that the statement showed that Quinones did not know that Avendano was being held against his will.

The  district  court  excluded  the  testimony  as  hearsay. Quinones argues that the statement was not hearsay be- cause it was not being offered to prove the truth of the statement.  See  Fed.  R.  Evid.  801(c).  In  the  alternative, he argues that even if the statement was hearsay, it was admissible under Rule 803(3), which allows the admis- sion of statements of the declarant's then existing state of mind. See Fed. R. Evid. 803(3). Thus, the first question is  whether  or  not  the  statements  regarding the  meeting between Quinones and Avendano were offered to prove the matter asserted --  i.e., that Quinones and Avendano had never met before January 1, 1995.

The district court found that the statements were offered precisely to prove the truth of the matter asserted--that is, that  Quinones  and  Avendano  did  not  know  each  other. Quinones  makes  a  hypertechnical,  syntactic  argument by asserting that the relevance of the statement was not that Quinones really thought that "it was nice" to meet Avendano  but,  rather,  merely  that  the  statements  were said.  Quinones's  counsel,  however,  undermined   **46  this argument in closing when he asserted that Quinones could not have been at the November 1994 meeting "be- cause  they  never  met  before  January  1,  1995."  J.App. at 559;  see United States v. Sallins,  993 F.2d 344,  347

(3d Cir. 1993) (noting that defense counsel's use of the statement for its truth in closing argument confirms that the statement was inadmissible hearsay). While Quinones may not have offered the statement for its express mean- ing, he did offer it for the implied assertion that he had never  met  Avendano.  Statements  offered  to  support  an implied  assertion  are  inadmissible  hearsay.  See  United States v. Reynolds, 715 F.2d 99, 104 (3d Cir. 1983).

121 F.3d 841, *858; 1997 U.S. App. LEXIS 21003, **46

Page 18

*858  Nor are we convinced by Quinones's argument that the statement fell within Rule 803(3)'s exception to the hearsay rule. HN25  Statements admitted to show state of mind under Rule 803(3) "cannot be offered to prove the truth of the underlying facts asserted." Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1274 (3d Cir. 1995).

Moreover, even if the statement was admissible, its omis- sion did not constitute prejudicial error. The district court allowed the inference that the defense hoped to get across

**47   by allowing Hernandez to testify that in her opin- ion  Quinones  and  Avendano  were  meeting  for  the  first time.  J.App.  at  396.  Further,  as  noted  earlier,  defense counsel  was  able  to  refer  to  the  excluded  statement  in closing. J.App. at 542, 551, 558-59. Thus, because de- fense counsel was able to get the point across to the jury anyway, the district court's ruling, if error, was harmless.

L.  District  Court's  Comments  on  Defense  Witness

Testimony

Quinones further argues that the district court's response to the testimony of Marilyn Hernandez served to under- mine her credibility and unfairly prejudice Quinones. As such, Quinones claims that the district court's failure to remain neutral and detached constitutes plain error. We are unpersuaded.

HN26

When reviewing for plain error, we look for errors that

"undermine the fundamental fairness of the trial and con- tribute to a miscarriage of justice." United States v. Price,

13 F.3d 711, 724 (3d Cir. 1994) (quoting United States v.  Young,  470  U.S.  1,  16,  84  L.  Ed.  2d  1,  105  S.  Ct.

1038 (1985)). In response to defense counsel's repeated attempts to elicit hearsay testimony from Hernandez, the judge commented out of frustration: "This is so bizarre." In **48   our view, this statement is nothing more than a benign reflection of the judge's reaction to defense coun- sel's  persistence.  See  United  States  v.  Beaty,  722  F.2d

1090  (3d  Cir.  1983)  (upholding  defendant's  conviction when  judge's  actions  reflected  "frustration  by  counsel's repeated attempts to do that which he had properly been forbidden to do"). In any event,  the judge immediately

apologized  to  the  jury,  see  J.App.  at  397,  and  later  in- structed the jury to disregard any comments that she may have made with regard to witness testimony, reminding them  that  they  were  "the  sole  judges  of  the  credibility of the witnesses." Supp. App. at 192,  19697. Thus,  we conclude that the judge's actions did not "reach the point where it appeared to the jury that the court believed the accused was  guilty." Price, 13 F.3d at 723. Accordingly, we find no plain error.

M.            Guard's  Remark  Regarding             Defendant's

Incarceration

Finally, Palma-Ruedas argues that a court guard imper- missibly conveyed to the jury that he was incarcerated, in violation of his due process right to a fair trial. See Estelle v. Williams, 425 U.S. 501, 503-05, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976) (Fourteenth Amendment rights of **49  defendant violated when compelled to stand trial before jury while dressed in identifiable prison clothes). We find that  the  guard's  remark  here  falls  far  short  of  the  due process violation discussed in Estelle.

On the seventh day of the trial, Palma-Ruedas's lawyer told the district court that in the morning, as she was com- ing into the courthouse with two jurors, a court security officer told them: "You can't go down yet, your packages are  not  here."  One  juror  responded,  "What  packages?" The officer responded, "The packages, if you catch my meaning."

Palma-Ruedas  claims  that  the  guard's  random  remark tainted the jurors and,  accordingly,  that his convictions should  be  reversed.  At  trial,  Palma-Ruedas  noted  to the  district  court  only  that  he  "wanted  to  put  it  on  the record" and asked for no specific relief. In other words, PalmaRuedas did not ask for a mistrial,  nor did he ask the court to look into the matter further. Palma-Ruedas's failure to seek relief is telling because it tends to show that, at the time, Palma-Ruedas did not think the guard's remarks were particularly damaging to his fair trial rights. See United States v. Colletti, 984 F.2d 1339 (3d Cir. 1992)

**50   (noting that defendant's failure to ask for correc- tion at trial supports the "inference

121 F.3d 841, *859; 1997 U.S. App. LEXIS 21003, **50

Page 19

*859   that . . . the incident was not nearly as significant as the present argument would suggest").

In any event,  we are not convinced that the guard's re- mark was unduly prejudicial. Indeed, we find it unlikely that the jurors even had any idea what the guard was talk- ing about; jurors are not usually well-versed in the jargon of courthouse guards. Moreover, even assuming the jurors understood the guard's oblique reference, in our view, this random remark to two jurors is insufficient to constitute a  violation  of  Palma-Ruedas's  due  process  rights  to  a fair trial. See United States v. Villabona-Garnica, 63 F.3d

1051, 1058 (11th Cir. 1995) (distinguishing Estelle where the prison clothing was a "constant reminder" to the jury that the defendant was incarcerated, from defendant's re- mark on cross-examination that he was incarcerated).

For the foregoing reasons, we reverse Defendant Moreno's

§ 924(c)(1) conviction for improper venue. We affirm the defendants' convictions in all other respects.

CONCURBY: ALITO (In Part)

DISSENTBY: ALITO (In Part)

DISSENT: ALITO, Circuit Judge, concurring in part and

**51   dissenting in part:

I  join  the  opinion  of  the  court  except  insofar  as  it  re- verses Moreno's conviction under 18 U.S.C. § 924(c)(1) on the ground that venue in the District of New Jersey was constitutionally impermissible. The majority reaches this result based on the so-called "verb test." Applying this test, the majority holds that a violation of 18 U.S.C.

§ 924(c)(1) may be prosecuted only where the defendant used or carried the firearm and not where the defendant committed the underlying crime of violence or drug traf- ficking crime. Accord United States v. Corona, 34 F.3d

876, 879 (9th Cir. 1994). n1

n1   Although   the   majority   interprets   the

Constitution's venue provisions as embodying the

"verb test," the majority seems to suggest (a) that Congress  can  bypass  the  verb  test  by  specifying venue itself and (b) that this congressionally speci- fied venue will pass constitutional muster "as long as the venue bears some relation to the offense."

(Maj.  Op.  at  1415)(footnote  omitted).  But  if  the majority  is  correct  that  the  verb  test  is  constitu- tionally mandated, how can Congress bypass it and specify venue in any place that merely "bears some relation to the offense"?

**52

I disagree with this analysis and conclusion. Instead of relying solely on the "verb test," I think that we should in- quire where, in substance, the offense was "committed." United States Constitution, Art. III, sec. 2, cl. 3 & Amend. VI. In other words, we should make a realistic appraisal of the "nature of the crime" defined by the statute. Cf. United States v. Anderson, 328 U.S. 699, 703, 90 L. Ed.

1529,  66 S. Ct. 1213 (1946). When the offense created by 18 U.S.C. § 924(c)(1) is examined in this way,  it is apparent  that  the  commission  of  the  crime  of  violence or drug-trafficking crime is a critical element of the of- fense and that permitting venue in a district in which the commission of this underlying crime occurred is consis- tent with the Constitution's venue provisions. n2 Accord United States v. Pomranz, 43 F.3d 156, 161-62 (5th Cir.

1995); n3 United States v. Friedman, 1996 WL 612456,

*6 (E.D.N.Y.).

n2 For convenience, I refer to Article III, section

2, clause 3 of the Constitution and the relevant pro- vision of the Sixth Amendment as the Constitution's venue provisions. See footnote 6, infra.

**53

n3   Although   I   agree   with   the   holding   in Pomranz, I do not endorse all of the reasoning in that  opinion.  Specifically,  I  do  not  think  that  the prosecution's convenience or inconvenience per se

(see 43 F.3d at 161 n.8) is a relevant factor in ascer- taining the scope of the Constitution's venue provi- sions.

I.

The criminal statute at issue here provides, in pertinent part, as follows:

Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which  he  may  be  prosecuted  in  a  court  of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.

. . . n4

18 U.S.C. § 924(c)(1) (emphasis added). "Uses" and "car- ries" are verbs. "During and in relation to any crime of violence or

121 F.3d 841, *860; 1997 U.S. App. LEXIS 21003, **53

Page 20

*860   drug trafficking crime" is a prepositional phrase. Under the majority's "verb test," venue is proper in only those districts in which occurred actions denoted in the relevant criminal statute by verbs. Accordingly, **54  in this case, the majority concludes, the "verb test" restricts venue to the District of Maryland, where Moreno carried a  firearm,  and  precludes  venue  in  those  other  districts, including the District of New Jersey, through which the crime of violence, kidnapping, moved.

n4 The statute goes on to prescribe sentences of

10 or 30 years for cases involving certain types of firearms. Id.

The verb test thus makes syntax constitutionally determi- native. Consider the result that would follow if 18 U.S.C.

§ 924(c) were rephrased slightly as follows: Whoever during and in relation to commits any  crime  of  violence  or  drug  trafficking crime . . . for which he may be prosecuted in a court of the United States and during and in relation to that crime uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprison- ment for five years.

This version is wordier than the original, but its meaning is  the   **55    same.  However,  because  of  the  addition of the verb "commits," the "verb test" would presumably permit venue in any district in which the crime of vio- lence or drug trafficking crime was committed. I cannot believe that the meaning of the constitutional restrictions on venue turns on such syntactical trifles.

The apparent author of the "verb test," Judge Armistead M. Dobie of the Fourth Circuit,  does not seem to have claimed  any  such  office  for  his  creation.  In  the  article usually cited as the source of the test, Judge Dobie wrote:

All  federal  crimes  are  statutory,  and  these crimes are often defined, hidden away amid pompous verbosity, in terms of a single verb. That essential verb usually contains the key to the solution of the question:  in what dis- trict was the crime committed. Without the

exact  language  of  the  statute,  particularly this  verb,  paraphrases  and  loose  citations in this field, are more than inaccurate, they are positively misleading. When, as is so of- ten the case, the statute enumerates several such  verbs,  only  scrupulous,  even  meticu- lous,  nicety  in  exact  quotation  can  prevent these  statutes,  as  well  as  the  decisions  un- der them, from proving a snare **56   and delusion to the unwary.

Armistead  M.  Dobie,  Venue  in  Criminal  Cases  in  the

United  States  District  Court,  12  Va.  L.  Rev.  287,  289

(1926)  (emphasis  added);   see  also  United  States  v. Walden,  464  F.2d  1015,  1018  (4th  Cir.  1972).  As  the quoted language demonstrates, Judge Dobie did not sug- gest that the verb test was "the proper" or "only" method to determine venue. He merely suggested that the verb test was "usually" the best method to determine venue. Cf. Norman Abrams, Conspiracy and Multi-Venue in Federal Criminal Prosecutions:  The Crime Committed Formula,

9 UCLA L. Rev. 751, 777 (1962) (verb test, although im- portant,  "constitutes  only  the  first  step"  in  determining venue).

II.

Article  III,  section  2,  clause  3  of  the  Constitution  pro- vides  that  "the  trial  of  all  Crimes,  except  in  Cases  of Impeachment . . . shall be held in the State where the said crimes shall have been committed" (emphasis added). n5

n5  Federal  Rule  of  Criminal  Procedure  18 echoes  this  command,  providing  that  the  "prose- cution shall be had in a district in which the offense was committed."

**57

Similarly, the Sixth Amendment states that "in all crim- inal 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 commit- ted" (emphasis added). n6 Is an offense "committed," for constitutional purposes, in only those places in which ac- tions denoted by verbs occurred? Perhaps this is obvious to  the  majority,  but  it  is  not  apparent  to  me.  Thus,  the constitutional text, by itself,

121 F.3d 841, *861; 1997 U.S. App. LEXIS 21003, **57

Page 21

*861   does not seem to me to provide a sufficient basis for adopting the verb test.

n6  Strictly  speaking,  Article  III,  section  2, clause 3 concerns venue (where the trial occurs), whereas the Sixth Amendment concerns vicinage

(where the jury is drawn). It has been said, however, that "this technical distinction is of no importance." Charles A. Wright, 2 Federal Practice & Procedure

(Criminal), § 301 at 190 (1982 & 1996 Supp.). Nor am I aware of other evidence that these constitutional provisions were meant to embody the **58    verb test. On the contrary, the origin of these constitutional provi- sions shows that they were adopted to achieve important substantive ends-primarily, to deter governmental abuses of power. Cf.   United States v. Johnson,  323 U.S. 273,

276, 89 L. Ed. 236, 65 S. Ct. 249 (1944) ("Questions of venue  in  criminal  cases  .  .  .  are  not  merely  matters  of formal legal procedure. They raise deep issues of public policy . . . .").

"As the difficulties between the American colonies and Great  Britain  increased  during  the  period  immediately prior  to  the  American  Revolution,  those  in  authority who  represented  the  royal  interests  became  concerned that royal interests could not be adequately protected in American courts,  particularly when American colonists were charged with crimes." Drew L. Kershen, Vicinage

29 Okla. L. Rev. 803, 805 (1976). In 1769, despite warn- ings that such a measure might lead to war, Parliament revived an ancient statute under which American colonists accused of treason could be taken to England or another colony for trial. See William Wirt Blume, The Place of Trial of Criminal Cases: Constitutional   **59   Vicinage and Venue, 43 Mich. L. Rev. 59, 6364 (1944); Kershen, supra, 29 Okla. L. Rev. at 805-06.

During  the  next  few  years,  Parliament  enacted  similar laws  applicable  to  persons  charged  with  offenses  such as  destroying  dock  yards,  magazines,  ships,  ammuni- tion, or supplies. Blume, supra, 43 Mich. L. Rev. at 63; Kershen, supra, 29 Okla. L. Rev. at 806-07. Resentment against these measures was so deep that the Declaration of Independence denounced King George III "for transport- ing us beyond Seas to be tried for pretended offenses." This practice has been described as one of the precipitat- ing factors of the American Revolution. See, e.g., Blume, supra, 43 Mich. L. Rev. at 63-67.

After the Boston Massacre, Parliament also passed a law,

14 Geo. III, c.39 (1774), designed to protect British sol- diers  who  were  charged  in  Massachusetts  with  capital

offenses  based  on  actions  taken in  suppressing  riots  or enforcing the revenue laws. Kershen, supra, 29 Okla. L. Rev. at 807. If it appeared to the governor that "an indiffer- ent trial" could not be held in Massachusetts, the accused could  be  tried  in  England  or  another  colony.  Id.  "This circumvention of the **60   judgment of the victimized community was attacked as a 'Mock Trial' system in the Declaration  of  Independence."  Akhil  Reed  Amar,  The Constitution and Criminal Procedure --  First Principles

243 n.163 (1997). n7

n7  The  Declaration  of  Independence  charged the  king  with  "protecting   troops ,  by  a  mock trial, from Punishment for any Murders which they should commit on the Inhabitants of these States."

Following independence, several states adopted constitu- tional  provisions  limiting  a  criminal  prosecution  to  the place where the crime was "committed" n8 or where the

"facts"  "arose"  n9  or  "happened.  n10  And  a  few  years later, similar safeguards were placed in Article III, sec- tion 2, and the Sixth Amendment. n11

n8 N.H. Const. of 1784, art. I, § 17.

n9 Md. Const. of 1776, Declaration of Rights, art. 18.

n10 Mass. Const. of 1780, Part first, art. 13. n11 At the Federal Constitutional Convention,

several proposals were introduced to restrict venue to  the  state  where  the  offense  was  "committed." See Francis Heller, The Sixth Amendment 22-24

(1951). These proposals engendered little debate, none of which seems to have focused on precisely what  was  meant  by  the  place  where  an  offense was "committed." Id. Likewise, debate on the Sixth Amendment did not elucidate this question. For a summary  of  this  debate,  see  Kershen,  supra,  29

Okla. L. Rev. at 817-28.

**61

Justice Story explained the purpose of these provisions as follows:

The object . . . is to secure the party accused from being dragged to a trial in some distant state, away from his friends, and witnesses, and neighborhood; and thus subjected to the verdict of mere strangers, who may feel no common sympathy, or who may even cher- ish  animosities,  or  prejudices  against  him.

121 F.3d 841, *861; 1997 U.S. App. LEXIS 21003, **61

Page 22

Besides this; a trial in a distant state or ter- ritory  might  subject  the  party  to  the  most

oppressive expenses, or perhaps even to the

121 F.3d 841, *862; 1997 U.S. App. LEXIS 21003, **61

Page 23

*862   inability of procuring the proper wit- nesses to establish his innocence.

Joseph Story,  Commentaries on the Constitution § 925

(Carolina Academic Press reprint 1987). Recent scholar- ship has suggested another possible purpose: to protect a community's right to have trials of local offenses occur in the community. See Amar, supra, 124 & n.163.

Against this background, I reject the suggestion that the meaning of the constitutional venue provisions is to be determined  by  diagramming  the  language  of  the  rele- vant  criminal  statute.  Would  the  framers  have  thought that prosecuting an American colonist in England on a charge of treason was permissible **62    if Parliament had been able to craft a treason statute in which a verb denoted  an  action  occurring  in  England?   The  answer is  no.  The  constitutional  venue  provisions  were  meant to put in place important substantive protections against government abuse.

My point is simple. The verb test may be a useful first cut at determining venue. But as recent cases have demon- strated,  verbs  (and  hence  the   **63    verb  test)  can  be stretched broadly. Cf.  United States v. Angotti, 105 F.3d

539, 542-55 (majority) & 547 (Norris, J., dissenting)

III.  The  Supreme  Court  has  never  embraced  the  "verb test." Rather, the Court has instructed that venue must be determined by looking to "the nature of the crime" and the

"location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 90 L. Ed. 1529, 66 S. Ct.

1213 (1946). See also Travis v. United States, 364 U.S.

631, 635, 5 L. Ed. 2d 340, 81 S. Ct. 358 (1961); United

States v. Cores, 356 U.S. 405, 408, 2 L. Ed. 2d 873, 78

S. Ct. 875 (1958). Nor, as far as I can tell, has any court of appeals held that the "verb test" is the only proper test for determining where venue is constitutionally permit- ted. Most of the cases suggest that, while the "verb test" may provide a useful first cut at determining venue, there are complicated crimes for which a rigid grammar-based test  may  not  be  appropriate.  See,  e.g.,  United  States  v. Cofield,  11 F.3d 413,  417 (4th Cir. 1994) (examination of the verbs in a statute is not the exclusive method of determining venue;  "there are crimes where the situs is not so simple of definition") (quoting (9th Cir. 1997) (in evaluating  venue  under  a  statute  that  made  it  criminal

**64   to "knowingly make" certain false statements for the  "purpose  of  influencing"  the  actions  of  a  federally insured  institution,  the  court  held  that  a  statement  was

"made" not only where it was physically submitted to the local financial institution (an intermediary), but also at the point where it was received by the institution or persons

whom it ultimately influenced); cf. also United States v. Crawford, 1997 WL 339295, *7-8, 115 F.3d 1397,    (8th Cir. 1997) (in determining venue under a statute crimi- nalizing the "failure to make" child support payments to a child who "resides" in another state, court held that the

"failure to make" the payments occurred not only in the states where the defendant was and where the court order was imposed, but also where the child resided);  United States  v.  Murphy,  117  F.3d  137,              ,  1997  WL  349887,

*3, (4th Cir. 1997) (same conclusion as Crawford, but in reaching its outcome court focussed on the verb "resides," even though "resides" refers to the child and not the de- fendant). (I cite these cases, not to express agreement or disagreement with their holdings, but as illustrations of the malleability of the "verb test.") If we limit ourselves

**65    to the protection of the verb test, we, in effect, eliminate our protection against a government that wants to overreach its power and is willing to carefully structure its  use  of  grammar  in  criminal  statutes  to  achieve  that goal. It was an overreaching government that the venue protection was geared towards, not a government that was not careful enough with its use of grammar.

United  States  v.  Billups,  692  F.2d  320,  332  (4th  Cir.

1982)); United States v. Newsom,  9 F.3d 337,  339 (4th Cir. 1993) ("the verbs examination method is not exclu- sive") (quotation omitted); United States v. Beddow, 957

F.2d 1330, 1335 (6th Cir. 1992) (employing a "substan- tial contacts" test for determining venue); United States v. Beech-Nut Nutrition Corp.,  871 F.2d 1181,  1188-89

(2d Cir. 1989) (same); United States v. Tedesco, 635 F.2d

902, 905 (1st Cir. 1980) (verb test is "one" method of de- termining venue). Indeed, even the Ninth Circuit, whose analysis and conclusion in Corona the majority follows, has explicitly disavowed a reading of Corona that would suggest that the verb test was "the" interpretive tool to be used in determining venue. See Angotti, 105 F.3d at 544

**66   (leaving open the question whether "focus on key verbs should be the exclusive measure of venue").

IV.  Showing  that  rigid  application  of  the  "verb  test"  is wrong is simpler than setting out an alternative "test" that works in all cases, and I will not attempt to do the latter here. For present purposes, it is enough to show that in a prosecution under 18 U.S.C. § 924(c)(1) the commission of the crime of violence or drug trafficking crime is a suf- ficiently important element to permit venue in any district in which the defendant engages in that conduct.

It is apparent from the text of 18 U.S.C. § 924(c)(1) that the defendant's commission of the underlying crime of vi- olence or drug trafficking offense forms a vital part of the evil that Congress sought to punish and prevent.   **67

121 F.3d 841, *862; 1997 U.S. App. LEXIS 21003, **67

Page 24

Although  18  U.S.C.  §  924(c)(1)  has  been  held  to  cre- ate  an  offense  distinct  from  the  underlying  crime,  see Anderson, 59 F.3d at 1326, it is noteworthy that this pro- vision prescribes the imposition of a penalty "in addition to the punishment provided for the  crime of violence or drug trafficking crime." For this reason, 18 U.S.C. §

924(c)(1) has been described as constituting, at least in part, a "penalty enhancement statute." Anderson, 59 F.3d

at  1326.  This  surely  demonstrates  that  a  central  focus, if not the central focus, of the statute is the commission of  the  underlying  crime  of  violence  or  drug  trafficking crime.

It is also telling that eight courts of appeals have held that

"only one § 924(c)(1)

121 F.3d 841, *863; 1997 U.S. App. LEXIS 21003, **67

Page 25

*863   violation can be appended to any single predicate crime." Anderson, 59 F.3d at 1328 (emphasis added); see also United States v. Cappas, 29 F.3d 1187, 1189 (7th Cir.

1994) (citing cases); United States v. Lindsay, 985 F.2d

666, 674 (2d Cir. 1993); United States v. Sims, 975 F.2d

1225, 1233 (6th Cir. 1992); United States v. Moore, 958

F.2d 310, 312 (10th Cir. 1992); United States v. Hamilton,

953  F.2d  1344,  1346  (11th  Cir.  1992);   **68    United States v. Privette, 947 F.2d 1259, 1262-63 (5th Cir. 1991); United States v. Fontanilla, 849 F.2d 1257, 1258-59 (9th Cir. 1988); but see United States v. Lucas, 932 F.2d 1210,

1222-23  (8th  Cir.  1991).  If  the  use  or  carrying  of  the firearm were the heart of the offense and the commission of  the  underlying  crime  of  violence  or  drug  trafficking crime were a mere appendage that is insufficiently im- portant  to  confer  venue,  these  holdings  would  be  hard to understand. Instead, one would expect these courts to have held that every single use or carrying of a gun in the context of a single drug crime or crime of violence would be a separate offense. The contrary holding by eight of the nine circuits to have addressed the issue reveals their understanding  that  the  underlying  predicate  offense  in Section 924(c)(1) is at the center of Congress's aim. See Pomranz, 43 F.3d at 160; United States v. Taylor, 13 F.3d

986, 993-94 (6th Cir. 1994) ("the predicate offense, not the firearm, is the object of § 924(c)(1)"); United States v. Correa Ventura, 6 F.3d 1070, 1083 (5th Cir. 1993) (the

"essence"  of the offense was that the defendant  used a firearm while committing another **69   federal crime); but  see  Corona,  34  F.3d  at  880  (predicate  drug  crime during which the firearm was used was no more than a preparatory act and hence could not confer venue).

Moreover, a defendant is at least as likely to have signifi- cant ties to a place where he is alleged to have committed the crime of violence or drug trafficking crime as he is to have significant ties to the place where he is alleged to  have  carried  or  used  the  firearm.  And  a  defendant's alleged commission of a crime of violence or drug traf- ficking crime is at least as likely to present a central issue at trial (thus making access to witnesses and proof impor- tant) as is the element of carrying or using a firearm. For these reasons, prosecuting a defendant under 18 U.S.C.

§ 924(c)(1) in a district in which the crime of violence

or drug trafficking crime took place does not involve the type of government abuse that the constitutional venue provisions were meant to prevent.

Section 924(c)(1)'s legislative history confirms the crit- ical importance of the element requiring proof that the defendant  committed  a  crime  of  violence  or  drug  traf- ficking offense. Representative Poff, Section 924(c)(1)'s sponsor,   **70    stated that this provision targeted "the criminal rather than the gun." Anderson, 59 F.3d at 1327

(citing 114 Cong. Rec. at 22,231 (1968)). He explained that  the  provision  sought  to  persuade  those  individuals seeking to commit certain felonies "to leave their  guns at home." Id. at 1328 (citing 114 Cong. Rec. at 22,231). Indeed, he said that "the prosecution for the basic felony and the prosecution under my substitute would constitute one proceeding out of which two separate penalties may grow."  Id.  at  1327  (citing  114  Cong.  Rec.  at  22,  232)

(emphasis added).

In  sum,  the  predicate  crimes  defined  in  18  U.S.C.  §

924(c)(1), crimes of violence and drug trafficking crimes, are  essential  elements  of  the  course  of  conduct  that Congress sought to criminalize. I would hold, therefore, that venue for a prosecution under this statute lies in any district in which the defendant committed the underlying crime of violence or drug trafficking offense.

V.

If the majority's adoption of the "verb test" is taken seri- ously and applied in all future venue cases, it will lead to difficulties.

For  one  thing,  we  will  have  to  delve  into  questions  of grammar **71   that most of us probably left behind in secondary school. The majority suggests that venue ques- tions require us to identify the "key verbs" in the statute, but it is not clear precisely what it means by a "key verb," a term that I do not believe has grammatical significance. Does the term "key verb" mean a verb in the main clause? Or  does  it  include  any  verb  in  a  subordinate  clause  as well?   This point recently divided the district court and the

121 F.3d 841, *864; 1997 U.S. App. LEXIS 21003, **71

Page 26

*864    Fourth Circuit in applying the "verb test" to 18

U.S.C. § 228(a), which provides in pertinent part as fol- lows (emphasis added):

Whoever willfully fails to pay a past due sup- port obligation with respect to a child who resides in another State shall be punished as provided in subsection (b).

The district court focused on the verb in the main clause

("fails") and held that venue was proper where the pay- ment  was  ordered  to  be  paid,  as  opposed  to  where  the child resided.  Murphy v. United States, 934 F. Supp. 736,

739-40  (W.D.  Va.  1996).  Reversing,  the  Fourth  Circuit pointed  to  the  verb  "resides"  in  the  subordinate  clause and concluded that venue was also proper in the district of the child's residence.  Murphy, 117 F.3d   **72   at 138,

1997 WL 349887, *3. Whether or not a verb in a subor- dinate clause may qualify as a "key verb," I assume that a "verbal phrase," i.e., a participial, gerund, or infinitive phrase, cannot qualify. As a grammar book explains:

Verbals are so called because they are formed from  verbs.  In  some  respects  they  act  like verbs.  They  may  express  action;  they  may have  modifiers;  and  they  may  be  followed by complements.  In  one important  respect, however, they are not like verbs: verbals are not  used  as  verbs  in  a  sentence.  They  are used as other parts of speech -- as nouns, as adjectives, or as adverbs.

John E. Warriner and Francis Griffith, English Grammar and Composition 40-41 (1973).

If my assumption is wrong -- if verbal phrases can qualify as "key verbs" -- then I challenge the majority to explain why it is proper to look to this type of noun, adjective, or adverb (i.e., a verbal serving as a noun, adjective, or adverb) and not others. On the other hand, if this assump- tion is right, then the verb test will lead to some surprising results.

There are a great many federal criminal statutes that are phrased along the following lines: It shall **73   be un- lawful to do x. See, e.g., 18 U.S.C. §§ 602, 603, 607(a),

795(a), 842, 922, 964(a), 1082(a), 1731, 1752(a), 1962,

2342.  In  all  of  these  statutes,  the  "key  verb,"  I  take it, is  "shall  be" --  which  cannot  possibly  show  where  the offense was committed or where it should be prosecuted. The  crux  of  the  offense  is  expressed  with  an  infinitive

("to do x") that functions as an adverb that modifies the

adjective "unlawful." Is it proper under the "verb test" to rely on this adverbial phrase? If so, why is it not proper in the case before us to rely on the adverbial phrase "during and in relation to"?

Consider 18 U.S.C. § 922(g), a statute that, like 18 U.S.C.

§ 924(c)(1), deals with the subject of firearms possession. Section 922(g) provides:

It shall be unlawful for any person --

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance . . . ;

(4)  who  has  been  adjudicated  as  a  mental defective  or  who  has  been  committed  to  a mental institution;

(5) who, being an alien, illegally **74   or unlawfully in the United States;

(6) who has been discharged from the Armed

Forces under dishonorable conditions;

(7) who, having been a citizen of the United

States, has renounced his citizenship; or

(8) who is subject to a certain type of court order restraining  such person from,  among other things,

harassing,  stalking,  or  threatening  an  inti- mate partner

%%or his or her child ; or

. . .

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to  ship  or  transport  in  interstate  or  foreign commerce,  or possess in or affecting com- merce, any firearm or ammunition; or to re- ceive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

121 F.3d 841, *864; 1997 U.S. App. LEXIS 21003, **74

Page 27

What are the "key verbs" in this statute?  Is the only key verb the verb "shall be" in the main clause?   Or do the verbs in the subordinate clauses qualify as well?  If so, is

venue

121 F.3d 841, *865; 1997 U.S. App. LEXIS 21003, **74

Page 28

*865   proper where an accused "has been convicted" ( §

922(g)(1)), "is a fugitive" ( § 922(g)(2)),"is an unlawful" drug user or addict ( § 922(g)(3)), "has been adjudicated as a mental defective" or " **75   has been committed to a mental institution" ( § 922(g)(4)), etc.? Or is it permis- sible to look to the verbal phrases ("to ship or transport,"

etc.) as well?

Rather than relying on grammatical arcana, we should, as I have argued above, look at the substance of the statutes in question.

121 F.3d 841, *n; 1997 U.S. App. LEXIS 21003, **75

Page 29

*n   one

EDITOR'S  NOTE:  The  following  court-provided text does not appear at this cite in 121 F.3d.

Here  are  two  examples  of  sets  of  cases  that  exemplify this approach. The Taft-Hartley Act,  29 U.S.C. Section

186(a), states in relevant part:

(a) It shall be unlawful for any employer or association of employers or any person who acts  as  a  labor  relations  expert,  adviser,  or consultant to an employer or who acts in the interest of an employer to pay, lend, or de- liver,  or agree to pay,  lend,  or deliver,  any money or other thing of value --

(1) to any representative of any of his em- ployees who are employed in an industry af- fecting commerce ; or . . .

(emphasis added). The verb in the main clause is "shall be." "Acts" is the verb in the subordinate clause "who acts.

. . ." "To pay, lend, . . ." is a verbal phrase that functions as an adverb modifying "acts." "Affecting commerce" is an- other verbal phrase, specifically a participial phrase that serves **76   as an adjective modifying "industry." What are the "key verbs" in this statute?

In United States v. Billups, supra, the Fourth Circuit said, in effect, "We don't care." The court specifically refused to apply the "verb test," observing that "this method is not exclusive." 692 F.2d at 332. Instead, the court drew an analogy to the Hobbs Act, 18 U.S.C. § 1951, which provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so  to  do,  or  commits  or  threatens  physical violence to any person or property in further- ance of a plan or purpose to do anything in violation of this section shall be fined . . . or imprisoned . . ., or both.

Billups, 692 F.2d at 332 n.10 (emphasis added).

Noting that courts had held that venue in Hobbs Act cases was proper wherever commerce was affected, the Billups court concluded that the same rule should be applied un- der the Taft Hartley Act. 692 F.2d at 332-33. The fact that

the Hobbs Act sets out the commerce element by means of verbs ("obstructs, delays, or affects"),   **77   whereas the Taft Hartley Act does not, was of no moment to either the Billups court or the other courts that have analogized the venue questions under the two acts. See id.;  United States v. Lewis, 797 F.2d 358, 367 (7th Cir. 1986); United States v. Reed, 773 F.2d 477, 482 (2d Cir. 1985).

Two different obstruction of justice statutes, 18 U.S.C. §§ U.S.C. 1513 and 1503,  present a similar issue. Section

1513(b) provides:

Whoever knowingly engages in any conduct and

thereby causes bodily injury to another per- son or

damages the tangible property of another per- son, or

threatens  to  do  so,  with  intent  to  retaliate against any

person for --

(1) the attendance of a witness or party at an official

proceeding,  or  any  testimony  given  or  any record, document, or other object produced by a witness in an

official proceeding;

shall be fined . . . or imprisoned . . . or both.

(emphasis added).

In United States v. Cofield, 11 F.3d 413 (4th Cir. 1994), the  court  held  that  even  though  the  defendant's  acts  of retaliation  against  a  witness  took  place  in  the  District of  Columbia,  venue  was  proper  in  the  Eastern   **78  District of Virginia, because that was the location of the underlying judicial proceeding in which the witness testi- fied. The court reached this conclusion even though there are no verbs in Section 1513(b)(1) n14 that would place venue in any location other than that in which the acts of retaliation or threats took place.  Id. at 417 (rejecting the use of verb test for Section 1513). The Cofield court, however, drew an analogy to 18 U.S.C. § 1503, another ob- struction of justice statute. In cases under this provision, courts had looked to congressional purpose in enacting the statute and had held that venue was proper, not only where the obstructive acts took place, but also where the effects of the obstruction were felt, i.e., in the location of

121 F.3d 841, *n; 1997 U.S. App. LEXIS 21003, **78

Page 30

the judicial proceeding.  11 F.3d at 416-17 (citing United States v. Kibler, 667 F.2d 452 (4th Cir. 1982), and United States v Tedesco, 635 F.2d 902, 905-06 (1st Cir. 1980)). As  in  Billups,  the  Cofield  court  looked  to  18  U.S.C.  §

1503 for guidance even though that provision, unlike the provision before it, contained verbs denoting actions that occurred in the district where the judicial proceeding took place. See   **79   Kibler, 667 F.2d at 454; Tedesco, 635

F.2d at 905. Section 1503 provides punishment for: Whoever . . . corruptly, or by threats of force, or by any threatening letter or communica- tion,  influences,  obstructs,  impedes,  or  en- deavors to influence, obstruct, or impede, the due administration of justice . . . .

(emphasis added). However, the Cofield court looked be- yond these linguistic details and reached its decision based on  its  view  of  the  nature  of  the  wrongful  conduct  that Congress sought to reach. n15

n14 Section 1513(b)(1) is referred to as Section

1513(a)(1) in Cofield, 11 F.3d at 416.

n15 Two recent circuit cases (ones already dis- cussed in part above) involving challenges to con- victions  under  a  provision  of  the  Child  Support Recovery Act of 1992 ("CSRA"), 18 U.S.C. § 228, illustrate  the  importance  and  relevance  of  setting forth the correct venue analysis here. See Murphy,

117 F.3d 137,       , 1997 WL 349887 (4th Cir. 1997)

and United States v. Crawford, 115 F.3d 1397,            ,

1997 WL 339295 (8th Cir. 1997). The CSRA pro- vides that whoever "willfully fails to pay a past due

support obligation with respect to a child who re- sides in another State" is guilty of a federal crime.

18 U.S.C. § 228(a). The venue issue arises in CSRA cases where a defendant is prosecuted for the "fail- ure to pay" in a state where his or her child resides, but which is neither the state in which the defendant currently resides or the state to which the payment is required to be paid under the relevant court or- der. In both Crawford and Murphy, the courts held that venue was proper in the state where the child resided, even though the defendant had no connec- tion with that state. See Crawford, 115 F.3d at        ,

1997 WL 339295, *8, and Murphy, 117 F.3d at            ,

1997 WL 349887, *4. For our purposes, it is worth noting  that  although  both  Crawford  and  Murphy found  that  venue  was  proper  in  the  state  of  the child's residence under the verb test, Crawford ex- plicitly states that the "nature of the crime" venue test might be more appropriate than the verb test for venue issues under the CSRA, and Murphy ac- knowledges the validity of the "nature of the crime" test. See Crawford, 115 F.3d at    , 1997 WL 339295,

*8, and Murphy, 117 F.3d at             , 1997 WL 349887,

*4 (majority) & *6 (Williams, J., concurring).

EDITOR'S  NOTE:  The  preceeding  court-provided text does not appear at this cite in 121 F.3d.

VI.  For  these  reasons,  I  would  hold  that  venue  in  the District of New Jersey was proper, and I would therefore affirm Moreno's Section 924(c)(1) conviction.   **80

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