United States v. Davis, No. 10-3424-cr (2d Cir. August 8, 2012) (Leval, Raggi, Chin, CJJ)
Appellant Davis attempted to rob a drug dealer in Elmont, Queens. Once inside the dealer’s house, he shot and killed the dealer’s girlfriend, and shot at (but missed) the dealer’s mother. He was tried, convicted and sentenced on this – along with other offenses not challenged on appeal – in the Southern District
On appeal, he argued that there was no Southern District venue for the Elmont attempted robbery and associated weapons offenses. The circuit affirmed.
The opinion begins with a long and interesting discussion of venue, culminating with the circuit’s rule that for venue to lie there must be more than “some activity in the situs district” – there must be “substantial contacts.” Whether these exist depends on “the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding.” To support venue, “what is begun and continued in a district must be a part of the actual charged crime, not merely steps preparatory” to it,” and the venue must have been “freely chosen” by the defendant, in the sense that the acts’ occurrence in the district of venue were, at least, “reasonably foreseeable to the defendant.”
Here, there was Southern District venue. First, Davis was charged under the Hobbs Act, which makes it a crime to obstruct commerce. In Hobbs Act cases, venue is proper in any district where commerce is (or would be, in the case of a conspiracy or attempt) affected or where the acts took place. Davis’ acts would have affected commerce in the Southern District because the target of the robbery was a large-scale drug dealer who acquired drugs from out of state and sold them to customers in the Bronx. Davis had previously robbed persons dealing drugs in the Bronx, and the Queens home of the victim here was close to the Bronx. At a minimum, the effect on commerce in the Bronx was reasonably foreseeable to Davis.
In addition, Davis purposefully took steps in the Southern District to advance the robbery, and those steps were not merely preparatory. When Davis arrived in Elmont to commit the robbery, he unexpectedly found that the other members of his crew were not there. This prompted him to call an associate in the Bronx and ask her to come to Queens o find backup. That associate then called others in the Bronx in an effort to help him, acts that are “fairly chargeable to Davis” for purposes of venue.