The Second Circuit held yesterday that venue in the SDNY was proper for defendants charged with a narcotics conspiracy that operated in the U.S. Virgin Islands and Florida. The only meaningful link to the SDNY was that, after arrest, a co-conspirator was transported to Manhattan and, at the behest of government agents, called some of his co-conspirators to inform them that he was “in New York.” See United States v. Tank Yuk et al., No. 15-131 (2d Cir. 2018) (Chin, Carney, Forrest (SDNY)) (appeal from Nathan, J., SDNY). Judge Chin wrote a short dissent that shows not only the peculiarity of this holding, but also how it expands the government’s power to charge defendants in any district they choose. The opinion—which also rejects Brady, sufficiency-of-the-evidence, Napue, and Guidelines claims—is available here.
The defendants in Tang Yuk were charged with a conspiracy involving the shipment of cocaine from the U.S. Virgin Islands to Miami. Defendant Gary Thomas, of St. Croix, asked an acquaintance in Florida, Deryck Jackson to help transport the cocaine. Jackson received the cocaine in Miami and delivered it to defendant Felix Parilla. Once the cocaine was shipped, Parilla took 57 kilograms of cocaine and let Jackson keep 27 kilograms to sell on consignment. Against Thomas’s express instructions, Jackson gave defendant Tang Yuk two kilograms of the cocaine to sell. Unbeknownst to anyone of the defendants, Jackson left Miami and drove to Queens, crossing the Verrazano Bridge as he entered the city. (The SDNY and the EDNY share jurisdiction over the the Verrazano.) Jackson was arrested in a hotel in Queens (in the EDNY), agreed to cooperate, and was brought by agents to a court building in Manhattan. There, at the agents’ behest, he called both Tang Yuk and Thomas, telling each of them (at the agents’ instructions) that he was “in New York.” Neither of these defendants had asked about Jackson’s whereabouts, and Jackson did not make such a call to Parilla.
These facts, the panel held, were sufficient to establish venue in the SDNY for each of the defendants (Thomas, Parilla, and Tang Yuk). If a federal statute does not specify how to determine where an offense was committed, courts must look to the conduct elements of the offense and determine whether any acts constituting the offense occurred within the relevant district. See slip op. at 10-11. When conspiracy is charged, venue is proper “‘in any district in which an overt act in furtherance of the conspiracy'” occurs, “so long as the act was performed (1) ‘by any conspirator,’ and (2) was undertaken ‘(2) for the purpose of accomplishing the objectives of the conspiracy.'” Id. at 11 (quoting United States v. Tzolov, 642 F.3d 314, 319-20 (2d Cir. 2011)). The Second Circuit imposes an additional restriction, holding that in conspiracy cases venue is only proper if it was “‘reasonably foreseeable'” to each defendant charged with the conspiracy that a qualifying act would occur in the district.” Id. (quoting United States v. Rommy, 506 F.3d 108, 123 (2d Cir. 2007).
Somewhat amazingly, the panel determined there was sufficient evidence for the jury to find that it was “reasonably foreseeable” to the defendants in this case that an overt act in furtherance of the conspiracy might occur in the SDNY. The panel rejected the government’s argument that it was reasonably foreseeable that Jackson would cross the Verrazano Bridge on his way to Queens. It determined, however, that (1) under Rommy, 506 F.3d at 122-23, for venue purposes a co-conspirator’s calls made at the direction of a law enforcement officer can constitute an overt act in furtherance of the conspiracy; (2) Jackson’s calls were in furtherance of the conspiracy because they concerned the transportation of cocaine to its final point of sale; and (3) Jackson’s calls telling co-conspirators that he was “in New York” made it reasonably foreseeable to each of the co-conspirators (including the one he didn’t call!) that he was somewhere in Manhattan or another part of the SDNY.
Judge Chin, in dissent, took issue with the second and third of these conclusions. As Judge Chin explains, there is no evidence that the defendants knew Jackson would travel to New York to sell his share of the cocaine. To the contrary, the defendants were annoyed at Jackson for disappearing without telling them of his plans. What’s more, the calls were “entirely contrived by the government.” Dissenting op. at 8. There was no evidence suggesting that Jackson would have gone into the SDNY, or would have called the defendants to advise them that he was in “New York,” absent government intervention. Id. Even if Jackson’s calls were in furtherance of the conspiracy, it would be purely speculative for the jury to infer that, based on Jackson’s statements that he was in “New York,” the St. Croix- and Miami-based defendants would assume he traveled to the SDNY.
As Judge Chin explains, the panel’s reasoning would permit the Government establish venue anywhere by arresting a co-conspirator, transporting them to the government’s district of choice, and pressuring them to call their co-conspirators to share his whereabouts. For example, the Government could have flown Jackson “to South Dakota and instructed him to make the same phone calls, saying ‘I’m in South Dakota.'” Id. at 12. Such a conclusion seems to violate constitutional safeguards, but follows inevitably from the panel’s holding.