Sunday, November 18th, 2007

Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin – although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of venue. The court charged the jury that if it found that, after the conspiracy was formed, “a telephone call in furtherance of the conspiracy was made to a location in the [district] that would be sufficient, … even if the call was made to an undercover agent or some other nonconspirator.” During deliberations, the jury sent the court a note asking if venue could be proved by a call from the agent to Rommy. The court answered in the affirmative – as long as the conspiracy was already formed and the call furthered it. The court also instructed that venue could be established if nonconspirator made the call, again, as long as the call was induced by the conspiracy or furthered it.

On appeal, the court upheld the instruction, a question of first impression here, agreeing with the First and Seventh Circuits that “a telephone call placed by a government actor within a district to a conspirator outside the district can establish venue within the district provided the conspirator uses the call to further the conspiracy.” In fact, the court stressed, who placed the call, just like its direction, is irrelevant. What matters is whether the conspirator used the telephone call to further the objectives of the conspiracy. By doing so, he “effectively propels not only his voice but the scheme itself beyond his own physical location into that of the person with whom he is speaking.”

The court also held that Rommy did not need to have actual knowledge that the call affected this district; reasonable foreseeability is sufficient.

This decision leaves open the somewhat mythical defense of “manufactured venue.” The defense arises from a footnote in a 1982 case, but the court has never actually applied it. Although two other courts have outright rejected it, and one more has questioned it, here the court did not weigh in because the “evidence clearly does not support its application to this case.”

Rommy’s case also contains an interesting discussion of evidence obtained in a foreign country through the Mutual Legal Assistance Treaty (“MLAT”) between the United States and the Netherlands. Like his venue claim, this issue was ultimately unavailing for Rommy: the actions complained of did not violate U.S. law, and the treaty does not create “any judicially enforceable individual right that could be implicated by the government’s conduct here.”

Lastly, Rommy claimed that his interview with a DEA agent while Rommy was in prison in Spain violated the Fifth and Sixth Amendments. But here there was no Miranda issue because Rommy’s statements were voluntary, and thus the interview did not constitute “interrogation.” His Sixth Amendment claim was a closer call; he was interviewed after having been indicted, and did not expressly waive counsel. The court ducked the issue by characterizing the interview as “a meeting that [Rommy] had requested with persons he knew were law enforcement officers [where he] was asked a few neutral follow-up questions in the course of a lengthy volunteered statement.” It held that, even if these “follow-up” questions violated the Sixth Amendment, any error in admitting Rommy’s statement was harmless.

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