about March 20, 1993 and the time of the indictment. At trial, the Government introduced into evidence a fingerprint card, G. Ex. 5, bearing the defendant's signature which was prepared when the defendant was taken into federal custody on July 19, 1994. Tr. 93-95. There are two pieces of information contained on the card that constitute sufficient evidence that the defendant violated § 1326 within the Southern District as charged in the indictment.
The portion of the card entitled "RESIDENCE OF PERSON FINGERPRINTED," reads "783 - FOX ST APT SF BRONX NY." The Bronx is within the Southern District of New York. See 28 U.S.C. § 112. This statement on the fingerprint card is sufficient evidence to support a reasonable inference that the defendant was in the Southern District of New York prior to being taken into the custody of the New York City Department of Correction on March 20, 1993. It was normal procedure to take biographic information at the time the fingerprint card was prepared. Tr. 94. A reasonable person would infer that the defendant gave the authorities the address on the card at the time that he was taken into federal custody and that he had been present at his residence after reentering the country and prior to being taken into custody by the New York Department of Correction. Therefore, there was sufficient evidence that he violated § 1326 within the Southern District of New York.
In United States v. Panebianco, 543 F.2d 447 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S. Ct. 1128, 51 L. Ed. 2d 553 (1977), the Court of Appeals for the Second Circuit held that the prosecution had presented sufficient evidence of venue to support the conviction of one of the defendants. In that case, the prosecution could establish venue in the Southern District by proving that the defendant had stored heroin in the Bronx. The court of appeals held that evidence that the defendant lived in the Bronx and that he and his brother used the Bronx in their narcotics operation provided a sufficient basis of circumstantial evidence for the jury to draw the inference that the defendant had stored heroin in the Bronx. Panebianco, 543 F.2d at 455. In this case, evidence showing that the defendant resided in the Southern District of New York prior to his apprehension on March 20, 1993 is sufficient evidence that the defendant violated § 1326 within the Southern District of New York as charged in the indictment.
In addition, the fingerprint card indicates that the "contributor" was "USM NEW YORK, NY." The Government's witness, Senior Special Agent Hittelman of the INS, testified that the fingerprints on the card were taken by a United States Marshal. Tr. 93-95. A fair inference is that "USM NEW YORK, NY" refers to the U.S. Marshal in New York, N.Y. -- particularly since Agent Hittelman identified a specific U.S. Marshal who took the prints when the fingerprint card was generated -- and that the defendant therefore was taken into federal custody in New York, N.Y. Tr. 94.
The defendant responds that it is not clear that "New York, N.Y." refers to Manhattan, which is in the Southern District of New York, rather than a borough such as Queens which is not in the Southern District of New York. See 28 U.S.C. § 112. But, the Government correctly argues that "New York, N.Y.," commonly refers to Manhattan, and the other boroughs are commonly specifically identified. This is particularly true in the context of the fingerprint card which did specifically identify "Bronx, N.Y." as the defendant's residence. The fair inference from the evidence is that the defendant was taken into federal custody in Manhattan, in the Southern District of New York.
For the foregoing reasons, the Court concludes that the Government introduced sufficient evidence that the defendant violated § 1326 in the Southern District of New York as charged in the indictment. The defendant's motion for a judgment of acquittal is therefore denied.
Dated: New York, New York
May 12, 1995
John g. Koeltl
United States District Judge