The opinion of the court was delivered by: KORMAN
The defendant, Michael Hart-Williams, is a Nigerian citizen who was charged with and convicted of conspiracy to import heroin for eventual distribution in the New York City metropolitan area. The principal witness, Victor Moni-Erigbali, was a cooperating co-conspirator who testified that after he received a package containing heroin, he was advised by another co-conspirator who resided in England, Greg Unanseru, that defendant would soon contact him regarding delivery of the package. Shortly thereafter the defendant arrived at Kennedy Airport, checked into the Best Western Midway Hotel in Queens, and called Moni-Erigbali's beeper. Moni-Erigbali then called the defendant at the Best Western. During this call they made no formal arrangements to meet, although they agreed that Moni-Erigbali would call again soon with such details.
Later that day, in another telephone call to the defendant at the Best Western, Moni-Erigbali suggested a meeting at Pennsylvania Station in Newark, New Jersey. After the meeting, Moni-Erigbali drove defendant to a storage facility in Hillside, New Jersey, retrieved the heroin, and gave it to the defendant. Moni-Erigbali and the defendant then discussed payment and parted, agreeing to settle their accounts later.
The defendant was tried and convicted on one count of conspiring and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1)(1994). Prior to trial he moved for dismissal of the indictment, claiming that venue was improper in the Eastern District of New York. I denied this motion, although I offered to transfer the case to the Southern District pursuant to Fed. R. Crim. P. 21. See April 2, 1996, Suppression Hr'g Tr. at 61:7-12. The defendant did not respond to my offer, and the case proceeded to trial.
At trial, the defendant again argued that the United States Attorney had failed to establish venue in the Eastern District, contending that the only significant acts in furtherance of the conspiracy transpired in the Southern District and the District of New Jersey. Defendant's argument was again without merit, because the defendant arrived through Kennedy Airport and received calls at a Queens Hotel during which he and his co-conspirator plotted the delivery of the heroin -- both of which were plainly acts in furtherance of the conspiracy charged, and each of which was sufficient to establish venue in the Eastern District. See United States v. Chalarca, 95 F.3d 239, 245 (2d Cir. 1996) ("It was necessary for the government to establish only that the crime [of conspiracy], or some part of it, occurred in the [concerned] District in order to have venue there.").
At the trial's close, the defendant requested that the jury be instructed that, if it found venue was not proven by a preponderance of the evidence, it must return a verdict of not guilty. I declined to give this instruction, both because acquittal is not required when venue is improperly laid, and because there was no rational reason to submit the issue to the jury. This memorandum sets forth more fully my reasons for that decision.
The defendant's request to charge raises two issues. The first is whether a defendant is entitled to a judgment of acquittal if venue is not proven, and the second is whether a jury must decide the issue. The answer to both questions depends on whether venue is an essential element of a crime.
1. Acquittal on Venue Grounds
An instruction that a jury must acquit if there is a failure of proof on the issue of venue, 1 L. SAND, et al., MODERN FEDERAL JURY INSTRUCTIONS P3.01, at 3-25 (1996), can be justified only on the assumption that venue is an essential element of the offense. While some precedent supports this assumption -- see, e.g., United States v. Massa, 686 F.2d 526, 527 (7th Cir. 1982) -- "venue has not been treated as other essential elements", SAND, supra, at 3-26, either in the Second Circuit or elsewhere, id. at 3-26 to 3-27. On the contrary, the Second Circuit has now joined the Fourth and Ninth Circuits in flatly rejecting the proposition that venue is an essential element of an offense. See United States v. Maldonado-Rivera, 922 F.2d 934, 969 (2d Cir. 1990)(Kearse, J.), cert. denied, 501 U.S. 1211 (1991), and 501 U.S. 1233 (1991); United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1988); United States v. Griley, 814 F.2d 967, 973 (4th Cir. 1987).
In Moldonado-Rivera, which held that "venue is not an element of the offense[,]" id. at 969, Judge Kearse observed that venue provisions relate only to the issue "of the prosecution's permissible location." Id. "Since venue is not an element of the offense, the government may prove venue by a preponderance of the evidence and need not prove it beyond a reasonable doubt." United States v. Rosa, 17 F.3d 1531, 1541 (2d Cir.), cert. denied, 513 U.S. 879, 130 L. Ed. 2d 140, 115 S. Ct. 211 (1994).
As venue is not an element of a criminal offense, there is no legal basis for the request for an instruction to acquit if the jury finds that venue was not proven. An acquittal "'represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged[.]'" United States v. Scott, 437 U.S. 82, 97, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978)(alteration in original)(quoting United States v. Martin Linen Supply, 430 U.S. 564, 571, 51 L. Ed. 2d 642, 97 S. ...