Second Circuit Holds Government Can Establish Venue By Directing Cooperator to Place Calls to Co-Conspirators From That District
In United States v. Tank Yuk, et al., 15-131 (March 15, 2018), the Second Circuit (Chin (dissenting), Carney, Forrest, sitting by designation) affirmed the convictions of three defendants in a drug trafficking conspiracy who were prosecuted and convicted by a jury in the U.S. District Court for the Southern District of New York, despite the fact that the bulk of defendants’ criminal activities took place in the U.S. Virgin Islands and Florida. The central issue on appeal was whether venue was proper in the S.D.N.Y.; the majority held that it was, but Judge Chin dissented, concluding that it was not foreseeable to the defendants that an act in furtherance of the conspiracy would occur in the S.D.N.Y.
The defendants here, Kirk Tang Yuk, Felix Parilla, and Gary Thomas, are residents of St. Croix and Florida. A fourth co-conspirator, Deryk Jackson, is a Florida resident. In the summer of 2012, Thomas enlisted Jackson’s help in a conspiracy to transport cocaine from St. Croix to Florida, and to then work with Parilla, Thomas’s contact in Florida, to sell the cocaine. After the 80 kilograms of cocaine arrived in Florida, Parilla took 53 kilograms and Jackson kept the remaining 27 kilograms to sell. Unbeknownst to the others, Jackson gave two of his kilograms to Tang Yuk to sell.
Jackson promptly left Florida to drive to New York City, where he intended to sell the remaining 25 kilograms of cocaine to an associate in Queens. Jackson later acknowledged that his co-conspirators did not know that he intended to travel to New York City to sell his share of the cocaine. Jackson arrived in Queens by driving over the Verrazano-Narrows Bridge connecting Staten Island and Brooklyn. That evening, Jackson was arrested at the hotel in Queens where he had checked in and delivered the drugs to his associate, and was brought by law enforcement to Manhattan.
Jackson agreed to cooperate with the Government and over the ensuing weeks, at the Government’s direction, he made recorded calls to Tang Yuk and Thomas from Manhattan. During a call with Tang Yuk, Jackson said that he was “in New York . . . . trying to wrap up and come back down,” to which Tang Yuk responded, “Do your thing, man.” During a call with Thomas, Jackson told him, “I ain’t telling you where I was, but I’m telling you now. I’m in New York.” Thomas, apparently concerned that Jackson had absconded with the drugs, later sent Jackson a threatening text message, warning, “You need to deal with [Parilla] now, it’s about to get ugly.” Jackson responded that he was “on [his] way back down.”
Tang Yuk, Thomas, and Parilla were arrested several months later. All three were convicted by a jury in the S.D.N.Y. of one count of conspiracy to distribute and possess with intent to distribute cocaine. Among other arguments challenging their convictions, all three defendants argued on appeal that venue did not properly lie in the S.D.N.Y.
Federal Rule of Criminal Procedure 18
Federal Rule of Criminal Procedure 18 requires the government to “prosecute an offense in a district where the offense was committed. Where the relevant federal statute defining an offense does not specify how to determine where the offense was committed, then it “must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” When the crime involves a conspiracy, venue is proper in “any district in which an overt act in furtherance of the conspiracy was committed,” as long as the act was performed by a conspirator in furtherance of the objectives of the conspiracy. United States v. Tzolov, 642 F.3d 314, 319-20 (2d Cir. 2011). In addition, in the Second Circuit, venue is only proper if it was “reasonably foreseeable” to the defendant that such a qualifying overt act would occur in that district. Venue needs to be proved only by a preponderance of the evidence, whereas the elements of the offense need to be proved beyond a reasonable doubt. See United States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012).
The Majority Decision
The majority easily concluded that there was sufficient evidence that Jackson—a member of the conspiracy—committed an overt act in the S.D.N.Y. The majority relied on the fact that Jackson transported cocaine over the Verrazano-Narrows Bridge.[i] This bridge passes over a narrow channel between Brooklyn and Staten Island appropriately known as “the Narrows,” a body of water which is within the joint jurisdiction of the Southern District of New York and the Eastern District of New York. (Brooklyn and Queens are, of course, within the E.D.N.Y.).
The more difficult question was whether Jackson’s overt act in the S.D.N.Y. was reasonably foreseeable to the defendants, who did not even know that Jackson intended to travel to New York to distribute his share of the drugs. The majority rejected a number of the Government’s arguments. For example, the Court disagreed that Jackson’s drive over the Narrows was “reasonably foreseeable” to the three trial defendants because of Jackson’s family ties in Pennsylvania and New Jersey—there was no evidence that the defendants would even know this fact.
The Court looked separately at the facts with respect to each defendant, but came to the same conclusion as to each. The jury had a sufficient basis to find that Thomas communicated with Jackson to further the conspiracy while knowing that Jackson was in New York. Tang Yuk had a similar phone call in which he told Jackson to “do his thing,” a “thing” that Tang Yuk would have understood was happening in New York. Finally, although Jackson never spoke directly with Parilla, the majority found that the jury could have reasonably inferred that Thomas—who did speak with Jackson—had told Parilla about Jackson’s whereabouts, based upon the threat that Jackson would have to “deal with” Parilla as a result of his absence. It was also reasonable to infer that Parilla was using Jackson to threaten Thomas, and thereby himself furthering the goals of the conspiracy while knowing that Jackson was in New York.
The majority acknowledged that the question was a close one, and that it raised concerns about potential government overreach. But citing the Second Circuit’s decision in United States v. Rommy, 506 F.3d 108 (2d. Cir 2007)[ii], the Court found that the defendants were made aware that Jackson had traveled to New York and that he was committing acts in furtherance of the drug conspiracy—i.e., selling his share of the cocaine—while there. Although the calls themselves were short on details and relayed little more than the fact that Jackson was in “New York” and that he was trying to “wrap up and come back down,” the jury could nonetheless have reasonably inferred that the defendants understood this to mean that he was completing the sale of drugs in New York and would return when he had finished. Furthermore, the jury could reasonably interpret the phone calls as efforts by the defendants to themselves further the efforts of the conspiracy, all while knowing that Jackson was in New York.
The majority also rejected the defendants’ various other challenges to their convictions and Guidelines calculations.[iii]
Judge Chin’s Dissent
Judge Chin dissented on the ground that venue as to these three defendants did not properly lie in S.D.N.Y., as none of them traveled to New York or sent any drugs there to be sold. In Judge Chin’s view, neither Jackson’s drive across the Verrazano Bridge nor his phone calls from Manhattan were sufficient to establish venue as to the defendants, because there was insufficient evidence that Jackson’s conduct in taking the conspiracy to New York was reasonably foreseeable to them.
With respect to the phone calls—which was the basis relied upon by the majority—Judge Chin first noted his skepticism that these calls were in furtherance of the conspiracy, since Jackson had already been arrested by this point. Furthermore, Judge Chin noted, the defendants had no reason to know that Jackson was calling them from the Southern District of New York, since he referred only to “New York” during his calls with defendants.[iv] A conclusion to the contrary, Judge Chin asserted, is based not on the evidence but on speculation. And with respect to Parilla the evidence was especially speculative, as there was nothing showing that the coconspirators informed Parilla that Jackson was in New York at all.
More fundamentally, though, Judge Chin was troubled by the fact that the basis for venue was entirely contrived by the Government, which brought Jackson to Manhattan and instructed him to make calls to his co-conspirators and to specifically mention that he was in New York. Jackson went to Queens to sell cocaine and, absent the Government’s actions intended to establish venue in the S.D.N.Y., none would exist there. In Rommy by contrast, the defendants had chosen New York as the destination for smuggling certain drugs.[v]
This decision takes its place as one of a long series of cases in which tenuous connections to the Southern District are treated as sufficient for venue. For example, in United States v. Ramirez‐Amaya, 812 F.2d 813 (2d Cir. 1987), the Circuit affirmed a substantive narcotics importation count even though the drugs were flown into LaGuardia Airport, which is located in the Eastern District. What was the basis for this holding? “[T]he course of the flight carried the airplane over the Narrows, a body of water that lies within the joint jurisdiction of the Southern and Eastern Districts of New York.” Id. at 816. Moreover, the fact that venue needs only to be proved by a preponderance of the evidence further complicates venue arguments for the defense.
The majority takes care to treat the outcome here as dictated by the holding in Rommy, although it does seem to expand upon that decision, as there was more evidence in the record in Rommy about the defendants’ intention to impact the Southern District. The majority’s holding seems like it would allow the Government to establish venue simply by moving a defendant into a district and directing him to place calls to co-conspirators from that district that mention, even if in broad terms, where the conspirator (now a cooperator) is located. This is the aspect of the ruling with which Judge Chin appears to be uncomfortable: none of the conspirators here—not even Jackson, before his arrest—deliberately or willingly chose the S.D.N.Y. as the venue in which it would commit an overt act in furtherance of the conspiracy. The Circuit has held in the past that the venue requirement requires “some sense of venue having been freely chosen by the defendant.” United States v. Davis, 689 F.3d 179, 186 (2d Cir. 2012). Here, the facts leave the reader with the impression that venue was chosen not by the defendants but by the arresting agents who decided to call the Narcotics Unit in the Southern District rather than in the Eastern District. One hopes that this is at the outer boundary of the Circuit’s willingness to accept long-shot venue arguments from the Government.
[i] The bridge is named for the Italian explorer Giovanni da Verrazzano, one of the first European explorers to visit New York harbor (Henry Hudson, for whom the river is named, did not explore this area until 1609). Verrazzano mistakenly believed that the entrance to the Hudson River was a lake.
[ii] In Rommy, the Second Circuit held 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.” 506 F.3d at 122.
[iii] The Court affirmed on a host of other issues, including drug quantity and other Guidelines enhancements, suppression of evidence, evidence of witness intimidation, Brady/Giglio, improper jury argument, and witness perjury. The dissent by Judge Chin did not extend to these issues but only addressed venue.
[iv] In addressing Judge Chin’s skepticism on this point, the majority, perhaps betraying some Manhattan bias, reasoned that the phrase “New York” commonly refers to “the metropolis that includes portions of both the Southern and Eastern District of New York.” While Brooklyn has in recent years made something of a cultural resurgence, it is hard to disagree with the majority on this point that the phrase “New York” is more often used in reference to Manhattan than in reference to the other four boroughs. At the same time, we note that the majority panelists grew up in Massachusetts and Connecticut, while Judge Chin grew up in New York and is a graduate of Stuyvesant High School.
[v] Indeed, the co-conspirator in Rommy made a call to the defendant to notify him that he had made contact with a friend in New York who could assist with smuggling drugs, and specifically stated during that call that he was looking at the site of the recently collapsed World Trade Center, making it clear that he was in Manhattan, i.e., the S.D.N.Y