Venue Challenge Preserved by General Motion for Judgment of Acquittal; However, Evidence was Sufficient to Prove Venue in Utah
United States v. Kelly, ___ F.3d ___, 2008 WL 2972731(10th Cir. 2008)
Defendant did not waive his challenge to venue being proper in Utah–nothing on the face of the indictment alerted him to a venue issue, and it only became apparent when the government rested its case. Nor did he fail to preserve it–in generally moving for an acquittal after the government rested, a challenge to venue and all essential elements of the offense was included in the objection. PRACTICE TIP: (if he had challenged sufficiency of the evidence on a particular ground, he would have failed to preserve all other grounds except that specified).
Venue must be found by the jury, but only upon a preponderance of the evidence. The evidence was sufficient that Defendant committed the offenses in the district of Utah. Enough evidence of particular geographic locations was introduced so that a jury could infer the crime (possession of methamphetamine by D on a motorcycle) occurred in Utah. The COA took judicial notice of the named counties as being in Utah.
No plain error in district court not giving a jury instruction on venue. An instruction was included (buried) in the elements instruction. Additionally, he could not show that his rights had been affected since venue was proper in Utah.
Although the trial court erred in instructing the court reporter not to transcribe the instructions as read from the bench, the error was harmless. The district court provided a copy of the instruction it represented it had read to the jury, and that was good enough for the COA.
Defendant did not waive his challenge to venue being proper in Utah–nothing on the face of the indictment alerted him to a venue issue, and it only became apparent when the government rested its case. Nor did he fail to preserve it–in generally moving for an acquittal after the government rested, a challenge to venue and all essential elements of the offense was included in the objection. PRACTICE TIP: (if he had challenged sufficiency of the evidence on a particular ground, he would have failed to preserve all other grounds except that specified).
Venue must be found by the jury, but only upon a preponderance of the evidence. The evidence was sufficient that Defendant committed the offenses in the district of Utah. Enough evidence of particular geographic locations was introduced so that a jury could infer the crime (possession of methamphetamine by D on a motorcycle) occurred in Utah. The COA took judicial notice of the named counties as being in Utah.
No plain error in district court not giving a jury instruction on venue. An instruction was included (buried) in the elements instruction. Additionally, he could not show that his rights had been affected since venue was proper in Utah.
Although the trial court erred in instructing the court reporter not to transcribe the instructions as read from the bench, the error was harmless. The district court provided a copy of the instruction it represented it had read to the jury, and that was good enough for the COA.
posted by Anonymous at 11:38 AM
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