Conviction on Substantive Offense Vacated on Venue Grounds, But Conspiracy Conviction Stands

US v. Foy, -- F.3d --, 2011 WL 1957680 (10th Cir. 5/23/11) (KS) - conviction on attempt to possess with intent to distribute cocaine is vacated because of gov't failure to establish that Mr. Foy committed any act which constituted a substantial step toward commission of the substantive offense in Kansas. While venue in Kansas was proper re: conspiracy, because of co-conspirators' overt acts in furtherance of the conspiracy in Kansas, imputation was not proper to establish venue for the attempt charge since it does not require concerted activity.

The district court correctly denied suppression of wiretap evidence. Although the wiretap applications misstated the source of the source of the authority to file them, they were authorized by an executive official with the power to do so and so did not subvert the primary purposes of the wiretap statute's authorization requirement. The affidavits in support of the wiretap applications were sufficient to support the district judge's conclusion that the wiretaps were necessary.

Because Mr. Foy did not argue insufficiency of evidence of conspiracy in his motion for judgment of acquittal, his sufficiency of the evidence claim is reviewed for plain error only. The jury reasonably inferred that Mr. Foy and his co-defendant were dependent upon each other in their drug trafficking endeavors and the interdependence evidence was adequate to sustain his Mr. Foy's conspiracy conviction.