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Wisconsin venue is OK

What the court held

Case: U.S. v. Muhammad, No. 05-4717

Issues: Is venue for a drug trafficking charge proper in Wisconsin, even though the drugs never arrived in Wisconsin?

Holdings: Yes. Where the defendant is charged with attempt to possess in Wisconsin, rather than possession itself, venue is proper.

The fact that the drugs never arrived in Wisconsin is no bar to a drug trafficking prosecution in Wisconsin, under a Sept. 14 decision from the Seventh Circuit.

Bilal Muhammad and an associate, James Willis, took a bus from Milwaukee to Arizona. During the trip, Muhammad’s bag was searched. After arriving in Arizona, he made arrangements for Linda and Tanya Juarez to fly from Milwaukee to Arizona, under the guise of helping Linda’s aspirations as a clothing designer.

After the Juarez sisters arrived, Muhammad rented two cars, and four persons proceeded to drive to Milwaukee: the Juarez sisters in the front car, and Muhammad and Willis in the second.

The Juarez sisters were stopped by police in Texas, and Tanya consented to a search of the vehicle, which led to the discovery of three kilograms of cocaine in a suitcase in the trunk.

Muhammad called his attorney after the Juarez sisters were stopped, and continued driving to Oklahoma City. From there, Willis took a bus back to Milwaukee, and Muhammad took a plane.

Charged in Wisconsin

Muhammad was charged in the Eastern District of Wisconsin with attempt to possess and distribute cocaine, and persuading another person to hinder the communication of information to a law enforcement officer.

Muhammad challenged the venue of the case in Wisconsin, but District Court Judge Rudolph T. Randa denied the challenge. Muhammad also requested that the jury be instructed on venue, but that request was also denied.

Muhammad was convicted, and he appealed, but the Seventh Circuit affirmed in a decision by Judge Kenneth F. Ripple.

The court concluded that venue in Wisconsin violated neither the Constitution, nor Fed. R. Crim. P. 18, which provides that “the prosecution shall be had in a district in which the offense was committed.”

Key to its decision was that Muhammad was not charged with possessing the cocaine in Wisconsin, but with attempting to possess it in Wisconsin. Once a defendant takes a substantial act to further the underlying criminal offense, the criminal attempt is completed. Thus, it did not matter that the cocaine itself never made it to Wisconsin.

Justification of Venue

The court found that the sole effect of Muhammad’s actions would have been in the Eastern District of Wisconsin had the crime been completed, observing, “Had it not been for the intervention of the state trooper, Mr. Muhammad’s plan would have brought him and his cocaine to Wisconsin, ready for distribution.”

The court distinguished its holding in U.S. v. Tingle, 183 F.3d 719 (7th Cir. 1999), in which the defendant was charged with distribution of cocaine, but the government failed to demonstrate that any activity occurred in Wisconsin. In contrast, in the case at bar, Muhammad was only charged with attempt.

The court also concluded that it was not error for the district court to refuse to submit the issue of venue to the jury.

Where a judge denies a motion to dismiss for lack of venue, the issue becomes one for the jury, but only if the defendant raises a genuine issue of material fact regarding venue.

The court concluded that Muhammad failed to raise a genuine issue of fact.

The only evidence he presented that the cocaine was not headed to Wisconsin was that his agreement with the car rental company provided that the car was to be returned in Phoenix, rather than Milwaukee, and by a date that precluded a round trip between the cities.

However, the court found this evidence weak, noting that Muhammad had no problems when he actually returned his vehicle in O
klahoma City, despite the designation of Phoenix. Given the overwhelming evidence of guilt, the court concluded that, even if it was error not to submit the venue question to the jury, the error was harmless.

Seeking Counsel

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Case Analysis

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Before concluding, the court addressed whether it was error for the court to allow the jury to hear that Muhammad contacted an attorney after the Juarez sisters were stopped by the trooper. Muhammad did not object at trial, so the court reviewed for plain error.

In Jenkins v. Anderson, 447 U.S. 231 (1980), the U.S. Supreme Court held that it does not violate the Fifth Amendment to impeach a defendant with his silence or invocation of his right to counsel, but reserved the question whether it could be used as substantive evidence of guilt.

The Seventh Circuit has since held that pre-arrest silence may not be used as substantive evidence of guilt. U.S. ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987).

In the case at bar, the question was whether pre-arrest consultation with counsel, like pre-arrest silence, falls within the ambit of the right against self-incrimination.

However, the court determined it need not resolve the answer, because even if admission of the calls was error, it is not plain error, given the absence of any binding precedent on the issue.

Accordingly, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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