Opinion
Case No. 8:01CR266
May 1, 2002
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on the Report and Recommendation prepared by Magistrate Judge Thomas D. Thalken (Filing No. 41) recommending denial of the Motion to Dismiss submitted by Defendant Erica L. Olsen (Filing No. 25) and joined in by Christopher J. Olsen (Filing Nos. 23 and 26). Following an extension of time, Erica Olsen submitted a Statement of Objection (Filing No. 45) in which Defendant Christopher J. Olsen shall be allowed to join (Filing No. 44).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which the Olsens have objected. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
Judge Thalken found that, for purposes of this motion, the parties do not dispute the following facts. On July 17, 2001, a Nebraska State Patrol Trooper made a traffic stop along Interstate 80, and the trooper arrested Ron Galvadon after a search revealed approximately 61 pounds of marijuana in Galvadon's vehicle. Galvadon cooperated with law enforcement investigators and admitted that he transported marijuana from a supplier in Arizona, Oscar Carrillo-Valenzuela, to a person in Nebraska, Jamie Cano-Carreno and from the same supplier in Arizona to the Olsens in Idaho at various times from 1998 to July 17, 2001. Galvadon also participated in a controlled sale of marijuana to the Nebraska contact, Cano-Carreno.
In one of his statements Galvadon said that a few months before his arrest in the Spring of 2001, the Olsens informed him that they would not be receiving any additional deliveries from the supplier. It is undisputed that the Olsens had never been in Nebraska until they were brought here under the Indictment. The only connection that the Olsens have to Nebraska is that the person who delivered marijuana in Nebraska also made the deliveries to Idaho. The summary of facts as set forth in the Report and Recommendation is complete and accurate, and it is adopted by the Court.
OBJECTIONS
The Olsens were charged in a one-count Indictment with conspiring with the alleged drug supplier, Carillo-Valenzuela, to distribute marijuana during the period from October 1, 1998, and continuing through July 17, 2001. The Olsens object to Judge Thalken's finding that an act in furtherance of the charged conspiracy was committed in the District of Nebraska, that the venue issue is not susceptible to pretrial determination, and that venue is proper in the District of Nebraska.
ANALYSIS
The Defendants seek an order dismissing the Indictment against them on the basis of improper venue (Filing No. 25, 26). Judge Thalken determined that, in an action based on a conspiracy theory, venue is proper in any district in which an overt act in furtherance of the conspiracy was committed by any of the co-conspirators. See Fed.R.Crim.Pro. 18 and United States v. Romero, 150 F.3d 821, 824 (8th 1998). Galvadon's transportation of marijuana in Nebraska and his participation in the controlled sale to Cano-Carreno are overt acts in furtherance of the conspiracy. Thus, Judge Thalken found that the Olsens need not have been present in the District of Nebraska for venue in this District to be proper. He noted that whether the Olsens are part of a single conspiracy or two separate conspiracies is a matter left to the proof at trial. I agree.
The United States Constitution and Rule 18 of the Federal Rules of Criminal Procedure require that a person be tried for an offense where that offense is committed. The Supreme Court has stated that:
[T]he site of a charged offense "must be determined from the nature of the crime alleged and the location of the act or acts constituting it." "Continuing offenses," the [Eighth Circuit] Court of Appeals recognized, those "begun in one district and completed in another," 18 U.S.C. § 3237(a), may be tried "`in any district in which such [an] offense was begun, continued, or completed.'"United States v. Cabrales, 524 U.S. 1, 5 (U.S. 1998) quoting United States v. Cabrales 109 F.3d 471, 474 (8th Cir. 1997) citations omitted.
The United States alleges in the Indictment that the Olsens and Galvadon are part of one conspiracy to distribute marijuana that lasted from at least October 1, 1998, through July 17, 2001. Evidence of the conspiracy includes the fact that Galvadon was stopped in Nebraska and approximately 61 pounds of marijuana seized from his vehicle. He also participated in a controlled sale of marijuana in Nebraska. "Venue is proper in a conspiracy case in any jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspirators." United States v. Bascope-Zurita, 68 F.3d 1057, 1062 (8th Cir. 1995). If the government is able to prove at trial that there was one conspiracy, then there is no question that venue is proper in the District of Nebraska.
However, if the government fails to prove that the Olsens and Carillo-Valenzuela were part of one conspiracy with Galvadon, then venue may not be proper in the District of Nebraska. For that reason, Judge Thalken found that "whether the Olsens are part of a single conspiracy with Carillo-Valenzuela or two separate conspiracies is a matter left for proof at trial." The Court agrees with this conclusion.
In United States v. Romero, 150 F.3d 821 (8th Cir. 1998), rehearing en banc denied, Eighth Circuit Court stated:
Whether the government has proven the existence of a single conspiracy or multiple conspiracies is a question of fact for the jury to decide. A single conspiracy requires one overall agreement to perform various functions to achieve the objectives of the conspiracy. One conspiracy may exist despite the involvement of multiple groups and the performance of separate acts, and conversely, an overlap of the persons involved does not necessarily prove one overall agreement. It is essential for the government to prove that the defendant had knowledge of the object of the conspiracy.Id. at 824-25. Based on Romero, the Court adopts Judge Thalken's conclusion that whether there is a single conspiracy or two separate conspiracies must be left to a jury to decide.
The Olsens also contend that the Indictment should be dismissed based on Galvadon's statement that the Olsens told him that they would not be accepting any more deliveries of marijuana after the Spring 2000 delivery. The Olsens argue that this undisputed evidence shows that they withdrew from the conspiracy before the time that Galvadon was arrested in Nebraska, and therefore, the overt acts taken in Nebraska in furtherance of the conspiracy have no bearing upon them. The Court finds that whether the Olsens withdrew from the conspiracy is also a fact question that must be determined by the jury. The Eighth Circuit Court has stated:
To withdraw effectively, the defendant must demonstrate "that he took affirmative action to defeat or disavow the purpose of the conspiracy. * * * The `[m]ere cessation of the activity in furtherance of the conspiracy does not constitute withdrawal.'United States v. Lewis, 759 F.2d 1316, 1347 (8th Cir. 1985), quoting United States v. Garrett, 720 F.2d 705, 714 (D.C. Cir. 1983).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and NELR 72.4, the Court has conducted a de novo review of the record. Because Judge Thalken fully, carefully, and correctly applied the law to the facts, the Court adopts the Report and Recommendation in its entirety.
IT IS ORDERED:
1. Defendant Christopher J. Olsen's Motion to Join in Statement of Objection (Filing No. 44) is granted;
2. Judge Thalken's Report and Recommendation (Filing No. 41) is adopted in its entirety; and
3. The Defendants' Motion to Dismiss (Filing No. 25) is denied.