Section 176a was repealed on October 27, 1970 by Pub.L. 91-513, Title III, § 1101(a). Appellee argues that the gravamen of the offense charged is smuggling, which crime was complete in San Francisco. The authority he urges most strenuously, and adopted by the district court, is United States v. Lember, 319 F. Supp. 249 (E.D.Va. 1970). In Lember the government claimed unsuccessfully that under 18 U.S.C. § 3237, transportation in foreign and interstate commerce and use of the mails rendered defendant's alleged violation of 21 U.S.C. § 176a a continuing offense.
They were anxious to reject an earlier precedent from the Eastern District of Virginia asserting that the port of entry was the proper venue per se in marijuana importation cases. See United States v. Lember, 319 F. Supp. 249 (E.D.Va. 1970). Thus, these courts held not that the proper venue for a violation of 21 U.S.C. § 952(a) is the destination intended by the defendant, but that
Id. In doing so, Congress sought to "overcome" restrictive decisions such as United States v. Lember, 319 F.Supp. 249 (E.D.Va.1970), in which the district court determined that the crime of smuggling terminates once the contraband arrived in the district of entry as opposed to the district of final destination. S. REP. No. 98-225, at 400, as reprinted in 1984 U.S.C.C.A.N. at 3538.
The cases cited by appellants to support their position inappositely involve substantive charges of smuggling. See, e. g., United States v. Lember, 319 F. Supp. 249 (E.D.Va. 1970). Also militating against appellants' position is the intimation in United States v. Peterson, 488 F.2d 645, 650 (5th Cir. 1974) that acts occurring subsequent to the consummation of a conspiracy may sustain a jury's guilty verdict if they support the inference that the defendant preordained the conspiratorial activities of a co-conspirator.
Appellants' final argument is the federal district court of Colorado lacked proper venue to try this case. They assert the offense was completed in California where the smuggling attempt was first discovered. Supporting this argument appellants rely on United States v. Lember, 319 F. Supp. 249 (E.D.Va. 1970), where a defendant was found to have completed the offense of smuggling marijuana at the moment his smuggled package arrived on United States' soil and was opened by customs authorities. The trial court felt the offense was complete when first discovered and thus the case could not be tried in the district where the smuggled package was subsequently delivered.
I Relying on United States v. Lember, 319 F. Supp. 249 (E.D.Va. 1970), Defendant Joe Dee Hicks argues that counts three and four of the indictment, charging him with importation of narcotics, are not continuing crimes, but were complete when the narcotics arrived ashore and were opened. He therefore claims that venue is proper only in those districts where the narcotics arrived, not in the Northern District of Texas where the alleged conspiracy to import and distribute the narcotics occurred and to which the narcotics allegedly eventually traveled.
Faulty Indictment Defendants have not yet formally raised as a defense to Counts I and II, that the alleged offenses were not committed in Hawaii but have in their memoranda keferred to United States v. Lember, 319 F. Supp. 249 (E.D.Va. 1970). In that case, Chief Judge Hoffman held that the offense of smuggling marihuana under 21 U.S.C. § 176a (the predecessor, in relevant part, to 21 U.S.C. § 960(a)(1)) was complete when the package in question arrived in the United States from Vietnam and was opened at the San Francisco Airport which was the port of entry for the parcel.