United States v. Sitzmann

74 F.Supp.3d 96

United States of America

v.Gregory Joel Sitzmann, Defendant.

Criminal No. 08–0242 PLF

United States District Court, District of Columbia.

Signed November 18, 2014

George Peter Eliopoulos, Sharad S. Khandelwal, U.S. Attorney's Office, Washington, DC, for United States of America.

Thomas Abbenante, Thomas Abbenante, Esq., Washington, DC, for Defendant.

OPINION AND ORDER

PAUL L. FRIEDMAN, United States District Judge

After a 23–day jury trial in April and May 2012, defendant Gregory Joel Sitzmann was found guilty on a single count of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846. The government alleged that from at least the 1990s to at least 2004, Mr. Sitzmann conspired with numerous other individuals to distribute large quantities of cocaine in a smuggling operation that spanned the United States, Mexico, Canada, Colombia, the Bahamas, Spain, France, Italy, and elsewhere.See Indictment at 1 (Aug. 7, 2008); Third Amended Bill of Particulars (Aug. 11, 2011). Mr. Sitzmann has now moved for judgment of acquittal or, in the alternative, for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. For the reasons explained below, the Court will deny his motion.

I. LEGAL STANDARDS

Under Rule 29 of the Federal Rules of Criminal Procedure, the Court must enter a judgment of acquittal on any offense charged for which the evidence is insufficient to sustain a conviction. United States v. Williams, 825 F.Supp.2d 128, 132 (D.D.C.2011). In ruling on a motion for judgment of acquittal, the Court must “ ‘consider[ ] the evidence in the light most favorable to the government and determin[e] whether, so read, it is sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Kayode, 254 F.3d 204, 212 (D.C.Cir.2001) (quoting United States v. Harrington, 108 F.3d 1460, 1464 (D.C.Cir.1997) ). The Court must “accord[ ] the government the benefit of all legitimate inferences,” United States v. Weisz, 718 F.2d 413, 437 (D.C.Cir.1983), and accept the jury's verdict of guilt if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Arrington, 309 F.3d 40, 48 (D.C.Cir.2002) (emphasis in original) (quotations omitted). Put another way, the Court may grant a motion for judgment of acquittal only where “a reasonable juror must necessarily have had a reasonable doubt as to the defendant['s] guilt.” United States v. Weisz, 718 F.2d at 437 (emphasis in original).

Rule 33(a) of the Federal Rules of Criminal Procedure provides that “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “[A]ny error sufficient to require a reversal on appeal is an adequate ground for granting a new trial.” 3 Charles Alan Wright & Sarah N. Welling, Federal Practice & Procedure § 589, at 547 (4th ed. 2011). A new trial should be granted only if the defendant has shown that “the error was substantial, not harmless, and that the error affected the defendant's substantial rights.” United States v. Williams, 825 F.Supp.2d at 132 (quoting United States v. Safavian, 644 F.Supp.2d 1, 8 (D.D.C.2009) ). Whether to grant a motion for a new trial is “a decision committed to the Court's sound discretion.” Id. (quoting United States v. Neill, 964 F.Supp. 438, 441 (D.D.C.1997) ).

II. MOTION FOR JUDGMENT OF ACQUITTAL

A. Failure to Prove Venue

Mr. Sitzmann maintains that he is entitled to a judgment of acquittal because the government failed to prove that venue was proper in the District of Columbia.

“The Government bears the burden of establishing by a preponderance of the evidence that venue is proper with respect to each count charged against the defendant.” United States v. Morgan, 393 F.3d 192, 195 (D.C.Cir.2004) (citing United States v. Haire, 371 F.3d 833, 837 (D.C.Cir.2004), vacated on other grounds, 543 U.S. 1109, 125 S.Ct. 1014, 160 L.Ed.2d 1038 (2005) ); see United States v. Auernheimer, 748 F.3d 525, 533 (3d Cir.2014). Proper venue in criminal proceedings is no mere technicality, having been “a matter of concern to the Nation's founders.” United States v. Morgan, 393 F.3d at 195 (quoting United States v. Cabrales, 524 U.S. 1, 6, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998) ). “Indeed, the Constitution ‘twice safeguards the defendant's venue right: Article III, § 2, cl. 3, instructs that Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed’; the Sixth Amendment calls for trial ‘by an impartial jury of the State and district wherein the crime shall have been committed.’ ” Id. (quoting United States v. Cabrales, 524 U.S. at 6, 118 S.Ct. 1772 ); see United States v. Cores, 356 U.S. 405, 407, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958) (“The provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.”).

Reflecting these safeguards, Rule 18 of the Federal Rules of Criminal Procedure provides that, unless otherwise permitted by statute or the Rules, “the government must prosecute an offense in a district where the offense was committed.” Fed. R. Crim. P. 18. Where, as here, the statute proscribing the offense does not contain an express venue provision, “ ‘[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.’ ” United States v. Morgan, 393 F.3d at 196 (quoting United States v. Cabrales, 524 U.S. at 6–7, 118 S.Ct. 1772 ). In a conspiracy prosecution, “venue is proper in any jurisdiction where any co-conspirator committed an overt act in furtherance of the conspiracy.” United States v. Watson, 717 F.3d 196, 198 (D.C.Cir.2013) (citing United States v. Brodie, 524 F.3d 259, 273 (D.C.Cir.2008), and 18 U.S.C. § 3237(a) ); see Whitfield v. United States, 543 U.S. 209, 218, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (“[T]his Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense.”) (citing United States v. Socony–Vacuum Oil Co., 310 U.S. 150, 252, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) ); United States v. Fahnbulleh, 752 F.3d 470, 477 (D.C.Cir.2014) ; United States v. Lam Kwong–Wah, 924 F.2d 298, 301 (D.C.Cir.1991). “In determining whether the government has properly established venue, a reviewing court must view the evidence in the light most favorable to the government.” United States v. Lam Kwong–Wah, 924 F.2d at 301.

The conspiracy with which Mr. Sitzmann was charged was alleged to have been carried out in numerous states and other nations. But the only connection between this conspiracy and the District of Columbia was a single wire transfer made by one of Mr. Sitzmann's co-conspirators, George Jones, to an individual named Terrence Colligan, who was posing as a fellow co-conspirator. Mr. Colligan, who had agreed to supply 16 kilograms of cocaine to Mr. Jones in Florida, telephoned him there and requested that Jones wire money to Washington, D.C. to facilitate Colligan's travels. In reality, Colligan had become a government informant, and the wire transfer was a ruse orchestrated by law enforcement in part to establish venue in this jurisdiction. Mr. Sitzmann contends that there is insufficient evidence that the Jones wire transfer was part of any conspiracy to which he, Sitzmann, was a party.

Given the centrality of this wire transfer in establishing venue, a little more detail is necessary. The United States Attorney's Office for the District of Columbia, together with agents from U.S. Immigration and Customs Enforcement (“ICE”), began investigating Mr. Jones based on information that they learned from their informant, Mr. Colligan. Their purpose in investigating Jones was largely to gather more evidence on Sitzmann. As they were told by Colligan, and as evidence later introduced at trial showed, Jones served as a driver for Sitzmann in the late 1990s, ferrying cocaine from the United States into Canada. As part of its investigation, the government arranged a series of secretly recorded telephone calls between Mr. Colligan and Mr. Jones. At the time, Jones was located in Florida, while Colligan was in the Washington, D.C. area. Mr. Colligan also traveled to Jones' house in Florida in early March 2004 and made body-wire recordings of conversations between the two men. Through these various conversations, the government learned that Mr. Jones was interested in obtaining cocaine to pass on to buyers. Eventually, Jones and Colligan agreed that Colligan would travel from Washington, D.C. to Florida to supply Mr. Jones with 16 kilograms of cocaine. The government intended to supply Colligan with “sham cocaine” as part of a sting and arrest Jones when the transaction was completed. Trial Tr. (4/30/12) at 7–34.

In a March 19, 2004 recorded telephone call, Mr. Colligan asked Mr. Jones to wire $1,000 to him in Washington, D.C. to facilitate his travel to Florida to deliver the cocaine. See Gov't Trial Ex. 40, Tape C1; id. Tape C2. The government had a two-fold purpose in instigating this wire transfer. First, it wanted “to see some good faith from Jones,” who had backed out of an earlier drug transaction. Trial Tr. (4/30/12) at 80. Second, and more relevant here, because prosecutors in Florida had shown no interest in investigating Mr. Jones or Mr. Sitzmann, the government conceived of the wire transfer to the District of Columbia as a way of establishing venue in Washington, D.C., based on the principle that venue in a conspiracy case lies in any district where an overt act in furtherance of the conspiracy is committed by any co-conspirator. Id. at 87; Hr'g Tr. (8/16/11) at 55.¹ In response to Colligan's...