* District Judge of the Western District of Louisiana, sitting by designation. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 93-7187

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LONNIE CALDWELL and

JAMES PHILLIPS,

Defendants-Appellants.

___________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

____________________________________________________________ (March 4, 1994)

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and LITTLE, * District

Judge.

LITTLE, District Judge:

Defendants-appellants Lonnie Caldwell and James Phillips were

found guilty in the Northern District of Mississippi of conspiring

to distribute marijuana. The United States District Court for the

Northern District of Mississippi found that venue was not in issue

insofar as Lonnie Caldwell had made numerous tele phone calls in

furtherance of the conspiracy to the residence of a Larry Fulgham,

who lived in the Northern District of Mississippi. The appellants

appeal their convictions on ground s that the trial judge2

incorrectly ruled that venue was proper, erroneously denied

objections concerning the admissibility of a co-conspirator's

statement, and improperly denied the appellants' request for a jury

determination on the issue of venue. For the reasons that follow,

we affirm the rulings of the district court.

I.

In early December of 1990, Larry Fulgham received a telephone

call from Lonnie Caldwell. As a consequence of this conversation,

Fulgham agreed to meet Caldwell in Leesville, Louisiana, where he

was recruited into an organization that smuggled marijuana out of

Mexico and into Texas, Louisiana, Indiana, and Kentucky, among

other places. A plan was formulated whereby Caldwell would call

Fulgham at his residence in Choctaw County, located in the Northern

District o f Mississippi, and leave instructions on where Fulgham

was to go to pick up a load of marijuana. Fulgham would then

travel to the designated location, acquire the substance, and haul

it to the ultimate destination, typically Kentucky. James Phillips

participated in the organi zation by helping grow and deliver the

contraband.

The conspiracy came to an end on 6 February 1991, when Fulgham

contacted the Vicksburg, Mississippi Police Department and

confessed that he was part of a marijuana distribution business and

that he had hauled marijuana from Texas and Louisiana to Kentucky

on four or five occasions. Fulgham agreed to cooperate with law

enforcement officials in return for immunity from prosecution.3

Acting as a government inf ormant, Fulgham called Caldwell from

Mississippi numerous times in an attempt to induce Caldwell to make

a sale in Mississippi. Caldwell could not be persuaded, although

he did consent to organizing a sale in Dallas, Texas. With the

help of Fulgham, a "buy-bust" operation was conducted in Dallas, at

which time the appellants were arrested and indicted for conspiracy

to distribute and to possess wit h the intent to distribute

marijuana.

At trial, the district judge took judicial notice of the fact

that Choctaw County is located in the Nort hern District of

Mississ ippi. Evidence was presented by the government that the

phone calls placed by Caldwell to Fulgham's home in Choctaw County

were made in furtherance of the conspiracy. At the close of the

government's case, the defense moved for an acquittal. The court

denied the motion, having found that statements made by Cald well

during telephone convers ations with Fulgham were made in

furtherance of the conspiracy and were sufficient to establish

venue in the Northern District. It is in regard to these findings

that th e appellants have placed their primary reliance in the

appeal to this court.

II.

Appellant James Phillips argues that the trial court erred in

admitting into evidence tape recorded statements of co-conspirator

Lonnie Caldwell for purposes of implicating Phill ips in the

conspiracy. The court finds no merit in this contention. The4

record reveals that the district court acted wel l within its

discretion when it accepted the conversations into e vidence for

purposes of proving Phillips' involvement with the conspiracy. S ee

Bourjaily v. United States , 483 U.S. 171 (1987); United States v.

James

, 590 F.2d 575 (5th Cir.), cert. denied

, 442 U.S. 917 (1979).

Next, the ap pellants contend that the district court

improperly predicated venue on the existence of the CaldwellFulgham telephone calls. This argument is also without merit. In

cases involving conspiracy offens es, venue is proper in any

district where the agreement was formed or an overt act occurred.

United States v. Winship

, 724 F.2d 1116, 1125 (5th Cir. 1984);

United States v. Pozos , 697 F.2d 1238, 1244 (5th Cir. 1983). The

Supreme Court has upheld the application of this rule, even where

it permits trial against defendants in a district they never even

s et foot in prior to trial. S ee Hyde v. United States

, 225 U.S.

347, 362 (1912); Winship , 724 F.2d at 1125.

In this case, Larry Fulgham testified th at he received

telephone calls from Lonnie Caldwell at his residence in Choctaw

County instructing him to pick up marijuana for delivery to various

locations. This testimony was corroborated by numerous

conversations between the two men that were taped by the

government. Telephone calls to a particular destination containing

detailed pick-up and drop-off instructions are certainly overt acts

made in furtherance of the conspiracy. S ee United States v.

Nicoll

, 664 F.2d 1308, 1311 (5th Cir.), cert

. denied

, 457 U.S. 11185

(1982); United States v. Strickland

, 493 F.2d 182, 187 (5th Cir.),

cert. dismissed

, 419 U.S. 801 (1974). As such, it was not in error

for the trial judge to find venue in the district in which the

calls were received. S ee United States v. Barne s , 681 F.2d 717,

724 (11th Cir.), reh'g denied

, 694 F.2d 233 (11th Cir. 1982), cert.

denied

, 460 U.S. 1046 (1983) (dr ug trafficking crime "is

`committed' for venue purposes both in the district where the call

was made and in the district where the call was received."); s ee

also United States v. Lewis , 676 F.2d 508, 511 (11th Cir.), cert.

denied , 459 U.S. 976 (1982).

Finally, the appellants assert that the trial court's ruling

upon venue as a matter of law and corre sponding denial of the

appellants' jury instruction concerning venue constitutes

reversible error. For a third time, we disagree.

As stated by this circuit in United States v. White

, 611 F.2d

531, 536-37 (5th Cir.), cert. denied

, 446 U.S. 992 (1980), "failure

to instruct on venue is reversible error when trial testimony puts

venue in issue and the defendant requests the in struction."

(citing Green v. United States

, 309 F.2d 852, 856-57 (5th Cir.

1962)). In that case, we declined to rule that a trial court's

failure to instruct the jury on venue would constitute reversible

error in all cases. I d. at 537. Rather, the critical factor to be

analyzed in determining whet her the district court committed

reversible error is whether the testimony at trial puts venue in

issue. We use as a guide the analogous case of Winship , in which1 As we stated Winship

, 724 F.2d at 1126 n.13, "[w]hen a venue instruction is

requested, the burden of giving an instruction weighs lightly against the value of

safeguarding venue rights. The better procedure is to give the venue instruction

when requested, regardless of whether the trial court believes trial testimony has

put venue in issue." Thus, while we find the trial court's failure to instruct the

jury harmless error in this case, we reaffirm the general principle stated above.

6 the defendants' timely request for a jury instruction on venue was

denied. On appeal, this court found that the evidence of overt

acts in furtherance of a conspiracy in the Western District of

Louisiana was overwhelming. In the absence of contradictory

evidence, it was concluded that venue was not an issue within the

meaning of White and Green

. 724 F.2d at 1125. Along these same

lines, we find that the evidence presented in this case regarding

the existence of venue in the Northern District of Mississippi is

of sufficient weight to conclude that venue was not in issue. We

arrive at this determination upon reviewing the record, which

reveals that the government presented evidence indicating telephone

conversations made in furtherance of the conspiracy in the relevant

jurisdiction. There was no other testimony controverting either

the admissibility or the tru thfulness of that evidence. The

appellant's case therefore falls beyond the protection afforded by

White and Green and renders harmless the trial court's reluctance

to instruct the jury on venue. 1

III.

For the foregoing reasons, we conclude that the district court

did not err in finding the existence of a conspiracy and admitting

relevant evidence against appellant Phillips; neither do we find an7

error in the court's finding of venue in the Northern District of

Mississippi. Finally, we hold that the trial court's refusal to

instruct the jury on venue constitutes harmless error given the

magnitude of evidence eliminating venue as an issue. Accordingly,

the trial court's judgment is AFFIRMED.