Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40786

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHANSEN BRITO,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:07-CR-208-3

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Johansen Brito was convicted of conspiracy to distribute and possess with

intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C.

§§ 841, 846. Brito challenges the admission of testimony regarding the seizure

of money inside a car driven by him and the denial of his motion for a judgment

of acquittal as to venue.

Brito argues that the district court erred in allowing Ramon Gonzalez, the

leader of the conspiracy, to testify that Brito told him a Dodge Neon and

United States Court of Appeals

Fifth Circuit

F I L E D

May 19, 2010

Lyle W. Cayce

Clerk

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No. 09-40786

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$180,000 were seized. Prior to trial, the district court granted Brito’s motion to

suppress all statements and evidence obtained during the traffic stop that led

to the seizure. Brito argues that Gonzalez’s testimony was fruit of the poisonous

tree and thus admitted in violation of his Fourth Amendment rights.

We need not resolve whether this testimony should have been excluded

because the error, if any, in admitting this testimony was harmless. See United

States v. Edwards, 303 F.3d 606, 621-22 (5th Cir. 2002). “[W]e ask whether it

appears beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Id. at 621 (internal quotations marks and

citations omitted).

The indicted conspiracy in this case was to distribute and possess with

intent to distribute cocaine. The objected-to testimony explains why the cocaine

trafficking operation stopped using the Dodge Neon and began using a different

vehicle driven by Charles Scott, another co-conspirator, to transport Brito’s

cocaine. Though this testimony is probative of Brito’s participation in the

conspiracy, it is cumulative of a large amount of other evidence of Brito’s guilt.

Other testimony linked Brito to the conspiracy and, specifically, to the Dodge

Neon as a means of transporting cocaine. Brito was also linked to Charles Scott,

who transported cocaine for him on several occasions after the Dodge Neon was

seized. Therefore, admission of this testimony, if error, is harmless beyond a

reasonable doubt. See Edwards, 303 F.3d at 622.

Brito also argues that the district court erred in denying his motion for a

judgment of acquittal as to venue. Brito contends that the Government

presented insufficient evidence to establish his involvement in a conspiracy in

the Eastern District of Texas.

“We will affirm a verdict if, viewing all the evidence in the light most

favorable to the government, a rational jury could conclude, from the evidence

presented at trial, that the government established venue by a preponderance

of the evidence.” United States v. Mendoza, 587 F.3d 682, 686 (5th Cir. 2009)

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(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “When an offense is begun

in one district and completed in another, venue is proper in any district in which

the offense was ‘begun, continued, or completed.’” United States v. Fells, 78 F.3d

168, 170 (5th Cir. 1996) (quoting 18 U.S.C. § 3237(a)). “In cases involving

conspiracy offenses, venue is proper in any district where the agreement was

formed or an overt act occurred.” United States v. Caldwell, 16 F.3d 623, 624

(5th Cir. 1994). “Venue can be based on evidence of any single act that initiated,

perpetuated, or completed the crime, and circumstantial evidence suffices to

establish venue.” Mendoza, 587 F.3d at 686 (internal citation omitted). Further,

“one co-conspirator’s travel through a judicial district in furtherance of the crime

alleged establishes venue as to all co-conspirators.” Id. at 687.

Evidence was presented that Charles Scott transported cocaine from the

Gonzalez operation in Houston, Texas, to buyers located east of Texas, including

Brito. On his first trip, Charles Scott traveled through Beaumont, Texas, to

deliver cocaine to Carlos Moreno, another buyer who purchased cocaine from the

Gonzalez operation. Viewing the evidence in the light most favorable to the

Government, Brito was part of the same unitary conspiracy to buy and sell

cocaine as Moreno. Therefore, the act of transporting cocaine through the

Eastern District of Texas to Moreno is sufficient to establish venue. See id. at

686-87.

Brito’s conviction is AFFIRMED.

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