United States Court of Appeals

Fifth Circuit



## FILED

January 10, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-50029

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THERESA LUCRETIA STRAIN,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Theresa Lucretia Strain was convicted by a jury of one count

of harboring or concealing a fugitive, her husband Robert

Navarrette Chavez, in violation of 18 U.S.C. § 1071. The

conviction would have been an easy affirmance if the case had been

tried in New Mexico. But it was not. We reverse because the

evidence is insufficient to prove that the crime of harboring or

conceal ing a fugitive occurred in the Western District of Texas,

where the case was tried. S ee U.S. C ONST

. art. III, § 2, amend. VI.

I

The events leading up to Theresa Strain’s conviction began on

June 18, 2003, when a federal warrant was issued for Robert2

Chavez’s arrest on various narcotics and firearms charges. On June

24, Deputy U.S. Marshals Steve Clark and Phillip Maxwell went to

Strain’s Midland, Texas, residence in an attempt to locate Chavez.

Clark informed Strain and two of her roommates of Chavez’s

outstanding arrest warrant. Maxwell further explained to Strain

that if sh e in any way assisted Chavez, she could be exposing

herself to criminal penalties. Strain responded that she had not

spoken to Chavez for two months, but then admitted that he had

called her at work on a few occasions, but not within the last two

weeks (which would place these calls before June 18, when Chavez

was indicted).

Approximately two days after the marshals’ visit, one of

Strain’s roommates, Elizabeth Rodriguez, called the marshals’

office and told them that Strain had asked her to watch Strain’s

children so she could travel “to the next town”. Rodriguez

testified at trial that she believed that Strain was referring to

Big Spring, Texas, which is located approximately forty miles from

Midland. Rodriguez further testified that Strain never told her

why she made the trip.

Then, according to Strain, on the night of June 27

, Chavez

called her at the Pizza Hut in Midland where she worked, told her

that he wanted to turn himself in to the authorities, and

instructed her to meet him in Carlsbad, New Mexico. She then drove

to Carlsbad with her three children. Upon meeting Strain in

Carlsbad on June 28, Chavez told her to rent a motel room. Strain3

did so, and Chavez later met her there. That night and the

following day, Strain testified, they dis cussed Chavez’s plan to

turn himself in. When Strain awoke on the morning of June 30,

however, Chavez had already exited through the window. Strain

testified that, because he left his personal effects in the room,

she thought he would be retur ning, and thus set out with her

children to get something to eat.

While driving, Strain was stopped by officers with the Pecos

Valley Drug Task Force, who observed that none of her three

children were wearing seatbelts. The officers became suspicious

when they saw that she was wearing nothing but a nightgown. Strain

explained tha t she was on vacation and staying in a local motel.

When asked where her husband was, she replied that he w as wanted

for drug violations and that she had not seen him in two months.

Because they did not believe Strain’s story, the officers asked to

search her motel room, and she consented.

Upon discover ing men’s clothing in the motel room, the

officers advised Strain of her rights. At that point, she admitted

that Chavez had been in the room that morning and that a Cadillac

parked outside belonged to him. The officers then noticed that the

bathroom window was open, and a footprint on the wall indicated

that someone had climbed out of it. Less than one hour later, a

patrol unit found Chavez in an empty lot nearby.

Strain was indicted on one count of harboring or concealing a

fugitive in violation of 18 U.S.C. § 1071. Strain’s indictment1 Article III, § 2 provides that the “trial of all Crimes

...

shall be held in the State where said Crimes shall have been

committed” . The Sixth Amendment further entitles the accused to

trial “by an impartial jury of the State and district wherein the

crime shall have been committed”.

2 See

, e.g.

, 18 U.S.C. § 3237(a) (providing that, where the

Government alleges a continuing off e nse committed in multiple

districts, it must show that the trial is taking place “in any

d istrict in which [the] offense was begun, continu ed, or

completed”); see also F ED

. R. C RIM

. P. 18.

4 charged that the offense occurred in the Western District of Texas

and the District of New Mexico. She was tried and convicted in the

Western District of Texas’s Midland Division. Strain challenged

venue at trial via two motions for acquittal under F ED

. R. C RIM

. P.

29(a), one at the close of the Government’s case and one at the

close of all evidence. The district court denied both motions.

The court, however, gave the jury special instructions regarding

p roof of venue by a preponderance of the evidence. The jury

returned a spec ial verdict finding that “the offense charged ...

was begun in the Western District of Texas”. As such, venue was

deemed proper and Strain was convicted. She now appeals the

conviction.

II

The right of the accused to be tried in the state and district

where the alleged offense was committed

–- that is, the venue

requir ement –- finds its source in both the United States

Constitution 1 and federal statutory law. 2 In the case befor e us,

there is some dispute between the parties as to what standard we3 Although venue is an elem ent of any criminal offense, the

prosecution’s burden of pro of in establishing venue differs from

the burden of proving other elements. The prosecution need only

show the propriety of venue by a preponderance of the evidence, not

beyond a reasonable doubt. United States v. Winship

, 724 F.2d 1116,

1124 (5th Cir. 1984).

5 are to apply in reviewing questions of venue. As the Government

points out, we previously have said that “[w]e review all questions

concerning venue under the abuse of discretion standard”. United

States v. Brown , 250 F.3d 907, 912 (5th Cir. 2001). Strain,

however, asserts that venue is a legal issue and is thus reviewed

de novo

.

The source of th e parties’ disagreement is an imprecise

framing of the question for review. Strain, however, does allege

a specific, reversible error. She contends that, given the lack of

evidence to support venue, the district court erred in denying her

motions for acquittal. Thus, the relevant question for this court

is whether the Government presented the jury with sufficient

evidence to support a findi ng that Strain’s offense “was begun,

continued or completed in the Western District of Texas”, such that

F ED

. R. C RIM

. P. 29(a) would not mandate acquitta l for failure to

prove venue. As such, we will review to determine whether, ”after

viewing the evidence in the lig ht most favorable to the

prosecution, any rational finder of fact could have f ound” that

venue was proven by a preponderance of the evidence. 3 Jac kson v.

Virginia, 443 U.S. 307, 319 (1979).

A6

We first consider whether Strain has waived her objection to

venue by failing to raise it before trial. Generally, “[a]

defendant indicted by an instrument which lacks sufficient

allegations to establish ve nue waives any future challenges by

failing to object before trial”. U nited States v. Carreon-Palacio

,

267 F.3d 381, 392-93 (5th Cir. 2001). However, “where adequate

allegations are made but the impropriety of venue only becomes

apparent at the close of the government’s case, a defendant may

address the error by objecting at that time, and thus preserving

the issue for appellate review”. Id.

Strain’s objection to venue essentially runs as follows:

Strain’s indictment contained an allegation that venue was proper.

Further, Strain was aware that the Government intended to present

e vidence of events –- most notably, her telephone conversations

with Chavez –- that might have formed the basis for venue in the

Western District of Texas, depending upon how they were presented

to the jury at trial. Strain’s claim is that the evidence finally

presented to the jury was not sufficient to support a finding that

venue was proper.

We agree that Strain’s objection as to the sufficiency of the

evidence could not have been raised adequately before the

prosecution presented the entirety of its case. Strain did not

know exactly what evidence the Government might present at trial.

Indeed, it appears that the Government itself was somewhat confused

as to what evidence it would present in support of venue, given the4 I n fact, as the Government noted at oral argument, Big

Spring lies in the Northern District of Texas. As such, we

disregard the Government’s contention that Rodriguez’s testimony

regarding Strain’s alleged trip to Big Spring might form the basis

for the jury’s finding of venue in the Western District.

7 incorrect assertion in its brief to this court that Big Spring,

Texas, to which Strain supposedly traveled on or about June 26,

lies in the Western Distr ict of Texas. 4 Strain did expect,

however, that the Governmen t would call Elizabeth Rodriguez to

testify regarding Strain’s telephone conversations with Chavez.

During its examination of Rodriguez, however, the Government failed

to elicit any testimony regarding those conversations. Thus, it

appears that the impropriety of venue would have become apparent to

Strain only after the prosecution had presented its evidence.

Strain’s objection was therefore preserved by her motions for

acquittal under F ED

. R. C RIM

. P. 29(a) at the close of the

prosecution’s case and at the close of evidence. See id.

B

We turn now to the substance of Strain’s appeal. Where, as

here, a criminal statute lacks an express venue provision, the

Government must show by preponderance of the evidence that the

trial is occurring in a district “where the offense [was] done”.

See United States v. Anderson , 328 U.S. 699, 705 (1946); see also

F ED

. R. C R IM

. P. 18. Where the Government alleges a single

continuing offense committed in multiple districts, it must show

that the trial is taking place “in any district in which [the]5 The Government’s argument on this point is different from

that which it advanced in Bowens

. Instead of asserting that venue

is proper in the district where a fugitive’s warrant was issued,

the Govern ment here contends that “awareness of [a] federal

warrant” is a “conduct element” of 18 U.S.C. § 1071, such that

venue will lie in the district where the accused became aware that

said warrant was issue d. Though distinct, both arguments are

meritle ss for the same reason: they seek to lay venue somewhere

other than the place “where the crimina l act is done”. S ee

Anderson

, 328 U.S. at 705. The only acts prohibited by § 1071 are

harboring and concealing. Becoming aware that a federal warrant

has been issued does not necessarily involve conduct of any kind by

the accused. It certainly does not involve “conduct constituting

the offense” proscribed by § 1071. S ee Rodriguez-Moreno

, 526 U.S.

a t 279. As such, it is a “circumstance element” of the offense,

and therefore not a basis upon which venue may be established.

8 offense was begun, continued, or completed”. 18 U.S.C. § 3237(a).

Under either standard, the venue inquiry hinges to a large extent

on how we define the offense.

The offense of which Strain was convicted is defined by 18

U.S.C. § 1071 as “harbor[ing] or conceal[ing] any person for whose

arrest a warrant or process has been issued under the provisions of

any law of the United States, so as to prevent his discovery or

arrest, after notice or knowledge that a warrant or process has

been issued ...”. Strain does not dispute that a warrant had been

issued for Chavez’s arrest or that she had actual knowledge of that

warrant. The issuance of the warrant and Strain’s knowledge of it,

however, are “circumstance elements” of the offense of harboring,

insofar as they do not involve any proscribed conduct by the

accused. S ee United States v. Bowens

, 224 F.3d 302, 311 (4th Cir.

2000) (citing United States v. Rodriguez-Moreno

, 526 U.S. 275, 280

n.4 (1999); United States v. Cabrales

, 524 U.S. 1, 7- 8 (1998)). 56 The Government presents its argument on this point in less

precise terms, asserting that it can be inferred that Strain warned

Chavez of the marshals’ investigation at some point during one of

their “several” telephone conversations. We focus our inquiry on

the June 2 7 conversation because it is the only conversation

reflected in the record that occurred after the marshals’ visit on

9 As such, neither may serve as a basis for establishing venue in the

Western District of Texas. See id. Thus, the narrow question at

issue here is whether a jury reasonably could have concluded that

S train’s conduct concerning Chavez, while she was in the West ern

District of Texas, constituted the beginning, continuation, or

completion of the act of “harbor[ing] or conceal[ing]

... so as to

prevent his discovery or arrest”. 18 U.S.C. § 1071.

This court has been clear in its holding that 18 U.S.C. § 1071

“requires some affirmative action to support a conviction. Failure

to disclose a fugitive’s location and giving financial assistance

do not constitute harboring, but any physical act of providing

assis tance ... to aid the prisoner in avoiding detection and

apprehension will make out a violation of section 1071”. U nited

States v. Green

, 180 F.3d 216, 220 (5th Cir. 1999) (quoting United

States v. Stacey , 896 F.2d 75, 77 (5th Cir. 1990)).

On appeal, the Government advances two basic arguments as to

how a jury reasonably might conclude that Strain committed a

“physical act of ... assistance” while in the Western District of

Texas. First, the Government contends that it is more likely than

not that, during her June 27 telephone conversation w ith Chavez, 6June 24.

7 The Government cites our decision in United States v.

O’Banion to argue that the jury was entitled to reject Strain’s

characterization of the June 27 conversation as a matter of witness

credibility. 943 F.2d 1422, 1427 (5th Cir. 1991). While this is

certainly true, the jury’s right to reject a witness’s account of

events does not entitle it to substitute another account for which

there is no evidentiary support. See

, e.g.

, United States v. Davis

, 666 F.2d 195, 199 (5th Cir. 1980) (noting that a jury’s inferences

regarding venue must be supported by “evidence in the record as a

whole”). The relevant question, then, is whether there is support

in the record for the alternative account of the June 27

conversation proposed by the government.

10 Strain warned him to stay away from Midland. In the alternative,

the Government contends that Strain’s telephone conversations and

subsequent journey across the Western Distric t of Texas toward

Carlsbad constituted the beginning of a continuing act of harboring

that was completed in New Mexico. We will address both contentions

in turn.

(1)

The Government first contends that a jury reaso nably could

infer from the evidence presented tha t, during the June 27

telephone conversation, Strain “warned Chavez about the outstanding

warrant and the fact that officials had come to her residence

looking for him”. The Government argues that such a warning is an

act of concealing in violation of § 1071, and thus, establishes

venue in the Western District of Texas. Strain, however, denies

having provided Chavez with such a warning and insists that the

purpose of her final telephone conversation was to pl an Chavez’s

surrender to authorities. 78 In Weaver

, we held that a jury reasonably could infer venue

in the Southern District of Alabama from testimony that the

defendant was observed committing the violation on certain streets,

the names of which were, if not peculiar to Mobile, Alabama,

certainly uncommon and well-known to its inhabitants. In affirming

Weaver’s convict ion, we noted that the inferential step involved

was sufficiently minor as to permit taking of judicial notice as to

the city in which the named streets were located. 298 F.2d at 498-

99.

11 We will assume, arguendo

, that the alleged telephonic warning

is a “physical act” of concealing within the meaning of our holding

in Green

. The relevant question thus becomes whether, under a

preponderance of evidence standard, the evidence actually presented

would permit a jury reasonably to infer that such a warning

occurred.

The Government cites our opinion in Weaver v. United States

for the proposition that a jury’s inferences based on

circumstantial evidence may form the basis for a finding that venue

has been established. 8 S ee 298 F

. 2d 496, 497-98 (5th Cir. 1962).

Obviously, this is correct; circumstantial evidence may be

admissible to prove venue, just as it may be admissible for any

other purpose. Our holding in W eaver

, however, does not alter the

general rule that a jury’s inferences must be supported by some

evidence in the record as a whole. S ee

, e.g.

, United States v.

Davis , 666 F.2d 195, 199 (5th Cir. 1980).

In the case before us, there is no evidentiary hook to which

the jury might attach the inference suggested by the Government.

The only hook available is the telephone conversation occurring on12

June 27, the night before Str ain left for Carlsbad. The only

evidence in the record concerning the content of that conversation

comes from the testimony of Strain herself. To be sure, the

entirety of the Government’s argument relating to “concealing by

warning” rests on this testimony:

Q. All right. Now, after you had this

convers ation with Deputy Maxwell, did

Robert Chavez t ry to get in touch with

you again?

A. They said that he had called d uring the

day, but I wasn’t there. And then a

couple of nights before he had called and

said he

–- he was very depressed. He had

a lot of things on his mind, like about

he d idn’t want to live no more. But he

wanted to talk through to see where he

wanted to turn himself in. We were

having a real personal discussion.

***

Q. Did you tell Mr. Chavez –- did you give

Mr. Chavez Mr. Maxwell’s number and tell

him to turn himself in to Mr. Maxwell?

A. I told him everything that had been going

on for the last two months. I told him

everybody who came up to me, who

appro ached me with this. And he also

told me that he wasn’t wanted; that

everybody

–- they were just trying to get

to this other gu y that he knows; that

they’re just saying that so I would

probably say something that I wasn’t

supposed to, and that –- he said that he

didn’t want to go through Maxwell because

I

–- what I had told him Maxwell said.

He told me, “Oh, okay. I’m going to walk

up to Maxwell, an d he’s just going to

dro p me like that.” And I was like, “I

know this ot her guy.” That is when I

brought in the other –- Roberts.9 In his affidavit in su pport of Strain’s indictment, Deputy

Marshall Maxwell stated that, after his indictment on June 18,

2 003, Chavez “immediately absconded and fled the jurisdict ion of

the Western District of Texas to avoid prosecution”.

13 On cross- examination, the Government had a clear opportunity to

elicit more information concerning the content of th e telephone

conversation, but elected to ask only one question, which had no

relevance to the “warning” theory it advances on appeal:

Q. But you admit you were called in Midland;

you ag reed to meet Robert, who you knew

was a fugitive in Carlsbad; is that

correct?

A. Uh-huh.

Although there is ample evidence to show t hat, during this

telephone conversation, Strain made plans to meet and harbor Chavez

in New Mexico, there is nothing in the testimo ny to suggest that

Strain warned Chavez to stay away from Midland in general or her

re sidence in particular. Indeed, an opposite inference is

suggested when the conversation is considered in the context of the

record as a whole: she gave no such “warning” because a “warning”

would have been superfluous. Chavez apparently had fled Midland

immedia tely after his indictment was issued, 9 and thus, was aware

that authorities were searching for him there. Further, the record

lends no doubt that, at the time of the conversation, Strain was

aware of Chavez’s presence in New Mexico and his strategy of

avoiding Midland. Moreover, even if we assume that a “warning” to

stay away from Midland implicitly was tucked into this conversation14

somewhere, an observation of the obvious would not have provided

Chavez any measure of “aid

... in avoiding detection or

apprehension”. S ee Green

, 180 F.3d at 220. All of the evidence –-

that is, all of the evidence

–- that speaks to this subject matter

unequivocally suggests that at the time of this telephone

conversati on, Chavez knew of the risk of apprehension and was

intentionally avoiding Midland in general and thus, by necessity,

Strain’s residence in particular.

In sum, the Government, which had the burden of proof, has

failed to proffer evidence from which a jury could infer that it

was more likely than not that the alleged warning occurred; the

conversation upon which the government relies only shows that

Strain had a general desire to assist Chavez, and made plans to do

so in New Mexico.

(2)

Finally, the Government conte nds that, even if Strain’s

telephone conversations were no t, in themselves, violations of §

1071, they were part of a continuing offense, begun in the Western

District of Texas, such that venue would be proper under 18 U.S.C.

§ 3237(a). On its face, this argument has some appeal. Given the

particular facts of this case, however, we cannot agree.

A continuing offense is “a continuous, unlawful act or series

of acts set o n foot by a single impulse and operated by an

unintermittent force”. U nited States v. Asibor

, 109 F.3d 1023,

1031 (5th Cir. 1997) (quoting United States v. M idstate15

Horticult ural Co. , 306 U.S. 161, 166 (1939)). Obviously, under

certain circumstances, an act of harb oring or concealing in

violation of § 1071 may fall under this definition. That is to

say, once the offense of harboring has actually commenced, it may

be continued or completed in other districts or states, where venue

may be proper. Nonetheless, § 3237(a) does not exempt continuing

offenses from t he general principle that preparatory acts alone

cannot support ve nue. S ee United States v. Beech-Nut Nutrition

Corp. , 871 F.2d 1181, 1189-90 (2d Cir. 1989). Strain’s telephone

conversations with Chavez and sub sequent journey through the

Western District of Texas toward Carlsbad, although indispensable

to the ultimate act of harboring in New Mexico, were preparatory

acts for the commission of the actual crime

–- much like purchasing

a gu n and traveling to a bank to commit a robbery –- and thus

insufficient to support a finding of venue.

III

In sum, we hold that the jury’s finding of venue is not

supported by evidence. As noted s upra

, a necessary corollary of

this holding is that the district court’s denial of Strain’s motion

for acquittal under F ED

. R. C RIM

. P. 29(a) was in err or. For the

reasons above, we reverse the ruling, vacate the judgment and

remand to the district court for entry of a judgment of acquittal.

REVERSED, VACATED and

REMANDED WITH INSTRUCTIONS.