Appeals from the United States District Court for the District of Columbia (No. 93cr00012-02) (No. 93cr00012-03) (No. 93cr00012-04) (No. 93cr00012-10)
Before: Williams, Henderson and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 1996
Consolidated with Nos. 94-3097, 94-3111, 94-3114
Opinion for the court filed PER CURIAM. *fn1
The four appellants, all salesmen at well-known Washington-area suburban car dealerships, were caught in an elaborate sting operation in which an undercover police officer posed as a big-time District of Columbia drug dealer seeking to buy cars with the cash proceeds of cocaine sales. The undercover officer, D.C. Police Detective Larry Best, worked under the operational name "Rob" and was part of a FBI/IRS/Metropolitan Police Department task force aimed at uncovering the laundering at suburban car dealerships of drug money generated in the District of Columbia. See Tr. 11/1/93 at 55, 58. Best could not have been clearer about who he was and what he desired. For example, at his first meeting with appellant deMesones he told him that he worked strictly in cash and that he sold cocaine for a living. See Tr. 11/9/93 at 40. Best also provided deMesones fake District of Columbia drivers' licenses to be used in the required paperwork because, he explained to deMesones, he did not want to use his own name. See id. at 41.
The sting followed the same basic pattern through the more than two years of its operation. See Tr. 11/1/93 at 60-62. First there was introductory talk in which Best told the targeted salesman that he wanted to buy cars for cash and that the source of his funds was drug sales. Cooperation followed as the salesman knowingly filled out paperwork with fake D.C. drivers' licenses provided by Best, counted cash in small bills, or drove Best or his undercover partner to pick up bags of cash. All the appellants, except Adamson, accepted substantial cash tips from the ersatz drug dealer, on top of the cash paid to the dealerships. Altogether, the undercover agent completed nine deals to purchase automobiles, including one not charged in the superseding indictment, and spent several weeks setting up a grand finale in which he made five more deals, never consummated, to purchase more than a million dollars' worth of cars that were to be shipped to his supposed drug connection in Columbia.
Best's main contact was appellant Smyth, who arranged contacts with willing salesmen and, just before his arrest, received a $5000 tip from Best for his services helping to put in motion the final deals for cars to be shipped to the supposed drug connection. See Tr. 1/6/94 at 22. As with many of the pertinent conversations, the cash delivery was recorded and the transcript and tape were offered in evidence. See, e.g., Gov. Ex. 14, Tr. 2 at 6.
Appellant deMesones played an important role in three early deals. Not only did the transcripts demonstrate the appellant's awareness of the supposed origins of Best's money, they also caught deMesones seeking payment for structuring the cash deal:
deMesones: Billy ... Billy ask you for a..ahh, one percent counting fee? ...
Best: He can get it. What you need ... what you need? ...
deMesones: We could do a gee-wiz divided by 3....
Best: Give me a figure....
deMesones: One thousand, a G-wiz divided by three ... 300 a piece.
Gov. Ex. Two, Tr. 8 at 22.
Appellant Spriggs worked for deMesones. On three occasions, he drove to Washington, D.C. to pick up Best and the cash, and his taped conversations amply reflected his understanding that the money came from drug sales. See, e.g., Tr. 11/9/93 at 83-87; Gov. Ex. Two, Tr. 8 at 4. Appellant Adamson knowingly relied on fake identification to fill out paperwork in the cash deals for cars, see Tr. 12/21/93(B) at 78-80, and "Best" made clear to him the supposed illegal source of the cash. See Gov. Ex. 11, Tr. 3 at 6-7.
Two months after their arrests in January 1993, a grand jury indicted appellants, and numerous other business entities and individuals, on one count of conspiracy to commit crimes against the United States in violation of 18 U.S.C. Section(s) 371, as well as numerous counts of money laundering and attempted money laundering in violation of 18 U.S.C. 1956(a)(3). Besides the many taped conversations, the evidence at the four-month trial included photographs of defendants' meetings with the agent, the falsely completed paperwork, and testimony by Best himself and cooperating defendants.
In February 1994 the jury convicted appellants of money laundering and attempted money laundering but acquitted them of the conspiracy charge. At sentencing Smyth, convicted of 13 of 15 counts, received 108 months in prison. DeMesones, convicted of all three money laundering counts with which he was charged, received 57 months. Spriggs, convicted of two of three money laundering counts, received 41 months. Appellant Adamson, convicted of one attempted money laundering count and acquitted of money laundering and conspiracy, received 57 months.
This appeal followed. We consider both the joint and individual challenges of appellants in the order that they came up at trial, adding factual detail as needed.
Appellants acknowledge that, viewing the evidence in the light most favorable to the Government, see United States v. Chin, 981 F.2d 1275, 1278 (D.C. Cir. 1992), the acts proven supplied an adequate basis for venue in the District of Columbia. But they claim that their convictions should be set aside because "most of the contacts that confer venue in this district were purposefully established," citing a statement in a brief filed before the district court acknowledging that fact. See Brief for Government at 62 (May 28, 1993) (D.D.C., Crim. No. 93-12). For example, agents "purposefully" arranged for defendants to pick-up cash in the District rather than at the suburban dealerships from which the cars were bought. Appellants argue that the Government's goal in arranging these contacts was improper as it was aimed at illegally "manufacturing venue" in the District.
It is unclear exactly what a claim of "manufactured venue" entails. Appellants at some points suggest that the issue is one of "venue entrapment," but then make no claim that they were not predisposed to engage in District-related contacts. As it is, we are uncertain whether there is such a thing as "venue entrapment." It is a little hard to conceive of a person predisposed to commit a federal crime -- but not in some specific district. Cf. United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995) (rejecting concept of venue entrapment and observing that "if the predisposition to commit the [federal] crime exists, it hardly matters for entrapment purposes where the acts are carried out"). But see United States v. Toomey, 404 F. Supp. 1377 (S.D.N.Y. 1975) (finding such a lack of predisposition). In any event, there being no suggestion that appellants had even the slightest tendency to balk at the District's edge, much less the necessary lack of predisposition, we need not resolve that dilemma.
What then is left? There is, of course, the possibility of "a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the Government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32 (1973). We may assume without deciding that there would be a fatal impropriety where "the key events occur in one district, but the prosecution, preferring trial elsewhere, lures a defendant to a distant district for some minor event simply to establish venue." United States v. Myers, 692 F.2d 823, 847 n.21 (2d Cir. 1982). The concern over a distant district is critical, as "[t]he 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." United States v. Cores, 356 U.S. 405, 407 (1958). But obviously there is nothing distant about the District vis-a-vis its Maryland and Virginia suburbs.
Nor was there anything reprehensible about the agent's deliberate choice to present himself as a drug dealer from the District. That is where the local drug trade is concentrated, just as the sellers of luxury cars so esteemed by drug dealers appear to be concentrated in the surrounding suburbs. The trial court was quite correct in characterizing the District contacts as "integral to the alleged conspiracy." Opinion of July 13, 1993 at 7. Cf. United States v. Reed, 773 F.2d 477, 481-82 (2d Cir. 1985) (upholding venue in district where crime's effects are felt).
Appellants make a broad attack on the way the jury was selected, claiming violations of the Jury Selection and Service Act, 28 U.S.C. 1861-1869, and the Sixth and Fifth Amendments. We consider each in turn.
Jury Selection and Service Act: The Act prizes the two related goals of ensuring (1) that juries are selected "at random from a fair cross section of the community" and (2) that "disqualifications, exemptions, and excusals from jury service" are granted only for "objective reasons." See United States v. North, 910 F.2d 843, 909 (D.C. Cir. 1990); see also H.R Rep. No. 90-1076 at 4 (1968); S. Rep. No. 90-891 at 15 (1967). We are to grant relief only for "substantial" violations of the Act, see 28 U.S.C. Section(s) 1867(a), i.e., those tending to impair the Act's two prime goals, see United States v. Barnette, 800 F.2d 1558, 1567 (11th Cir. 1986).
We quickly pass over the Government's argument that appellants' claims were not timely made in the district court. It is undisputed that at least one of the appellants met the Act's strict time requirements, see 28 U.S.C. Section(s) 1867(a), so we must address the claims. Since the claims fail, however, it makes no difference whether the others made timely objections or are able to benefit from their fellow defendant's having done so. Compare United States v. Gatling, 96 F.3d 1511, 1521 (D.C. Cir. 1996) (stating that absent an express judicial instruction an objection by one co-defendant is good for all if record of trial suggests that it was the approach "taken by the judge in practice"), with United States v. ...