United States District Court,
UNITED STATES of
No. CR 96-0348
Feb. 20, 1998.
HENDERSON, Chief Judge.
This case arises out of an investigation by the Office of Independent Counsel
("OIC" or government) of the former Secretary of Agriculture Michael Espy. The
defendant, Richard Douglas, was charged with giving, offering or promising unlawful
gratuities to Espy and with making, and causing others to make, unlawful campaign
contributions to the political campaign of Henry Espy, Michael Espy's brother. At the
close of the government's case, the defendant moved for acquittal under Federal Rule of
Criminal Procedure 29, arguing that the government failed to provide any evidence at trial
that the defendant committed the charged crimes in the Northern District of California.
For the reasons set forth below, the Court hereby grants defendant's motion.
The defendant Richard Douglas was Senior Vice-President for Corporate Affairs at
Sun-Diamond Growers, a large agricultural collective of growers of raisins, walnuts,
prunes, figs, and hazelnuts headquartered in Pleasanton, California. [FN1] Douglas was
indicted for, among other things, [FN2] two separate counts of providing illegal
gratuities to then Secretary of Agriculture Michael Espy in violation of 18
U.S.C. sections 201(c)(1)(A) and 2. Section 201(c)(1)(A) prohibits the giving,
offering, or promising of things of value to public officials for or because of any
official act performed or to be performed by the public official. Count One charged that
between January, 1993 and May, 1994, Douglas provided Espy with meals, luggage, and
entertainment in the Northern District of California. Count Two charged that Douglas
reimbursed Patricia Dempsey, Espy's then girlfriend, for a plane ticket to Athens, Greece
so she could accompany Espy to an international conference on tree nuts. The remaining six
counts concerned a scheme to make illegal campaign contributions to the political campaign
of Henry Espy, Michael Espy's brother.
FN1. The Court
took judicial notice of the fact that Pleasanton, California is located in the Northern
District of California.
original indictment contains nineteen counts. Two counts concern false statements that the
defendant allegedly made to FBI agents in the course of this investigation. Nine others
concern alleged false statements made by the defendant in seeking a mortgage to purchase a
private home in Oakland, California. The Court, in a prior order, granted defendant's
motion to dismiss the false statement counts, and severed the mortgage counts. April 2,
1997 Order. Prior to trial, the OIC issued a renumbered indictment, omitting the severed
and dismissed counts. In this Order, the Court refers to the numbers in the renumbered
At trial, the OIC provided evidence that Douglas gave numerous gifts to Espy. The
evidence showed that: Douglas gave Espy a set of luggage worth $2,427.40 in Bethesda,
Maryland; Douglas treated Espy to several dinners at restaurants in Washington, D.C.,
Bethesda, Maryland, Atlanta, Georgia, New York City, and Los Angeles, California; and,
Douglas provided Espy with tickets to the U.S. Open tennis tournament and limousine rides
in New York City. The evidence also showed that Douglas expensed each of these gifts to
Sun-Diamond Growers and that Sun-Diamond reimbursed him for the cost of these gifts.
In regard to Count Two, the OIC adduced evidence at trial that in Washington, D.C.
Douglas gave over $3,000 in cash to Patricia Dempsey to reimburse her for transportation
to Greece so that she could accompany Espy, who was to address a conference sponsored by
the International Nut Council. The International Nut Council reimbursed Douglas for this
expense. The International Nut Council sent a copy of the invitation asking Espy to attend
the nut conference to Douglas in Pleasanton, California so that he would forward the
invitation to Espy. The OIC also presented evidence that Douglas faxed the invitation from
Pleasanton to the Department of Agriculture in Washington, D.C., and that Espy mailed his
acceptance of this invitation to Douglas in Pleasanton.
In order to prove the intent element of the gratuities counts--that Douglas provided
these gifts to Espy "for or because of" any official act performed or to be
performed by the Secretary of Agriculture--the OIC provided evidence that issues of
importance to Douglas were pending before the Department of Agriculture at the time
Douglas gave these gifts. The majority of these issues were important to Douglas because
they were important to Sun- Diamond Growers. However, the OIC also provided evidence, over
Douglas' repeated objections, of an additional matter pending before the Department of
Agriculture that was of importance to Douglas, but not to Sun-Diamond: the Elsmere
"land swap" deal. This was a deal between the Elsmere Corporation and the United
States Forest Service, an agency within the United States Department of Agriculture, to
trade land owned by the United States Forest Service in Elsmere canyon for land owned by
the Elsmere Corporation, so that the corporation could create a landfill in Elsmere
canyon. The Elsmere Corporation retained Douglas as a lobbyist to help arrange this deal.
At the close of the government's case, the defendant moved for a judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29, arguing that the OIC failed to provide
any evidence that the defendant committed any part of the charged crimes in the Northern
District of California. The Court reserved ruling on defendant's motion and submitted the
case to the jury. The jury returned a guilty verdict on Count One, hung on Count Two, and
acquitted the defendant on each of the remaining counts. After the jury announced its
verdict, the Court asked the defendant and the OIC to brief the issues raised in
defendant's Rule 29 motion as they relate to Counts One and Two, the gratuities counts.
 Rule 29(a) requires a court to enter a judgment of acquittal "if the evidence
is insufficient to sustain a conviction." Fed.R.Civ.P. 29(a). In considering a Rule
29 motion, the Court "must determine whether, viewing the evidence in the light most
favorable to the government, the jury could reasonably find the defendant guilty beyond a
reasonable doubt." [FN3] United
States v. Merriweather, 777 F.2d 503, 507 (9th Cir.1985) (quoting United States v.
Hazeem, 679 F.2d 770, 772 (9th Cir.1982)). The trial court may, as the Court did in this
case, reserve decision on a Rule 29(a) motion made at the close of the government's case.
Fed.R.Crim.P. 29(b). If it does reserve decision, it must decide the motion on the basis
of the evidence presented to the jury at the time the ruling was reserved. Fed.R.Crim.P.
FN3. The Ninth
Circuit has held that the existence of criminal venue is a question of law, not a question
of fact. United
States v. Childs, 5 F.3d 1328, 1331 (9th Cir.1993). A clear majority of courts to have
considered this question, however, have concluded that the existence of criminal venue is
a question of fact. See e.g., United
States v. Miller, 111 F.3d 747, 749 (10th Cir.1997); United
States v. Redfearn, 906 F.2d 352, 354 (8th Cir.1990). The Court need not decide
whether the question is properly considered one of fact for the jury or one of law. In
either case, the Court concludes as a matter of law that the government failed to meet its
burden of proof. At the close of trial, the defendant asked the Court to instruct the jury
that it must find venue for each of the crimes charged. However, the Court concluded that,
although venue is somewhat factual, because the Ninth Circuit has held that the existence
of venue is a question of law, and because questions of law are properly decided by the
Court and not the jury, such an instruction would be inappropriate. Childs,
5 F.3d at 1331. The defendant now moves for a new trial, pursuant to Federal Rule of
Criminal Procedure 33, arguing that the Court erred in refusing to instruct the jury on
the venue issue. The Court need not reach defendant's Rule 33 motion, however, because the
Court finds that the government failed to provide any evidence of venue as to Counts One
 Article III (Section 2, Clause 3) and the Sixth Amendment of the United
States Constitution, as well as Federal Rule of Criminal Procedure 18, guarantee that a
criminal defendant be tried in the district where the crimes were committed. United
States v. Evans, 62 F.3d 1233, 1236 (9th Cir.1995);United
States v. Corona, 34 F.3d 876, 878-79 (9th Cir.1994). The requirement of venue in a
criminal trial cannot be taken lightly as it raises "deep issues of public
States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944). The
government bears the burden of proving venue, United
States v. Beech-Nut Nutrition Corp., 871 F.2d 1181,1188 (2d Cir.1989), and proof may
be direct or circumstantial. Childs,
5 F.3d at 1332. Because venue is not an essential element of the crime, [FN4] the
government need only prove venue by a preponderance of the evidence, not beyond a
reasonable doubt. United
States v. Powell, 498 F.2d 890, 891 (9th Cir.1974). When more than one crime is
charged, venue must lie for each crime. Beech-Nut,
871 F.2d at 1188.
defendant erroneously argues that the government failed to provide sufficient evidence on
the "venue element" of the charged crimes. Venue is not an element of the
States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir.1988).
 Where, as here, "the federal statute defining an offense does not indicate
explicitly where Congress believes the criminal act is committed, 'the locus delicti must
be determined from the nature of the crime alleged and the location of the act or acts
constituting it.' " Id. (quoting United
States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946)); see also United
States v. Angotti, 105 F.3d 539, 542 (9th Cir.1997). "In order to determine for
venue purposes where a crime occurred 'we examine the key verbs in the statute defining
the criminal offense to find the scope of relevant conduct.' " Corona,
34 F.3d at 879 (quoting United States v. Georgacarakos, 988 F.2d 1289, 1293 (1st
Cir.1993)). The key verbs in the gratuities statute are "give,"
"offer," and "promise." [FN5] The issue here is not one of sufficiency
of evidence. The OIC provided no evidence whatsoever at trial that the defendant gave,
offered, or promised a thing of value to Espy in the Northern District of California.
Thus, the gratuities charges must be dismissed for lack of venue.
relevant part, section 201(c)(1)(A) of Title 18 of the United States Code provides:
otherwise than as provided by law for the proper discharge of official duty directly or
indirectly gives, offers, or promises anything of value to any public official, ... for or
because of any official act or to be performed by such public official ... or person
selected to be a public official [shall be guilty of an offense against the United
The OIC counters that the gratuities charges are continuing offenses, and that part of
the ongoing gratuities scheme was the defendant's reimbursement by Sun- Diamond Growers.
Because the corporate headquarters of Sun-Diamond is located in Pleasanton, California,
which in turn is located in the Northern District of California, the government argues
that venue was proper in this district.
The government's argument is misplaced. Sun-Diamond's reimbursement of the defendant's
expenses in providing gifts to the Secretary of Agriculture is circumstantial evidence
that the defendant harbored the requisite intent to be found guilty on the gratuities
charges, i.e. that the gifts were "for or because of official acts." However,
the reimbursement was not itself an element of the crimes charged. "When a crime is
an offense that is not unitary but instead spans space or time, it may be governed by 18
U.S.C. s 3237(a)." Beech-Nut,
871 F.2d at 1188. This statute provides:
[e]xcept as otherwise expressly provided by enactment of Congress, any offense against
the United States begun in one district and completed in another, or committed in more
than one district, may be ... prosecuted in any district in which such offense was begun,
continued, or completed.
U.S.C. s 3237(a).
The defendant concedes that the gratuities offenses may be considered continuing
offenses under section 3237(a). However, neither of the gratuities offenses charged was
begun, continued, or completed in the Northern District of California. Thus, even under
the statutory venue provision for continuing offenses, venue cannot lie in Northern
California for these charges. The crime charged in Count One was complete once the
defendant gave, offered or promised the meals, luggage or entertainment to Michael
Espy. See United States v. White, 887 F.2d 267, 272 (D.C.Cir.1989) (crime of bribery
is complete "upon the public official's receipt or agreement to receive payments for
an official act"). The jury was instructed that to find the defendant guilty of Count
One, it need only find beyond a reasonable doubt that the defendant gave a single thing of
value to Espy for or because of any official act performed or to be performed by Espy. To
find the defendant guilty the jury need not have found that the defendant was reimbursed
for these things of value.
As to Count Two, the government's argument is further weakened by the fact that it was
the International Nut Council, not Sun-Diamond, that reimbursed defendant for the expense
of the airplane ticket to Greece. The International Nut Council is not located in the
Northern District of California. The OIC attempts feebly to salvage its case by arguing
that one of the reasons defendant arranged for Patricia Dempsey to accompany Espy to
Greece was to curry favor with Sun-Diamond. The OIC argues, in addition, that the evidence
that the defendant sent a fax from Sun-Diamond headquarters in Pleasanton, California to
the Department of Agriculture inviting Espy to attend the Nut Council conference, and that
the Secretary mailed his acceptance to the defendant at Sun-Diamond headquarters, is
sufficient to satisfy the venue requirement for Count Two.
These tangential facts cannot create venue in the Northern District of California. The
defendant was not charged with inviting Espy to attend the conference in Greece. He was
charged with providing Secretary Espy with the value of the companionship of his
girlfriend, Patricia Dempsey, at the nut conference in Athens, Greece. Mailing an
invitation to Espy to attend an agricultural conference was not part of the crime charged,
nor is it a criminal act. The government may not bring a criminal trial in any location
remotely connected to the defendant's actions, but must comply with the constitutional and
statutory criminal venue requirements.
The OIC next argues that venue was proper because the jury could have found the
defendant guilty of aiding and abetting Sun-Diamond in giving things of value to Espy. The
indictment charges Douglas with aiding and abetting, under 18
U.S.C. s 2, each of the principal crimes charged. "[A]n individual accused of
aiding and abetting a substantive crime may be prosecuted where the principal committed
the substantive crime." United
States v. Strawberry, 892 F.Supp. 519, 526 (S.D.N.Y.1995). While the indictment
contains aiding and abetting charges, the government completely failed to develop this
theory of liability at trial. The OIC presented no evidence or argument at trial that
Sun-Diamond committed a crime, or that the defendant may be found guilty of Sun-Diamond's
crimes even if he did not himself commit these crimes. On the contrary, the government
pursued two alternate theories to prove the intent element of the gratuities counts:
first, that the defendant gave the unlawful gratuities to curry favor with Espy for or
because of official acts that would benefit Sun-Diamond; and, second, in the alternative,
that the defendant did so for or because of official acts to benefit the Elsmere
Corporation. The OIC cannot rely upon an aiding and abetting theory to establish venue
when it never presented this theory of liability at trial.
 Finally, the OIC argues that the defendant waived his right to challenge venue.
Criminal venue, like civil venue and the rights to a jury and to a speedy trial in the
criminal context, may be waived. Although "[q]uestions of venue in criminal cases ...
are not merely matters of formal legal procedure," United
Slates v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944), an accused
may intelligently waive his right to trial in a certain area, United
States v. Evans, 62 F.3d 1233, 1236 (9th Cir.1995), particularly when the accused is
represented by counsel. Hanson
v. United States, 285 F.2d 27, 28 (9th Cir.1960). A criminal defendant may waive his
venue rights by an express waiver, a motion to transfer, or by inaction. 220-21 CHARLES
ALAN WRIGHT & ARTHUR R. MILLER,FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2d s 306
(1982). "The absence of an objection to venue, or a motion specifically raising the
defect, has been held to constitute a waiver." Id. at 221.
The defendant did not raise a venue objection until the close of the government's
case. Where the improper venue is apparent on the face of the indictment, the defendant is
held to have waived venue by failing to object prior to going to trial. Id. at 221-22;
Fed.R.Crim.P. 12(b)(1) ( "[d]efenses and objections based on defects in the
institution of the prosecution" "must be raised prior to trial."). However,
the rule that an objection must be made before trial applies only when the venue defect is
apparent on the face of the indictment. United
States v. Melia, 741 F.2d 70, 71 (4th Cir.1984). Here, no defect appears in the
indictment. The indictment specifically alleges in the charging paragraphs that "in
the Northern District of California and elsewhere" the defendant gave unlawful
The OIC argues that the plain language of the indictment notwithstanding, the
defendant was fully cognizant of the venue defects prior to the commencement of the trial,
and should have raised them earlier. The government submitted extensive extrinsic evidence
to prove the defendant's prior knowledge. Before the grand jury indicted the defendant,
defense counsel wrote several letters to the Independent Council complaining that venue
for the gratuities charges did not lie in the Northern District of California, and that
the case should be brought instead in the District of Columbia. The indictment itself
spells out the government's theory of venue for Count One, that the defendant was
reimbursed by Sun-Diamond in Pleasanton, California. After the defendant was indicted in
the Northern District of California, defense counsel wrote a letter to the United States
Attorney General, arguing that the gratuity charges were improperly venued. The defendant
even made the issue public, by issuing a press release requesting that the case be
transferred to the District of Columbia. The government's Trial Memorandum detailed the
location of each gift provided by the defendant to Espy. Finally, more than one month
before trial, the government specifically challenged the defendant to move to dismiss or
transfer the indictment for lack of venue if he believed venue was lacking. See United
States' Response to Defendant's Trial Memorandum at 2 ("If Douglas had a legitimate
complaint regarding venue, he should have moved to dismiss the indictment for lack of
venue or moved for a transfer of venue."). Although he knew full well of the venue
problem early on in the proceedings against him, the defendant waited to never raise the
issue to the Court until after the government rested. The OIC argues that defendant's
decision was strategic and that the Court should not countenance such gamesmanship. [FN6]
FN6. The Court
notes that the government's extrinsic evidence demonstrates not only that the defendant
was fully apprised of the venue problem prior to trial, but also that the government was
aware of the venue problem and of the defendant's objections thereto. For reasons, beyond
the comprehension of this Court, the OIC chose to bring this case in the Northern District
of California despite its knowledge of the venue problem. The government cannot now claim
unfair surprise or improper gamesmanship by the defendant. The defendant in no way hid the
ball and he raised the issue to the Court at the earliest possible opportunity.
The defendant had no choice but to wait until after the government presented its case
to challenge the government's choice of venue. Had the defendant brought a motion to
dismiss or transfer for improper venue prior to trial, the Court would have been compelled
to deny the motion. In considering a pretrial motion, the Court must accept all of the
allegations on the face of the indictment as true and may not consider evidence that may
only be presented at trial. United
States v. Mendoza, 108 F.3d 1155, 1156 (9th Cir.1997) ("only theindictment may be
considered in pretrial motions to dismiss for lack of venue"); United
States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996). The indictment properly alleges
that venue lies for each charge in the Northern District of California. "[W]here
there is a proper allegation of venue in the indictment, but the government fails to prove
that allegation at trial, a challenge to venue in a motion for acquittal is timely." United
States v. Sandini, 803 F.2d 123, 127 (3d Cir.1986). Thus, by going to trial without
protesting improper venue the defendant did not waive his objections.
Because the government failed to provide evidence of proper venue, Counts One and Two
of the renumbered indictment are HEREBY DISMISSED. [FN7] Of course, the government is free
to reindict the defendant for the unlawful gratuity counts in a proper venue. The double
jeopardy clause does not bar reprosecution where charges are dismissed for lack of venue
because "the failure to establish venue does not go to guilt or innocence." Kaytso,
868 F.2d at 1021. The double jeopardy clause "does not preclude a second
prosecution where a defendant successfully moves to terminate proceedings against him on a
basis unrelated to factual guilt or innocence." Id.
the Court grants defendant's Rule 29 motion, it declines to reach the other issues raised
by the defendant in his Supplemental Memorandum filed December 8, 1997.
IT IS SO ORDERED.