500 F. 2d 302 - United States v. E Haley

The Government can obviously meet its burden in a variety of ways. * * * Significantly broader in reach, however, is the offense of 'receiv(ing) * * * in commerce or affecting commerce,' for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce. 404 U.S. at 350, 92 S.Ct. at 524.

Accord United States v. Carwell, 491 F.2d 1334, 1336 (CA8 1974).3 The interstate commerce connection is clearly made out in this case.

The parties to this lawsuit agree that the defendant's possession of the firearm is some evidence that he received the firearm. As the Sixth Circuit Court of Appeals has recognized, it is impossible to possess a firearm without having received it (unless the receiver manufactures it himself). United States v. Craven, 478 F.2d 1329, 1337 (CA6 1973); United States v. Brown, 472 F.2d 1181, 1182 (CA6 1973). We think that the government's evidence in this case, which established possession of the firearm, was circumstantial evidence which would allow the jury to reasonably infer receipt. Craven, supra.4

Even so, appellant strongly urges that the evidence was insufficient to prove receipt of the firearm within the Western District of Missouri. He relies heavily upon an unreported opinion concerning a similar charge against the same defendant. The court there granted Haley's motion for a judgment of acquittal after verdict. In that opinion, which was decided after the conviction in this case and which is a part of the designated record on this appeal, Judge Collinson stated:

The government apparently seeks to avoid (the heavier burden of proving the nexus with interstate commerce in a possession case) by charging an obvious possession case as a receiving case and urging, in effect, that since everyone who possesses a gun must have received it at sometime in the past, he is obviously guilty of receiving a gun, as well as possessing it, and can be convicted under the very broad language quoted above from Bass. This argument completedly ignores the fundamental rule that 'Venue is a fact which must be proved at the trial.' * * * But, in this case, in which the government's evidence traces the gun to Kansas City in May, 1972 and next shows it in defendant's possession in Missouri, in February of 1973, a finding that the defendant received it in Missouri must necessarily be based on complete speculation and conjecture.

The government has the burden of proving that the criminal activity took place in the district where the prosecution is undertaken. Wright, Federal Practice and Procedure, 307 at 601; Rule 18, Fed.R.Crim.P.; United States v. Luton, 486 F.2d 1021, 1022 (CA5 1973). Nevertheless, proof of venue need not be established beyond a reasonable doubt and in any event such proof may be circumstantial. Dean v. United States, 246 F.2d 335, 338 (CA8 1957); Holdridge v. United States, 282 F.2d 302, 305 (CA8 1960); Wright, supra; see also 18 U.S.C. 3237(a).

In United States v. Overshon, 494 F.2d 894, 899 (CA8 1974), this court reversed a receiving conviction under 18 U.S.C. App. 1202(a)(1) for failure to establish venue.5 We said:

Because of the lack of any evidence as to venue and considering that the place where the substantive offense occurred was near the borderline between the Eastern and Western Districts of Missouri, we have no alternative but to reverse the conviction * * *. 494 F.2d at 899.

The sort of problem that was apparent in Overshon and in the unreported decision relied upon by appellant is not before us here. The evidence here established that the firearm was shipped to, stolen from, and found in the possession of appellant, all in the Western District of Missouri. It can, therefore, be reasonably inferred that the site of the receipt was the Western District of Missouri.

We note additionally that Haley and his attorny signed a stipulation as part of an Omnibus Hearing Report in conjunction with this case which stated in part, 'It is stipulated between the parties: 12(a) That the venue of this case is properly laid in the Western District of Missouri.' Indeed, venue was not challenged until after the verdict, in the motion for new trial.

Improper venue can be waived. Hayes v. United States, 296 F.2d 657 (CA8), cert. denied, 369 U.S. 867, 82 S.Ct. 1033, 8 L.Ed.2d 85 (1961); Holdridge, supra, 282 F.2d at 305. There is a vast amount of circuit court authority supporting our view that appellant's attack upon venue comes too late. E.g., United States v. Bohle, 445 F.2d 54 (CA7 1971); United States v. Dryden, 423 F.2d 1175 (CA5), cert. denied, 398 U.S. 950, 90 S.Ct. 1869, 26 L.Ed.2d 290 (1970); Harper v. United States, 383 F.2d 795 (CA5 1967) (venue waived if not challenged prior to trial). United States v. Rivera, 388 F.2d 545 (CA2 1968); Gilbert v. United States, 359 F.2d 285 (CA9), cert. denied 385 U.S. 882, 87 S.Ct. 169, 17 L.Ed.2d 109 (1966) (venue waived where defendant makes specific motion to acquit at close of government's case without challenging venue). United States v. Polin, 323 F.2d 549 (CA3 1963) (venue waived if not challenged at close of government's case). United States v. McMaster, 343 F.2d 176 (CA6), cert. denied, 382 U.S. 818, 86 S.Ct. 42, 15 L.Ed.2d 65 (1965) (venue waived if not challenged prior to verdict).

Even were we to agree that venue was improper in this case, we would affirm on the basis of waiver.

Affirmed.