280 F.

3d 318

UNITED STATES of America,

v.
Linette PEREZ, Appellant,
United States of America,
v.
Juancho Alcantera, Appellant,
United States of America,
v.
Edmundo Batoon, Appellant.
No. 00-5237.
No. 00-5238.
No. 00-5261.

United States Court of Appeals, Third Circuit.

Argued December 12, 2000.
Filed February 4, 2002.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED COPYRIGHT MATERIAL OMITTED James A. Galdieri
(Argued), Miller & Galdieri, Jersey City, NJ, Attorney for Appellant
Linette Perez.
Paul X. Escandon, Allenhurst, NJ, Stephen M. Latimer (Argued),
Hackensack, NJ, Attorneys for Appellant Juancho Alcantera.
Robert Kasenow, II (Argued), New York, NY, Attorney for Appellant
Edmundo Batoon.
Robert J. Cleary, United States Attorney, George S. Leone, Chief,
Appeals Division, Newark, NJ, Norman J. Gross (Argued), Assistant
United States Attorney, United States Attorney's Office, Camden, NJ,
Attorneys for Appellee United States of America.
Before SCIRICA, AMBRO, Circuit Judges, and POLLAK, District

Judge.*
OPINION OF THE COURT
AMBRO, Circuit Judge.

Defendants/Appellants Linette Perez ("Perez"), Juancho Alcantera

("Alcantera"), and Edmundo Batoon ("Batoon") appeal their convictions on the
charge of conspiracy to distribute and possess with the intent to distribute
methamphetamine, a Schedule II controlled substance, in the District of New
Jersey and elsewhere in violation of 21 U.S.C. 846 and 841(a)(1). All three
were convicted by a jury in the United States District Court for the District of
New Jersey. In this appeal, Appellants challenge their convictions on numerous
grounds, one of which is a question of first impression for this Court
whether and under what circumstances the trial court must give a jury
instruction on venue. Appellants Alcantera and Batoon also challenge the
District Court's ruling on a minor role reduction, and the attributable drug
quantity, at sentencing. We affirm the convictions and sentences of each
Appellant.

I. Factual and Procedural Background

A. Factual Background
2

In the following recitation of the facts on which Appellants' convictions were

based, we construe those facts in the light most favorable to the Government, as
we must following the jury's guilty verdict. Glasser v. United States, 315 U.S.
60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Beginning in 1998, agents of the
Federal Bureau of Investigation and the Drug Enforcement Agency based in
New Jersey opened an investigation into drug operations allegedly headed up
by Lirio Del Rosario ("Del Rosario") based on information supplied by a
confidential source. With Del Rosario at the helm, the organization imported
and distributed crystal methamphetamine in New York and New Jersey.

The factual scenario leading up to and encompassing the arrest of Appellants

unfolds as follows. In January of 1999, Del Rosario's supply of
methamphetamine ran low. He dispatched Alcantera and another man to the
home of Augustin Daluro ("Daluro") in Jersey City, New Jersey to procure
more of the drug. Daluro gave twenty grams of methamphetamine to Alcantera,
without charge, for delivery to Del Rosario. At that time, Del Rosario told
Daluro that he was getting travel documents for a woman named "Linette" so

that she could smuggle methamphetamine into the United States as part of his
operation.
4

In early February of 1999, members of the Queens Narcotics Division of the

New York City Police Department ("N.Y.P.D.") received information of Del
Rosario's drug operation from another confidential informant (CI-1), and began
an independent investigation. When the federal and local investigators learned
that they were conducting parallel investigations, they agreed to pool their
information. The confidential informants tipped off the federal and N.Y.P.D.
investigators that a woman named "Linette" would be bringing in a large
shipment of methamphetamine through John F. Kennedy Airport on February
24, 1999. The informant offered a description of "Linette," which was later
confirmed by several customs agents.

On February 18, 1999, Perez, who at the time was a United States citizen living
in Virginia, obtained a passport. The following day, she purchased a round-trip
ticket from J.F.K. Airport to Manila, the Philippines, through a New York City
travel agency. Perez departed from the United States on February 22, 1999, and
checked into the Manila Holiday Inn where she stayed for two days. While in
Manila, Perez obtained ten kilograms of crystal methamphetamine from
relatives of Del Rosario. The methamphetamine was put into plastic baggies,
hidden inside fabric shoulder pads of women's dresses, and placed into two
large cardboard boxes.

On February 23, 1999, while Perez was still in Manila, Del Rosario called
Prajedo Almiranez ("Almiranez") and asked him to pick up Perez when she
arrived at J.F.K. Airport, but he was unable to go. On February 24, 1999, Del
Rosario called Nestor Uy ("Uy"), a Filipino living in New York City who
occasionally repaired automobiles for Del Rosario, and asked him to pick up
Perez. Uy had met Perez before at Del Rosario's home. Del Rosario told Uy
that Perez would be arriving at J.F.K. Airport on Asianna Airlines, and gave
Uy money to pay the excess baggage fee for the packages Perez was bringing
in from the Philippines, for a hotel room for Perez at the Queens Motor Inn,
and for gas and food.

Perez returned to the United States that evening with the two large boxes,
arriving at J.F.K. Airport at approximately 8:35 p.m. Uy arrived late to J.F.K.
Airport, and was unable to find Perez. He called the number for Alcantera's cell
phone several times and spoke to Del Rosario, who told him to keep looking for
Perez. At the same time, several N.Y.P.D. investigators also went to J.F.K.
Airport with CI-1 to intercept Perez, but they were unable to locate her.

Finally, Uy discovered that Perez had taken a cab to Del Rosario's home. Uy
went to the Queens Motor Inn and reserved a room for Perez under his name,
then went to Del Rosario's apartment to pick up Perez. In Del Rosario's living
room were the two large boxes. Uy then drove Perez back to the hotel. During
the trip, Perez told Uy that she had just smuggled ten kilos of
methamphetamine into the United States from Del Rosario's family in the
Philippines, boasting that she "had the guts to do that." Uy stayed with Perez at
the hotel briefly, then drove her to Batoon's home in Elmhurst, Queens.

At around 10:00 a.m. the next morning, February 25th, Almiranez picked up
Perez from Batoon's home and drove her to Del Rosario's apartment. Uy arrived
at the apartment at approximately 11:00 a.m. He saw that the boxes had been
opened, the plastic bags removed from the shoulder pads of the dresses and cut
open, and the methamphetamine taken out. Del Rosario explained to Uy how
the methamphetamine had been packaged and how Asianna Airlines and the
customs officials protected Del Rosario's drug shipments.

10

Del Rosario then called Arturo Zoletta, who had previously delivered
methamphetamine for him. Del Rosario told Zoletta that he had a shipment of
methamphetamine for him to deliver to another person. Zoletta paged Roland
Abaia, a cab driver, to pick him up at his home. The two drove to Del Rosario's
apartment in Abaia's Lincoln Towncar.

11

At approximately 2:00 that afternoon, acting on a tip from CI-1 that Del
Rosario was dealing methamphetamine out of three possible locations, plainclothed investigators and uniformed officers from the N.Y.P.D. staked out Del
Rosario's apartment building, an automobile body shop, and Uy's residence, all
in Queens.

12

Del Rosario's apartment building was four stories high, with four apartment
units on each floor. The N.Y.P.D. officers knew from the informant that Del
Rosario's apartment was 2C. It was located at the back of the second floor, and
one could not see the street from the inside. Nor could the surveilling officers
tell which apartment was Del Rosario's from the outside of the building. They
observed several cars stop outside of Del Rosario's apartment building, stay for
a few minutes, then leave. Just before 6:00 p.m., the investigators observed
Abaia drive up to Del Rosario's apartment building in the Lincoln Towncar
with Zoletta in the back seat. Zoletta got out of the car and entered the building
empty-handed while Abaia waited outside.

13

Zoletta emerged from the apartment building approximately ten minutes later,

carrying a clear plastic bag with a white plastic bag inside of it. He got back
into the Lincoln Towncar, and showed the bag to Abaia. The two drove off,
followed by two of the plain-clothed police investigators driving an unmarked
police car. Zoletta turned around and made eye contact with one of the
investigators. The investigators observed Zoletta lean over, apparently to stuff
the bag under the front seat. After Zoletta and Abaia had driven two blocks and
turned the corner, the investigators pulled them over.
14

The investigators saw the clear bag with a white shopping bag inside. In the
white bag, the investigators found what appeared to be approximately 200
grams of methamphetamine, and they placed Abaia and Zoletta under arrest. A
search of the car uncovered more drugs and drug paraphernalia, including a
small gram-weight scale, pipes used for smoking methamphetamine, ziplock
bags, a cell phone, and a pager. At this point, Zoletta cooperated with the
investigators, telling them that he had worked for Del Rosario delivering
methamphetamine for two years in New York City and New Jersey. Zoletta
told the investigators that he had just been in Del Rosario's apartment, Unit 2C,
and that Del Rosario had just given him a package of drugs to deliver. Zoletta
told the investigators that there were several people still in the apartment.

15

The interchange lasted only a few minutes, after which the officers decided to
get a search warrant. However, apparently fearing that their arrest of Zoletta
would tip off the occupants in the apartment to destroy the drugs, the officers
decided to forego getting the warrant. Instead, the investigators returned to the
apartment building and with the uniformed officers went up to Del Rosario's
apartment. They knocked, and when a woman answered, the uniformed officers
stated that they had received a disturbance call and asked if they could come in
to see if everyone was all right. The woman, Perez, let them into the apartment.

16

Upon entering, the officers encountered Del Rosario, Perez, Alcantera, Batoon,
and Almiranez inside. A bag of approximately 100 grams of crystal
methamphetamine was in plain view on top of the television in the living room.
The officers placed all of the occupants of the apartment under arrest and
conducted a protective sweep to secure the premises and to assure their safety.
Perez told the officers that she had just returned from the Philippines and was
staying at the Queens Motor Inn. She gave her consent to search the hotel room
and handed the officers the key. At this point, two of the officers left with
Zoletta to obtain search warrants for Del Rosario's apartment and Perez's hotel
room.

17

The officers completed the warrant affidavit with the assistance of the Queens
County District Attorney's office. They included in the warrant reference to

what was seen at the apartment. However, due to the unavailability of judges at
the late hour, the officers had to travel to Manhattan to obtain judicial review of
the warrant application.
18

Meanwhile, back at the apartment, Daluro arrived with a suitcase containing

$67,500. The officers present placed him under arrest and seized the suitcase.

19

At approximately 4:00 the next morning (February 26), the officers who went
for the search warrant returned to Del Rosario's apartment with the warrant and
began to conduct a search. In the course of the search, they discovered
approximately four kilograms of crystal methamphetamine, over $28,000 in
cash belonging to Del Rosario, hand-written records of drug transactions,
numerous plastic ziplock bags in five different sizes, several BB rifles and
pistols, three cell phones, a pager, a combination cell phone and two-way radio,
and a bulletproof vest.

20

From Perez the officers seized $724, her passport, a Virginia driver's license,
and two credit cards. From her hotel room, they seized the written itinerary for
her recent trip to Manila and credit card receipts from her stay there. From
Almiranez the officers took into custody three plastic bags and a cigarette box
containing 116 grams of crystal methamphetamine. They captured from
Alcantera a cell phone with a battery and a pager. From Batoon they took hold
of a small amount of methamphetamine consistent with personal use and a
pager.
B. Procedural Background

21

On March 1, 1999, a federal grand jury issued a one-count indictment charging

Appellants and five co-defendants1 with violating 21 U.S.C. 846 by
conspiring to distribute and to possess with intent to distribute more than one
kilogram of methamphetamine in the District of New Jersey and elsewhere,
contrary to 21 U.S.C. 841(a)(1). Several of the defendants filed motions to
suppress the physical evidence seized by the police. On August 18, 1999, the
District Court conducted a hearing on the motions to suppress, and on
September 10, 1999, the District Court issued a letter opinion denying all of the
suppression motions.

22

On August 16, 1999, prior to the District Court's ruling on the suppression
motions, Daluro pled guilty to the indictment pursuant to a cooperation and plea
agreement with the Government. On October 20, 1999, Del Rosario pled guilty
to the indictment pursuant to a plea agreement that did not require his

cooperation with the Government. On the same day, Zoletta and Almiranez also
pled guilty to the indictment pursuant to cooperation agreements with the
Government.
23

The remaining defendants Perez, Alcantera, Batoon, and Abaia were tried
jointly on the charge in the indictment. At trial, Daluro,2 Zoletta, Almiranez,3
and Uy,4 an unindicted co-conspirator, all testified on behalf of the
Government. Alcantera was the only defendant to testify. In its motion for
acquittal at the close of the Government's case, the defense made a general
application claiming that the Government did not produce credible evidence to
sustain a conviction. The motion did not specifically raise venue as a disputed
issue, i.e., whether the trial should have occurred in the District of New Jersey.
The District Court denied the motion, responding: "The Court determines that
there is indeed ... sufficient evidence for the jurors to find beyond a reasonable
doubt both the existence of the conspiracy charged in the indictment and the
participation and membership of each of the defendants on trial in that
conspiracy." At the jury charge conference and following the charge, the
defendants requested that the District Court instruct the jury on venue. The
District Court denied this request.

24

On November 11, 1999, the jury returned guilty verdicts against Perez,
Alcantera, and Batoon, and acquitted Abaia. Appellants moved for a new trial,
arguing that the District Court should have submitted the question of venue to
the jury. The District Court denied this motion, but cautioned:

25

If indeed I am wrong and the law to be applied to this case is such that this was
a matter that should have been submitted to the jury upon a defense request,
upon submission of the jury instructions, then I would not conclude the Court's
decision to do otherwise is harmless error. I think the evidence, in other words,
as to the presence of venue in the District of New Jersey is not so overwhelming
that the jury couldn't have decided otherwise had it been before it.

26

The District Court conducted sentencing hearings in March 2000, and imposed
sentences at or near the bottom of the applicable Sentencing Guideline ranges
for each defendant.5 The Appellants filed timely appeals, which are
consolidated before us. We have jurisdiction to hear their appeals pursuant to
28 U.S.C. 1291.

II. Failure to Instruct the Jury on Venue

27

Appellants claim that the District Court erred when it failed to instruct the jury

whether the District of New Jersey was the proper venue for their trial, as was
alleged in the indictment. As set out above, the crimes alleged with respect to
Appellants appear on their face to have occurred primarily within New York
City. The Government's evidence tying the conspiracy to New Jersey consisted
of the testimony of Uy, an unindicted co-conspirator, and of Daluro, Zoletta,
and Almiranez, all of whom pled guilty, that they conducted their part of the
drug operation in New York and New Jersey and encountered Appellants
Alcantera and Batoon buying drugs from and for Del Rosario.
28

We hold that, where the indictment alleges venue without a facially obvious
defect, the failure to instruct the jury to determine whether that venue is proper
is reversible error only when (1) the defendant objects to venue prior to or at
the close of the prosecution's case-in-chief, (2) there is a genuine issue of
material fact with regard to proper venue, and (3) the defendant timely requests
a jury instruction. Because the first and second prerequisites were unmet here,
the District Court did not err in failing to instruct the jury on venue. Our
reasoning for this rule and our conclusion in this case are discussed below.

29

A defendant in a criminal trial has a constitutional right to be tried in the district

in which the crime was committed. Proper venue is a safeguard that is
guaranteed twice in the Constitution. Article III, Section 2, Paragraph 3
declares that "[t]he Trial of all Crimes ... shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall have been committed...." U.S.
Const. art. III, 2, c. 3. The Sixth Amendment to the Constitution provides
that: "In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law." 6 U.S. Const. amend. VI; see United States v. Baxter, 884
F.2d 734, 736 (3d Cir.1989). The Government has the burden of proving that
venue is proper. United States v. Black Cloud, 590 F.2d 270, 272 (8th
Cir.1979).

30

In 1944, Congress embedded the constitutional venue guarantee in the Federal

Rules of Criminal Procedure. Rule 18 states that "[e]xcept as otherwise
permitted by statute or by these rules, the prosecution shall be had in a district
in which the offense was committed...." That same year, the United States
Supreme Court, in the landmark case United States v. Johnson, 323 U.S. 273,
65 S.Ct. 249, 89 L.Ed. 236 (1944), underscored the importance of safeguarding
the constitutional guarantee of proper venue in criminal trials.

31

These are matters that touch closely the fair administration of criminal justice
and public confidence in it, on which it ultimately rests. These are important

factors in any consideration of the effective enforcement of the criminal law....

Questions of venue in criminal cases, therefore, are not merely matters of
formal legal procedure. They raise deep issues of public policy in the light of
which legislation must be construed.
32

Johnson, 323 U.S. at 276, 65 S.Ct. 249.

33

Despite its basis in the Constitution, venue in the criminal context continues to
occupy a lesser station in the hierarchy of constitutionally-derived rights. The
issue of proper venue in a criminal proceeding can be waived by a defendant.
See United States v. Turley, 891 F.2d 57, 63 (3d Cir.1989); United States v.
Sandini, 803 F.2d 123, 127 (3d Cir.1986), cert. denied sub nom. Moody v.
United States, 479 U.S. 1093, 107 S.Ct. 1306, 94 L.Ed.2d 161 (1987). Further,
the standard for finding a waiver of venue is less rigorous than that for finding
a waiver of the rights to trial by jury, to confront one's accusers and to be free
from self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969); Sandini, 803 F.2d at 127. In Sandini, we observed that
"[o]bjections to venue are waived if not raised in a timely manner." What is
timely depends on whether the alleged error is clear from the indictment.
Where an indictment alleges venue on its face without an obvious defect, "the
defendant has no notice that a facially proper allegation of venue is in fact
defective, and thus there can be no waiver until the close of the government's
case." Id.

34

Under Rule 18 of the Federal Rules of Criminal Procedure, Congress has the
power to lay out the elements of a crime to permit prosecution in one or any of
the districts in which the crucial elements are performed. See United States v.
Flaxman, 304 F.Supp. 1301 (S.D.N.Y. 1969) (referencing Travis v. United
States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961)). Pursuant to this
power, Congress has modified the venue safeguards by statute to fit the
situation of conspiracy. "[A]ny offense ... begun in one district and completed
in another, or committed in more than one district, may be inquired of and
prosecuted in any district in which such offense was begun, continued, or
completed." 18 U.S.C. 3237(a).

35

In addition, venue can be established wherever a co-conspirator has committed

an act in furtherance of the conspiracy.

36

We see no reason why a constructive presence should not be assigned to

conspirators as well as to other criminals; and we certainly cannot assent to the
proposition that it is not competent for Congress to define what shall constitute

the offense of conspiracy or when it shall be considered complete, and do with

it as with other crimes which are commenced in one place and continued in
another.
37

Hyde v. United States, 225 U.S. 347, 363-64, 32 S.Ct. 793, 56 L.Ed. 1114
(1912); see also United States v. Ochoa, 229 F.3d 631, 636 (7th Cir.2000)
(stating the traditional rule that a conspiracy charge may be tried in any district
in which an overt act of conspiracy occurred); United States v. Dabbs, 134 F.3d
1071, 1078 (11th Cir.1998) (holding that in a conspiracy case venue lies where
the conspiracy agreement was formed or in any jurisdiction where an overt act
in furtherance of the conspiracy was committed by any of the conspirators);
U.S. v. Bascope-Zurita, 68 F.3d 1057, 1062 (8th Cir.1995) (same); United
States v. Al-Talib, 55 F.3d 923, 928 (4th Cir.1995) (same); United States v.
Record, 873 F.2d 1363, 1366 (10th Cir.1989) (same).

38

It is against this backdrop that we consider the Appellants' assertion that the
District Court committed reversible error when it failed to instruct the jury on
venue, both after a request by defendants at the charge conference and
following the charge. The specific issue raised by Appellants is whether proof
of venue in a multi-district indictment for conspiracy is a determination of fact
that must be submitted to a properly instructed jury upon defendants' request.
This precise question has not been considered by this Court, although several
other courts of appeal have formulated varying rules governing when a trial
court must instruct the jury on venue. To resolve this issue, we must make the
threshold determinations of whether venue is an element of an offense and, if
so, whether it presents a factual or legal question.

39

A. Is Venue an Element of an Offense?

40

Federal courts of appeals often state that venue is an element of every offense.
See, e.g., United States v. Miller, 111 F.3d 747 (10th Cir.1997); United States v.
Winship, 724 F.2d 1116, 1124 (5th Cir.1984); United States v. White, 611 F.2d
531, 536 (5th Cir.), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849
(1980); but compare United States v. Maldonado-Rivera, 922 F.2d 934, 969 (2d
Cir.1990) (rejecting defendants' attempt to challenge venue based on supposed
omission in the counts with which they had been charged and stating that "
[v]enue, however, is not an element of the offense"). In general, "[t]he
Constitution gives a criminal defendant the right to have a jury determine,
beyond a reasonable doubt, his guilt of every element of the crime with which
he is charged." United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310,
132 L.Ed.2d 444 (1995).

41

Further inquiry, however, reveals that the term "element" lacks its usual force
in the context of venue. What the courts give criminal defendants on this issue
with one hand they frequently take away with the other. When courts describe
venue as an element, they often distinguish it from "substantive" or "essential"
elements. See United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir.1988);
United States v. Griley, 814 F.2d 967, 973 (4th Cir.1987); Miller, 111 F.3d at
749; Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir.1981). The Fifth
Circuit has explained that while venue is an element, it will be protected less
vigorously than other elements. See Winship, 724 F.2d at 1124. Likewise, the
Seventh Circuit has recognized that while one may call venue an element, "it is
an element more akin to jurisdiction than to the substantive elements of the
crime." United States v. Massa, 686 F.2d 526, 530 (7th Cir.1982) (citing White,
611 F.2d at 536). Put another way, "[v]enue is wholly neutral; it is a question of
procedure, more than anything else, and it does not either prove or disprove the
guilt of the accused." Wilkett, 655 F.2d at 1011.

42

In keeping with venue's Boswellian status as a criminal element, courts require

a lesser standard of proof than with regard to the other elements of an offense
a preponderance of the evidence rather than beyond a reasonable doubt.7
See, e.g., United States v. Barsanti, 943 F.2d 428 (4th Cir.), cert. denied, 503
U.S. 936, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992); United States v. Gonzalez,
922 F.2d 1044, 1054-55 (2d Cir.), cert. denied, 502 U.S. 1014, 112 S.Ct. 660,
116 L.Ed.2d 751 (1991); United States v. Taylor, 828 F.2d 630 (10th Cir.1987);
Winship, 724 F.2d at 1124; United States v. Males, 715 F.2d 568 (11th
Cir.1983); Massa, 686 F.2d at 531; United States v. Davis, 666 F.2d 195 (5th
Cir.1982); United States v. Haley, 500 F.2d 302, 305 (8th Cir.1974); United
States v. Powell, 498 F.2d 890 (9th Cir.), cert. denied, 419 U.S. 866, 95 S.Ct.
121, 42 L.Ed.2d 103 (1974); 2 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure 307 (3d ed.2000). Our Court now explicitly
joins those courts in adopting the preponderance standard for venue, a question
which we reserved in United States v. Passodelis, 615 F.2d 975, 977 n. 4 (3d
Cir.1980).

43

We agree with the Seventh Circuit that venue is "an element more akin to
jurisdiction than to the substantive elements of the crime." Massa, 686 F.2d at
530; White, 611 F.2d at 536. In this context, although an element strictly
speaking, venue does not automatically present a question for the jury. We deal
below with when it does.

44

B. When Must a Jury Instruction on Venue Be Given?

45

Appellants contend that whether venue is proper is always an issue of fact for

45

Appellants contend that whether venue is proper is always an issue of fact for
the jury to decide. The Government, however, argues that where venue is not
disputed at trial, the court may properly find it as a matter of law without
submitting the issue to the jury. This is so, it argues, even if venue might have
been in genuine dispute had it been raised at trial.8 We considered this fact
versus law distinction in Passodelis and held that "the question of venue at
issue here is a matter of law." 615 F.2d at 978. The defendant in Passodelis was
convicted of violating federal law by making contributions to then-Governor
Milton Shapp's presidential campaign in excess of the campaign limit and in the
name of another person. There was no dispute that Governor Shapp's campaign
headquarters were located in the Middle District of Pennsylvania and that
contributions were deposited there. Proper venue turned on the question of
"whether there [was] evidence in the record which will support a finding that
acts which constitute elements of the crimes were committed by Passodelis in
the Middle District." Id. We ruled that the Government did not provide
sufficient evidence to meet its burden of establishing that venue was proper. Id.
The majority opinion distinguished the dissent, which argued that venue in that
case was "wholly factual [in] nature," id. at 979, as follows:

46

The dissent is certainly correct in characterizing the central issue in dispute in

this case as a factual one. However, we are concerned that the dissent
misapprehends the nature of our inquiry. The dissent asserts that we substitute
our own "verdict of acquittal." However, we are not reviewing whether there
was sufficient evidence upon which a jury could have found Passodelis guilty,
but rather whether there was sufficient evidence upon which the district court
could have found that crimes were committed by Passodelis in the Middle
District. In fact, it is completely unnecessary for us to call into question any of
the jury's findings since there is no factual inconsistency between the jury
having found that Passodelis committed the crimes for which he was convicted
and our determination that the evidence was insufficient to support a finding
that crimes were committed by Passodelis in the Middle District. The two
inquiries are, on the facts of this case, entirely separate.... [Moreover,] the
determination as to whether there was sufficient evidence to support a finding
that crimes were committed by Passodelis in the Middle District is a question of
law, not of fact.
Id. at 978 n. 6 (emphasis added). 9

47

Nine years later, in United States v. Baxter, we repeated substantially the

underscored language from Passodelis in concluding that "the question of
venue at issue here is a matter of law...." 884 F.2d 734, 736 (3d Cir.1989). In
Baxter, the defendant was convicted of five counts of receiving an illegal
gratuity while a public official. It was not disputed that Baxter received the

illegal payments (by way of checks drawn on a bank account in Pennsylvania,

deposited in his bank in Arlington, Virginia), at his home in Reston, Virginia,
and that the checks were presented for payment by the Virginia bank at the
bank in Jenkintown, Pennsylvania. Id. Permissible venue turned on the legal
question of whether this scenario constituted a continuing offense such that
prosecution was proper either in the applicable district where the checks were
deposited (Virginia) or where the checks were paid (Pennsylvania).
Considering the individualized acts of the defendant and the continuing nature
of the offense, we concluded that venue was proper. Id.
48

We continued the theme that, at least initially, the "district court's decision
regarding proper venue was an interpretation of law ..." in United States v.
Palma-Ruedas, 121 F.3d 841 (3d Cir.1997), reversed on other grounds sub
nom. United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143
L.Ed.2d 388 (1999). The venue question in Palma-Ruedas was whether "the
government [can] try a defendant for using or carrying a firearm in any venue
where it may try the related crime when the defendant neither carried nor used
the firearm in that venue." Palma-Ruedas, 121 F.3d at 848. It was undisputed
that the defendant only carried or used the firearm in Maryland. Deciding the
legal question, we determined that venue in New Jersey was improper. Id. at
850-51.

49

Turning to this case, the District Court, in ruling on the venue issue raised by
the defense for the first time at the jury charge conference, relied on our
declarations in Baxter and Palma-Ruedas that venue was a matter of law. In
discussing these cases, the District Court noted orally:

50

[T]he determination of criminal venue is a matter for the court, is a matter of

law, and not for the jury as a matter of fact.

51

So with that reaffirmation of the strength of the Baxter rule, although in a

slightly different context, this Court determines that it will not instruct the jury
on the question of venue. Furthermore, the Court determines at this juncture
that there is certainly sufficient evidence of proper venue in this district with
regard to all of the defendants. So that if faced with a motion at this juncture to
dismiss the case for lack of proper venue, that motion would be denied.

52

We take issue with the District Court's reading of our line of venue decisions to
the extent that it concludes that venue can never pose an issue of fact that
should be submitted to a jury. The trial judge is the gatekeeper at trial, and in so
acting determines as a matter of law whether there are sufficiently disputed

issues of material fact to be decided by the jury. In Passodelis, we were able to

rule as a matter of law because we were reviewing the legal question of
"whether there was sufficient evidence upon which the district court could have
found that crimes were committed... in the ... District." Passodelis, 615 F.2d at
978 n. 6 (emphasis added). In Baxter and Palma-Ruedas, we could rule as a
matter of law because the necessary facts were established and only the legal
question of how broadly we would define venue remained. Baxter, 884 F.2d at
736; Palma-Ruedas, 121 F.3d at 848. Thus, in Baxter, whether checks were
presented for payment in Jenkintown, Pennsylvania would have been a factual
inquiry affecting venue had it been in dispute, but it was not. Similarly, in
Palma-Ruedas, whether the defendant carried a firearm in New Jersey would
have raised a fact question affecting venue except that the Government
conceded that the defendant had never done so. Instead it argued that venue in
New Jersey was proper as a matter of law because the predicate offense of
kidnapping had taken place in part in that state.
53

In this case, the District Court found sufficient evidence existed to show as a
matter of law that venue in New Jersey was suitable, i.e., congruent with some
aspect of the conspiracy crime being committed in New Jersey. This was a
proper determination for the Court to make.10 As noted below, the
Government's evidence on the matter was sufficient to establish venue by a
preponderance, and Appellants did not interpose evidence at trial to raise a
material dispute over this issue such that it needed to be resolved by the jury. In
this context, it was not unlike the undisputed threshold issues of fact in Baxter
and Palma-Ruedas. Put another way, proper venue in a criminal case may pose
a question of fact for the jury if venue is in issue and meets procedural trip
points.

54

When then is venue genuinely in issue, particularly in the context of

conspiracy? This question has not been addressed directly by this Court,
although in United States v. Turley, 891 F.2d 57, 60 (3d Cir. 1989), United
States v. Sandini, 803 F.2d 123 (3d Cir.1986), and United States v. Polin, 323
F.2d 549 (3d Cir.1963), we addressed the broader question of when the failure
to object to venue results in the defendant waiving the issue altogether. What
we consider here is not simply when a defendant waives his right to challenge
venue completely, but when venue presents a fact question for the jury as
opposed to a question of law for the court.

55

The precise issue of when venue is "in issue" so as to raise a fact question for
the jury is one on which our sister courts of appeal differ. The more narrow
view, followed by the Fifth and Seventh Circuits, holds that venue is not in
issue unless it is actually disputed at trial. See Winship, 724 F.2d at 1125-26;

Massa, 686 F.2d at 529-31. But the Tenth Circuit holds that "failure to
instruct[the jury] on venue, when requested, is reversible error unless it is
beyond a reasonable doubt that the jury's guilty verdict on the charged offense
necessarily incorporates a finding of proper venue." Miller, 111 F.3d at 751.
Straddling these opposing positions are the Fourth and Eighth Circuits, which
hold, on the one hand, that venue is in issue whenever defendants might
otherwise be convicted "of the offenses charged without an implicit finding that
the acts used to establish venue had been proven," United States v. Martinez,
901 F.2d 374, 376 (4th Cir.1990); United States v. Moeckly, 769 F.2d 453, 461
(8th Cir.1985), which is the Tenth Circuit's position, but on the other hand have
found harmless the refusal by the trial court to instruct on venue because
evidence that criminal acts occurred in the applicable districts was substantial
and uncontroverted. Martinez, 901 F.2d at 376-77; Moeckly, 769 F.2d at 462.
56

In Massa, the Seventh Circuit adopted an "in issue" rule that looks to whether
trial testimony established venue as a disputed issue of fact. It concluded that
the trial court did not err "in denying a specific venue instruction where the
issue of venue was not disputed" at trial. 686 F.2d at 531. The trial court ruled
that venue had been established as a matter of law based on (1) the sufficiency
of the Government's proof that venue existed in the Northern District of Indiana
as per the indictment, and (2) the fact that Massa did not contest venue by
presenting any contrary evidence. Id. The Appeals Court affirmed and stated
that "[w]here venue is not in issue, no court has ever held that a venue
instruction must be given." Id. at 530.

57

In Winship, the Fifth Circuit followed a harmless error analysis, though it

nonetheless noted that trial testimony is a precondition to putting venue in
issue. There the defendants were charged with, among other counts, conspiracy
to possess with the intent to distribute marijuana and methamphetamine in
Texas, Oklahoma, and Louisiana. Although neither defendant was present in
the Western District of Louisiana where venue was laid, the trial testimony of
several indicted co-conspirators connected them with distribution activities in
that district. Id. at 1120. On appeal, the Fifth Circuit addressed whether the trial
testimony put venue genuinely in issue. It concluded that the uncontroverted
evidence that the charged drug activity occurred in the Western District of
Louisiana was so overwhelming that trial testimony did not put venue "in
issue." Id. at 1125. Therefore, the trial court's failure to instruct the jury in that
case was harmless error. The Fifth Circuit nonetheless admonished against the
trial court's failure to give the venue instruction, noting that "the better
procedure is to give the venue instruction when requested, regardless of
whether the trial court believes trial testimony has put venue in issue." Id. at
1126 n. 13.

58

We find the approach to the "in issue" test formulated by the Fifth and Seventh
Circuits to be more persuasive than the broader view taken (at least
theoretically) by the Fourth, Eighth and Tenth Circuits. Venue cannot be in
issue unless the parties actually dispute it. It is an element "more akin to
jurisdiction than to the substantive elements of the crime." Massa, 686 F.2d at
530. Moreover, objections to venue are waived if not raised in a timely manner.
Sandini, 803 F.2d at 127. An issue that has been waived because no one has
objected to it should not at the same time be "in issue" so as to require a jury
instruction. That paradoxical result, however, appears to be the upshot of a
broad "in issue" rule. Moreover, the reality that the Fourth and Eighth Circuits
have followed conclusions that venue was properly "in issue" with harmless
error analyses affirming the decision not to submit the question to the jury
demonstrates the efficiency of requiring parties to bear the consequences of
their own inaction.

59

We conclude that, where the indictment alleges venue without a facially

obvious defect, if (1) the defendant objects to venue prior to or at the close of
the prosecution's case-in-chief, (2) there is a genuine issue of material fact with
regard to proper venue, and (3) the defendant timely requests a jury instruction,
venue becomes a jury question and the court must specifically instruct the jury
on venue.11 These three requirements are separate. The purpose of objecting to
venue prior to or at the close of the prosecution's case is to alert the prosecution
to the issue and thereby avoid waiving it under Sandini and Polin. A defendant
may object to venue by raising its absence in a pre-trial motion, challenging
during the Government's case its evidence as to venue, or making a motion for
acquittal at the close of the Government's case that specifically deals with
venue.

60

Even if a defendant properly objects to venue, however, it does not become a

fact question for the jury unless the defendant also places it in issue by
establishing a genuine issue of material fact with regard to venue. Trial
testimony may place venue in issue at any time prior to the close of evidence.12

61

When either the time for a venue objection or the opportunities to establish the
facts placing venue in issue pass unavailed, venue is waived even if a jury
instruction is requested. Objecting to venue at the jury instruction phase,
without more, is not sufficient, for it does not flag and establish an issue of fact
that warrants a special jury instruction. As the Seventh Circuit noted in Massa,
"where venue is not in issue, no court has ever held that a venue instruction
must be given." 686 F.2d at 530. Furthermore, we agree with the Court in
Massa that "where venue is not disputed and the Government presents
sufficient evidence of venue ...", it is a matter "particularly suited to

determination by the court as a matter of law." Id. at 531. Finally, as a

procedural matter, a defendant who has both properly objected to venue and
placed it in issue must also timely request a jury instruction on it.
62

We now apply this rule to the facts of the case before us. Here we have an
unchallenged indictment that alleges a conspiracy in New Jersey, buttressed by
trial testimony of two alleged co-conspirators that overt acts in furtherance of
the conspiracy occurred in New Jersey.13 No countervailing evidence was
introduced by the Appellants nor did they at or before trial challenge the
Government's case in any way. Instead, they now counter merely that the
Government's proof of venue rests entirely on testimony from alleged coconspirators. The Government cites the Fifth Circuit's decision in Winship to
support the view that testimony from admitted co-conspirators can sufficiently
support a finding of venue as a matter of law. 724 F.2d at 1120. We agree. The
Government in this case met the minimum requirements.

63

We conclude that the District Court's refusal to instruct the jury on venue,
based on the facts of this case, was not in error despite the defense request for a
jury instruction. Appellants' general application for acquittal at the close of the
Government's case claiming that the Government did not produce credible
evidence to sustain a conviction, which would have been timely, failed to alert
the Government and the Court specifically to the alleged impropriety of venue.
Moreover, trial testimony failed to put venue in issue by creating a genuine
issue of material fact that required resolution by a jury. Appellants offered no
objection to the indictment, which clearly alleges a conspiracy in the District of
New Jersey. Nor did Appellants challenge or contradict (by cross-examination
or evidence introduced during the defense presentation) the venue testimony of
the indicted co-conspirators offered by the Government, which recalled specific
overt acts in furtherance of the conspiracy in New Jersey.14 In this context, the
request for a jury instruction on venue was too little and too late.

III. Suppression of Evidence

64

Appellants argue that the District Court erred in denying their motions to
suppress evidence seized in violation of their Fourth Amendment right against
unreasonable searches and seizures. According to Appellants, neither the
exigent circumstances exception to the warrant requirement nor the
independent source doctrine, both relied upon by the District Court in its denial,
apply here. This Court reviews the District Court's denial of a motion to
suppress for clear error as to the underlying factual findings and exercises
plenary review of the District Court's application of the law to those facts.
United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998).

65

As a threshold matter, Appellants have demonstrated no privacy interest in Del

Rosario's apartment that would permit them to claim the protection guaranteed
by the Fourth Amendment as to the items seized from it. Thus they lack the
capacity to move to suppress the evidence seized. Nor does their claim that the
seizure of items from them personally violates the Fourth Amendment survive
either a harmless error analysis or the independent source doctrine. We
conclude that probable cause to secure a search warrant existed prior to the
officers' entry of Del Rosario's apartment15 and that the independent source
doctrine applies to the items seized. Therefore, we affirm the District Court's
ruling on the suppression motion.

A. Capacity of Appellants to Claim the Protection of the Fourth Amendment

66
The Fourth Amendment guarantees
67

the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures ... and that no warrants shall issue,
but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched and the persons or things to be seized.

68

U.S. Const. amend. IV. In its denial of Appellants' motion to suppress, the
District Court determined that the issue of their "standing" was moot in light of
the Court's decision on the merits that no Fourth Amendment violation
occurred.

69

We may affirm the rulings of the District Court for any proper reason that
appears on the record even where not relied on by it. United States v. Miller,
224 F.3d 247, 248 (3d Cir.2000). We address the capacity issue here because
we think it falls squarely within the Supreme Court's holding in Minnesota v.
Carter, which declared that the "`capacity to claim the protection of the Fourth
Amendment depends ... upon whether the person who claims the protection of
the Amendment has a legitimate expectation of privacy in the invaded place.'"
525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citing Rakas v.
Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). Under this
rule, persons in another's apartment for a short time for the business purpose of
packaging cocaine had no legitimate expectation of privacy in that apartment.
Thus any search which may have occurred did not violate their Fourth
Amendment rights. Id. at 91, 119 S.Ct. 469. Although overnight guests who are
legitimately in a third-party's apartment may have a reasonable expectation of
privacy, Appellants do not qualify. See Minnesota v. Olson, 495 U.S. 91, 98-99,
110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Perez, a resident of Virginia, was
booked at the Queens Motor Inn. She actually stayed at Batoon's home the

night before the arrest. She did not stay overnight at Del Rosario's apartment.
Nor was there any evidence that either Alcantera or Batoon resided at or were
staying overnight at Del Rosario's apartment.
70

Appellants cite to United States v. Erwin, in which the Tenth Circuit ruled, in
the context of an automobile stop and search, that "[e]ven if defendant lacks
standing16 to challenge the search of the car, if the initial stop was illegal, the
seized contraband is subject to exclusion under the `fruit of the poison tree'
doctrine." 875 F.2d 268, 269 & n. 2 (10th Cir.1989) (citing Wong Sun v. United
States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The rationale of
Erwin, however, does not apply in this context. Instead, we find the reasoning
of Justice Kennedy in his concurrence in Carter to be on point. He posed the
following hypothetical where the entry was illegal: "If respondents here had
been visiting twenty homes, each for a minute or two, to drop off a bag of
cocaine and were apprehended by a policeman wrongfully present in the
nineteenth home,... we would have said that Rakas compels the rejection of any
privacy interest respondents might assert." 525 U.S. at 102, 119 S.Ct. 469
(Kennedy, J., concurring); Rakas, 439 U.S. at 143, 99 S.Ct. 421.

71

In sum, we find no evidence that the Appellants were at Del Rosario's

apartment for any purpose other than to engage in drug-related activities. They
therefore have no reasonable expectation of privacy in Del Rosario's apartment
to challenge the items seized therefrom under the Fourth Amendment and their
claims are rejected on that basis. See United States v. Vega, 221 F.3d 789, 797
(5th Cir.2000) (rejecting appellant's challenge of a search where he presented
no evidence to meet his burden of showing that he had a legitimate expectation
of privacy in the residence searched).

72

Alcantera and Batoon also argue, and the Government concedes, that they had
a reasonable expectation of privacy with respect to the items seized from them
personally. From Alcantera the Government seized a cell phone with battery
and a pager; from Batoon a small amount of methamphetamine consistent with
personal use and a pager. However, in light of all of the other evidence properly
seized from Del Rosario's apartment pursuant to the search warrant (see
discussion below), any alleged error in the admission of this evidence is
rendered harmless. See United States v. Price, 13 F.3d 711, 720 (3d Cir.1994)
(finding harmless the erroneous denial of a motion to suppress fourteen
kilograms of cocaine in light of the testimony of several witnesses that
appellant delivered cocaine for distribution, wore a ring associated with a drugtrafficking organization, and worked with members of that organization).

73

B. Independent Source Doctrine and Probable Cause

74

The District Court denied Appellants' motion to suppress evidence based in part
on the long-standing independent source doctrine. That doctrine serves as an
exception to the exclusionary rule and permits the introduction of illegally
obtained evidence where the police had an independent source for the
discovery of the evidence.

75

The essence of a provision forbidding the acquisition of evidence in a certain

way is that not merely evidence so acquired shall not be used before the Court
but that it shall not be used at all. Of course this does not mean that the facts
thus obtained become sacred and inaccessible. If knowledge of them is gained
from an independent source they may be proved like any others.

76

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64
L.Ed. 319 (1920); see also Segura v. United States, 468 U.S. 796, 805, 104
S.Ct. 3380, 82 L.Ed.2d 599 (1984) (noting that evidence is not to be excluded if
police had an independent source); Wong Sun v. United States, 371 U.S. 471,
83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (same). The basis for the rule is the wellestablished principle that "evidence is not to be excluded if the connection
between the illegal police conduct and the discovery and seizure of the
evidence is `so attenuated as to dissipate the taint'." Segura, 468 U.S. at 797,
104 S.Ct. 3380 (citing Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct.
266, 84 L.Ed. 307 (1939)).

77

The facts and legal issues presented in this case are similar to those in Segura.
There, New York Drug Enforcement Task Force agents began surveillance of
Segura based on information that he and another petitioner were "probably"
trafficking in cocaine from their apartment. 468 U.S. at 799, 104 S.Ct. 3380.
After observing the delivery of a bulky package suspected to be cocaine as per
an informant's tip, the officers stopped the recipient couple, found them to
possess cocaine, and placed them under arrest. From this couple, the officers
learned that they had purchased cocaine from Segura. Given that Segura was to
call the couple at approximately 10:00 p.m. to learn if they had sold the
cocaine, and that because of the lateness of the hour a search warrant could not
be obtained, the officers decided to "secure" Segura's apartment to prevent
destruction of the evidence. The officers knocked and entered without the
consent of the woman who opened the door. They conducted a limited security
check while others went to obtain a search warrant. After nineteen hours, the
warrant was issued and the search performed. In concluding that probable
cause existed, although not ruling on the lower courts' conclusion that the entry
and initial search were not justified by exigent circumstances, the Supreme
Court held that

78

the evidence discovered during the subsequent search of the apartment the
following day pursuant to the valid search warrant issued wholly on
information known to the officers before the entry into the apartment need not
have been suppressed as `fruit' of the illegal entry because the warrant and the
information on which it was based were unrelated to the entry and therefore
constituted an independent source for the evidence....

79

468 U.S. at 799, 104 S.Ct. 3380.

80

The Supreme Court did not answer directly the question presented by this case
whether probable cause exists if it was not clearly established that drugs
were in the apartment. But it did conclude that probable cause existed under the
facts of that case, and noted that "[t]he illegality of the initial entry ... has no
bearing on ... whether the evidence first discovered during the search of the
apartment pursuant to a valid warrant issued the day after the entry should have
been suppressed as `fruit' of the illegal entry." Id. at 798, 104 S.Ct. 3380. But
see United States v. Dice, 200 F.3d 978 (6th Cir.2000) (holding that violation of
knock-and-announce rule during execution of valid search warrant warranted
suppression of evidence seized in search following violation).

81

Our case law follows the reasoning in Segura. In United States v. Herrold, we
found that the affidavit for the warrant in question contained sufficient probable
cause to justify the search apart from information the officers learned in the
initial entry. 962 F.2d 1131 (3d Cir.1992).

82

In sum, the district court should have asked two questions: (1) whether a
neutral justice would have issued the search warrant even if not presented with
information that had been obtained during an unlawful search and (2) whether
the first search prompted the officers to obtain the search warrant. If the
answers to these questions are yes and no respectively, which they are in this
case, then the evidence seized during the warranted search, even if already
discovered in the original entry, is admissible. Otherwise the police would
indeed be in a worse position than they would have been in had they not
violated Herrold's Fourth Amendment rights.

83

Id. at 1144. Our ruling in Herrold harmonized the tainted warrant and
independent source doctrines. See id. In response to the fear that police will
have an incentive to avoid the warrant requirement, we noted that the
independent source doctrine

84

by its very nature ... is only applicable where the police have in fact obtained a

warrant. In addition, it will not give the police incentive to search first without
a warrant, because any information discovered in an unlawful search is useless
to the police in a subsequent warrant application. Moreover, our result is
dependent upon our conclusion that the police would have obtained the warrant
even if Hill had not made his original entry.
85

Id. This reasoning applies with equal force to the case before us.

86

Thus we turn to whether the tainted information from the illegal entry
improperly influenced the issuing of the warrant. The Court in United States v.
Restrepo, 966 F.2d 964 (5th Cir.1992), was presented with a warrantless
security sweep of a residence and the subsequent search of that same residence
pursuant to a warrant. It held that "in all such cases the district court should
consider whether the warrant affidavit, once purged of tainted facts and
conclusions, contains sufficient evidence to constitute probable cause for
issuance of the warrant." Id. at 970. Separate and apart from this determination,
the court must also determine "whether information gained through the illegal
search influenced or motivated the officers' decision to procure a warrant." Id.
at 971. This latter point resulted in a remand to the district court.

87

In our case, Officer Koehler testified during the suppression hearing that he had
enough probable cause based on the information provided from CI-1 and
Zoletta to convince an Assistant District Attorney to issue him the search
warrant even if he had never gone into the apartment. But during his testimony
Koehler acknowledged that the affidavit in support of the search warrant
included things seen in the apartment after an entry not justified by exigent
circumstances (and therefore tainted).

88

Q: You included in that affidavit, did you not, the things you or others had seen
in that apartment?

89

A: Yes.

90

Q: You included the methamphetamine that was in plain view in the living
room?

91

A: Right.

92

Q: Did you include those things because you felt they were substantial
information towards getting the search warrant?

93

A: They would just be more helpful, more information.

94

We nonetheless conclude that probable cause for the search warrant existed
before the officers decided to enter Del Rosario's apartment. See Illinois v.
Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Similar to
the situation in Segura, the officers in this case had the apartment under
surveillance based on tips from confidential informants that Del Rosario was
trafficking methamphetamine from his apartment. The officers were also
informed that a woman named "Linette" would be arriving at J.F.K. Airport
from the Philippines with bulky packages on February 24, 1999. This
information and Linette's description were corroborated by customs agents.
While surveilling Del Rosario's apartment the next day, officers observed a
stream of cars stop outside the apartment building, remain for a few minutes,
then leave. In similar fashion, Zoletta and Abaia then pulled up and parked
outside the apartment building. After observing Zoletta leave the building with
a suspicious package and drive away with Abaia, the officers trailed and then
stopped their car. The package contained approximately 200 grams of
methamphetamine. Zoletta independently confirmed that he dealt drugs for Del
Rosario for two years in New York and New Jersey, that he had received these
drugs from Del Rosario, and that he was to deliver them on Del Rosario's
behalf. Zoletta also confirmed the apartment number and that additional people
remained in the apartment. This information was sufficient to establish probable
cause to seek a search warrant for the apartment irrespective and independent
of those items discovered within the apartment in connection with the tainted
police entry. With this independent support, a valid search warrant issued, the
fruit of that search was not tainted, and thus there was no violation of
Appellants' Fourth Amendment rights.

IV. Expert Testimony

95

Alcantera claims that the District Court overstepped Federal Rule of Evidence
702 by permitting the Government's expert witness, Ronald Dixon ("Dixon"),
to testify about facts purported to be within the common knowledge of the
jurors. Alcantera did not object to the District Court's finding that Dixon was
qualified to testify as an expert in the area of drug-trafficking practices and
techniques. Instead, he objected on the ground that there was no need for the
testimony and that it was unfairly prejudicial. We review for abuse of discretion
the District Court's ruling as to the qualifications of Dixon and the reliability of
his testimony. In re Paoli R.R. Yard P.C.B. Litig., 35 F.3d 717, 749 (3d
Cir.1993). We also review for abuse of discretion the Court's refusal to exclude
the evidence under Federal Rule of Evidence 403 because any unfairly
prejudicial effect did not substantially outweigh its probative value. United

States v. Mathis, 264 F.3d 321, 326-27 (3d Cir.2001).

96

In a landmark ruling that led in December 2000 to the amendment of Rule 702
of the Federal Rules of Evidence, the Supreme Court in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993), established the trial court as a gatekeeper to exclude unreliable expert
testimony. Prior to December 2000, Rule 702 read:

97

If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.

98

Fed.R.Evid. 702 (2000). The Rule as amended reads:

99

If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.

100 Fed.R.Evid. 702 (2001).

101 In both versions, the purpose of expert testimony is to assist the trier of facts to
understand, evaluate, and decide complex evidential material. United States v.
R.J. Reynolds Tobacco Co., 416 F.Supp. 313 (D.N.J.1976). "The basic
approach to opinions, lay and expert, in these rules is to admit them when
helpful to the trier of fact." Fed.R.Evid. 704, advisory committee's note.
102 Although this Court has not specifically declared the modus operandi of drug
trafficking as an appropriate or reliable field for expert opinion, several courts
of appeal have consistently admitted such testimony. See United States v. Gil,
58 F.3d 1414, 1421-22 (9th Cir.1995) (ruling expert testimony regarding how
drug-traffickers employ telephone pagers and public telephones to avoid
detection by police was properly admitted); United States v. Tapia-Ortiz, 23
F.3d 738, 741 (2d Cir.1994) (affirming the admission of expert testimony of
how drug traffickers employed telephone pagers "in order to avoid detection");
see also United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir.1994) (ruling
that expert testimony about "tools of the trade" of drug traffickers, including

"beepers," was properly admitted); United States v. Solis, 923 F.2d 548, 549-51
(7th Cir.1991) (concluding that expert testimony that the use of "beepers" by
drug traffickers permit them to be anonymous and mobile was properly
admitted). We join those courts.
103 Dixon, the Lieutenant of Detectives for the Middlesex County, New Jersey
Prosecutor's Office, and a thirty-two year law enforcement veteran, testified
that cellular telephones can be used by drug traffickers to frustrate police
investigations. He explained that police who intercept a cellular call will often
be ignorant of the location of the caller. The police are unable to engage in
simultaneous wire-tapping and surveillance of the caller, a useful investigative
technique that often leads police to the location of a drug delivery. Dixon also
testified that drug traffickers employ telephone pagers to transmit numeric
coded messages. He explained that even if police are able to intercept the coded
message, they will likely be unable to decode it.
104 We conclude that Dixon's testimony meets the "helpful to the trier of fact"
threshold established in Rule 702. It is not common knowledge among lay
persons serving as jurors that police are unable simultaneously to wire-tap
cellular phone calls and keep under surveillance those who make them, or that
numeric pagers are used by drug traffickers to transmit coded messages. Since
this testimony was helpful and relevant, we likewise conclude that the District
Court acted within its discretion in refusing to exclude it under Rule 403.
Therefore, the District Court in this case properly exercised its discretion to
admit Dixon's testimony with respect to drug traffickers' use of cell phones and
pagers to evade location by police investigators.
V. Sufficiency of Evidence of a Single Conspiracy
105
106 Appellants Alcantera and Batoon contend that the evidence was insufficient to
sustain their convictions of conspiring to distribute methamphetamine. First,
they argue that the proofs at trial do not support the jury's verdict as to each of
them. Second, they contend that the Government failed to prove that they were
members of a single conspiracy as charged in the indictment. We review the
sufficiency of the evidence in the light most favorable to the Government, and
credit all reasonable inferences that support the verdicts. See Glasser v. United
States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Riddick, 156 F.3d at
508. The verdict will be sustained if "any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." United States v.
Voigt, 89 F.3d 1050, 1080 (3d Cir.1996).
107 The essential elements of conspiracy are "(1) a shared `unity of purpose,' (2) an

intent to achieve a common goal, and (3) an agreement to work together toward
the goal." United States v. Mastrangelo, 172 F.3d 288, 292 (3d Cir.1999)
(citing United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir.1988)). "This proof
incorporates a demonstration that a defendant has `knowledge of the illegal
objective contemplated by the conspiracy'". Id. (citing Wexler, 838 F.2d at 91).
"The elements of a conspiracy may be proven entirely by circumstantial
evidence, but each element of the offense must be proven beyond a reasonable
doubt." Wexler, 838 F.2d at 90; see also United States v. Kapp, 781 F.2d 1008,
1010 (3d Cir.), cert. denied, 475 U.S. 1024, 106 S.Ct. 1220, 89 L.Ed.2d 330
(1986); United States v. Samuels, 741 F.2d 570, 573 (3d Cir.1984).
108 A. Sufficiency of the Evidence of Conspiracy
109 Alcantera and Batoon argue that the evidence does not support their role as coconspirators. They contend that neither had the requisite knowledge of the
illegal objective of the scheme to distribute methamphetamine such that they
could form an intent or agreement to join the conspiracy. Moreover, they posit
that uncorroborated co-conspirator testimony is insufficient to support a
conspiracy conviction. Instead, Batoon insists that he was merely in a buyerseller relationship with Del Rosario that did not rise to the level of a coconspirator, while Alcantera claims that he was at Del Rosario's apartment to
receive a gift for his newborn son and had no knowledge of the presence of
illegal drugs.
110 The Government need not prove that each defendant knew all of the
conspiracy's details, goals, or other participants. See United States v.
Theodoropoulos, 866 F.2d 587, 593 (3d Cir.1989), overruled on other grounds
by United States v. Price, 13 F.3d 711, 727 (3d Cir.1994). However, the
Government must proffer sufficient evidence from which a jury could conclude
that the drug transaction in which Appellants were involved was "a step in
achieving the conspiracy's common goal of distributing cocaine for profit."
Theodoropoulos, 866 F.2d at 593. As Appellants point out, "a simple buyerseller relationship, without any prior or contemporaneous understanding
beyond the sales agreement itself, is insufficient to establish that the buyer was
a member of the seller's conspiracy." United States v. Gibbs, 190 F.3d 188, 198
(3d Cir.1999) (citing United States v. McGlory, 968 F.2d 309, 324-25 (3d
Cir.1992), cert. denied, 507 U.S. 962, 113 S.Ct. 1388, 122 L.Ed.2d 763
(1993)); see also United States v. Kozinski, 16 F.3d 795, 808 (7th Cir.1994).
However, in Price and Theodoropoulos we reasoned that "even an occasional
supplier (and by implication an occasional buyer for redistribution) can be
shown to be a member of the conspiracy by evidence, direct or inferential, of
knowledge that she or he was part of a larger operation." Price, 13 F.3d at 728;

Theodoropoulos, 866 F.2d at 594.

111 Among the factors the Court considers to determine a defendant's knowledge of
the conspiracy are: (1) the length of affiliation between the defendant and the
conspiracy; (2) whether there is an established method of payment; (3) the
extent to which transactions are standardized; and (4) whether there is a
demonstrated level of mutual trust. Gibbs, 190 F.3d at 199 (citing United States
v. Hach, 162 F.3d 937, 943 (7th Cir.1998), cert. denied, 526 U.S. 1103, 119
S.Ct. 1586, 143 L.Ed.2d 680 (1999)).
112 While these factors are not necessarily dispositive of the issue, their presence
suggests that a defendant has full knowledge of, if not a stake in, a conspiracy:
when a defendant drug buyer has repeated, familiar dealings with members of a
conspiracy, that buyer probably comprehends fully the nature of the group with
whom he is dealing, is more likely to depend heavily on the conspiracy as the
sole source of his drugs, and is more likely to perform drug-related acts for
conspiracy members in an effort to maintain his connection to them.
113 Gibbs, 190 F.3d at 199.
114 Alcantera and Batoon cite to the Tenth Circuit case of United States v. Evans,
970 F.2d 663 (1992), to support their argument that "[m]ere knowledge of an
illegal activity, even in conjunction with participation in a small part of the
conspiracy, does not by itself establish that a person has joined in the grand
conspiracy." Id. at 670. What is needed is "a general awareness of both the
scope and the objective of the enterprise to be regarded as a co-conspirator." Id.
115 Most damaging to this argument is that seven of the eight indicted defendants,
including Alcantera and Batoon, were present in Del Rosario's apartment on
February 25, 1999, when the N.Y.P.D. officers entered the apartment, with
nearly 100 grams of crystal methamphetamine in plain view. Both were present
in the apartment while the methamphetamine was distributed to other persons
to be delivered or sold, and both arguably were providing "security" to Del
Rosario. Alcantera knew of the plan to have Perez smuggle methamphetamine
into the United States after he met with Daluro, and Batoon met with Perez the
night she returned from her trip to the Philippines.
116 Contrary to the claim that he was merely in a buyer-seller arrangement with Del
Rosario, Alcantera admitted to Uy that he was one of Del Rosario's
methamphetamine distributors. Prior to the arrest, Alcantera obtained twenty
grams of methamphetamine from Daluro in New Jersey expressly for delivery

to Del Rosario. Moreover, after Alcantera testified that he never called Del
Rosario on the telephone, the Government confronted him with telephone
records that established that he made and received numerous phone calls to and
from Del Rosario around the time that the shipment of methamphetamine was
due in from the Philippines. Like Alcantera, Batoon received distribution
amounts of methamphetamine from Del Rosario several times, once on credit.
This evidence is sufficient to prove their general awareness of the scope and
objective of the conspiracy.
117 Alcantera and Batoon also argue that the uncorroborated testimony of their
alleged co-conspirators Almiranez, Daluro, Zoletta and Uy is not sufficient to
sustain their convictions, citing to United States v. Sturman, 49 F.3d 1275 (7th
Cir.1995). However, the Sturman Court left "open the question of whether coconspirator testimony alone can support a conspiracy conviction." Id. at 1281
(citing United States v. Martinez de Ortiz, 907 F.2d 629, 632 (7th Cir.1990) (en
banc), cert. denied, 498 U.S. 1029, 111 S.Ct. 684, 112 L.Ed.2d 676 (1991)).
The Seventh Circuit followed Sturman with its opinion in United States v.
Henderson, 58 F.3d 1145 (7th Cir.1995), wherein it held that "[w]e will uphold
a conviction based solely on the uncorroborated testimony of an accomplice
unless his testimony is incredible as a matter of law." Id. at 1148-49.
118 In the context of accomplice testimony, we rejected in United States v.
DeLarosa, 450 F.2d 1057 (3d Cir.1971), the very argument Alcantera and
Batoon proffer. "We follow the Supreme Court in holding that uncorroborated
accomplice testimony may constitutionally provide the exclusive basis for a
criminal conviction." Id. at 1060 (citing Caminetti v. United States, 242 U.S.
470, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). See also Jacobs v. Redman, 616 F.2d
1251, 1255 (3d Cir.1980). This is particularly the case where the defense has
ample opportunity to cross-examine the Government's witnesses, as Alcantera
and Batoon had. See United States v. Enriquez, 201 F.3d 1072, 1074 (8th Cir.
2000) ("[Defense] counsel cross-examined each of the co-conspirators with
whom the government had made plea agreements... and attempted to expose
their potential for bias and self-interest. Furthermore, the jury was specifically
instructed as to its role in weighing witnesses' testimony and credibility. The
jury's decision to credit the testimony of those witnesses was within its
province, and we will uphold the conviction if substantial evidence supports
it.").
119 Viewing the evidence in the light most favorable to the Government, we
conclude that a reasonable jury could have found Alcantera and Batoon guilty
of conspiracy to possess with intent to distribute methamphetamine. Alcantera's
and Batoon's presence at the ringleader's apartment when the drug shipment

was being doled out, their awareness of and involvement with Del Rosario and
Perez around the time of the delivery, as well as repeated dealings with Del
Rosario prior to the arrest, are sufficient facts from which a reasonable jury can
infer a general awareness of the scope of the illegal objective. That some of this
evidence was provided by alleged co-conspirator testimony does not render the
entire evidence insufficient to support the convictions of Alcantera and Batoon.
The Government's evidence addresses each of the factors discussed in Gibbs,
establishing Alcantera's and Batoon's knowledge of the broader conspiracy and
contradicting a mere buyer-seller arrangement.17
120 B. Variance between single conspiracy as charged and the proof at trial
121 Alcantera and Batoon also claim that the single conspiracy charged in the
indictment impermissibly varied from the evidence at trial which proved, at
most, that two separate conspiracies existed. "A defendant alleging a variance
between a single conspiracy charged in an indictment and the proof presented at
trial must demonstrate, first, that there was such a variance and, second, that the
variance prejudiced one of his substantial rights." United States v. Quintero, 38
F.3d 1317, 1337 (3d Cir.1994) (citing United States v. Kelly, 892 F.2d 255, 258
(3d Cir.1989)). "Where a single conspiracy is alleged in the indictment, there is
a variance if the evidence at trial proves only the existence of multiple
conspiracies." Kelly, 892 F.2d at 258 (citing United States v. Smith, 789 F.2d
196, 200 (3d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720
(1986)). The issue of whether a single conspiracy or multiple conspiracies exist
is a fact question to be decided by a jury. United States v. Curran, 20 F.3d 560,
572 (3d Cir.1994) (citing Smith, 789 F.2d at 200). We will sustain the jury's
verdict if there is substantial evidence, viewed in the light most favorable to the
Government, to support a finding of a single conspiracy. Smith, 789 F.2d at
200.
122 To provide notice of the charges against a defendant and to protect against
double jeopardy, the indictment must adequately set forth the crime alleged.
See Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969). Where
evidence at trial proves facts different than those alleged in the indictment, an
impermissible variance may exist. Smith, 789 F.2d at 200. For example, when a
single conspiracy is charged in the indictment and the evidence at trial proves
only the existence of multiple, unrelated conspiracies, there is a variance. See
Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946);
Kelly, 892 F.2d at 258; United States v. Boyd, 595 F.2d 120, 123 (3d Cir.1978).
123 Multiple conspiracies are "separate networks operating independently of each
other." United States v. Barr, 963 F.2d 641, 648 (3d Cir.1992). "However, a

finding of a master conspiracy with sub-schemes does not constitute a finding

of multiple, unrelated conspiracies and, therefore, would not create an
impermissible variance." Smith, 789 F.2d at 200. Thus, the relatedness of the
activities of the co-conspirators in support of the overall illegal scheme can
defeat a claim of multiple conspiracies.
124 Variances "are examined on a case-by-case basis and constitute reversible error
only if the defendant was prejudiced." Smith, 789 F.2d at 200 (citing United
States v. Castro, 776 F.2d 1118, 1121 (3d Cir.1985)); United States v. Somers,
496 F.2d 723, 743 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d
58 (1974). This "variance doctrine" protects a defendant from being tried "en
masse for the conglomeration of distinct and separate offenses committed by
others." United States v. Salmon, 944 F.2d 1106, 1116 (3d Cir.1991), cert.
denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992) (quoting Kelly,
892 F.2d at 258). "The doctrine is intended to prevent a situation in which the
jury might `be unable to separate offenders and offenses and easily could ...
transfer[ ] the guilt from one alleged co-schemer to another.'" Barr, 963 F.2d at
648 (quoting United States v. Camiel, 689 F.2d 31, 38 (3d Cir.1982)).
125 Several courts have focused on the interdependency of the sub-schemes in
support of the overall conspiracy. See, e.g., Evans, 970 F.2d at 670 ("the
defendant's actions must `facilitate the endeavors of other alleged coconspirators or facilitate the venture as a whole'") (citing United States v. Horn,
946 F.2d 738, 743 (10th Cir.1991)); United States v. Sophie, 900 F.2d 1064,
1080 (7th Cir.), cert. denied, 498 U.S. 843, 111 S.Ct. 124, 112 L.Ed.2d 92
(1990); United States v. Kenny, 462 F.2d 1205, 1217 (3d Cir.), cert. denied,
409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972). Interdependency, however,
is merely "evidence of an agreement." United States v. Taylor, 562 F.2d 1345,
1352 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083
(1977). It is not an element of the offense. United States v. DiPasquale, 740
F.2d 1282, 1291 (3d Cir.1984) (citing United States v. Shoup, 608 F.2d 950,
957 n. 12 (3d Cir.1979)).
126 In support of their argument, Alcantera and Batoon cite to a snippet from the
uncorroborated co-conspirator testimony of Almiranez.
127 Q.: (Direct examination of Almiranez by Government) When individuals came
over to [Del Rosario's] apartment, what happened?
128 A.: Oh, they get their drugs too. Everybody that went there, they get their own
drugs.

129 * * * *
130 Q.: Were there any discussions in [Del Rosario's] apartment between you and
the other individuals in the apartment regarding the distribution of crystal
meth?
131 A.: No, we don't we don't discuss those distribution ... we don't discuss
distribution, none.
132 Q.: Why not, why don't you discuss it? A.: Because they distribute in New
York. I do in Jersey. It's different areas.
133 This testimony, Alcantera and Batoon contend, disproves their knowledge of
and interdependency with the "New Jersey" conspiracy. Consequently, they
argue, the Government's allegation and the jury's finding that the two were part
of single conspiracy must fail.
134 We disagree. "To establish a single conspiracy, the prosecutor need not prove
that each defendant knew all the details, goals or other participants." United
States v. Padilla, 982 F.2d 110 (3d Cir.1992). "The prosecution must, however,
demonstrate that a defendant, charging variance, knew that he was part of a
larger drug operation." Quintero, 38 F.3d at 1337 (citing Padilla, 982 F.2d at
114). As we noted above in Part V.A., the Government met this burden of
proof.
135 Moreover, we find that there is sufficient evidence from which a reasonable
jury can find interdependency among the co-conspirators. The Government
demonstrated that methamphetamine is difficult to prepare, find, and purchase
on the streets. Alcantera and Batoon depended on a scheme involving Del
Rosario, Perez and the shipment from the Philippines to possess and distribute
the illegal drug. In turn, Del Rosario depended on the two to distribute the
methamphetamine once it came in. In addition, because Alcantera and Batoon
stayed with Del Rosario throughout the morning and afternoon of the arrest, the
jury could have logically concluded that the two provided security to Del
Rosario as the drugs were distributed. See United States v. Reyes, 930 F.2d 310,
312-13 (3d Cir.1991) (finding a single conspiracy to be proven when there is
"evidence of a large general scheme, and of aid given by some conspirators to
others in aid of that scheme") (citing Kenny, 462 F.2d at 1216).
136 The concern with a "spillover of evidence" is unfounded in this case. The
Government presented evidence that directly implicated both Alcantera and

Batoon in the conspiracy.

137 The majority of the remaining evidence, including the testimony of Zoletta
about his own and Perez's role in the conspiracy, was relevant to both Alcantera
and Batoon regardless whether there was a single or multiple conspiracies.
138 Moreover, the District Court's jury instructions in this case dispel the concerns
of prejudice to Alcantera and Batoon. With respect to the finding of a single
conspiracy, the Court instructed the jury to acquit if the evidence established
"separate or independent conspiracies[that] would be at variance with that
charged," and that "proof of a different conspiracy, that is, one without that
specific objective [alleged in the indictment], would not be proof of the
conspiracy charged in the indictment and would require a verdict of not guilty."
With respect to individualized findings of innocence or guilt, the District Court
instructed the jury to give "separate consideration to and render a separate
verdict as to each defendant based solely on the evidence pertaining to that
defendant," and to "exercise great care to evaluate the evidence or lack of
evidence against each defendant individually ... without regard as to what your
decision as to any other defendant might be."
139 In sum, we find that Alcantera and Batoon have failed to demonstrate (1) a
variance between the single conspiracy as charged in the indictment and the
evidence offered at trial to prove that conspiracy and, (2) regardless of the
alleged variance, any prejudice to them as a result of the Government's proof at
trial.
VI. Refusal to Immunize Del Rosario and Brady Violation
140 Appellants Perez and Batoon claim that the District Court erroneously refused
to immunize Del Rosario so that he could testify as a defense witness at trial.
Based on the same set of facts, Perez and Batoon also claim that the
Government failed to reveal exculpatory evidence to the defense with respect to
Del Rosario's statements to investigators, thereby warranting a new trial. We
review the District Court's refusal to immunize Del Rosario for abuse of
discretion. United States v. Herman, 589 F.2d 1191, 1213-14 (3d Cir.1978).
The District Court's factual findings regarding the likely effect of undisclosed
information are reviewed only for clear error. United States v. Pelullo, 173 F.3d
131, 135 (3d Cir.1999).
141 Immediately following his arrest and after waiving his Miranda rights, Del
Rosario told investigators that Perez had smuggled multiple kilograms of

methamphetamine into the United States from the Philippines and delivered
them to Del Rosario. Months later, Del Rosario changed his story and told
investigators that Zoletta, not Perez, had delivered the drugs to Del Rosario.
Perez sought to present Del Rosario as a defense witness and question him
about the second statement. The District Court had Del Rosario and his attorney
appear before it to determine if he would testify. Del Rosario, outside the
presence of the jury, asserted his Fifth Amendment privilege against selfincrimination and refused to answer any questions. Perez then asked the District
Court to confer immunity on Del Rosario so that he could be compelled to
testify as a defense witness, in the hope that he would testify in accordance with
his second statement and exculpate Perez. The Government opposed the
request.
142 We have prescribed a five-factor analysis when assessing a request to grant
judicial use immunity18 to a witness who refuses to testify: (1) the immunity is
properly sought in the District Court; (2) the witness is available to testify; (3)
the proffered testimony is clearly exculpatory; (4) the proffered testimony is
essential to the defense; and (5) there is no strong governmental interest against
the immunity. See United States v. Cohen, 171 F.3d 796, 802 (3d Cir.1999);
Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980). The
District Court concluded that, because any exculpatory testimony that Del
Rosario might offer on behalf of Perez would be severely impeached by his
prior inculpatory statement against her, Perez could not establish that the
proffered testimony was "clearly exculpatory" or "essential to her defense."
143 A similar analysis applies to the alleged Brady violation. Under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the suppression
by the prosecution of evidence favorable to an accused warrants a new trial
where "the evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194.
Evidence is material if there is a reasonable probability that, had it been
disclosed, the result of the proceeding would have been different. Strickler v.
Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also
Hollman v. Wilson, 158 F.3d 177, 181 (3d Cir.1998) (evidence is material if it
"could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict"); United States v. Perdomo, 929 F.2d 967,
972 (3d Cir.1991) (evidence is favorable if "it may make a difference between
conviction and acquittal").
144 Perez and Batoon argued below that the prosecution violated Brady by failing
to disclose a statement by Del Rosario that Zoletta, not Perez, had delivered the
drugs to Del Rosario. The District Court concluded that the Government had

violated a duty under Brady to disclose the identity of Zoletta as a potential

alternative source for the drugs to the defense for two reasons: first, because
the evidence was "substantially exculpatory," and second, because it was
untimely offered after the immunity hearing. However, the District Court
concluded that a new trial was not warranted because there was no reasonable
probability that the result of the proceeding would have been different if Del
Rosario's statement had been disclosed.19 In other words, the allegedly
exculpatory evidence was neither "essential to the defense" under the immunity
test nor "material" under the Brady test.
145 On appeal, Perez and Batoon offer a litany of reasons why the District Court
should have granted a new trial. First, Perez argues that the suppressed
evidence was material because the defense was prevented from using Del
Rosario's statement to contradict the prosecution's theory of the case. She
contends that Del Rosario's statement that Zoletta had delivered drugs to his
apartment on the night before the raid would have been credible because (1) it
was corroborated by Zoletta's own admission before the jury, and (2) he had
nothing to gain by contradicting the prosecution's theory of the case at a time
when he had hopes for entering into a cooperating plea agreement. However,
the District Court addressed this argument and concluded that Del Rosario's
testimony, even if credible, would not have made a difference in the trial
because, while it may come in to impeach Zoletta, it could not come in for
substantive consideration by the jury because it was inadmissible hearsay an
out-of-court statement by Zoletta offered by Perez to prove the truth of the
matter asserted.
146 This position is supported in cases cited by the Government. See Bradley v.
Nagle, 212 F.3d 559, 567 (11th Cir.2000) (finding undisclosed evidence was
not material where "[e]ach item of evidence was in fact inadmissible at trial"
and the defendant "presents only speculation that he would have uncovered any
admissible evidence from these three hearsay leads"); United States v. Derrick,
163 F.3d 799, 818 (4th Cir.1998) (concluding that undisclosed statements by
legislators to FBI agents were not material in prosecution of legislators for
campaign finance violations in part because they were inadmissible hearsay);
see also Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 133 L.Ed.2d 1
(1995) (per curiam) (finding failure to disclose that witness had failed
polygraph test did not deprive respondent of material evidence because
polygraph results would have been inadmissible at trial, even for impeachment
purposes).
147 The Government responds that the value of Del Rosario's later statement
inculpating Zoletta (and thereby exculpating Perez) would have been undercut

by the fact that Del Rosario's initial statement regarding Perez was fully and
powerfully corroborated by Perez's passport and travel itinerary as well as the
testimony of Uy and Almiranez. Del Rosario's statement is therefore neither
essential to Perez's defense nor material evidence warranting a new trial. We
agree. See United States v. Messerlian, 832 F.2d 778, 795 (3d Cir. 1987)
(finding no Brady violation for failure to disclose exculpatory evidence that
was not credible); see also Buehl v. Vaughn, 166 F.3d 163, 181 (3d Cir.1999)
(holding undisclosed statement that someone other than the defendant
possessed the murder weapon three weeks after the murder was not material
exculpatory evidence "[i]n light of this overwhelming evidence that Buehl had
the [murder weapon] at the time of the killings and that he was the murderer");
Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir.1988) (concluding that evidence
tending to exculpate defendant, Landano, in robbery and murder was not
material because "any such inference would have been directly at odds with
other, stronger evidence implicating Landano in the crime").
148 Perez and Batoon also argue that the suppressed evidence was material because
the defense was prevented from cross-examining Zoletta more vigorously to
develop further evidence exculpating Perez. The District Court concluded that
heightened cross-examination of Zoletta that might have occurred if the defense
had known of Del Rosario's statement would not have induced Zoletta to admit
before the jury that he had been the one to deliver the drugs to Del Rosario's
apartment.
149 Perez and Batoon further argue that the suppressed evidence was material
because it might have persuaded the District Court to grant Del Rosario
immunity so that he could testify for the defense at trial. The District Court,
reconsidering its denial of immunity for Zoletta on defendants' motions for a
new trial, conceded that "had the identity of Mr. Zoletta as a potential specific
alternative source of the drugs been revealed prior to that immunity hearing his
name would certainly have been mentioned and the court would have been
asked to evaluate [Del Rosario's] immunity request in that light." However, the
District Court ultimately concluded that its ruling on use immunity would not
have changed even if the Government had properly disclosed Del Rosario's
statement implicating Zoletta rather than Perez. The Court explained that Del
Rosario's statement would not have been "clearly exculpatory testimony"
warranting a grant of immunity because its value would have been undercut by
Del Rosario's prior inconsistent statement implicating Perez.
150 In this light, the District Court properly came to the conclusion that a retrial was
not warranted because there was no reasonable probability that the suppressed
evidence would have changed the outcome of the original proceeding. The

District Court was best situated to observe Zoletta's demeanor and attitude at
trial. See Messerlian, 832 F.2d at 795 (concluding that, when considering
whether witness's testimony is exculpatory evidence for purposes of possible
Brady violation, the District Court "was best situated to observe the demeanor
of the two witnesses and to assess the consistency of their testimony").
151 In addition, we find no merit to Perez and Batoon's arguments that they were
prejudiced at sentencing by the suppressed statement. It had been disclosed by
the time of sentencing, and the defense lawyer conceded at the sentencing
hearing that he "did not have grounds to dispute" the Probation Office's
calculation of the applicable drug amount based upon the defendants'
participation in the conspiracy.
152 With respect to Del Rosario's testimony, we conclude that the District Court did
not abuse its discretion when it declined to immunize Del Rosario. In light of
the evidence, we find reasonable the District Court's determination that the
disclosure of Del Rosario's statement implicating Zoletta would not have
changed the decision to deny Del Rosario use immunity. See United States v.
Steele, 685 F.2d 793-808 (3d Cir.1982) (judicial immunity properly denied
where proposed immunized testimony would not have been "clearly
exculpatory"); United States v. Lowell, 649 F.2d 950, 965 (3d Cir.1981)
(same); see also United States v. Ammar, 714 F.2d 238, 251 n. 8 (3d Cir.1983)
(judicial immunity properly denied where "the exculpatory nature of [the]
testimony is at best speculative").
VII. Sentencing
153 Finally, Alcantera's and Batoon's challenge of their sentences specifically
that the District Court erred (1) in denying a two level minor role reduction
pursuant to the U.S. Sentencing Guidelines Manual 3B1.220 and (2) in
attributing more than between one and three kilograms of methamphetamine to
Batoon is without merit. Nor does Alcantera's sentence violate Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
A. Minor Role Reduction
154 In United States v. Haut, 107 F.3d 213, 218 (3d Cir.1997), we held that we
must sustain the District Court's factual findings as to a 3B1.2 minimal or
minor role adjustment unless those findings are clearly erroneous. See id. ("We
review under a clearly erroneous standard the district court's factual
determinations, such as whether a defendant receives a reduced or increased

offense level based on his role in the offense."); United States v. Carr, 25 F.3d
1194, 1207 (3d Cir.1994); United States v. Bierley, 922 F.2d 1061, 1064 (3d
Cir.1990) (citing United States v. Mejia-Orosco, 867 F.2d 216, 220-21 (5th
Cir.1989) (holding that role in the offense is a factual determination, albeit
complex; a district court's decision not to apply an adjustment based on such a
determination is reversed only for clear error)). A decision is clearly erroneous
if the reviewing court is left with the definite and firm conviction based on all
the evidence that the trial court made a mistake. United States v. United States
Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Davis v.
United States Steel Supply, No. 2571, 1981 WL 26711, at *6 (3d Cir. Sept.24,
1981).
155 Here, we cannot say that the District Court committed clear error in finding that
Alcantera and Batoon were not entitled to a minor role reduction. The District
Court sentenced Alcantera to 190 months imprisonment. In doing so, the Court
denied his motion for a minor role downward departure of two points. It
reasoned as follows:
156 [T]he definition of a minor participant under Section 3B1.2 is any participant
who is less culpable than most other participants, whose role could not be
described as minimal.... [I]f we take a look at the others involved here, Batoon,
Almiranez, Zoletta, Del Rosario, this Court is not in a position to say it has been
established that Mr. Alcantera is to be considered less culpable than those other
participants.... Their role, although different perhaps than Perez or Del Rosario,
in this Court's view, was significantly important, certainly they are as culpable
as each other in performing those similar functions without which the
distribution and the conspiracy could not have succeeded. So that it's the
Court's determination that Mr. Alcantera is not entitled to a minor role here ...
157 With respect to Batoon, the District Court denied his motion for a minimal or
minor role downward departure of three points, sentencing him to 152 months
imprisonment. The Court stated:
158 [N]ow to the question of ... Section 3B1.2 ... as to whether Mr. Batoon is
entitled to a mitigating role. He asks the Court to consider even his role as
minimal participant and then minor participant, someone entitled to a three
level reduction if his conduct would be classified between those two roles ...
[F]or the purpose of Section 3B1.2, a minor participant means any participant
less culpable than most other participants but whose role should not be
discarded as minimal.... [T]his Court is not in a position to say that Mr. Batoon
is a person who is less culpable than most other participants.... We have a
number of people identified and the Court is not prepared to say that Mr.

Batoon's role could be considered modest.... Mr. Batoon ... [was] on the scene
on the premises for at least a significant period of time on the day in question
while couriers or purchasers, as the case may be, were coming and going for
the purposes of receiving varying amounts of meth from Mr. Del Rosario.
[T]he Court therefore finds ... Mr. Batoon... not so less culpable than any others
as to be determined to be less culpable than most other participants.... So that,
based on that determination as well, the Court declines to apply a minimal or
even a minor role adjustment.
159 Based on the record before us, we conclude that the District Court's findings as
to Alcantera's and Batoon's roles in the conspiracy were not clearly erroneous.
The Court analyzed their respective participation against that of each codefendant and found that each was no less culpable than any other, and
therefore did not qualify for the departure.
B. Quantity Attributable to Batoon
160 Batoon also argues that the Government failed to prove that he was responsible
for any of the drugs, let alone the one to three kilograms found by the District
Court to be the quantity seized from Del Rosario's apartment. We review for
clear error the District Court's findings of fact regarding the relevant quantities
of drugs attributable to the defendant. United States v. Gibbs, 190 F.3d 188,
214 (3d Cir.1999). Calculation of the applicable drug amount must be
determined on the basis of Batoon's relevant conduct. See U.S. Sentencing
Guidelines Manual 1B1.3, 2D1.1. Relevant conduct includes:
161 (1) (A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant; and
162 (B) in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in concert with
others, whether or not charged as a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken criminal
activity,
163 that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense....
164 Id. 1B1.3(a)(1). The application notes help clarify the definition of relevant
conduct. Application note 2 states in part:

165 In the case of a jointly undertaken criminal activity, subsection (a)(1)(B)

provides that a defendant is accountable for the conduct (acts and omissions) of
others that was both:
166 (i) in furtherance of the jointly undertaken criminal activity; and
167 (ii) reasonably foreseeable in connection with that criminal activity.
168 ...
169 In determining the scope of the criminal activity that the particular defendant
agreed to jointly undertake (i.e., the scope of the specific conduct and
objectives embraced by the defendant's agreement), the court may consider any
explicit agreement or implicit agreement fairly inferred from the conduct of the
defendant and others.
170 ...
171 With respect to offenses involving contraband (including controlled
substances), the defendant is accountable for all quantities of contraband with
which he was directly involved and, in the case of a jointly undertaken criminal
activity, all reasonably foreseeable quantities of contraband that were within the
scope of the criminal activity that he jointly undertook.
172 Id. 1B1.3, cmt. n. 2.
173 Batoon contends that he should not be responsible for the amount of drugs
found in Del Rosario's apartment because he did not "agree[] to jointly
undertake" in the drug distribution scheme. However, the District Court found
Batoon responsible for the full amount of drugs pursuant to 1B1.3(a)(1)(A)
because Batoon personally "aided and abetted" the distribution of
methamphetamine by providing security to Del Rosario. Application note 2
explains that a finding of joint undertaking under subsection (a)(1)(B) is not
necessary where the defendant personally aids or abets a crime under (a)(1)(A).
Id. 1B1.3, cmt. n. 2.
174 In response, Batoon replies that he did not "actually agree[] to provide such
security," and thus, he should not be found responsible under this provision.
However, Batoon's argument fails to recognize that the agreement can be
explicit or an "implicit agreement fairly inferred from the conduct of the

defendant and others." U.S. Sentencing Guidelines Manual 1B1.3, cmt. n. 2.

Here, from Batoon's conduct (specifically his remaining in Del Rosario's
apartment for a significant amount of time while several others came and went),
the District Court found an implied agreement between Del Rosario and Batoon
to provide security.
175 I believe it's also a fair inference for the Court to conclude that Mr. Del Rosario
did not want to be alone or virtually alone in the apartment with supplies of
methamphetamine of this kind while being vested with any number of persons
who would be looking for drugs.... [T]he presence of confidants in Mr. Del
Rosario, such as, Mr. Batoon, ... certainly had the effect of providing some
level of security to Mr. Del Rosario....
176 Furthermore, Batoon can be found responsible for the full amount of drugs
pursuant to 1B1.3(a)(1)(B) because the full amount of drugs present in the
apartment and Batoon's conduct were "(i) in furtherance of the jointly
undertaken criminal activity; and (ii) reasonably foreseeable in connection with
that criminal activity." U.S. Sentencing Guidelines Manual 1B1.3, cmt. n. 2.
Batoon's conduct was in furtherance of the jointly undertaken criminal activity
because, as already noted and among other things, evidence exists that he
provided security for Del Rosario while distributing the drugs. The full amount
was reasonably foreseeable to Batoon because he was in the apartment for an
extended period of time while the drugs were being distributed, and there was
information circulating that a large shipment had arrived from the Philippines.
177 With the above in mind, it cannot be said that the District Court committed
clear error in attributing the entire amount of the drugs to Batoon as he "is
accountable for all quantities of contraband with which he was directly
involved and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were within the scope of
the criminal activity that he jointly undertook." Id.; see also Gibbs, 190 F.3d at
214-15 (holding that appellant who acted as enforcer was responsible at
sentencing for all of the drugs distributed during the time he was an enforcer).
C. Apprendi
178 Although not claimed in the District Court, Alcantera, in a pro se addendum to
his counseled brief, claims before us that the District Court erred by calculating
the amount of methamphetamine attributable to him at sentencing by a
preponderance of the evidence, rather than requiring the amount to be
determined by a jury beyond a reasonable doubt. He argues that this violates

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). Because he did not raise this claim in the District Court, our Court
reviews only for plain error. See United States v. Olano, 507 U.S. 725, 113
S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Vazquez, 271 F.3d 93 (3d
Cir. 2001) (en banc); United States v. Mack, 229 F.3d 226, 234-35 & n. 12 (3d
Cir.2000); see also United States v. Swatzie, 228 F.3d 1278, 1281 (11th
Cir.2000).
179 The Supreme Court in Apprendi held that, "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Here, the
District Court's finding of the applicable drug amount did not increase the
penalty for the crime beyond the statutory maximum. Alcantera was sentenced
to 190 months, far less than the lowest statutory maximum for violations of 21
U.S.C. 846, which is 20 years. See 21 U.S.C. 841(b)(1)(C), 846. Thus,
there is no error, let alone plain error, under Apprendi. See United States v.
Williams, 235 F.3d 858, 863 (3d Cir.2000) (ruling that "Apprendi is not
applicable to [appellant's] sentence, because the sentence actually imposed ...
was well under the original statutory maximum of 20 years."); In re Edmonds,
No. 00-3075, 2000 WL 1683479, at *1 (D.C.Cir. Oct.12 2000) (per curiam)
(concluding that because defendant did not exceed the 841(b)(1)(C) statutory
maximum, Apprendi "is not implicated").
VIII. Conclusion
180 For the reasons stated above, we affirm the convictions and sentences of
Appellants Perez, Alcantera and Batoon.

Notes:
*

The Honorable Louis H. Pollak, Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation

The indictment charged Appellants Perez, Alcantera, and Batoon, as well as

Lirio Del Rosario, Augustin Daluro, Roland Abaia, Prajedo Almiranez, and
Arturo Zoletta

Daluro testified that he distributed methamphetamine for Del Rosario in New

Jersey and traveled to Del Rosario's apartment in New York to pick up the
drugs. He frequently saw Almiranez, who also lived in Jersey City, New

Jersey, with Del Rosario. Daluro testified further that he occasionally

encountered Batoon in Del Rosario's apartment when he went there to pick up
drugs, and that Del Rosario typically had a lot of methamphetamine in his
apartment. Daluro also testified that Alcantera had been to his residence in
Jersey City, New Jersey in late January 1999 to buy drugs for Del Rosario
3

Almiranez testified that he sold the methamphetamine he obtained from Del

Rosario to others to resell in Jersey City, New Jersey. Almiranez also testified
that in 1998 he observed Del Rosario give between 10 and 100 grams of
methamphetamine to Appellants Batoon and Alcantera in each of their
respective homes

Uy testified that in the Fall of 1998, while in Del Rosario's apartment, he saw
Del Rosario give drugs to Batoon in exchange for a "wad" of what appeared to
be twenty dollar bills. Uy testified further that in March 1999, while the two
were incarcerated in Queens House, a men's detention center in Queens,
Alcantera boasted to him that he was one of Del Rosario's sellers

The District Court sentenced Perez to a term of imprisonment of 235 months. It

sentenced Alcantera to 190 months, and Batoon to 152

The framers, explained Justice Frankfurter inUnited States v. Johnson, 323 U.S.
273, 275, 65 S.Ct. 249, 89 L.Ed. 236 (1944), wrote the first of these provisions
into the Constitution because they were "[a]ware of the unfairness and hardship
to which trial in an environment alien to the accused exposes him...." The
second provision, providing the "State and district" from which the jury is to be
drawn, serves as a reinforcement to the first "[a]s though to underscore the
importance of this safeguard." Id.
The provision in Article III is literally a venue provision because it fixes the
place of trial, whereas the Sixth Amendment is a vicinage guarantee because it
determines from where the jurors in a criminal trial shall be selected. "This
distinction, however, has never been given any weight, perhaps because it is
unlikely that jurors from one district would be asked to serve at a trial in
another district, or perhaps, more importantly, because the requirement ...
presupposes that the jury will sit where it is chosen." United States v.
Passodelis, 615 F.2d 975, 977 n. 3 (3d Cir. 1980).

The Tenth Circuit has pointed out that the Supreme Court inGaudin did not
have occasion to address the proper treatment of a nonsubstantive element like
venue. Miller, 111 F.3d at 749-50 (citing Gaudin, 515 U.S. at 509 n. 1, 115
S.Ct. 2310).

The only Supreme Court case addressing the fact versus law distinction with
respect to venue dates to 1861. InUnited States v. Jackalow, 66 U.S. 484, 1
Black 484, 17 L.Ed. 225 (1861), the Supreme Court ruled that for purposes of
determining whether venue existed in one district for a piracy conviction, the
existence of a border dispute between states, affecting the determination of
where the acts actually occurred, did not provide a basis to conclude that those
acts occurred within that district.
We did not decide, however, the standard of proof (beyond reasonable doubt or
preponderance of the evidence) for determining venue because "under either
standard ... the government has not met the burden."Id. at 978 n. 4.

10

Several Courts recognize that venue can be "a question of fact" that ordinarily
must be decided by the juryUnited States v. Miller, 111 F.3d 747, 749 (10th
Cir.1997) (citing United States v. Rinke, 778 F.2d 581, 584 (10th Cir.1985));
United States v. Record, 873 F.2d 1363, 1370 (10th Cir.1989); United States v.
Winship, 724 F.2d 1116, 1124 (5th Cir.1984); United States v. Black Cloud,
590 F.2d 270, 272 (8th Cir.1979) ("Whether the receipt of the firearm in
question occurred in the District of North Dakota, so that venue in that district
was proper, was a question of fact for the jury."); Green v. United States, 309
F.2d 852, 856 (5th Cir.1962); United States v. Gillette, 189 F.2d 449, 452 (2d
Cir. 1951). But this does not mean that every venue determination presents a
jury question. For whether sufficient evidence exists to support a finding that
crimes were committed in New Jersey is a question of law for the court. See
Passodelis, 615 F.2d at 978 n. 6.

11

While we hold that the trial court was not required to give a venue instruction
under the facts of this case, the better practice is to give the instruction when
requested. This is especially the preferred course in this case, where the trial
judge later offered that "the evidence... as to the presence of venue in the
District of New Jersey is not so overwhelming that the jury couldn't have
decided otherwise had it been before it."

12

Our ruling that venue is in issue if the defendant does no more than introduce
direct evidence during the defense presentation does not run afoul of the rule
inSandini, 803 F.2d at 127, that, where the indictment alleges facially valid
venue, objections to venue are waived if not raised at or before the close of the
Government's case. The timing cutoff of Sandini and Polin refers to when the
defendant must object to venue. Having made a timely objection, the defendant
normally needs to present testimony that places venue in issue at any time prior
to the close of evidence. Alternatively, the court may find that the
Government's testimony places venue in issue notwithstanding the defense
presentation.

13

This begs the question of what happens if the Government alleged facially valid
venue in the indictment but offered no testimony at trial proving venue. If no
defense objection is raised at or before the close of the Government's case-inchief,Sandini and Polin instruct that, notwithstanding the lack of prosecution
testimony, the venue defense is waived. Sandini, 803 F.2d at 127; Polin, 323
F.2d at 557.
A related question is what happens when facially valid venue is alleged in the
indictment, the Government presents no evidence on venue during its case-inchief, and the defense objects at the close of the Government's case. In that
case the District Court has the discretion to allow the Government to reopen its
case. This "give[s] the government an opportunity ... to provide additional
proof, if possible, to cure an insufficient presentation on venue." Turley, 891
F.2d at 61.

14

The District Court, in its denial of the defense motion for a new trial, stated that
"the evidence ... as to the presence of venue in the District of New Jersey is not
so overwhelming that the jury couldn't have decided otherwise had it been
before it." Given the absence of a dispute of material fact, "overwhelming"
evidence was not necessary for the District Court to conclude that the
Government's burden was met. The testimony of co-conspirators in this case
was sufficient to support venue in New Jersey

15

Although we have doubts about the District Court's finding that exigent
circumstances were present to justify the arresting officers' decision to enter
and secure the premises, we need not address this issue in view of our
conclusions on the lack of a privacy interest and the independent source
doctrine

16

InRakas the Supreme Court opined that "the determination of whether the
proponent of a motion to suppress is entitled to contest the legality of a search
and seizure ... belongs more properly under the heading of substantive Fourth
Amendment doctrine than under the heading of standing...." 439 U.S. at 140, 99
S.Ct. 421. To some this may seem a distinction without a difference. See
United States v. Felton, 753 F.2d 256, 259 n. 1 (3d Cir.1985) ("The question
necessarily arises whether it serves any useful analytical purpose to consider
this principle a matter of standing, distinct from the merits of a defendant's
Fourth Amendment claim. We can think of no decided cases of this Court that
would have come out differently...."); see also United States v. Baker, 221 F.3d
438 (3d Cir.2000) (using "standing" interchangeably with "reasonable
expectation of privacy" in discussing the right to challenge the search of a car).
Nonetheless, "the better analysis forthrightly focuses on the extent of a
particular defendant's rights under the Fourth Amendment rather than on any

theoretically separate, but invariably intertwined concept of standing." Felton,

753 F.2d at 259 n. 1.
17

The concern of the Tenth Circuit inEvans, echoed by Chief Judge Becker in
footnote 3 in Gibbs that a small time drug dealer could be held responsible
for all of the drugs originated by the cartel for sentencing purposes is not
implicated in this case. We conclude that Alcantera and Batoon had sufficient
knowledge of and a stake in the larger conspiracy to justify a jury finding them
to be co-conspirators. See Gibbs, 190 F.3d at 199 n. 3; Evans, 970 F.2d at 670.
Moreover, we note that the District Court in this case instructed the jury that "
[a] buyer-seller relationship alone is insufficient to prove a conspiracy to
distribute or a conspiracy to possess with intent to distribute an illegal drug.
This is the case even when the buyer intends to resell the purchased narcotics."

18

Use immunity, conferred by the judge on a witness who refuses to testify,

prohibits a witness' compelled testimony and its fruits from being used in any
manner in connection with the criminal prosecution of the witness except a
prosecution for perjury, giving a false statement, or otherwise failing to comply
with the orderSee 18 U.S.C. 6001-6005.

19

Here, the District Court slightly misstated the law because "strictly speaking,
there is never a real `Brady violation' unless the nondisclosure was so serious
that there is a reasonable probability that the suppressed evidence would have
produced a different verdict."Strickler, 527 U.S. at 281, 119 S.Ct. 1936. The
Government does not violate Brady unless the undisclosed evidence is found to
be material. Because the District Court ruled that the evidence was not material
to Perez's defense, no Brady violation occurred.

20

Section 3B1.2 states:

Based on the defendant's role in the offense, decrease the offense level as
follows:
(a) If the defendant was a minimal participant in any criminal activity, decrease
by 4 levels.
(b) If the defendant was a minor participant in any criminal activity, decrease
by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.