Opinion
CRIMINAL NO. 08-1408 WJ.
March 13, 2009
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE
THIS MATTER comes before the Court on Defendant Edwin Talamantes' Motion to Dismiss for Improper Venue [Doc. 20]. Having considered the parties' written and oral argments and the applicable law, the Court finds that Defendant's motion is not well taken and shall be DENIED.
BACKGROUND
On March 23, 2004 Defendant Talamantes was indicted by a federal grand jury for conspiracy and possession with intent to distribute marijuana in violation of 18 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). Defendant pleaded guilty to the first count of the indictment on June 22, 2004, and was sentenced to a term of incarceration of 46 months. Defendant was granted voluntary surrender, and was ordered to surrender at the Eden Detention Center in Eden, Texas on or before June 20, 2005 at 2:00 p.m. The Defendant did not surrender, and was arrested in Albuquerque, New Mexico on June 2, 2008. On June 24, 2008 a federal grand jury in New Mexico returned an indictment against Defendant for failure to appear, in violation of 18 U.S.C. § 3146(a)(2). Defendant now moves to dismiss for improper venue.
ANALYSIS
Article III of the United States Constitution requires that the trial of any crime be held in the state where the crime was committed. U.S. Const. art. III, § 2, cl. 3. Consistent with this constitutional requirement, Federal Rule of Criminal Procedure 18 provides, "Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed." Defendant argues that, because the facility to which he failed to surrender was located in Texas, his alleged failure to appear must be considered to have taken place in Texas and not New Mexico. Since the statute under which Defendant is charged, 18 U.S.C. § 3146(a)(2), does not make any special provision for venue, Defendant urges that venue can only be proper in Texas.
Defendant's argument fails to give sufficient credence to Tenth Circuit precedent clearly holding that failure to appear is a continuing offense, see United States v. Martinez, 890 F.2d 1088, 1091 (10th Cir. 1989) ("[W]e have no doubt that the offense of failure to appear under 18 U.S.C. § 3146 is a continuing one."), meaning that it is an offense which may begin in one place but continue in another. See United States v. Chappell, 854 F.2d 190, 193 (7th Cir. 1988) (holding that venue is proper both in the district where a defendant's release is ordered and in the district where he is ordered, but fails, to appear); United States v. Reed, 773 F.2d 477, 480 (2d Cir. 1985) (holding that prosecution may take place in any district where effects of the alleged crime are felt). 18 U.S.C. § 3237(a) provides, "[A]ny offense against the United States 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." Defendant's failure to appear began in Texas, but it continued in New Mexico when he sought refuge here. Therefore, pursuant to 18 U.S.C. § 3237(a), venue is proper in both Texas and New Mexico.
CONCLUSION
Failure to appear is a continuing offense which Defendant began in Texas, but which he continued in New Mexico when he came to New Mexico after having failed to surrender in accordance with the terms of the Court's voluntary surrender order. Because a continuing offense may be prosecuted in any district where it was begun or where it was continued, venue is proper in New Mexico.
THEREFORE, IT IS ORDERED that Defendant's Motion to Dismiss for Improper Venue [Doc. 20] is hereby DENIED.