Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals,
Fifth Circuit.
No. 93-9135.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jeffrey B. POMRANZ, Defendant-Appellant.
Jan. 26, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before REYNALDO G. GARZA, DeMOSS and BENAVIDES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Jeffrey B. Pomranz (the "appellant") was convicted on March
10, 1989, by a jury on all thirteen counts of a superseding
indictment.1 Count one of the indictment charged the appellant
with conspiracy to distribute over 1000 kilograms of marihuana in
violation of 21 U.S.C. § 846; counts two and fifty-one through
fifty-three charged unlawful use of a communication facility in
violation of 21 U.S.C. § 843(b); counts fifty-four through
fifty-nine charged interstate travel in aid of racketeering in
violation of 18 U.S.C. § 1952; count sixty charged aiding and
abetting the possession with intent to distribute marihuana in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and count
sixty-one charged unlawful use of a firearm during a drug
1On December 7, 1988, a grand jury indicted Pomranz in
sixty-one counts for conspiracy to distribute marihuana and other
drug-related offenses. Counts three through fifty of the
sixty-one count superseding indictment were dismissed at the
government's request.
1

trafficking offense in violation of 18 U.S.C. § 924(c)(1).
On May 12, 1989, the district court sentenced Pomranz under
the Sentencing Reform Act to 216 month concurrent prison terms on
each of counts one, two and fifty-one through sixty. On count
sixty-one, the court imposed a 60 month consecutive prison term, as
required by § 924(c)(1). The court further imposed a five-year
mandatory minimum term of supervised release and a mandatory $650
in special assessments. This Court affirmed the judgment on May
22, 1990, in United States v. Pomranz, 904 F.2d 703 (5th Cir.1990)
(table).
Pomranz filed a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255, alleging for the first time
that venue was improper in his conviction on count sixty-one of the
superseding indictment. He also alleged that his counsel was
ineffective for failing to ever raise that issue. Pomranz appeals
the lower court's decision denying the requested relief. For the
reasons below we affirm.
FACTS
The district court adequately summarized the facts of this
case as follows:
The evidence at trial established that during the months of
October and November 1988, Defendant Pomranz met several times
with Mike DeLaFlor, an undercover DEA agent in Fort Worth, for
the purpose of arranging the purchase of 4,000 pounds of
marijuana. After several meetings in Texas and conversations
on the phone, Pomranz and DeLaFlor agreed that the marijuana
would be transported in two shipments of 2,000 pounds each at
a total purchase price of $1.6 million, with $100,000 as front
money, another $100,000 when the marijuana was delivered to
the Dallas area, and then $400,000 to $800,000 after the
marijuana was delivered to Pomranz.
2

The first payment of approximately $100,000 was made on
November 12 by one of the men working for Pomranz. After
having the marijuana shipment initially inspected in Dallas,
Pomranz met DeLaFlor in Arlington, Texas, on November 17, 1988
and made the second $100,000 payment. That evening, DeLaFlor
left for Oklahoma City to obtain the final payment from
Pomranz. This payment was agreed to be made only after
Pomranz received verification that the marijuana was in the
hands of his people in Dallas.
On November 18, 1988, Pomranz arrived at the Oklahoma City
motel in which DeLaFlor had taken a room. Before entering the
motel, Pomranz secreted an automatic weapon in his jacket and
then proceeded to DeLaFlor's room carrying a box containing
more than $400,000. Pomranz and DeLaFlor then waited in the
motel room for word that the marijuana had changed hands.
After the marijuana was transferred, the authorities arrested
several of Pomranz's co-conspirators in Texas, and then
Pomranz himself in Oklahoma.
The 2255 motion is directed at count sixty-one of the
indictment, which reads as follows:
On or about November 18, 1988, [the appellant] did unlawfully
use and carry a firearm, that is, a Raven, Model P-25, .25
caliber handgun, serial number 640102, in Oklahoma City,
Oklahoma, during and in relation to a drug trafficking crime
occurring in the Northern District of Texas and elsewhere, as
alleged in Count [one] and Count [sixty] of this indictment.
(emphasis added). Evidence was presented at trial showing that
Pomranz possessed the gun in Oklahoma City at the time of his
arrest on November 18, 1988, as alleged in the indictment.
However, no evidence was presented to indicate that Pomranz used or
carried the weapon at any time within the Northern District of
Texas, or that he transported the weapon from Texas to Oklahoma.
DISCUSSION
The appellant asserts that venue on count sixty-one was
improper because the § 924(c)(1) charge could be prosecuted only
where the firearm was "used" or "carried," i.e., in Oklahoma.
Although the issue was never raised at trial or on direct appeal,
3

Pomranz further argues that waiver of a good venue defense must be
knowing and intelligent on the part of the defendant. In addition,
Pomranz claims that his counsel's failure to raise the alleged
venue defense proves he was afforded ineffective assistance of
counsel. Because this Court finds that venue was proper, the
appellant's conviction is affirmed.
Venue law
Article III, section 2, clause 3 of the United States
Constitution provides that "The Trial of all Crimes, except in
Cases of Impeachment, shall be ... held in the State where the said
Crimes shall have been committed...." The Sixth Amendment expands
this rule and expresses it as a right of the accused by providing
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...."
U.S. CONST. amend. VI. In addition, the Federal Rules of Criminal
Procedure ensure this constitutional right by providing that
"[e]xcept as otherwise permitted by statue or by these rules, the
prosecution shall be had in a district in which the offense was
committed." FED.R.CRIM.P. 18. These provisions reflect that in
criminal cases the question of venue is not a legal technicality,
instead, it is a significant matter of public policy. United
States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 250-51, 89
L.Ed. 236 (1944).
Congress has provided that:
[A]ny offense against the United States begun in one district
and completed in another, or committed in more than one
4

district, may be inquired of or prosecuted in any district in
which such offense was begun, continued or completed.
18 U.S.C. § 3237(a). Furthermore, venue in conspiracy cases is
proper in any district where the agreement was formed or where an
overt act in furtherance of the conspiracy was performed. United
States v. Caldwell, 16 F.3d 623, 624 (5th Cir.1994); United States
v. Winship, 724 F.2d 1116, 1125 (5th Cir.1984).2 Since, a
conspiracy to distribute marihuana is a continuing offense under
section 3237,3 venue may lie in any district where an overt act was
committed.
In light of the conspiracy law, Pomranz does not contend that
he was improperly tried for the conspiracy count in the Northern
District of Texas since overt acts occurred there. He further
agrees that he was properly tried in Texas for the other
substantive offenses that he committed while in that state.
However, Pomranz affirmatively claims that the constitution
guarantees his right to be tried in Oklahoma for the substantive
offense under § 924(c) because the weapon was carried only in that
state, not Texas. Appellant argues that the conspiracy venue
2The Supreme Court approved this rule despite its dilutent
effect upon venue rights, permitting trials of defendants in
district where they have never set foot. Winship, 724 F.2d at
1125 (citing Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793,
56 L.Ed. 1114 (1912)).
3"A continuing offense is a continuous, unlawful act or
series of acts set on foot by a single impulse and operated by an
unintermittent force, however long a time it may occupy. Where
such an act or series of acts runs through several jurisdictions,
the offense is committed and cognizable in each." United States
v. Midstate Horticultural Co., 306 U.S. 161, 166, 59 S.Ct. 412,
414, 83 L.Ed. 563 (1939) (quoting Armour Packing Co. v. United
States, 153 F.1, 5-6 (8th Cir.1907)).
5

should not automatically extend to the substantive offense and
consequently, an independent venue analysis should be conducted
regarding that offense. Pomranz supports his argument with United
States v. Corona, 34 F.3d 876 (9th Cir.1994).
In United States v. Corona, the defendant was tried and
convicted in the state of Nevada for conspiracy to distribute
narcotics and the substantive crimes arising from the
conspiracy--distribution of cocaine and use of a firearm during drug
trafficking. The substantive crimes occurred in California only,
while overt acts in furtherance of the conspiracy were committed in
both California and Nevada. The defendant argued on appeal that
venue was improper laid in Nevada for the substantive offenses.
In light of these claims, the Ninth Circuit decided that a
court must conduct a separate venue analysis for the substantive
crimes and the conspiracy, even if the substantive crimes were
committed in furtherance of the conspiracy. Id. at 879 (citing
United States v. Jordan, 846 F.Supp. 895, 898 (D.Nev.1994)). Due
to this analysis, the Court determined that venue was improper in
Nevada for the prosecution of the substantive offenses. More
specifically, it concluded that a conviction under § 924(c) could
not be prosecuted where the conspiracy venue lay if the weapon was
also not used or carried in that venue. For the reasons discussed
below, we disagree with the conclusion drawn on that count.
Section 924(c)
Congress enacted Section 924(c) as part of the Gun Control Act
of 1968, Pub.L. 90-618, 82 Stat. 1213, in the wake of the
6

assassinations of Martin Luther King and Robert Kennedy, as part of
a comprehensive response to the "increasing rate of crime and
lawlessness and the growing use of firearms in violent crime."
United States v. Correa-Ventura, 6 F.3d 1070, 1084 (5th Cir.1993)
(quoting H.R.Rep. No. 1577, 90th Cong., 2d Sess. 7 (1968),
reprinted in 1968 U.S.S.C.A.N. 4410). Since then, the original
version of § 924 has been modified several times to deal with
modern concerns. The current version of section 924 provides in
pertinent part:
(c)(1) [w]hoever, during and in relation to any crime of
violence or drug trafficking crime ... uses or carries a
firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime, be sentenced
to imprisonment for five years.... Notwithstanding any other
provision of law, the court shall not place on probation or
suspend the sentence of any person convicted of a violation of
this subsection, nor shall the term of imprisonment imposed
under this subsection run concurrently with any other term of
imprisonment including that imposed for the crime of violence
or drug trafficking crime in which the firearm was used or
carried.
18 U.S.C. § 924 (emphasis added). This Court interpreted the
statute to mean that the mere carrying or use of a firearm was not
the criminal actus reus prohibited by the statute, instead it was
the employment of the weapon in the context of another predefined
crime. Correa-Ventura, 6 F.3d at 1083 (the "essence" of the
offense was that a criminal defendant used a firearm in committing
another federal crime). Congress specifically intertwined the
penalty provisions of § 924 with the underlying offense in order to
alleviate fears that a person could be convicted for carrying a
weapon if he was not involved in a drug trafficking offense (or
violent crime). Id. at 1084. Thus, only the act of carrying a
7

weapon "during and in relation to ... [a] ... drug trafficking
crime" is a substantive offense under § 924(c)(1).
In Correa-Ventura, we also noted that a "common thread
throughout the amendments to Section 924(c) [was] the consistent
increase in deterrence value." Id. For example, after the Supreme
Court decided that a Section 924(c) penalty could not be layered
onto a predicate statute containing its own enhancement provision,4
Congress responded by amending the statute to make clear its intent
that the defendant be sentenced under both enhancement schemes,
thus maximizing the punishment. Comprehensive Crime Control Act of
1984, Pub.L. No. 98-473, § 1005, 98 Stat. 1837, 2138-39. See also
S.Rep. No. 225, 98th Cong., 1st Sess. 312-15 (1983) reprinted in
1984 U.S.S.C.A.N. 3182, 3490-92. The statute underwent further
changes to increase the severity of punishment for this offense by:
(1) requiring that the mandatory sentence run consecutively rather
than concurrently with that of the predicate crime, (2)
substantially increasing the mandatory penalties for violations,
and (3) denying parol or probation privileges during the 924(c)
sentence. Correa-Ventura, 6 F.3d at 1084-85 (internal citations
omitted). It remains patently clear then, that Congress intended
this section to act as a maximum deterrence against using firearms
in connection with other crimes. Id. at 1083.5
4See Simpson v. United States, 435 U.S. 6, 16, 98 S.Ct. 909,
915, 55 L.Ed.2d 70 (1978); Busic v. United States, 446 U.S. 398,
404, 100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (1980).
5The legislation's sponsor, Representative Poff, stated that
a primary objective of the provision was to "persuade the man who
is tempted to commit a Federal felony to leave his gun at home."
8

Overt Acts
In order to properly reach a decision, this Court must not
only examine the language of the statute and the purpose behind it,
we must also review the overt acts committed by the defendant
during the underlying drug transaction. An overt act, is an act
performed to effect the object of a conspiracy, although it remains
separate and distinct from the conspiracy itself. Though the act
need not be of a criminal nature, it must be done in furtherance of
the object of the conspiracy. However, if the act constitutes a
substantive crime, the defendant may be prosecuted for both the
conspiracy offense and the substantive crime as separate crimes.
Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289-
90, 43 L.Ed.2d 616 (1975).
In this case, various acts were committed in furtherance of
the drug conspiracy. For instance, after the initial contact
between Pomranz and agent DeLaFlor: telephone conversations ensued
between the parties to finalize the drug transaction, Pomranz
traveled from Oklahoma to Texas to personally discuss the illegal
activity, plans to inspect a sample of the marihuana before the
actual purchase were consummated, installments on the total
purchase price were made and most crucial to this analysis, Pomranz
carried a weapon during and in relation to delivery of the final
drug payment. Unquestionably, the primary reason that Pomranz
carried a weapon was to protect or further the drug transaction by
ensuring the safe delivery of the drug money.
114 CONG.REC. 22,231 (1968).
9

This situation is not altogether different from cases where
this Court held that the proximity of a weapon to the drugs was
proof that the weapon involved could have been used to protect or
have the potential of facilitating the operation, and that the
presence of the weapon was connected with the drug trafficking.
See, e.g., United States v. Featherson, 949 F.2d 770, 776 (5th
Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1698, 118 L.Ed.2d
408 (1992); United States v. Blake, 941 F.2d 334, 342-43 (5th
Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 596, 121 L.Ed.2d
533 (1992). In those cases, the proximity of the weapon to the
drugs constituted a violation of § 924(c)(1). Likewise, in such a
high-level drug operation as the one before us,6 the proximity of
the weapon to the drug money also constitutes a violation of this
section. The use of firepower to protect the money involved in the
drug trafficking simply increased the likelihood that the aim of
the conspiracy would be accomplished.
Public Policy
If, as Pomranz argues, venue was improper in Texas, an
immensely undesirable result would have ensued. It would have
necessitated that the government gather its resources and conduct
an entirely new trial in Oklahoma to ensure that the appellant
receive a consecutive five year sentence for carrying a weapon
6The evidence adduced at trial did not only establish the
leadership role played by Pomranz, it also revealed the
sophisticated nature of the criminal enterprise. The marihuana
smuggling ring employed safe houses to store the contraband,
several vehicles to transport it, false driver's licenses,
handheld radios, surveillance detection equipment and of course,
at least one firearm.
10

during the drug transaction. This in turn, would have required the
government to duplicate its efforts and once again lay the
foundation for the firearm offense, i.e., establish the elements of
the conspiracy to distribute over 1000 kilograms of marihuana since
it must prove that the firearm was carried or used during and in
relation to a drug trafficking offense.7 The end result of such
action would impede the administration of justice because the
government would be left with a difficult decision: expend its
limited resources in prosecuting the felon a second time for this
separate offense, or satisfy itself with the punishment previously
imposed and forfeit a conviction on the weapons's count.
If the latter choice were elected, it would effectively
undermine the Congressional intent to curb the violence inherently
associated with high level drug deals. Defendants like Pomranz
could routinely escape the penalty envisioned by Congress, i.e.,
the five year consecutive sentence, when their illegal activities
transversed multiple state boundaries. A tool designed by the
Legislature to combat and deter the violence on the nation's
streets would be left impotent. Public policy dictates that such
an outcome be avoided. Moreover, the highest Court has instructed
us that venue "be determined from the nature of the crime alleged
7The main problem we are faced with is the fact that a
prosecution for carrying or using a firearm cannot be bifurcated
from the underlying drug crime. In the case at bar, because the
penalty provisions of § 924(c)(1) are intertwined with the
predicate crime, the defendant must first be proven guilty of the
conspiracy to distribute marihuana before proceeding with the §
924 offense. Thus, the need to re-establish a conspiracy arises.
11

and the location of the act or acts constituting it." United
States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90
L.Ed. 1529 (1946) (emphasis added).
The crime before us deals with the use of a weapon "during and
in relation to ... [a] ... drug trafficking crime." Its nature is
primarily designed to prevent the violence associated with the
consummation of drug transactions (and other violent crimes).
Section 924(c)(1) is a distinct offense that affirmatively
supplements and maximizes punishment for the use of a weapon in the
underlying offense. In addition, the acts involved in the
predicate drug offense were peppered within two districts. In
light of the nature of § 924(c) and the location of the acts
involved, we hold that a defendant who is indicted for using or
carrying a weapon in connection with a drug trafficking offense may
be prosecuted and convicted for violating § 924(c)(1) in the same
venue as the underlying drug offense.8
8Pomranz also claims that United States v. Davis, 666 F.2d
195 (Former 5th Cir.1982), authoritatively establishes for this
Circuit that the venue for the conspiracy charge does not dictate
the venue for a related substantive charge. In Davis, this Court
reversed the district court's finding of proper venue in the
Middle District of Georgia on the substantive charge of
possession with intent to distribute methaqualone, despite the
fact that it had upheld the propriety of venue there on the
related conspiracy count.
The Court stated that "the government had the burden of
proving that the conspirators had both possession of and the
intent to deliver the methaqualone at the time [the
defendants] were in the Middle District of Georgia. This
burden was not met since neither [of the defendants]
actually or constructively possessed the methaqualone in
question until [they] arrived in Florida." Id. at 200.
(internal citations omitted). We agree with appellant that
in Davis, due to the facts and the specific crimes with
12

In this case, the underlying drug trafficking offense was a
conspiracy to distribute marihuana: an offense which may be
prosecuted in any district where an overt act was performed.
Carrying a firearm to protect the delivery of drug money was an
overt act committed "during and in relation to" the drug
conspiracy. Consequently, a violation of section 924(c)(1) should
be tried in any district where the underlying conspiracy venue was
proper, namely Oklahoma or Texas.
The initial predicate necessary for a violation of § 924(c)(1)
is a crime of violence or drug trafficking. It is only when a
firearm is used or carried during and in relation to such violent
or drug trafficking crime that the § 924(c)(1) offense becomes
complete. Since the indispensable predicate offense is as
important or essential to the completed offense as the carrying or
using of the firearm and since the use or carrying of the firearm
itself must be made during and in relation to such predicate
which the defendants were charged, that venue for the
substantive offense had been improper in the Middle District
of Georgia. Davis, however, is distinguishable from the
case before us.
Although the cases appear to be similar, the
substantive counts in question were based on different
statutes and that is where the difference lies. The clear
language of § 924 and the Congressional purpose behind it
differentiates it from other offenses, including possession
with intent to distribute a narcotic. Due to the specific
nature of this crime and the difficulties inherently
involved in prosecuting it, the government must be allowed
to try the defendant in the district where the act was
committed, or in a district where venue would properly lie
for the underlying drug crime. Therefore, since this case
is centered on an entirely different statutory offense, our
holding is not in conflict with Davis.
13

offense, it only follows that venue should be allowed where the
violent crime or drug offense occurred. Thus, a firearm may be
used in one state but it does not preclude a commission of a §
924(c)(1) offense in another state.
Moreover, we do not believe that our holding seriously
infringes on the defendant's rights since this Court treats the
right to venue with less deference than other constitutional
rights. For example, this Court has commented that
[a]lthough venue is a constitutional right and an element of
every crime, and despite the Supreme Court's command that it
not be treated as a formality, courts have dealt with venue
questions differently from other constitutional rights and
other elements of crimes. For instance, the standard for
finding a waiver of venue is much more relaxed than the
rigorous standard for finding waivers of the right to trial by
jury, the right to confront one's accusers or the privilege
against compulsory self incrimination. As opposed to waiver
of these later rights, a defendant can waive venue rights by
his silence--just by his failure to lodge an objection prior to
trial.
United States v. Winship, 724 F.2d 1116, 1125 (5th Cir.1984)
(internal citations omitted) (emphasis added).
Because we find that venue was proper in the Northern District
of Texas for the § 924 violation, we need not address appellant's
remaining points of error. The denial of his 2255 motion on the
basis of venue is affirmed.
CONCLUSION
For the reasons discussed above, we find that venue was proper
in the Northern District of Texas for appellant's violation of §
924(c)(1). Therefore, we affirm the mandatory five year
consecutive imprisonment term imposed on the appellant.
AFFIRMED.
14