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United States v. Mendell

June 29, 1971

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN A. MENDELL, DEFENDANT-APPELLANT



Swygert, Chief Judge, Cummings, and Stevens, Circuit Judges. Stevens, Circuit Judge (concurring).

Author: Cummings

CUMMINGS, Circuit Judge.

After a bench trial, defendant was found guilty on Count 2 of an indictment charging various narcotics offenses and was sentenced to five years in prison.*fn1 Count 2 charged that defendant and Robert French unlawfully received 15.301 grams of imported heroin in violation of 21 U.S.C. § 174.*fn2

I

Defendant first objects that the district court should have granted his motion in arrest of judgment at the close of the Government's case because venue was not proven. Relying upon United States v. Jones, 174 F.2d 746 (7th Cir. 1949), defendant argues that the lack of any explicit reference to Chicago, Illinois, as the location of the transactions rendered the evidence insufficient.

Venue need not be shown by direct evidence, but may be proven by the evidence as a whole or by circumstantial evidence. Venue is established where the testimony justifies the reasonable inference that the violation occurred at the place alleged in the indictment. United States v. Budge, 359 F.2d 732, 734 (7th Cir. 1966); United States v. Chiarelli, 192 F.2d 528, 532 (7th Cir. 1951), certiorari denied, 342 U.S. 913, 72 S. Ct. 359, 96 L. Ed. 683; United States v. Karavias, 170 F.2d 968 (7th Cir. 1948).

We agree with the district court that the testimony of the Government's witnesses sufficiently proved venue notwithstanding the omission of any specific indication of the city in which the events took place. The record is replete with testimony identifying streets, intersections, major thoroughfares, business establishments, and parks.*fn3 Both in volume and distinctiveness, this evidence was tantamount to a testimonial declaration that the acts took place in Chicago. United States v. Budge, 359 F.2d 732, 734 (7th Cir. 1966); Walker v. United States, 397 F.2d 789 (5th Cir. 1968), certiorari denied, 394 U.S. 962, 89 S. Ct. 1311, 22 L. Ed. 2d 563; Weaver v. United States, 298 F.2d 496, 498 (5th Cir. 1962); Dean v. United States, 246 F.2d 335, 337 (8th Cir. 1957); United States v. Lukenbill, 421 F.2d 849 (9th Cir. 1970).

Nor does the opinion of this Court in United States v. Jones, 174 F.2d 746 (7th Cir. 1949), require a different result. The Court there observed that "venue will not be inferred from proof that the acts constituting the crime were committed upon certain streets, where the city within which the streets are located is not identified. The court will not take judicial notice that the streets referred to in the evidence are in any certain town." 174 F.2d at p. 749. Defendant suggests that this language forbids any judicial notice whatsoever of the geographic location of particular streets as proof of venue. We decline to give such sweeping import to these remarks.

Judicial notice may be taken of matters which are either so commonly known within the community as to be indisputable among reasonable men, or which are capable of certain verification through recourse to reliable authority. See McCormick on Evidence, §§ 324-325 (1954); Rule 201(b), Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates (March 1971) (51 F.R.D. 315, 331). Among the matters long recognized as proper subjects for judicial notice are a wide range of geographic facts, including location. The determination of geographic location of a street or other landmark mentioned in testimony involves two steps. First, judicial notice may be taken that the city, county, or other geographical area contains a street of that name. The second step involves the inference that the street mentioned is actually that located within the specified boundaries. The reasonableness of the inference as to geographic location from circumstantial evidence such as streets, landmarks, and the like, is a matter of degree. Each case must be judged on its own facts.

Where streets or other landmarks are few in number or commonly named, doubt as to their exact location remains, and the court may be compelled to withhold notice of that fact. Thus in Jones, this Court refused to place the "several" streets mentioned in testimony within the City of Chicago. That holding should not, however, be extrapolated into blanket prohibition of judicial notice that streets are in a certain city. Where, as here, the landmarks are sufficiently numerous and notorious, the inference that they are located within a particular municipality within the jurisdiction of the court may be properly made. Here the circumstantial evidence was sufficiently extensive and characteristic of Chicago to warrant the inference that the criminal acts occurred in the Northern District of Illinois.

II

Defendant contends that the district judge improperly admitted hearsay statements made by co-defendant French to narcotics agent John J. Gallagher, relating communications between defendant and French. In receiving this evidence, the district judge concluded that a "connection" had been shown between defendant and French, so that the statements were receivable under the joint venture exception to the hearsay rule. See United States v. Jones, 438 F.2d 461, 466 (7th Cir. 1971). Defendant urges that French's revelations to Gallagher cannot be used to show the joint venture because that would involve "the impossible feat of levitation by bootstraps." Cass v. United States, 361 F.2d 409, 410 (9th Cir. 1966). We disagree.

As in the recent Jones case, there was ample independent evidence that defendant and French were engaged in a joint venture in the sale of heroin. Agents Gallagher and Rankin testified to their observation of defendant's and French's suspicious activities together on two nighttime occasions on August 7. Agent Nolan also testified to overhearing an extremely damaging conversation between them in a hotdog stand about 11:00 p. m. that same evening. These conversations harmonized with subsequent actions of French and defendant that were observed still later that night. Consequently, apart from any statements of French to Gallagher, the Government sufficiently showed a joint ...


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