Appeal from the United States District Court for the District of Columbia (No. 01cr00180-10)
Before: Edwards, Henderson, and Roberts, Circuit
The opinion of the court was delivered by: Edwards, Circuit Judge
Appellant Jeffrey Morgan appeals from his conviction in the District Court for receiving stolen federal property in violation of 18 U.S.C. § 641 (2000). His sole contention on appeal is that venue was improper in the District of Columbia ("District" or"D.C.").
Appellant's prosecution arose out of an indictment charging him, along with 10 co-conspirators, with participating in an elaborate conspiracy to defraud the United States. Appellant was also charged with receiving stolen government property, the only charge of which he was convicted. The evidence introduced at trial regarding appellant's role in the conspiracy related solely to one stolen computer that was ultimately found in his possession. It is undisputed that appellant physically received this computer (which was stolen in the District) in Maryland, and that the computer thereafter remained in Maryland until it was recovered by the authorities.
The Government claims that venue was proper in the District of Columbia on two alternative grounds. First, the Government asserts that appellant"constructively received" the computer at the moment it was stolen. Second, the Government argues that the offense for which appellant was convicted is one"involving... transportation in interstate... commerce," and, under 18 U.S.C. § 3237(a) (2000), may therefore be prosecuted in any district through which the computer moved. We reject both of these contentions.
All of appellant's conduct constituting his alleged commission of the offense occurred in Maryland. The evidence in this case does not permit the conclusion that appellant constructively possessed the computer at any time while it was in the District, and we therefore need not reach the question whether a conviction for receiving stolen government property under 18 U.S.C. § 641 can be premised on a theory of constructive receipt. Furthermore, appellant's conviction was not for an"offense involving" transportation in interstate commerce as required by 18 U.S.C. § 3237(a) ¶ 2. Accordingly, we hold that venue in the District of Columbia is improper and reverse appellant's conviction.
The charges in this case arose from an elaborate conspiracy centered around Elizabeth Mellen and her scheme to defraud her employer, the U.S. Department of Education ("Department"). Mellen, appellant's aunt, worked as a senior telecommunications manager for the Department at an office building located in the District. She was responsible for the Department's telecommunication expenditures and for ordering its related goods and services. Mellen's responsibilities also included supervising the Department's telephone installations and maintenance and the technicians who performed that work.
Robert Sweeney was one of those technicians. Sweeney was employed by Bell Atlantic Federal Systems and was assigned to work on the telecommunication systems at the Department. Sweeney was required to account for his time and the materials he ordered to perform his work. At the end of each month, Sweeney would present his expenses to Mellen for her approval. After Mellen signed off, Sweeney would submit them to Bell Atlantic, which, in turn, billed the Department.
At some point, Mellen began to ask Sweeney to run personal errands for her. In return, Mellen permitted Sweeney to submit false claims for overtime pay. Eventually, Mellen had Sweeney order and obtain various telephones, computers, printers, cameras, and copiers for her personal use. Sweeney knew that these items, the expenses for which were ultimately billed to the Department, were not legitimate items for him to order.
Items that Sweeney ordered would arrive at a large Bell Atlantic warehouse located at 58-62 L Street in Northeast Washington, D.C. When the items arrived, Sweeney would call Mellen for further instructions, retrieve the items from the warehouse, and deliver them in accordance with Mellen's instructions. Sometimes he would simply deliver the items to Mellen's office or to an unlocked car which would be parked outside of the building in which Mellen worked. Other times, Sweeney would deliver the items to various locations that Mellen would specify.
On one occasion, Mellen had Sweeney order five computers, one of which is the subject of appellant's conviction. After picking up the computers at the warehouse, Sweeney and Lewis Morgan (a Department employee, unrelated to appellant, who also made deliveries for Mellen not in connection with his official duties) used a Bell Atlantic van to deliver them to locations specified by Mellen.
One of those computers was to be delivered to Susanne Morgan's house in Maryland. Susanne Morgan, who also worked at the Department, was appellant's mother and Mellen's twin sister. Sweeney contacted appellant – who was living at his mother's house at the time – advising him that the computer was going to be delivered and requesting that appellant be present to accept it. As a result, appellant was present when Sweeney and Lewis Morgan arrived at Susanne Morgan's house and delivered the computer.
The computer was initially set up in the basement of Susanne Morgan's house. In the spring or summer of 1999, appellant moved out of his mother's home and into the home of his brother, which was also located in Maryland. Appellant brought the computer with him to his brother's home and kept it next to his ...