United States v. Barnard

United States Court of Appeals for the Ninth Circuit · 1973 · Evidence

490 F.2d 907 (9th Cir. 1973)

Updated August 22, 2026

EvidenceVenueExpert testimonyTelephone recordsDiscoverycriminal venueconspiracyovert act

Facts

The defendants were involved in a scheme to smuggle marijuana by airplane from Mexico into California, with two successful flights landing in Palmdale in the Central District of California. On one trip, defendant Low and the pilot landed at Borrego Springs in the Southern District of California to refuel and make a telephone call about conditions at the Mexican pickup point. The government also relied on the plane's overflight of the Southern District to support venue on substantive importation and possession counts. At trial, co-defendant Dillon testified for the government, and defendants sought psychiatric and expert evidence to challenge his competency and credibility.

Issue

Was venue proper in the Southern District of California for the conspiracy and substantive drug counts based on refueling and telephone activity there and on the airplane's overflight of the district? Did the trial court abuse its discretion in excluding expert and documentary evidence bearing on witness Dillon's competency and credibility, admitting telephone toll records, or handling late and partial discovery disclosures?

Rule

For conspiracy, venue is proper in any district where an overt act in furtherance of the conspiracy occurred, and refueling or placing operational telephone calls can qualify as overt acts. Under 18 U.S.C. § 3237(a), importation involving transportation in foreign commerce is a continuing offense prosecutable in any district from, through, or into which the commerce moves, including navigable airspace over a district. Possession with intent to distribute marijuana is also a continuing offense when possession and intent continue across district lines. Trial courts have broad discretion over witness competency determinations, admission of expert testimony on credibility, and exclusion of stale psychiatric records of dubious probative value; ordinary telephone toll records are not barred by 47 U.S.C. § 605; and absent prejudice, discovery irregularities do not warrant relief.

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A federal grand jury indicts four people in the District of Arizona for conspiring to bring contraband by small plane from Mexico to a ranch outside Phoenix. During the planning phase, one conspirator briefly lands in Tucson to refuel the plane and place a call confirming that the pickup site across the border is ready.

If the defendants argue that venue in the District of Arizona is improper because the planned delivery point was near Phoenix and the Tucson stop was minor, how should the court rule on the conspiracy count?

Explanation. For conspiracy, venue lies in any district where any conspirator commits an overt act in furtherance of the scheme. Operational acts such as refueling and making a call to check whether the pickup point is ready are sufficient; they need not be major acts or the final objective of the plan.