United States v. 2012-07-16 | 10-30237 | USA V. WILLIAM PARISEAU | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 10-30237
Plaintiff-Appellee, D.C. No.
v. 3:09-cr-00087-  RRB-1WILLIAM G. PARISEAU,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted
June 25, 2012—Anchorage, Alaska
Filed July 16, 2012
Before: Alfred T. Goodwin, William A. Fletcher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Goodwin
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COUNSEL
Colleen A. Libbey, Libbey Law Offices LLC, Anchorage,
Alaska; Sue Ellen Tatter, Assistant Federal Public Defender,
Anchorage, Alaska, for the defendant-appellant.
James N. Barkeley, Kelly Cavanaugh, Assistant United States
Attorneys, Anchorage, Alaska, for the plaintiff-appellee.
OPINION
GOODWIN, Circuit Judge:
William Pariseau appeals his conviction on a single count
of attempted possession with intent to distribute more than
500 grams of methamphetamine, in violation of 21 U.S.C.
§§ 846, 841(b)(1)(A). The district court denied Pariseau’s
motion to suppress evidence of the drugs that were discovered
strapped to his legs when he exited a plane in the Seattle air-
port. The district court also denied Pariseau’s motion, raised
orally, challenging venue in the District of Alaska.
Pariseau asserts two errors: (1) that his Fourth Amendment
rights were violated because he did not consent to the airport
search, and (2) that venue was improper in Alaska because he
was arrested in Seattle and should have been tried there.
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[1] We find no error and affirm the judgment. Pariseau
voluntarily consented to the search. After the arresting officer
explained that he would be detained while they sought a war-
rant to search him, he said, “You may as well just search me
now.”
[2] Venue in Alaska was consistent with federal venue law
because Pariseau’s crime was a continuing offense with sub-
stantial steps taken in Alaska toward completion of the
offense. No reported cases from this circuit have addressed a
venue challenge to a conviction for attempt under 21 U.S.C.
§ 841. Two cases from other circuits have addressed this issue
directly: United States v. Muhammad, 502 F.3d 646 (7th Cir.
2007) and United States v. Zidell, 323 F.3d 412 (6th Cir.
2003). Both cases affirmed venue on the principle that posses-
sion with intent to distribute is a continuing crime. See
Muhammad, 502 F.3d at 653; Zidell, 323 F.3d at 422. With
respect to a continuing crime, venue is proper in any district
where the crime began, continued, or was completed. See 18
U.S.C. § 3237(a).
[3] A conviction for attempt requires the government to
prove that Pariseau had culpable intent and that he engaged in
conduct constituting a substantial step toward commission of
the crime that represents the culmination of that intent. United
States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987).
This case involves attempted possession, as opposed to the
substantive crime of possession. Therefore, our venue analy-
sis focuses on where Pariseau’s attempt to possess the
methamphetamine began, not on where his actual possession
began.
[4] Pariseau took several substantial steps in Alaska
toward commission of the charged offense. Pariseau’s girl-
friend testified about Pariseau’s previous trips from Alaska to
Arizona to obtain methamphetamine and that he used the
same method—strapping the drugs to his legs with ACE
bandages—to evade detection on those trips. She testified
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about seeing Pariseau with methamphetamine in Alaska and
witnessing a telephone call wherein Pariseau agreed to go to
Arizona on the trip that resulted in his arrest. Pariseau’s con-
nection to Alaska is well established. He lived in Alaska, he
conducted several prior, similar trips to bring methamphet-
amine back to Alaska, and he was on his way back to Alaska
with two pounds of methamphetamine strapped to his legs
when he was arrested.
[5] In determining what substantial steps were taken
toward committing the substantive crime, “the finder of fact
may give weight to that which has already been done as well
as that which remains to be accomplished,” because that prior
conduct may “be of such a nature that a reasonable observer,
viewing it in context could conclude beyond a reasonable
doubt that it was undertaken in accordance with a design to
violate [the underlying] statute.” United States v. Scott, 767
F.2d 1308, 1312 (9th Cir. 1985) (quoting United States v.
Manley, 632 F.2d 978, 987-88 (2d Cir. 1980); see also Zidell,
323 F.3d at 423. Evidence of prior drug-related conduct sup-
ports a determination that Pariseau had in this instance
undertaken substantial steps toward his intent to distribute the
methamphetamine in Alaska. Consequently, Pariseau’s venue
challenge fails.
Conclusion
The district court did not clearly err in finding under the
totality of the circumstances that Pariseau voluntarily con-
sented to the airport search that resulted in discovery of the
methamphetamine. Pariseau gave verbal consent that was not
the result of threats or coercion. He was also informed that he
could refuse consent and wait for a search warrant and that it
was not certain whether the search warrant would be issued.
Furthermore, venue was proper in Alaska because possession
with intent to distribute methamphetamine is a continuing
offense, and Pariseau took substantial steps in Alaska in pur-
suit of that offense.
The judgment is AFFIRMED.
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