NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 22-2034 _______________

UNITED STATES OF AMERICA v.

CARLOS SANTURTAN-TERAN, Appellant ________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 3-17-cr-00298-006) District Judge: Honorable Robert D. Mariani ______________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on March 23, 2023 _______________

Before: JORDAN, GREENAWAY, JR., and McKEE, Circuit Judges

(Opinion filed: June 14, 2023) ______________

OPINION * ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge:

Carlos Santurtan-Teran appeals the District Court’s denial of his motion to dismiss

for lack of venue. We will affirm. 1

I.

Santurtan-Teran challenges his indictment for conspiracy to distribute and possess

with intent to distribute a controlled substance on the ground that venue in the Middle

District of Pennsylvania was improper. Specifically, he asserts that the only relevant

conduct that occurred in the Middle District were phone calls between him and co-

defendant Jose Luis Gonzalez, Sr., where Gonzalez was physically present in the district,

but he was not. In doing so, Santurtan-Teran mischaracterizes our precedent.

It is well settled that “any offense . . . begun in one district and completed in

another, or committed in more than one district, may be inquired of and prosecuted in any

district in which such offense was begun, continued, or completed.” 2 Moreover, venue is

proper “wherever a co-conspirator has committed an act in furtherance of the

1 The District Court exercised jurisdiction under

. We have appellate jurisdiction under

. Additionally, “[o]ur review of the District Court's legal decision regarding venue is plenary.” United States v. Auernheimer,

(3d Cir. 2014) (citing United States v. Pendleton,

(3d Cir. 2011)). 2

(a). See also Pendleton,

(“When the crime consists of distinct acts occurring in different places, venue is proper where any part of the crime occurs.”) (citing United States v. Rodriguez-Moreno,

, 279 n.1 (1999)).

2 conspiracy.” 3 The government bears the burden to establish venue by a preponderance of

the evidence. 4

Here, it is undisputed that Gonzalez had phone calls about the marijuana grow

operation with several co-conspirators, including Santurtan-Teran, while present in the

Middle District. Gonzalez and Santurtan-Teran specifically discussed the planting of

marijuana plants and solutions to a mechanical problem at the marijuana grow site in

Michigan. These phone calls plainly furthered the conspiracy and thus support venue in

the Middle District. 5

Furthermore, Santurtan-Teran misinterprets our discussion in United States v.

Auernheimer. 6 There, we held that when assessing venue, courts must look to “essential

conduct” elements rather than “circumstance elements” of the charged offense, as

circumstance elements are simply “fact[s] that existed at the time that the defendant

performed [the essential conduct elements].” 7

3 United States v. Perez,

(3d Cir. 2002). 4 United States v. Root,

(3d Cir. 2009). 5 See United States v. Renteria,

, 331–32 (3d Cir. 2018) (concluding that venue in the Eastern District of Pennsylvania was appropriate even though the defendant did not act or direct any actions in the district himself because his co-conspirators distributed drugs and held phone calls regarding the conspiracy there). See also United States v. Naranjo,

(2d Cir. 1994) (“Phone calls can constitute overt acts in furtherance of a conspiracy”); United States v. Smith,

(2d Cir. 1999) (“[P]hone calls from one district to another by themselves can establish venue in either district as long as the calls further the conspiracy.”). 6

(3d Cir. 2014). 7

. In Auernheimer, we considered whether venue was established in the District of New Jersey, where the defendant was prosecuted for conspiracy to violate the Computer Fraud and Abuse Act (“CFAA”).

. We concluded that the District of

3 Santurtan-Teran contends that, as in Auernheimer, no essential conduct elements

(i.e., the possession and distribution of marijuana) occurred in the Middle District. He is

mistaken. Although Santurtan-Teran himself may not have engaged in these acts in the

Middle District, the record indicates that his co-conspirators did. That alone distinguishes

this case from Auernheimer, where neither the defendant nor any of his co-conspirators

performed any “essential conduct element” in the District of New Jersey. 8 Moreover, in

Auernheimer, we held that venue was improper not only because no essential conduct

element occurred in the district, but also because no overt act in furtherance of the

conspiracy occurred there. 9 As explained above, Santurtan-Teran’s co-conspirators

performed overt acts in furtherance of their conspiracy in the Middle District, in the form

of their phone calls regarding the logistics of their marijuana grow operation. Therefore,

the District Court did not err in concluding that venue in the Middle District was

satisfied.

II. For the foregoing reasons, we will affirm.

New Jersey was an improper venue for the defendant’s prosecution, in part, because no “essential conduct elements” of the CFAA violation occurred in the district.

at 533– 34. 8 Auernheimer,

. 9

4