- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 09-18-2012
- Case #: 10-30348
- Judge(s)/Court Below: Circuit Judge Gould for the Court; Circuit Judges Schroeder and Alarcón
- Full Text Opinion
Alexander Lukashov lived in Portland, Oregon with his girlfriend (Cassedy), their two children, and his girlfriend’s two children from a previous marriage (J.F. and T.F.). Lukashov worked as a long-haul truck driver, and before a run from Portland to New York and back, Cassedy asked Lukashov to take J.F. and T.F. along with him. Lukashov took the children on the trip, leaving J.F. with family members in Montana. T.F., an eight-year-old girl, continued on the trip with Lukashov, and he sexually assaulted her multiple times in Montana, North Dakota, and Nevada. Lukashov appealed his conviction, arguing, inter alia, that venue in Oregon was improper. Generally, whether venue exists is a question of fact to be determined by the jury, which the government must prove by a preponderance of the evidence. However, in this case the district court instructed the jury and the jury determined that Lukashov was guilty of aggravated sexual abuse under 18 U.S.C. § 2241(c) beyond a reasonable doubt. The district court then, as a matter of law, concluded that venue existed. On appeal, the Ninth Circuit noted that precedent shows that the lack of a venue instruction is not harmful if a rational jury could only view the evidence as sustaining venue. Here, the court properly instructed the jury regarding venue, but the jury made a determination on the substantive charge only. Logically, this should allow the court to determine venue as a matter of law. The Court concluded that “[w]here a rational jury could not fail to conclude that a preponderance of the evidence establishes venue, then a court is justified in determining venue as a matter of law.” Therefore, the district court did not err in determining venue as a matter of law. AFFIRMED.