U.S. v. Hankish

• Decision Date: 17 July 1974
• Docket Number: No. 73-1926,73-1926
• Citation: 502 F.2d 71
• Parties: UNITED STATES of America, Appellee, v. Paul N. HANKISH, and James L. Matthews, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 71

502 F.2d 71

UNITED STATES of America, Appellee, v. Paul N. HANKISH, and James L. Matthews, Appellants.

No. 73-1926.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1974.

Decided July 17, 1974.

Thomas A. Livingston, Pittsburgh, Pa. (Court-appointed counsel) (Dennis J. Clark, Pittsburgh, Pa., on brief), for appellants.

Wayne A. Rich, Jr., Asst. U.S. Atty. (John A. Field, III, U.S. Atty., and Robert B. King, Asst. U.S. Atty., on brief), for appellee.

Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.

CRAVEN, Circuit Judge:

This is an appeal by Paul Hankish and James Matthews from convictions of crimes relating to a stolen interstate shipment of beer. Of the several questions presented, the most important are venue and the prejudicial effect of a newspaper article that appeared during trial.

According to the testimony most favorable to the prosecution, John Bruno and Jackie Longfellow stole a tractor-trailer rig loaded with 1,456 cases of Stroh's beer. The shipment was in transit from Detroit to a distributing company in Huntington, West Virginia. The next day defendant Hankish agreed to buy the beer from Bruno for $1.50 a case and asked Bruno to bring it from Huntington to Wheeling, West Virginia. Longfellow drove the truck rig to Wheeling, where he was met by Bruno and Matthews. Following their directions, Longfellow crossed the line into Ohio but the truck broke down on a steep hill. The beer was unloaded into rented trucks and taken back to Wheeling. ¹ Even so, Hankish paid Bruno $2,000 for the beer.

Almost four years later, after Bruno and Longfellow had been convicted of federal crimes relating to the stolen shipment, a grand jury in the Southern District of West Virginia returned a three-count indictment against Hankish and Matthews. Count One charged a conspiracy to receive goods that had been stolen from an interstate shipment, to transport in interstate commerce stolen merchandise worth over $5,000, and to transport in interstate commerce a stolen motor vehicle. ² Count Two charged Hankish and Matthews with the substantive offense of transporting the beer in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. 659. Count Three charged Hankish with the substantive offense of transporting the stolen trailer in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. 2314. At trial the jury convicted defendants on all counts.

I

Defendants contend that the Southern District of West Virginia was improper venue for the substantive crimes charged in Counts Two and Three. We have no difficulty sustaining venue on Count Three, which charged a violation of 18 U.S.C. 2314. Venue under section 2314 is governed by the general provisions of 18 U.S.C. 3237. United States v. DeKunchak, 467 F.2d 432 (2d Cir. 1972). Section 3237(a) provides:

Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.

The government's evidence supported the conclusion that the stolen trailer was transported, at the direction of Hankish, from the Southern District of West Virginia, through the Northern District of West Virginia, into the Southern District of Ohio. Thus venue would lie in any one of the three districts.

Count Two presents a harder problem. It was framed under 18 U.S.C. 659, which contains a special venue provision applicable to the offense of transporting in interstate commerce any goods that have been stolen from an interstate shipment:

The offense shall be deemed to have been committed in any district into which such (stolen goods) shall have been removed or into which the same shall have been brought by such offender.

On its face, this language clearly authorizes venue in the Northern District of West Virginia and in Ohio but does not apparently embrace the Southern District of West Virginia where the illegal transportation originated. ³ The issue we face is whether this special venue provision comes within the 'except as otherwise expressly provided by enactment of Congress' clause of section 3237. For the reasons that follow, we have concluded that section 659 was not intended to be an express exception and that section 3237 authorizes venue in the Southern District of West Virginia.

To begin with, the venue clause in section 659 is not couched in restrictive language. The Reviser's Notes to section 3237 mention only one statute-- 18 U.S.C. 1073-- as an instance 'where Congress desires to restrict the prosecution of offenses to particular districts.' Section 1073 ⁴ is emphatically restrictive:

Violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed, or in which the person was held in custody or confinement or in which an avoidance of service of process or a contempt . . . is alleged to have been committed . . ..

In contrast to the use of 'only' in section 1073, section 659 employs the word 'any.'

The history of section 659 suggests that the venue clause was written with the intent of enlarging venue rather than restricting it. The first version of section 659 was enacted in 1913. Act of Feb. 13, 1913, ch. 50, 37 Stat. 670. The Supreme Court had recently approved the broad venue provision in the Elkins Act, ch. 708, 32 Stat. 847 (1903). There Congress had prohibited rebates, concessions, and discrimination in interstate railroad freight rates, and had provided:

Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted . . ..

In Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681 (1908), the Supreme Court sustained this venue statute against constitutional challenge, holding that transportation is a 'continuing offense' which may be punished 'at the beginning, at the end, or in the middle of the journey,' 209 U.S. at 74, 28 S.Ct. at 432.

Despite the breadth of the judicial authorization, between 1908 and 1913 the lower federal courts seemed reluctant to construe federal crimes an continuing offenses in the absence of special statutory language. For example, in Ex Parte Lair, 177 F. 789 (D.Kan.1910), rev'd on other grounds, 195 F. 47 (8th Cir. 1912), cert. denied, 229 U.S. 609, 33 S.Ct. 464, 57 L.Ed. 1350 (1913), and United States v. Capella, 169 F. 890 (N.D.Cal.1909), the courts had construed statutes prohibiting unlawful importation of aliens to create offenses that were complete at the port of entry. In Capella the court had explicitly held that the general venue statute ⁵ did not apply and that there was no venue in the district where the defendant was harboring an illegally imported alien. To make its intentions clear, Congress amended the immigration laws of 1910, specifically authorizing venue 'in any district to or into which said alien is brought in pursuance of said importation by the person or persons accused.' Act of Mar. 26, 1910, ch. 128, 3, 36 Stat. 265 (now 8 U.S.C. 1328). Enacted the same year, the Mann Act contained a similar clause to ensure that it would be construed to create a continuing offense. Act of June 25, 1910, ch. 395, 5, 36 Stat. 826 (now 18 U.S.C. 2421). ⁶

In this historical context we think it clear that the venue clause in section 659 was written with the intent of creating a continuing offense and thus multiplying the possible places of trial. The statute permitted venue in any district into which the stolen goods were removed or brought by the offender. It did not exclude other possibilities. Section 103 of the 1911 judicial code, which supplemented special venue provisions like that in section 659, ⁷ authorized venue in the district where an offense began and the district where it was completed. Together, the two statutes would have allowed prosecutions for transporting stolen goods between states to be brought in the district where the transportation began, the district where it ended, or in any district along the route. With this background it would be irrational to read section 659 restrictively.

The only circumstance that detracts from this analysis is the fact that the special venue clause was carried into the 1948 Code. Because section 3237 was written to make special venue clauses unnecessary, most such clauses were eliminated. The survival of the clause in section 659 might be taken to indicate that Congress meant to make section 3237 inapplicable. ⁸ The absence of legislative history on this venue clause, and the presence of other nonrestrictive venue clauses in the 1948 Code, lead us to believe that its retention was inadvertent. For example, section 659 itself contains another venue clause that pertains to the offenses of stealing, receiving, and possessing goods from an interstate shipment. ⁹ It clearly offers multiple choices of venue:

The offense shall be deemed to have been committed not only in the district where the violation first occurred, but also in any district in which the defendant may have taken or been in possession of the said money, baggage, goods, or chattels.

This clause has been read, since 1948, as an expression of intent to make the crime a continuing offense. United States v. Cores, 356 U.S. 405, 411 n. 1, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958) (Douglas, J., dissenting).

Moreover, in 1948 Congress amended section 659 to prohibit transportation of stolen interstate shipments in interstate or foreign commerce. If the venue provision is read to restrict venue to districts into which the goods are taken, there would be no venue for the crime of transporting stolen goods from Minnesota into Canada. Such a construction would...