U.S. v. Tedesco, 80-1161

Citation635 F.2d 902
Decision Date02 December 1980
Docket NumberNo. 80-1161,80-1161
PartiesUNITED STATES of America, Appellee, v. Barry G. TEDESCO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Morton Berger, New York City, for appellant.

Paul E. Troy, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington Before CAMPBELL and BOWNES, Circuit Judges, NELSON, * District Judge.

U. S. Atty., Boston, Mass., was on brief, for appellee.

BOWNES, Circuit Judge.

Appellant Barry G. Tedesco appeals his conviction under 18 U.S.C. § 1503 1 for corruptly endeavoring to influence, obstruct, and impede the due administration of justice in the United States District Court for the District of Massachusetts. He claims both that the district court improperly denied his motion to dismiss the indictment for improper venue and that the verdict is not supported by substantial evidence. For the reasons stated below, we affirm the judgment of the district court.

FACTS

In its indictment the Government alleged that Tedesco violated 18 U.S.C. § 1503 by endeavoring to induce a witness not to testify fully and completely about certain matters that might inculpate the defendant Benjamin De Magistris in his then pending trial in the United States District Court for the District of Massachusetts. The facts are basically undisputed. The witness, John Makris, was a "Star Route" contractor 2 who transported mail from Yonkers, New York. In early 1978 he received a number of solicitations to bid on Star Routes originating in Connecticut. He applied for a bond and bid on five or six of the routes, but was not awarded any of them. He then lodged a complaint with the United States Postal Service alleging irregularities in the bonding procedures for postal routes. 3 In May of 1979 Makris testified before the grand jury, which ultimately returned a 17-count conspiracy and fraud indictment against De Magistris, whose company had been awarded several of the Connecticut routes, and a codefendant.

In late October or early November of 1979, Tedesco, also a Star Route driver, saw Makris on the loading platform at the Mount Vernon Management Sectional Center of the United States Postal Service. Tedesco stated that Makris had De Magistris "in a very good position" and that De Magistris "could do a lot" for him. Tedesco also said that as a friend of both Makris and De Magistris, he felt caught in the middle.

On the evening of November 5, 1979, Tedesco called Makris at his home in Yonkers, New York. He reiterated that Makris had De Magistris in a "very good position" and that De Magistris "could do a lot" for him. He suggested that Makris speak to De Magistris, but Makris refused. Tedesco then suggested that he and Makris meet because he could not talk on the telephone, but no specific arrangements were made at The next day, Makris' truck broke down. Makris called the appellant to ask if he could rent or borrow a truck. Tedesco explained that he did not have any spare equipment, but he did make arrangements to meet Makris in Millville, New York on the morning of November 8, 1979. At this meeting Tedesco again repeated that De Magistris "could do a lot" for Makris. He spelled out what he meant: De Magistris could get equipment for Makris, arrange the trade-in, buying, and financing of a truck without any money down, subcontract to him a contract that Makris had hoped to obtain and "supply the trucks and the drivers and pay them" until Makris was able to do so. Tedesco then suggested that Makris meet with De Magistris' attorney and review his testimony. Makris replied that he would not change his testimony or perjure himself. Tedesco then said " '(h)e (De Magistris) knows you have to testify. He doesn't want you to perjure yourself or change your testimony'-just if you have anything solid against him, you know, not to add any more wood to the fire." Makris, who testified that he had told the De Magistris grand jury all that he knew, assured Tedesco that he would not "add any more wood to the fire." Makris also testified that he understood Tedesco's comment about not adding "more wood to the fire" to mean that he should not reveal at trial any information he had not previously given to the grand jury.

that time. Later that evening, Makris called Postal Inspector McDonough, case agent in the De Magistris case.

Makris called Inspector McDonough after the meeting with Tedesco. On November 9, McDonough attached a tape recorder pickup to Makris' telephone. 4 Makris then called Tedesco. During this conversation, which was played for the jury, Tedesco again said that there were a lot of things De Magistris could do for Makris, that he thought De Magistris did not want any more wood added to the fire and that, if Makris had some solid information against De Magistris, he should "hold back on it." He also discussed the subcontract originally brought up during the meeting on November 8.

Postal Inspector McDonough arrested appellant on November 10. According to the Inspector's testimony, Tedesco, after being advised of his Miranda rights, told him that he did not know of De Magistris' indictment or arrest and had not contacted and would not contact Makris concerning his testimony in the upcoming trial. At this point McDonough played a portion of the telephone conversation recorded the previous day. Tedesco then stated that both Makris and De Magistris were his friends and that he wanted to help them both: Makris needed money and De Magistris needed favorable testimony. He admitted that he did attempt to have Makris alter his testimony or withhold damaging information, but stated that at the time he did not understand the implications of his actions.

VENUE

Tedesco was tried and convicted in the United States District Court for the District of Massachusetts for corruptly endeavoring to influence, obstruct, and impede the due administration of justice in that district. He challenges venue on the undisputed ground that there was no attempt to influence the witness in Massachusetts; all attempts to influence Makris occurred in New York.

The right to be tried for a crime in the state where it was committed was deemed so important that it was enumerated twice in the Constitution. Article III, section 2 Although the Constitution determines the venue of the trial in terms of the place where the crime has been committed, it does not furnish any guidance for determining the place of the crime. Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956). The statute under which appellant was indicted, 18 U.S.C. § 1503, does not specify the situs of the crime. The Supreme Court has ruled that when "Congress is not explicit, 'the locus delecti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.' " Travis v. United States, 364 U.S. 631, 635, 81 S.Ct. 358, 361, 5 L.Ed.2d 340 (1961) (quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946)); accord, United States v. Roche, 611 F.2d 1180, 1182 (6th Cir. 1980); United States v. Chestnut, 533 F.2d 40, 46 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976). One method of making this determination is by examining the key verbs in the statute defining the criminal offense. United States v. Chestnut, 533 F.2d at 46-47; United States v. Bithoney, 472 F.2d 16, 23 (2d Cir.), cert. denied, 412 U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397 (1973); C. Wright, Law of Federal Courts § 43 (3d ed. 1976). The pertinent part of section 1503 provides that "(w)hoever ... corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both." 18 U.S.C. § 1503 (emphasis added). The words of section 1503 indicate that Congress was concerned not with the place where the threats or offers of money or other benefits were made, but with the effect such threats or bribes might have on a witness testifying in a particular proceeding. The very nature of the crime is affecting, or endeavoring to affect, the due administration of justice; the activities prohibited under the statute are those intended to influence the administration of justice where the affected judicial proceeding is being held or has been held.

clause 3 provides that "(t)he trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." Under the sixth amendment, "(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." This safeguard is also reflected in Rule 18 of the Federal Rules of Criminal Procedure, which states that "(e)xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed."

This conclusion is bolstered by the legislative history of 18 U.S.C. § 1503. The source of this section is the Act of March 2, 1831, 4 Stat. 487, which outlined the contempt jurisdiction of the federal courts. United States v. Griffin, 589 F.2d 200, 204 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 48, 62 L.Ed.2d 32 (1979); United States v. O'Donnell, 510 F.2d 1190, 1194 (6th Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975); United States v. Essex, 407 F.2d 214, 216 (6th Cir. 1969). Section 1 of the Act of March 2, 1831, now codified at 18 U.S.C. § 401, allowed summary punishment for contemptuous behavior in or near the presence of the court. United States v. O'Donnell, 510 F.2d at 1194; United States v. Essex, 407 F.2d at 216. Section 2 of...

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