U.S. v. DeLoach
| Citation | 654 F.2d 763,210 U.S. App. D.C. 48 |
| Decision Date | 04 December 1980 |
| Docket Number | 80-1103,Nos. 80-1091,s. 80-1091 |
| Parties | , 7 Fed. R. Evid. Serv. 1192 UNITED STATES of America v. William L. DeLOACH, Jr., a/k/a Bill Zockman, Appellant. UNITED STATES of America, v. Ralph HOLLAND, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Michael S. Frisch, Washington, D. C., (trial counsel, appointed by this court), for appellant DeLoach.
Alex Kozinski, Washington, D. C., (appointed by this court), for appellant Holland.
Benjamin B. Sendor, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Steven C. Tabackman, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.
Before TAMM and MacKINNON, Circuit Judges, and JOHN H. PRATT, * United States District Judge for the District of Columbia.
Opinion for the court filed by District Judge JOHN H. PRATT.
Appellants, co-defendants below, were convicted of violating 18 U.S.C. § 1001 (1976) by submitting a false application for the labor certification of an alien. 1 Their
consolidated appeals raise three issues: first, whether venue was proper in the District of Columbia; second, whether the trial judge erred in admitting "bad acts" testimony against Holland; and third, whether testimony concerning a third person's statement should have been admitted over hearsay objections. For the reasons stated below, we affirm both convictions.
In early 1978, Ralph Holland met an Iranian national by the name of Hossein Goodarzi, and for the sum of $350, promised to find Goodarzi a job and to help obtain the necessary labor certification. Between the autumn of 1977 and the autumn of 1978, Holland made similar promises to three other aliens in exchange for various sums of money. Contrary to his promises, Holland found them neither jobs nor certifications, and returned none of their money.
Holland met with Goodarzi several times, and on August 31, 1978, they submitted an application for Goodarzi's alien labor certification, Form MA 7-50 B, to the D.C. Department of Labor (DCDL). Holland had arranged with William DeLoach, a friend and purported auto mechanic, to act as the prospective employer. DeLoach completed the form under the alias of William Zockman, the proprietor of Bill's Auto Repair Service, supposedly located at 2677 Douglass Place, S. E., Washington, D.C., the address of DeLoach's apartment. The defendants stipulated that both of them had helped complete the form: both men's fingerprints were found on it, DeLoach signed it, and Holland arranged for it to be typed.
The DCDL soon returned the application because it did not include a copy of the required newspaper advertisement for the job in question, the results of such advertising, and instructions to the DCDL concerning interviews for possible American applicants for the jobs. Federal regulations require that the alien's prospective employer advertise for American workers to fill the position, and to hold the job open for a month to permit Americans to compete for the post. 2 The application was resubmitted with some of the missing materials in late November, 1978. DeLoach and Holland later sent in copies of the advertisements they ran in the Washington Post, together with information about two fictitious American job applicants who had been "rejected" as unqualified.
On December 21, 1978, the DCDL sent an American applicant, Robert Williams, to interview for the job. Not surprisingly, Williams was unable to find the shop at its listed address. He called the Department, and stated that he had asked around and "No one had heard of Bill's Auto Repair Service." DeLoach later explained to the DCDL that he had listed his home address (where he supposedly did the firm's paperwork) and gave another address, this one on First Street, N.E., where the garage was supposed to be located. He also drew a map of the shop's location. After further unsuccessful efforts to contact DeLoach for an interview, Williams gave up.
In mid-January 1979, the DCDL forwarded the application to the U.S. Department of Labor's Regional Office in Philadelphia for certification. The application was referred for criminal investigation which soon revealed the nonexistence of the firm in question, as well as the phantom applicants who had supposedly been rejected.
After a jury trial, appellants were convicted on two counts of making material false statements in a matter within the jurisdiction of a United States agency, in violation of 18 U.S.C. § 1001. The false statements in question concerned the existence of the prospective employer, and facts about his business; about the existence of a job opening; and about the company's supposed efforts to secure American applicants for the job.
Appellants object to the venue of their trial, even though they were tried in the district in which DeLoach and most of the witnesses reside, and where the acts leading up to the offense actually occurred. Appellants The Travis case involved the prosecution of a labor leader for filing a false non-communist affidavit with the National Labor Relations Board in Washington, D.C. This filing violated § 9(h) of the National Labor Relations Act, 4 and 18 U.S.C. § 1001. The United States prosecuted Travis in Colorado, where he lived, and where he prepared and mailed the false affidavit. The government relied on 18 U.S.C. § 3237(a) to lay venue in Colorado, arguing that filing of this affidavit constituted a continuing offense, making venue proper both in Colorado and in the District of Columbia. 5
suffered none of the harms distant trial and hostile jury that the Framers of the Sixth Amendment were seeking to prevent. Nonetheless, Holland and DeLoach argue that despite the additional expense, inconvenience, and potential prejudice associated with distant venue, this court should extend the ruling in Travis v. United States 3 to overturn their convictions. This we decline to do.
The court disagreed, ruling that venue was proper only in the District of Columbia, where the filing occurred, because no federal jurisdiction attached until the affidavit was actually received by the Board. 6 Congress, the court found, intended the filing of these affidavits to be an essential prerequisite for the exercise of any federal jurisdiction under the National Labor Relations Act; "(t)he filings (were) conditions precedent to a union's use of the Board's procedures." 7 Given this statutory scheme, and the possibilities of loss in or retrieval from the mails, the court read § 9(h) of the NLRA as restricting venue under § 3237(a) to the place where the affidavit was ultimately filed. 8
Thus, contrary to appellants' assertions here, the court adopted a case-by-case approach and analyzed the relevant statutory scheme; 9 it did not pronounce a flat rule restricting venue in false statement cases to the place where federal authorities received the statement. Absent a showing that Congress intended federal jurisdiction and venue to be so restricted, four circuit courts of appeal have rejected the board reading of Travis urged by appellants here. 10
To hold as appellant suggests would be to say that every defendant whose forms are filed in (another district) must defend in (that district) despite the fact that the more convenient and logical forum would be in the district where defendant resides, works, and where his witnesses can be found. Such a result, in the absence In the present case, appellants argue neither from the legislative history nor the statutory scheme, but from federal regulations implementing the Immigration and Naturalization Act of 1952. 12 These regulations, it is argued, restrict federal jurisdiction to those false statements actually filed with the Regional Offices of the Department of Labor. With jurisdiction so restricted, venue should be restricted to the district in which the Regional Office is located.
of a specific mandate from Congress, would be undesirable. 11
Neither the regulations' language nor the Federal Register notices announcing them support this construction. 13 The rules state simply that if possible fraud or willful misrepresentations are discovered "prior to" certification, the certifying officer shall refer the matter to the Immigration and Naturalization Service for investigation. 14 Moreover, if an application is the subject of a criminal indictment or information, the processing shall be halted until final disposition of the charges. 15 Thus, the regulations contemplate possible investigation and prosecution before an application ever reaches the Regional Office. Therefore, jurisdiction exists to prosecute in both the district where the application is submitted to the state agency (in this case the DCDL) and in the district in which the Regional Office is located, and venue for the prosecution is proper in both districts.
Considerations of federalism and practicality support the decision that venue lies in both districts. This case, unlike Travis, involves a program administered concurrently by the D.C. and federal governments. Federal offenses involving such programs will often relate to conduct violating state law, in this case possible fraud. Where Congress by statute and the Executive by regulation have chosen to give states a role in such a program, these choices favor trial in the affected state of federal offenses involving that program. Laying venue in this fashion would permit more rapid disposition of related state charges, allow more convenient trial in many cases, and permit sentencing judges more opportunity to consider the propriety of concurrent sentences.
Three government witnesses, all aliens, testified that Ralph Holland was a swindler, who took their money for false promises to...
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