U.S. v. Burns

• Citation: 662 F.2d 1378
• Decision Date: 07 December 1981
• Docket Number: No. 80-7617,80-7617
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert E. BURNS and Margaret Ann Green, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1378

662 F.2d 1378

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. BURNS and Margaret Ann Green, Defendants-Appellants.

No. 80-7617.

United States Court of Appeals, Eleventh Circuit.

Dec. 7, 1981.

W. Jason Uchitel, Decatur, Ga. (court-appointed), for Green and for burns.

John L. Sims, Hartsell, Ala., for Burns.

Bill Barnett, Holly L. Wiseman, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, TJOFLAT and VANCE, Circuit Judges.

VANCE, Circuit Judge:

Robert E. Burns and his daughter Margaret Ann Green appeal their convictions under 18 U.S.C. §§ 2, 2312. We reverse and remand for a new trial because of the district court's error in overruling defendants' motion for change in venue.

Defendants were originally indicted on July 6, 1977. Green was charged with four counts of receiving, transporting and selling stolen vehicles. Burns was charged in two of the counts with receiving stolen vehicles. On September 13, 1977 the original indictment was dismissed without prejudice on motion of the government and without objection by defendants.

A superseding indictment was returned on March 8, 1978. In count one, Burns and Harold Lang were charged with interstate transportation of a stolen gray Cadillac automobile. Count two charged Burns and Green with selling the same gray Cadillac. Counts three and five were against Lang alone. Count four charged Green and Burns with receiving a stolen brown Cadillac, and count six charged Green and Burns with receiving stolen blue and silver Cadillacs. Lang pleaded guilty and testified for the government.

Trial began on June 5, 1978. Prior to submission of the case to the jury the trial judge denied defendants' motions for judgment of acquittal, and on June 12, 1978 a jury convicted both defendants on all counts. On June 26, 1978, however, defendants' renewed motions were granted. The government appealed pursuant to 18 U.S.C. § 3731.

On the prior appeal a panel of the fifth circuit reversed the district court's holding that the evidence was insufficient, vacated the judgments of acquittal and remanded for sentencing. United States v. Burns, 597 F.2d 939 (5th Cir. 1979). ¹ On remand each defendant was sentenced to six months unsupervised probation. Defendants then filed this appeal.

The Venue Issue

Defendants reside in Huntsville, which is in Madison County in the Northeastern Division of the Northern District of Alabama. The alleged offenses took place in Madison County and both defendants were arrested there. Defendants averred that a proper defense required their calling a large number of witnesses, all of whom lived in the Huntsville area. Trial was set and held, however, in Birmingham in the Southern Division of the Northern District of Alabama.

Prior to trial Burns and Green moved for change of venue. The United States Magistrate considered their contentions, as well as Rule 18 of the Federal Rules of Criminal Procedure and the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74, and recommended that their motions be denied. ² There is no indication that any hearing was conducted and it is apparent from the language of the recommendation that it only addressed the allegations in the motion. The key portion of the recommendation is the sentence, "In view of the foregoing rule and statute and the policy of this court to conduct all criminal proceedings in Birmingham, it is recommended that the motions for change of venue be denied." (Emphasis added.)

Without specifically referring to such recommendation the district judge entered an order on April 12, 1978 stating in pertinent part:

Having considered the separate motions for change of venue filed by defendant Robert E. Burns and defendant Margaret Ann Green in connection with the time restraints imposed by the Speedy Trial Act under the circumstances surrounding the superseding indictments herein, together with the current pending criminal cases to be disposed of within the next several months in this district, each such motion for change of venue is OVERRULED.

Determining the correctness of that ruling requires consideration of the interplay between Rule 18 and the Speedy Trial Act.

Prior to 1966 Rule 18 required trial in the division in which the offense was committed. ³ The 1966 amendment eliminated the absolute requirement and vested "discretion in the court to fix the place of trial at any place within the district with due regard to the convenience of the defendant and the witnesses." Advisory Committee Notes, Fed.R.Crim.P. 18. In Dupoint v. United States, 388 F.2d 39 (5th Cir. 1967), however, the fifth circuit adopted a narrow view of what was meant by "the convenience of the defendant and the witnesses." It held that it was reversible error to overrule a defendant's objection to trial in a division other than the one in which the offense was committed when the reason was the convenience of the prosecution rather than that of the defendant. In United States v. Fernandez, 480 F.2d 726, 729-31 (2d Cir. 1973), the second circuit concluded that the convenience of the judge was also an improper basis for the setting of the place of trial.

The Speedy Trial Act of 1974, however, injected another factor into our analysis by providing:

In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a place within the judicial district, so as to assure a speedy trial.

18 U.S.C. § 3161(a). The legislative history discloses that this provision was intended to "permit the trial of a case at any place within the judicial district. This language was included in anticipation of problems which might occur in districts with statutory divisions, where it could be difficult to set trial outside the division." H.R.Rep. No. 93-1508, 93d Cong., 2d Sess. 29 (1974), reprinted in (1974) U.S. Code Cong. & Ad.News 7401, 7422. The 1979 amendment to Rule 18, adopted after the trial of the case before us, eliminated the inconsistency between the Speedy Trial Act and the 1966 version of Rule 18, as interpreted in Dupoint, by adding "the prompt administration of justice" as an additional consideration in setting the place for trial. We do not perceive, however, that the 1979 amendment altered the mandate of the Speedy Trial Act.

We conclude that the rule since the adoption of the Speedy Trial Act, and as now incorporated in Rule 18, is that the fixing of the place of trial within a district is within the discretion of the trial judge but that in the exercise of that discretion he is to give due regard (1) to the convenience of the defendant, (2) to the convenience of witnesses and (3) to the prompt administration of justice. Dupoint and Fernandez demonstrate that the court is not authorized to fix the place of trial on the basis of other considerations to the exclusion of these. In applying this formulation it should be borne in mind that since the 1966 amendment a division of a federal judicial district is no longer a unit of venue in criminal cases. United States v. James, 528 F.2d 999, 1021 (5th Cir.), cert. denied sub nom., Henry v. United States, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). In addition, a division has no constitutional significance; nor does Rule 18 confer any absolute right on a defendant. ⁴ Houston v. United States, 419 F.2d 30, 33 (5th Cir. 1969). We have also recognized, however, that "it is the public policy of this Country that one must not arbitrarily be sent, without his consent, into a strange locality to defend himself against the powerful prosecutorial resources of the Government." Dupoint v. United States, 388 F.2d at 44. We must remember in applying Rule 18 that Huntsville is almost 100 miles from Birmingham. It is a seat of the Northeastern Division of the Northern District of Alabama and the site of the alleged offenses, as well as the home of defendants and twenty-two of the twenty-four Alabama witnesses.

Defendants argue that Rule 18 was violated in this case because the magistrate's recommendation discloses a per se rule to hold in Birmingham all Northern District of Alabama criminal trials. The government counters by stating, "this district now has a general policy, as noted in the Magistrate's Order and Recommendation, of setting criminal trials in Birmingham, where centralized procedures and ample courtroom facilities allow expeditious handling of those cases. This policy is not inflexible, however, and trial judges must exercise their discretion in each case." In an attempt to bolster its position the government moves to supplement the record by proffering transfer orders showing that other cases have been moved from Birmingham. The proffer is of little help to its position, however, because it has only been able to locate three such orders, all by different district judges and all subsequent to the trial of this case.

The Northern District of Alabama contains seven statutory divisions with eight places of holding court. 28 U.S.C. § 81. In that district a substantial portion of all trials and virtually all of the criminal trials are held in the Southern Division at Birmingham. Scheduling disparities are inevitable between that division where trials are being conducted on an almost continuous basis and those less populated divisions where court is held only a few times a year. It is to be expected that these disparities will occasionally result in speedy trial problems in the outlying divisions.

We have no doubt that criminal trials can be scheduled with more efficiency in Birmingham than in the outlying divisions. In this respect the purposes of the Speedy Trial Act may be well...