U.S. v. Chappell

• Decision Date: 29 July 1988
• Docket Number: No. 87-2464,87-2464
• Citation: 854 F.2d 190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert S. CHAPPELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 190

854 F.2d 190

UNITED STATES of America, Plaintiff-Appellee, v. Robert S. CHAPPELL, Defendant-Appellant.

No. 87-2464.

United States Court of Appeals Seventh Circuit.

Argued April 15, 1988.

Decided July 29, 1988.

Timothy J. Burns, Indianapolis, Ind., for defendant-appellant.

Jeffrey L. Hunter, Asst. U.S. Atty., Bradley L. Williams and Jackie M. Bennett, Jr., Indianapolis, Ind., for plaintiff-appellee.

Before WOOD, Jr. and CUDAHY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Defendant-appellant Chappell was convicted by a jury of willfully failing to appear as required pursuant to conditions of his release on bail pending appeal from an earlier conviction, in violation of 18 U.S.C. Sec. 3150 (1982). ¹ He was sentenced to imprisonment for 44 months, consecutive to any other federal sentence, and ordered to pay a $50 special assessment.

THE FACTS OF THE OFFENSE

It was proved that Chappell had been convicted of mail fraud November 19, 1981 in the District Court for the Southern District of Indiana. After the verdict, the court announced that Chappell could remain at liberty under his existing bond (a $35,000 surety bond he had originally posted in California, where he lived, and had been arrested). On March 1, 1982 the district court sentenced him to a term of imprisonment. He immediately appealed and asked for a stay pending final judgment on appeal. Although the record does not show an oral or written order on the subject, Chappell was permitted to remain at liberty. This court affirmed January 14, 1983, 698 F.2d 308. Our mandate reached the district court February 25, after denial of rehearing and denials of a stay of mandate by this court and the Supreme Court.

On or just before February 25, Chappell's attorney got in touch with the Chief Deputy Marshal for the Southern District of Indiana concerning an arrangement to have Chappell surrender in California. The Chief Deputy Marshal got in touch with a Deputy Marshal for the Central District of California and it was arranged that Chappell would surrender at the latter's office in Los Angeles at 10:00 AM February 28, 1983. Counsel notified Chappell and Chappell agreed to appear accordingly. He did not do so, but went to the Bahamas, where he had earlier resided and carried on business. ² He stayed there until arrested in Miami on December 9, 1986.

On appeal, Chappell argues four propositions, which we dispose of as follows.

I. VENUE

Chappell argues that the court erred in denying his motion to dismiss for improper venue. He contends that prosecution could only have been maintained in the Central District of California where he failed to appear.

He relies on Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956). Defendants there were instructed by draft boards in their districts of residence to report for civilian work to state hospitals in other districts. Defendants failed to report. The Supreme Court held that venue lay only in the districts where the state hospitals were located, saying "[w]e are led to this conclusion by the general rule that where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime." 351 U.S. at 220, 76 S.Ct. at 742 (footnote omitted). We think, however, that Johnston can be distinguished and does not control where a defendant has secured his release from a federal court or judicial officer in one district, to be at liberty pending judicial proceedings and subject to appearance as required, and the place at which appearance comes to be required and where he fails to appear is in a different district.

Rule 18, FED.R.CRIM.P., calls generally for prosecution "in a district in which the offense was committed." See also Article III, section 2 of the Constitution and the Sixth Amendment. Congress has recognized that an offense may be begun in one district and completed in another or may be committed in more than one district, and accordingly may be prosecuted in any of such districts. 18 U.S.C. Sec. 3237. ³

The decisions are discrete, each looking to the nature of the crime charged.... Where Congress is not explicit, "the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703 [66 S.Ct. 1213, 1216, 90 L.Ed. 1529].

Travis v. United States, 364 U.S. 631, 635, 81 S.Ct. 358, 361, 5 L.Ed.2d 340 (1961).

In 1980 the Sixth Circuit considered a case in which defendant had been indicted in the Western District of Kentucky for failure to appear. This was the district where he had earlier been convicted and sentenced, released on bail pending appeal, and upon affirmance, ordered to surrender in a different district, where he lived. He failed to appear. The court held that venue was proper in the Western District of Kentucky, the district where the district court had released defendant on bail. United States v. Roche, 611 F.2d 1180 (6th Cir.1980). The court reasoned

[i]n our view when a bailed defendant willfully disobeys a court order requiring him to report for commencement of his prison term, the nature of that failure constitutes an affront to the power and dignity of the court which admitted him to bail and a most flagrant breach of the conditions of his lawful release. The crime of bail jumping diminishes the power of a court to control those properly within its jurisdiction and afflicts that court with its detrimental effects.

611 F.2d at 1183.

The court indicated a similarity to a constructive contempt of court, ⁴ and relied on the doctrine that one whose acts outside a jurisdiction intentionally caused detrimental effects within it may be dealt with as if he had been present at the effect. Ibid. The court indicated no opinion whether venue would also be proper in the district where defendant had been ordered to appear, but failed. 611 F.2d at 1183 n. 4.

In 1983, the Eleventh Circuit decided a similar question. The court, relying on Roche, decided that venue was proper in the Southern District of Georgia, where the district court had convicted and sentenced defendant, released him on bail pending appeal, and, after affirmance, had ordered him to appear at an institution in Florida. United States v. Martin, 704 F.2d 515 (11th Cir.1983). The court did not decide whether venue might be proper in other districts. 704 F.2d at 518 n. 6.

In 1983, the Eighth Circuit dealt with the other side of the coin. Defendant had been convicted and sentenced by the District Court for the District of Arizona. That court had ordered him to surrender in the Western District of Missouri. He failed to do so and was indicted in the latter district. The Eighth Circuit held that venue proper because defendant's act of appearing should have occurred in that district. Zerilli v. United States, 706 F.2d 877 (8th Cir.1983). The court expressed no opinion on the propriety of venue in Arizona. 706 F.2d at 879 n. 5.

In 1986, the Sixth Circuit held that in the type of situation we have been considering, venue "is proper both in the district issuing the order to appear and in the district where defendant was ordered to appear...." United States v. Williams, 788 F.2d 1213, 1214 (6th Cir.1986). ⁵ Defendant had been indicted in the Eastern District of Kentucky for firearms violations. He was arrested in the Southern District of Indiana, released on bond by a magistrate in that district and ordered to appear before the District Court for the Eastern District of Kentucky. He failed to appear and was indicted in the Kentucky district for such failure.

In deciding that venue was proper in either district, the court applied a substantial contacts test as articulated in United States v. Reed, 773 F.2d 477 (2d Cir.1985). Reed involved a prosecution for perjury and obstruction of justice. A civil action had been brought in the Southern District of New York. Defendant's perjury occurred during his deposition in San Francisco for the purpose of the New York action. In his deposition he used notes he had created in Virginia and California and their creation and use were alleged to constitute obstruction of justice. He was indicted in the Southern District of New York and the Second Circuit decided that venue was proper.

The court concluded that "where the acts constituting the crime and the nature of the crime charged implicate more than one location, the constitution does not command a single exclusive venue." 773 F.2d at 480. The court described the test it applied "as a substantial contacts rule that takes into account a number of factors--the site of the defendant's acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding...." 773 F.2d at 481.

In applying the Reed test in Williams, the Sixth Circuit noted (1) that since Sec. 3150 proscribed failure to act, the site of defendant's acts does little to establish substantial contacts in either district; (2) the element of failure to appear occurred in the district where appearance should have been accomplished, but the nature of the failure constitutes an affront to the power and dignity of the court which admitted the defendant to bail; (3) the effect of the conduct is found in both districts; and (4) the districts are each likely to be suitable for factfinding because relevant evidence is probably present in both. 788 F.2d at 1215-17.

We agree generally with the analysis in Williams. We add that a predicate element of the offense is that a defendant have been released pursuant to the Release and Detention Chapter, and that act occurred in the district of release. Moreover, a defendant must necessarily have been present in such district and performed whatever acts were necessary to obtain release. He will, in effect, have created an obligation to that court, in return...