U.S. v. Cofield

• Decision Date: 22 February 1994
• Docket Number: No. 92-5722,92-5722
• Citation: 11 F.3d 413
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy COFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 413

11 F.3d 413

UNITED STATES of America, Plaintiff-Appellee, v. Timothy COFIELD, Defendant-Appellant.

No. 92-5722.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1993.

Decided Nov. 18, 1993.

As Amended Jan. 5, 1994.

Certiorari Denied Feb. 22, 1994.

See 114 S.Ct. 1125.

Julie Marie Strandlie, Passarelli & Brand, McLean, VA, argued (Kenneth N. Brand, on brief), for defendant-appellant.

Sarah Margaret Mortenson, Sp. Asst. U.S. Atty., Alexandria, VA, argued (Richard Cullen, U.S. Atty., on brief), for plaintiff-appellee.

Before LUTTIG, Circuit Judge, SPROUSE, Senior Circuit Judge, and KISER, Chief United States District Judge for the Western District of Virginia, sitting by designation.

OPINION

SPROUSE, Senior Circuit Judge:

Timothy Cofield appeals his conviction for aiding and abetting the retaliation against a witness and retaliation against a witness in violation of 18 U.S.C. Secs. 2 and 1513(a)(1). The primary issue on appeal concerns the proper venue under 18 U.S.C. Sec. 1513, enacted under the Victim and Witness Protection Act of 1982. The district court held that venue was proper in the Eastern District of Virginia, the place of the underlying judicial proceeding. We agree. Likewise, we find no error in the district court's denial of Cofield's motion to sever nor in its denial of his motion for acquittal based on his contention of insufficient evidence, and affirm.

I

A federal jury in the Eastern District of Virginia convicted Timothy Cofield for aiding and abetting the retaliation against a witness and retaliating against a witness in violation of 18 U.S.C. Secs. 2 and 1513(a)(1). Although the participants in the fight that led to Cofield's conviction have different versions of his motivation, there is no question the brawl occurred in the District of Columbia.

Sheila Wormley was the main prosecution witness in the case of United States v. Kenny, Crim. No. 91-347 (E.D.Va.1991). At Reverend Kenny's trial, Wormley testified that Kenny attempted to induce her to present false testimony to the grand jury. ¹ Before she testified, Wormley had worked at Reverend Kenny's thrift store. During Reverend Kenny's trial, however, the judge issued a restraining order barring Wormley from the thrift shop and its surrounding areas. The district court in the Eastern District of Virginia convicted Reverend Kenny for obstruction of justice in violation of 18 U.S.C Sec. 1503, Kenny, Crim. No. 91-347 (E.D.Va.1991), and we affirmed, United States v. Kenny, 973 F.2d 339, 345 (4th Cir.1992).

In the early afternoon on February 19, 1992, a little over a month after Reverend Kenny's conviction, Wormley left her volunteer tutoring position at Martha's Table in northwest Washington, D.C. with her two children and a friend's child. She walked down the street to ask a friend, Murphy Williams (a.k.a. Mr. Bill), for a ride home. She found Mr. Bill standing in front of Reverend Kenny's thrift store.

While Wormley was talking with Mr. Bill, Cofield and his girlfriend Deborah Kenny, along with a friend, Duane Wedge, drove up to the front of the thrift store and exited their car. At that time, Cofield and Deborah Kenny, the daughter of Reverend Kenny, had been involved in a two-year relationship. Deborah Kenny walked from the car toward Wormley and Mr. Bill. The parties dispute who initiated the ensuing argument. According to Wormley's testimony at trial, Deborah Kenny interrupted their conversation and said to Mr. Bill, "You can talk to that bitch somewhere else after what she did to my father." Deborah Kenny, however, testified that she stated to Mr. Bill, "Would you please move from my store, get the people from out [sic] front of my store." Under both versions, Wormley responded by swearing at Deborah Kenny, and Deborah Kenny cursed back. After the two had argued for about five minutes, Deborah Kenny drew back to hit Wormley. Wormley preempted the strike and hit Deborah Kenny. Around this time, Cofield got involved in the brawl. Cofield hit Wormley, knocked her to the ground, dragged her against a tree, and kicked her. During the fight, Cofield kept saying "this is my wife," referring to Deborah Kenny. Wormley, at some time during the conflict, pulled out a can of mace and sprayed Deborah Kenny.

Jacob Kisther, an off-duty District of Columbia police officer, observed Cofield beating Wormley and intervened. Although Kisther did not see the beginning of the confrontation, after the fight, he overheard Deborah Kenny state: "This was all in reference to the case you testified in before against Pops." When Deborah Kenny made this statement, Cofield was in the back of Kisther's vehicle, beyond hearing range. Following the confrontation, an ambulance transported Wormley to Howard University Hospital where she was treated for minor injuries. There is no indication from the record that Deborah Kenny or Cofield were injured.

On April 19, 1992, a federal grand jury indicted Timothy Cofield and Deborah Kenny in the Eastern District of Virginia for conspiracy in violation of 18 U.S.C. Sec. 371; aiding and abetting the obstruction of justice and obstruction of justice in violation of 18 U.S.C. Secs. 2 and 1503; aiding and abetting the retaliation of a witness and retaliation of a witness in violation of 18 U.S.C. Secs. 2 and 1513(a)(1); and aiding and abetting tampering with a witness and tampering with a witness in violation of 18 U.S.C. Secs. 2 and 1512(b)(1). Approximately two months later, on the government's motion, the district court dismissed the conspiracy count. On July 1, 1992, Cofield and Kenny were tried jointly.

Prior to trial, Cofield filed several motions, including a motion to sever his trial from Deborah Kenny's and a motion to transfer venue to the District of Columbia. On June 19, 1992, the court denied both motions. At the conclusion of the government's evidence, Cofield moved for a judgment of acquittal, which the district court denied. The jury found him guilty of aiding and abetting the retaliation against a witness and retaliating against a witness in violation of 18 U.S.C. Secs. 2 and 1513(a)(1), but found him not guilty on all other counts. On September 11, 1992, the district court sentenced him to seventy months' imprisonment followed by a two-year supervised release term and imposed a $50 special assessment. Cofield appeals his conviction, challenging the court's denial of his motions to transfer venue, for severance, and for judgment of acquittal.

II. VENUE

Article III, Section 2 of United States Constitution guarantees a defendant a trial in the state where the crimes were committed. U.S. Const. art. III, Sec. 2, cl. 3. The Sixth Amendment commands that all criminal defendants have a right to a trial in "the State and district wherein the crime shall have been committed." U.S. Const. amend. VI; see Travis v. United States, 364 U.S. 631, 633, 81 S.Ct. 358, 360, 5 L.Ed.2d 340 (1961). Federal Rule of Criminal Procedure 18, implementing these constitutional requirements, provides that "except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed." Fed.R.Crim.P. 18; see United States v. Kibler, 667 F.2d 452, 454 (4th Cir.), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982).

In many criminal statutes, Congress eliminates the problem of determining where "the offense [is] committed" by appending a venue provision. However, "where Congress is not explicit, 'the locus delicti must be determined from the nature of the crime alleged and the location of the acts or acts constituting it.' " Travis, 364 U.S. at 635, 81 S.Ct. at 361 (quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946)).

Cofield was convicted under 18 U.S.C. Sec. 1513(a)(1), which has no venue provision. Section 1513 provides in part:

(a) Whoever knowingly engages in any conduct and thereby causes bodily injury to another person or damages the tangible property of another person, or threatens to do so, with intent to retaliate against any person for--

(1) the attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other object produced by a witness in an official proceeding.

Cofield argues that this language directs venue to the District of Columbia, where the alleged assault occurred, and that the district court erred in denying his motion to transfer venue there. To support this proposition, he relies heavily on United States v. Kibler, 667 F.2d 452, 454 (4th Cir.1982). In Kibler, we were faced with the task of ascertaining the proper venue under 18 U.S.C. Sec. 1503, another obstruction of justice statute. There, we looked to the verbs defining the proscribed act for direction in resolving the venue issue. ² Employing this same analysis, Cofield points out correctly that the verbs in Sec. 1513, the statute under which he was convicted, are "engages," "causes" (bodily injury), "damages," and "threatens" and argues that all of those verbs describe conduct that occurred in the District of Columbia.

The government, however, contends principally that Sec. 1513 is part of the federal criminal law relating to obstruction of justice, that these statutes are derived from a common source: laws providing punishment for contempt of court. The purpose of these statutes, the government insists, is to protect the judicial process from hostile or corrupt actions. From this analysis, it concludes that since the judicial integrity of the district court in the Eastern District of Virginia was offended by Cofield's conduct, venue was proper in that district.

Cofield's argument that we have adopted the "verb test" as an interpretative aid is certainly correct. So, too, is the government's argument that in determining venue we have looked at the purpose of the statute as evidenced by its legislative history. In Kibler, we applied the "verb test" to Sec....