U.S.A v. Curtiss
| Decision Date | 13 January 2011 |
| Docket Number | No. 09-4698,09-4698 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN C. CURTISS, a/k/a Jay Curtiss, d/b/a Centerline Carbon Products, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:87-cr-00112-RLW-1)
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Benjamin L. Hatch, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
On December 14, 1987, Appellant John C. Curtiss was indicted in the Eastern District of Virginia for mail fraud, false statements, false claims upon the United States and conspiracy, in violation of 18 U.S.C. § § 1341, 1001, 287 and 286, respectively. The gravamen of all of the charges was that, despite his debarment from entering into government contracts, Curtiss continued to engage in fraudulent contracting with a Department of Defense agency located in Virginia.
Prior to trial, Curtiss moved to dismiss the indictment on the ground of improper venue. The district court denied the motion and a jury convicted Curtiss on all counts. Sentencing was scheduled for May 1988, but Curtiss absconded and was not apprehended until 2009. The proceedings resumed with a sentencing hearing on July 14, 2009. The district court sentenced Curtiss to a 15-year term of imprisonment. On appeal, Curtiss assigns error in the denial of his motion to dismiss and in the inadequacy of the district court's statement of reasons for the sentence. We affirm.
The Defense General Supply Center ("DGSC"), located in the Eastern District of Virginia, procures and stores a variety ofmilitary supplies, including electrical contact brushes, which are devices designed to maintain electric currents in rotating machinery. Curtiss supplied DGSC with electrical contact brushes but was barred from doing so after he was convicted in 1983 of the unlawful sale of government property. The debarment order prohibited Curtiss from government contracting from February 22, 1984 to December 28, 1986.
After Curtiss was barred from government contracting, he approached the owner of Sent Electric Company, Peter Kljucaricek, a/k/a Peter Kay, about using Sent Electric Company to make brush sales to the DGSC. Kay agreed to the arrangement in return for a ten-percent commission on the sales. Around the same time, Curtiss's wife registered a new company, Centerline Carbon Products, in her name in Michigan. Under the arrangement with Kay, Curtiss received information about brushes DGSC intended to purchase, prepared bids in the name of Centerline Carbon Products, and submitted them in the name of Sent Electric Company. When the government submitted a contract to Sent Electric Company, Kay would transfer the contracts to Centerline Carbon, which handled the stock selection, packing, labeling, and shipping. As a result, Curtiss was able to continue to participate in the contracting process during his period of debarment.
DGSC initiated an investigation after it received complaints about the quality of the contact brushes. The investigation revealed that Curtiss would either select and ship less expensive, unauthorized brushes instead of the required brushes, or he would resell brushes from government surplus that he possessed, in violation of the contract.
On December 14, 1987, Curtiss was indicted in 21 counts for mail fraud, in violation of 18 U.S.C. § 1341; false statements, in violation of 18 U.S.C. § 1001; false claims upon the United States, in violation of 18 U.S.C. § 287; and conspiracy to defraud the Department of Defense, in violation of 18 U.S.C. § 286. Each count alleged that the offense occurred within the Eastern District of Virginia prior to November 1, 1986.
Curtiss filed a pretrial motion to dismiss the indictment for improper venue, relying on constitutional provisions and Federal Rule of Criminal Procedure 18.1 While Curtiss's motiondid not seek a transfer of venue pursuant to Federal Rule of Criminal Procedure 21(b), 2 the government's opposition stated in a footnote that Curtiss's allegations "seem to fit the framework of that Rule." J.A. 38. In its denial of Curtiss's motion to dismiss, the district court cited law pertaining to constitutional venue principles and Federal Rule of Criminal Procedure 18.
At the conclusion of a three-day trial, the jury convicted Curtiss on all counts. Prior to sentencing, however, Curtiss absconded, and the district court issued a bench warrant for his arrest. Curtiss was not apprehended until March 25, 2009, more than twenty years after he fled.
When Curtiss was returned to Virginia for sentencing in 2009, the government filed an updated sentencing memorandum, requesting a five-year term of imprisonment. At the sentencing hearing, Curtiss argued for a term of three to four years of imprisonment. The district court announced its sentence by stating:
Pursuant to Title 18 U.S.C. Section 3553(a)... I sentence Mr. Curtiss to a total term of 15 years, consisting of five years on count one, five years on count two, and five years on count three, all to run consecutively to each other; and ten years on count 21 to run concurrently to the 15-year term imposed on counts one, two and three.
J.A. 655. On the remaining counts, the court suspended sentence and placed Curtiss on five years of supervised release upon his release from prison. Curtiss noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Curtiss first maintains that the district court committed error in denying his motion to dismiss the indictment for improper venue.3 He notes that many of the events related to thegovernment contracting offenses occurred outside of Virginia, and that the scheme he created originated in Michigan, where Curtiss, his wife, and Kay resided.
We review de novo a district court's denial of a motion to dismiss for improper venue. See Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004); United States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993). When multiple counts are alleged in an indictment, venue must be proper on each count. United States v. Stewart, 256 F.3d 231, 242 (4th Cir. 2001). The government bears the burden of proving venue by a preponderance of the evidence. United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).
As mentioned, the Constitution sets forth the basic parameters for venue in a criminal case. Under Article III, "[t]he Trial of all Crimes... shall be held in the State where the said Crimes shall have been committed." U.S. Const. art. III, § 2, cl. 3; see also U.S. Const. amend. VI (). Federal Rule of Criminal Procedure 18 reiterates this principle: "Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed." Together, these provisions "protect the defendant from bias, disadvantage, and inconvenience in the adjudication of the charges against him." United States v. Johnson, 510 F.3d 521, 524 (4th Cir. 2007) (quoting Ebersole, 411 F.3d at 524).
In keeping with these principles, Congress may prescribe specific venue requirements for a particular crime. Johnson, 510 F.3d at 524. If Congress adopts such a statute imposing venue requirements, "that provision must be honored (assuming, of course, that it satisfies the constitutional minima.)" Id. (quoting United States v. Salinas, 373 F.3d 161, 164 (1st Cir. 2004)). In addition, federal law provides that venue is proper in any district where an offense was begun, continued or completed. 18 U.S.C. § 3237(a).
Here, venue in the Eastern District of Virginia was proper for each count. Venue was proper for the mail fraud counts because Curtiss caused DGSC to mail contract payments from the Eastern District of Virginia. See 18 U.S.C. § 1341 (); United States v. Blecker, 657 F.2d 629, 632-33 (4th Cir. 1981) (same); see also 18 U.S.C. 3237(a) ().
Venue was proper for the false statement counts because Curtiss made and used false documents knowing they contained materially false information, and these documents were filed in the Eastern District of Virginia. See Blecker, 657 F.2d at 63637 (); see also United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) ().
Similarly, venue was proper for the false claims counts because Curtiss made and used false documents knowing they contained materially false information, and these documents were presented to the government in the Eastern District of Virginia. See 18 U.S.C. § 287 (). Finally, venue was proper for...
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