U.S. v. DiJames

• Decision Date: 03 May 1984
• Docket Number: No. 83-8014,83-8014
• Citation: 731 F.2d 758
• Parties: 116 L.R.R.M. (BNA) 2273, 101 Lab.Cas. P 11,058 UNITED STATES of America, Plaintiff-Appellee, v. Pascal DiJAMES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 758

731 F.2d 758

116 L.R.R.M. (BNA) 2273, 101 Lab.Cas. P 11,058

UNITED STATES of America, Plaintiff-Appellee, v. Pascal DiJAMES, Defendant-Appellant.

No. 83-8014.

United States Court of Appeals, Eleventh Circuit.

May 3, 1984.

John W. Stokes, Jr., Decatur, Ga., David W. Elbaor, Washington, D.C., for defendant-appellant.

S. Lark Ingram, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, FAY and CLARK, Circuit Judges.

FAY, Circuit Judge:

Following a jury trial in the Northern District of Georgia, appellant, Pascal DiJames, was convicted of willfully failing to file a Labor Department trusteeship report, in violation of 29 U.S.C. Secs. 461(a) and (c) (1980). Although we find sufficient evidence to sustain the conviction for willful failure to file the trusteeship report, we reverse the conviction because venue was proper in this case only in the District of Columbia, not in the Northern District of Georgia. ¹

FACTS

The Tile, Marble, Terrazzo Finishers and Shopmen International Union, AFL-CIO ("International Union") is a craft union representing about 7,000 members, in 120 chapters throughout the United States and Canada, who make their living by assisting tile setters. Local Union 167, located in Atlanta, Georgia is a local chapter of the International Union. During all of the proceedings In March, 1977, Ellis Elders, the business agent of Local Union 167, wrote DiJames and asked him if the International Union could help the local get better organized and negotiate new contracts. DiJames agreed and sent Frank Iarrabino, a vice president of the International Union, to study the situation and to determine what assistance the local union needed. Iarrabino helped the local union obtain a new contract with substantial wage increases. In spite of the new contract Local Union 167 continued having problems. Appellant decided that they needed a full-time supervisor and he appointed James Lynch, a member of the Iron Workers Local Union 387, for this job. The International Union paid Lynch his salary of $1,100 a month. After two and one half months as supervisor, Lynch resigned.

involved in this case appellant was the president of the International Union.

Since DiJames did not think that the local union was able to function on its own he appointed Ray Smith to be the next supervisor. Smith held the position from May, 1978 until May, 1980. As supervisor he had full control of the local union. During his term, union membership increased from 30 to 180 members. It began holding regular meetings and passed a constitution and by-laws. He also started a Southern District Council in an attempt to better organize and strengthen the union. The Council consisted of Local Union 167 and four other locals: Macon, Augusta, Savannah, and Greenville. While he was supervisor, Smith "stayed in touch with [DiJames] ... if [Smith] needed some information or something [he] would call [DiJames] on the phone." R. Vol. IV. at 397.

On November 26, 1979, Smith wrote DiJames a letter requesting that he send someone from the International Union to explain to the local union's members why they were still under supervision and when the supervision would end. R. Vol. IV. at 400. On December 10, 1979, DiJames wrote him back and advised him that Local Union 167 would continue under the supervision of the International Union until June, 1980. R.Vol. IV. at 402. If the local union had good attendance at its meetings for the next six months the International Union would no longer have to supervise it and the local union could hold an election to select its own officers. Id.

On June 20, 1980, after being refused the right to see the union books on several occasions, members of Local Union 167 went to the Department of Labor for help. They inquired if the International Union had filed the required trusteeship papers with the government, indicating that the local was under its supervision. The members were advised that there were no papers on file so they filed a formal complaint. After its investigation the Labor Department concluded that the International Union had imposed a trusteeship over the local union since May, 1978. R. Vol. V. at 540. They further concluded that the International Union had not followed the proper procedures nor filed the required reports. Id.

Ray Smith resigned in June, 1980 and DiJames once more appointed a supervisor. Jerry Carter held the position from June, 1980 until February, 1981, when the local union finally elected its own officers. At this time the union also established its own bank account and took over management of its own affairs. The local's books showed a deficit of $11,564.84.

Mr. DiJames was indicted by a federal grand jury in 1982 for violations of the federal labor laws relating to union trusteeships. On November 12, 1982, a jury convicted Pascal DiJames of willful failure to file the required trusteeship reports. The jury acquitted him of unlawfully transferring funds from the local union to the International Union. DiJames is appealing this judgment of conviction.

APPROPRIATE VENUE

Appellant was convicted in the Northern District of Georgia of willfully failing to file with the Secretary of Labor the trusteeship reports required by 29 U.S.C. Secs. 461(a) and (c) (1980) when the International Union took over the operation of Local Union 167. He asserts that his conviction This case involves the provisions of the Labor Management Reporting and Disclosure Act, 29 U.S.C. Secs. 401-531 (1980) ("the Act"). The principal purpose of the Act is to assure that the union's rank and file participate fully in their union's affairs. American Federation of Musicians v. Wittstein, 379 U.S. 171, 85 S.Ct. 300, 13 L.Ed.2d 214 (1964). Union trusteeships, significant devices by which parent unions seek to control subordinate unions, are one of the aspects of union affairs regulated by the Act. Congress enacted the trusteeship provisions of the Act to ensure order within labor organizations and to prevent corruption and mismanagement of union funds by its leaders. To accomplish this goal the Act requires any parent union that takes over a subordinate labor union by imposition of a trusteeship to file a detailed report with the Secretary of Labor within thirty days after the imposition of the trusteeship. 29 U.S.C. Sec. 461(a). ² Appellant was criminally charged with failure to file this report. 29 U.S.C. Sec. 461(c).

should be reversed because the trial court incorrectly found that venue in this case was proper in the Northern District of Georgia. Since the required trusteeship reports must be filed with the Secretary of Labor in Washington, D.C., and the alleged offense was failure to file these reports appellant contends that the only proper venue for this action was Washington, D.C. We agree.

Article III, section 2, clause 3 of the United States Constitution provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be ... held in the State where the said Crimes shall have been committed...." The Sixth Amendment of the United States Constitution expands this rule and expresses it as a right of the accused by providing that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed...." The Federal Rules of Criminal Procedure also help to preserve this important constitutional right by providing that "[e]xcept 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. Because of this important constitutional right to be tried by a jury of your vicinage, Fed.R.Crim.P. 21(a) "conditions a change of venue ... upon the defendant's request therefor. Absent the request, a change of venue may not be ordered." United States v. Abbott Laboratories, 505 F.2d 565, 572 (4th Cir.1974) (citation omitted), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 671 (1975). A defendant cannot be forced to accept a change of venue against his will. Id. at 572. ³

There are numerous policy reasons for these venue provisions. In order that defendants can be tried before a well-informed jury, the Sixth Amendment directs that the trial be held among those who know the local conditions surrounding the criminal acts. Those jurors should then be able to draw the most accurate inferences from the evidence presented at trial. The venue provisions also seek to avoid the prejudice to a defendant's case that might result from facing trial in a place where it would be difficult for him to obtain witnesses in preparation for trial. Lastly, since most crimes usually take place in the district where the defendant resides, the venue provisions try to reduce the difficulties to the defendant that would be caused by a trial at a distance from his home and friends. United States v. Cores, 356 U.S. 405, 410, 78 S.Ct. 875, 879, 2 L.Ed.2d 873 (1958). Congress has the statutory power to specify where a matter should be prosecuted by the executive branch. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961). Yet in analyzing any particular statutory scheme, courts must be guided by the fundamental policies behind the Sixth Amendment and the venue provisions. United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944).

In order to find where venue was proper in this case we must first determine where the crime was committed. The essence of the offense charged in this case is DiJames' failure to file a required trusteeship report. he Sureme Court has consistently held that "where the crime charged is a failure to do a legally required act, the place fixed for performance fixes the situs of the crime." Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100...