U.S. v. O'Donnell

Decision Date17 February 1975
Docket NumberNo. 74--1949,74--1949
Citation510 F.2d 1190
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Earl Patrick O'DONNELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Eugene C. Gaerig, Memphis, Tenn. (Court appointed), for defendant-appellant.

Thomas F. Turley, U.S. Atty., Larry E. Parrish, Asst. U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before EDWARDS, McCREE and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This appeal raises the question of the proper venue for prosecution of the offense of endeavoring to obstruct justice as defined by 18 U.S.C. Sec. 1503. 1 Upon a jury verdict of guilty of this offense, appellant was sentenced to five years imprisonment. Appellant was free on bond in a mail fraud case in the Western District of Tennessee where an indictment was returned against him in the same district on June 11, 1973, charging that appellant did 'endeavor to obstruct and impede the due administration of justice . . . seeking to influence the person and testimony of Sherman Roy Dean an unindicted co-conspirator and government witness in the pending mail fraud case in order to eliminate the testimony of Dean at the trial' of the mail fraud case. The indictment stated that the offense occurred in the Western District of Tennessee and in other judicial districts. A subsequently filed Bill of Particulars stated that the only other district in which the offense occurred was the Northern District of Texas in the city of Dallas.

On the ground that there existed so great a prejudice that appellant could not obtain a fair trial in Tennessee, appellant filed a motion to transfer the case to the Northern District of Texas pursuant to Rule 21 of the Federal Rules of Criminal Procedure. Alternatively, it was alleged that proper venue was in the Northern District of Texas and that the indictment should be transferred to that district pursuant to Rule 21(b).

Appellant also filed a motion to dismiss the indictment. One ground of the motion was that the indictment did not allege the requisite facts to establish venue. Following a hearing, the district court overruled all defense motions. 2

The government produced testimony at trial that in April of 1973 Gene Victor Poteet, a pilot with Texas International Airlines, was approached by appellant in a bar near the Dallas airport and in the course of the ensuing conversation stated to Poteet 'I need to kill Billy Wiseman and Sherman Dean.' 3 Appellant explained that he could take care of Wiseman in the Dallas county jail but that he did not want to be in Memphis when Dean was killed there.

Appellant and Poteet had a number of other conversations regarding this subject. Poteet then contacted certain federal agents with whom he had a working relationship as an informer. As a result of Poteet's tip, a meeting was arranged between appellant and Special Agent Lloyd Grafton of the Alcohol, Tobacco & Firearms Bureau. In this meeting, Grafton was to pose as a murderer for hire from Houston. O'Donnell did not appear for the arranged meeting. Grafton then contacted him by telephone, explaining that he had come from Houston for the meeting. A second meeting was then agreed upon. For this meeting Grafton arranged for electronic surveillance. The result was that the ensuing conversation between Grafton and O'Donnell was recorded and the tape of the conversation was introduced by the government at trial together with Grafton's testimony.

During the conversations Grafton, in his undercover role, offered his services to O'Donnell as a hired killer of Dean. It was agreed that Grafton would go to Memphis and kill Dean to eliminate his testimony against O'Donnell in the pending mail fraud case. The fee for Grafton's services was set at $2,500 plus $100 to purchase the gun to be used in the killing. In a subsequent telephone conversation, Grafton stated that he needed to return to Houston in a hurry but that he did want the job. O'Donnell's response was 'you've got it.' All of these events took place in the Northern District of Texas.

The basic venue requirements for federal criminal prosecutions are found in Article III, Section 2, Clause 3 and in the Sixth Amendment to the Constitution. The guarantee is for a trial in the state and district where the offense was committed. These constitutional provisions are implemented by Rule 18 of the Federal Rules of Criminal Procedure:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. . . .

As the statute under which appellant was charged does not prescribe venue for the offense, it becomes necessary to determine from other sources the place where the statutory offense must be deemed to have been committed. The Supreme Court has held that 'the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.' Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), quoting from United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1945).

The statute under which the appellant was charged is unique in that the crime proscribed is 'constructive' contempt of court. See United States v. Essex, 407 F.2d 214 (6th Cir. 1969). The evident purpose of the statute is to protect the administration of justice by the courts or other judicial agencies. To this end, it is made a crime for any person corruptly or by the means prescribed in the statute to obstruct or impede or to endeavor to obstruct or impede the 'due administration of justice.' Viewed in this light, we are persuaded that the crime may be considered to have been committed under the statute in the district where the administration of justice was intended to be obstructed or impeded. Under this rationale, venue would lie in the Western District of Tennessee in the present case. Deeds or acts performed in Dallas to interfere with a pending criminal prosecution in the Western District of Tennessee may have as great an influence on the administration of justice as acts performed within the boundaries of that district.

In the present case both the court where the case was pending and the witness whose death was sought were located in the Western District of Tennessee. Conceding but not deciding that on the facts of this case venue would lie in the Northern District of Texas, such fact would not preclude venue in the district where the criminal case was pending--the only district in which the efforts of the defendant to obstruct justice could ultimately have been realized or fulfilled.

In Travis v. United States, supra, the Supreme Court pointed out that 'the constitutional requirement is as to the locality of the offense, and not the personal presence of the offender.' Thus, proper venue for the offense of filing a false affidavit was held to be in Washington, D.C. where the affidavit was required to be on file and not in Colorado where the affidavit was executed and mailed. The Court reasoned that 'venue should not be made to depend on the chance use of the mails . . ..' 364 U.S. at 636, 81 S.Ct. at 361.

Similarly, it has been held, in a prosecution under the Hobbs Act, 18 U.S.C. Sec. 1951, for obstruction of interstate commerce by extortion, that 'venue under the statute . . . may be laid in any jurisdiction where commerce is affected,' even if all of the conduct related to the extortion occurred outside that jurisdiction. United States v. Floyd, 228 F.2d 913 (7th Cir.) cert. denied 351 U.S. 938, 76 S.Ct. 835, 100 L.Ed. 1466 (1956).

Other cases have sustained venue despite the lack of a defendant's physical presence in the district. For example, where a statute makes failure to do a certain act a crime, the place where the act was to have been performed has been found to be the place where venue lies. United States v. Johnston, 227 F.2d 745 (3rd Cir. 1955) aff'd 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097, reh. den. 352 U.S. 860, 77 S.Ct. 23, 1 L.Ed.2d 69.

Appellant relies on the case of United States v. Swann, 142 U.S.App.D.C. 363, 441 F.2d 1053 (1971). In that case the defendant assaulted a witness who had testified against him at a preliminary hearing and who was to testify against him at a forthcoming criminal trial. Although the criminal proceedings in which the witness testified and was to testify were in the District of Columbia, the court held that venue for a prosecution under the obstruction of justice statute could be laid only in Maryland where the witness was assaulted.

Efforts of the government to distinguish Swann appear to us to be futile since the operative facts are essentially analogous. Yet, despite the weight due a ruling by the District of Columbia Circuit, we are convinced that the result reached in Swann was not correctly reasoned. Of critical importance is the fact that the Swann court failed to recognize the distinction between Sec. 1503 and other types of crimes referred to in the court's opinion.

For example, the Swann court's reliance on cases determining that venue under the Public Corruption Act, 18 U.S.C. Sec. 201, is in the district where the bribe is passed or the attempt to bribe is made is, in our view, inapposite. An analysis of the bribery statute makes it clear that the essence of the offense is not the effect which the bribe may have or may be intended to have upon the conduct of the public official, but rather the actual giving or transfer of money or other thing of value, or the offer to transfer money or other thing of value to a public official. See Krogmann v. United States, 225 F.2d 220, 227 (6th Cir. 1955). The critical event in the commission of the crime is the actual giving or the offer to give or transfer money or other thing of value, absent which no offense is committed under the statute. In view of the focus of the statute upon these physical...

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