U.S. v. Lewis, No. 74-1242

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore PHILLIPS, Chief Judge, and WEICK and ENGEL; PHILLIPS
Citation504 F.2d 92
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joe LEWIS and Tommy Allen Combs, Defendants-Appellants.
Decision Date08 October 1974
Docket NumberNo. 74-1242

Page 92

504 F.2d 92
UNITED STATES of America, Plaintiff-Appellee,
v.
Joe LEWIS and Tommy Allen Combs, Defendants-Appellants.
No. 74-1242.
United States Court of Appeals, Sixth Circuit.
Argued June 19, 1974.
Decided Oct. 8, 1974.

Page 95

Dan Jack Combs, Combs & Combs, Pikeville, Ky., on brief, for defendants-appellants.

Eugene E. Siler, U.S. Atty., John M. Compton, Eldon L. Webb, Asst. U.S. Attys., Lexington, Ky., on brief, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.

PHILLIPS, Chief Judge.

Joe Lewis and Tommy Allen Combs appeal from a jury conviction for transporting stolen explosive materials in violation of 18 U.S.C. 842(h). 1 We affirm.

I. Facts

About midnight on Sunday, September 3, 1972, two Kentucky state policemen were in a rural area of Perry County investigating a 'drunk complaint of a pickup truck that was supposed to be red.' A red Chevrolet pickup truck with a white homemade camper on it soon passed their police cruiser. The officers further noticed that the pickup had defective tail lights and a loud muffler.

The officer driving the police cruiser turned on his blue rptating beacon and the pickup pulled off to the side of the road and stopped. The police officers parked approximately six to eight feet directly behind the pickup and apparently left their cruiser's headlights on as they walked toward the pickup. At the request of the officers the driver of the pickup, the appellant Lewis, displayed his driver's license. One of the officers testified that he gave Lewis a traffic citation for defective tail lights and muffler, presumably in violation of K.R.S. 189.050 and 189.140 respectively. The appellant Combs was a passenger in the pickup.

As the officers initially approached the pickup from the rear, they saw through the window in the rear of the camper some boxes labeled 'danger electrical blasting caps.' 2 After ordering the appellants to get out of the pickup, the officers inquired as to what the appellants were hauling. The appellants disclaimed any knowledge of the contents of the camper, saying that the pickup was owned by another person. Appellant Lewis was then asked to open the rear door of the camper. He refused and told the officers that if they wanted it opened to do it themselves.

Page 96

The officers then searched the appellants, advised them of their rights and placed them in the police cruiser. While one officer remained in the cruiser with the arrestees, another searched the pickup which appeared to be heavily loaded. He found a large quantity of electrical dynamite caps in the rear and two rifles, one tire tool and a pair of bolt cutters in the cab. It was later determined that the boxes found in the rear of the pickup contained over 1,800 blasting caps, which were valued at approximately $2,000. The next morning the officers discovered that a large quantity of blasting caps were missing from the magazine of a construction company in a nearby county.

Prior to the trial in the District Court, the appellants were tried in state court on two separate charges. They were found not guilty in Perry Circuit Court on the charge of possession of burglary tools. However, they were found guilty in Leslie Circuit Court of the offense of breaking and entering the construction company's magazine and carrying away therefrom electrical blasting caps.

II. Judicial Administration Issues

On appeal from their convicton in the District Court, appellants raise numerous assignments of error. Of primary importance are three alleged errors of judicial administration and procedure.

The genesis of each of these three alleged errors is appellants' claim that they were moved 'from pillow to post' within the Eastern District of Kentucky with no regard to their convenience or the convenience of witnesses. The following table presents a summary of relevant actions taken in this case, the date, and the location within the district at which the action was taken.

Action Date Location
                ------ ---- --------
                1. Indictment returned November 8, 1972 Jackson
                2. Arraignment November 15, 1972 Pikeville
                3. Action transferred from December 15, 1972
                 Jackson docket to Pikeville
                 docket
                4. Hearing on suppression February 15, 1973 London
                 motion
                5. Further hearing on suppression
                 motion May 14, 1973 Pikeville
                6. Action transferred from
                 Pikeville docket to Lexington
                 docket August 1, 1973
                7. Jury trial resulting in hung
                 jury; Action subsequently
                 reassigned to Pikeville
                 docket Sept. 10-12, 1973 Lexington
                8. Jury trial resulting in
                 conviction Oct. 29-31, 1973 Pikeville
                

(A) Appellants contend that the District Court violated the following venue requirement of Fed.R.Crim.P. 18: 'The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses.' Prior to the beginning of their first trial in Lexington, on September 10, 1973, appellants moved to dismiss the indictment or, in the alternative, for an

Page 97

order 'staying all proceedings against them in any division of this Court except the Jackson Division, and staying any trial by any jury other than a jury drawn from the counties comprising the Jackson Division of this Court.' Appellants maintain throughout their brief and oral argument that Jackson is a division of the Eastern District of Kentucky. As more fully discussed in II(b) below, this contention is erroneous. 28 U.S.C. 97(a).

Although the District Court later overruled the motion to dismiss the indictment, it did not rule on the alternative motion to stay all proceedings except those at Jackson. In support of their alternative motion, appellants stated that they were residents of Perry County, that the alleged offense occurred in Perry County, that practically all of the witnesses resided in Perry County, and that Perry County was some 30 miles from Jackson and some 120 miles from Lexington. Pikeville, the location of the second trial, is said to be some 80 miles from Jackson.

Appellants rely on Dupoint v. United States, 388 F.2d 39 (5th Cir. 1967), in which a conviction was reversed where the prosecution of a federal crime was transferred 42 miles farther from the scene of the alleged offense for the convenience of the prosecution, and not for the convenience of the defendant or witnesses. The Government asserts that Dupoint is distinguishable on the ground that the Middle District of Georgia, where the Dupoint case arose, is divided by statute into several divisions, 28 U.S.C. 90(b), unlike the Eastern District of Kentucky where there are no divisions. 28 U.S.C. 97(a).

We regard this as a relatively close issue and do not believe that the distinction between this case and Dupoint cited by the Government is dispositive. The existence or nonexistence of division lines within a federal judicial district cannot be held to determine a question of whether venue properly exists at a particular location within the district. Indeed, a 1966 amendment of Fed.R.Crim.P. 18 deleted a provision reading, 'but if the district consists of two or more divisions the trial shall be had in a division in which the offense was committed.' In eliminating the requirement of division venue, the 1966 amendment recognized that the presence of venue at a particular place is controlled by numerous factors, e.g., proximity of defendant's residence, proximity of witnesses and counsel, docket conditions which bear on whether a defendant receives a speedy trial, and proximity of records and documents, and should not be hemmed in by artificial boundary lines drawn by Congress. 3

Rule 18 merely states the traditional rule of 'forum non conveniens' and vests discretion in the District Court to determine the proper place of trial. Houston v. United States, 419 F.2d 30, 33 (5th Cir. 1969). Trial judges traditionally have been held to have wide discretion in disposing of change of venue motions. Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); United States v. Projansky,465 F.2d 123, 139 (2d Cir.), cert. den., 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1972); Wagner v. United States, 416 F.2d 558, 561-562 (9th Cir. 1969), cert. den., 397 U.S. 923, 1015, 90 S.Ct. 915, 25 L.Ed.2d 104 (1970); United States v. Aronson, 319 F.2d 48, 52 (2d Cir.), cert. den., 375 U.S. 920, 84 S.Ct. 264, 11 L.Ed.2d 164 (1963): However, that discretion cannot

Page 98

be used as an excuse not to give 'due regard to the convenience of the defendant and the witnesses' in fixing the place of trial. Fed.R.Crim.P. 18.

Within the circumstances of this case, we hold that the District Court did not violate appellants' rights secured by Rule 18 in trying appellants at Lexington and Pikeville instead of at Jackson. The assignment of cases within a district is a matter within the exclusive domain of the local district judges. Transfer of a particular case from one place within the district to another place within the district is a matter for the local district judges to decide, and the assent of a defendant to such a transfer is not required.

Other circuits have reached results consistent with our decision of the Rule 18 issue. For example, in United States v. Clark, 416 F.2d 63, 64 (1969), the Ninth Circuit held that after one federal trial ended in a mistrial and a second trial was held 90 miles away at another location in a district not divided into divisions, the change in place of trial was not an impermissible change in venue. The Second Circuit in United States v. Fernandez, 480 F.2d 726, 730 (1973), relying on the 1966 amendment to Rule 18 which eliminated division venue, stated that it follows a fortiori that when a district is not separated into divisions that trial at any place within the district is allowable under the Sixth Amendment 4 and Rule 18. See also, United States v. Wilson, 368 F.2d 842, 843 (1966), in which the Second Circuit held that because the District of Connecticut was...

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41 practice notes
  • U.S. v. Chapman, Nos. 89-2483
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 1991
    ...347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); see United States v. Rea, 678 F.2d 382, 386 (2d Cir.1982); United States v. Lewis, 504 F.2d 92, 100 (6th Cir.1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 33 See 10 U.S.C. § 836, which provides: (a) Pretrial, trial, and ......
  • U.S. v. Brennan, No. 75-3939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 13, 1976
    ...States v. Holland, 511 F.2d 38 (6th Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975); United States v. Lewis, 504 F.2d 92, Page 722 102 (6th Cir. 1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466. Accordingly, we hold that on the facts presented by thi......
  • U.S. v. Test, Nos. 73-1337
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 17, 1976
    ...Ponder, 444 F.2d 816, 821 (5th Cir. 1971), cert. denied, 405 U.S. 918 (, 92 S.Ct. 944, 30 L.Ed.2d 788) (1972); cf. United States v. Lewis,504 F.2d 92, 99 (6th Cir. " Movants also contest the plan's disqualification of persons unable to read, write and understand the English language with su......
  • U.S. v. Pepe, Nos. 81-5453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 28, 1984
    ...v. McRary, 616 F.2d 181, 185 (5th Cir.1980), cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307 (1982); United States v. Lewis, 504 F.2d 92, 98 (6th Cir.1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975). Here, the record indicates that the trial judge gave du......
  • Request a trial to view additional results
41 cases
  • U.S. v. Chapman, Nos. 89-2483
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 1991
    ...347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); see United States v. Rea, 678 F.2d 382, 386 (2d Cir.1982); United States v. Lewis, 504 F.2d 92, 100 (6th Cir.1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 33 See 10 U.S.C. § 836, which provides: (a) Pretrial, trial, and ......
  • U.S. v. Brennan, No. 75-3939
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 13, 1976
    ...States v. Holland, 511 F.2d 38 (6th Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975); United States v. Lewis, 504 F.2d 92, Page 722 102 (6th Cir. 1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466. Accordingly, we hold that on the facts presented by thi......
  • U.S. v. Test, Nos. 73-1337
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 17, 1976
    ...Ponder, 444 F.2d 816, 821 (5th Cir. 1971), cert. denied, 405 U.S. 918 (, 92 S.Ct. 944, 30 L.Ed.2d 788) (1972); cf. United States v. Lewis,504 F.2d 92, 99 (6th Cir. " Movants also contest the plan's disqualification of persons unable to read, write and understand the English language with su......
  • U.S. v. Pepe, Nos. 81-5453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 28, 1984
    ...v. McRary, 616 F.2d 181, 185 (5th Cir.1980), cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307 (1982); United States v. Lewis, 504 F.2d 92, 98 (6th Cir.1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975). Here, the record indicates that the trial judge gave du......
  • Request a trial to view additional results

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