U.S. v. McInnis
| Decision Date | 10 September 1979 |
| Docket Number | No. 78-3277,78-3277 |
| Citation | 601 F.2d 1319 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Oscar McINNIS and Patricia Parada, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John M. Potter, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellant.
Frank Maloney, David H. Reynolds, Austin, Tex., for McInnis.
Ramon Garcia, Edinburg, Tex., for Parada.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, FAY and RUBIN, Circuit Judges.
The United States contends that the Lindberg Act, the federal anti-kidnapping statute, as amended, 18 U.S.C. § 1201, forbids a conspiracy to lure a victim across an international boundary and then to kidnap him, and seeks to set aside a judgment dismissing an indictment charging those acts as a federal offense. It also appeals the dismissal of several counts of making false material declarations to a grand jury, in violation of 18 U.S.C. § 1623(a), while the grand jury was investigating those events. We conclude that the conspiracy charged is not proscribed by the federal statute. However, the grand jury did have jurisdiction to conduct an investigation and we remand for further proceedings on the false swearing counts.
Defendant Oscar McInnis was the district attorney for Hidalgo County, Texas, and also conducted a private law practice. The co-defendant, Patricia Parada, was his client. Noe Villanueva, the alleged victim of the kidnapping plot, was once married to Parada. Villanueva, who was confined in the Hidalgo County Jail, was secretly working as a government agent during the events under consideration in this case.
The government alleged that McInnis planned to arrange for Villanueva to be released from jail, so that, in accordance with a scheme plotted with Parada, Villanueva could then be lured by Parada into Mexico, where he would be kidnapped and killed by Mexican police authorities in Reynosa, Mexico. However, Parada did not plan to go to Mexico; Villanueva was to travel alone. Daniel Rodriguez, an inmate at Hidalgo County Jail and a government informant, was enlisted by McInnis to contact a Mexican police officer named Cantu who would intercept Villanueva, hold him and arrange for his murder. 1 The meeting in Reynosa, the kidnapping, and the murder never occurred. 2
The counts of making false material declarations to a grand jury arose out of McInnis's and Parada's testimony before the grand jury on June 7, 1978. 3 McInnis and Parada were called to testify after tape-recordings of their conversations with Rodriguez and Villanueva were played for the grand jury. 4
In the course of his testimony, McInnis denied that: (1) he knew the details of the planned meeting between Villanueva and Parada in Reynosa or related them to Rodriguez; (2) he recalled meeting Parada at the time that she had agreed to meet Villanueva in Mexico; (3) he discussed the murder of Villanueva with Dan Rodriguez; (4) he discussed Officer Cantu with Rodriguez; (5) he received Villanueva's identification papers; and (6) he discussed the possibility of setting up Villanueva for arrest on narcotics charges or on charges of hiring someone to kill Villanueva's mother-in-law. These statements formed the basis of the six charges of perjury against McInnis.
During her testimony to the grand jury, Parada denied that she had agreed to meet Villanueva in Mexico and that McInnis had advised her to deny that such a meeting had been agreed upon. These statements were used as the basis for the charge of perjury brought against her.
The defendants were charged by indictment with conspiracy to kidnap and perjury. They filed motions to dismiss the kidnapping charge, premised on the theory that the acts alleged to have occurred in the course of the conspiracy to kidnap Villanueva were not prohibited by 18 U.S.C. § 1201, and motions to dismiss the perjury charges, based primarily on the contentions that the declarations were not material to an investigation within the jurisdiction of the grand jury, and that the institution of the prosecution was defective because the government failed to follow the internal guidelines of prosecutorial practice established by the Department of Justice. After a pre-trial hearing on September 8, 1978, the district court dismissed all counts of the indictment from the bench. A written Memorandum and Order, denominated "the ruling of the Court" was signed September 15 and filed September 19.
The government filed a notice of appeal from the dismissal on October 13, 1978. It contends that the trial court was clearly erroneous in dismissing the kidnapping conspiracy count and the perjury counts. In response, the defendants filed motions to dismiss the appeal contending that the government's appeal was barred by statute, that the appeal was not timely, and that the prosecution violated the Justice Department's Petite policy.
There is no merit to the contention that jeopardy attached when the district court heard evidence in the course of deciding the motions to dismiss the indictment and that the government's appeal, therefore, is barred by 18 U.S.C. § 3731, which provides "no appeal (by the United States) shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." The Supreme Court has recently cut the ground from under the appellants' thesis by holding that "the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy clause"; therefore, the government may appeal from the dismissal of an indictment after evidence has been taken on a motion to dismiss. United States v. Scott, 1978, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197-98, 57 L.Ed.2d 65, 78. 5 Here as in Scott, none of the grounds upon which the district court dismissed the indictment related to the factual guilt or innocence of the defendants.
The defendants also contend that the government's appeal was not timely because notice of the appeal was filed more than thirty days after the district court dismissed the indictment from the bench. However, the appeal was filed within thirty days of the entry of a written and signed order granting the motion. The signed formal order is the "judgment" 6 and the prior oral statement from the bench was not an appealable order. United States v. Hark, 1944, 320 U.S. 531, 534-35, 64 S.Ct. 359, 361, 88 L.Ed. 290, 294-295; United States v. St. Laurent, 1 Cir. 1975, 521 F.2d 506, 511, Cert. denied, 1976, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637; United States v. Lee, 1974, 163 U.S.App.D.C. 330, 339, 501 F.2d 890, 891 n. 1. There is no evidence that the formal order was prepared to circumvent the rule or to extend the time for the appeal.
It is equally vain to invoke the Justice Department's Petite policy 7 on the basis that a state prosecution of the same matter was pending when the federal charges were filed. We have repeatedly refused to enforce that policy by dismissing an indictment; the practice of avoiding dual prosecution sets only an internal guideline for the Justice Department. E. g., United States v. Michel, 5 Cir. 1979, 588 F.2d 986, 1003 n. 19, Pet. for cert. filed, 47 U.S.L.W. 3672; United States v. Nelligan, 5 Cir. 1978, 573 F.2d 251, 255. 8
The district court dismissed the conspiracy to kidnap count of the indictment on the ground of "legal impossibility"; it is not an offense to conspire to do an act that, if completed, would not be a crime. 9 The government contends that the federal statute is violated when a victim is merely inveigled into crossing an international boundary with the purpose of later kidnapping him; the defendants' scheme to seduce Villanueva across the international boundary so that a Mexican officer could kidnap him made them responsible as principals under 18 U.S.C. § 2(b). 10 That theory will not bear exposure to the words of the statute. The federal kidnapping statute, 18 U.S.C. § 1201, as originally enacted in 1932, clearly reached only a kidnapping followed by interstate transportation, for it read:
Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.
The anti-kidnapping statute was adopted following the kidnapping of the son of Charles and Ann Morrow Lindberg, which was then prosecutable only as a state offense, to assist the states in combatting a "growing and serious menace." Chatwin v. United States, 1946, 326 U.S. 455, 463, 66 S.Ct. 233, 237, 90 L.Ed. 198, 902. "Comprehensive language was used to cover every possible variety of kidnaping Followed by interstate transportation." Ibid (emphasis supplied). 11 However, despite its broad language, the statute did not make either all abductions or even every seduction of victims into another state a federal crime. "In short, the purpose of the Act was to outlaw interstate kidnapings rather than general transgressions of morality involving the crossing of state lines." Ibid.
In oral argument, the government conceded that the plan would not have been a federal offense under the language of the original Lindberg Act even if it had been consummated. It asserted instead that the definition of the crime had been broadened by an amendment passed by the 92d Congress in 1972, P.L. 92-539, 86 Stat. 1070, to expand protection of...
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