United States v. Scott

• Decision Date: 18 June 1979
• Docket Number: No. 79 CR 236.,79 CR 236.
• Citation: 472 F. Supp. 1073
• Parties: UNITED STATES of America, Plaintiff, v. William J. SCOTT, Defendant.
• Court: U.S. District Court — Northern District of Illinois

472 F. Supp. 1073

UNITED STATES of America, Plaintiff, v. William J. SCOTT, Defendant.

No. 79 CR 236.

United States District Court, N. D. Illinois, E. D.

June 18, 1979.

Thomas P. Sullivan, U. S. Atty., Jeremy D. Margolis, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

William A. Barnett, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

CROWLEY, District Judge.

The defendant is charged with making and subscribing personal income tax returns for the years 1972 through 1975, which he did not believe to be true and correct as to every material matter.¹ Before the Court at this time is defendant's motion pursuant to 18 U.S.C. § 3237(b), to transfer this case to the Central District of Illinois at Springfield.²

Section 3237(b) provides:

(b) Notwithstanding subsection (a), where an offense is described in section 7203 of the Internal Revenue Code of 1954, or where an offense involves use of the mails and is an offense described in section 7201 or 7206(1), (2), or (5) of such Code (whether or not the offense is also described in another provision of law), and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed: Provided, That the motion is filed within twenty days after arraignment of the defendant upon indictment or information.

Transfer under that provision is not subject to the discretion of the court. S.Rep. No. 1952, 85th Cong. 2d Sess. 2, reprinted in 1958 U.S.Code Cong. & Admin.News, p. 3261, 3262. See also United States v. Youse, 387 F.Supp. 132, 134 (E.D.Wis., 1975); United States v. Rosenstein, 303 F.Supp. 210, 212 (S.D.N.Y., 1969); United States v. Rosenberg, 226 F.Supp. 199, 200 (S.D.Fla., 1964).

However, a defendant requesting transfer must comply with the prerequisites enumerated in the statute, which require that the offense involve the use of the mails, be described in section 7201 or 7206(1), (2), or (5) of the Internal Revenue Code of 1954, the prosecution commence in a district other than the judicial district in which the defendant resides, the defendant must have resided in a district other than that of prosecution when the offenses were alleged to have been committed, and the motion must be filed within twenty days of the arraignment.³ United States v. DeMarco, 394 F.Supp. 611, 613 (D.D.C., 1975).

Defendant's major contention involves the requirement that the prosecution be commenced in a district other than that of his residence, claiming that he is entitled to transfer to the Central District at Springfield because he maintains his domicile in that district.⁴ The Government responds that the phrase "in which the defendant resides" does not mean domicile in the strict definition of that term. Alternatively, the Government argues that even if the statute contemplates equating residence with domicile, the defendant is domiciled in the Northern District of Illinois, and therefore, is not entitled to transfer.

While there are numerous cases in which transfer under that section has been permitted, e. g., United States v. DeMarco, 394 F.Supp. 611 (D.D.C., 1975); United States v. Youse, 387 F.Supp. 132 (E.D.Wis., 1975); United States v. Kimble, 186 F.Supp. 616 (S.D.N.Y., 1960), none presents the precise question involved here. Thus, before deciding whether or not the defendant is entitled to transfer, the significance of "reside" as it appears in § 3237(b) must be resolved.

The defendant contends that for purposes of establishing venue as well as jurisdiction, the term "residence" is always equivalent to domicile. While residence has on some occasions been equated to domicile for the purposes of venue statutes, these concepts are distinctly different and are not identical, nor are they synonymous. Unification Church v. Attorney General for the United States, 189 U.S.App.D.C. 92, 97, 581 F.2d 870, 875 (1978); Kahane v. Carlson, 527 F.2d 492, 494 (2d Cir., 1975); Arley v. United Pacific Insurance Co., 379 F.2d 183, 185 (9th Cir., 1967), cert. denied, 390 U.S. 950, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968), and nothing in Holmes v. Board of Parole, 541 F.2d 1243 (7th Cir., 1976), equating residence with domicile for the purposes of 28 U.S.C. § 1391(e) suggests otherwise. In Holmes, the court merely held that a person incarcerated in a district other than his domicile, may bring a petition for a writ of habeas corpus in the district of his domicile and conviction rather than being forced to bring the action in the district of his involuntary temporary residence.

In general, notions of convenience underlie venue provisions, Kahane v. Carlson, 527 F.2d 492, 494 (2d Cir., 1975), and the determination of the meaning of the term residence depends not on generalized rules, but the specific significance given to that term as it appears in a particular statute. Unification Church v. Attorney General for the United States, 189 U.S.App. D.C. 92, 581 F.2d 870 (1978); Corwin Consultants, Inc. v. Interpublic Group of Companies, Inc., 512 F.2d 605 (2d Cir., 1975).

Thus, in order to decide the intended meaning of "reside" in § 3237(b) factors such as the situation existing at the time of enactment which the statute was designed to cure, the plain meaning of the term considered within the context of the statute and the legislative history are relevant. District of Columbia v. Murphy, 314 U.S. 441, 449, 62 S.Ct. 303, 307, 86 L.Ed. 329 (1941). See generally, Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

The enactment of § 3237(b) was predicated on a practice by the government which resulted in tax fraud and tax evasion cases being brought in a district convenient to the district director of the Internal Revenue Service, but frequently at great distances from the defendant's home.⁵ Over objections of the Department of Justice, and more particularly, of the Treasury Department, Congress passed subsection (b) of § 3237.

Unfortunately, in enacting that provision, Congress failed to supply an accompanying definition that would clarify the meaning intended by the word "reside". The legislative history, however, indicates that Congress was less concerned with the formal distinction between residence and domicile than it was with the practicalities preceding the indictment, the expense and facility of preparing a defense, and the convenience to witnesses as well as the defendant.

As a consequence, while explaining the need for the enactment of subsection (b), both the Senate and House reports reflect a concern for holding trial where the majority of witnesses and documents can be found, where the defendant will not incur unnecessary travel expenses and where his attorney's practice can continue with the least amount of interruption.

The committee is of the opinion that too frequently prosecutions are not brought in the defendants' home districts but rather in the district most convenient to the district director of internal revenue. Often that district may be a considerable distance from the defendant's home. The cost and inconvenience to the defendant may be substantial, especially in the case of an extended trial. The additional expense to the defendant of living away from home, the problem of getting his local attorneys to leave their offices and practices for several days or weeks and the increased cost incurred thereby, the inconvenience to witnesses, these are all factors which the committee believes place a heavy burden upon the defendant which can be better borne by the Government.

The committee believes, further, that, in the type of case covered by this bill, the acts for which the defendant is really being tried are generally committed in the district in which he resides and certainly bear little or no relationship to the place where his tax return is received. S.Rep. No. 1952, 85th Cong. 2d Sess. 2, reprinted in 1958 U.S.Code Cong. & Admin.News, pp. 3261, 3262. See also H.Rep. No. 1890, 85th Cong. 2d Sess. 2 (1958).

All of these factors reflect an overriding concern that a defendant is provided a convenient forum. And while it does appear that Congress contemplated that a defendant would have but one residence, the legislative history contains nothing to suggest that in determining where a defendant resided at the time of the alleged offense and where he resides at the time of the prosecution, it is incumbent on the court to inquire into his subjective intentions.

The circumstances surrounding this case make it clear that a trial in a district in which defendant has a residence, even assuming arguendo that his domicile is elsewhere, comports with Congress' intent when it enacted this statute. In short, the facts submitted establish that defendant personally resided in this district during the time of the alleged offenses and presently personally resides here, while he conducts his political activities and life-style in the Central District of Illinois.

The defendant currently maintains an apartment in the Northern District of Illinois where he resides with his wife and has lived in that apartment since at least 1974, the same year in which he applied for a United States passport under oath and gave an address in the Northern District as his "permanent residence."

The series of events which culminated in the decision to indict allegedly took place in the Northern District. The returns themselves were made, prepared and signed in Chicago. Thus, documents, records and witnesses which may either substantiate or abrogate the pending charges are located in this district.

Even if defendant's contention that he is domiciled in Springfield were true, the clear objectives of Congress to provide a convenient forum for a defendant in certain criminal tax prosecutions, would be thwarted by transferring this case to the ...