United States v. Walden

• Decision Date: 10 October 1972
• Docket Number: No. 14974-14983.,14974-14983.
• Citation: 464 F.2d 1015
• Parties: UNITED STATES of America, Appellee, v. Billy Delano WALDEN, Appellant. UNITED STATES of America, Appellee, v. Gene Claude EASTERLING, Appellant. UNITED STATES of America, Appellee, v. John Thomas ARD, Appellant. UNITED STATES of America, Appellee, v. Fruent C. KIMES, Appellant. UNITED STATES of America, Appellee, v. Albert Harry WEATHERSBY, Appellant. UNITED STATES of America, Appellee, v. Joe Pat DAMOUR, Appellant. UNITED STATES of America, Appellee, v. Robert Emerson WHITE, Appellant. UNITED STATES of America, Appellee, v. Louis Paul MATRANGA, Appellant. UNITED STATES of America, Appellee, v. William Steven COOK, Appellant. UNITED STATES of America, Appellee, v. Richard Brent HOGAN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

464 F.2d 1015 (1972)

UNITED STATES of America, Appellee, v. Billy Delano WALDEN, Appellant.

UNITED STATES of America, Appellee, v. Gene Claude EASTERLING, Appellant.

UNITED STATES of America, Appellee, v. John Thomas ARD, Appellant.

UNITED STATES of America, Appellee, v. Fruent C. KIMES, Appellant.

UNITED STATES of America, Appellee, v. Albert Harry WEATHERSBY, Appellant.

UNITED STATES of America, Appellee, v. Joe Pat DAMOUR, Appellant.

UNITED STATES of America, Appellee, v. Robert Emerson WHITE, Appellant.

UNITED STATES of America, Appellee, v. Louis Paul MATRANGA, Appellant.

UNITED STATES of America, Appellee, v. William Steven COOK, Appellant.

UNITED STATES of America, Appellee, v. Richard Brent HOGAN, Appellant.

Nos. 14974-14983.

United States Court of Appeals, Fourth Circuit.

July 20, 1972.

Certiorari Denied October 10, 1972.

Frank K. Sloan, Charles Porter, Charles E. Baker, Robert E. Kneece, Kermit S. King, James L. Mann, II, Robert W. Dibble, Jr., Columbia, S. C., B. H. Barton, Augusta, Ga., James C. Anders, Taylor B. Rion, Jr., and Glenn, Porter & Sullivan, Columbia, S. C., on brief for appellants.

Frank J. Kiernan, Jack L. Marshall, Wistar D. Stuckey, Michael A. Pulliam, Marvin L. Smith, Asst. U. S. Attys., John K. Grisso, U. S. Atty., and Lionel S. Lofton, on brief for appellee.

Before BOREMAN and BRYAN, Senior Circuit Judges, and CRAVEN, Circuit Judge.

Certiorari Denied October 10, 1972. See 93 S.Ct. 165.

CRAVEN, Circuit Judge:

This is a continuation of the appeal first presented and ruled on by this court in United States v. Walden, 448 F.2d 925 (1971). Upon rehearing of Walden, supra, en banc, the judgment of the district court on the question of double jeopardy was upheld by an equally divided court and the case returned to the original panel for resolution of the remaining questions presented.

We think the numerous allegations of error in the trial itself are without merit. However, we think venue as to those substantive counts of the indictment which allege unlawful bank entry in other states was improperly laid in the District of South Carolina, and therefore the defendants are entitled to a judgment of acquittal on those counts. All ten defendants¹ were indicted under 18 U.S.C. § 371 for conspiracy to commit larceny of a federally insured bank in violation of 18 U.S.C. § 2113(a), conspiracy to receive money stolen from a federally insured bank in violation of 18 U.S.C. § 2113(c) and conspiracy to transport stolen money in interstate commerce in violation of 18 U.S.C. § 2314. The remaining counts of the 13-count indictment charged various defendants with violations of 18 U.S.C. §§ 2113 (entering a bank to rob it) and 2314 (transporting money knowing it to have been stolen). In each count it was alleged that the defendants charged in that count caused, in the District of South Carolina, the prohibited act to be done. However, in counts 2, 3, 5, 6, 8, 10 and 13, the banks that the defendants were accused of entering were located in states other than South Carolina.² All 10 defendants were tried together on all counts of the indictment in the District of South Carolina. The jury found the defendants guilty of all charges—except defendants Ard, Matranga and White were found not guilty of conspiracy.

Article III, Section 2, paragraph 3, of the Constitution of the United States provides:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State the Trial shall be at such Place or Places as the Congress may by Law have directed.

This provision is further amplified by the Sixth Amendment, which provides:

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, which district shall have been previously ascertained by law. . . .³

There has been some debate over the precise nature of the interest which these provisions were designed to protect,⁴ but it is clear that they were designed for the benefit of the accused in criminal trials. See 8 Moore's Federal Practice § 18.022 (2d ed. Cipes). If there is doubt as to venue the Supreme Court has indicated which way the question is to be resolved.

Questions of venue in criminal cases . . . are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed. If an enactment of Congress equally permits the underlying spirit of the constitutional concern for trial in the vicinage to be respected rather than to be disrespected, construction should go in the direction of constitutional policy even though not commanded by it.

United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236 (1944).

In this appeal, the propriety of venue in the District of South Carolina for trial of all defendants for the crime of conspiracy to violate the laws of the United States, 18 U.S.C. § 317, is not questioned. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). Nor is it questioned that venue for the trial of those defendants accused of transporting stolen money across state lines is proper in the District of South Carolina, since the proof was that the interstate transportation was either to or from South Carolina. 18 U.S.C. § 2314, United States v. Gillette, 189 F.2d 449 (2d Cir. 1951). However, it is the position of the government, accepted by the district court, that notwithstanding the rather clear constitutional venue provisions and the statutory interpretation commanded by United States v. Johnson, supra, the venue for trial on those counts of the indictment which alleged the unlawful entry of banks located in other districts may properly be laid in the District of South Carolina. We disagree.

I

The government's first theory is that bank entry in violation of 18 U.S.C. § 2113 is a continuing offense or an offense begun in one district and completed in another so as to bring it within the ambit of 18 U.S.C. § 3237.⁵ The district court's agreement with this contention was founded on the concept that a conspiracy to perform an illegal act or an accessorial act in preparation of an illegal act is the first step toward the consummation of the substantive offense and that therefore the offense is begun when and where any act in furtherance of its execution is performed. We think this analysis overlooks the legal distinction between preparation for a crime and commission of the crime itself, and is contrary, to the spirit and letter of the Constitution.

As Judge Dobie has put it, "All federal crimes are statutory, and these crimes are often defined, hidden away amid pompous verbosity, in terms of a single verb. That essential verb usually contains the key to the solution of the question: In what district was the crime committed?" Dobie, Venue in Criminal Cases in the United States District Court, 12 Va.L. Rev. 287, 289 (1926). There are some offenses which by their very nature are such that they may be begun in one district and completed in another or completed in more than one district. Offenses which make criminality depend upon crossing state lines are among them, as well as such offenses as embezzlement and conspiracy, which usually transpire over a considerable period of time. Bank robbery or unlawful entry is not such an offense.

With regard to the particular counts in question, the portion of 18 U.S.C. § 2113 charged in the indictment was the second paragraph.⁶ The prohibited verb of the statutes was "enter" for the purpose of larceny. In each robbery the money was taken from the bank building itself, and all defendants in the particular count were present in the state in which the robbery took place when it took place. We think that entry into a bank to commit larceny could only take place in the state where the federally insured banks were located.

The situation here is analogous to that considered by the Supreme Court in Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), in which the Supreme Court specifically rejected the government's argument that the crime of filing false non-Communist affidavits was begun in the district in which the defendant executed them. Noting that "Multiple venue in general requires crimes consisting of `distinct parts' or involving `a continuously moving act'", Travis v. United States, supra, 364 U.S. at 636, 81 S.Ct. at 362, the Court concluded that it was only the filing of false affidavits in the District of Columbia which was prohibited, not their execution in Colorado, and Congress had specifically designated the District of Columbia as the only place where the affidavits could be filed. Venue was proper, therefore, only in the District of Columbia. Likewise, here the crime proscribed by the second paragraph of 18 U.S.C. § 2113 is not the planning or the preparation to rob the bank, but the actual entry for the purpose of committing larceny. These defendants could only have done this act in the districts where the various banks were located. See Reass v. United States, 99 F.2d 752, 754 (4th Cir. 1938); United States v. Bozza, 365 F.2d 206 (2d Cir. 1966); United States v. Sweig, 316 F.Supp. 1148 (S.D.N.Y.1970). To hold otherwise would require that we ignore the Constitution and its interpretation in United States v. Johnson, supra, and this we cannot do.

II

The government's second alternative theory of venue is said to be based upon the doctrine that an accessory may be tried where his accessorial acts took place. The district court's interpretation of this doctrine was that "if the government can substantiate its allegations, it would appear that the defendant's sic South Carolina based conspiratorial and/or accessorial activity⁷ would have made them accessories before the fact at common law, and,...