Williams v. U.S.

Decision Date23 August 1978
Docket NumberNo. 77-3278,77-3278
Citation582 F.2d 1039
PartiesRoy Charles WILLIAMS, Sr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Ray A. Correa, Sr., Correa & Valazquez, Los Angeles, Cal., Kathleen C. King, Cincinnati, Ohio (Court-appointed), for petitioner-appellant.

Roy Charles Williams, pro se.

Griffin B. Bell, Atty. Gen. of U. S., Dept. of Justice, Washington, D. C., William D. Beyer, U. S. Atty., Kevin P. Connolly, Asst. U. S. Atty., Cleveland, Ohio, for respondent-appellee.

Before PHILLIPS, Chief Judge, MERRITT, Circuit Judge, and PECK, Senior Circuit Judge.

PECK, Senior Circuit Judge.

Petitioner-appellant Roy Charles Williams, Sr., has taken this appeal from the dismissal of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255. He was tried for the crimes of conspiracy and possession of narcotics in the Northern District of Ohio, and now alleges that venue there was improper, violating his constitutional right to a trial in the "district wherein the crime shall have been committed." U.S.Const. amend. VI. The district court denied the § 2255 motion, ruling that petitioner's claim of improper venue is not cognizable in a habeas corpus proceeding. 1 We affirm.

In 1972, Williams set off on an ill-fated trip, flying from Omaha, Nebraska to Cleveland with a stop-over in Chicago. He checked his bags in Omaha, but one suitcase disappeared en route. Apparently, the routing tag had fallen off the suitcase, so the bag was unloaded at Chicago. Unfortunately for Williams, the bag had no external identification, so a United Airlines passenger agent conducted a routine examination of the contents of the suitcase, in an effort to identify the owner. She discovered sacks of white powder, which later proved to be heroin and cocaine. Federal agents were contacted, who seized the drugs, and replaced the bags with sacks of white flour. The luggage was sent on to Cleveland, where it was picked up by Williams' son. Shortly thereafter, Williams, his son, and a third codefendant were arrested in their hotel room.

Williams was eventually convicted of possession of narcotics, and he appealed that conviction. This Court concluded that the evidence was sufficient to support a finding that Williams had maintained constructive possession of the drugs until they were seized by the federal agents, in spite of the fact that the suitcase had been temporarily lost. United States v. Williams, 503 F.2d 50 (6th Cir. 1974). At no time during the trial or appeal did Williams assert that venue was improper. Williams now seeks relief from the sentence of imprisonment imposed under that conviction.

Williams argues that the offense of possession did not begin, continue nor end while he was in Cleveland, where his trial was held. He contends that his constructive possession ended in Chicago, when his bag was lost and the narcotics seized.

Proper venue in federal criminal prosecutions is twice assured in the Constitution. Article III, section 2, paragraph 3 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.

The Sixth Amendment elaborates:

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.

These constitutional guarantees are reflected in the various venue statutes, including 18 U.S.C. § 3237, which governs "continuing offenses" such as the one with which Williams is charged:

. . . (A)ny offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

The sole issue on this appeal is whether the right to proper venue guaranteed by these provisions can be asserted in a post-conviction review proceeding. The scope of inquiry under the habeas corpus power has expanded dramatically within the last few decades from its original limitation to an investigation of the propriety of the jurisdiction asserted by the sentencing court. It is difficult to generalize about the variety of grounds upon which relief is now available. § 2255 itself is not particularly enlightening, providing that relief may be granted "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ."

Petitioner asserts that an allegation of improper venue is cognizable in a § 2255 proceeding on three separate grounds, though the three are intertwined. He contends that proper venue in a criminal case is a jurisdictional prerequisite, fundamental to our constitutional administration of justice. Furthermore, denial of the right to a trial in the proper district is a denial of a constitutional right so important that it is guaranteed twice in the Constitution. Finally, such a trial with improper venue would have been conducted "in violation of the . . . laws of the United States," because proper venue is further mandated by 18 U.S.C. § 3237.

If proper venue is a jurisdictional prerequisite, the issue can be freely raised under § 2255, because a lack of jurisdiction means that the sentencing court was wholly without power to act, and any conviction obtained is void. Petitioner is not without support in his position that proper venue in a criminal case is a jurisdictional issue. The Fourth Circuit has described proper venue as a "jurisdictional imperative," United States v. Grossman, 400 F.2d 951, 953 (4th Cir.), Cert. denied, 393 U.S. 982, 89 S.Ct. 453, 21 L.Ed.2d 443 (1968), and the Seventh Circuit has squarely held that an allegation of improper venue is a "jurisdictional challenge. . . . (S)uch a jurisdictional attack is an appropriate subject of a § 2255 proceeding to determine if petitioner's claim of improper venue has any merit." Domer v. Smith, 422 F.2d 831, 832 (7th Cir. 1969). Furthermore, the language of Article III, section 2 is mandatory: "The Trial of all Crimes . . . Shall be held in the State where the said Crimes shall have been committed." (Emphasis added.)

Nevertheless, we conclude that the issue of venue is not a jurisdictional issue. In deciding a nearly identical issue the Supreme Court held long ago that the jury provisions set out in the same paragraph of the Constitution in the same mandatory language were a "valuable privilege bestowed upon the person accused of crime for the purpose of safeguarding him against the oppressive power of the King and the arbitrary or partial judgment of the court," rather than being a necessary "part of the structure of government." The Court went on to rule that "article 3, § 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so, is to convert a privilege into an imperative requirement." Patton v. United States, 281 U.S. 276, 296-298, 50 S.Ct. 253, 258, 74 L.Ed. 854 (1930).

We conclude that venue is likewise a privilege granted to the accused rather than a jurisdictional prerequisite, a conclusion which is consistent with the overwhelming case law holding that improper venue may be waived. The jurisdiction of the federal courts, their power to decide cases, is established by Congress and the Constitution. Article III, § 1 vests the "judicial power," including the power to try federal crimes, in the Supreme Court and such inferior courts as Congress may ordain and establish. Congress has in turn provided that district courts have subject matter...

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    ...a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamenta......
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