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United States v. Frederick

decided: December 23, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
DAVID FREDERICK, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 CR 829, Brian Barnett Duff, Judge.

Wood, Jr., and Posner, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Wood

WOOD, JR., Circuit Judge.

The sole issue in this case is the determination of proper venue in a prosecution for witness tampering in violation of 18 U.S.C. § 1512. The alleged witness tampering occurred in the Southern District of Florida, although the affected grand jury was conducting an investigation in the Northern District of Illinois. The district court, relying on a prior decision of this court, United States v. Nadolny, 601 F.2d 940 (7th Cir. 1979), allowed defendant's motion to dismiss the indictment on the basis that venue did not lie in the Northern District of Illinois. The underlying facts necessary to the venue determination are not in dispute; however, the circuits are not in complete harmony on the legal issue raised by similar facts.

I. FACTUAL BACKGROUND

A grand jury in the Northern District of Illinois returned an indictment on November 17, 1986, charging a codefendant, not involved in this appeal, with a conspiracy to commit fraud both by wire*fn1 and by mail*fn2 in which the defendant, David Frederick, Kenneth Shaw, and others were named as coconspirators. Count 21 of the indictment, the only count involved in this appeal, charges that the defendant, David Frederick, on or about April 1, 1986 "threatened and attempted to threaten Kenneth Shaw with intent to influence his testimony and to cause and induce him to withhold testimony concerning Tracy Frederick" before the grand jury then investigating the alleged conspiracy in the Northern District of Illinois, in violation of 18 U.S.C. § 1512.*fn3 Tracy Frederick is the sister of defendant Frederick. The government claims that defendant Frederick, in the Southern District of Florida, threatened to kill Shaw if Shaw provided the grand jury with any information about his sister. At the time of the alleged threat on Shaw's life, Shaw was under subpoena to testify before the Northern District of Illinois grand jury. Following the dismissal by the district court on venue grounds, the government appealed.

II. ANALYSIS

The government asks us to either distinguish or overrule Nadolny, and we shall do both, although the distinctions are of no consequence to our decision.

We must begin with the Constitution which provides that criminal trials shall be in the state where the violation was allegedly committed. U.S. Const. art. III, § 2, cl. 3. The sixth amendment added the requirements that the accused be tried in the state and district where the crime was committed, which district shall have been previously ascertained by law. Federal Rule of Criminal Procedure 18 reiterates that the prosecution shall be had in the district where the offense was committed, except as otherwise permitted by statute.

The witness tampering statute, 18 U.S.C. § 1512,*fn4 however, does not address venue. Each of the parties interprets the available legislative history to support their respective positions. The defendant argues that the legislative history clearly demonstrates that the crime does not hinge on the status of the victim as a witness.*fn5 The defendant therefore argues that the district where the investigation is or may be pending is of no consequence because the statute is concerned with the illegal conduct toward the victim, not the intended impact of that conduct on a pending or prospective judicial proceeding.

The government argues, in contradiction to the defendant's argument, that the legislative history reveals that the underlying objective of the statute is to insure that witnesses are not dissuaded "from fulfilling [their] societally desirable role with reference to attending or testifying in an official proceeding, or reporting or taking other action in relation to an offense or possible offense."*fn6 The government sorts out from the legislative history that "section 1512 is meant to protect the integrity of the process."*fn7 The act is concerned with the "methods by which the proper administration of justice may be impeded or thwarted."*fn8

The government also points out that the legislative history makes clear the congressional intent to elaborate on the protections contained in the obstruction of justice statute, 18 U.S.C. § 1503. Section 1503 contains a general admonition, the applicable part of which is "Whoever . . . corruptly, or by threats or force . . . endeavors to influence, obstruct, or impede, the due administration of justice" shall be guilty of the crime of obstruction of justice. According to the government's argument, the legislative history indicates that section 1512 was designed for the same purpose as section 1503, although section 1512 covers more specific criminal possibilities.*fn9 Courts have so held. United States v. Lester, 749 F.2d 1288, 1292-95 (9th Cir. 1984); United States v. Wesley, 748 F.2d 962, 964-65 (5th Cir. 1984), cert. denied, 471 U.S. 1130, 86 L. Ed. 2d 281, 105 S. Ct. 2664 (1985); United States v. Hernandez, 730 F.2d 895, 898-99 (2d Cir. 1984).

In view of the obvious relationship between sections 1503 and 1512, what is authority for one also controls the other. Of the six circuits which have addressed the issue, five have held that a prosecution under section 1503 may be brought in the district where the judicial proceeding that the accused sought to obstruct is pending, even if the obstructing acts took place in a different district. See United States v. Reed, 773 F.2d 477, 484-86 (2d Cir. 1985); United States v. Johnson, 713 F.2d 654, 658-59 (11th Cir. 1983), cert. denied, 465 U.S. 1030, 79 L. Ed. 2d 695, 104 S. Ct. 1295 (1984); United States v. Kibler, 667 F.2d 452, 454-55 (4th Cir.), cert. denied, 456 U.S. 961, 72 L. Ed. 2d 485, 102 S. Ct. 2037 (1982); United States v. Barham, 666 F.2d 521, 523-524 (11th Cir.), cert. denied, 456 U.S. 947, 72 L. Ed. 2d 470, 102 S. Ct. 2015 (1982); United States v. Tedesco, 635 F.2d 902, 904-06 (1st Cir. 1980), cert. denied, 452 U.S. 962, 69 L. Ed. 2d 974, 101 S. Ct. 3112 (1981); United States v. O'Donnell, 510 F.2d 1190, 1192-95 (6th Cir.), cert. denied, 421 U.S. 1001, 44 L. Ed. 2d 668, 95 S. Ct. 2400 (1975).

Holding to the contrary is United States v. Swann, 142 U.S. App. D.C. 363, 441 F.2d 1053 (D.C. Cir. 1971), which influenced this court's prior decision in Nadolny, case of first impression at the time. Nadolny undertook to determine whether an alleged violation of 18 U.S.C. § 1510, which has since been amended and supplanted, could be brought in a district other than the one in which the defendant was alleged to have beaten the victim. The choice was between two adjacent district in Illinois: the district in which the investigation was being conducted or the district in which the alleged beating took place. This court "with great reluctance" held that the case had to be reversed, because venue was proper only where the assault had occurred. 601 F.2d at 942. The reasoning in Swann was prominently relied upon along with constitutional, statutory, and rule construction grounds. Nadolny held that the ...


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