UNITED STATES of America, Plaintiff-Appellee, v. Pascal DiJAMES, Defendant-Appellant.
No. 83-8014.
United States Court of Appeals, Eleventh Circuit.
May 3, 1984.
Rehearing and Rehearing En Banc Denied July 5, 1984.
731 F.2d 758
AFFIRMED.
S. Lark Ingram, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Before RONEY, FAY and CLARK, Circuit Judges.
FAY, Circuit Judge:
Following a jury trial in the Northern District of Georgia, appellant, Pascal DiJames, was convicted of willfully failing to file a Labor Department trusteeship report, in violation of
FACTS
The Tile, Marble, Terrazzo Finishers and Shopmen International Union, AFL-CIO (“International Union“) is a craft union representing about 7,000 members, in 120 chapters throughout the United States and Canada, who make their living by assisting tile setters. Local Union 167, located in Atlanta, Georgia is a local chapter of the International Union. During all of the pro-
In March, 1977, Ellis Elders, the business agent of Local Union 167, wrote DiJames and asked him if the International Union could help the local get better organized and negotiate new contracts. DiJames agreed and sent Frank Iarrabino, a vice president of the International Union, to study the situation and to determine what assistance the local union needed. Iarrabino helped the local union obtain a new contract with substantial wage increases. In spite of the new contract Local Union 167 continued having problems. Appellant decided that they needed a full-time supervisor and he appointed James Lynch, a member of the Iron Workers Local Union 387, for this job. The International Union paid Lynch his salary of $1,100 a month. After two and one half months as supervisor, Lynch resigned.
Since DiJames did not think that the local union was able to function on its own he appointed Ray Smith to be the next supervisor. Smith held the position from May, 1978 until May, 1980. As supervisor he had full control of the local union. During his term, union membership increased from 30 to 180 members. It began holding regular meetings and passed a constitution and by-laws. He also started a Southern District Council in an attempt to better organize and strengthen the union. The Council consisted of Local Union 167 and four other locals: Macon, Augusta, Savannah, and Greenville. While he was supervisor, Smith “stayed in touch with [DiJames] ... if [Smith] needed some information or something [he] would call [DiJames] on the phone.” R. Vol. IV. at 397.
On November 26, 1979, Smith wrote DiJames a letter requesting that he send someone from the International Union to explain to the local union‘s members why they were still under supervision and when the supervision would end. R. Vol. IV. at 400. On December 10, 1979, DiJames wrote him back and advised him that Local Union 167 would continue under the supervision of the International Union until June, 1980. R. Vol. IV. at 402. If the local union had good attendance at its meetings for the next six months the International Union would no longer have to supervise it and the local union could hold an election to select its own officers. Id.
On June 20, 1980, after being refused the right to see the union books on several occasions, members of Local Union 167 went to the Department of Labor for help. They inquired if the International Union had filed the required trusteeship papers with the government, indicating that the local was under its supervision. The members were advised that there were no papers on file so they filed a formal complaint. After its investigation the Labor Department concluded that the International Union had imposed a trusteeship over the local union since May, 1978. R. Vol. V. at 540. They further concluded that the International Union had not followed the proper procedures nor filed the required reports. Id.
Ray Smith resigned in June, 1980 and DiJames once more appointed a supervisor. Jerry Carter held the position from June, 1980 until February, 1981, when the local union finally elected its own officers. At this time the union also established its own bank account and took over management of its own affairs. The local‘s books showed a deficit of $11,564.84.
Mr. DiJames was indicted by a federal grand jury in 1982 for violations of the federal labor laws relating to union trusteeships. On November 12, 1982, a jury convicted Pascal DiJames of willful failure to file the required trusteeship reports. The jury acquitted him of unlawfully transferring funds from the local union to the International Union. DiJames is appealing this judgment of conviction.
APPROPRIATE VENUE
Appellant was convicted in the Northern District of Georgia of willfully failing to file with the Secretary of Labor the trusteeship reports required by
This case involves the provisions of the Labor Management Reporting and Disclosure Act,
In order to find where venue was proper in this case we must first determine where the crime was committed. The essence of the offense charged in this case is DiJames’ failure to file a required trusteeship report. the Supreme Court has consistently held that “where the crime charged is a failure to do a legally required act, the place fixed for performance fixes the situs of the crime.” Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956) (footnote omitted). In Johnston conscientious objectors were ordered by their local draft boards to report for civilian work at state hospitals located in judicial districts other than those in which they resided and were registered. They refused to report for work at the designated places and were indicted for violation of the Universal Military Training and Service Act. Since the place fixed for performance determines the situs of the crime, the Court held that venue was proper only in the judicial districts where the civilian work was to be performed and not in the judicial districts in which they resided and were registered. Id. See also, Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) (venue for prosecution for false affidavits filed with the NLRB only proper in the District of Columbia where the affidavits had to be filed with the Board); Rumely v. McCarthy, 250 U.S. 283, 39 S.Ct. 483, 63 L.Ed. 983 (1919) (venue for prosecution for failure to report to the federal Alien Property Custodian lay only in the District of Columbia, where the Custodian was located); United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916) (venue for prosecution for failure to file statement with federal Commissioner General of Immigration only proper in District of Columbia where the Commissioner General is located); United States v. Calhoun, 566 F.2d 969, 973 (5th Cir.1978)4 (Crime of failure to file an income tax return committed in the judicial district in which the return was to be filed).
There is no doubt in this case that the place fixed for performance of the legally required act was Washington, D.C. The statute itself designates Washington as the place for performance since Section 461(a) directs that the report be filed with the Secretary of Labor and he is located in the District of Columbia. The Labor Secretary‘s published regulations further direct that any labor organization imposing a trusteeship over a local union must file the required reports “with the Director, Office of Labor-Management Standards Enforcement, Department of Labor, Washington, D.C. 20216.”
The government tried to show through a witness that duplicate files of the report are kept in the area offices of the Department of Labor and that the Department‘s policy is that field offices are authorized to receive the reports. R. Vol. VI at 689-690. Such may be the Labor Department‘s policy but we cannot penalize the appellant for the government‘s failure to follow its own statutes and directives. If we accepted this theory government agencies could define at whim the locus of criminal conduct without regard to published statutes and without notice to those later prosecuted under the statutes. A defendant‘s Sixth Amendment right would then be determined “solely by the arbitrary operation of a government agency which chooses to disregard its own published regulations.” United States v. Flaxman, 304 F.Supp. 1301, 1304 (S.D.N.Y.1969).
The district court erroneously relied on Wirtz v. Cascade Employer‘s Ass‘n, Inc., 219 F.Supp. 84 (D.D.C.1963) in finding that venue was proper in the Northern District of Georgia. The Wirtz case involved the failure of two corporations to file a report required by Section 4335 of the Act. Construing Section 440, the civil venue provision of the Act, the court concluded that failure to file the required report under Section 433 was not a violation which occurred in the District of Columbia. Id. at 87. Section 440 authorizes the Secretary of Labor to bring a civil action for violation of any section of the Act. The Secretary may bring this action “in the district court of the United States where the violation occurred or, at the option of the parties, in the United States District Court for the District of Columbia.”
We agree with the court in Wirtz that such could not have been Congress’ intent but Section 440 is simply not applicable to this case.6 Section 440 by its explicit language only applies to civil enforcement actions brought by the Secretary of Labor. The Wirtz court stated that the only issue before that court was “whether Congress [in Section 440], intended that venue would lie in the District of Columbia for a civil action charging a failure to file reports and seeking an injunction requiring such filing.” Id. (emphasis added). We cannot apply the venue provision for a civil action to this criminal case. Venue in a civil action is a matter of convenience but the right of a defendant in a criminal case to be tried where the alleged crime was committed is a constitutional right. See, United States v. Stratton, 649 F.2d 1066 (5th Cir. 1981). Venue in this case was proper only in the District of Columbia.
SUFFICIENCY OF THE EVIDENCE
Appellant also asserted that the evidence presented at trial was insufficient to
In order to prove a violation of
The government carried its burden of proof in this case. It proved that DiJames removed Elders, the business manager of Local Union 167, from office and consecutively appointed supervisors who administered the affairs of the local chapter, including the financial matters. R. Vol. V. at 572. Appellant appointed James Lynch, R. Vol. IV. at 364, Ray Smith, R. Vol. IV. at 367, and Jerry Carter, R. Vol. V. at 613-615. These three supervisors reported directly to DiJames and not to the members. R. Vol. IV. at 406; Vol. V. at 613, 618, 628, and Vol. VI. at 709-10. They were continuously calling him on the phone for whatever information they needed. R. Vol. IV at 397. DiJames himself told the local union that his supervisor would continue running the local until he thought they were able to elect their own officers. R. Vol. IV. at 402. The evidence was sufficient for a jury to conclude that the International Union had imposed a trusteeship over Local Union 167. See e.g., Benda v. Grand Lodge of Inter. Ass‘n, 584 F.2d 308 (9th Cir.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).
REVERSED and REMANDED.
RONEY, Circuit Judge, dissenting:
I respectfully dissent from the court‘s holding that this conviction must be reversed because of improper venue.
The trial court found as a fact that there is a field office of the Labor-Management Service Administration (LMSA) in Atlanta, Georgia, where the trustee reports could have been filed. Upon filing the reports in Atlanta, the defendant would have fully complied with the law. Thus, the fact is that the trusteeship reports could have been filed either in the District of Columbia or in the Northern District of Georgia. The failure of the defendant to file in either place was the crime he committed. Where an act can be accomplished in either of two places and the failure to act is the punishable offense, I would hold that venue for the criminal trial would lie in either jurisdiction where defendant could have complied with the law.
As I understand it, the court‘s decision does not quarrel with this principle. The cases relied on in the opinion involved only one place fixed for the performance of the required act. The court cites no case, nor has any case been cited by the parties,
Although this defendant happens to live near the District of Columbia, as to others in many parts of the United States, such as California, Hawaii, or Alaska for instance, most of the policy reasons given in the court‘s opinion for the venue provisions will be substantially thwarted with the strict application of the decision that the only constitutional venue for this crime is in the District of Columbia.