United States v. Paul N. Hankish, and James L. Matthews

CRAVEN, Bеfore RUSSELL and WIDENER, Judges. Circuit CRAVEN, Judge: Circuit appeal by This is an Paul Hankish and James Matthews from convictions of relating crimes to a stolen interstate shipment ques- of beer. theOf several presented, important tions the most prejudicial venue and the effect of a newspaper appeared during article that trial. According to the fa- most prosecution, vorable to the John Bruno Longfellow and Jackie stole a tractor- rig

trailer 1,456 loaded with cases of shipment Stroh’s beer. The was in distributing transit from Detroit to a company Huntington, Virginia. West day The next agreed defendant Hankish buy the beer from for Bruno a $1.50 bring case and asked Bruno to it from Huntington Wheeling, Virginia. West Longfellow rig drove the truck to Wheel- ing, he where was met Bruno and Following directions, Matthews. their Longfellow crossed the line into Ohio steep but the truck broke a down on hill. The beer was unloaded into rented Wheeling.1 and taken trucks back to so, paid $2,000 Even Hankish Bruno for the beer. years later,

Almost four after Bruno Longfellow had been convicted of relating federal crimes to the stolen shipment, grand jury in the Southern Virginia District of West returned a three-count indictment Hankish charged and Matthews. Count One Pittsburgh, Livingston, A. Thomas Pa. conspiracy to receive that had (Dennis (Court-appointed counsel) J. shipment, been stolen from an interstate Clark, Pa., brief), ap- Pittsburgh, -transport sto interstate commerce pellants. $5,000, len merchandise worth over Wayne Rich, Jr., Atty. transport A. Asst. U. S. interstate commerce (John Field, III, Atty., A. U. S. stolen motor Two vehicle.2 Count Longfellow portion engaged 1. While in transfer This indictment referred not ring the stolen beer into the rented trucks tractor that had been stolen the White patrolman stopped an along trailer, Ohio state to a to offer as with beer-laden Longfellow Longfellow sistance. No can one fault had used stolen Mack tractor that giving reply trip Wheeling. when affirmative the officer for the asked whether the beer was hot. lie in Thus venue would trict of Ohio. charged and Matthews Hankish three districts. transporting the one of the offense of substantive knowing commerce, beer presents a harder Two Count stolen, of 18 in violation to have been problem. under 18 It was U.S.C. framed charged Three 659. Count U.S.C. contains the substantive Hankish with applicable provision the offense in inter stolen trailer the any transporting in commerce interstate commerce, knowing it have been stаte goods an in from that have been stolen stolen, 2314. of 18 U.S.C. in violation shipment: terstate on defendants convicted At trial the to have deemed offense shall be [T]he all counts. into district been committed goods] shall [stolen which such I the which same removed or into the contend Defendants brought by such of- shall have been Virginia was of District West Southern fender. improper the substantive venue clearly language face, author- this On its charged and Two crimes Counts of District in the Northern izes venue difficulty sustain Three. We have Virginia not but does and Ohio West apparently Three, which venue on Count Dis- Southern embrace the charged violation of U.S.C. illegal Virginia the of where trict West by governed section 2314 is Venue under originated.3 The transportation issue general provisions of 18 U.S.C. § the special venue this whether we face is provision DeKunchak, 467 3237. United States “except the within comes (2d Cir. Section provided expressly enact- otherwise (a) prоvides: Congress” of section ment of clause follow, involving Any the use the reasons offense For mails, not in inter- or that section 659 have concluded commerce, foreign express exception con- and is a or to be an state tinuing intended and, except as other- in the 3237 authorizes venue that section Virginia. expressly provided enactment of West wise District Southern may Congress, inquired be begin with, in sec- To venue from, prosecuted in district in restrictive is not couched tion 659 language. through, commerce into which such or to sec- 464, (1913), Ct. 57 L.Ed. 1350 and enlarging venue rather the intent of Capella, (N.D. United v. States F. 169 890 restricting first version of than The it. Cal.1909), the courts had construed stat 1913. Act of enacted in section was 659 prohibiting importation utes unlawful of 1913, 50, 13, ch. 670. The 37 Stat. Feb. aliens to create offenses that were com recently approved Supreme had Court plete port entry. Capella at In provision in the Elkins the broad venue Act, explicitly the court had held that 708, There 847 32 Stat. ch. 5 general apply venue statute not did and rebates, prohibited Congress conces- had that there in the district venue in sions, interstate discrimination and harboring where the defendant was an provided: rates, freight had and railroad illegally imported alien. To make in its Every Congress of this section shall be clear, violation tentions amended im any prosecuted migration in court United 1910, specifically laws of au having jurisdiction of thorizing any crimes Stаtes venue “in or district vio- brought the district in which such pur within into which said alien in is through committed, or importation by lation person suance of said persons 26, may transportation accused.” Act of Mar. have which the 1910, 3, (now 128, ch. 8 Stat. 265 § been conducted .... year, U.S.C. Enacted the same § Packing In Co. v. United Armour Act contained a similar Mann 428, 56, 52 L.Ed. S.Ct. 681 to it ensure that would be construed (1908), Supreme sustained Court continuing create a offense. Act statute-against constitutional this venue 1910, 5, 25, 395, June ch. Stat. § holding transportation challenge, (now 2421).6 18 U.S.C. § provided: Act, 333, 6, Property § Revised Statutes ch. 48 Stat. 795 § any (codified (1934) When offense the United in §§ 18 U.S.C. begun judicial 2314, respectively). in Supreme States one district and and completed another, significance in it shall be deemed Court attached absence .the either, special provisions. to have committed in been venue In United States with, of, tried, inquired 273, 249, Johnson, be dealt deter- punished district, (1944), in in mined and either ‍‌​​​​‌​‌​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​​‌​‌‌‌​‌‌‌​‌​​​​​​‌‍L.Ed. 236 held that Court actually (which prohibited if it bеen same manner as had Federal Denture Act use wholly by sending committed therein. mails dentures made incorporated persons) This into the 1911 statute was unlicensed did not create a continu- judicial 3, as section Act of Mar. code offense. The : Court said 1911, 42, significant Congress 231, ch. It Stat. 1100. that when desires give spe- trial, a choice of it does so provisions jurisdiction drafting giving practice cific venue followed the prosecute any “continuing in venue criminal court of оffense” clauses up through process United until when criminal States a the current which wrongdoing . code 3237 as moves. . . The absence was enacted with section provision general sig- continuing in itself be definition of offenses. See Act, National nificant. Motor Vehicle Theft ch. (1919) ; Id. at at 251. 65 S.Ct. Stat. 325 National Stolen inadvert- that its retention was it believe think context historical this example, 659 itself con- For section ent. in section venue clause clear that pertains another venue clause tains intent of cre- written 659 was receiving, stealing, to the offenses continuing mul- ating thus goods possessing from an interstate and shipment.9 places possible of trial. tiplying the multiple clearly any It offers district permitted statute of venue: goods re- choices were into which brought offender. moved deemed to have The offense shall be possibilities. Sec- not exclude did dis- committed code, judicial the 1911 first oc- the violation trict where provisions suрplemented special venue curred, district also 659,7 ven- authorized like that taken which the defendant be- an offense district where ue in the possession said mon- or been ey, gan com- the district where baggage, goods, or chattels. Together, pleted. the two statutes prosecutions read, would have allowed has been since This clause states expression between intent to make the brought where the continuing to be district offense. began, Cores, the district where n. along ended, or in (1958) background it would (Douglas, J., dissenting). With this route. read section 659 restrie- irrational to be Congress Moreover, in 1948 amended tively. prohibit transportation to section 659 only that detracts shipments circumstance stolen interstate analysis the foreign from special is the fact that pro- this or If commerce. the venue into the venue clause was carried vision is read to restrict venue dis- goods section 3237 was taken, 1948 Code. Because tricts which into the are special venue to make clauses written there would for crime be venue the unnecessary, most such clauses were goods stolen from Minneso- the The survival of clause eliminated. into ta a construction Canada. Such might in be taken indicate section nullify the clear intent Congress make meant section transportation amendment cover leg- inapplicable.8 The absence of goods foreign in stolen commerce—ex- history clаuse, this venue and islative on relatively importation cept for few of- presence ven- of other nonrestrictive do think in- fenses. We Code, to tended such a result. ue in lead us clauses Cf. portation goods Mahaffey Hudspeth. Supra, venue

7. of stolen with the note 4. See i)ertaining denied, (10th Cir.), clause the statute’s other of- 128 E.2d 940 cert. providing: fenses, (1942) 87 L.Ed. S.Ct. (holding supplemented be under this Act insti- Prosecutions § any Property tuted in wherein the district venue clause of Xational Stolen сommitted, Act). shall or in which the into the have been Section 103 was carried over removed, taken, of sec offender criminal as the first clause code brought possession 3237(a). said or in reads: It now money, baggage, goods, freight, express, Except expressly provided or as otherwise property. Congress, enactment 1(g), 24, 1946, July begun § Act of ch. in one another, completed a brief ex- Stat. 657. This venue clause had and in or com- district exidanation, district, may be istence. the draftsmen in Without than one mitted more language prosecuted inquired of the 1948 code restored the of and change begun, for the 1913 If occasion statute. which contin- such offense was judicial completed. ued, was an unfavorable construction or two-year interim, been unable we have mystery fact is enhanced to locate it. consolidated to section 659 1946 amendment relating trans- interstate See also 18 U.S.C. venue clause Freeman, (1915). L.Ed. L.Ed. 1130 That be in must interstate commerce is Finally, simple we think the virtues of simply jurisdictional peg without support consistency our conclusion that which the offense could not be tried in clause was not meant to be re- venue strictly not, federal but it courts prohibits strictive. Section speaking, an element of the criminal of interestate proposed fense. The revision of the fed $5,000, overlaps property worth over eral criminal code makes relation this portion of section 659 when- this ship explicit. Report Final of the goods Na ever the from interstate tional Commission Reform Federal $5,000 are or commerce valued at more. Laws, Proposed Criminal New ease, Federal $4,624, the beer worth In was this Criminal Code 201. $6,000. trailer worth about transporta- Consequently, the interstate tion of the trailer violated section both II 2314; that of the beer day On the second of trial an article violated section 659. There is no appeared newsрaper Charleston, logic policy fixing reason in being where the trial held. addi- districts, depending only in different on tion fairly summarizing Long- Jackie value the choice of fellow’s day, from the first prosecutor. Because the offenses scarcely which could prejudicial, identical, virtually it would be anom- article described Hankish aas “Wheel- to.Congress attribute alous to intent figure” reported: rackets simultaneously restricting venue un- many The theft one in- enlarging der sectiоn under stemming stances from a multistate section 2314. ring operated during theft Congress’ motive re- Whatever late 1960s. taining special venue sec- ring At time the theft was bro- it did intend we think up by agents, ken in 1969 FBI Hank- express exception to section create an having ish was described as directed Consequently we hold either that operations despite legs the loss of both may provide or section 3237 years five earlier when his car was charged under venue for an offense the up gangland blown fashion. of section 659. Immediately Defendants’ No. case, prosecution properly Exhibit the this brought recess, after the noon defense counsel District of Southern interrogate judge asked the trial Virginia, West illegal transportation originated. district in which the the the jurors individually to determine whether newspaper of them had read the ar- appel no We find merit jurors. ticle or it discussed with other lants’ contention that Constitution judge The district declined to do so. allows venue Dis the Southern argument Appellants trict of Their that no Ohio. contend that crime was committed until the beer poll jury court’s refusal to was er effectively agree crossed state line is answered compelled ror. We and are to or Packing Armour v. United possibility Co. der a trial new because of the States, jury’s L. may that the verdit have been in crime, Ed. by Congress, defined prejudicial newspaper fluenced crossing state speaks is not a line article. аrticle for itself. goods, carrying put impression or trans To into the box porting goods. Travis v. that Hankish was racketeer and a direc Cf. States, United 358, ring, tor a multistate theft (1961); implication partici Newton v. that Matthews was (4th States, pant, highly prejudicial. is nothing available, if or a mistrial else Association’s The American Bar prejudice.11 will Relating cure Trial and to Fair Standards recommendation Free Press include a remedy, reject the cure we ABA As to argument. appellants’ supports that That both extreme inflexible. 3.5(f) provides: Section ground for does be mistrial there not, that material think, inevitably If it is determined command we during raises jurors disseminated the trial excused with resultant mis be questions possible preju- serious problem What to do about the trial. dice, motion the court on its own should remain in the soundadiscretion party or shall on the motion of either judge, and he should exhaust pres- question juroi’, each out aborting possibilities other before others, exposure of the ence about his trial. juror . to that material. . . [A] explore curative Here we cannot other po- reports who has or heard seen judge’s of the district devices because tentially prejudicial shall material be lay open extent of the failure to question if the excused material possible of the infection. is that none grounds for mistrial would furnish jurors ap had seen the Had article. if in the trial referred to itself. it, peared or all hаd read some We has believe this recommendation possible colloquy also with the court goes procedure merit but too far. As might ju such demonstrated that practice prefer of the Seventh duty wholly rors their understood dis Circuit: regard prejudicial information and mentally capable emotionally were procedure Thus, required heeding to do the court’s instruction publici- prejudicial where this Circuit speculation. so. But We this mere ty brought attention to the court’s agree with the Seventh Circuit during must is that court trial highly prejudicial when may information any jurors had been who ascertain if exposed exposed jury, have been to the publicity read or had court ef must ascertain the extent and jurors who re- Such the same. heard thereafter, infection, fect of the ex- spond affirmatively must then discretion, appropriate its take sound amined, individually and outside measures assure a fair trial. Mar jurors, presence deter- goles v. Unitеd 407 F.2d 727 publicity. mine However, effect 1969); Accardo, upon indicates, juror if 1962). (7th 298 See also F.2d Cir. 133 collectively, jury inquiry to the made States, v. F.2d Mares United 383 805 any of the read or heard that he has (10th 1967); v. United Cir. Marson judge is publicity question, the (6th 1953). States, 203 Cir. F.2d 904 further, (empha- ‍‌​​​​‌​‌​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​​‌​‌‌‌​‌‌‌​‌​​​​​​‌‍required proceed to added). sis every We do not hold that news during paper appearing trial re article 727, Margoles States, F.2d v. 407 United quires protective measures. Unless denied, (7th Cir.), 735 833, cert. preju to fear there is substantial reasоn 89, (1969). 24 L.Ed.2d 84 90 S.Ct. ques dice, judge may the trial decline exposed, jurors If jurors. v. Wen tion the United States open procedure questioning will 1962); zel, 164, (4th 311 F.2d 170 Cir. way appropriate measures corrective excusing States, see F.2d —cautionary in Gordon v. United 438 instructions,10 (5th denied, jurors Cir.), dividual when alternates 404 858 cert. U.S. Persico, States, 425 F.2d 11.S v. 360 See United States ee Marshall United U.S. denied, 869, 310, (2d Cir.), (1959). 1171, 91 cert. 3 S.Ct. L.Ed.2d 1250 102, (1970). S.Ct. (1971); 30 L.Ed.2d 56 witness such an S.Ct. extent. The result of Edwards, prosecution’s they insist, tactic, United F.2d States v. give (2d jury hearsay denied, Cir. cert. 386 U. inadmissible nothing inеvitably L.Ed.2d 790 with but in- S. futile keep considering struction to them from signed statement. III This circuit follows the rule of Di States, (2d Sauvogeot, Carlo men v. United one of the who John truck, Cir.), helped had unload the disabled (1925): L.Ed. prosecution He “The lati called witness. w.as gave age, residence, tude to allowed in the examination of name, his witness, concealing a who has been called and admitted his conviction for proves recalcitrant, beer, wholly remember claimed to within the nothing judge.” discretion of incident. To refresh the trial about the Id. at attorney memory States, Harman v. his United United 199 F.2d (4th Sauvogeot 1952); Cir. he had showed statement Walker Although given ac- FBI in 1968. F.2d 465 knowledging signature settled looked this circuit that the trial judge may memory his, Sauvogeot questioning allow denied based on like prior making inconsistent, statements, it. The attor- whether impeaching, ney purpose proceeded, permission or for the then of au thenticating past court, recorded him as a hоstile examine recollection. length witness, questioning him about at Observing Sauvogeot’s demean- prior fol- details his statement. The or, judge the district was convinced that lowing exchange typical: “evading he answering questions Q agents you Septem- Did tell truthfully.” he could answer His to the ber, “I returned Rock belief was reasonable and under such Garden later Bar sometime circumstances it was reasonable allow Jacovetty he called and said had prosecutor gо prior over the state phone received call question question pres ment in the stuff ? had arrived” jury. ence of the A I don’t remember that.

Q Well, happen? IV did that A I don’t remember it did whether appellants’ assignments As to or not. error, following we offer the com- brief Q agents you guidance Did tell the that ? ments upon retrial. A I don’t remember either. think the We record contains Tr. counsel 267. Defense waived cross- support sufficient evidence ver judge examination. The in judge’s chаrge dict. The on the ele Sauvegeot structed that wherever said conspiracy sufficiently ments of re he remember, did not could not specific charged lated to the acts in the questions consider the as evidence aiding charge indictment. The case.12 abetting United authorized Duke, Appellants (4th States v. F.2d 669 Cir. contend was error to let 409 government 1969), denied, 1062, own 90 S. cross-examine its 397 U.S. cert. hearsay Proposed. Although prohibit- 12. merits from the rule. the rule this circuit 801(d)(1). prior Federal Rules of the use as substan- Evidence of statements Green, 149, unchanged, tive see v. 90 S.Ct. evidence remains California 399 U.S. United 1930, Supreme (4th (1970), Payne, L.Ed.2d States v. 492 Cir. 26 489 F.2d 449 constitutionality upheld proposed Court simi- we note rules of that currently being lar rule. evidence Con- state considered gress prior state- remove inconsistent

79 (1970). opinion 1497, Hank- ted.” I am further of that this 683 25 L.Ed.2d Ct. exception express his U.S.C. rest is an to 18 that could contention he ish’s testify am how I unable to see 3237. and then be entitled to оwn case exception to act as that create an unless assurance Matthews testimony has here. not be considered could his wholly merit. him without opinion I am of court iding allowing, trial, erred in a new there must be Since Sauvogeot statement the witness of the dis- the failure need not discuss presence jury, and him in the of the contents trict court reveal instructing disregard then report. see United presentence But Douglas Alabama, questions. (4th v. ‍‌​​​​‌​‌​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​​‌​‌‌‌​‌‌‌​‌​​​​​​‌‍Johnson, F.2d 377 v. States 415, 1074, States, L.Ed.2d 934 U.S. 85 S.Ct. 1974); Baker v. Cir. United (1965); Russell, U.S. 1968); Roberts v. Fed.R.Crim. F.2d 931 1921, 293, L.Ed.2d amended, 88 S.Ct. 32(c)(3), U.S.L.W. as P. (1968); States, 391 v. Bruton United (1974). 123, 1620, L.Ed.2d 476 admis doubts about have some We testimony he had of Bruno’s sion majority I the doubts of share deals with five” other made “four or admissibility of the property. Hankish concerning of ’the Bruno other crimes the rationale clear on this record go accused, I think further. and would Baldivid, F.2d 1277 v. Lovely 1047, the evidence inadmissible under denied, (4th Cir.), cert. (4th Cir. 169 F.2d 386 v. United (1972), L.Ed.2d 93 S.Ct. Mastrototaro, 455 and United States (4th Cir.), (1972), applies. a new

Reversed and remanded

trial. (concur- Judge

WIDENER, Circuit dissenting): ring and BACHOWSKI, Appellant, Walter majority to a I concur with the While respectfully I am extent, considerable Secretary Labor, BRENNAN, Peter provi- agree the venue unable to Department of Labor applicable to sions of 18 U.S.C. § of America. United Steelworkers carrying the offense No. 73-2029. com- Appeals, United States Court literally, merce, are not be read Third Circuit. prosecution’s cross-examination May Argued 1974. Sauvogeot, by prior use of witness July 26, Decided remember which he could not statement making, proper. Sept. As Amended Certiorari Granted Dec. out, Since, majority points as the See 95 S.Ct. 654. Count Two was an indictment under provision I “separate offense” of § think it should have tried under provisions very statute the venue the crime. The

which created creating provisions the statute being clear, the words used commit- be deemed to have been

“shall The Notes Reviser’s (emphasis moves. mail matter mention one statute —18 tion 3237 added). an instance “where 1073—as U.S.C. § prosecu- desires restrict supported government’s evidence The particular districts.” tion of offenses to trailer the conclusion emphatically restric- is Section 10734 Hankish, transported, at the direction tive : Vir- District of West from Southern ‍‌​​​​‌​‌​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​​‌​‌‌‌​‌‌‌​‌​​​​​​‌‍through section be Violations of this ginia, District Northern judicial prosecuted only in the Federal Virginia, Dis- into the Southern West goods reading language only way This construction were removed.” this 3. The transpor- strained. The crime produce even more which the from district goods, did transported the theft goods “re- tation of stolen is to were interx>ret way asportation West Vir- on occur Detroit or el- moved” as reference ginia. larceny and treat common-law ement of equivalent preposition “into” as prohibits travel authorize Section “in.” This construction goods or confine- to avoid commerce ment, in which the venue in the district i>rosecution testimony giving in criminal stolen, to avoid too strained. we think it were trroceedings, re- urged government “re- to avoid service us to read has i>rocess quiring transporta- before legal attendance moved” relation to investigatory agency, con- avoid or to Hun- state Detroit from tion of these proceedings for disobedience tington, making District the Southern temx>t process. Virginia which a district “into West original “continuing in which offense” which committed, punished beginning, end, alleged “at to have been at the person journey,” was held in or in the middle of U. or in custody or in confinеment which an S. at 28 S.Ct. at 432. process of service of or a avoidance Despite judicial the breadth au alleged contempt ... to have thorization, between (empha- .... been committed lower federal courts seemed reluctant to added). sis continuing ‍‌​​​​‌​‌​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​​‌​‌‌‌​‌‌‌​‌​​​​​​‌‍federal construe crimes of “only” fenses in the absence of to the use of sec- statuto contrast ry language. employs example, For the word in Ex Parte Lair, “any.” (D.Kan.1910), F. rev’d grounds, 195 F. 47 suggests history of section 33 S. written with the venue clause was

Case Details

Case Name: United States v. Paul N. Hankish, and James L. Matthews

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 17, 1974

Citation: 502 F.2d 71

Docket Number: 73-1926

Court Abbreviation: 4th Cir.