United States v. Passodelis, Christopher

615 F.2d 975, 1980 U.S. App. LEXIS 20297

• Court: Court of Appeals for the Third Circuit
• Decided: February 21, 1980
• Docket: 79-1486
• Status: Published

Opinions

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This an appeal by Christopher Passodelis from a jury verdict finding him guilty of making contributions to a candidate for federal office in excess of $1,000 in violation of 18 U.S.C. § 608(b)(1) (Supp. IV 1974) and of making a contribution in the name of another person in violation of 18 U.S.C. § 614 (Supp. IV 1974).¹ Passodelis advances six arguments for reversing his convictions: (1) section 608(b)(l)’s $1,000 limitation on contributions to individual candidates is unconstitutionally overbroad; (2) the absence of an explicit scienter requirement in section 608(b)(1) violates the First Amendment to the Constitution; (3) section 614’s prohibition of contributions made in the name of another person is unconstitutionally over-broad; (4) section 614 is unconstitutionally vague; (5) the absence of an explicit scienter requirement in section 614 violates the First Amendment to the Constitution; (6) venue in the Middle District of Pennsylvania was improper.

We find that venue in the Middle District of Pennsylvania was improper in violation of both the Sixth Amendment to the Constitution and Rule 18 of the Federal Rules of Criminal Procedure and that, as a result, Passodelis’s convictions must be overturned. t Accordingly, we do not reach Passodelis’s other contentions.

I

Passodelis was an enthusiastic supporter of then Governor Shapp’s campaign for the Democratic nomination for the presidency. In fact, his enthusiasm was so great that he successfully solicited $250 contributions from eighteen individuals for the Shapp for President Committee and then he himself repaid all eighteen individuals for their contributions. He was tried by a jury and convicted on one count of making contributions to a candidate for federal office in excess of $1,000 in violation of 18 U.S.C. § 608(b)(1) (Supp. IV 1974) and on eighteen counts of making a contribution in the name of another person in violation of 18' U.S.C. § 614 (Supp. IV 1974).²

In a pre-trial motion urging transfer of venue from the Middle to the Western District of Pennsylvania, Passodelis argued that venue in the Middle District was improper. In response to the motion to transfer, the government argued that venue in the Middle District was indeed proper since that was where the Shapp for President Committee had its headquarters and deposited the contributions which it received. Although the district court denied Passodelis’s motion, the court stated that “[t]he United States must prove at trial, as it has alleged in the complaint, that crimes were committed by the Defendant in the Middle District of Pennsylvania.” App. at 38a. Passodelis now argues before this court, as he argued in a post-trial motion before the district court, that the government failed to prove that crimes were committed by Passodelis in the Middle District.

II

The question of where an accused shall stand trial was a matter of such importance to those who wrote the Constitution and the Bill of Rights that they dealt with it in two separate provisions. Article III, section 2, of the Constitution requires that “The Trial of all Crimes . . . shall- be held in the State where the said Crimes shall have been committed . . . .” U.S. Const. art. III, § 2, cl. 3. In addition, the Sixth Amendment to the Constitution provides that “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 . . . U.S. Const. amend. VI.³

The Supreme Court has, more than once, stated that “[questions of venue in criminal cases . . are not merely matters of formal legal procedure. They raise deep issues of public policy . . .” United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236 (1944); Travis v. United States, 364 U.S. 631, 634, 81 S.Ct. 358, 360, 5 L.Ed.2d 340 (1961). Accord, United States v. Valenti, 207 F.2d 242, 245 (3d Cir. 1953). Although the Court has, over time, divided over whether the constitutional provisions on venue were designed primarily to insure that an accused not be forced to stand trial far from where- he resides, United States v. Johnson, supra; United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958), or whether the provisions were designed primarily to insure that an accused not be forced to stand trial far from where the crime was committed, Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956); Travis v. United States, supra; Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), the Court has consistently viewed the venue provisions of the Constitution as important safeguards protecting an accused from unfairness and hardship in defending against prosecution by the federal government. Though our nation has changed in ways which it is difficult to imagine that the Framers of the Constitution could have foreseen, the rights of criminal defendants which they sought to protect in the venue provisions of the Constitution are neither outdated nor outmoded. Moreover, the Congress has incorporated the basic constitutional provisions on venue in Rule 18 of the Federal Rules of Criminal Procedure which provides, in relevant part, that “the prosecution shall be had in a district in which the offense was committed.” Fed.R. Crim.P. 18.

Ill

Since the determination of whether venue was proper depends on where the crimes were committed, we must, as an initial matter, ascertain the definitions of the crimes. In a recent opinion, this court held that the act of making a contribution in the name of another person, which is prohibited by section 614, is complete either on the date such a contribution is mailed to or received by, but before it is deposited by, the recipient. United States v. Hankin, 607 F.2d 611 (3d Cir. 1979). Since the primary operative element of the act prohibited by section 608(b)(1) is, like that of the act prohibited by section 614, the making of a contribution, the rationale underlying the Hankin court’s definition of the making of a contribution for purposes of section 614 requires that the same definition of the making of a contribution be utilized for purposes of section 608(b)(1). Accordingly, in regard to both sections 608(b)(1) and 614, we are bound by the holding in Hankin that the illegal making of a contribution is complete before the contribution is deposited by the recipient.

We turn now to examine whether there is sufficient evidence upon which the district court could have found that crimes were committed by Passodelis in the Middle District.⁴ Since, under Hankin, the fact that the contributions were deposited in the Middle District by the Shapp for President Committee is insufficient to establish venue in- the Middle District, we must determine whether there is evidence in the record which will support a finding that acts which constitute elements of the crimes were committed by Passodelis in the Middle District. Passodelis contends, properly we believe, that “[t]he only testimony in the case concerning the transmittal of the checks by the defendant to the Shapp for President Committee in Harrisburg, Pennsylvania [the Middle District] came from Patrick Kelly, an FBI agent who had interviewed the defendant prior to trial and who testified to admissions made by the defendant to him.” Brief for Appellant at 22. When questioned as to what Passodelis told him that he did with the checks after collecting them, Kelly replied:

He couldn’t recall specifically. He advised us that upon return to Pittsburgh [the Western District] he either personally hand carried the checks to Harrisburg, Pennsylvania, [the Middle District] or provided them to Mr. Seymore Heyison for transmittal to the Shapp for President Committee here in Harrisburg. But he could not remember exactly what he did with the checks.

App. at 58a, Record at 28.

Although Heyison, to whom Passodelis may have given the checks in the Western District, is never clearly identified¡ it appears from the record that he was either part of' the Shapp for President Committee or was connected with Shapp in some other capacity. See, e. g., Record at 21-22, 32-83. Only if Heyison was Passodelis’s agent could any act of Heyison’s in the Middle District be attributed to Passodelis. However, there are no facts in the record which will support the conclusion that Heyison was an agent of Passodelis’s. In fact, if anything, it would appear that if Heyison received the checks in the Western District from Passodelis, he did so in his capacity as an agent of the Shapp for President Committee. Accordingly, if Heyison received the checks in the Western District, the crimes were complete in the Western District. See United States v. Hankin, supra.5

Since it is unclear whether Passodelis or Heyison brought the checks into the Middle District where they were deposited in the account of the Shapp for President Committee, and since we have no facts upon which we are able to determine that Heyison was acting as Passodelis’s agent, we are forced to conclude that the government has not met its burden of establishing that venue in the Middle District was proper.⁶

IV

Reluctant as we are to overturn otherwise valid convictions, the Sixth Amendment to the Constitution and Rule 18 of the Federal Rules of Criminal Procedure leave us no choice. The judgment of the district court will be reversed.

1 . 18 U.S.C. §§ 608(b)(1) and 614 (Supp. IV 1974), Federal Election Campaign Act Amendments of 1974, Pub.L.No. 93-443, §§ 101(a) and 101(f)(1), 88 Stat. 1263, 1268, were repealed, Federal Election Campaign Act Amendments of 1976, Pub.L.No. 94-283, § 201(a), 90 Stat. 496 (1976 Amendments), and reenacted in amended form. Id. § 112, 90 Stat. 486, 494 (codified at 2 U.S.C. §§ 441a(a)(l)(A) and 441f (1976)). The repeal of §§ 608(b)(1) and 614 is, however, subject to a savings provision which provides that the repealed sections “shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of any penalty, forfeiture, or liability.” 1976 Amendments, supra, § 114, 90 Stat. 495.

2 . See note 1 supra.

3 . Literally, the provision in Article III is a venue provision since it specifies the place of trial, whereas the provision in the Sixth Amendment is a vicinage provision since it specifies the place from which the jurors are to be selected. This distinction, however, has never been given any weight, perhaps because it is unlikely that jurors from one district would be asked to serve at a trial in another district, or perhaps, more importantly, because the requirement that the jury be chosen from the state and district where the crime was committed presupposes that the jury will sit where it is chosen.

4 . We need not decide today whether, as Passodelis contends, venue must be proved beyond a reasonable doubt or whether proof by a preponderance of the evidence is sufficient since, under either standard, we find that the government has not met its burden.

5 . Interestingly, in its closing argument to the jury, the government appears to concede that Passodelis did not bring the checks to Harrisburg. Record at 295.

6 . The dissent is certainly correct in characterizing the central issue in dispute in this case as a factual one. However, we are concerned that the dissent misapprehends the nature of our inquiry. The dissent asserts that we substitute our own “verdict of acquittal.” However, we are not reviewing whether there was sufficient evidence upon which a jury could have found Passodelis guilty, but rather whether there was sufficient evidence upon which the district court could have found that crimes were committed by Passodelis in the Middle District. In fact, it is completely unnecessary for us to call into question any of the jury’s findings since there is no factual inconsistency between the jury having found that Passodelis committed the crimes for which he was convicted and our determination that the evidence was insufficient to support a finding that crimes were committed by Passodelis in the Middle District. The two inquiries are, on the facts of this case, entirely separate. The dissent also asserts that we “substitute findings we would have made had we been the factfinding tribunal.” However, the determination as to whether there was sufficient evidence to support a finding that crimes were committed by Passodelis in the Middle District is a question of law, not of fact.

The dissent would have us conclude that if Heyison received checks in the Western District from Passodelis, he did so in his capacity as an agent of Passodelis’s and that, accordingly, Heyison’s acts in the Middle District should be attributed to Passodelis. However, as we have pointed out, there are simply no facts in the record which will support the conclusion that Heyison was an agent of Passodelis’s. Moreover, even were we, as the dissent argues, to view the particular words in which Kelly recounts what Passodelis told him he did with the checks as probative on the issue of agency, there is no indication whatsoever that Heyison was in any respect subject to Passodelis’s control. See Restatement (Second) of Agency § 1 (1957). Accordingly, we have no choice but to hold that the evidence was insufficient to support a finding that crimes were committed by Passodelis in the Middle District.