United States v. Curtiss , 407 F. App'x 663 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________
No. 09-4698
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN C. CURTISS, a/k/a Jay Curtiss, d/b/a Centerline Carbon
Products,
Defendant - Appellant.
________________
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:87-cr-00112-RLW-1)
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Argued: December 8, 2010 Decided: January 13, 2011
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Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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ARGUED: Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Benjamin L. Hatch, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Patrick L. Bryant, Research and Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
________________
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On December 14, 1987, Appellant John C. Curtiss was
indicted in the Eastern District of Virginia for mail fraud,
false statements, false claims upon the United States and
conspiracy, in violation of 18 U.S.C. § § 1341, 1001, 287 and
286, respectively. The gravamen of all of the charges was that,
despite his debarment from entering into government contracts,
Curtiss continued to engage in fraudulent contracting with a
Department of Defense agency located in Virginia.
Prior to trial, Curtiss moved to dismiss the indictment on
the ground of improper venue. The district court denied the
motion and a jury convicted Curtiss on all counts. Sentencing
was scheduled for May 1988, but Curtiss absconded and was not
apprehended until 2009. The proceedings resumed with a
sentencing hearing on July 14, 2009. The district court
sentenced Curtiss to a 15-year term of imprisonment. On appeal,
Curtiss assigns error in the denial of his motion to dismiss and
in the inadequacy of the district court’s statement of reasons
for the sentence. We affirm.
I.
A.
The Defense General Supply Center (“DGSC”), located in the
Eastern District of Virginia, procures and stores a variety of
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military supplies, including electrical contact brushes, which
are devices designed to maintain electric currents in rotating
machinery. Curtiss supplied DGSC with electrical contact brushes
but was barred from doing so after he was convicted in 1983 of
the unlawful sale of government property. The debarment order
prohibited Curtiss from government contracting from February 22,
1984 to December 28, 1986.
After Curtiss was barred from government contracting, he
approached the owner of Sent Electric Company, Peter
Kljucaricek, a/k/a Peter Kay, about using Sent Electric Company
to make brush sales to the DGSC. Kay agreed to the arrangement
in return for a ten-percent commission on the sales. Around the
same time, Curtiss’s wife registered a new company, Centerline
Carbon Products, in her name in Michigan. Under the arrangement
with Kay, Curtiss received information about brushes DGSC
intended to purchase, prepared bids in the name of Centerline
Carbon Products, and submitted them in the name of Sent Electric
Company. When the government submitted a contract to Sent
Electric Company, Kay would transfer the contracts to Centerline
Carbon, which handled the stock selection, packing, labeling,
and shipping. As a result, Curtiss was able to continue to
participate in the contracting process during his period of
debarment.
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DGSC initiated an investigation after it received
complaints about the quality of the contact brushes. The
investigation revealed that Curtiss would either select and ship
less expensive, unauthorized brushes instead of the required
brushes, or he would resell brushes from government surplus that
he possessed, in violation of the contract.
B.
On December 14, 1987, Curtiss was indicted in 21 counts for
mail fraud, in violation of 18 U.S.C. § 1341; false statements,
in violation of 18 U.S.C. § 1001; false claims upon the United
States, in violation of 18 U.S.C. § 287; and conspiracy to
defraud the Department of Defense, in violation of 18 U.S.C. §
286. Each count alleged that the offense occurred within the
Eastern District of Virginia prior to November 1, 1986.
Curtiss filed a pretrial motion to dismiss the indictment
for improper venue, relying on constitutional provisions and
Federal Rule of Criminal Procedure 18. 1 While Curtiss’s motion
1
Article III provides that “[t]he 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 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.” U.S. Const. amend. VI. Federal Rule
of Criminal Procedure 18 codifies these principles:
Unless a statute or these rules permit otherwise,
the government must prosecute an offense in a
(Continued)
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did not seek a transfer of venue pursuant to Federal Rule of
Criminal Procedure 21(b), 2 the government’s opposition stated in
a footnote that Curtiss’s allegations “seem to fit the framework
of that Rule.” J.A. 38. In its denial of Curtiss’s motion to
dismiss, the district court cited law pertaining to
constitutional venue principles and Federal Rule of Criminal
Procedure 18.
At the conclusion of a three-day trial, the jury convicted
Curtiss on all counts. Prior to sentencing, however, Curtiss
absconded, and the district court issued a bench warrant for his
arrest. Curtiss was not apprehended until March 25, 2009, more
than twenty years after he fled.
When Curtiss was returned to Virginia for sentencing in
2009, the government filed an updated sentencing memorandum,
district where the offense was committed. The
court must set the place of trial within the
district with due regard for the convenience of the
defendant, any victim, and the witnesses, and the
prompt administration of justice.
Fed. R. Crim. P. 18.
2
Rule 21(b) provides:
Upon the defendant’s motion, the court may transfer
the proceeding, or one or more counts, against that
defendant to another district for the convenience of
the parties, any victim, and the witnesses, and in the
interest of justice.
Fed. R. Crim. P. 21(b).
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requesting a five-year term of imprisonment. At the sentencing
hearing, Curtiss argued for a term of three to four years of
imprisonment. The district court announced its sentence by
stating:
Pursuant to Title 18 U.S.C. Section 3553(a) . . . I
sentence Mr. Curtiss to a total term of 15 years,
consisting of five years on count one, five years on
count two, and five years on count three, all to run
consecutively to each other; and ten years on count 21
to run concurrently to the 15-year term imposed on
counts one, two and three.
J.A. 655. On the remaining counts, the court suspended sentence
and placed Curtiss on five years of supervised release upon his
release from prison. Curtiss noted a timely appeal, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
A.
Curtiss first maintains that the district court committed
error in denying his motion to dismiss the indictment for
improper venue. 3 He notes that many of the events related to the
3
The government urges us to decline to consider Curtiss’s
appeal of the denial of his venue challenge based on the
fugitive disentitlement doctrine. The fugitive disentitlement
doctrine generally provides that federal courts “have authority
to dismiss an appeal . . . if the party seeking relief is a
fugitive while the matter is pending.” Degen v. United States,
517 U.S. 820, 824 (1996). In addition, although Curtiss had not
yet appealed (for he had not been sentenced) at the time he
absconded, courts have the authority to dismiss a criminal
(Continued)
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government contracting offenses occurred outside of Virginia,
and that the scheme he created originated in Michigan, where
Curtiss, his wife, and Kay resided.
We review de novo a district court’s denial of a motion to
dismiss for improper venue. See Mitrano v. Hawes, 377 F.3d 402,
405 (4th Cir. 2004); United States v. Newsom, 9 F.3d 337, 338
(4th Cir. 1993). When multiple counts are alleged in an
indictment, venue must be proper on each count. United States v.
Stewart, 256 F.3d 231, 242 (4th Cir. 2001). The government bears
the burden of proving venue by a preponderance of the evidence.
United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).
As mentioned, the Constitution sets forth the basic
parameters for venue in a criminal case. Under Article III,
“[t]he 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; see also U.S. Const. amend. VI (“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.”). Federal
appeal under the doctrine where there is some nexus between “a
defendant’s [prior] fugitive status and his appeal.” Ortega-
Rodriguez v. United States, 507 U.S. 234, 249 (1993). We
conclude that Curtiss’s venue challenge plainly lacks merit.
Therefore, we decline to apply the fugitive disentitlement
doctrine in this case.
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Rule of Criminal Procedure 18 reiterates this principle: “Unless
a statute or these rules permit otherwise, the government must
prosecute an offense in a district where the offense was
committed.” Together, these provisions “protect the defendant
from bias, disadvantage, and inconvenience in the adjudication
of the charges against him.” United States v. Johnson, 510 F.3d
521, 524 (4th Cir. 2007) (quoting Ebersole, 411 F.3d at 524).
In keeping with these principles, Congress may prescribe
specific venue requirements for a particular crime. Johnson, 510
F.3d at 524. If Congress adopts such a statute imposing venue
requirements, “that provision must be honored (assuming, of
course, that it satisfies the constitutional minima.)” Id.(quoting United States v. Salinas, 373 F.3d 161, 164 (1st Cir.
2004)). In addition, federal law provides that venue is proper
in any district where an offense was begun, continued or
completed. 18 U.S.C. § 3237(a).
Here, venue in the Eastern District of Virginia was proper
for each count. Venue was proper for the mail fraud counts
because Curtiss caused DGSC to mail contract payments from the
Eastern District of Virginia. See 18 U.S.C. § 1341 (noting venue
is proper, among other places, where a defendant causes a letter
to be placed in an authorized depository for mail); United
States v. Blecker, 657 F.2d 629, 632-33 (4th Cir. 1981) (same);
see also 18 U.S.C. 3237(a) (“Any offense involving the use of
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the mails . . . may be . . . prosecuted in any district from,
through, or into which such commerce, mail matter, or imported
object or person moves.”).
Venue was proper for the false statement counts because
Curtiss made and used false documents knowing they contained
materially false information, and these documents were filed in
the Eastern District of Virginia. See Blecker, 657 F.2d at 636-
37 (noting venue is proper where the claims were prepared, where
the claims were received by the government, or where the
defendant causes the government to place the funds in the mail);
see also United States v. Bilzerian, 926 F.2d 1285 (2d Cir.
1991) (noting venue is proper under 18 U.S.C. § 1001 either
where documents were prepared or filed).
Similarly, venue was proper for the false claims counts
because Curtiss made and used false documents knowing they
contained materially false information, and these documents were
presented to the government in the Eastern District of Virginia.
See 18 U.S.C. § 287 (noting venue is proper in any district in
which the claims were made, prepared or presented to the
government). Finally, venue was proper for the conspiracy count
because overt acts in furtherance of the charged conspiracy were
committed in the Eastern District of Virginia. See 18 U.S.C. §
3237(a) (Where a crime is “begun in one district and completed
in another, or committed in more than one district,” federal law
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permits prosecution “in any district in which such offense was
begun, continued, or completed.”).
Curtiss argues, in the alternative, that even assuming
venue was proper in the Eastern District of Virginia, the
district court should have transferred the case to the Eastern
District of Michigan pursuant to Federal Rule of Criminal
Procedure 21 and abused its discretion in failing to do so.
However, Curtiss waived any argument concerning transfer of
venue by failing to seek such a transfer pursuant to Rule 21.
United States v. Sorce, 308 F.2d 299, 301 (4th Cir. 1962); see
also United States v. Blackwell, 946 F.2d 1049 (4th Cir. 1991)
(“[B]ecause defendants failed to request a retransfer of the
prosecution . . . under Rule 21(b), we may not review whether
the proceedings properly should have gone forward there.”).
For the reasons set forth above, it is plain that venue in
the Eastern District of Virginia was proper for each count of
the indictment and the district court properly so concluded.
B.
Curtiss next asserts that his sentence should be vacated
and the case remanded for resentencing because the district
court erred by failing to give individualized reasons for the
sentence imposed. However, the district court was not required
to abide by the requirements surrounding the Sentencing
Guidelines, and therefore was not required to give
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individualized reasons. This is because all of the offenses of
conviction were completed prior to the effective date of the
Sentencing Reform Act of 1987 and thus, before the Sentencing
Guidelines became applicable.
The United States Sentencing Guidelines “apply only to
offenses committed after” November 1, 1987. Sentencing Act of
1984, Pub. L. No. 100-182, § 2(a); United States v. Munoz, 974
F.2d 493, 495 n.* (4th Cir. 1992) (“Since [the defendant’s]
crimes were committed before November 1, 1987, the United States
Sentencing Guidelines do not apply to this case.”). Here, §
3553(c) is inapplicable because all of Curtiss’s offenses were
committed and completed before November 1, 1987.
Consequently, we review the district court’s sentence as it
would have been reviewed prior to the implementation of the
Sentencing Guidelines. Prior to the implementation of the
Sentencing Guidelines, broad discretion was given to sentencing
courts to consider a wide range of information concerning the
background, character, and conduct of defendants. Munoz, 974
F.2d at 495; Wasman v. United States, 468 U.S. 559, 563 (1984)
(observing that sentencing courts may consider “any and all
information that reasonably might bear on the proper sentence
for the particular defendant, given the crime committed”);
United States v. Tucker, 404 U.S. 443, 447 (1972) (“[A] sentence
imposed by a federal district judge, if within statutory limits,
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is generally not subject to review.”). Further, a district court
can consult the Guidelines to “to inform a pre-Guidelines
sentence.” United States v. Bakker, 925 F.2d 728, 740 (4th Cir.
1991).
Here, the district court’s statement of reasons was
sufficient under governing law. While the district court stated
that it found that “the sentence imposed is fair and appropriate
for this defendant in light of the requirements of 18 United
States Code section 3553(a),” the fact the district court
mentioned the inapplicable Sentencing Guidelines framework is
not dispositive. See Bakker, 925 F.2d at 740. The district court
adopted the presentence report without change. The presentence
report indicated that the correct statutory framework for
Curtiss’s sentencing was governed by pre-Guidelines legal
principles. In addition, the sentence imposed was within the
statutory limits. Consequently, the district court committed no
error in sentencing Curtiss.
III.
For the reasons stated, we hold that the district court did
not err in denying Curtiss’s motion to dismiss the indictment
for improper venue. In addition, we hold that the district court
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did not err in fashioning Curtiss’s sentence. Accordingly, the
judgment is
AFFIRMED.
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