The opinion of the court was delivered by: WEINFELD
The defendant, Edwin P. Wilson ("Wilson"), is named in all seventeen counts of an indictment and Erik S. Wilson, his son, is named in fifteen, all of which center about charges that while Wilson was in custody at the Metropolitan Correction Center ("MCC") New York, New York within this district he plotted, aided and abetted by his son, to cause the murder of witnesses and prospective witnesses in prosecutions against him in the United States District Courts for the Southern District of Texas, the Eastern District of Virginia and the District of Columbia, as well as the murder of two Assistant United States Attorneys who were in charge of the prosecution in the District of Columbia, and other persons. Wilson has since been convicted in the Districts of Texas and Virginia and is serving respective cumulative sentences of seventeen and fifteen years. He was acquitted of the charges against him in the District of Columbia.
The indictment charges that in and around November and December 1982 and early January 1983, during Wilson's detention at the MCC pending his upcoming trials and after sentence had been imposed in a concluded trial where he was found guilty, he met Wayne Trimmer ("Trimmer"), a fellow inmate at the MCC, there in custody under sentences imposed pursuant to New York state judgments of conviction for murder and prison escape; that Wilson solicited Trimmer's assistance in carrying out his plan to kill the witnesses, the two Assistant United States Attorneys and other persons in return for a substantial sum of money; that his proposal included Trimmer's providing an assassin, or a "hit man," to kill the intended victims for payments ranging in each instance from $50,000 to $500,000; that Trimmer, who at that time had been cooperating with federal and state authorities on other and unrelated matters, reported Wilson's proposal to the Federal Bureau of Investigation, who assigned one of its agents to act in an undercover capacity as the hit man under the name of Tony DeAngelo ("DeAngelo"); that Trimmer introduced the agent, posing as the "hit man" and under his assumed name, to Wilson; that thereafter, apart from various alleged overt acts, Wilson at the MCC identified DeAngelo to his son, who subsequently paid $9800 cash to DeAngelo as a down payment for the first killing. Based on these general allegations and others, the indictment contains the following charges:
Three separate conspiracy counts: Count 1, under 18 U.S.C., section 371, to violate the statute against kidnapping (18 U.S.C., section 1201(a)(1)); obstruction of justice (18 U.S.C., section 1503); tampering with witnesses (18 U.S.C., section 1512); and retaliation against witnesses (18 U.S.C., section 1513).
Count 2 charges as a separate offense a conspiracy to murder the Assistant United States Attorneys under the Protection of United States Officers Act (18 U.S.C. § 1117).
Count 3 charges a conspiracy to murder under the New York Penal Law, made applicable by the Assimilative Crimes Act (18 U.S.C. § 13 and New York Penal Law § 105.15).
Count 4 charges the Wilsons with the assimilated New York crimes of attempted murder in violation of 18 U.S.C. §§ 2 and 13 and New York Penal Law §§ 125.25(1) and 110.00, and count 5 with criminal solicitation (18 U.S.C. §§ 2 and 13 and New York Penal Law § 100.10).
Count 6 charges the defendants with obstruction of justice with respect to the two prosecutors in violation of 18 U.S.C. §§ 1503 and 2.
Counts 7 through 10 charge the defendants with attempted witness tampering (18 U.S.C. §§ 1512(a)(2) and 2).
Counts 11 through 15 charge both defendants with attempted retaliation (18 U.S.C. §§ 1513 and 2).
Wilson is the sole defendant named in counts 16 and 17, which respectively charge attempted tampering of witness John Heath (18 U.S.C., section 1512(a)(2)) and attempted retaliation against the same witness (18 U.S.C., section 1513).
Wilson makes a series of motions directed to the indictment. The defendant Erik Wilson opted for a nonjury trial, to which the government consented. Under their stipulation his trial is to follow his father's.
MOTION TO DISMISS FOR LACK OF IN PERSONAM JURISDICTION
Wilson moves to dismiss the indictment upon a claim of lack of jurisdiction over him as a result of the government's alleged misconduct in securing his return to the United States against his wishes. Since 1979 Wilson had been out of the country, centering his activities principally in Libya, where he had taken up permanent residence, from which country he was not extraditable.
In April 1980, he was indicted by a grand jury in the District of Columbia and a warrant was issued for his arrest. Efforts by the government, through various sources and intermediaries including attorneys representing him here and abroad, to secure his return failed.
The substance of his claim of lack of jurisdiction is that after those aborted efforts, through alleged misrepresentations and fraudulent activities engaged in by the United States government representatives or their agents, he was induced to enter the Dominican Republic. When he deplaned there he was detained on a pretext by Dominican customs officials, allegedly with the connivance of a United States official, was told his papers were not in order, and that they were putting him aboard a plane bound for New York. Wilson resisted, stating to the Dominican officials that he did not want to go to New York, but they responded they were under orders to put him on a plane to the United States, whereupon he was taken into custody by United States marshals and placed aboard a plane bound for New York. Upon arrival at Kennedy International Airport, a United States marshal boarded the plane and placed him under arrest.
Based upon the foregoing allegations, Wilson claims he was forcibly brought back to the United States against his consent, without proper authorization and in violation of his constitutional rights. In support of this contention, he relies upon United States v. Toscanino,2 where a defendant alleged that foreign government agents, acting with the knowledge and consent of agents of the United States, engaged in the most egregious conduct, kidnapped the defendant from his home in Uruguay in violation of international treaties with the United States, brutally beat him, at times in the presence of his seven-month pregnant wife, held him incommunicado for seventeen days, during which he was tortured and physically abused, subjected to the most shocking, repulsive and inhumane treatment and finally drugged and placed aboard a plane for the United States, where he was given into the custody of waiting United States government agents. In remanding for an evidentiary hearing, the Toscanino court held that if the allegations of government misconduct were upheld, due process required that the court divest itself of jurisdiction over the person of the defendant since it was "acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights."
Assuming the verity of Wilson's allegations,
his attempt to bring himself within the Toscanino concept fails.
There is no claim that he was kidnapped, tortured, drugged, terrorized or otherwise subjected to "'conduct that shocks the conscience.'"
In the absence of such circumstances, the general and longstanding rule established by the Supreme Court almost 100 years ago under Ker v. Illinois7 and reaffirmed sixty-six years later in Frisbie v. Collins8 controls -- that criminal jurisdiction "is not impaired by the illegality of the method by which the court acquires" in personam jurisdiction.
It is significant, moreover, that the three District Courts before whom defendant made a similar motion have all rejected it.
Furthermore, whatever the means used to bring the defendant into the United States to face the prior charges, once here, he was required to live within the law. The fact that his presence in the United States with respect to previously pending charges might ultimately be held to have been obtained in violation of his constitutional rights is not a license for lawlessness; he does not gain immunity from prosecution for other alleged conduct that violates the criminal laws of the United States or any of its States.
Thus the court concludes that it has jurisdiction over the defendant and the motion to dismiss on this ground is denied.
LACK OF PROPER VENUE AS TO THE SUBSTANTIVE COUNTS
The defendant next contends that venue is misplaced in this District on the substantive counts of attempted murder, criminal solicitation, obstruction of justice, tampering with and retaliation against witnesses. The attack centers about the relationship of the various alleged acts to the obstruction of justice charge. The thrust of this claim is that (1) the prosecutions against Wilson with respect to which the defendant committed the various acts aimed to obstruct justice were pending in the Districts of Texas, Virginia and the District of Columbia, and (2) the six witnesses and the Assistant United States Attorneys who were to be murdered were beyond this District -- the latter two in the District of Columbia and the others either in Florida, Virginia, Washington, D.C., Switzerland or Libya. The defendant, of course, relies upon both Article III, section 2, clause 3, of the Constitution and Rule 18 of the Federal Rules of Criminal Procedure, which require that the prosecution must be held in the state or district where the crime was committed. Thus the basic issue is the locus of the offense.
The defendant argues, and not without support, that in prosecutions for obstruction of justice proper venue is in the district where proceedings have been, or intended to be, affected regardless of where the obstructive acts occurred -- in effect that the gravamen of the offense is the impact or intended impact upon the obstruction of justice where an action or investigation is pending that controls, and not where the attempts occurred.
The Courts of Appeals that have considered this issue are not in accord. Thus the defendant's position finds support in rulings in the First,
and the Sixth Circuits.
Our own and other Courts of Appeals have taken a contrary position, to wit, that venue is proper in the district where the obstructive or threatening acts occurred.
This Court, of course, is bound by the ruling of the Second Circuit.
Here the defendant is charged, while confined at the MCC, with having committed the various acts aimed at obstructing justice in the three separate districts. These included enlisting the aid of Trimmer for the hiring of an assassin to murder witnesses and prosecutors, identifying the hit man to his codefendant, directing the payment of the initial deposit, telephoning to various persons in furtherance of the assassination plot, and the like. If the government sustains the allegations of this indictment, these were "the performance of acts which constitute a 'substantial step' towards the commission of the substantive offense."
Were the issue one of first impression, this Court would hold that venue is proper in the district where the acts were committed even though intended to obstruct justice in an official proceeding pending in another district. The essence of the crime is tampering with or retaliating against a witness with intent to obstruct justice wherever the proceeding is pending. The crime is the offender's attempt with intent to obstruct justice, and whether or not the effort succeeded is immaterial. And where an accused paid a sum of money in this District to induce a witness not to testify upon a trial in another district, justice was obstructed in that district; but the inducing act was performed in this District and the crime was committed here. Our Court of Appeals has observed that in determining proper venue the District Court must ascertain both the nature of the offense and the location of the acts constituting it, and the point at which the defendant's acts have progressed so that a court "can confidently conclude that a crime has been committed."
While thus far no case has so held, this Court is of the view that the recently enacted Victim and Witness Protection Act, upon which various counts here under challenge are based, is broad enough to permit a prosecution either in the district where the acts occurred or in the district where its impact was intended, whether or not it succeeded.
The factual allegations of the instant indictment strongly support that view. The charge is that defendant's acts were intended to obstruct justice by the murder of witnesses who were to testify and had already testified in three District Courts located in Texas, Virginia and the District of Columbia. Yet the acts to achieve those purposes were all committed by the defendant in this District. The other participants in those acts and conduct also were located here. Under the defendant's concept of proper venue, three separate prosecutions would be required with the prospect that a prosecution in one district would lead to a claim of double jeopardy in the other two. What was said in a case which held venue proper in the district where the basic acts occurred is pertinent here:
Venue traditionally has been based on notions of fair, fast and efficient administration of trials. When venue is laid in the proper district -- the one in which the crime was committed -- witnesses are more readily available, and the operative facts and situs of the incident are closer at hand. The accused gets the trial by local jury envisioned by the framers of the Sixth Amendment.
The motion to dismiss the referred-to counts for lack of proper venue is denied.
CHALLENGES TO THE SUFFICIENCY OF ...