United States v. Ringer, Robert J. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-3444
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT J. RINGER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-00-41-CR-B/F—Sarah Evans Barker, Judge.
____________
ARGUED APRIL 16, 2002—DECIDED AUGUST 8, 2002
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Before CUDAHY, COFFEY, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Robert J. Ringer appeals his
18 U.S.C. § 1001 conviction for making false statements
to federal officers. At trial, Ringer moved for a judgment
of acquittal, arguing that venue was improper in the
Southern District of Indiana. The district court denied
this motion, finding that venue was proper. In this direct
appeal, Ringer argues that he did not waive his right to
claim improper venue and appeals the district court’s or-
der denying his motion for acquittal. For the reasons giv-
en below, we affirm the district court and uphold Ringer’s
conviction.
2 No. 00-3444
I. BACKGROUND
Ringer was arrested for accepting delivery of approxi-
mately 295 pounds of marijuana and indicted on a charge
of conspiracy to possess with intent to distribute mari-
juana. He agreed to plead guilty and provide drug traffick-
ing information about other individuals in exchange for a
government motion requesting a lesser sentence. During
several debriefing sessions with the government, Ringer
informed law enforcement agents of the drug trafficking
activities of three friends. A federal agent followed up on
Ringer’s information and confirmed these initial state-
ments. Ringer pled guilty as charged and was sentenced
to 46 months’ imprisonment, 14 months less than the 60-
month mandatory minimum sentence.
While preparing to indict Ringer’s friends, federal agents
traveled to the federal prison in Manchester, Kentucky,
where Ringer was serving his sentence, to reconfirm the
information Ringer provided earlier. Instead of confirma-
tion, Ringer recanted his previous statements and dis-
avowed any knowledge of his friends’ drug trafficking ac-
tivities. He also said that he would testify to whatever the
agents wished, nullifying his value as a government wit-
ness. Without his crucial testimony, the government had
to drop the grand jury proceedings against Ringer’s friends.
Ringer was then indicted in the Southern District of
Indiana with making a false statement to federal officers.
During his trial, Ringer filed a motion for acquittal due
to improper venue at the close of the government’s case.
He argued that the government proved that he made
false statements in the Eastern District of Kentucky but
not in the Southern District of Indiana. The district court
denied Ringer’s motion and he was found guilty by a jury.
No. 00-3444 3
II. ANALYSIS
Ringer appeals the district court’s denial of his motion for
judgment of acquittal due to improper venue, which we
review de novo. See United States v. Blassingame, 197
F.3d 271, 284 (7th Cir. 1999). On appeal, we must deter-
mine whether the government proved by a preponderance
of the evidence that the crimes occurred in the district
charged, viewing the evidence in the light most favorable
to the government. See United States v. Ochoa, 229 F.3d
631, 636 (7th Cir. 2000).
A. Waiver
The government argues that Ringer waived his venue
challenge because he did not object until the conclusion of
the government’s case. A claim of improper venue is waived
if the issue is apparent on the face of the indictment and
an objection is not made before the close of the govern-
ment’s case. See United States v. Brandon, 50 F.3d 464, 469
(7th Cir. 1995); United States v. John, 518 F.2d 705, 708
(7th Cir. 1975). However, if the indictment does not pro-
vide notice of a possible defect in venue and the govern-
ment rests without proving that the crimes occurred in
the district charged, the defendant may then file a venue
objection in a motion for acquittal. See Brandon, 50 F.3d
at 469; John, 518 F.2d at 709.
Ringer’s indictment charged that “in the Southern
District of Indiana, and elsewhere,” he “did knowingly
and willfully make a false, fraudulent, and fictitious
material statement and representation . . . in violation of
Title 18, United States Code, Section 1001.” According
to Ringer, the indictment’s open-ended geographic scope
gave no hint of a venue problem and the government’s
failure to present statements made in the Southern Dis-
trict of Indiana was not apparent before the government
put forward its case. Therefore he claims that he was not
4 No. 00-3444
put on notice through the indictment of a possible venue
problem. We agree and find that he did not waive his right
to challenge venue because after the government rested,
he properly objected in his motion for acquittal. See John,
518 F.2d at 709.
B. Improper Venue
Ringer argues that according to the general venue rule,
venue is only proper in the Eastern District of Kentucky
because that is where the false statements were uttered,
and therefore, where they were “begun, continued, or com-
pleted,” in the words of 18 U.S.C. § 3237(a), the venue
statute. See United States v. Cabrales, 524 U.S. 1, 6-7
(1998). He also asserts that the continuing offense theory,
the exception to the general venue rule, does not apply
because the statements were completed in Kentucky. Fi-
nally, Ringer contends that when determining venue, we
should not look to where the offense’s effects were felt. We
disagree.
Ringer was charged with making false statements in
violation of 18 U.S.C. § 1001, which requires proof that he
(1) made a statement; (2) that was false; (3) that was
material; (4) that was made knowingly and willingly; and
(5) that concerned a matter within the jurisdiction of a
federal department or agency. See United States v. Hoover,
175 F.3d 564, 571 (7th Cir. 1999). Section 1001 does not
contain a venue provision; instead the general venue pro-
visions of 18 U.S.C. § 3237(a) are used. See United States
v. Ospina, 798 F.2d 1570, 1577 (11th Cir. 1986). Section
3237(a) states that “any offense against the United States
begun in one district and completed in another, or commit-
ted in more than one district, may be inquired of and
prosecuted in any district in which such offense was begun,
continued, or completed.” 18 U.S.C. § 3237(a).
No. 00-3444 5
In this case, Ringer made false statements while incar-
cerated in a federal prison in Manchester, Kentucky. He
claims that the false statements began, continued, and
were completed in the Eastern District of Kentucky. There-
fore, according to § 3237, venue is only proper in Kentucky,
even though the statements affected proceedings in In-
diana. Ringer further argues that the continuing offense
theory1 does not apply to his situation because the acts
comprising the alleged crime began, continued, and were
completed only in the Eastern District of Kentucky. Al-
though we agree that when Ringer made false statements,
he never left Kentucky, it does not follow that what tran-
spired in Indiana is irrelevant for venue purposes.
The district court relied on United States v. Frederick,
835 F.2d 1211 (7th Cir. 1987), to guide its decision find-
ing that venue was proper in the Southern District of
Indiana. In Frederick, the defendant threatened a witness
in the Southern District of Florida if the witness testified
to certain information at trial in the Northern District
of Illinois. See id. at 1212. We held that venue was proper
in the Northern District of Illinois, i.e. the district where
the affected judicial proceeding was, since “[p]roper venue
is not limited to districts where the defendants were
physically present when they committed unlawful acts.
So long as an overt act . . . is intended to have an effect
in the district where the case is finally brought, venue
is proper.” Id. at 1215. Ringer points out, correctly, that
the witness-tampering statute in Frederick specifically
refers to a judicial proceeding, distinguishing witness-
1
Venue for continuing offenses is proper in any of the districts
where part of the crime was committed. See United States v.
Tingle, 183 F.3d 719, 726 (7th Cir. 1999). The continuing offense
theory only applies to crimes with “distinct parts” or that involve
“a continuously moving act.” Travis v. United States, 364 U.S. 631,
636 (1961).
6 No. 00-3444
tampering cases from the geographically unspecific. 18
U.S.C. § 1001. Despite this lack of specificity, however,
we find venue was proper in the Southern District of
Indiana because events took place there which were crit-
ical to proving the elements of the false statements case
against Ringer.
As described above, one of the elements of an 18 U.S.C.
§ 1001 offense is materiality of the statement. As with
all other elements, materiality must be proven to a jury
beyond reasonable doubt. See United States v. Gaudin, 515
U.S. 506, 522-23 (1995). Ringer admits that his state-
ments may have affected judicial proceedings in Indiana.
However, he argues that the effect on the Indiana investiga-
tion has no bearing on venue because where the harm
occurs is not an element of the crime to be proved.2 That
the government does not have to prove that a proceeding
was affected, however, does not mean that the Indiana
investigation was irrelevant. Proving that the investiga-
tion was reasonably likely to be affected by Ringer’s
statements was the keystone to materiality in this case.
If the investigation continued and indictments were
handed down against Ringer’s friends despite his at-
tempts to frustrate the investigation, Ringer would surely
be here arguing that his statements were not material,
2
If Ringer had decided to welsh on his agreement with the
government via mail, this case would be much more clear-cut,
since it is well-established that false statement prosecutions can
be brought in the district where a letter containing the false
statement is received, see, e.g., Cabrales, 524 U.S. at 9 (citing
cases); Travis v. United States, 364 U.S. 631 (1961); United States
v. Barsanti, 943 F.2d 428, 434 (4th Cir. 1991); United States v.
Candella, 487 F.2d 1223, 1228 (2d Cir. 1974), and to a lesser ex-
tent where a listener is located during a telephone call containing
a false statement. See, e.g., United States v. Stephenson, 895 F.2d
867, 875 (2d Cir. 1990).
No. 00-3444 7
since the government was able to secure the indictments
without his testimony.3
The Southern District of Indiana’s strong link to Ringer’s
conduct makes it relevant to determining venue, not as
an explicit geographic element, as in Frederick, but as a
place where events took place that were necessary to
establish materiality. Venue is only improper “if the only
acts that occurred in that district do not provide evidence
of the elements of the charged crime.” Ochoa, 229 F.3d at
636 (interpreting Cabrales, 524 U.S. at 6-7). Since the
halting of the investigation against Ringer’s friends in
the Southern District of Indiana was evidence of the ma-
teriality of Ringer’s statements, venue was proper in the
Southern District of Indiana.
III. CONCLUSION
For the reasons stated above, the judgment of the dis-
trict court is AFFIRMED.
3
The importance of the Southern District of Indiana in establish-
ing materiality also distinguishes Ringer’s situation from that in
Cabrales, a money laundering case where the transactions were
made in Florida, while the attempted prosecution was conducted
in Missouri, where the funds originated. In Cabrales, the conduct
in Missouri took place before the money laundering began, and
relying on the continuing offense theory, the Supreme Court de-
termined that the offense was not “begun, continued, or com-
pleted,” in the language of 18 U.S.C. § 3237(a). 524 U.S. at 8.
8 No. 00-3444
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-8-02