United States v. William Clark , 728 F.3d 622 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3603
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
W ILLIAM P ATRICK C LARK ,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 11 CR 30236—G. Patrick Murphy, Judge.
A RGUED A PRIL 5, 2013—D ECIDED JULY 23, 2013
Before E ASTERBROOK, Chief Judge, and F LAUM and
W OOD , Circuit Judges.
W OOD , Circuit Judge. A grand jury sitting in
the Southern District of Illinois returned an indictment
charging William Patrick Clark, the owner and president
of a company based in East St. Louis, Illinois, with
making false statements in violation of 18 U.S.C.
§ 1001(a)(3). Clark’s company had entered into a
hauling services subcontract with Gateway Constructors,
2 No. 12-3603
a general contractor in charge of a federally funded
highway improvement project in nearby St. Louis, Mis-
souri. Federal law requires that employers pay
laborers working on certain federally-funded projects a
“prevailing wage,” a figure calculated by the Secretary of
Labor “based on the wages [earned by] corresponding
classes of [workers] employed on projects of a similar
character” in a given area, and that contractors
maintain payroll records demonstrating prevailing wage
compliance. See 40 U.S.C. § 3142(b); 29 C.F.R. Pts. 1 & 3.
According to the indictment, Clark submitted false
payroll records and a false affidavit to Gateway Con-
structors, representing that his employees were paid
$35 per hour, when in fact they received only $13 or
$14 per hour.
Clark moved to dismiss the indictment for improper
venue, arguing that “when a false document is filed
under a statute that makes the filing of the document a
condition precedent to the exercise of federal jurisdic-
tion, venue is proper only in the district where the docu-
ment was filed for final agency action.” Here, Clark
contends, venue is proper only in the Eastern District
of Missouri, where Gateway Constructors is based. The
government countered that venue is proper in the
Southern District of Illinois, because that is where the
indictment alleged that Clark created the false payroll
records and signed the affidavit. The district court ac-
cepted Clark’s argument and dismissed the indictment
without prejudice. We reverse.
No. 12-3603 3
I
Clark was charged with ten counts of violating 18 U.S.C.
§ 1001(a)(3), which makes it unlawful knowingly and
willfully to “make[] or use[] any false writing or docu-
ment” in connection with a “matter within the jurisdiction
of the executive . . . branch of the Government of the
United States.” Nine of the counts are based on certified
payroll records that Clark submitted to Gateway Construc-
tors; the tenth concerns an affidavit that Clark later
emailed to Gateway Constructors, assuring the con-
tractor that Clark complied with the relevant labor stan-
dards on the project. All of the documents, the indict-
ment alleges, were “made” in St. Clair County, Illinois,
within the Southern District of Illinois. We accept
these factual allegations as true in assessing a pre-trial
motion to dismiss an indictment for improper venue. See
United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012).
Congress has provided that “any offense against the
United States begun in one district and completed in
another, or committed 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). The parties do not dispute that Section 1001
lacks a separate venue provision, or that 18 U.S.C. § 3237applies. See F ED. R. C RIM. P. 18; United States v. Ringer,
300 F.3d 788, 791 (7th Cir. 2002). The sole question here
is whether the ten false-statement offenses outlined in
the indictment were “begun, continued, or completed”
in the Southern District of Illinois.
When Congress has not specifically defined where a
crime should be deemed to have occurred, “the locus
4 No. 12-3603
delicti [of the charged offense] must be determined from
the nature of the crime alleged and the location of the
act or acts constituting it.” United States v. Tingle, 183
F.3d 719, 726 (7th Cir. 1999) (quoting United States v.
Cabrales, 524 U.S. 1, 5 (1998)). This court has endorsed
the “verb test” as a guide for this inquiry: “we examine
the key verbs in the statute defining the criminal offense
to find the scope of relevant conduct.” United States v.
Muhammad, 502 F.3d 646, 652 (7th Cir. 2007) (quoting
United States v. Georgacarakos, 988 F.2d 1289, 1293 (1st
Cir. 1993)). Verbs cannot be “the sole consideration” in
assessing whether the constitutional venue guarantee
has been satisfied, however, and venue may lie in a
particular district even where rigid application of the
“verb test” suggests that it should not. United States v.
Rodriguez-Moreno, 526 U.S. 275, 279 (1999); see also
Ringer, 300 F.3d at 792 (rejecting argument that venue
for false statement prosecution is proper only in district
where false statements were uttered).
The “key verbs” in the false statements statute
under which Clark has been charged are “make” and
“use.” 18 U.S.C. § 1001(a)(3). The indictment alleges
that Clark “made and used” (and “caused to be made
and used”) false writings and documents within the
Southern District of Illinois, and for present purposes,
we accept these allegations as true. While venue
might also be proper in some other district, see
Muhammad, 502 F.3d at 653-54, the “verb test” supports a
finding that conducting Clark’s trial in the Southern
District of Illinois is consistent with Section 3237(a) and
the Constitution. See U.S. C ONST. art. III, § 2, cl. 3 and
amend. VI.
No. 12-3603 5
The district court thought otherwise. It reasoned that,
because no federal offense occurs “until such time as
the general contractor . . . submit[s] those [documents] to
the federal government for payment,” the Southern
District of Illinois was an improper venue. The parties
have not challenged this interpretation of Section 1001.
But see United States v. Petullo, 709 F.2d 1178, 1180 (7th
Cir. 1983) (“A false statement may fall within section 1001
even when it is not submitted to a federal agency
directly and the federal agency’s role is limited to
financial support of a program it does not itself directly
administer. In such cases, the necessary link . . . is provided
by the federal agency’s retention of the ultimate
authority to see that the federal funds are properly
spent.”). Even if the completion of a Section 1001(a)(3)
offense requires the submission of false documents to
federal authorities, however, it does not follow that the
making of the false documents cannot constitute the
beginning of the offense. Indeed, 18 U.S.C. § 3237(a) is
predicated on the assumption that, for certain offenses,
the district in which an offense is “begun” will not be
the district in which is it “continued” or “completed.”
18 U.S.C. § 3237(a). Clark cites numerous cases sup-
porting his argument that venue lies “in the jurisdiction
affected by the offense,” even if the false statements
were not made there. See, e.g., Ringer, 300 F.3d at 791-92.
That may be so, but the fact that venue is proper in
another district is neither here nor there: Clark’s
authorities do not stand for the proposition that venue
can exist in one and only one place. That mistaken as-
sumption—that the Constitution “fix[es] a single
6 No. 12-3603
proper situs for trial”—is an “[a]nalytical flaw [that] has
plagued analysis in this area.” Muhammad, 502 F.3d at 653(quoting United States v. Reed, 773 F.2d 477, 480 (2d Cir.
1985)). Perhaps we can put it to rest with this decision.
The only contrary authority that Clark has identified
is Travis v. United States, in which the Supreme Court
held that venue lay only in the District of Columbia for
an indictment charging a labor union official with
making and filing false non-Communist affidavits with
the National Labor Relations Board. 364 U.S. 631 (1961). In
a false statements case shortly after Travis, however, this
court followed the lead of the Tenth Circuit and held
that “Travis is not controlling and is limited to the
statute there involved.” United States v. Ruehrup, 333
F.2d 641, 643 (7th Cir. 1964) (citing Imperial Meat Co. v.
United States, 316 F.2d 435, 440 (10th Cir. 1963)). Travis,
however, does not support Clark’s argument. After
careful consideration of the statute involved, the Court
determined that “[t]he locus of the offense ha[d] been
carefully specified” by Congress, and accordingly, that
18 U.S.C. § 3237(a) was not applicable. Id. at 639. Here,
in contrast, the parties agree that 18 U.S.C. § 3237(a)
provides the appropriate venue rule. See Ringer, 300
F.3d at 790-91.
Prosecution in the Southern District of Illinois also is
consistent with the important policy considerations
animating the venue requirement. See United States v.
Johnson, 323 U.S. 273, 276 (1944) (“Questions of venue in
criminal cases . . . raise deep issues of public policy in
the light of which legislation must be construed.”). Clark
No. 12-3603 7
has not argued that trial in the Southern District of
Illinois will subject him to “oppressive expenses, or . . . to
the inability of procuring proper witnesses to establish
his innocence.” United States v. Palma-Ruedas, 121 F.3d
841, 861-62 (3d Cir. 1997) (Alito, J., dissenting) (quoting
JOSEPH S TORY, C OMMENTARIES ON THE C ONSTITUTION § 925
(Carolina Acad. Press 1987) (1833)). Nor has he
suggested that it will create “needless hardship” or the
“appearance of abuses . . . in the selection of what
may be deemed a tribunal favorable to the prosecution.”
Johnson, 323 U.S. at 275. Although the effects of
Clark’s alleged wrongdoing may be felt somewhat
more strongly in Missouri than in Illinois, we reject
the argument that the Southern District of Illinois is
an improper venue to try this case.
II
Nothing that we have said should be taken as a sug-
gestion that “actions [that] are merely preparatory or
prior to the crime . . . are [] probative in determining
venue.” Tingle, 183 F.3d at 726. They are not. In this case,
though, one can hardly characterize the making of a
false writing or document as “merely preparatory”
conduct when the offenses charged are “making a
false writing or document.” Rather, Clark committed in
Illinois the very wrong that the statute proscribes. The
“making” is an essential element that the government
must prove beyond a reasonable doubt to secure a con-
viction. Accord Ruehrup, 333 F.2d at 643 (“Defendant
prepared rough drafts of the statements in issue
8 No. 12-3603
[in Illinois]. A stenographer typed the statements and
submitted them to defendant for approval. The stenogra-
pher deposited the statements in the mail. These events
were the beginning of the offenses charged . . . .”).
Accordingly, we R EVERSE and R EMAND for further
proceedings.
7-23-13