United States v. Timothy Cofield , 11 F.3d 413 ( 1994 )

OPINION

SPROUSE, Senior Circuit Judge:

Timothy Cofield appeals his conviction for aiding and abetting the retaliation against a witness and retaliation against a witness in violation of 18 U.S.C. §§ 2 and 1513(a)(1). The primary issue on appeal concerns the proper venue under 18 U.S.C. § 1513, enacted under the Victim and Witness Protection Act of 1982. The district court held that venue was proper in the Eastern District of Virginia, the place of the underlying judicial proceeding. We agree. Likewise, we find no error in the district court’s denial of Co-field’s motion to sever nor in its denial of his motion for acquittal based on his contention of insufficient evidence, and affirm.

I

A federal jury in the Eastern District of Virginia convicted Timothy Cofield for aiding and abetting the retaliation against a witness and retaliating against a witness in violation of 18 U.S.C. §§ 2 and 1513(a)(1). Although the participants in the fight that led to Co-field’s conviction have different versions of his motivation, there is no question the brawl occurred in the District of Columbia.

Sheila Wormley was the main prosecution witness in the case of United States v. Kenny, Crim. No. 91-347 (E.D.Va.1991). At Reverend Kenny’s trial, Wormley testified that Kenny attempted to induce her to present false testimony to the grand jury.¹ Before she testified, Wormley had worked at Reverend Kenny’s thrift store. During Reverend Kenny’s trial, however, the judge issued a restraining order barring Wormley from the thrift shop and its surrounding areas. The district court in the Eastern District of Virginia convicted Reverend Kenny for obstruction of justice in violation of 18 U.S.C. § 1508, Kenny, Crim. No. 91-347 (E.D.Va.1991), and we affirmed, United States v. Kenny, 973 F.2d 339, 345 (4th Cir.1992).

In the early afternoon on February 19, 1992, a little over a month after Reverend Kenny’s conviction, Wormley left her volunteer tutoring position at Martha’s Table in northwest Washington, D.C. with her two children and a Mend’s child. She walked down the street to ask a Mend, Murphy Williams (a.k.a. Mr. Bill), for a ride home. She found Mr. Bill standing in front of Reverend Kenny’s thrift store.

While Wormley was talking with Mr. Bill, Cofield and his girlMend Deborah Kenny, along with a Mend, Duane Wedge, drove up to the front of the thrift store and exited their car. At that time, Cofield and Deborah Kenny, the daughter of Reverend Kenny, had been involved in a two-year relationship. Deborah Kenny walked from the car toward Wormley and Mr. Bill. The parties dispute who initiated the ensuing argument. According to Wormley’s testimony at trial, Deborah Kenny interrupted their conversation and said to Mr. Bill, “You can talk to that bitch somewhere else after what she did to my father.” Deborah Kenny, however, testified that she stated to Mr. Bill, ‘Would you please move from my store, get the people from out [sic] front of my store.” Under both versions, Wormley responded by swearing at Deborah Kenny, and Deborah Kenny cursed back. After the two had argued for about five minutes, Deborah Kenny drew back to hit Wormley. Wormley preempted the strike and hit Deborah Kenny. Around this time, Cofield got involved in the brawl. Cofield hit Wormley, knocked her to the ground, dragged her against a tree, and kicked her. During the fight, Cofield kept saying “this is my wife,” referring to Deborah Kenny. Wormley, at some time during the conflict, pulled out a can of mace and sprayed Deborah Kenny.

Jacob Kisther, an off-duty District of Columbia police officer, observed Cofield beating Wormley and intervened. Although Kisther did not see the beginning of the confrontation, after the fight, he overheard Deborah Kenny state: “This was all in reference to the case you testified in before against Pops.” When Deborah Kenny made this statement, Cofield was in the back of Kisther’s vehicle, beyond hearing range. Following the confrontation, an ambulance transported Wormley to Howard University Hospital where she was treated for minor injuries. There is no indication from the record that Deborah Kenny or Cofield were injured.

On April 19, 1992, a federal grand jury indicted Timothy Cofield and Deborah Kenny in the Eastern District of Virginia for conspiracy in violation of 18 U.S.C. § 371; aiding and abetting the obstruction of justice and obstruction of justice in violation of 18 U.S.C. §§ 2 and 1503; aiding and abetting the retaliation of a witness and retaliation of a witness in violation of 18 U.S.C. §§ 2 and 1513(a)(1); and aiding and abetting tampering with a witness and tampering with a witness in violation of 18 U.S.C. §§ 2 and 1512(b)(1). Approximately two months later, on the government’s motion, the district court dismissed the conspiracy count. On July 1, 1992, Cofield and Kenny were tried jointly.

Prior to trial, Cofield filed several motions, including a motion to sever his trial from Deborah Kenny’s and a motion to transfer venue to the District of Columbia. On June 19, 1992, the court denied both motions. At the conclusion of the government’s evidence, Cofield moved for a judgment of acquittal, which the district court denied. The jury found him guilty of aiding and abetting the retaliation against a witness and retaliating against a witness in violation of 18 U.S.C. §§ 2 and 1513(a)(1), but found him not guilty on all other counts. On September 11, 1992, the district court sentenced him to seventy months’ imprisonment followed by a two-year supervised release term and imposed a $50 special assessment. Cofield appeals his conviction, challenging the court’s denial of his motions to transfer venue, for severance, and for judgment of acquittal.

II. VENUE

Article III, Section 2 of United States Constitution guarantees a defendant a trial in the state where the crimes were committed. U.S. Const, art. Ill, § 2, cl. 3. The Sixth Amendment commands that all criminal defendants have a right to a trial in “the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI; see Travis v. United States, 364 U.S. 631, 633, 81 S.Ct. 358, 360, 5 L.Ed.2d 340 (1961). Federal Rule of Criminal Procedure 18, implementing these constitutional requirements, provides that “except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed.” Fed.R.Crim.P. 18; see United States v. Kibler, 667 F.2d 452, 454 (4th Cir.), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982).

In many criminal statutes, Congress eliminates the problem of determining where “the offense [is] committed” by appending a venue provision. However, “where Congress is not explicit, ‘the locus delicti must be determined from the nature of the crime alleged and the location of the acts or acts constituting it.’ ” Travis, 364 U.S. at 635, 81 S.Ct. at 361 (quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946)).

Cofield was convicted under 18 U.S.C. § 1513(a)(1), which has no venue provision. Section 1513 provides in part:

(a) Whoever knowingly engages in any conduct and thereby causes bodily injury to another person or damages the tangible property of another person, or threatens to do so, with intent to retaliate against any person for—

(1) the attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other object produced by a witness in an official proceeding.

Cofield argues that this language directs venue to the District of Columbia, where the alleged assault occurred, and that the district court erred in denying his motion to transfer venue there. To support this proposition, he relies heavily on United States v. Kibler, 667 F.2d 452, 454 (4th Cir.1982). In Kibler, we were faced with the task of ascertaining the proper venue under 18 U.S.C. § 1503, another obstruction of justice statute. There, we looked to the verbs defining the proscribed act for direction in resolving the venue issue.² Employing this same analysis, Cofield points out correctly that the verbs in § 1513, the statute under which he was convicted, are “engages,” “causes” (bodily injury), “damages,” and “threatens” and argues that all of those verbs describe conduct that occurred in the District of Columbia.

The government, however, contends principally that § 1513 is part of the federal criminal law relating to obstruction of justice, that these statutes are derived from a common source: laws providing punishment for contempt of court. The purpose of these statutes, the government insists, is to protect the judicial process from hostile or corrupt actions. From this analysis, it concludes that since the judicial integrity of the district court in the Eastern District of Virginia was offended by Cofield’s conduct, venue was proper in that district.

Cofield’s argument that we have adopted the “verb test” as an interpretative aid is certainly correct. So, too, is the government’s argument that in determining venue we have looked at the purpose of the statute as evidenced by its legislative history. In Kibler, we applied the “verb test” to § 1503 and reached a contrary result as to the venue location than that advocated by Cofield, i.e., we held that the locus of the crime under § 1503 was in the district where the judicial proceedings that the accused sought to affect was pending. Id, at 454. The Kibler holding, however, does not diminish the force of Cofield’s argument that the verbs used in § 1513 direct venue to the district where the retaliatory acts occurred. In addition to finding guidance from the statutory verbs, however, Kibler relied on the legislative history of § 1503 to conclude that venue reposed in the district of the protected court. Kibler, 667 F.2d at 454-55.

We are not only bound by the dual approach used in Kibler, but its logic is unassailable. See United States v. Tedesco, 635 F.2d 902, 905 (1st Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981). We have, in fact, indicated that a multiple approach under some circumstances may be proper. See United States v. Billups, 692 F.2d 320, 332 (4th Cir.1982), cert. denied, 464 U.S. 820, 104 S.Ct. 84, 78 L.Ed.2d 93 (1983). In Billups, we recognized that it was not always possible by the use of one analytical tool to discern the location of where a crime has been committed. Id. We noted that examination of verbs employed in the statute is not an exclusive method and “there are crimes where the situs is not so simple of definition.” Id. Similarly, in United States v. Reed, 773 F.2d 477, 481 (2d Cir.1985), Judge Winter wrote that in evaluating the appropriate venue for crimes:

[A] review of relevant authorities demonstrates that there is no single defined policy or mechanical test to determine constitutional venue. Rather, the test is best described as a substantial contacts rule that takes into account a number of factors—the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding.

See also United States v. Chestnut, 533 F.2d 40, 46-48 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Bithoney, 472 F.2d 16, 23-24 (2d Cir.), cert. denied, 412 U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397 (1973). Thus, although the “verb test” as an interpretative tool enjoys both the support of precedent from this circuit and the force of logic, its use to the exclusion of other interpretative guides would violate the overriding principle of United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946), that we must consider “the nature of the crime alleged and the location of the act or acts constituting it.”

The inherent difficulty of making the venue determination in the § 1513 inquiry that we now undertake is exacerbated because the two interpretative tools on which Kibler relied point us in opposite directions. Examining the verbs of the statutes would result in finding venue in the District of Columbia. “Engages,” “causes,” “damages,” or “threatens,” to the extent that they occurred, happened there. On the other hand, we are firmly persuaded by the legislative evolution of § 1513 that the congressional purpose in enacting the statute was to protect the integrity of the judicial system, here represented by the district court of the Eastern District of Virginia.

In Kibler, we acknowledged the legislative history of § 1503 recounted in other judicial opinions.³ Kibler, 667 F.2d at 454-55. We noted that its legislative history “supports the conclusion that venue for a prosecution charging a violation of § 1503 lies in the district where the judicial proceeding that the accused sought to affect is pending.” Id. Briefly stated, the legislative history of § 1503 began with the Act of March 2, 1831, 4 Stat. 487,⁴ passed by Congress to curb the power of federal courts to summarily punish for contempt of court.⁵ Section 1 of the Act provided for summary punishment for circumscribed acts of contempt committed in the presence of the court. Section 2 provided for punishment for offenses committed out of the presence of the court. Section 1 evolved into the present 18 U.S.C. § 401 “Power of Courts.” Section 2 evolved into 18 U.S.C. § 1508. See United States v. Essex, 407 F.2d 214, 217 (6th Cir.1969); infra note 7.

In response to widespread witness intimidation and retaliation, Congress further expanded the protections available to witnesses and others in the federal judicial system by enacting the Victim and Witness Protection Act of 1982. See 128 Cong.Rec. S7424 (1982) (statement of Sen. Heinz). This Act amended § 1503 and added §§ 1512 and 1513.⁶ Victim Witness Protection Act of 1982, Pub.L. No. 97-291, 96 Stat. 1248. Prior to that time, the provisions relating both to intimidation of witnesses and retaliation against witnesses were contained in § 1503.⁷ In 1988, Congress amended § 1512 by adding subsection (h) as a venue provision for §§ 1503 and 1512. Section 1512(h) states that

[a] prosecution under this section or section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred.

Section 1512(h) thus provides specific alternative venues for §§ 1503 and 1512 but is silent as to § 1513.⁸

In our view, the crimes described in §§ 1503, 1512, and 1513 are of the same genre. Their purpose is to protect the judicial process and the participants in the process. We held in Kibler that the legislative history supports the conclusion that venue under § 1503 “lies in the district where the judicial proceeding that the accused sought to affect is pending.” Kibler, 667 F.2d at 455. When we decided Kibler, § 1503 proscribed not only witness intimidation but conduct amounting to retaliation against a witness. See supra note 7. We are of the view that the same legislative history that conclusively supported our venue finding relating to the pre-1982 § 1503 in Kibler applies with the same force to § 1513.

Contempt of court statutes, of course, exist to protect the integrity of the judicial process in the courts where the contemptuous conduct occurred. Obstruction of justice statutes track this same judicial purpose and policy. We thus discern no principled reason for applying these historical directions differently to discrete obstruction of justice statutes. Beyond the broad purpose of maintaining the integrity of the judicial process, the Victim and Witness Protection Act of 1982 sought to give greater protection to victims and witnesses—all active participants in the judicial process. See 128 Cong.Rec. 23399-400 (daily ed. Sept. 30, 1982) (statement of Rep. Hawkins). It may be that an act of retaliation is committed in a place and time distant from the judicial proceeding where the testimony was given. In that event, judicial resources where the act of retaliation took place might be more efficient to deter such conduct. In contrast, a retaliation could occur while a trial is still in progress, shortly after the trial, or while the court has a continuing involvement with the matters involved at trial. In any event, we are persuaded that historical concerns for the protection of judicial processes confluent with the principal purpose of the 1982 Act—protecting victims and witnesses, require a holding that the locus delicti of the crime of retaliating against a witness may be in the district where the judicial proceeding occurred and that venue in that location is proper.

Our conclusion by no means excludes the possibility that venue may also be proper in the District of Columbia where the retaliatory acts occurred. The Constitution does not limit venue for a crime to one exclusive district—it requires only that venue be determined from the nature of the crime and the location of the acts constituting it. See United States v. Reed, 773 F.2d 477, 480 (2d Cir.1985). However, we are not faced with the issue of alternative venue so leave that question for another day.

III. SUFFICIENCY OF THE EVIDENCE AND MOTION FOR SEVERANCE

Cofield’s two remaining contentions require little discussion. Cofield argues that there was insufficient evidence of his “intent to retaliate” against Wormley for her testimony against Reverend Kenny. We disagree. The jury’s verdict, of course, must be upheld if “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). The elements of an offense under 18 U.S.C. § 1513 are (1) knowing engagement in conduct (2) either causing, or threatening to cause, bodily injury to another person (3) with the intent to retaliate for, inter alia, the attendance or testimony of a witness at an official proceeding. Kenny made clear that her actions against Wormley were motivated by what the latter “did” to Reverend Kenny. Cofield was close by—close enough to enter the fray as soon as it began. The jury could well infer that he heard Kenny’s remarks and his act of taking charge of her cause was evidence of his sharing her motivation.

As to Cofield’s next argument that he should have been tried separately from. Kenny, absent compelling reasons, persons indicted together should be tried together. United States v. Clark, 928 F.2d 639, 644 (4th Cir.1991). Whether to grant a severance under Rule 14 of the Federal Rules of Criminal Procedure is a matter within the discretion of the district court, and the denial of such a motion will be overturned only in the case of a clear abuse of discretion. United States v. Odom, 888 F.2d 1014, 1017 (4th Cir.1989), cert. denied, 498 U.S. 810, 111 S.Ct. 44, 112 L.Ed.2d 21 (1990). To prevail on appeal, a defendant “must overcome the burden imposed by a stringent standard of review.” United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir.1977). The trial in this case was short, the evidence was not complex, and the chronological nature of the evidence made it relatively simple for the jury to follow the evidence. There was no indication that it was confused or could have confused evidence presented against Kenny as evidence against Cofield.

In view of the above, the judgment of the district court is affirmed.

AFFIRMED.

1 . Reverend Kenny told Wormley he would pay her $175 to make a false representation to the grand jury regarding his acceptance of two traveler's checks that were stolen from an FBI agent. Kenny, 973 F.2d 339 at 340-41.

2 . The Kibler panel was faced with locating venue under 18 U.S.C. § 1503, then a comprehensive obstruction of justice section. It found that "an analysis of the verbs defining the offense [under § 1503] establishes that the situs of the crime is the place of the judicial proceeding that the accused sought to thwart.” Kibler, 667 F.2d at 454. Kibler went on to consider the legislative history of § 1503 and found that it supported the same conclusion. Id. at 454-55.

3 . See United States v. Tedesco, 635 F.2d 902, 905-06 (1st Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981); United States v. O’Donnell, 510 F.2d 1190, 1192-93 (6th Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975); see also United States v. Essex, 407 F.2d 214, 217 n. 6 (6th Cir.1969).

4 . Section 1 of the 1831 Act provided

[t]hat the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehaviour of any person or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice, the misbehaviour of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree or command of the said courts.

Section 2 provided

[t]hat if any person or persons shall, corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct, or impede, or en-deavour to obstruct or impede, the due administration of justice therein, every person or persons, so offending shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished, by fine not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offence.

5 . Judge Peck's nineteenth century impeachment controversy led to the enactment of the 1831 Act. That political and judicial drama has been widely discussed by both students and scholars so a full discussion is not warranted. A very brief summary, however, lends some understanding to our inquiry. Luke Lawless represented many land speculators who had purchased questionable land titles in the Missouri territory basing their tide claims on mostly bogus grants from Spanish authorities. Judge Peck ruled against him in 1825. After Judge Peck’s opinion was published, Lawless published a "Concise Statement of Some of the Principal Errors” in which he mocked and expounded upon Judge Peck's errors. After a bench trial, Judge Peck found Lawless guilty of contempt and sentenced him to one day imprisonment and suspended him from practice for eighteen months. As a result of Peck's action, Lawless presented to his friends in Congress a petition seeking Judge Peck's impeachment. Eventually, the House voted 123-49 to present Articles of Impeachment against him. In the Senate, Judge Peck was acquitted by a vote of 22 to 21. Walter Nelles & Carol W. King, Contempt by Publication in the United States, 28 Colum.L.Rev. 401, 426-30 (1928).

Within twenty-four hours of the acquittal the House had instructed its Judiciaiy Committee to inquire into the expediency of defining, by statute, all offences which may be punishable as contempts of the courts of the United States. Nine days later Buchanan reported such a bill. It passed the House on February 28th. It passed the Senate with an amendment on March 2nd; on the same day the House amended the Senate amendment, the Senate concurred, and the law was approved by the President

Id. at 430 (quotations omitted). The resulting 1831 Act, of course, recognized the historical authority of courts to punish for contempt but closely limited summary punishment and subjected "constructive” contempt to a full panoply of protections. See supra note 4.

6 . The Act added, among other provisions, 18 U.S.C. § 1514, which authorized federal courts to issue orders protecting witnesses from harassment, and 18 U.S.C. § 1515, which is a definitional section. Victim Witness Protection Act of 1982, Pub.L. No. 97-291, 96 Stat. 1248.

7 . Before the 1982 amendment, § 1503 provided punishment for

[wjhoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States ... or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified in any matter pending therein, ... or impedes or endeavors to influence, obstruct, or impede, the due administration of justice.

18 U.S.C. § 1503, amended by 18 U.S.C. § 1503 (1982) (emphasis added).

8 . We are not impressed with Cofield’s argument that by not including a reference to § 1513 in the 1988 amendment, Congress intended that the locus of the crime should be only in the district where the retaliatory actions took place. The countervailing argument is that if Congress intended to legislate a venue provision for § 1513, it could have easily added conclusive language in § 1512 or delineating language in § 1513.