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United States v. Baxter

filed: September 7, 1989.

UNITED STATES OF AMERICA, APPELLEE
v.
ROBERT ALLEN BAXTER, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal Action No. 88-00271-03.

Gibbons, Chief Judge, Hutchinson, Circuit Judge, and Wolin, District Judge.*fn*

Author: Hutchinson

Opinion OF THE COURT HUTCHINSON, Circuit Judge

I.

Robert Allen Baxter (Baxter) appeals his conviction on five counts of receiving an illegal gratuity while a public official in violation of 18 U.S.C.A. § 201(g) (West 1969).*fn1 The case was tried before a jury in the United States District Court for the Eastern District of Pennsylvania. Baxter claims that the district court lacked proper venue to try the charges against him.*fn2 We disagree and will affirm his conviction.

II.

From 1981 through December, 1986, Baxter served as a lieutenant colonel in the United States Army National Guard (Guard). In 1981, he was assigned to the Recruitment and Retention Center, which coordinates recruitment policy for the Guard. Then, in August, 1984, Baxter was promoted to chief of the Recruitment and Retention Center. One month later, Baxter became Contract Officer Representative for the Guard's contracts with the Educational Development Network (EDN).

EDN provided the Guard with educational and employment training materials to help the Guard recruit high school students from throughout the country, and had obtained non-competitive contracts from the Guard worth millions of dollars. Baxter was now in the position to control EDN's future relationship with the Guard, a fact that did not escape the attention of Gerald Kress (Kress), the president and chief executive officer of EDN.

Baxter had an interest separate from the military that was quite dear to him, an interest centered around fast cars. Baxter owns several race cars and admits to having a strong interest in the sport of car racing. In April, 1984, Baxter's family formed and became shareholders of Performance Formula, Inc. (Performance), which conducted Baxter's car racing efforts. Performance was a Virginia corporation with its office at Baxter's home in Reston, Virginia.

Beginning in May, 1984 and continuing through August, 1986, Kress mailed to Baxter's home checks totaling $61,400 payable to Performance. The indictment alleged that in exchange for these payments, Baxter won approval for inflated cost estimates on EDN contracts. The checks were all drawn upon EDN's bank account with the Industrial Valley Bank and Trust Company (IVB) of Jenkintown, Pennsylvania. Baxter deposited these checks into Performance's corporate account at the Sovran Bank (Sovran) in Arlington, Virginia. Each of the five checks that EDN sent to Baxter cleared EDN's account with IVB. Baxter was the only person who had permission to withdraw funds from the Performance account.

III.

The district court had subject matter jurisdiction in this case under 18 U.S.C.A. § 3231 (West 1985). We have appellate jurisdiction over the judgment of conviction and sentence pursuant to 28 U.S.C.A. § 1291 (West Supp. 1989). Since the question of venue at issue here is a matter of law, we exercise plenary review. See United States v. Passodelis, 615 F.2d 975, 978 n. 6 (3d Cir. 1980) ("[the] determination as to whether there was sufficient evidence to support a finding [of proper venue in the district court] is a question of law, not of fact.").

IV.

Proper venue in criminal trials is more than just a procedural requirement; it is a safeguard guaranteed twice in the United States Constitution itself. See United States v. Goldberg, 830 F.2d 459, 465 (3d Cir. 1987); Passodelis, 615 F.2d at 976. Article III, section two, clause three of the Constitution states: "The Trial of all Crimes . . . shall be held in the State where said Crimes shall have been committed. . . ." U.S. Const. art. III, § 2, cl. 3. In addition, the Sixth Amendment requires that "[in] all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of ...


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