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UNITED STATES v. REGINA

December 30, 1980

UNITED STATES of America
v.
James Edward REGINA



The opinion of the court was delivered by: NORTHROP

The defendant, James Edward Regina, has been charged in a two-count indictment filed in this Court on November 5, 1980. In Count One, defendant is charged with mailing a threatening communication with the intent to extort money in violation of 18 U.S.C. § 876. Count Two charges defendant with obstruction of justice in violation of 18 U.S.C. § 1503.

With regard to the second count of the indictment, the Government alleges that, between October 3 and 7, 1980, and in exchange for the payment of $ 2,000 by Congressman Robert E. Bauman, defendant offered to testify falsely under oath at any trial in the case pending against Congressman Bauman in the Superior Court of the District of Columbia. Appearing in that court on October 3, 1980, Congressman Bauman was treated as a first offender and was allowed to enter a pretrial diversion program. The Government agreed that, upon completion of the six-month program, a nolle prosequi would be entered on April 3, 1981.

 Presently before the Court is defendant's motion to dismiss count two of the indictment. Defendant's motion is based on two grounds. First, defendant contends that the Superior Court of the District of Columbia is not a "court of the United States" for the purposes of 18 U.S.C. § 1503. Second, defendant argues that, because the Government agreed to enter a nolle prosequi upon the completion of the diversion program the defendant was not a potential witness in the case pending against Congressman Bauman.

 The Court will address defendant's arguments in reverse order.

 Defendant contends that Congressman Bauman's case before the Superior Court of the District of Columbia was not pending when defendant offered to testify falsely, and as a result, defendant was not a prospective witness. The Court is not persuaded by this argument.

 Count Two of the indictment alleges in relevant part that "at all times pertinent to this count of the indictment, there was pending in the Superior Court for the District of Columbia, a criminal case entitled United States v. Robert E. Bauman, Case No. M 10578-80." It is well settled that in ruling on a motion to dismiss an indictment, a court must accept all well-pleaded facts as true. See United States v. South Fla. Asphalt Co., 329 F.2d 860, 865 (5th Cir.), cert. denied, 379 U.S. 880, 85 S. Ct. 149, 13 L. Ed. 2d 87 (1964); United States v. American Oil Co., 286 F. Supp. 742, 746-47 (D.N.J.1968). Whether an action was pending against Congressman Bauman at the time the offer to testify falsely was made is a question of fact. Questions of fact should be resolved at trial, and not on a motion to dismiss. See United States v. Knox, 396 U.S. 77, 83 n.7, 90 S. Ct. 363, 367 n.7, 24 L. Ed. 2d 275 (1969); Universal Milk Bottle Serv., Inc. v. United States, 188 F.2d 959, 962 (6th Cir. 1951). Consequently, defendant's motion to dismiss cannot be granted on this basis.

 As an alternative argument, defendant asserts that Count Two of the indictment must be dismissed because the Superior Court of the District of Columbia is not a "court of the United States" within the meaning of 18 U.S.C. § 1503.

 Pursuant to Article I of the Constitution, Congress passed the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L.No.91-358, 84 Stat. 473 (1970), creating the Superior Court of the District of Columbia and the District of Columbia Court of Appeals. As the Committee on the District of Columbia stated:

 
This title makes clear ... that the District of Columbia Courts (the District of Columbia Court of Appeals and the Superior Court of the District of Columbia) are Article I courts, created pursuant to Art. I, section 8, clause 17 of the United States Constitution, and not Article III courts.

 The question presently before this Court is whether the Superior Court of the District of Columbia, a local court created pursuant to Article I of the Constitution, is a "court of the United States" for the purposes of 18 U.S.C. § 1503. This Court believes that it is not.

 In United States v. George, 625 F.2d 1081 (3d Cir. 1980), the United States Court of Appeals for the Third Circuit addressed an issue very similar to that currently before this Court. In George, the defendant had been convicted under 18 U.S.C. § 1503 for obstructing justice in the District Court of the Virgin Islands. On appeal, the Third Circuit reversed defendant's conviction, holding that the District Court of the Virgin Islands, an Article I court, is not a "court of the United States" within the meaning of 18 U.S.C. § 1503. Id. at 1089.

 The Third Circuit explained that the term "court of the United States" as used in 18 U.S.C. § 1503 does not refer "to the jurisdiction or powers of the court but rather to its nature as an institution, the classification, federal, state or territorial, into which it falls." Id. Concluding that the District Court of the Virgin Islands fell into the territorial rather than the federal classification, the George court held that it was not a "court of the United States."

 In making its determination, the Third Circuit relied on the decision of the District Court of the Territory of Alaska in United States v. Bell, 108 F. Supp. 777 (D.C.Alaska 1952). In Bell, Judge Dimond concluded that the District Court of the Territory of Alaska was not a "court of ...


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