Petition for Writ of Certiorari — Louwsma v. United States

92-901 | rir>

NOV 25 1992

No.

Dobie Yi

3n The

Supreme Court of the Anited States

October Term, 1992

WILLIAM JAY LOUWSMA,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to

the Eleventh Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

STEPHEN K. JOHNSON

Attorney at Law

P.O. Box 5279

Gainesville, Florida 32602

(904) 376-3297

Counsel of Record

EMMETT M. DONNELLY

Attomey at Law

400 Southgate Office Plaza

5001 West 80th Street

Bloomington, Minnesota 55437

(612) 835-6300

1992-E XECUTEAM / LAW DIV., 2595 N. Hamline Ave., St. Paul, MN 55113 » 612/633-1443 » 800/747-8793

QUESTIONS PRESENTED

Does 28 U.S.C. Sec. 89 in

conjunction with 18 U.S.C. Sec. 3240

permit the Middle District of Florida to

prosecute an offense which was committed

in Collier County, Florida, at a time

when that county was part of the Southern

District of Florida?

Does the "previously ascertained by

law" clause of the Sixth Amendment of the

United States Constitution require a

federal judicial redistricting scheme to

prosecute offenses in the district where

the offense was committed rather than a

new district as drawn after the offense?

PARTIES

The United States of America was

represented by Russell C. Stoddard,

Assistant United States Attorney for the

Middle District of Florida, in the

district and circuit court proceedings.

Mr. William Jay Louwsma, the

Petitioner, was represented by Stephen K.

Johnson, Esq., Gainesville, Florida, in

the district and circuit court

proceedings.

ii

TABLE OF CONTENTS

Questions Presented................. i

POUCHOR s C4 eN eek hens ene bienestacewece bh

Table of Contents....scccccsccccecee sii

Table of Authorities.........ccceeee V

POLPRMORG cc eb onc edevededetetscticiocsa 2

CPSREONS BOLO os cccnccedacsvcsccinn 2

Statement of Jurisdictional

NA & 68 oda Oe eae ee b¥.o 4G eee iR 2

Constitutional Provisions........... 3

Statement of the MOMctsceeeciesssere 3

Reasons for Granting the Writ

I. The Eleventh Circuit Court of Appeal

has decided an important question of

federal constitutional law which has

not been, but needs to be, decided

by this Court to define the

parameters of the previously

ascertained by law clause of the

Sixth Amendment to the United States

Constitution.

ett ie ee ee eee ee oe ee ee ee a 9

iii

I. The Eleventh Circuit Court of

Appeals has decided an important

question of federal statutory law in

a manner which conflicts with

longstanding precedent and which has

not been, but should be decided by

this Court.

eeeese#ees#ssetesge#2eefe#eee#eee#ee#ee#ee#eee#ee#e#ee#e#«¢ 15

COonCLOSGLORs «ccs (ti beeneunes* re es

APPENDIX INDEX

Appendix A: Opinion of the Eleventh

Circuit

Appendix B: Opinion of the Middle

District

Appendix C: Statutory provisions

iv

TABLE OF AUTHORITIES

Briggs v. White, 32 F.2d 108

[OEM Ciks APSF) occ ccess bocrnesouues 19

Hayes v. United States, 407 F.2d 189

[wee Gees BOD «wen 060 eb eceebaceces 18

Lewis v. United States, 279 U.S. 63,

49 S.Ct. 257, 73 L.Ed. 615 (1929)

e*eee#eee#ee#es eeeeoereeeeseenseeenepteeeneeee he 18

Mizzell v. Beard, 25 F.2d 324

(N.D.Okla. 1928)

cocccccccccceeee 12, 13, 18, 23, 24

Mizzell_ v. Vickery, 36 F.2d 327

Bi Boe ER Ly | Pe ae 18

Radzanower v. Touche Ross and Company,

426 U.S. 148, 48 L.Ed.2d 540, 96

BeSsy LFGe CEPTS) ccceccvsecces cose 20

St. Martin Evangelical Lutheran Church

v. South Dakota, 451 U.S. 772, 101

S.Ct. 2142, 68 L.Ed.2d 612 (1981)

eeeeteeeeeeeeeeeeeeeeeeeeeee 23

United States v. Hackett, 29 F. 848

(Cir.Ct.N.D.Cal. 1887)

bbeCecedesecenas Ady 13, 19, 24, 25

Westover v. United States, 394 F.2d 164

(9th Cir. 1968). .cccccecse ae 19

Williams v. Florida, 399 U.S. 78, 90

S.Ct. 1983, 26 L.Ed.2d 446 (1970)

Terre ree eT Cee Te TT eee 11

Zicarelli v. Dietz, 633 F.2d 312,

(3rd Cir. 1980), cert. denied,

449 U.S. 1083, 101 S.Ct. 868,

66 L.Ed.2d 807 (1981)

TUTTO CETTE L CTRL TCT Ee 32, 24

Constitutional Provisions, Statutes and

Rules

Sixth Amendment, U.S. Constitution

18 U.S.C. Section 3240 (1992)

ee cccce oa, 6, &, 15, 16, 17, 18,

19, 20, 22

28 U.S.C. Section 89 (1992)

rere coe Sy Gy SB, B38, 16, 39,

mG, a2, 25

28 U.S.C. Section 1257(a) (1992)..... 2

Judicial Code Section 59 (1911)

(36 Stat. Tee LIDS) conccvenveccsine 17

Judicial Improvements and Access to

Justice Act, Pub. L. No. 100-702,

Tit. ZX, Sec. 1021,. 102 Stat. 4642,

4672 (1969) .cccccccecsseveves 5, 6, 20

Sup.Ct.Rule 13 (1991) .ccccccccccccses 2

vi

Other Authority

H.R. 4452, 100th Cong., 2d Sess.

Be OS ERETCLEEL ITC ET TEST CTE OTT ee 21

Report of the Special Joint Committee

on Revision and Codification of

Laws of the United States,

S.Rep.No. 388, 61st Cong.

wes 2 CEPA) 6 66 4 000666 00600 be 22

S. 2340, 100th Cong., 2d Sess.

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

WILLIAM JAY LOUWSMA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

William Jay Louwsma respectfully

petitions for a writ of certiorari to

review the Judgment of the United States

Court of Appeals for the Eleventh Circuit

entered in this proceeding on September

2, 1992.

OPINIONS BELOW

The opinion of the Eleventh Circuit

Court of Appeals, reproduced and attached

as Appendix A, is reported at 970 F.2d

797 (llth Cir. 1992). The opinion of the

United States District Court for the

Middle District of Florida, reproduced

and attached as Appendix B, is

unreported.

STATEMENT OF JURISDICTIONAL GROUNDS

The opinion of the United States

Court of Appeals for the Eleventh Circuit

was entered on September 2, 1992. This

petition for writ of certiorari was filed

within ninety days of the Eleventh

Circuit’s decision. See Sup.Ct.R. 13

(1991). The jurisdiction of this Court

is invoked under Title 28 U.S.C. Sec.

1254 (1992).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United

States Constitution provides:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed; which district

shall have been previously

ascertained by law, and to be

informed of the nature and cause of

the accusation; to be confronted

with the witnesses against him; to

have compulsory process for

obtaining witnesses in his favor,

and to have the assistance of

counsel for his defence.

STATEMENT OF THE CASE

On August 2, 1990, the Government

filed a Second Superseding Indictment

charging the Petitioner and approximately

28 others with various narcotics offenses

in violation of Title 21, United States

Code. The Government alleged that the

offenses were perpetrated in the Middle

District of Florida and elsewhere no

later than April 1986 (R-1-44-5').

The issue presented is whether the

Middle District, rather than the Southern

District, had jurisdiction to try the

alleged offenses. According to the

Government, the offenses were allegedly

committed in Collier County, Florida in

an area known as "Dupont" on Chokoloskee

Island near Everglades City, Florida (R-

1-208-2). Petitioner and the other

defendants were allegedly responsible for

transporting marijuana through Collier

County and across the Florida Peninsula

to be distributed to other members of the

conspiracy in Fort Lauderdale, Florida

(R-1-208-2). No evidence was ever

; "R" refers to a citation from

the Record on Appeal.

4

|

alleged or produced which would indicate

that an overt act was committed in any

part of the Middle District of Florida

other than Collier County.

Petitioner sought to dismiss the

prosecution in the Middle District citing

violations of Title 18 U.S.C. Sec. 3240

and the Sixth Amendment of the United

States Constitution (R-1-204-1). The

offenses were allegedly perpetrated in

Collier County, Florida at a time when

Collier County was within the

jurisdiction of the Southern District of

Florida rather than the Middle District

of Florida (R-1-204-2-3). Effective

February 18, 1989, the United States

Congress changed the composition of the

Southern and Middle Districts of Florida

by amending Title 28 U.S.C. Section 89 in

Public Law 100-702 to transfer Collier,

Glades and Hendry Counties from the old

Southern District to the new Middle

District. See Judicial Improvements and

Access to Justice Act, Pub. L. No. 100-

702, Tit. X, Sec. 1021, 102 Stat. 4642,

4672 (1989). Petitioner’s alleged

offense occurred prior to this

redistricting.

Petitioner contends that the Middle

District lacked jurisdiction to try the

offense charged in this case because 18

U.S.C. Sec. 3240 provides that

prosecutions for crimes occurring before

the effective date of a change in

judicial districts should be commenced as

if the change had not taken place. In

opposition, the Government argued that

the amendments to 28 U.S.C. Section 89

clearly expressed the intent of Congress

to require the redistricting plan to

apply to all actions commenced after the

effective date regardless of when the

crime was committed (R-1-208-7).

Petitioner also contended that the

"previously ascertained by law" clause of

the Sixth Amendment prohibited Petitioner

from being prosecuted in any district

other than the one where the crime was

committed.

The trial court denied Petitioner’s

Motion to Dismiss. See Appendix B.

Petitioner then pleaded guilty to one

count, reserving the right to appeal.

District Judge Gagliardi released

Petitioner on bond pending appeal. After

ordering Oral Argument sua sponte, the

Eleventh Circuit Court of Appeals

affirmed the trial court’s action ina

written opinion which addressed the

statutory and Sixth Amendment issues.

See Appendix A. The Eleventh Circuit

essentially held that the amendments to

28 U.S.C. Sec. 89 impliedly repealed 18

U.S.C. Sec. 3240 with respect to the

Florida redistricting. In addressing the

Sixth Amendment, the Court of Appeals

found that proceeding in the Middle

District more fully protected

Petitioner’s right to trial by jury

because the county in which his crime was

committed was in the newly constituted

Middle District. ee Appendix A.

REASONS FOR GRANTING THE WRIT

I. THE ELEVENTH CIRCUIT COURT OF

APPEALS HAS DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH HAS

NOT BEEN, BUT NEEDS TO BE, DECIDED

BY THIS COURT TO DEFINE THE

PARAMETERS OF THE AS PREVIOUSLY

ASCERTAINED BY LAW CLAUSE OF THE

SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

The Eleventh Circuit Court of

Appeals misinterpreted the "as previously

ascertained by law" clause of the Sixth

Amendment to the United States

Constitution in this case by permitting

the Petitioner to be prosecuted in a

district where the offense did not occur.

ee Appendix A-5-7. As the population

grows and shifts throughout the United

States, Congress and the Federal Courts

will have a continuing concern for

efficient allocation of judicial

resources. Inevitably, redistricting

efforts will be forced to confront both

constitutional and statutory

restrictions. Certiorari review is

necessary in this case to clarify at

least the Constitutional guidelines for

federal redistricting and to prevent

future jurisdictional conflicts and

litigation.

The Eleventh Circuit held that

Petitioner’s Sixth Amendment rights were

not violated by allowing the instant case

to be prosecuted in the Middle District

of Florida even though the situs of the

_ prosecution would have been the Southern

District of Florida at the time the

offense was committed. The appellate

court reasoned that the Petitioner’s

right to trial by a jury from his

community was more fully protected in the

Middle District because the jury pool

10

would have been drawn more heavily from

southwest Florida rather than southeast

Florida.? See Appendix A-7. However,

Petitioner contends that a plain reading

of the "as previously ascertained" clause

prohibits Congress or the Federal Courts

from changing the situs of the

prosecution after the offense has already

been committed.

This Court has yet to rule on the

meaning of the "as previously

ascertained" clause. Indeed, the

. The Eleventh Circuit traced the

history of the Sixth Amendment

to James Madison’s proposal that

the Sixth Amendment guarantee a

right to trial by jury of the

"“vicinage," which meant a jury

of the neighborhood. The

framers rejected "“vicinage" as

too vague and opted for

"district" which provided both

flexibility and certainty. See

Williams v. Florida, 399 U.S.

78, 94, 90 S.Ct. 1983, 1902-3,

26 L.Ed.2d 446 (1970) (quoting 1

Annals of Cong. 435 (1789)).

11

constitutional and case law history of

the provision is so sparse that

Petitioner appears to present a case of

first impression. In Zicarelli v. Dietz,

633 F.2d 312 (3rd Cir. 1980), cert.

denied, 449 U.S. 1083, 101 S.Ct. 868, 66

L.Ed.2d 807 (1981), the Third Circuit

postulated that the clause was intended

to preclude Congress from reformulating

the judicial districts to affect a

criminal case after the offense was

committed. Zicarelli at 323.

Additionally, Mizzell v. Beard, 25 F.2d

324 (N.D.Okla. 1928) and United States v.

Hackett, 29 F. 848, (Cir.Ct. N.D.Cal.

1887), found that in order to satisfy the

Sixth Amendment, Congress promulgated

statutes requiring crimes committed prior

to redistricting to be prosecuted as if

the redistricting had not occurred. See

12

Beard at 325 and Hackett at 849. The

Eleventh Circuit rejected these

formulations of the "as previously

ascertained" clause.

The clause could have no meaning

other than to prohibit Congress from

making retroactive changes in judicial

districts and transferring the situs of a

prosecution once the offense has already

been committed. The Eleventh Circuit’s

interpretation essentially renders the

clause meaningless, excess verbiage in an

otherwise carefully drafted Amendment.

Furthermore, if the clause does not

restrain Congress’ ability to transfer

offenses occurring in three (3) Florida

counties to a new district, the clause

would also logically fail to restrain any

class of defendants from being

transferred to destinations unknown.

13

Fear of such unbridled discretion is

precisely the reason the framers adopted

the "as previously ascertained" language

in drafting the Sixth Amendment. The

framers extended Congress the flexibility

to define the judicial districts as

necessary so long as the districts were

not redefined with respect to past

crimes. See Zicarelli, id.

The instant case provides an

opportunity to directly confront the

meaning of a constitutional provision

which this Court has not yet construed.

The divergent views of the Eleventh

Circuit in the instant case and the Third

Circuit in Zicarelli have rendered the

effect of the provision confusing and

uncertain. This Court should review the

Eleventh Circuit’s decision in order to

answer this important federal question

14

and provide guidance to both Congress and

the federal judiciary for future

redistricting efforts.

II. THE ELEVENTH CIRCUIT COURT OF

APPEALS HAS DECIDED AN IMPORTANT

QUESTION OF FEDERAL STATUTORY LAW IN

A MANNER WHICH CONFLICTS WITH

LONGSTANDING FEDERAL PRECEDENT AND

WHICH HAS NOT BEEN, BUT SHOULD BE,

DECIDED BY THIS COURT.

In determining that the amendments

to 28 U.S.C. Sec. 89 impliedly repealed

the criminal jurisdiction and venue

provisions of 18 U.S.C. Sec. 3240 with

respect to three (3) small counties in

Florida, the Eleventh Circuit Court of

Appeals has departed from judicial

precedent spanning the last century.

While the Eleventh Circuit is the first

Court of Appeals to specifically discuss

the amendments to 28 U.S.C. Sec. 89 in

connection with 18 U.S.C. Sec. 3240, the

Eleventh Circuit is also the only Court

of Appeals which would review the

provision since the Eleventh Circuit has

exclusive purview of cases emanating from

the Middle and Southern Districts of

Florida. Even though the Eleventh

Circuit’s decision is the first to

construe the newly amended 28 U.S.C. Sec.

89, this Court should grant certiorari

review because the decision has reversed

the longstanding practice of the federal

judiciary and will impact future

redistricting schemes.

Until the present case, changes in

the federal judicial districts, such as

transferring counties and creating new

districts, did not apply retroactively to

criminal offenses even though charges

were filed after the effective date of

the change. In 1911, Congress enacted 36

16

Stat.L. 1103, Judicial Code Sec. 59

(1911), which provided that prosecutions

for crimes occurring prior to

redistricting would be commenced as if

the redistricting had not occurred. This

principle is presently embodied in 18

U.S.C. Sec. 3240 and has been reiterated

in a litany of cases.

Lewis v. United States, 279 U.S. 63,

49 §.Ct. 257, 73 L.Ed. 615 (1929), this

Court’s only decision on the issue, has

remained unchanged since 1929. In Lewis,

this Court found that a federal judicial

district had jurisdiction to maintain

prosecutions which arose from acts

committed within its territory as

constituted prior to redistricting.

Lewis, U.S. at 70, L.Ed. at 618. The

lower federal courts have continuously

embraced the Lewis principle with respect

ey

to judicial redistricting plans.

In Mizzell v. Beard, 25 F.2d 324

(N.D.Okla. 1928), the Northern District

of Oklahoma dismissed a prosecution which

was brought in a new district for offense

occurring in the old district for lack of

jurisdiction. Likewise, in Mizzell v.

Vickery, 36 F.2d 327 (10th Cir. 1929),

the Tenth Circuit held that the old

district remained empowered to indict and

try offenses committed within its

original territory as constituted prior

to redistricting). Construing the modern

statutory provisions before this Court,

the Fifth Circuit, in Hayes v. United

States, 407 F.2d 189, 190-191 (5th Cir.

1969), found that 18 U.S.C. Sec. 3240

grants an altered district continuing

jurisdiction over crimes committed prior

to redistricting as if the change had not

18

: ‘

occurred. The Eight Circuit, Ninth

Circuit and Northern District of

California have all concurred in the

following cases: Briggs v. White, 32

F.2d 108 (8th Cir. 1929); Westover v.

United States, 394 F.2d 164 (9th Cir.

1968); and United States v. Hackett, 29

F. 848 (Cir.Ct.N.D.Cal. 1887). The

Eleventh Circuit, in the instant case,

appears to be the lone dissenter.

In se an exception in this case

to the historical practice, the Eleventh

Circuit found that the amendments to 28

U.S.C. Sec. 89 directly conflicted with

18 U.S.C. Sec. 3240 by requiring

prosecutions for all offenses arising

from the three (3) Florida counties to be

brought in the Middle District of Florida

regardless of when the offense was

committed. See Appendix A-3. The

19

appellate court further reasoned that

Public Law 100-702, a special law,

impliedly repealed 18 U.S.C. Sec. 3240, a

general law. See Appendix A-3-4.

However, the Eleventh Circuit failed to

properly employ principles of statutory

interpretation and construction. 28

U.S.C. Sec. 89 as amended and 28 U.S.C.

Sec. 3240 are not mutually exclusive. If

Congress intended to repeal the

longstanding practice embodied in 18

U.S.C. Sec. 3240, Congress would have

done so in clear and unambiguous

language. See Radzanower v. Touche Ross

and Company, 426 U.S. 148, 48 L.Ed.2d

540, 96 S.Ct. 1989 (1979). The Eleventh

Circuit has repealed 18 U.S.C. Sec. 3240

in this case, not Congress.

The House and Senate Bills provided

in pertinent part:

20

Se

PENDING ACTIONS: The amendments

made by section l [placing Collier,

Glades and Hendry Counties in the

Middle District] shall apply to any

action commenced in the United

States District Court for the Middle

District of Florida, or in the

United States District Court for the

Southern District of Florida, on or

after the effective date of this

Act, and shall not effect any action

pending in either such court on such

effective date.

See Appendix C-4. H.R. 4452, 100th

Cong., 2d Sess. (1988) and S. 2340, 100th

Cong., 2d Sess. (1988). The cited

provision on "pending actions" does not

specify whether the instant criminal

action could have been commenced in the

Middle District of Florida. Instead, the

provision merely states that the

amendments were prospective and did not

affect actions already pending. With

such a broad statement denying the

amendments retroactive effect, Congress

21

could not have intended to provide a new

section for determining where to

prosecute past crimes.

The express purpose of 18 U.S.C.

Sec. 3240 was to abrogate the need for

Congress to restate its provisions with

each redistricting. See Report of the

Special Joint Committee on Revision and

Codification of Laws of the United

States, S.Rep.No. 388, 61st Cong. 2d

Sess. 1 at 27 (1910). Giving Public Law

100-702 retroactive effect for past

crimes as the Eleventh Circuit has done,

leads to the unconscionable result of

establishing a unique jurisdictional

system for Florida, unlike the rest of

the nation. Accordingly, 18 U.S.C. Sec.

3240 still governs venue and jurisdiction

for past offenses for all federal

districts, including the three (3)

22

‘(cia

Florida counties.

Any conflict which may exist does

not render the two statutes

irreconcilable. Since an intent to

supersede the jurisdictional provisions

of Title 18 is not readily apparent from

Public Law 100-701, the Eleventh Circuit

should have opted for a construction

which effectuated both statutes and

avoided constitutional doubt. See St.

Martin Evangelical Lutheran Church v.

South Dakota, 451 U.S. 772, 780, 101

S.Ct. 2142, 68 L.Ed.2d 612, 619 (1981).

The Sixth Amendment underpinnings of 18

U.S.C. Sec. 3240 were noted in two early

federal cases decided near the time the

original statute was created. In Mizzell

v. Beard, 25 F.2d 324 (N.D.Okla. 1928),

the court stated:

It would seem under the plain

language of section 59 of the

23

es ieeeeninaietellll

Judicial Code that it was the

intention of Congress to leave no

doubt as to the proper district for

institution and proceeding in

prosecutions for past offenses prior

to such transfer, and that such

prosecutions must be instituted and

proceeded with in the same manner as

if the act providing for the

transfer had never been passed.

This construction meets all the

requirements of the Sixth Amendment

to the Constitution, providing, "in

all criminal prosecutions the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the state and

district wherein the crime shall

have been committed, which district

shall have been previously

ascertained by law.

Beard at 325. Additionally, in United

States v. Hackett, 29 F. 848

(Cir.Ct.N.D.Cal. 1887), the court stated:

Inasmuch as every offender has a

right to be tried by a jury of the

district in which the crime was

committed, which district shall have

been previously ascertained by law,

it is plain that a jury of the

Northern district could not try an

offender who committed a crime while

the district comprised the whole

state, neither could a jury of the

Southern district try him.

24

Hackett at 849. Thus, the Hackett court

reasoned that the original district was

granted continuing jurisdiction to

prevent the defendant from being

discharged for lack of a tribunal. Id.

The present statutes could have been read

harmoniously to remain consistent with

the Sixth Amendment as well as past

practice.

In holding that 28 U.S.C. Sec. 89

conferred jurisdiction upon the Middle

District of Florida to prosecute crimes

committed in the old Southern District,

the Eleventh Circuit relied upon a less

than clear declaration from Congress to

deviate from the traditional

redistricting formula. Review by this

Court is necessary to correct the

Eleventh Circuit’s misapplication of the

cited statutes and precedents and to

25

resolve this compelling question of

federal judicial procedure.

26

CONCLUSION

For the reasons discussed above, the

Petitioner respectfully requests that

this Court grant the petition for a writ

of certiorari to review the judgment of

the United States Court of Appeals for

the Eleventh Circuit.

STEPHEN K. JOHNSON

Attorney at Law

P.O. Box 5279

Gainesville, FL 32602

Counsel of Record

EMMETT M. DONNELLY

Attorney at Law

400 Southgate Office Plaza

5001 West 80th Street

Bloomington, MN 55437

27

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

WILLIAM JAY LOUWSMA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

Ve

William Jay LOUWSMA, Defendant-

Appellant.

No. 91-3240

United States Court of Appeals,

Eleventh Circuit

Sept. 2, 1992.

Defendant was convicted in the

United States Court for the Middle

District of Florida, No. 89-65-CR-FTM-

13(C), Lee P. Gagliardi, J., of

conspiracy to import in excess of 1,000

kilograms of marijuana, pursuant to

guilty plea, preserving right to appeal

jurisdiction, and defendant appealed.

The Court of Appeals, Roney, Senior

Circuit Judge, held that: (1) specific

statute transferring county to Middle

District of Florida, which provides that

A- 1

transfer shall apply to any action

commenced in District after February 18,

1989, overrides by implication provision

of general statute, and (2) statute did

not violate rights of defendant under

portion of the Sixth Amendment granting

defendant the right to a trial in the

district wherein the crime was committed,

which district shall have been

"previously ascertained by law.”

Affirmed.

Appeal from the United States

District Court for the Middle District of

Florida.

Before EDMONDSON, Circuit Judge, and

RONEY*, and GIBSON", Senior Circuit

Judges.

“See rule 34-2(b), Rules of the U.S.

Court of Appeals for the Eleventh Circuit.

**Honorable Floyd R. Gibson, Senior

U.S. Circuit Judge for the Eighth Circuit,

sitting by designation.

A- 2

Dicaaieaeeaineniinneniniietineiiaiaaiaaineetél

RONEY, Senior Circuit Judge:

The defendant was charged with

committing drug offenses in Collier

County which was in the Southern District

of Florida at the time of the offense but

had been transferred to the Middle

District of Florida by the time of the

indictment. The defendant contends that

the Middle District lacked jurisdiction

to indict and try him for the offense

committed in Collier County, and that

such action violated his rights under the

Sixth Amendment. He relies on the

general statute which provides that

whenever a county is transferred from one

district to another, prosecutions for

offenses committed within that county

shall be commenced in the original

district as if the county had not been

transferred. We hold that the specific

statute which transferred Collier County

to the Middle District overrides by

implication that provision of the general

statue so that the Middle District of

Florida did have jurisdiction, and that

the commencement of the action in the

Middle District did not violate

defendant’s rights under the Sixth

Amendment. We affirm the district

court’s decision denying the defendant’s

motion to dismiss.

On September 19, 1989, a federal

grand jury in the Middle District of

Florida returned an indictment charging

defendant William Jay Louwsma, along with

a number of other individuals, with four

counts of marijuana violations of 21

U.S.C. §§ 841, 846, 952, 963, and 960,

and 18 U.S.C. §2. Superseding

indictments charging additional

A- 4

defendants were returned by the grand

jury in October 1989 and August 1990.

After the district court denied his

motion to dismiss, Louwsma entered a plea

of guilty to Count One charging

conspiracy to import in excess of 1,000

kilograms of marijuana in violation of 21

U.S.C. § 963, preserving his right to

appeal the trial court’s jurisdiction.

The Government dismissed the remaining

counts. On March 6, 1991, Louwsma was

sentenced to two years incarceration.

Jurisdiction Issue

[1]Louwsma bases his jurisdictional

argument on 18 U.S.C. § 3240, which

provides that when a county is

transferred from one district to another,

prosecutions for offenses within a

district prior to transfer shall take

place as if such county had not been

transferred.’ Since the offense with

which Louwsma was charged occurred in

1986 in Collier County, which was then in

the Southern District of Florida, and

redistricting of the Middle and Southern

Districts was not effective until

February 18, 1989, Section 3240 provides

that jurisdiction over the offenses lies

) | The statute reads:

Whenever any new district or

division is established, or any

county or territory is

transferred from one district or

division to another district or

division, prosecutions for

offenses committed within such

district, division, county, or

territory prior to such

transfer, shall be commenced and

proceeded with the same as if

such new district or division

had not been created, or such

county or territory had not been

transferred, unless the court,

upon the application of the

defendant, shall order the case

to be removed to the new

district or division for trial.

18 U.S.C. § 3240 (1985).

A- 6

solely within the Southern District. See

Lewis v. United States, 279 U.S. 63,49

S.Ct. 257, 73 L.Ed. 615 (1929)

(considering the defendant’s challenge to

the jurisdiction of the district court

from which the county in which the

offense occurred had been transferred

under a statute similar to 18 U.S.C.

§3240, the Supreme Court found that the

original district remained empowered to

indict and try offenses which occurred

prior to the effective date of the

transfer even though the indictment was

not returned until after the county had

been transferred into the northern

district). See also Hayes v. United

States, 407 F.2d 189 190-91 (5th Cir.

1969), cert. dismissed, 395 U.S. 972, 89

S.Ct. 2133, 23 L.Ed.2d 777 (1969) (where

place of offense is transferred to newly

created district after the commission of

the offense, 18 U.S.C. 3240 “empowers an

altered district to commence prosecutions

after the change for offenses committed

within its prior boundaries before

alteration" as if the new district had

not been created); Mizzell v. Beard, 25

F.2d 324 (N.D.Okla, 1928) (newly created

Middle District of Georgia, which

encompassed the county in which the

offense had been committed, had no

jurisdiction over the offense because

although the indictment stated that the

offense occurred in the Middle District,

no such district existed at the time the

crime was committed).

Collier County was transferred to

the middle District by a special statute,

the Judicial Improvements and Access to

Justice Act, amending 28 U.S.C. § 89

[note]. This statute provides that the

transfer “shall apply to any action

commenced in ...the Middle

District...after [February 18, 1989)]."?

Thus, under this provision, the federal

prosecution of Louwsma’s crime in Collier

County, commenced after February 18,

2 The Act provides:

(1) The amendments made by this

section [transferring Collier, Glades

and Hendry Counties to the Middle

District of Florida] shall take

effect 90 days after the enactment of

this title. [Nov. 19, 1988]. (2)

The amendments made by subsection (a)

{transferring Collier, Glades, and

Hendry* Counties to the Middle

District of Florida] shall apply to

any action commenced in the United

States District Court for the Middle

District of Florida , or in the

United States District Court for the

Southern District of Florida. on or

after the effective date of this

title, and shall not affect any

action pending in either such court

on such effective date. Judicial

Improvements and Access to Justice

Act, Pub.L. No. 100-702, Title x §

1021 (b). 102 Stat 4642, 4672 (1989).

ao

an

1989, would properly be brought in the

Middle District.

[2]Because 18 U.S.C. § 3240 and 28

U.S.C. § 89 are mutually inconsistent,

the conflict must be resolved using

general principles of statutory

construction. It is a basic principle of

statutory construction that a precisely

drawn statute dealing with a specific

subject controls over a statute covering

a more generalized spectrum. Brown v.

General Services Administration, 425 U.S.

820, 834-35, 96 S.Ct. 1961, 1968-69, 48

L.Ed.2d 402 (1976). The Supreme Court

has stated that "[{w]Jhere there is no

clear intention otherwise, a specific

statute will not be controlled or

nullified by a general one, regardless of

the priority of enactment." Morton v.

Manacari, 417 U.S. 535, 550-51, 94 S.Ct

2474, 2482-83, 41 L.Ed.2d 290 (1974).

Louwsma first contends that these

principles of statutory construction are

inapplicable because the two statutory

provisions are not inconsistent. Louwsma

reads section 89 to pertain only to

actions filed and pending as of the date

Collier County was transferred to the

Middle District of Florida. Were this

reading of section 89 correct, there

would be no conflict between the two

statutes. The clear language of the

statute, however, provides otherwise.

The amendments to section 89 [note] state

that the newly constituted districts

apply to "any action commenced...on of

after the effective date of the tities"

clearly requiring prosecution of Louwsma

to take place within the district.

Pub.L. No. 100-702, Title x, § 1021(b),

A- il

102 Stat. 4642, 4672 (1989) (emphasis

added). Section 3240, on the other hand,

states that prosecutions commenced after

the transfer shall be in the old district

as if the county had not been transferred

to the new district. The statutes are in

direct conflict.

Louwsma further contends that even

if the two provisions are inconsistent,

section 3240 should control because it is

more specific than section 89. Louwsma

maintains that section 3240 is a special

law because it mandated the appropriate

jurisdiction in which to prosecute crimes

occurring in localities transferred

between judicial.districts prior to the

effective date of the transfer.

According to the defendant, section 89 is

a general law because it has general

application to civil as well as criminal

A- 12

cases. Therefore, even if the two

statutes conflict, Louwsma argues that

section 3240 must control because it is

the special law.

This argument does not properly

reflect the statutes. The amendments to

28 U.S.C. § 89 are specific in nature in

that they apply to only three counties in

Florida which were transferred from one

federal district to another. 18 U.S.C.

§3240, on the other hand, is a statute of

general application. Before the

predecessor provisions to section 3240

were enacted, whenever Congress

transferred counties form one district to

another, it had to enact a special

provision specifying whether the original

district or the new district would have

jurisdiction over crimes committed before

the date of the transfer. Lewis v.

a= 83

United States, 14 F.2d 369, 370-71 (8th

Cir. 1926). To obviate the need for a

separate jurisdictional statute for each

transfer, Congress enacted the

predecessor statute to section 3240.

That statute was intended as a general

provision which would obviate the special

provisions that were previously required

each time legislation was enacted to

create new districts or alter existing

ones. See 45 Cong.Rec.S. 3606 (1910)

(remarks of Senator Heyburn).

In passing section 3240, however,

Congress did not relinquish its right to

decide in the future that certain crimes

should be charged in the new district

rather than the original district. In 28

U.S.C. § ~ ae exercised its

right to differ from the provisions of

section 3240 with respect to the transfer

A- 14

of three Florida counties, thus allowing

for the prosecution of crimes in the new

rather than the original district.

[3]Louwsma asserts that even if

section 89 is the specific statute, a

special statute will not override a

conflicting general law unless Congress

expresses a clear and manifest intention

to repeal the general law, citing

Radzanower v. Touche Ross and Co., 426

U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540

(1979). Radzanower, however, does not

control the issue in this case.

Radzanower addressed the effect of the

enactment of a general statute on an

existing specific statute. The Court in

Radzanower merely held that a specific

statute is not submerged by a later

enacted statute covering a more general

spectrum unless a "clear intention

A-=- 15

otherwise" can be discerned from the

language or the legislative history of

the statute, Id. at 153-55, 96 S.Ct at

1992-1994. The Radzanower holding does

not pertain to the situation here, i.e.,

an existing general statute followed by

the enactment of specific legislation.

Indeed, the guidance provided by the

Radzanower Court for instances in which a

later enacted specific statute conflicts

with existing general law is contrary to

defendant’s position. The Radzanower

Court noted that one of the "well-settled

categories of repeals by implication [is]

where provisions in the two acts are in

irreconcilable conflict, the later act to

the extent of the conflict constitutes an

implied repeal of the earlier one." Id.,

at 154, 96 S.Ct. at 1993 (quoting Posadas

v. National City Bank, 296 U.S. 497, 503,

A - 16

56 S.Ct. 349, 352, 80 L.Ed. 351 (1936).

The Middle District of Florida had

jurisdiction over the charges in the

Middle District jury indictment of

Louwsma.

Sixth Amendment Issue

[4]Louwsma’s second argument is that

if the Government is permitted to

prosecute his offenses in the Middle

District of Florida, his Sixth Amendment

rights will be violated. The Sixth

Amendment provides:

In all criminal prosecutions,

the accused shall enjoy the

right to a speedy and public

trial, by an impartial jury of

the State and district wherein

the crime shall have been

committed, which district shall

have been previously

ascertained by law...

U.S. CONST. amend. VI. Louwsma contends

that this amendment guarantees him the

right to be tried in the Southern

A= \7

District because it existed at the time

of the commission of the crime.

A review of the sparse history of

the Sixth Amendment is required to

provide an understanding of the

protection that this clause was designed

to give to citizens of the United States.

As originally proposed by James Madison,

then in the House of Representatives, the

Sixth Amendment read, in part as follows:

The trial of all crimes....

shall be by an impartial jury

of freeholders of the vicinage,

with the requisite of unanimity

for conviction, of the right of

challenge, and other accustomed

requisites....

Williams v. Florida, 399 U.S. 78, 94, 90

S.Ct. 1893, 1902-03, 26 L.Ed.2d 446

(1970). “[{V]Jicinage’ mean[t]

neighborhood, and ’vicinage of the jury’

meant jury of the neighborhood or, in

medieval England, jury of the county."

Id. at 93 n. 35, 90 S.Ct. at 1902 n. 35.

Many of the framers considered the

"vicinage" language either too vague or

too strict. In place of "“vicinage", the

Conference Committee agreed on an

amendment which referred to the

"district" in which the crime was

committed. Id. at 96, 90 S.Ct. at 1903.

It was apparently understood that the

districts mentioned in the amendment

would be defined by Congress in the

Judiciary Act, which was pending while

the amendments were being debated. {

Zicarelli v. Dietz, 633 F.2d 312, 325

(3rd Cir. 1980) cert. denied, 449 U.S.

1083, 101 S.Ct. 868, 66 L.Ed.2d 807

(1981).

The intended meaning of the

"previously ascertained by law" clause of

the Sixth Amendment is unclear. This

clause is not discussed specifically in

the records of the framers nor has it

been subject to significant scrutiny by

the courts. The language may have been

included to ensure that Congress would

not change a district specifically to

affect the outcome of a given vase. In

Zicarelli v. Dietz, the Unites States

Court of Appeals for the Third Circuit

suggested that the clause may have been

included so that Congress could not

arbitrarily redefine a district so as to

meet the circumstances of a particular

criminal case. 633 F.2d at 323. The

Zicarelli court was analyzing the meaning

of the “previously ascertained by law"

clause to determine whether it was a

fundamental right such that it would be

applicable to the states through the due

process clause of the Fourteenth

Amendment. Id. at 320. The court

concluded that the clause does not apply

to state criminal trials so as to

prohibit transfer, upon request of the

attorney general, of a defendant’s trial

to a county in which the crime had not

been committed. The Zicarelli court

admits, however, that this conclusion is

Speculative. Louwsma argues

unpersuasively that Zicarelli also may be

read for the broader proposition that the

clause prohibits Congress from

transferring the cite of a crime between

districts after the commission of the

offense. The only other cases cited by

the defendant are unpersuasive because

they address the "previously ascertained

by law" clause in the context of a newly

created district court which was not in

existence at all at the time of the

offense. See Mizzell v. Beard, 25 F.2d

324 (N.D.Okla. 1928); United States v.

Hackett, 29 F. 848 (Cir.Ct.N.D.Cal.1887).

The Government asserts that the

clause was intended to ensure that

Congress would not change a district

specifically to affect the outcome of a

given case, just as bills of attainder

are prohibited by the Constitution. The

Government has cited to no cases offering

support for its interpretation of the

clause.

As in Williams v. Florida, the

inability to divine the intent of the

framers requires that in determining what

is meant by "previously ascertained by

law" we must turn to other than purely

historical considerations. 399 U.S. at

98-102, 90 S.Ct. at 1904-07; see also

Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct.

1628, 32 L.Ed.2d 184 (1972). The inquiry

must focus upon the function served by

the jury in contemporary society. The

purpose of the jury trial is to "prevent

Oppression by the Government [ee) was

‘{p]roviding an accused with the right to

be tried by a jury of his peers.’"

Williams, 399 U.S. at 100, 90 S.Ct. at

1905 (quoting Duncan yv. Louisiana, 391

U.S. 145, 156, 88 S.Ct. 1444, 1451, 20

L.Ed.2d 491 (1968). The Williams Court

further noted:

Given this purpose, the

essential feature of a jury

obviously lies in the

interposition between the

accused and his accuser of the

commonsense judgment of a group

of laymen, and in the community

participation and shared

responsibility that results

from that group’s determination

of guilt or innocence.

The purpose of the Sixth Amendment

a «© 23

is not offended by application of 28

U.S.C § 89, placing jurisdiction over

Louwsma’s case in the Middle District of

Florida. Because the county in which

Louwsma’s crime was committed is now in

the newly constituted Middle District of

Florida, trial in that district does more

to ensure that the defendant is tried by

a jury of peers from his community than

would have been the case if he were

subject to trial in either the newly

constituted or the previously constituted

Southern District of Florida. In the

newly constituted Southern District, none

of the jurors would be drawn from the

county of the offense. Even in the

previously constituted Southern District,

a random draw of jurors would probably

weigh the jury panel heavily in favor of

Dade and Broward Counties in the

southeast section of Florida, the

population centers of the Southern

District. On the other hand, under the

newly constituted Middle District, the

jurors would have been drawn from the

southwest section of Florida. the general

community in which the crime was

committed.

Louwsma’s Sixth Amendment rights

were not violated by Congress’ decision

to have those crimes which were committed

in Collier, Hendry and Glades Counties

before February 19, 1989, but which were

not charged until after that date,

charged and tried in the newly

constituted Middle District of Florida.

The Middle District of Florida

properly asserted jurisdiction over the

crime for which Louwsma was charged.

AFFIRMED

a= Ze

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

UNITED STATES OF AMERICA,

88-65-Cr-FtM-13(c)

-against- ORDER

MICHAEL JOHN ARNOLD, et al.,

GAGLIARDI, Senior D.J.

The defendant, William Jay Louwsma,

has made a motion to dismiss the Second

Superseding Indictment for lack of

jurisdiction and venue.’

The defendant argues that the Middle

District of Florida lacked jurisdiction

to return the present indictment because

: This motion has been adopted by

co-defendants, Michael John

Arnold and Donald Angus Craig.

Be-l

the offenses occurred in the Southern

District of Florida. The alleged

offenses occurred in Collier County,

Florida in March and April of 1986. In

1986, Collier County was part of the

Southern District of Florida. Effective

February 1989, the Judicial Improvements

and Access to Justice Act transferred

Collier, Glades and Hendry Counties from

the Southern District of Florida to the

Middle District of Florida. See Judicial

Improvements and Access to Justice Act,

Pub. L. No. 100-702, Tit. X, Sec. 1021,

102 Stat. 4642, 4672 (1989). The initial

indictment in this case was returned on

September 14, 1989.

The defendant’s first argument is

that the sixth amendment required the

indictment to be brought in the Southern

District of Florida. However, the

purpose of the sixth amendment was to

insure the right to a trial by a jury of

the vicinage. Bringing the indictment in

the Middle District of Florida insures a

jury pool that will consist of jurors, in

part, from Collier County, the county in

which the crime allegedly occurred.

Thus, the defendant’s sixth amendment

right is not prejudiced, in fact, it is

more fully protected by the indictment

being brought in the Middle District of

Florida.

The defendant’s second argument is

that 18 U.S.C.A. Sec. 3240 (1985)

prohibits the government from bringing

the indictment in the Middle District of

Florida. Section 3240 provides:

Whenever any new district or

division is established, or any

county or territory is

transferred from one district

or division to another district

or division, prosecutions for

B- 3

1 (neineaeieneeieiaeneeaniemmaeias,

offenses committed within such

district, division, county, or

territory prior to such

transfer, shall be commenced

and proceeded with the same as

if such new district or |

division had not been created,

or such county or territory had

not been transferred, unless

the court, upon application of

the defendant, shall order the

case to be removed to the new

district or division for trial.

18 U.S.C.A. Sec. 3240 (1985). It appears

that section 3240 requires this action to

be brought in the Southern District of

Florida. However, public law 100-702

which amended 28 U.S.C. Sec. 89 by

including Collier, Glades, and Hendry

Counties in the Middle District of

Florida states:

The amendments made by

subsection (a) (transferring

Collier, Glades, and Hendry

Counties to the Middle

District] shall apply to any

action commenced in the United

States District Court for the

Middle District of Florida, or

in the United States District

Court for the Southern District

B= @

of Florida, on or after the

effective date of this title,

and shall not affect any action

pending in either such court on

such effective date.

Judicial improvements and Access to

Justice Act, Pub. L. No. 100-702, Tit. X,

Sec, 1021(b)(2), 102 Stat. 4642, 4672

(1989). Thus, the statute is clear that

any actions involving the transferred

counties commenced after the effective

date of the amendment shall be brought in

the Middle District of Florida.

Therefore, the defendant’s motion to

dismiss for lack of jurisdiction and

venue is denied.

So. Ordered.

/s/ Gagliardi

Senior U.S.D.J.

DATED: Fort Myers, Florida

December 5, 1990.

TITLE 18 U.S.C. SECTION 3240

Sec. 3240. Creation of new district or

division

Whenever any new district or

division is established, or any county or

territory is transferred from one

district or division to another district

or division, prosecutions for offenses

committed within such district, division,

county, or territory prior to such

transfer, shall be commenced and

proceeded with the same as if such new

district or division had not been

created, or such county or territory had

not been transferred, unless the court,

upon application of the defendant, shall

order the case to be removed to the new

district or division for trial.

TITLE 28 U.S.C. SECTION 89

Sec. 89. Florida

Florida is divided into three

judicial districts to be known as the

Northern, Middle, and Southern Districts

of Florida.

Northern District

(a) The Northern District comprises

the counties of Alachua, Bay, Calhoun,

Dixie, Escambia, Franklin, Gadsden,

Gilchrist, Gulf, Holmes, Jackson,

Jefferson, Lafayette, Leon, Levy,

Liberty, Madison, Okaloosa, Santa Rosa,

Taylor, Wakulla, Walton, and Washington.

Court for the Northern District

shall be held at Gainesville, Marianna,

Panama City, and Tallahassee.

Middle District

(b) The Middle District comprises

the counties of Baker, Bradford, Brevard,

Charlotte, Citrus, Clay, Collier,

Columbia, De Soto, Duval, Flagler,

Glades, Hamilton, Hardee, Hendry,

Hernando, Hillsborough, Lake, Lee,

Manatee, Marion, Nassau, Orange, Osceola,

Pasco, Pinellas, Polk, Putnam, Saint

Johns, Sarasota, Seminole, Sumter,

Suwannee, Union, and Volusia.

Court for the Middle District shall

be held at Fernandina, Fort Myers,

Jacksonville, Live Oak, Ocala, Orlando,

Saint Petersburg, and Tampa.

(c) The Southern District comprises

the counties of Broward, Dade, Highlands,

Indian River, Martin, Monroe, Okeechobee,

Palm Beach, Saint Lucie.

Court for the Southern District

shall be held at Fort Lauderdale, Fort

Pierce, Key West, Miami, and West Palm

Beach.

100th CONGRESS

2D Session

H.R. 4452

To amend title 28, United States Code,

with respect to the configuration of the

Middle and Southern Districts of Florida.

IN THE HOUSE OF REPRESENTATIVES

April 25, 1988

Mr. LEWIS of Florida (for himself and Mr.

MACK) introducing the following bill;

which was referred to the Committee on

the Judiciary

A BILL

To amend title 28, United States Code,

with respect to the configuration of the

Middle and Southern Districts of Florida.

{Line Numbering Omitted]

Be it enacted by the Senate and

House of Representatives of the United

States of America in Congress assembled,

SECTION 1. MIDDLE AND SOUTHERN DISTRICTS

OF FLORIDA.

Section 89 of title 28, United

States Code, is amended -

(1) in subsection (b) -

(A) by inserting "Collier,"

after "Clay,";

(B) by inserting "Glades,"

after "Flagler,";

and

(C) by inserting "Hendry,"

after "Hardee,"

and

(2) in subsection (c) by striking

"Collier," "Glades," and "Hendry,".

SECTION 2, EFFECTIVE DATE.

(a) IN GENERAL. - The Amendments

made by this Act shall take effect 90

days after the date of enactment of this

Act.

(b) PENDING ACTIONS. - The

Amendments made by section 1 shall apply

to any action commenced in the United

States District Court for the Middle

District of Florida, or in the United

States District Court for the Southern

District of Florida, on or after the

effective date of this Act, and shall not

affect any action pending in either such

court on such effective date.

(c) JURIES. - The amendments made by

this Act shall not affect the

composition, or preclude the service, of

any grand or petit jury summoned,

empaneld, or actually serving on the

effective date of this Act.

100th CONGRESS

2D Session

S. 2340

To amend title 28, United States Code,

with respect to the configuration of the

Middle and Southern Districts of Florida.

IN THE SENATE OF THE UNITED STATES

April 28, 1988

Mr. CHILES introducing the following

bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend title 28, United States Code,

with respect to the configuration of the

Middle and Southern Districts of Florida.

[Line Numbering Omitted]

Be it enacted by the Senate and

House of Representatives of the United

States of America in Congress assembled,

SECTION 1. MIDDLE AND SOUTHERN DISTRICTS

OF FLORIDA.

Section 89 of title 28, United

Leeann

States Code, is amended -

(1) in subsection (b) -

(A) by inserting "Collier,"

after "Clay,";

(B) by inserting "Glades,"

after "Flagler,";

and

(C) by inserting "Hendry,"

after "Hardee,"

and

(2) in subsection (c) by striking

"Collier," "Glades," and "“Hendry,".

SECTION 2, EFFECTIVE DATE.

(a) IN GENERAL. - The Amendments

made by this Act shall take effect 90

days after the date of enactment of this

Act.

(b) PENDING ACTIONS. - The

Amendments made by section 1 shall apply

to any action commenced in the United

States District Court for the Middle

District of Florida, or in the United

States District Court for the Southern

District of Florida, on or after the

effective date of this Act, and shall not

affect any action pending in either such

court on such effective date.

(c) JURIES. - The amendments made by

this Act shall not affect the

composition, or preclude the service, of

any grand or petit jury summoned,

empaneld, or actually serving on the

effective date of this Act.