Petitioner was indicted in the United States District Court for
the District of Colorado under 18 U.S.C. § 1001 for making and
executing in Colorado and filing with the National Labor Relations
Board in Washington, D.C., under § 9(h) of the National Labor
Relations Act, as it then stood, false affidavits that he was not a
member of the Communist Party and was not affiliated with it. The
affidavits were executed by petitioner as a union officer in
Colorado and mailed there to the Board in Washington, D.C., where
they were received and filed. Notwithstanding a timely objection to
the venue, petitioner was tried and convicted in Colorado.
Held: venue lay only in the District of Columbia, where
§ 9(h) and the Board's regulations required the affidavits to be
"on file with the Board," and the judgment is reversed. Pp.
364 U. S.
632-637.
(a) The words of § 9(h), "unless there is on file with the
Board," suggest that the filing must be completed before there is a
"matter within the jurisdiction" of the Board, within the meaning
of 18 U.S.C. § 1001, and § 9(h) makes the criminal penalty
applicable only to affidavits "on file with the Board." Pp.
364 U. S.
635-636.
(b) When 18 U.S.C. § 3237 is read in the light of the
constitutional requirements and the explicit provision of § 9(h),
the locus of the offense has been carefully specified, and only the
single act of having a false statement "on file with the Board" is
penalized. Pp.
364 U. S.
636-637.
269 F.2d 928 reversed.
268 F.2d 218 and 280 F.2d 430, judgments vacated.
Page 364 U. S. 632
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
In this case, [
Footnote 1]
petitioner was charged on four counts of an indictment with the
making and filing of false non-Communist affidavits required by §
9(h) [
Footnote 2] of the
National Labor Relations Act, as amended by the Taft-Hartley
Page 364 U. S. 633
Act, 61 Stat. 136, 146, and further amended by the Act of Oct.
22, 1951, § 1(d), 65 Stat. 601, 602. The indictment charged that
the affidavits were false writings or documents made and executed
in Colorado and filed in Washington, D.C., with the National Labor
Relations Board.
Petitioner was convicted, and, on appeal, the judgment of
conviction was reversed for a new trial. 247 F.2d 130. Petitioner
was tried a second time, and again convicted. This time, the
judgment was affirmed on appeal, one judge dissenting. 269 F.2d
928. The case is here on a writ of certiorari. 363 U.S. 801.
Before the first trial, petitioner moved to dismiss the
indictment on the ground that venue was improperly laid in
Colorado. The District Court denied the motion. Although the Court
of Appeals reversed on another ground on petitioner's first appeal,
it specifically approved the laying of venue in Colorado (247 F.2d
130, 133-134) recognizing that its ruling was in conflict with that
in
United States v. Valenti, 207 F.2d 242 (C.A. 3d Cir.).
It is solely to this issue that we address ourselves.
It is agreed that the affidavits were executed by petitioner as
a union officer in Colorado and mailed there to the Board in
Washington, D.C., where they were received and filed. [
Footnote 3] The prosecution contends --
and it was held below -- that the offense was begun in Colorado and
completed in the District of Columbia. In that view, venue was
properly laid in Colorado by virtue of 18 U.S.C. § 3237(a), which
provides:
"Except as otherwise expressly provided by enactment of
Congress, any offense against the United
Page 364 U. S. 634
States begun in one district and completed in another . . . may
be inquired of and prosecuted in any district in which such offense
was begun . . . or completed."
We start with the provision of Art. III, § 2 of the Constitution
that criminal trials "shall be held in the State where the said
crimes shall have been committed," a safeguard reinforced by the
command of the Sixth Amendment that the criminal trial shall be
before an impartial jury of "the State and district wherein the
crime shall have been committed." We start also with the assumption
that Colorado, the residence of petitioner, might offer
conveniences and advantages to him which a trial in the District of
Columbia might lack. We are also aware that venue provisions in
Acts of Congress should not be so freely construed as to give the
Government the choice of "a tribunal favorable" to it.
United
States v. Johnson, 323 U. S. 273,
323 U. S. 275.
We therefore begin our inquiry from the premise that questions of
venue are more than matters of mere procedure. "They raise deep
issues of public policy in the light of which legislation must be
construed."
United States v. Johnson, supra, 323 U.S. at
323 U. S.
276.
Where various duties are imposed, some to be performed at a
distant place, others at home, the Court has allowed the
prosecution to fix the former as the venue of trial.
Johnston
v. United States, 351 U. S. 215,
351 U. S. 222.
The use of agencies of interstate commerce enables Congress to
place venue in any district where the particular agency was used.
Armour Packing Co. v. United States, 209 U. S.
56. "The constitutional requirement is as to the
locality of the offense, and not the personal presence of the
offender."
Id. at
209 U. S. 76. Where the language of the Act defining
venue has been construed to mean that Congress created a continuing
offense, it is held, for venue purposes, to have been committed
wherever the wrongdoer roamed.
Page 364 U. S. 635
United States v. Cores, 356 U.
S. 405.
And see Brown v. Elliott, 225 U.
S. 392. The decisions are discrete, each looking to the
nature of the crime charged. Thus, while the use of the mails might
be thought to allow venue to be laid either at the sending or
receiving end, the trial was recently restricted to the district of
the sender, in light of the constitutional provisions already
mentioned and the phrasing of a particular criminal statute.
United States v. Johnson, supra, 323 U. S.
277-278. Where Congress is not explicit, "the
locus
delicti must be determined from the nature of the crime
alleged and the location of the act or acts constituting it."
United States v. Anderson, 328 U.
S. 699,
328 U. S.
703.
Section 9(h) of the National Labor Relations Act, [
Footnote 4] with which we are concerned, did
not require union officers to file non-Communist affidavits. If it
had, the whole process of filing, including the use of the mails,
might logically be construed to constitute the offense. But this
statutory design is different. It requires that the Board shall
make no investigation nor issue any complaint in the matters
described in § 9(h) "unless there is on file with the Board" a
non-Communist affidavit of each union officer. The filings are
conditions precedent to a union's use of the Board's procedures.
Leedom v. International Union, 352 U.
S. 145,
352 U. S. 148.
The false statement statute, [
Footnote 5] under which the prosecution is brought,
penalizes him who knowingly makes any "false" statement "in any
matter within the jurisdiction of any department or agency of the
United States." There would seem to be no offense, unless
petitioner completed the filing in the District of Columbia. The
statute demanded that the affidavits be on file with the Board
before it could extend help to the union; the forms prescribed by
the Board required the filing in the
Page 364 U. S. 636
District of Columbia; the indictment charged that petitioner
filed the affidavits there. The words of the Act -- "unless there
is on file with the Board" -- suggest to us that the filing must be
completed before there is a "matter within the jurisdiction" of the
Board within the meaning of the false statement statute. [
Footnote 6] When § 9(h) provides the
criminal penalty, [
Footnote 7]
it makes the penal provisions applicable "to such affidavits,"
viz., to those "on file with the Board."
The Government admits that the filing is necessary to the
"occurrence" of the offense, but it argues that the offense has its
"beginning" in Colorado, because it was there that
"the defendant had irrevocably set in motion and placed beyond
his control the train of events which would normally result (and
here did result) in the consummation of the offense."
We do not agree with this analysis. Venue should not be made to
depend on the chance use of the mails, when Congress has so
carefully indicated the locus of the crime. After mailing, the
affidavit might have been lost; petitioner himself might have
recalled it. [
Footnote 8]
Multiple venue in general requires crimes consisting of "distinct
parts" or involving "a continuously moving act."
United States
v. Lombardo, 241 U. S. 73,
241 U. S. 77.
When a place is explicitly designated where a paper must be filed,
a prosecution for failure to file lies only at that place.
Id. at
241 U. S. 76-78.
The theory of that case was followed in
United States v.
Valenti, supra, where Judge Maris stated that no false
statement has been made within the jurisdiction of the Board "until
the affidavit through its filing has become the basis for action by
the Board."
Id., 207 F.2d at 244.
Page 364 U. S. 637
We think that is the correct view when 18 U.S.C. § 3237 is read
in light of the constitutional requirements and the explicit
provision of § 9(h). The locus of the offense has been carefully
specified, and only the single act of having a false statement at a
specified place is penalized. The rationale of
United States v.
Lombardo, supra, a case involving a failure to file, is
therefore equally applicable here. We conclude that venue lay only
in the District of Columbia.
Petitioner also brought here two companion cases arising out of
the same trial. In No. 3, he asked for a new trial on the ground of
newly discovered evidence. In No. 71, he moved a second time for a
new trial on the ground of newly discovered evidence. We granted
the petitioners in these cases as they were protective of
petitioner's rights in the main litigation. 363 U.S. 801. But,
since our holding in the main case is that venue was improperly
laid in Colorado, the judgment of conviction must be set aside.
Accordingly the orders in Nos. 3 and 71 denying new trials have
become moot, and are vacated in the customary manner. In No. 10,
the judgment is reversed.
Reversed.
[
Footnote 1]
There are two companion cases, No. 3,
Travis v. United
States, and No. 71,
Travis v. United States, in which
we also granted certiorari and which present phases of the main
case. We discuss them near the close of the opinion.
[
Footnote 2]
This section, which was repealed by § 201(d) of the
Labor-Management Reporting and Disclosure Act of 1959, 73 Stat.
519, 525, provided:
"No investigation shall be made by the Board of any question
affecting commerce concerning the representation of employees,
raised by a labor organization under subsection (c) of this
section, and no complaint shall be issued pursuant to a charge made
by a labor organization under subsection (b) of section 10,
unless there is on file with the Board an affidavit
executed contemporaneously or within the preceding twelve-month
period by each officer of such labor organization and the officers
of any national or international labor organization of which it is
an affiliate or constituent unit that he is not a member of the
Communist Party or affiliated with such party, and that he does not
believe in, and is not a member of or supports any organization
that believes in or teaches, the overthrow of the United States
Government by force or by any illegal or unconstitutional methods.
The provisions of section 35A of the Criminal Code shall be
applicable in respect to such affidavits."
(Italics added.)
Section 35(A) of the Criminal Code was repealed by § 21 of the
Act of June 25, 1948, 62 Stat. 683, 862, and is now covered, so far
as we are now concerned, by 18 U.S.C. § 1001, which provides:
"Whoever,
in any matter within the jurisdiction of any
department or agency of the United States, knowingly and
willfully falsifies, conceals or covers up by any trick, scheme, or
device a material fact, or makes any false, fictitious or
fraudulent statements or representations, or makes or uses any
false writing or document knowing the same to contain any false,
fictitious or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than five years, or
both."
(Italics added.)
[
Footnote 3]
Under the regulations in force at the time of filing,
petitioner's affidavit was required to be on file with the General
Counsel of the National Labor Relations Board in Washington, D.C.,
29 CFR § 101.3(b) (since deleted,
see 24 Fed.Reg. 7501
(Sept. 17, 1959)).
[
Footnote 4]
See note 2
supra.
[
Footnote 5]
See 18 U.S.C. § 1001, note 2,
supra.
[
Footnote 6]
See 18 U.S.C. § 1001, note 2,
supra.
[
Footnote 7]
See note 2
supra.
[
Footnote 8]
39 CFR § 43.6(a) provides:
"Mail deposited in a post office may be recalled by the sender,
by the parent or guardian of a minor child, or by the guardian of a
person of unsound mind."
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
CLARK join, dissenting.
Title 18 U.S.C. § 3237(a) provides in pertinent part:
"Except as otherwise expressly provided by enactment of
Congress, any offense against the United States
begun in
one district and
completed in another . . . may be
inquired of and prosecuted in any district in which such offense
was begun . . . or completed."
(Emphasis added.) On my view of the offense with which Travis is
charged, I think that, under this section, the Government was
entitled to proceed either in Colorado, where this affidavit
Page 364 U. S. 638
was made, or in the District of Columbia, where the affidavit
was filed, and therefore dissent from the Court's holding that
venue was improperly laid in Colorado.
Section 9(h) of the National Labor Relations Act, as amended by
the Taft-Hartley Act, [
Footnote
2/1] 61 Stat. 136, 146, provided that the National Labor
Relations Board shall neither make an investigation nor issue any
complaint on behalf of a labor union unless there is on file with
it a non-Communist affidavit of the kind here in question. 18
U.S.C. § 1001 [
Footnote 2/2] is
specifically made applicable to such affidavits. That section of
the criminal code makes it an offense, in any matter within the
jurisdiction of any department or agency of the United States, to
falsify a
Page 364 U. S. 639
material fact, make a false statement, or make or use any false
writing or document. The elements of the crime here involved,
therefore, are set out in 18 U.S.C. § 1001, and what § 9(h) does is
simply to supply the "jurisdiction of . . . [an] agency of the
United States" required by § 1001.
If this crime may properly be viewed as having been begun in the
district of Colorado and completed in the district of the District
of Columbia, then venue may be laid in either district under 18
U.S.C. § 3237(a). Whether that is the proper view of this offense
is an issue on which the authorities in this Court are, at best,
inconclusive. In
In re Palliser, 136 U.
S. 257, the Court held that, where the defendant had
mailed in New York to a postmaster in Connecticut a letter which
constituted a prohibited tender of a contract with intent to induce
the postmaster to violate his lawful duty, venue could properly be
laid in the district of Connecticut. The Court expressly left open
the question of whether venue might also have been laid in New
York, 136 U.S. at
136 U. S.
267-268. To the same effect is
Burton v. United
States, 202 U. S. 344.
United States v. Lombardo, 241 U. S.
73, which the Court considers particularly significant,
is not controlling, since, in that case, the offense charged was
the failure to file with the Commissioner General of Immigration
certain information concerning an alien woman whom the defendant
was harboring for purposes of prostitution. In such a charge, it is
difficult to see how the defendant does anything at all except at
the place where he fails to file.
But cf. United States v.
Cores, 356 U. S. 405. In
contrast, the false affidavit in the present case first came into
existence in Colorado, having been made and sworn to there.
Nor do the opinions in the lower courts establish anything like
a clear line of authority from which it would be unwise now to
depart. If anything, I think, they indicate
Page 364 U. S. 640
a contrary conclusion to that now reached by the Court.
Compare Henslee v. United States, 262 F.2d 750;
United
States v. Miller, 246 F.2d 486;
De Rosier v. United
States, 218 F.2d 420;
United States v. Downey, 257 F.
366, and
Bridgeman v. United States, 140 F. 577,
with
United States v. Valenti, 207 F.2d 242.
In these circumstances, the proper course to follow appears to
me to be to determine the appropriate venue "from the nature of the
crime alleged and the location of the act or acts constituting it,"
United States v. Anderson, 328 U.
S. 699,
328 U. S. 703,
and that determination should take into account that
". . . The provision for trial in the vicinity of the crime is a
safeguard against the unfairness and hardship involved when an
accused is prosecuted in a remote place. Provided its language
permits, the Act in question should be given that construction
which will respect such considerations."
United States v. Cores, 356 U.
S. 405,
356 U. S. 407.
In this kind of case, prosecution in the district in which the
affidavit was executed, most often, I would suppose, the place
where the union offices are located, is more likely to respect the
basic policy of the Sixth Amendment than would a prosecution in the
district where the affidavit was filed. The witnesses and relevant
circumstances surrounding the contested issues in such cases more
probably will be found in the district of the execution of the
affidavit than at the place of filing which, as in this instance,
will often be for the defendant "a remote place,"
United States
v. Cores, supra -- that is, the District of Columbia where the
headquarters of the National Labor Relations Board are located in
the case of officers of international unions, or elsewhere
throughout the country where the Board has branch offices in the
case of local union officers, 29 CFR § 101.3.
Page 364 U. S. 641
This is not to say that venue must be limited to the place of
execution of the affidavit, but only that there is no lack of
consonance with the underlying policy of the Sixth Amendment in
permitting venue to be laid there if the elements of the crime
allow.
United States v. Anderson, supra. In holding that
the crime for which this petitioner was prosecuted does not allow
venue to be laid in the district of the making of the affidavit,
the Court considers the essence of the crime to be the filing of
the affidavit, and, until that is accomplished, it holds that the
crime is not even begun. But since it is 18 U.S.C. § 1001 which
defines the offense, § 9(h) only supplying the requisite
jurisdiction of the agency of the United States, and since, by §
1001, the offense consists of
falsifying a material fact,
making a false statement, or
making or using any
false writing or document, it seems eminently reasonable to
consider that the offense is at least definitively begun at the
place where the false affidavit is actually made, sworn and
subscribed.
Cf. the
Henslee, Miller, De Rosier,
Downey and
Bridgeman cases,
supra.
It is, of course, true that the offense is not completed until
the affidavit is filed with the Board; but I do not think it adds
anything to say, as the Court does, that, until such time as the
affidavit is filed with the Board there is no matter "within the
jurisdiction of any department or agency of the United States." The
fact that the filing completes the offense by giving the Board
jurisdiction over the matter does not, in my view, detract from the
conclusion that the offense was begun when and where the affidavit
was executed. Indeed, this would seem to be the very type of
situation contemplated by 18 U.S.C. § 3237(a).
Since I consider it would be inappropriate for me, in dissent,
to discuss issues which the Court does not reach, I refrain from
considering the other grounds for reversal urged by the
petitioner.
[
Footnote 2/1]
"No investigation shall be made by the Board of any question
effecting commerce concerning the representation of employees,
raised by a labor organization under subsection (c) of this
section, and no complaint shall be issued pursuant to a charge made
by a labor organization under subsection (b) of section 160 of this
title, unless there is on file with the Board an affidavit executed
contemporaneously or within the preceding twelve-month period by
each officer of such labor organization and the officers of any
national or international labor organization of which it is an
affiliate or constituent unit that he is not a member of the
Communist Party or affiliated with such party, and that he does not
believe in, and is not a member of or supports any organization
that believes in or teaches, the overthrow of the United States
Government by force or by any illegal or unconstitutional methods.
The provisions of [18 U.S.C. § 1001] shall be applicable in respect
to such affidavits."
29 U.S.C. § 159(h), repealed by the Labor-Management Reporting
and Disclosure Act of 1959, 73 Stat. 519, § 201(d).
[
Footnote 2/2]
"Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious or fraudulent
statements or representations, or makes or uses any false writing
or document knowing the same to contain any false, fictitious or
fraudulent statement or entry, shall be fined not more than $10,000
or imprisoned not more than five years, or both."