in three counts of an indictment with (a) violation of the National Housing Act, 12 U.S.C.A. § 1731(a); (b) presenting false claims in violation of 18 U.S.C. § 80; and (c) conspiracy to commit the two foregoing substantive offenses. The defendant-appellant had been sentenced to fifteen months imprisonment on the conspiracy count and on the other two counts, his sentence was suspended.
The defendant challenged the right of the prosecution to indict him in the Southern District of New York upon the ground that the crime, if any, was committed in New Jersey where the loan application had been submitted for credit approval and not in New York where the false statement in the application had been made. In sustaining the jurisdiction of the trial court, the Court of Appeals stated: 'As to the contention that the crime was committed, if at all, in New Jersey, it is sufficient to observe that the evidence amply supports a finding that the conspiracy and the overt acts, as well as the charges of concealment, and the making of the false statement, all took place in New York. Jurisdiction of the conspiracy count lay in the Federal courts of both states.' 148 F.2d at page 190.
Therefore it becomes clear that the court was concerned only with the jurisdiction of the trial court with respect to the conspiracy count and not with the substantive counts under Sec. 80. The opinion of the court indicated that the appeal was only from the sentence on the conspiracy count and that sentence on the other two counts had been suspended. Since it is well recognized that an indictment based on a conspiracy may be prosecuted in any district where any of the overt acts have been committed the Uram case cannot be construed as supporting the Government's contention. See Hyde v. Shine, 199 U.S. 62, 26 S. Ct. 760, 50 L. Ed. 90.
But it is to be remembered that there is no conspiracy count here and the gist of the offense alleged in this indictment is that the defendant concealed and made false representations in a matter within the jurisdiction of the War Assets Administration. That alleged crime consisted of one single act, that is, the delivery to the government official in New York City of the letter containing the false statements and no crime was committed merely in the preparation of the letter in New Jersey absent its delivery. Under such circumstances, Section 42 of the Judicial Code becomes inapplicable. Reass v. United States, 4 Cir., 1938 99 F.2d 752, is a case in point.
In that case the defendant was indicted, tried and convicted in the Northern District of West Virginia for knowingly making a false statement for the purpose of influencing the action of the Federal Home Loan Bank of Pittsburgh, Pennsylvania in violation of 12 U.S.C.A. § 1441(a). The evidence showed that the application containing the false statement was prepared in the Northern District of West Virginia, and taken in person by the defendant from West Virginia to Pittsburgh, and there completed and presented to the bank. The Court of Appeals of the Fourth Circuit reversed the conviction upon the ground that the District Court for the Northern District of West Virginia lacked jurisdiction to try the offense. The court held that Sec. 42 of the Judicial Code was inapplicable, noting that this statute was particularly applicable to the jurisdiction over crimes which consist of two or more distinct elements or acts that may be committed in different districts, such as the crime of conspiracy. It stated that the offense in question belonged to that class of crimes which lacks continuity of performance and consists of a single act which occurs at one time and at one place in which only it may be tried, although preparations for its commission take place elsewhere.
The court then made this apposite analysis: 'The statute on which the indictment is based was passed to protect the Federal Home Loan Bank from fraudulent attempts to secure favorable action on application for loans and like matters. The gist of the offense is the attempt to influence the corporation, * * * and communication of the false statements to the corporation constitutes the very essence of the crime. It is in this sense that the statute condemns the making of a false statement for the purpose of influencing the bank. The mere assembling of the material and its arrangements in a written composition containing the misrepresentations of fact can have no effect, and it is only when they are communicated to the lending bank that the crime takes place. It follows that the acts performed by the defendant in Wheeling, although preparatory to the commission of the crime, were no part of the crime itself. That took place entirely in Pittsburgh where the writing previously prepared was presented to the bank. * * *' 99 F.2d at page 755.
It should be noted that the court expressed no opinion on what the situation might have been had the defendant mailed the false statement in West Virginia and I make a similar reservation in the instant matter.
In the case of United States v. Levy, supra, the Court of Appeals for this circuit sustained an indictment, attacked similarly as here, but the facts in that case are completely at variance with those in the instant case and it is interesting to note that the court specifically approved the conclusions of the Reass case, 153 F.2d at page 996. Since the facts charged here fit the legal theory enunciated in the Reass case I am constrained to follow its holding.
In the consideration of this motion I am not unmindful of the hazard presented by the possibility that the statute of limitations has run, perhaps preventing any new indictment from being brought against the defendant in the Southern District of New York, and, further I am persuaded that in the instant matter no hardship to the defendant would result from his trial for the offense with which he has been charged in the vicinage of his residence, but these cannot be controlling factors here. Questions of venue in criminal cases are not merely matters of formal legal procedure. United States v. Johnson, 323 U.S. 273, 276, 65 S. Ct. 249, 89 L. Ed. 236. The constitutional provisions as to venue assure to the accused a trial in the place where the crime is committed and are not concerned with the domicile of the accused. Haas v. Henkel, 216 U.S. 462, 30 S. Ct. 249, 54 L. Ed. 569.
The constitutional guarantees are our indestructible bulwarks against the invasions of liberty, and although seeming aberrations may occur in individual and isolated cases, I am not free to deviate from their universal application.
Accordingly defendant's motion to dismiss the indictment will be granted and an order should be settled in conformity therewith.