The opinion of the court was delivered by: FORMAN
Anticipatory of trial in this matter defendant, Louis S. Borow, filed a motion to dismiss the indictment herein on two grounds: (1) that this court was without jurisdiction to try the offense, presumably in view of the provisions of Article 3, Section 2, Paragraph 3 and of the Sixth Amendment to the Federal Constitution
and Rule 18 of the Federal Rules of Criminal Procedure, 18 U.S.C. foll. § 687,
and (2) that the indictment failed to contain a sufficient statement of the essential facts of the offense charged.
The latter ground is not strenuously argued. I am convinced that the indictment fairly apprises the defendant of the nature of the offense with which he is charged, so that its dismissal is not required. See United States v. Levy, 3 Cir., 153 F.2d 995.
However, the attack upon this court's jurisdiction based upon improper venue presents a more serious problem.
The indictment charges that on or about August 2, 1948 at Bound Brook, in the County of Somerset and State and District of New Jersey, the defendant '* * * did knowingly, willfully and unlawfully falsify, conceal, and cover up by tricks, schemes and devices, material facts, and did made and use false and fraudulent representations, in matters within the jurisdiction of an agency of the United States, to wit, the War Assets Administration, that is to say, the defendant did then and there place or cause to be placed in the United States mails for delivery to War Assets Administration, Box 216, Wall Street Station, New York 5, New York, a letter wherein he falsely represented to the War Assets Administration as follows:
'1. That he was Purchasing Agent for Bound Brook Hospital, 507 Church Street, Bound Brook, New Jersey.
'2. That said hospital desired to purchase a large quantity of drugs from said War Assets Administration, subject to its authorized 95% discount.
'Whereas in truth and in fact, the defendant was not Purchasing Agent for said hospital and said hospital did not desire to purchase the drugs mentioned in said letter, but the defendant desired to purchase said drugs for his own use and profit.'
The Government, in bringing this indictment, was apparently under the misapprehension that the letter was mailed at Bound Brook, New Jersey, and it so alleged. It subsequently discovered that the letter was prepared at Plainfield, New Jersey and delivered in person by the defendant at New York, and, accordingly, on October 9, 1951, the attorneys for the Government and the defendant stipulated the following facts:
'1. On August 2, 1948, the defendant, Louis S. Borow, had his daughter, Ivy Borow, type at Plainfield, New Jersey, a letter addressed to War Assets Administration, Box 216, Wall Street Station, New York 5, New York.
'2. The letter was typed on one sheet of the stationery of Bound Brook Hospital; attached to it was a list, also typewritten under the defendant's instructions, consisting of two typewritten pages.
'3. The said letter, with the list attached, was delivered in person by the defendant to the office of the War Assets Administration in New York, New York on August 2, 1948.
'4. The said letter is identical with the letter which is a part of Exhibit G-3, received in evidence at the first trial of this cause on May 14, 1951. The original list above referred to is not identical with the list which is a part of the said Exhibit G-3.
The question then narrows down to whether this courts has jurisdiction to try the defendant for violation of Sec. 80 of Title 18 U.S.C.A., 52 Stat. 197, which provides in part that no one shall knowingly and willfully falsify or conceal or cover up by any trick, scheme or device a material fact, or make or cause to be made any false or fraudulent statements or ...