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UNITED STATES v. MISCHLICH

March 6, 1970

UNITED STATES of America, Plaintiff,
v.
Richard S. MISCHLICH, Defendant


Steel, District Judge.


The opinion of the court was delivered by: STEEL

The defendant was tried and convicted by a jury under Counts VI and VII of an indictment following which defendant moved for an acquittal and judgment thereon was reserved.

 COUNT VI

 this count charged defendant with knowingly having made a false representation of a material fact in a matter within the jurisdiction of the Small Business Administration. The misrepresentation was alleged to have been contained in a letter and balance sheet supplementing a loan application of the Ariston Canning Company. Title 18 U.S.C. § 1001 was thereby alleged to have been violated in the District of New Jersey where the case was tried. Section 1001 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."

 The Government points out, however, that there was evidence that an oral misrepresentation of the same tenor as the written one was first made in New Jersey to the Small Business Administration representative and that the documents later delivered in Philadelphia were simply confirmatory of the prior oral statement. (Tr. 311, 313-314). For this reason it argues the crime was committed in New Jersey as well as in Pennsylvania.

 The oral misrepresentation relied upon by the Government cannot support venue in New Jersey without creating a fatal variance from the indictment which pleads only the written misrepresentation. *fn1"

 The following discussion will, therefore, be based upon the premise that the only misrepresentation made to the Small Business Administration was in the writings pleaded in the indictment which were hand delivered to its Philadelphia office.

 Upon this basis, the rationale of Travis v. United States, 364 U.S. 631, 81 S. Ct. 358, 5 L. Ed. 2d 340 (1961) and United States v. Valenti, 207 F.2d 242 (3d Cir. 1953) supports defendant's contention that venue lay only in Pennsylvania. So also does the holding in United States v. Borow, 101 F. Supp. 211 (D.N.J. 1951).

 As an additional reason for arguing that venue existed in both New Jersey and Pennsylvania, the Government points to paragraph one of 18 U.S.C. § 3237(a). It provides:

 
"Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed."

 The Government argues that although it may be assumed that no crime was committed until the documents containing the alleged misrepresentation were delivered to the Small Business Administration in Philadelphia, the action leading to the crime was at least begun in New Jersey where the documents were prepared and from which they were carried into Pennsylvania for delivery. This construction of section 3237(a), if accepted, would do violence to Art. III, § 2 of the Constitution and the Sixth Amendment which provide that the trial of all crimes, except impeachments, shall be held in the states where the crimes were committed. Since the only criminal act which was proved occurred in Pennsylvania, it alone had venue under the terms of the Constitution. Multiple venue in general requires crimes consisting of "distinct parts" or involving "a continuously moving act". Travis v. United States, supra, 364 U.S. at 636, 81 S. Ct. 358. The crime here involved falls in neither of these categories.

 The Government further contends that defendant has waived any right which he otherwise might have to challenge the venue of New Jersey. This argument requires a ...


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