918

False Statements and Venue

The Congress did not expressly provide special venue provisions in 18 U.S.C. § 1001 cases. United States v. Barsanti, 943 F.2d 428, 434-35 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992). Venue for false statements under § 1001 is proper in the district in which the false statements are made, filed, or ultimately submitted. United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990); United States v. Culuoso, 461 F. Supp. 128 (S.D.N.Y. 1978). Except as otherwise mandated by statute, venue is proper in any district in which the offense was committed. Fed. R. Crim. P. 18. Where the offense is of a continuing nature, venue is proper in any district where the acts constituting the offense were begun, continued or completed, unless otherwise provided by statute. 18 U.S.C. § 3237. Although venue must be alleged in every Federal indictment, it is not an element of the charged offense. United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1988). The government has the burden of proving venue by a preponderance of the evidence. United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991), cert. denied, 506 U.S. 901 (1992). The Supreme Court has cautioned that the venue rules are not to be treated lightly. United States v. Johnson, 323 U.S. 273, 276 (1961). The Sixth Amendment of the United States Constitution has been interpreted to provide a guarantee of trial in the state and district in which the crime was committed. If prosecution is brought in an improper venue, timely objection will result in dismissal of the indictment and prevent further proceedings if the statute of limitations has run. Several courts have specifically stated that preparation for the commission of the crime is not part of the crime, and therefore, venue is not proper in the district of preparation. These courts view preparation as independent from commission. A different result should be reached when the "preparation" is an integral part of the commission of the crime, and it can fairly be said that by doing the act of preparation the defendant "began" the commission of the crime. Once an offense has been completed, Section 3237 permits the government the option of bringing prosecution in any proper district as far back as the "beginning" of the crime, as defined by the pertinent statute. In United States v. Travis, 364 U.S. 631 (1961), the Supreme Court was faced with the interplay of two statutes, 18 U.S.C. § 1001 and Section 9(h) of the National Labor Relations Act (NLRA). The latter statute provides that no action will be taken by the National Labor Relations Board (NLRB) until certain affidavits are on file in the District of Columbia. In Travis the issue was whether venue in the place that the affidavits were mailed was proper. The Court seized on the language in Section 9(h) of the NLRA denying any NLRB action "until" the document was on file and the 18 U.S.C. §  1001 requirement that the false statement be made within the jurisdiction of a department or agency. The Court reasoned that NRLA's Section 9(h) did not apply until the affidavit was received by the NLRB, and thus, at the time of mailing, the false statement was not within the jurisdiction of any department or agency. Because of the peculiar interaction of Section 9(h) with 18 U.S.C. §  1001, the Federal government and courts have read Travis restrictively. With the exception of Travis, some cases have held venue to be proper in the place of mailing a false document. [cited in USAM 9-42.001]