The defendants argue, however, that venue could not possibly lie in the Eastern District of Virginia, which the claims only "passed through." In support of their position, the defendants rely heavily on Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), and Reass v. United States, 99 F.2d 752 (4th Cir. 1938). The courts in both these cases restricted venue solely to the district in which a false statement was actually submitted to or filed with a governmental agency.
II. We first address whether signing the loan application in the Eastern District established venue there. Brown relies on an 80-year-old Fourth Circuit case, Reass v. United States , 99 F.2d 752 (4th Cir. 1938), which held that a charge of making a false statement to a federal credit institution can only be tried in the district where the federal agency received the document. Id. at 755 (concluding that the "communication of the false statements to the corporation constitutes the very essence of the crime"); accord United States v. Katzoff , 268 F.Supp.2d 493 (E.D. Pa. 2003).
The SEC also endeavors to prop up its "use" theory of Rule 10b-5(b) liability by referring to a venerable Fourth Circuit case deciding, for venue purposes, whether a defendant violated a federal mortgage fraud statute in West Virginia or in Pennsylvania. See Reass v. United States, 99 F.2d 752, 755 (4th Cir.l938). The only reason the opinion has even an epsilon's worth of relevance to the issue at hand is that the challenged statute rendered it unlawful to "make[] any statement, knowing it to be false, for the purpose of influencing in any way the action of a Federal Home Loan Bank upon any application for loan." Id. at 752.
While the matter may constitute the crime of perjury under state law, a false statement has not been made in a matter within the jurisdiction of the National Labor Relations Board, within the meaning of section 1001, until the affidavit through its filing has become the basis for action by the Board. Compare Reass v. United States, 4 Cir., 1938, 99 F.2d 752, and United States v. Borow, D.C.N.J. 1951, 101 F. Supp. 211, in which similar conclusions were reached under analogous statutes. The evidence in this case was that the defendant signed and swore to the noncommunist affidavit in Camden, New Jersey. The notary public who took the affidavit was an office secretary of the defendant's union in Camden.
In Reass v. United States, the Fourth Circuit addressed venue under another statute-12 U.S.C. § 1441(a)-which, at the time, criminalized making a statement, knowing it to be false, for the purpose of influencing the action of a Federal Home Loan Bank upon application for a loan. 99 F.2d 752, 752 (4th Cir. 1938). In that case, the alleged false statement was prepared and signed in West Virginia, but the false statement was later hand delivered to the bank in Pennsylvania.
Defendants next complain that Count 2 should be dismissed because venue is not proper in this district. Relying on Reass v. United States, 99 F.2d 752 (4th Cir. 1938) and Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), defendants argue that proper venue lies in the District of Columbia where the Form 10-Q was filed, rather than in this district where the Form was prepared. The Sixth Amendment mandates trial in the "State and district wherein the crime shall have been committed," and proof of venue is therefore an essential part of the government's case.
The fact that preparations, even essential ones, may take place "elsewhere," and that effects may radiate widely, does not render a discrete and identifiable wrong "continuing" so as to give the prosecution a choice of two or more districts in which to prosecute. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905); Krogmann v. United States, 225 F.2d 220, 227 (6th Cir. 1955); Reass v. United States, 99 F.2d 752, 754 (4th Cir. 1938). While the cited cases involved statutes other than the one that concerns us here, the principles they serve to define and illuminate seem plainly to govern the present situation.
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).
[5] It is apparent from the authorities which have discussed subdivision 1 of section 27 and similar statutes in other jurisdictions that such a provision can apply where the acts done within the state are sufficient to amount to an attempt to commit a crime but not otherwise. ( People v. MacDonald, 24 Cal.App.2d 702, 709-711 [ 76 P.2d 121]; People v. Werblow, 241 N.Y. 55 [ 148 N.E. 786, 789] [opinion by Judge Cardozo]; see Rest., Conflict of Laws, § 428; Comment e; People v. Botkin, 132 Cal. 231, 233 [ 64 P. 286, 84 Am.St. Rep. 39]; People v. Sansom, 37 Cal.App. 435, 438-439 [ 173 P. 1107]; People v. Chapman, 55 Cal.App. 192, 196-199 [ 203 P. 126] [act constituting an "essential ingredient" of the crime]; cf.People v. Harden, 14 Cal.App.2d 489 [ 58 P.2d 675]; People v. Lakenan, 61 Cal.App. 368 [ 214 P. 1021]; Reass v. UnitedStates, 99 F.2d 752, 755 [stating that certain acts were only preparation and not "part" of the crime itself].) To read such a statute as authorizing the punishment by one state of acts which do not amount to an attempt but are merely preparatory to the commission of a crime in another state would seem tantamount to an effort to regulate conduct in the other jurisdiction.
We recognize that Johnson's opposite view finds support in dicta from other circuits. See, e.g., Reass v. United States, 99 F.2d 752, 755 (4th Cir. 1938) ("[C]ommunication of the false statements to the corporation constitutes the very essence of the crime. . . . [I]t is only when [the statements] are communicated to the lending bank that the crime takes place."). But so too does the government's.