United States v. Sorce

• Decision Date: 11 September 1962
• Docket Number: No. 8474.,8474.
• Parties: UNITED STATES of America, Appellee, v. James G. SORCE, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

308 F.2d 299 (1962)

UNITED STATES of America, Appellee, v. James G. SORCE, Jr., Appellant.

No. 8474.

United States Court of Appeals Fourth Circuit.

Argued June 6, 1962.

Decided September 11, 1962.

Harold Buchman, Baltimore, Md. (Lawrence B. Coshnear, Baltimore, Md., on brief), for appellant.

Arnold M. Weiner, Special Asst. to the U. S. Atty. for the D. of Maryland (Joseph D. Tydings, U. S. Atty. for the D. of Maryland, on brief), for appellee.

Before SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.

SOBELOFF, Chief Judge.

This appeal from a conviction under the mail fraud statute challenges, primarily, the venue of the trial in the United States District Court for the District of Maryland.

The First Capitol Savings and Loan Association, now in bankruptcy, was a Maryland corporation organized at the instigation of the defendant. It maintained offices in Belleville, New Jersey, near where the defendant lived, as well as in Baltimore, Maryland. A New Jersey man, Maurice Moriarty, was the president of the Association, but he was only a figurehead, having a full-time unskilled job elsewhere loading and unloading trucks. Incontestably, the defendant was the sole dominating force in the affairs of the Association throughout its existence.

Howard Rothacker, the victim of the fraud charged to the defendant, resided in Hazelton, Pennsylvania. Early in 1959, Rothacker wrote to the Association in response to an advertisement the defendant caused to be published in a Philadelphia newspaper, soliciting accounts for the Association. Rothacker was attracted by the very high interest rate offered, but desired insurance to cover his deposits. A series of letters passed between Rothacker in Pennsylvania and the defendant in New Jersey, writing over Moriarty's signature. It was represented to Rothacker, first, that negotiations were in progress with an insurance company to insure his deposits and later, when these negotiations fell through, that federal bonds had been purchased by the Association and set aside in special escrow or trust to cover the deposits. The evidence presented to the jury showed, however, that during most of the period in question the defendant had no such bonds in his possession, and that when he had bonds they were in no way segregated for Rothacker's protection but remained under the sole control of the defendant.

In reliance on the false representations made to him, Rothacker mailed to the Association's Maryland office a series of deposits aggregating in excess of $40,000.00. When the Association later went into bankruptcy, Rothacker found that his deposits were not secured by federal bonds. He was thus forced to share the assets of the Association with the other general creditors, and consequently suffered a heavy financial loss.

On these facts, the defendant contends that Maryland was not the proper venue for his trial. It is a settled constitutional principle that venue in a criminal case may be laid in any district where the crime was committed.¹ In deciding in any particular case the propriety of the venue, it is necessary to determine whether the applicable venue statute permits an indictment in that district, and of course whether the crime was committed there. Contrary to the defendant's contentions, we find that both tests are met in the present case.

The mailings which are the subject of the six-count indictment in this case are not the preliminary correspondence between the defendant in New Jersey and Rothacker in Pennsylvania, which set the trap, but the mailings by Rothacker, enclosing his checks, to the Association in Maryland in response to the fraudulent inducements of the defendant. In order to support a conviction under the mail fraud statute, 18 U. S.C.A. § 1341,² it is not necessary that the false representations were themselves transmitted by mail, nor that the defendant personally received the mail from his victim. It is sufficient that the use of the mails was caused by the defendant in furtherance of his fraudulent scheme.³ In this case, the defendant's aim was to induce Rothacker to send his savings to the Association in Maryland. The receipt of the mail there was an integral part, indeed the ultimate objective, of the defendant's fraudulent scheme. Consequently, while criminal acts were also committed in New Jersey and in Pennsylvania, it is certain that the federal offense charged was also committed in Maryland.

Having established that the crime took place in Maryland, there is no doubt that the requirements of the statute for establishing venue in that district were met. 18 U.S.C.A. § 3237(a). It provides in pertinent part:

"Any offense involving the use of the mails * * * is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such * * mail matter moves." (Our italics).

As the fraudulently induced mail was sent by Rothacker into Maryland, the case falls within the express terms of the statute.

The defendant argues that the trial should have been held in New Jersey where he lives and where, he claims, most of the witnesses and records were to be found. However, the defendant did not move in the District Court under Rule 21(b) for a transfer of the case to another district. Fed.R.Crim.P. 21 (b), 18 U.S.C.A.⁴ The asserted grounds are not sufficient to defeat venue once it has been shown that the constitutional and statutory prerequisites have been met.

A number of other issues are raised, but the record lends no support to any of them. For example, the defendant argues that unfavorable publicity in the Baltimore newspapers directed against savings and loan associations prevented him from having a fair trial...