U.S. v. Salinas

• Decision Date: 28 June 2004
• Docket Number: No. 03-2376.,03-2376.
• Citation: 373 F.3d 161
• Parties: UNITED STATES of America, Appellee, v. Angel Edmundo SALINAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 161

373 F.3d 161

UNITED STATES of America, Appellee, v. Angel Edmundo SALINAS, Defendant, Appellant.

No. 03-2376.

United States Court of Appeals, First Circuit.

Heard May 5, 2004.

Decided June 28, 2004.

Bjorn Lange, Assistant Federal Public Defender, for appellant.

Mark E. Howard, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

Venue in a criminal case is not an arcane technicality. It involves "matters that touch closely the fair administration of criminal justice and public confidence in it." United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944). No reported federal court decision has addressed the question of venue in the context of a prosecution for passport fraud. Stepping onto virgin soil, we must decide whether venue for such a case can be laid in the district in which the State Department chooses to process a passport application even though that district has no other link to the offender or the offense. The district court answered this difficult question in the affirmative. We reach the opposite conclusion and hold that the relevant statutory framework does not support venue at the site of processing when that site is otherwise unconnected to either the offender or the offense. This holding requires that we reverse the lower court's venue determination and vacate the conviction that ensued.

I. BACKGROUND

The facts relevant to the issue before us are, for all intents and purposes, undisputed. By statute, the Secretary of State has the authority to "grant and issue passports." 22 U.S.C. § 211a. The administration of this function is delegable to "passport agents." 22 C.F.R. § 51.1. Thus, passports may be obtained from the Secretary's "designated subordinates." 69A Am.Jur.2d Passports § 23. That classification includes duly designated postal employees, who have delegated authority to accept applications and administer oaths in connection therewith. See 22 C.F.R. § 51.21(b)(4) (noting that a "postal employee designated by the postmaster at a post office which has been selected to accept passport applications" is so authorized).

On March 26, 2001, defendant-appellant Angel Edmundo Salinas, a native of Ecuador, appeared in person at a post office located in Brooklyn, New York. The State Department had denominated that post office as a passport application intake station. Once there, Salinas met with a duly designated postal employee and applied for a United States passport.

To make a tedious tale tolerably terse, Salinas completed the usual paperwork, produced a bogus New Jersey birth certificate as "proof" of United States citizenship, and paid the stipulated fee. He swore before the postal employee to the truth of the information he had entered on the form (including the false statement that he was a native of New Jersey).

Following the ordinary course, the post office forwarded Salinas's application to a bank in Pittsburgh, Pennsylvania. Employees of the bank, working under a contractual arrangement with the government, entered basic biographical data derived from the application into the State Department's computer system and deposited Salinas's check into a State Department account. The bank then routed the application to a national passport center (the Center) in Portsmouth, New Hampshire.¹ On April 12, 2001, a Portsmouth-based passport specialist sniffed out the fraud and an investigation ensued.

On November 7, 2002, a grand jury sitting in the District of New Hampshire handed up a three-count indictment charging Salinas with passport fraud in violation of 18 U.S.C. § 1542, making false statements in violation of 18 U.S.C. § 1001, and making a false claim of citizenship in violation of 18 U.S.C. § 911. Salinas moved to dismiss the indictment for lack of venue. The district court examined the indictment en gros and denied the motion. As to the passport fraud count, the court apparently concluded — we say "apparently" because the court disposed of the motion summarily, cross-referencing an earlier unpublished opinion — that venue would lie both in the district in which the application was made and in the district to which it was transferred for review.

In due season, the parties negotiated a plea agreement under which Salinas pleaded guilty to the passport fraud count while reserving his right to challenge the venue determination. See Fed.R.Crim.P. 11(a)(2). In exchange for this conditional plea, the government agreed to drop the other charges. The district court sentenced Salinas on the count of conviction (imposing a $500 fine and one year of probation) and dismissed the remaining two counts. This appeal ensued.

II. ANALYSIS

The government initiates criminal prosecutions and, thus, has first crack at selecting the venue. When that choice is challenged, the government must prove by a preponderance of the evidence that venue is proper as to each individual count. United States v. Pace, 314 F.3d 344, 349 (9th Cir.2002); United States v. Robinson, 275 F.3d 371, 378 (4th Cir.2001). The fact that venue in the District of New Hampshire may have been proper for either or both of the other two counts lodged against the defendant has no bearing on the propriety of venue vis-à-vis the passport fraud count. The criminal law does not recognize the concept of supplemental venue.

When a defendant in a criminal case appeals from a venue determination, we review the trial court's legal conclusions de novo and its factual findings for clear error. United States v. Scott, 270 F.3d 30, 34 (1st Cir.2001). For purposes of that review, we align the evidence of record in the light most flattering to the venue determination. See id. at 35.

It is common ground that a criminal defendant has a right to be tried in an appropriate venue. The importance of this right is emphasized by the fact that it is mentioned not once, but twice, in the text of the Constitution. See U.S. Const. art. III, § 2, cl. 3 ("The Trial of all Crimes... shall be held in the State where the said Crimes shall have been committed ...."); id. amend. VI (requiring trial of a criminal case "by an impartial jury of the State and district wherein the crime shall have been committed"). Congress has further entrenched these norms by an explicit directive that limits a criminal prosecution to "a district in which the offense was committed." Fed.R.Crim.P. 18. This rule "echoes the constitutional commands." United States v. Cabrales, 524 U.S. 1, 6, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998). The result is a safety net, which ensures that a criminal defendant cannot be tried in a distant, remote, or unfriendly forum solely at the prosecutor's whim. Seen in this light, it is readily apparent that venue requirements promote both fairness and public confidence in the criminal justice system. Johnson, 323 U.S. at 276, 65 S.Ct. 249.

The Supreme Court has formulated a set of guidelines for determining criminal venue. If the statute under which the defendant is charged contains a specific venue provision, that provision must be honored (assuming, of course, that it satisfies the constitutional minima). See Travis v. United States, 364 U.S. 631, 635, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); Armour Packing Co. v. United States, 209 U.S. 56, 73-75, 28 S.Ct. 428, 52 L.Ed. 681 (1908). Otherwise, the "locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946). In performing this tamisage, a court must begin by "identify[ing] the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts." United States v. Rodriguez-Moreno, 526 U.S. 275, 279, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). If the crime consists of distinct parts occurring in different places, venue is proper where any part of the crime occurred. See United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916); Scott, 270 F.3d at 35. Although the focus of this test is on the conduct comprising the offense, the Supreme Court has rejected the so-called "verb test" — the notion that action verbs reflected in the text of the statute should be "the sole consideration in identifying the conduct that constitutes an offense." Rodriguez-Moreno, 526 U.S. at 280, 119 S.Ct. 1239. Rather, an inquiring court should peer at the conduct elements comprising the crime through a wider-angled lens. See id. at 280 & n. 4, 119 S.Ct. 1239.

A

Against an unpainted backdrop — this is, as we have said, an issue of first impression in the federal appellate courts — we turn to the text of the statute of conviction. In relevant part, the passport fraud statute forbids a person from "willfully and knowingly mak[ing] any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws." 18 U.S.C. § 1542. The statute contains no explicit venue provision. Thus, we must assay the substantive definition of the crime in an effort to ascertain its nature and essential conduct elements. See Rodriguez-Moreno, 526 U.S. at 280, 119 S.Ct. 1239; United States v. Lanoue, 137 F.3d 656, 661 (1st Cir.1998).

Here, the plain language of the relevant portion of the statute² makes pellucid that a violation requires only two things: (i) the making of a false statement, (ii) with the intent to secure the issuance of a passport. See 18 U.S.C. § 1542; see also United States v. White, 1 F.3d 13, 16 (D.C.Cir.1993). We think it follows that passport fraud is complete at the moment an applicant makes a...