United States v. Bink

Decision Date30 September 1947
Docket NumberNo. C-16937.,C-16937.
Citation74 F. Supp. 603
PartiesUNITED STATES v. BINK et al.
CourtU.S. District Court — District of Oregon


Henry L. Hess, U. S. Atty., Edward B. Twining and J. Robert Patterson, Assts. U. S. Atty., all of Portland, Or., for plaintiff.

Manley B. Strayer, of Portland, Or., for defendant.

JAMES ALGER FEE, District Judge.

The Grand jury in and for the District of South Dakota, sitting at Aberdeen in the Northern Division, returned into the United States District Court there an indictment charging that Colleen Schwindt had forged a receipt for payment of payee on a postal money order at the City of Sioux Falls in the County of Minnehaha in the Southern Division of that District. The cause was later transferred to the Southern Division for trial by order dated February 20, 1946. The defendant was arrested in Oregon. Later she signed a written document in which it was set up that she wished to plead guilty in this District. The orginal indictment was thereupon, by consent of the United States Attorneys of both Districts, forwarded from South Dakota and filed here. The United States Attorney for this District then asked the Court to receive the plea of defendant and if she should plead guilty, as indicated, to enter a judgment of conviction and to pronounce sentence.

Rule 20, Federal Criminal Rules of Procedure, 18 U.S.C.A. following section 687, expressly authorizes the transfer of the indictment under such circumstances. Indeed, it is contended that the rule has the force and effect of a statute not only to compel the transfer of the indictment, for which it expressly provides but also to compel the judge to receive the plea and enter judgment thereon, notwithstanding there is no express provision in the rule or any statute to that effect.

The theory is that the rule deals only with venue. Therefore, it is contended, neither the judges of the court where the indictment was originally returned nor those of the court in which defendant chooses to be arraigned and have the indictment sent, have any control over the proceeding. It is intimated that only the defendant and the prosecutors are interested. The implications of this theory are far-reaching. Since the district court of South Dakota has not been afforded the opportunity, this court will, before receiving or entering the plea, passing judgment or pronouncing sentence, examine the foundations of jurisdiction.

If venue solely is involved and there are no jurisdictional implications the matter is personal to defendant. Such a privilege of defendant, whether conferred by custom, statute or the Constitution, might well be waived by going to trial without objection. In civil proceedings, almost universally the right to have the action brought in a different locality or a different court is lost by any move which indicates consent to proceed in the court where it is brought.

It is urged that there are certain analogies which are persuasive that the place of trial in a criminal case is a purely personal privilege. In general these are: (1) waiver of the right of jury trial, (2) venue in criminal cases in state courts, (3) venue in criminal cases in federal courts which is not prescribed by the Constitution, and finally (4) cases in the federal courts where the indictment could have been brought in two different district courts. However it will appear from the analysis hereafter that such pretended parallels are fallacious. None justify the assumptions upon which the Rule is based.

The vital distinction between such cases and that at bar is that the place of indictment, trial and sentence in the state and district where the act was committed is part of the jurisdictional structure of each of the federal trial courts. A brief summary will show that none of the supposed analogies are valid.

First, the right of trial by jury whether in civil or criminal proceedings has always been held subject to waiver by defendant. The defendant waives his privilege by a plea of guilty, but this does not destroy the power of the court to proceed to judgment and sentence. In Patton v. United States1 it is pointed out from an historical standpoint that the presence of a jury was never a prerequisite to a valid judgment in either a criminal or a civil case. Since the right of jury trial was thus personal it could be waived and was waived before the federal government was founded.

The defendant may also waive other guarantees provided for him such as qualification of talesmen for jury duty, protection against double jeopardy, confrontation by witnesses, speedy trial, representation by counsel, protection against unlawful searches and seizures. On the other hand, until this rule was passed there was no precedent in the history of the federal government for indictment, trial and judgment of conviction in any other state and district than the state and district in which the crime was committed. The sophistry of the argument that if trial by jury can be waived then the place of a trial which is actually held can also be waived, is apparent. If place can be waived, presence of a judge can be waived, and of a tribunal which has jurisdiction. Second, under the decisions of many states criminal venue is a privilege of the defendant, but this circumstance establishes no precedent in the federal system, for state courts are looked upon as a unity, and furthermore, they have general jurisdiction. Until the contrary appears, jurisdiction of a state tribunal is presumed. Therefore, provisions as to the particular division of the court in which a cause shall be tried, or provisions of venue, whether statutory or constitutional in character, do not establish the jurisdiction of the court, and may be waived by a defendant.2

The reason for differentiation has been stated innumerable times since the adoption of the federal Constitution. The states are sovereign and have all residual powers not abstracted or limited by the fundamental federal law. On the other hand, the United States is a government of delegated powers. The federal district courts have limited powers from which Congress may substract with impunity but to which even Congress may add only within the boundaries set.

Thirdly, even in the federal system where one court has jurisdiction of the offense, waiver of formalities such as exact place of trial is also valid. One court has jurisdiction over each district and the divisions thereof. The latter are generally simply devices of conveniences.3 Indictment and trial respectively may be by statute in different places or divisions without transfer of jurisdiction from the specific district court in a particular case. This is true also where a new district has been created by partition of an existing district. Cases which are based on waiver under such circumstances are sound,4 but they have no application to the situation here, where two separate district courts are involved. Where by federal statute a criminal case is required to be tried at a particular locality and trial is held in another, but in the court of the state and district which had jurisdiction over the place of commission, the matter may be waived by defendant with consent of court.5 The reason for this is that the provision for venue does not affect jurisdiction.

Each of the federal district courts has been specially created pursuant to the authorization contained in the Constitution. These tribunals are separate. These are not branches of one nation-wide district court. Essentially the same problem is involved in a transfer of a criminal case pending in the state court of South Dakota to the state court of Oregon.6 It is true different sovereignties are offended there whereas here there is only one, but the transfer of jurisdiction from a court of South Dakota to a court of Oregon is essentially the same. The federal Constitution preserves the state entities. These cases then do not support the transfer of jurisdiction of one federal district court to another.7 Nor do they support the proposition that a federal court sitting in one state and district may found judgment and sentence on an indictment found in another state and district.

Finally, there are some dicta by the federal Circuit Courts of Appeals that place of trial in a criminal case is personal to defendant and may be waived. In each instance the indictment under consideration was returned in the district where trial was held and judgment pronounced and where the court of that district so acquired jurisdiction of the particular cause.8 In each instance also the defendant could have been indicted, tried and sentenced in either the district where trial was held or in another district mentioned in the indictment, dependent upon where the indictment were returned. If the indictment did not recite an act done in the district where it was returned,9 it was defective and should have been dismissed even if the appellate court noticed the point themselves.

Restriction as to the place of indictment and trial may be imposed as a jurisdictional limitation upon the court as well as a protection to the accused. Many mechanics of procedure which may be waived under some circumstances become jurisdictional barriers under other conditions.10 Trespass as to lands within a district and other civil actions local in character can be brought in that district alone,11 and if the defendant can not be found in the district, the federal courts have no power to act, nor can either party waive the requirement.12 The limitation is placed by the locality. It would have been inconceivable to the founders that any cause local in character could be tried outside the state of origin. Criminal causes were envisaged as definitely localized.

Therefore, although venue is a purely personal choice in the vast majority of cases, there are many situations where the locale is a juridical condition upon the power of the court to act.13 In such a case where venue in a...

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  • In re Hanson Industries, Inc.
    • United States
    • U.S. Bankruptcy Court — District of Minnesota
    • March 7, 1988
    ...the scope of § 2075 is invalid. In re National Store Fixture Co., 37 B.R. 481, 488 (Bkrtcy.W.D.Mo.1984). See also United States v. Bink, 74 F.Supp. 603, 615-16 (D.Ore.1947). However, there is a strong presumption in favor of the rule's validity, Wolff v. Wells Fargo Bank, 618 F.2d 76, 78 (9......
  • Gov't of the Virgin Islands v. Gereau
    • United States
    • U.S. District Court — Virgin Islands
    • September 24, 1973
    ...stemmed merely from F. R. Crim.P. 31(a), a procedural rule without even the force of a substantive act of Congress, see U.S. v. Bink, 74 F.Supp. 603, 615 (D.Ore. 1947), not to mention a provision of the Constitution. It stands to reason that the remedy for violations of Rule 31(a) should be......
  • United States v. Gallagher
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 21, 1950
    ...Court pursuant to authority granted by Congress the question comes down to whether the rule violates the Constitution. In United States v. Bink, 1947, 74 F.Supp. 603, the District Court for the District of Oregon has held it to be unconstitutional. We do not Section 3231 of Title 18 United ......
  • United States v. Lee
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    • U.S. District Court — District of Oregon
    • January 7, 2019
    ...A criminal defendant may only be charged and convicted in the state and district where the crime was committed. United States v. Bink, 74 F. Supp. 603, 613 (D. Or. 1947) ("The Constitution forbids indictment, trial and judgment in a criminal case in any state and district except where the c......
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