United States v. Mischlich

• Decision Date: 06 March 1970
• Docket Number: Crim. No. 284-67.
• Citation: 310 F. Supp. 669
• Parties: UNITED STATES of America, Plaintiff, v. Richard S. MISCHLICH, Defendant.
• Court: U.S. District Court — District of New Jersey

310 F. Supp. 669

UNITED STATES of America, Plaintiff, v. Richard S. MISCHLICH, Defendant.

Crim. No. 284-67.

United States District Court, D. New Jersey.

March 6, 1970.

George J. Koelzer, Asst. U. S. Atty., Newark, N. J., for plaintiff.

John A. Yacovelle, Jr., Cherry Hill, N. J., for defendant.

OPINION

STEEL, District Judge:

The defendant was tried and convicted by a jury under Counts VI and VII of an indictment following which defendant moved for an acquittal and judgment thereon was reserved.

COUNT VI

This count charged defendant with knowingly having made a false representation of a material fact in a matter within the jurisdiction of the Small Business Administration. The misrepresentation was alleged to have been contained in a letter and balance sheet supplementing a loan application of the Ariston Canning Company. Title 18 U. S.C. § 1001 was thereby alleged to have been violated in the District of New Jersey where the case was tried. Section 1001 provides:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

Defendant contends that a variance appears between the indictment and proof. He points out with accuracy that the evidence established that the documents containing the alleged misrepresentation were hand delivered at the Philadelphia office of the Small Business Administration (the only office which had authority to pass on the loan) and from this fact argues that the crime was committed in the Eastern District of Pennsylvania and not in the District of New Jersey. For this reason, defendant urges, venue lay only in Pennsylvania.

The Government points out, however, that there was evidence that an oral misrepresentation of the same tenor as the written one was first made in New Jersey to the Small Business Administration representative and that the documents later delivered in Philadelphia were simply confirmatory of the prior oral statement. (Tr. 311, 313-314). For this reason it argues the crime was committed in New Jersey as well as in Pennsylvania.

The oral misrepresentation relied upon by the Government cannot support venue in New Jersey without creating a fatal variance from the indictment which pleads only the written misrepresentation.¹

The following discussion will, therefore, be based upon the premise that the only misrepresentation made to the Small Business Administration was in the writings pleaded in the indictment which were hand delivered to its Philadelphia office.

Upon this basis, the rationale of Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) and United States v. Valenti, 207 F.2d 242 (3d Cir. 1953) supports defendant's contention that venue lay only in Pennsylvania. So also does the holding in United States v. Borow, 101 F.Supp. 211 (D. N.J.1951).

As an additional reason for arguing that venue existed in both New Jersey and Pennsylvania, the Government points to paragraph one of 18 U.S.C. § 3237(a). It provides:

"Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed."

The Government argues that although it may be assumed that no crime was committed until the documents containing the alleged misrepresentation were delivered to the Small Business Administration in Philadelphia, the action leading to the crime was at least begun in New Jersey where the documents were prepared and from which they were carried into Pennsylvania for delivery. This construction of section 3237(a), if accepted, would do violence to Art. III, § 2 of the Constitution and the Sixth Amendment which provide that the trial of all crimes, except impeachments, shall be held in the states where the crimes were committed. Since the only criminal act which was proved occurred in Pennsylvania, it alone had venue under the terms of the Constitution. Multiple venue in general requires crimes consisting of "distinct parts" or involving "a continuously moving act". Travis v. United States, supra, 364 U.S. at 636, 81 S.Ct. 358. The crime here involved falls in neither of these categories.

The Government further contends that defendant has waived any right which he otherwise might have to challenge the venue of New Jersey. This argument requires a brief review of the history of the litigation.

The conviction presently challenged resulted from a second trial of defendant. In an earlier trial, after the Government had rested its case, defendant moved for a judgment of acquittal under Count VI, among others. The motion was denied. The grounds of the motion were specified. Lack of venue was not included among them, although when the motion was made the proof established that the documents containing the alleged misrepresentation had been delivered to the Small Business Administration in Philadelphia.² The right of a defendant to be tried in the district where the crime was committed is a privilege that may be waived by failure to make a timely objection. United States v. Polin, 323 F.2d 549, 556-557 (3d Cir. 1963.) The failure to raise the venue objection as a ground for a motion to acquit, when other grounds are particularized, constitutes a waiver of the venue objection. United States v. Rivera, 388 F.2d 545 (2d Cir.), cert. denied, 392 U.S. 937, 88 S.Ct. 2308, 20 L. Ed.2d 1396 (1968).³ So the defendant waived the venue defense in the first trial.

After the denial of the motion to acquit in the first trial, the defense began to put in its case in the course of which a mistrial was declared for reasons not now material. The second trial followed which resulted in the conviction which is the subject of the present motion for an acquittal. In this latter action, before the commencement of trial, at the close of the Government's case and at the conclusion of the trial, the defendant assiduously pressed its contention that the District of New Jersey was not the proper venue for the trial of the action.

Since during the first trial the defendant implicitly consented to have Count VI tried in New Jersey, the question arises whether by this consent defendant is foreclosed from later effectively objecting to being tried for the same crime in the same district. No case which has been brought to the Court's attention discussed this point directly.⁴ An examination of the legal effect of a mistrial is therefore necessary.

The declaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all. See 58 C.J.S. Mistrial at 833-834 (1948). The situation which exists is analogous to that which results from an appellate reversal and remand for new trial. See 5 Am. Jur.2d Appeal and Error § 955 at 382 (1962). The parties are returned to their original positions and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial. See, e. g., United States v. Shotwell Mfg. Co., 355 U.S. 233, 243, 78 S. Ct. 245, 2 L.Ed.2d 234 (1957); United States v. Romano, 241 F.Supp. 933, 936-937 (D.Me.1965); 5 Am.Jur.2d Appeal and Error § 955 (1962). Compare United States v. Lutz, 420 F.2d 414 (3d Cir. 1970) where, although a jury trial had been waived by both parties at the first trial and later a mistrial was declared, in a second trial it was held that a jury trial would be allowed upon the insistence of one of the parties. The Court said (p. 416):

"Once a mistrial was declared each party was free to assert or waive his rights."

The venue defense, although waived in the first trial in the...