United States v. Newton

• Decision Date: 06 December 1946
• Docket Number: Cr. No. 5510.
• Citation: 68 F. Supp. 952
• Parties: UNITED STATES v. NEWTON.
• Court: U.S. District Court — Western District of Virginia

68 F. Supp. 952

UNITED STATES v. NEWTON.

Cr. No. 5510.

District Court, W. D. Virginia, at Danville.

December 6, 1946.

Howard C. Gilmer, Acting U. S. Atty., of Pulaski, Va., for plaintiff.

L. Preston Collins, of Marion, Va., Lindsay L. Moore, of Ringgold, Va., and Jerome P. Carr, of Portsmouth, for defendant.

BARKSDALE, District Judge.

An indictment in 20 counts, charging violations of 26 U.S.C.A. Int.Rev.Code, § 3793(b) (1), was found at the September 1946 term of the Danville Division of this Court, the United States District Court for the Western District of Virginia, against J. Mills Newton, a resident of Danville. So far as it is pertinent here, the Code Section is as follows: "Any person who willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document, shall (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document) be guilty of a felony, * * *."

The first count of the indictment, which is typical, charges in part: "That on or about the 24th day of May, 1945, in the City of Danville, in the Western District of Virginia, J. Mills Newton unlawfully and feloniously did wilfully aid and assist in, and procure, counsel and advise the preparation under, and in connection with a matter arising under, the Internal Revenue laws, of a false and fraudulent claim in the sum of $79.61, based upon amended income tax returns for the years 1942 and 1943, of Cooper T. Garner and Lizzie Garner * * *, and which claim was filed with the Collector of Internal Revenue for the District of Virginia."

The court takes judicial notice of the fact, and the Government concedes, that the Office of the Collector of Internal Revenue for the District of Virginia is, and was at all times here pertinent, located at Richmond in the Eastern District of Virginia. Therefore, the actual filing of the claims referred to in the indictment was in the Eastern District of Virginia.

The defendant has filed his motion to dismiss this indictment, upon a number of grounds set out in the motion, only one of which, however, appears to me to merit serious consideration, which is, "That the court is without jurisdiction, because the offense, if any, is cognizable only in the Richmond Division of the Eastern District of Virginia." In his memorandum in support of his motion, the defendant contends that, if he has committed any crime, it was committed at Richmond in the Eastern District of Virginia where the returns and claims described in the indictment were filed, and that the indictment charges him with no crime committed in the Western District of Virginia. He therefore contends that under the familiar rule of law embodied in the Sixth Amendment of the Constitution, and Rule 18 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, any prosecution against him must be in the Eastern District of Virginia, and that no such prosecution can be maintained in this, the Western District. The Government contends that the crime charged in the indictment was committed in this, the Western District.

Whether or not, under the facts alleged in the indictment, the defendant might be prosecuted in the Eastern District of Virginia, is not before me. The question which I must determine is whether or not the indictment properly charges the commission of a crime in this, the Western District of Virginia, and counsel have not cited me any case, nor do I find any, which passes on this precise question.

It is to be noted that, while the statute makes it a crime to aid or assist in "the preparation or presentation" of a false claim, the indictment charges only "the preparation" of false claims. Since only aid and assistance in "preparation", and not aid and assistance in "presentation", is here charged, it might be contended that the offense charged might be complete whether or not the false claim was ever filed with the Commissioner of Internal Revenue. However, I do not believe that such a contention would be sound, because it seems to me that no matter how formally and completely a fraudulent document might be prepared, it would not be a "return" or "claim" unless and until it were filed with, or presented to, a Government official such as a Collector of Internal Revenue. It seems to me that the actual filing or presentation of the false claim is not an essential element of the crime here charged, in the sense that it would not be necessary to prove that the defendant filed or presented the false claim. However, in my opinion, the fact of the filing or presentation of the false claim with the Collector, is an essential element of the crime in the sense that the filing or presentation by somebody is a necessary element of proof, because the document does not become a claim or return until so filed. If the defendant should assist a taxpayer in the preparation of the most dishonest or fraudulent kind of a return, and then immediately have a change of heart, tear up the document, and throw it in the wastebasket, it is inconceivable to me that he should have committed a crime. And even if he should assist in the preparation of such a claim and deliver it to the taxpayer with the belief that he would file it, I do not believe that he would have committed a crime unless and until the document was actually filed. Therefore, it would seem to follow that although proof of the filing or presentation by some one is necessary in order to show that the document became an actual claim or return, it is not here charged that the defendant aided in the filing or presentation of the claims, and it would seem that the entire offense which he is charged with committing took place in the Western District of Virginia.

But even if it be assumed that the filing or presentation of the claims here involved, in Richmond, in the Eastern District of Virginia, was an essential element of the crime here charged, it would seem to me indisputable that the offense was begun in this, the Western District of Virginia, by the defendant's assistance in the preparation of the claim. It would, therefore, seem that Section 42 of the Judicial Code, 28 U.S.C.A. § 103 is applicable. This section is as follows: "When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein".

Defendant contends that this section is not applicable to the situation here under consideration, and relies upon Reass v. United States, 4 Cir., 99 F.2d 752. However, I do not think that this case supports defendant's contention.

In the Reass case, the defendant was indicted and tried in the Northern District of West Virginia for making a false statement for the purpose of influencing the action of the Federal Home Loan Bank of Pittsburg, Pennsylvania. It appeared that the false statement was prepared in the Northern District of West Virginia, and then taken in person by the defendant from West Virginia to Pittsburg, completed, and presented to the bank. The court, expressing no opinion on what the situation might have been had the defendant mailed the false statement in West Virginia, held: that the defendant had committed no crime in West Virginia; that...