United States v. Ross, 4609.
| Decision Date | 19 June 1953 |
| Docket Number | No. 4609.,4609. |
| Citation | 205 F.2d 619 |
| Parties | UNITED STATES v. ROSS et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Eugene W. Davis, U. S. Atty., Topeka, Kan. (Robert H. Bingham, Asst. U. S. Atty., Topeka, Kan., on the brief), for appellant.
Harold Judson, Studio City, Cal., for appellees.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
An indictment containing 82 counts was returned against Ross and Tager in the United States District Court for the District of Kansas. Each count charged that the defendants `"did knowingly deposit for mailing at Van Nuys, California, for delivery in the District of Kansas," an envelope containing nonmailable material, as defined in 18 U.S.C.A. § 1461. The trial court dismissed the indictment on the ground that the venue was improperly laid in Kansas and that the court lacked jurisdiction over the offenses charged.
18 U.S.C.A. § 1461 defines nonmailable matter and further provides:
"Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both."
18 U.S.C.A. § 3237 reads:
The question presented is whether the offense of knowingly depositing for mailing or delivery anything declared by § 1461, supra, to be nonmailable is completed when the deposit is made, or whether it is a continuing offense. In other words, does the offense involve the use of the mails, as that phrase is used in § 3237, supra?
Section 1461, supra, is based on 18 U.S. C.A. § 334. As originally enacted, § 334 was derived from the Act of June 8, 1872, 17 Stat. 302. The latter act defined nonmailable matter and in part provided:
"Any person who shall knowingly deposit, or cause to be deposited, for mailing or for delivery, any such obscene publication, shall be deemed guilty of a misdemeanor, * * *."
While the statute has been amended from time to time, the provision of the original statute, making it an offense to "knowingly deposit, or cause to be deposited nonmailable matter, for mailing or for delivery," has not been substantially changed.
The courts which have passed on the question have uniformly held that the offense is complete when the deposit for mailing or delivery is made.1 A like construction has been placed upon analogous statutes making it an offense to deposit or cause to be deposited for mailing prohibited matter or articles.2 We are of the opinion that the offense is complete when the deposit is made in the mailing receptacle with the intent or purpose that it shall be carried...
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U.S. v. Bagnell
...the express purpose of overruling a tenth circuit decision holding that section 1461 was not a continuing offense, see United States v. Ross, 205 F.2d 619 (10th Cir. 1953), and thereby ensured that venue would lie "not only at the place at which the objectionable matter is mailed, but also ......
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Reed Enterprises v. Clark
...which seemingly resolved all ambiguity in cases involving use of the mails, the Tenth Circuit in 1953 in the case of United States v. Ross, 205 F.2d 619 (1953) refused to apply the continuing venue concept to language in the then obscenity statute which proscribed the "knowing deposit for m......
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Hamling v. United States 8212 507
.... . ..' (emphasis added). This was changed to read '(w)hoever knowingly uses the mails . . ..' The amendment overruled United States v. Ross, 205 F.2d 619 (CA10 1953), which held that the unlawful act proscribed in § 1461 was 'the deposit for mailing and not a use of the mails which may fol......
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U.S. v. Salinas
...similarly framed statutes have been found to create point-in-time offenses, not continuing offenses. See, e.g., United States v. Ross, 205 F.2d 619, 620-21 (10th Cir.1953) (construing former 18 U.S.C. § 1461 and explaining that a statute criminalizing the deposit of goods in the mail deline......