concurring specially.
I concur fully in Division 1, which concludes that the State failed to meet its burden to prove venue. However, with respect to Division 2, I respectfully disagree that the State’s evidence as to Count 2 of the indictment would suffice to prove an offense under OCGA § 16-10-20, which criminalizes false statements made in a “matter within the jurisdiction of any department or agency of state [or local] government.”
The State’s prosecution was based on false statements made solely to federal agents who were investigating possible federal crimes with no Georgia agents present. As pointed out by the majority, the federal code contains an analogous statute criminalizing false statements made to federal officers. See 18 USCS § 1001. A federal case addressing that statute’s former version (at 18 USCS § 80) pointed out that the criminal act is the deception itself, but only if it falls within a matter within the jurisdiction of the federal government. See United States v. White.6 As noted in that case, the criminality of such acts must have limits under the statute:
If [a federal offense] can be stretched to cover deception that is practiced upon a state policeman, then it can be stretched to cover any deception or false statement made, for instance to an inquisitive neighbor or friend or business associate concerning your citizenship, or your income, or any of the almost innumerable facts of life which are now regulated by — and thus within the “jurisdiction” of some department or agency of the Government.
Likewise, I believe that a state offense under OCGA § 16-10-20 *579should not be stretched to cover a deception practiced solely upon federal agents. Therefore, I believe false statements made solely to federal agents are properly prosecuted under federal law, and such statements should not serve as the sole basis for a violation of OCGA § 16-10-20.
Decided January 15, 2009 McKenney & Froelich, William J. McKenney, Adam M. Hames, for appellant. Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.It is undisputed that Tesler made no false statements to the APD during its investigation. Tesler made the false statements to federal agents during their investigation and while no state or local officers were present. Such an act does not occur during a “matter within the jurisdiction” of the state or local government. The federal government is not barred from prosecuting Tesler under 18 USCS § 1001 based on the facts here, but the State cannot prosecute him under OCGA § 16-10-20 as no state agents were involved. I therefore concur in the judgment reversing Tesler’s conviction, but I respectfully disagree with the analysis in Division 2.
United States v. White, 69 FSupp. 562, 564 (D. Cal. 1946).