United States v. Salinas

United States Court of Appeals
For the First Circuit

No. 03-2376

UNITED STATES OF AMERICA,
Appellee,

v.

ANGEL EDMUNDO SALINAS,
Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Bjorn Lange, Assistant Federal Public Defender, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.

June 28, 2004
 SELYA, Circuit Judge. Venue in a criminal case is not an

arcane technicality. It involves "matters that touch closely the

fair administration of criminal justice and public confidence in

it." United States v. Johnson, 323 U.S. 273, 276 (1944). No

reported federal court decision has addressed the question of venue

in the context of a prosecution for passport fraud. Stepping onto

virgin soil, we must decide whether venue for such a case can be

laid in the district in which the State Department chooses to

process a passport application even though that district has no

other link to the offender or the offense. The district court

answered this difficult question in the affirmative. We reach the

opposite conclusion and hold that the relevant statutory framework

does not support venue at the site of processing when that site is

otherwise unconnected to either the offender or the offense. This

holding requires that we reverse the lower court's venue

determination and vacate the conviction that ensued.

I. BACKGROUND

The facts relevant to the issue before us are, for all

intents and purposes, undisputed. By statute, the Secretary of

State has the authority to "grant and issue passports." 22 U.S.C.

§ 211a. The administration of this function is delegable to

"passport agents." 22 C.F.R. § 51.1. Thus, passports may be

obtained from the Secretary's "designated subordinates." 69A Am.

Jur. 2d Passports § 23. That classification includes duly

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designated postal employees, who have delegated authority to accept

applications and administer oaths in connection therewith. See 22

C.F.R. § 51.21(b)(4) (noting that a "postal employee designated by

the postmaster at a post office which has been selected to accept

passport applications" is so authorized).

On March 26, 2001, defendant-appellant Angel Edmundo

Salinas, a native of Ecuador, appeared in person at a post office

located in Brooklyn, New York. The State Department had

denominated that post office as a passport application intake

station. Once there, Salinas met with a duly designated postal

employee and applied for a United States passport.

To make a tedious tale tolerably terse, Salinas completed

the usual paperwork, produced a bogus New Jersey birth certificate

as "proof" of United States citizenship, and paid the stipulated

fee. He swore before the postal employee to the truth of the

information he had entered on the form (including the false

statement that he was a native of New Jersey).

Following the ordinary course, the post office forwarded

Salinas's application to a bank in Pittsburgh, Pennsylvania.

Employees of the bank, working under a contractual arrangement with

the government, entered basic biographical data derived from the

application into the State Department's computer system and

deposited Salinas's check into a State Department account. The

bank then routed the application to a national passport center (the

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Center) in Portsmouth, New Hampshire.1 On April 12, 2001, a

Portsmouth-based passport specialist sniffed out the fraud and an

investigation ensued.

On November 7, 2002, a grand jury sitting in the District

of New Hampshire handed up a three-count indictment charging

Salinas with passport fraud in violation of 18 U.S.C. § 1542,

making false statements in violation of 18 U.S.C. § 1001, and

making a false claim of citizenship in violation of 18 U.S.C. §

911. Salinas moved to dismiss the indictment for lack of venue.

The district court examined the indictment en gros and denied the

motion. As to the passport fraud count, the court apparently

concluded — we say "apparently" because the court disposed of the

motion summarily, cross-referencing an earlier unpublished opinion

— that venue would lie both in the district in which the

application was made and in the district to which it was

transferred for review.

In due season, the parties negotiated a plea agreement

under which Salinas pleaded guilty to the passport fraud count

while reserving his right to challenge the venue determination.

1
The State Department has established passport centers in
various parts of the country. The government represents that most
passport applications made in the northeastern states are processed
in Portsmouth. It concedes, however, that some are sent to other
centers depending on considerations such as case load and backlog.
By like token, the Center has occasionally processed passport
applications made as far away as California. The record contains
no evidence of any set procedure for determining the processing
site to which any given application will be forwarded.

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See Fed. R. Crim. P. 11(a)(2). In exchange for this conditional

plea, the government agreed to drop the other charges. The

district court sentenced Salinas on the count of conviction

(imposing a $500 fine and one year of probation) and dismissed the

remaining two counts. This appeal ensued.

II. ANALYSIS

The government initiates criminal prosecutions and, thus,

has first crack at selecting the venue. When that choice is

challenged, the government must prove by a preponderance of the

evidence that venue is proper as to each individual count. United

States v. Pace, 314 F.3d 344, 349 (9th Cir. 2002); United States v.

Robinson, 275 F.3d 371, 378 (4th Cir. 2001). The fact that venue

in the District of New Hampshire may have been proper for either or

both of the other two counts lodged against the defendant has no

bearing on the propriety of venue vis-à-vis the passport fraud

count. The criminal law does not recognize the concept of

supplemental venue.

When a defendant in a criminal case appeals from a venue

determination, we review the trial court's legal conclusions de

novo and its factual findings for clear error. United States v.

Scott, 270 F.3d 30, 34 (1st Cir. 2001). For purposes of that

review, we align the evidence of record in the light most

flattering to the venue determination. See id. at 35.

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 It is common ground that a criminal defendant has a right

to be tried in an appropriate venue. The importance of this right

is emphasized by the fact that it is mentioned not once, but twice,

in the text of the Constitution. See U.S. Const. art. III, § 2,

cl. 3 ("The Trial of all Crimes . . . shall be held in the State

where the said Crimes shall have been committed . . . ."); id.

amend. VI (requiring trial of a criminal case "by an impartial jury

of the State and district wherein the crime shall have been

committed"). Congress has further entrenched these norms by an

explicit directive that limits a criminal prosecution to "a

district in which the offense was committed." Fed. R. Crim. P. 18.

This rule "echoes the constitutional commands." United States v.

Cabrales, 524 U.S. 1, 6 (1998). The result is a safety net, which

ensures that a criminal defendant cannot be tried in a distant,

remote, or unfriendly forum solely at the prosecutor's whim. Seen

in this light, it is readily apparent that venue requirements

promote both fairness and public confidence in the criminal justice

system. Johnson, 323 U.S. at 276.

The Supreme Court has formulated a set of guidelines for

determining criminal venue. If the statute under which the

defendant is charged contains a specific venue provision, that

provision must be honored (assuming, of course, that it satisfies

the constitutional minima). See Travis v. United States, 364 U.S.

631, 635 (1961); Armour Packing Co. v. United States, 209 U.S. 56,

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73-75 (1908). Otherwise, the "locus delicti must be determined

from the nature of the crime alleged and the location of the act or

acts constituting it." United States v. Anderson, 328 U.S. 699,

703 (1946). In performing this tamisage, a court must begin by

"identify[ing] the conduct constituting the offense (the nature of

the crime) and then discern the location of the commission of the

criminal acts." United States v. Rodriguez-Moreno, 526 U.S. 275,

279 (1999). If the crime consists of distinct parts occurring in

different places, venue is proper where any part of the crime

occurred. See United States v. Lombardo, 241 U.S. 73, 77 (1916);

Scott, 220 F.3d at 35. Although the focus of this test is on the

conduct comprising the offense, the Supreme Court has rejected the

so-called "verb test" — the notion that action verbs reflected in

the text of the statute should be "the sole consideration in

identifying the conduct that constitutes an offense." Rodriguez-

Moreno, 526 U.S. at 280. Rather, an inquiring court should peer at

the conduct elements comprising the crime through a wider-angled

lens. See id. at 280 & n.4.

A

Against an unpainted backdrop — this is, as we have said,

an issue of first impression in the federal appellate courts — we

turn to the text of the statute of conviction. In relevant part,

the passport fraud statute forbids a person from "willfully and

knowingly mak[ing] any false statement in an application for

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passport with intent to induce or secure the issuance of a passport

under the authority of the United States, either for his own use or

the use of another, contrary to the laws regulating the issuance of

passports or the rules prescribed pursuant to such laws." 18

U.S.C. § 1542. The statute contains no explicit venue provision.

Thus, we must assay the substantive definition of the crime in an

effort to ascertain its nature and essential conduct elements. See

Rodriguez-Moreno, 526 U.S. at 280; United States v. Lanoue, 137

F.3d 656, 661 (1st Cir. 1998).

Here, the plain language of the relevant portion of the

statute2 makes pellucid that a violation requires only two things:

(i) the making of a false statement, (ii) with the intent to secure

the issuance of a passport. See 18 U.S.C. § 1542; see also United

States v. White, 1 F.3d 13, 16 (D.C. Cir. 1993). We think it

follows that passport fraud is complete at the moment an applicant

makes a knowingly false statement in an application with a view

toward procuring a passport. See United States v. O'Bryant, 775

F.2d 1528, 1535 (11th Cir. 1985). At that point in time, the

applicant has violated the statute and, therefore, committed the

crime.3

2
The statute also contains various proscriptions relating to
the use of passports secured by false statements. Those "use"
proscriptions are not before us, and nothing in this opinion should
be construed as a holding regarding venue vis-à-vis such charges.
3
Indeed, the government acknowledged at oral argument in this
court that it would consider a violation of section 1542 ripe for

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 Were we to stop here, prosecution would be appropriate in

the Eastern District of New York (where the criminal conduct began

and where the crime was completed) but not in New Hampshire. Based

on traditional principles of statutory interpretation, there is

simply no justification for laying venue in a location other than

the one district in which all the criminal conduct occurred. Any

other result seems inconsistent with the Supreme Court's directive

that criminal statutes must be construed, and venue determinations

made, in light of the safeguards that the Constitution imposes.

See Johnson, 323 U.S. at 276.

B

In an attempt to justify its choice of venue here, the

government tries to characterize passport fraud as a continuing

offense. This endeavor draws its essence from 18 U.S.C. § 3237(a),

which provides that, in certain classes of offenses, venue may be

"prosecuted in any district in which [the] offense was begun,

continued, or completed." However, the applicability of the

continuation language is limited to offenses "begun in one district

and completed in another." Id. Accordingly, the government cannot

take refuge in the continuing offense venue provision without

prosecution prior to the processing of a passport application
(i.e., when the oath was sworn at the post office). Salinas could
have been prosecuted for passport fraud from that time forward
(and, so, the crime was complete then and there). See O'Bryant,
775 F.2d at 1535. As we have said, that acknowledgment tracks the
language and structure of the statute itself.

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answering the logically antecedent question of whether passport

fraud can be considered a continuing offense (on these facts, a

crime begun in New York and completed in New Hampshire). See

Cabrales, 524 U.S. at 7; United States v. Rodriguez, 465 F.2d 5, 10

(2d Cir. 1972).

In an effort to carry this burden, the government

asseverates that the crime of passport fraud is not complete until

the false statement is actually communicated to a person who has

authority to approve the passport application. We find this

unconvincing. There is nothing in the statute of conviction that

suggests that completion of the crime is in any way contingent upon

the receipt of an allegedly false application at a processing

center as opposed to receipt by the State Department's authorized

agent at a post office intake station. Section 1542 proscribes

only one act: the making of a statement. Although communication

of the statement may be powerful evidence of the intent element of

the crime, the statute is devoid of any flat requirement that the

statement be conveyed or communicated to an ultimate decisionmaker.

This matters because courts must look at the essential conduct

elements of the offense in order to ascertain the adequacy of

venue. See Rodriguez-Moreno, 526 U.S. at 279; Scott, 270 F.3d at

35. It is, therefore, unsurprising that 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

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(10th Cir. 1953) (construing former 18 U.S.C. § 1461 and explaining

that a statute criminalizing the deposit of goods in the mail

delineates a crime that is complete at the moment of the deposit as

long as the requisite intent is present); Rodriguez, 465 F.2d at

10-11 (concluding that 18 U.S.C. § 495, which prohibits uttering

and publishing a forged writing with intent to defraud the United

States, is a single-act crime — not a continuing offense — because

the violation is complete when the forged instrument is tendered

with the requisite intent).

The government tries to blunt the force of this reasoning

in a myriad of ways. None of its theories is adequate to the task.

First, the government argues that the crime of passport fraud falls

within the penumbra of the "rule" that venue under false claim and

false statement statutes is proper both where the falsehood is made

and where it is received. This attempt to sidestep the plain

language of 18 U.S.C. § 1542 fails because the supposed "rule" —

that false claim and false statement statutes are always

susceptible to multiple venues — is not a hard-and-fast rule at

all. Although some decisions discuss the underlying principle in

carelessly broad terms, those comments are best understood as

reflecting the idea that when a statute criminalizes the making and

presentment of false claims or statements, venue is proper either

where the proffer is made or where it is received. See, e.g.,

United States v. Leahy, 82 F.3d 624, 633 (5th Cir. 1996) (adopting

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this principle for application in cases brought under 18 U.S.C. §

287, which criminalizes both the making and presentment of false

claims). The passport fraud statute does not have a similar

structure and (subject, of course, to the statute's intent element)

criminalizes the making of a false statement, simpliciter.

In a modest variation on this theme, the government

argues by analogy to other false statement and false claim statutes

that passport fraud should be deemed a continuing offense. The

problem with this argument is that the purported analogies are not

apt.

The government's most loudly bruited analogy is to 18

U.S.C. § 1001, which criminalizes the making of any "materially

false, fictitious, or fraudulent statement" as to a matter within

the jurisdiction of the federal sovereign. It is true that courts

consistently treat section 1001 crimes as continuing offenses, but

that taxonomy is dictated by the terms of the statute. Section

1001 explicitly criminalizes only those false statements that are

material. See id. When materiality is a critical component of the

statutory definition, it makes perfect sense to consider the crime

as continuing into the district in which the effects of the false

statement are felt. See, e.g., United States v. Ringer, 300 F.3d

788, 790-92 (7th Cir. 2002), cert. denied, 538 U.S. 981 (2003);

United States v. Candella, 487 F.2d 1223, 1227-28 (2d Cir. 1973).

After all, since materiality is an element of the offense, a

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defendant cannot be convicted under section 1001 unless and until

such a connection can be shown.

The passport fraud statute is a horse of a different hue.

That statute does not contain any materiality requirement.

Moreover, courts have refused to read a materiality requirement

into it. See, e.g., United States v. Hart, 291 F.3d 1084, 1085

(9th Cir.) (per curiam), cert. denied, 537 U.S. 962 (2002).

Consequently, the government's attempt to draw an analogy between

section 1001 and section 1542 falters in this case.

The government's proffered analogy to 20 U.S.C. § 1097 is

similarly flawed. That statute criminalizes false statements that

actually lead to the obtaining of federally guaranteed funds. The

consummation requirement of section 1097, like the materiality

requirement of section 1001, explains why courts regularly have

deemed offenses thereunder continuing. See, e.g., United States v.

Redfearn, 906 F.2d 352, 353-54 (8th Cir. 1990). It also explains

why the proposed analogy carries no weight.

So too 18 U.S.C. § 287, which punishes whoever "makes or

presents to any person or officer . . . or to any department or

agency . . . any claim upon or against the United States, or any

department or agency thereof." The case law teaches that, under

this statute, venue lies "in either the judicial district where the

fraudulent claims were prepared or mailed, or where the claims were

presented." United States v. Massa, 686 F.2d 526, 528 (7th Cir.

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1982). This pluralism is a direct result of the statute's

disjunctive phrasing. Section 1542 does not contain any comparable

language and the absence of the disjunctive means something here.

Cf. Leahy, 82 F.3d at 633 (illustrating that when a statute

disjunctively criminalizes the making or presentment of false

claims, venue can lie either in the district where the statement is

made or in the district where it is received).

The government next seeks to bolster its conclusion that

section 1542 establishes a continuing offense by embracing the

decision in United States v. Angotti, 105 F.3d 539 (9th Cir. 1997).

There, the government charged the defendant with making false

statements for the purpose of influencing the actions of bank

officials. The false statements were made in the Northern District

of California whereas the bank officials who approved the requested

loan were located at the institution's headquarters in the Central

District of California. Id. at 542. The charge was brought under

18 U.S.C. § 1014, the structure of which mimics that of 18 U.S.C.

§ 1542.

The Ninth Circuit held that venue was proper in the

Central District of California because that was "where the

communication reached the audience whom it was intended to

influence." 105 F.3d at 542. In explication, the court stated

that "the act of making a communication continues until the

communication is received by the person or persons whom it is

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intended to affect or influence." Id. at 543 (acknowledging that

the "statements did not have to reach their intended destination in

order to constitute a crime," but asserting that the fact that the

crime could have been completed earlier did not mean that

everything following completion was immaterial to the determination

of venue). The court found it irrelevant whether the defendant

knew the identity or location of the individuals whom he sought to

influence. Id.

Angotti is of dubious precedential value even in the

circuit of its birth. See United States v. Marsh, 144 F.3d 1229,

1242 (9th Cir. 1998) (limiting Angotti). Furthermore, it is

distinguishable on the facts — unlike in Salinas, there was

evidence that Angotti knew his application had to be forwarded

somewhere for approval. Last — but far from least — the case was

decided prior to the Supreme Court's clarification of the standards

anent venue in Rodriguez-Moreno and Cabrales. We believe Angotti

is inconsistent with those decisions and we find its reasoning

unpersuasive. Accordingly, we decline to follow it.

The government's final argument on this point is that

delivery to an intermediary (here, the post office intake station)

does not complete the offense. We dismiss this argument out of

hand. For one thing, the post office is not a mere third-party

intermediary (if it were, the result here might be different). The

postal employee with whom Salinas dealt was the Secretary of

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State's duly designated agent. See 22 C.F.R. §§ 51.1, 51.21(b).

For another thing, we already have determined that reaching a

particular audience is not a component of a section 1542 violation;

although it may be strong evidence of intent, it is not an element

of the offense.

C

The government has one last arrow in its quiver. It

contends that a crime can be both complete and continuing for

purposes of venue analysis. As a theoretical matter, that

proposition is true. See, e.g., United States v. Cores, 356 U.S.

405, 408-09 (1958); Candella, 487 F.2d at 1228. For example, a

wrongdoer has completed the crime of kidnaping sufficiently to

ground a conviction upon the event of abduction. If, however, the

wrongdoer travels with his victim from state to state, venue will

lie in any district along the way. See Rodriguez-Moreno, 526 U.S.

at 281 (noting that kidnaping is a "unitary crime" which, once

begun, does not end until the victim is free). The proposition is

not, however, universally applicable, so the question remains

whether the crime of passport fraud fits within the specialized

confines of the "complete yet continuing" rubric.

The government posits that even though the crime of

passport fraud may be complete when a false application is

submitted, it is a continuing offense because the defendant's

intent to procure a passport through fraudulent means does not

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achieve a point of culmination until the application reaches a

person who has the authority to issue the passport. Accepting this

view of passport fraud as a crime that continues even after

completion would, in our judgment, require a significant (and

unwarranted) expansion of the law of venue. We explain briefly.

As said, 18 U.S.C. § 1542 creates a classic point-in-time

offense: at the moment that an applicant makes a false statement

with the intent to procure a passport, the crime is complete. See

O'Bryant, 775 F.2d at 1535. The only way that passport fraud

conceivably could be an offense that continues even after

completion would be if the general requirement of intent were read

to create a continuing offense. Such a reading is impermissible.

The range of venue alternatives should be dictated by the language

of the statute under which the defendant is charged — and the

statute at issue here, 18 U.S.C. § 1542, requires intent only at

the moment the false statement is made. Allowing specific intent

to continue a crime into any district in which that intent has

consequences would significantly expand the range of permissible

venues. This would be unwarranted because such an expansion would

effectively authorize the government to choose a venue of its

liking even when, as now, the crime was complete before a second

district was implicated and the statute of conviction contains no

materiality or consummation requirement.

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 To cinch matters, Congress has not provided any hint that

it intended venue in such a situation to extend beyond the place of

the false statement. That Congress knew how to expand the scope of

venue through the substantive definition of the crime cannot be

gainsaid. See, e.g., 18 U.S.C. § 287 (criminalizing the making or

presentment of false information); id. § 1001 (criminalizing false

statements that are material). In view of this knowledge,

Congress's silence takes on an added significance. See, e.g.,

Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S.

164, 176-77 (1994); United States v. Brennan, 183 F.3d 139, 148 (2d

Cir. 1999). We are neither inclined nor empowered to displace a

legislative choice by extending the permissible sites of

prosecution through inventive interpretation.

We add, moreover, that the Supreme Court has forged a

connection between venue and conduct elements. See, e.g.,

Rodriguez-Moreno, 526 U.S. at 279. In general, this connection

means that a criminal defendant's own actions will determine where

venue can be laid. Expanding venue for passport fraud in the way

that the government suggests would unhinge this connection and give

the government unfettered control of determining where passport

applicants can be tried. In our view, this would frustrate the

Supreme Court's insistence that the determination of venue be tied

to the substantive definition of the crime. It would also offend

our bedrock conviction that "[t]he venue requirement is designed to

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prevent a criminal defendant from having to defend himself in a

place that has no meaningful connection to the offense with which

he is charged." United States v. Santiago, 83 F.3d 20, 24 (1st

Cir. 1996). For these reasons, we reject the government's vision

of passport fraud as a crime that can be both complete and

continuing.

D

The upshot is that the plain language of 18 U.S.C. § 1542

makes passport fraud a point-in-time offense, which can be

prosecuted at the place of the false statement but not at some

different place where the government, unbeknownst to the defendant,

has opted to process the application. This determination devolves

from our construction of the statute and evinces our unwillingness

to torture the statutory text in an effort to expand the list of

permissible sites of prosecution. Congress is, of course, free

(within constitutional limits) to alter this situation by amending

section 1542 and changing the substantive definition of the crime.

Cf. Brennan, 183 F.3d at 148 (discussing a particular circumstance

in which Congress modified the definition of a crime so as to

permit more expansive venue).

III. CONCLUSION

Over time, one of the primary concerns motivating the

limitation of venue has been the danger of allowing the government

to choose its forum free from any external constraints. See, e.g.,

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Travis, 364 U.S. at 634 ("[V]enue provisions in Acts of Congress

should not be so freely construed as to give the Government the

choice of a tribunal favorable to it.") (citation and internal

quotation marks omitted). This risk would become a reality were we

to accept the government's argument that the District of New

Hampshire is a legally permissible venue for the prosecution of the

instant charge. Under such a rule, the government could opt to

process a passport application at any place (Alaska, say, or Guam),

no matter how inconvenient for the defendant, and then mount a

prosecution at that location. That would be antithetic to the

Supreme Court's venue jurisprudence.

We need go no further. For the reasons discussed above,

we reverse the district court's venue determination, vacate

Salinas's conviction, and remand with instructions to dismiss the

indictment without prejudice for lack of venue.

Reversed and remanded.

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