373 F.

3d 161

UNITED STATES of America, Appellee,

v.
Angel Edmundo SALINAS, Defendant, Appellant.
No. 03-2376.

United States Court of Appeals, First Circuit.

Heard May 5, 2004.
Decided June 28, 2004.

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.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and
LYNCH, Circuit Judge.
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, 65 S.Ct. 249, 89 L.Ed. 236
(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 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 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. 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--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.

10

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, 118 S.Ct. 1772, 141
L.Ed.2d 1 (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, 65 S.Ct. 249.

11

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, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); Armour Packing Co. v. United States,
209 U.S. 56, 73-75, 28 S.Ct. 428, 52 L.Ed. 681 (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,
66 S.Ct. 1213, 90 L.Ed. 1529 (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, 119 S.Ct. 1239, 143
L.Ed.2d 388 (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, 36 S.Ct. 508, 60 L.Ed. 897 (1916); Scott, 270
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." RodriguezMoreno, 526 U.S. at 280, 119 S.Ct. 1239. Rather, an inquiring court should
peer at the conduct elements comprising the crime through a wider-angled lens.
See id. at 280 & n. 4, 119 S.Ct. 1239.

12

* 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
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 RodriguezMoreno, 526 U.S. at 280, 119 S.Ct. 1239; United States v. Lanoue, 137 F.3d
656, 661 (1st Cir.1998).

13

Here, the plain language of the relevant portion of the statute 2 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
14

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, 65
S.Ct. 249.

B
15

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 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, 118 S.Ct. 1772; United States v. Rodriguez, 465 F.2d 5, 10 (2d Cir.1972).

16

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, 119 S.Ct. 1239; Scott, 270 F.3d at 35. It is, therefore,

unsurprising that similarly framed statutes have been found to create point-intime 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
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).
17

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 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.

18

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.

19

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, 123 S.Ct. 1785,
155 L.Ed.2d 672 (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
defendant cannot be convicted under section 1001 unless and until such a
connection can be shown.
20

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, 123 S.Ct. 391, 154
L.Ed.2d 318 (2002). Consequently, the government's attempt to draw an
analogy between section 1001 and section 1542 falters in this case.

21

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.

22

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.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).

23

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.
24

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 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.

25

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 RodriguezMoreno and Cabrales. We believe Angotti is inconsistent with those decisions
and we find its reasoning unpersuasive. Accordingly, we decline to follow it.

26

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
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
27

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, 78 S.Ct. 875, 2 L.Ed.2d 873 (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, 119 S.Ct. 1239 (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.
28

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 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.

29

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.

30

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, 114 S.Ct.
1439, 128 L.Ed.2d 119 (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.
31

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, 119
S.Ct. 1239. 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 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
32

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

33

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., Travis, 364 U.S. at 634, 81 S.Ct. 358 ("[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.
34

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.

35

Reversed and remanded.

Notes:
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

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-vis such charges

Indeed, the government acknowledged at oral argument in this court that it

would consider a violation of section 1542 ripe for 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.