The opinion of the court was delivered by: GALSTON
The indictment returned against the defendant, dated December 23, 1953, reads as follows:
'That, in the Eastern District of New York on or about and between February 2, 1953 and the date of the filing of this indictment, the defendant, Antonio Valenti, an alien against whom a final order of deportation has been outstanding from July 2, 1946 to the date of filing of this indictment by reason of his being a member of the class described in Title 8, United States Code, Section 1251(a), paragraph 4, knowingly, wilfully and unlawfully failed to make timely application in good faith for travel documents necessary to his departure pursuant to said final order of deportation. (Title 8, United States Code, Section 1252(e))'
The defendant waived a jury trial. The material facts have been stipulated.
The defendant is a native and citizen of Italy, and an alien residing in Brooklyn, New York. On July 2, 1946, a final order of deportation was entered against him by the Board of Immigration Appeals. The basis of deportation was specified as conviction for a crime involving moral turpitude, committed within five years of defendant's entry into the United States, and sentence therefor to confinement in a prison for more than one year.
A warrant of deportation was issued but its execution was deferred pending disposition of an application by the defendant for executive clemency, and judicial action taken in an attempt to invalidate the final order of deportation. These attempts to obtain executive and judicial relief having proved unsuccessful, the warrant of deportation was reinstituted. A further stay in deportation was granted pending action on another application for executive clemency. Action on this application was also deferred pending the outcome of certain criminal proceedings against the defendant pending in the Southern District of New York. On October 31, 1952, the defendant was convicted and sentenced to imprisonment for five years. He was released from custody by the Court of Appeals on December 23, 1952, upon the posting of a bond, pending an appeal of his conviction.
In February and March 1953, the defendant was notified, in writing and orally, that a final order of deportation was outstanding against him and that he was required by law to take steps in good faith to obtain the necessary travel documents.
During the period from February 2, 1953 to the filing of the present indictment, the defendant did not make any application for travel or other documents necessary to his departure. During this time he was at liberty under the bond filed with the Court of Appeals.
Section 1252(e) of Title 8, U.S.C.A., provides, in material part, as follows:
'Any alien against whom a final order of deportation is outstanding by reason of being a member of any of the classes described in (specified paragraphs) * * * who * * * shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, * * * shall upon conviction be guilty of a felony * * *.'
The parties take the view that any application for travel documents would be made to an Italian Consulate office. Concededly there is no Italian Consulate in the Eastern District of New York. There is, however, one located in the Southern District of New York.
It is noted that, according to the stipulated facts, on or about August 15, 1949, the defendant was granted a stay in deportation. The facts, as stipulated, fail to disclose when this stay expired. Apparently the stay was based on an application for executive clemency. Action on this application was deferred pending the outcome of the criminal proceedings brought in the Southern District of New York. However, the record is equally silent with respect to the final determination of this application. Neither side has made any reference to this aspect of the defendant's case.
The court is confronted at the threshold of the case with the issue whether venue of the crime charged in the indictment is properly laid in the Eastern District of New York. The VIth Amendment of the Constitution provides that in all criminal prosecutions, trial shall be had in the district wherein the crime shall have been committed. The defendant contends that since an application for travel documents would have to be made to the Italian Consulate located in the Southern District of New York, the crime, if any, for willful failure or refusal to make application for the documents would be committed there and not in the Eastern District of New York. On the other hand, the government contends that section 1252(e) 'proscribes a willful failure, and the locus of the necessary element of willfulness can only be where the intent not to perform the required act was harbored, and that in turn must be within the Eastern District of New York where the defendant resided.'
In United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L. Ed. 897, the statute involved made it a misdemeanor to fail to file the statement required thereunder with the Commissioner General of Immigration within a specified time. The office of the official was in Washington, D.C., as created and fixed by statute. The defendant was indicted and brought to trial in the State of Washington. A demurrer to the indictment was sustained on the ground that violations of the act were committed ...