The opinion of the court was delivered by: RAYFIEL
The above-named petitioner has moved for a preliminary injunction restraining his removal to New Hampshire to plead to an indictment returned in the United States District Court for that district, charging him and others with violating Sections 371 and 1341 of Title 18, and Sections 77q(a), 77e(a)(1), 77e(a)(2) and 77e(c) of Title 15 of the U.S.C.A., and for the convening, pursuant to Sections 2282 and 2284 of Title 28 of said Code, of a three-judge court to determine the constitutionality of a venue provision of Section 77t(b) of Title 15.
Section 77t(b) authorizes the Attorney General to institute proceedings for the prosecution of violators of the aforementioned sections of Title 15, and provides, further, that 'Any such criminal proceeding may be brought either in the district wherein the transmittal of the prospectus or security complained of begins, or in the district wherein such prospectus or security is received.' (Emphasis added.)
The petitioner contends that the provisions of Section 77t(b) are repugnant to the Constitution of the United States, more particularly to Article 3, § 2, Clause 3, and Amendment VI thereof.
Article 3, § 2, Clause 3 reads, in pertinent part, as follows: 'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; * * *.'
Amendment VI provides that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, * * *.' (Emphasis added.)
It is the petitioner's claim that the acts alleged to have been violative of the aforementioned sections of Title 15 were committed, if at all, in the Southern District of New York, and not in New Hampshire, and, accordingly, that he is entitled to an order enjoining his removal to New Hampshire to answer the charges contained in the aforementioned indictment. Counts 1 to 10, inclusive, and 17 to 21, inclusive, charge violations of various sections of Title 15; Counts 11 to 16, inclusive, involve Section 1341 of Title 18 (Mail Fraud); and Count 22 charges the petitioner and others with conspiracy, in violation of Section 371 of Title 18.
Rule 18 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., under the heading 'Venue', reads as follows:
'Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed, * * *.' (Emphasis added.)
Specific statutory provision is made for the venue of the prosecution of the crimes charged in Counts 1 to 21, inclusive. As aforementioned, Section 77t(b) authorizes prosecution of the counts involving Title 15 (Counts 1 to 10 and 17 to 21) in the district wherein the prospectus or security is received, and the indictment contains averments to the effect that many were received in New Hampshire.
Counts 11 to 16, inclusive, charge violations of Section 1341, supra, which fixes no place for prosecution. Venue as to those counts is governed by Section 3237(a) of Title 18, which reads as follows:
' § 3237. Offenses begun in one district and completed in another
'(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
'Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district ...