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February 23, 1967

Harry WINSTON, Defendant

The opinion of the court was delivered by: TENNEY


 TENNEY, District Judge.

 On August 11, 1966, an indictment (No. 01210) was filed in the United States District Court for the District of Nebraska, charging the defendant in sixteen counts of violations of Title 18 U.S.C. § 1084 (1964) *fn1" (transmission of wagering information) and in eighteen counts of violations of Title 18 U.S.C. § 1952 *fn2" (interstate transportation in aid of racketeering enterprises). *fn3" A bench warrant was issued and the defendant arrested in the Southern District of New York on August 24, 1966; and he appeared before the United States Commissioner on that date, at which time a removal hearing was scheduled for August 31, 1966, and defendant released on his own recognizance. Such hearing having been adjourned, defendant moved this Court on December 12, 1966 for an order directing the United States Commissioner to dismiss the removal proceedings now pending before him because no venue exists with regard to defendant in the District of Nebraska; or, if such order of dismissal be denied, for an order directing the said Commissioner to dismiss the removal proceedings unless the United States Attorney for the District of Nebraska consents to transfer the proceedings from that district to the Southern District of New York.

 In support of the instant motion, defendant's attorney has filed an affidavit describing the nature of defendant's business activities that form the basis of the indictment, alleging how further proceedings and trial in the District of Nebraska would prove burdensome and harassing to defendant, and suggesting that it would be unfair to proceed in a district more than 1,150 miles from New York City where defendant physically engaged in the proscribed activities.

 Defendant relies upon certain provisions of the United States Constitution (Article III, Section 2, Clause 3; the Fifth Amendment; the Sixth Amendment) *fn4" and certain of the Federal Rules of Criminal Procedure (Rules 2, 12, 18, 21, 22 and 40). *fn5" His argument, in essence, is that venue does not lie in the District of Nebraska, and that while Rule 40(b)(3) ostensibly requires removal upon presentation of the indictment and proof that the defendant is the person named therein, the legal question of whether venue exists in Nebraska should be resolved herein prior to removal. The balance of his argument is that of forum non conveniens in the event Nebraska venue is found. The Government's argument is essentially of a procedural nature, relying on the provisions of Rule 40 as to removal, and on Rule 21 in relation to a transfer of the case from Nebraska to New York.

 In view of the constitutional implications raised by defendant, some brief discussion of the relevant authorities may be helpful. It is clear, and defendant recognizes, that the draftsmen of Rule 40(b)(3) intended the indictment to be conclusive on the question of probable cause. *fn6" The rationale is that "since the action of the grand jury is not subject to review by a district judge in the district in which the grand jury sits, it seems illogical to permit such review collaterally in a removal proceeding by a judge in another district." 8 Moore, Federal Practice para. 40.04[2], at 40-12 - 40-13 n. 14 (Cipes ed. 1966), quoting the comment of the Advisory Committee. *fn7" Accordingly, the Courts, subsequent to the effective date of the Rule (March 21, 1946), have specifically refused to examine the question of probable cause in any way in removal proceedings based on an indictment. Dailey v. United States, 286 F.2d 62 (8th Cir.), cert. denied, 365 U.S. 827, 81 S. Ct. 714, 5 L. Ed. 2d 706 (1961); United States v. Melekh, 190 F. Supp. 67 (S.D.N.Y.1960); United States v. Provoo, 16 F.R.D. 341 (S.D.N.Y.1954); United States v. Binion, 13 F.R.D. 238 (D.Nev.1952), appeal dismissed, 201 F.2d 498 (9th Cir.) (per curiam), cert. denied, 345 U.S. 935, 73 S. Ct. 796, 97 L. Ed. 1363 (1953); United States v. Bishop, 76 F. Supp. 866 (D.Or.1948); United States v. Bessie, 75 F. Supp. 95 (S.D.Cal.1947); Hemans v. Matthews, 6 F.R.D. 3 (D.D.C.), 81 U.S. App. D.C. 417 (1946); Singleton v. Botkin, 5 F.R.D. 173 (D.D.C.1946).

 The provisions of Rule 40(b)(3) have been held to be constitutional. Dailey v. United States, supra; Binion v. United States, supra. Indeed, there is no constitutional right to a hearing in advance of removal. United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 399, 400, 55 S. Ct. 781, 79 L. Ed. 1501 (1935); United States ex rel. Hughes v. Gault, 271 U.S. 142, 149, 46 S. Ct. 459, 70 L. Ed. 875 (1926); Dailey v. United States, supra; nor is there a constitutional right to trial at a defendant's place of residence. United States v. Johnson, 323 U.S. 273, 280-281, 65 S. Ct. 249, 89 L. Ed. 236 (1944) (dissenting opinion); Haas v. Henkel, 216 U.S. 462, 30 S. Ct. 249, 54 L. Ed. 569 (1910). In addition to the question of probable cause, there are other matters which may not be raised in the removal proceedings. The constitutionality of the statute forming the basis for the indictment may not be considered, United States v. Bessie, supra; Hemans v. Matthews, supra, nor may defendant question the proceedings before the Grand Jury, Beavers v. Henkel, 194 U.S. 73, 87, 24 S. Ct. 605, 48 L. Ed. 882 (1904), even though these would be matters which could properly be considered by a judge in the district where the indictment was returned. Nevertheless, it seems inescapable to me that the judge in a removal proceeding, who performs therein a judicial act, Tinsley v. Treat, 205 U.S. 20, 32, 27 S. Ct. 430, 51 L. Ed. 689 (1907); United States v. Wright, 15 F.R.D. 184 (D. Hawaii 1954); United States v. Parker, 14 F.R.D. 146, 147 (D.D.C.1953); United States v. Chiarito, 69 F. Supp. 317, 319 (D.Or.1946), has no authority to order the removal of a defendant to another district court where the indictment clearly shows, on its face, that no crime was committed in the district to which removal is sought. Tinsley v. Treat, supra; Greene v. Henkel, 183 U.S. 249, 261, 22 S. Ct. 218, 46 L. Ed. 177 (1902); United States ex rel. Starr v. Mulligan, 59 F.2d 200 (2d Cir. 1932); United States ex rel. Brody v. Hecht, 11 F.2d 128 (2d Cir. 1926); United States v. Chiarito, supra; United States v. Hopper, 63 F. Supp. 612 (D.Or.1945). While the latter cases were decided prior to the effective date of the Federal Rules of Criminal Procedure, to presently hold otherwise would, in my opinion, render Rule 40(b)(3) unconstitutional. I reach this conclusion, also, in contradiction of a statement by the rule drafters that "under the proposed rule, if the prosecution is based upon an indictment, appearance on the face of the indictment of lack of jurisdiction would not constitute an adequate basis for denial by a district judge of an application for a warrant of removal." Notes to the Rules of Criminal Procedure for the District Courts of the United States Government Printing Office, March 1945, at 140 (quoted in United States v. Hopper, supra at 614). Such a holding would, it appears to me, negate the performance of any judicial function and deprive a defendant of his constitutional rights under the authorities hereinbefore referred to. However, I must repeat that the indictment must clearly show lack of venue, not only as to the crime charged, but as to any crime based on the facts alleged. Williams v. United States, 168 U.S. 382, 18 S. Ct. 92, 42 L. Ed. 509 (1897); United States ex rel. Starr v. Mulligan, supra. If any doubt exists, the question should be resolved in the district in which the indictment was returned. Fetters v. United States ex rel. Cunningham, 283 U.S. 638, 641-642, 51 S. Ct. 596, 75 L. Ed. 1321 (1931); United States ex rel. Tassell v. Mathues, 11 F.2d 53, 54 (3d Cir. 1926); United States v. Stein, 64 F. Supp. 755, 758 (E.D.Mich.1946). And if any of the counts alleged in the indictment are good, removal should be ordered regardless of lack of venue as to the remaining counts. Dailey v. United States, supra, 286 F.2d at 65.

 Since the Court may not look beyond the indictment to determine probable cause, it may not consider "the nature of the defendant's activities" as described in his attorney's affidavit submitted herein. (Kuh Affid. of November 26, 1966, at 4-6.) The sole question is whether, upon the facts alleged in the indictment, the defendant has committed any crime in the District of Nebraska for which venue lies in that district.

 Defendant contends that "transmission" as used in Title 18 U.S.C. § 1084 means "sending" and since such "transmission" or "sending" is alleged in the indictment (first 16 counts) as being from New York, New York, the crime was committed in the Southern District of New York and not in the District of Nebraska where such transmissions were received. As authority, defendant cites the opinion of a three-judge federal district court in Illinois. Telephone News Sys., Inc. v. Illinois Bell Tel. Co., 220 F. Supp. 621 (N.D.Ill.1963), aff'd per curiam, 376 U.S. 782, 84 S. Ct. 1134, 12 L. Ed. 2d 83 (1964). However, two cases have held the offense punishable either in the state from which the transmission was made or where it was received. United States v. Cohen, 35 F.R.D. 227 (N.D.Cal.1964); United States v. Synodinos, 218 F. Supp. 479 (D.Utah 1963). Accordingly, in view of such conflict of authorities it cannot be said that the law is clear as to the proper venue under Section 1084. As already noted, in such circumstances the question should be determined by the Court in the district where the indictment was returned. Furthermore, whatever doubts may exist as to whether venue exists herein in Nebraska under Section 1084, it seems clear that venue exists there under Title 18 U.S.C. § 1952 (last 18 counts of indictment) as broadened by the provisions of § 3237 of that Title. Whereas § 1084 condemns the use of "a wire communication facility for * * * transmission" (which arguably may mean "sending"), § 1952 condemns the use of "any facility * * * *fn8" including the mail" for certain purposes. Nowhere in the latter section is the "use" limited to "transmission". Clearly such "use" constitutes a "continuing" offense under § 3237 and may be prosecuted in Nebraska. In any event, whatever doubt may exist as to the applicability of § 3237 to § 1952 should be resolved in Nebraska, not in New York. *fn9"

 In the event that this Court determines that venue exists in Nebraska, defendant in effect seeks a change of venue to the Southern District of New York. In order to accomplish this, he asks this Court to condition non-dismissal of the indictment on transfer of the action to this district by the United States Attorney in Nebraska. While this is a novel approach, authority for which defendant finds in Rules 2, 21(b) and 22 of the Federal Rules of Criminal Procedure, it must fail. Hesse v. United States, 187 F. Supp. 375 (E.D.N.Y.1960); Notes of Advisory Committee to Rule 21(b), Federal Rules of Criminal Procedure (relating to the transfer, on defendant's motion, of prosecution for an offense committed in two or more districts or divisions); 4 Barron & Holtzoff, Federal Practice and Procedure, § 2093 (Wright ed. 1964); 86 A.L.R.2d 1343, 1350. The 1966 amendment of Rule 21(b) has not altered the pre-existing judicial determination that application for a change of venue must be made in the district from which a change of venue is sought. Furthermore, defendant's arguments relative to his inability to secure adequate representation, witnesses and other defense facilities in Nebraska may not now be as weighty as when certain of the authorities cited by him were decided, in view of the present concern by the Courts and Congress for the indigent defendant. In any event, these are arguments to be addressed to the Nebraska court.

 As already noted, no hearing has as yet been held before the Commissioner, and defendant's application to this Court could well be dismissed as premature. The correct procedure would be to raise the questions involved herein after the Commissioner has made his report. However, rather than further delay the proceedings, I have considered defendant's motions and have disposed of them as indicated. If the Commissioner finds that defendant is the person named in the indictment, a warrant of removal will issue and I will retain jurisdiction of this matter for such purpose. Defendant's motions are in all respects denied.

 So ordered.

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