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United States v. Lombardo

U.S.
Apr 24, 1916
241 U.S. 73 (1916)

Summary

concluding that venue was proper only in the District of Columbia for prosecution based on a Washington State resident's failure to file a statement required by a statute that designated the District of Columbia as the place of filing

Summary of this case from United States v. Muench

Opinion

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON.

No. 830.

Submitted April 10, 1916. Decided April 24, 1916.

Where a criminal statute does not define a word used therein, its etymology must be considered and its ordinary meaning applied. The word file means to deliver to the office indicated and to send to such office through the mail. Under § 6 of the White Slave Traffic Act the required certificate must be filed in the office of the Commissioner of Immigration, and the offense of not filing is not committed in another district where the person is harbored, nor has the District Court of the United States for that district jurisdiction of the offense. Such an offense is not a continuing offense which, under § 42 of the Judicial Code (§ 731, Rev. Stat.), can be punished in either of more than one district. This court will not, in order to accommodate the venue of a particular offense, introduce confusion into the law. The proper and reasonable construction of a criminal statute must not be refused for fear of delay in prosecution of offenders; if the statute as so construed might embarrass prosecutions it may be corrected by legislation.

THE facts, which involve the construction and application of § 6 of the White Slave Traffic Act, are stated in the opinion.

Mr. Assistant Attorney General Wallace for the United States.

There was no appearance for defendant in error.


Error under the Criminal Appeals Act (March 2, 1907, c. 2564, 34 Stat. 1246) to review a decision of the District Court for the Western District of Washington (228 F. 980) sustaining a demurrer to an indictment founded on the "White Slave Traffic Act" (June 25, 1910, c. 395, 36 Stat. 825, 826).

Section 6 of that act provides that every one "who shall keep, maintain, control, support or harbor in any house or place, for the purpose of prostitution, . . . any alien woman . . . within three years after she shall have entered the United States . . . shall file with the Commissioner General of Immigration a statement in writing setting forth the name of such alien woman, . . . the place at which she is kept, and all facts as to the date of her entry into the United States, the port through which she entered, her age, nationality, and parentage, and concerning her procuration to come to this country, within the knowledge of such person; and any person who shall fail within 30 days after such person shall commence to keep, etc. . . . any alien woman, . . . to file such statement concerning such alien woman, . . . with the Commissioner General of Immigration, or who shall knowingly and wilfully state falsely, or fail to disclose in such statement any fact within his knowledge or belief with reference to the age, nationality, or parentage of any such alien woman, . . . or concerning her procuration to come to this country, shall be deemed guilty of a misdemeanor, etc. . . ."

The statement is not excused because it may have incriminating character, but it is provided that the person making it shall not be prosecuted or subjected to any penalty or forfeiture under any law of the United States for or on account of any transaction, matter, or thing concerning which he may truthfully report in such statement as required by the provisions of the act.

The indictment charged that one Jessie Milos, an alien woman and a citizen and subject of the Kingdom of Great Britain, had entered the United States in the month of May, 1914, and that Angeline Lombardo, knowing these facts, did, in a house in the City of Seattle, Northern Division of the Western District of Washington, keep, maintain, control and harbor Jessie Milos for the purpose of prostitution and for other immoral purposes, and unlawfully, knowingly and wilfully failed to file with the Commissioner General of Immigration a statement in writing as required by the statute, or any statement concerning Jessie Milos.

It was alleged that the United States and Great Britain are parties to an agreement or project or arrangement for the suppression of the white slave traffic adopted July 25, 1902.

There were two grounds of demurrer: (1) Section 6 of the White Slave Act is unconstitutional in that it contravenes rights guaranteed by the Fourth and Fifth Amendments to the Constitution of the United States. (2) The court was without jurisdiction of the subject-matter as the prosecution is in contravention of rights guaranteed by the Sixth Amendment.

The District Court sustained the demurrer on both grounds. We, however, shall confine our decision to the second ground as that attacked the jurisdiction of the court in that the offense was not committed in the district in which the indictment was found. Passing on it the court said:

"The gist of the offense is the failure `to file with the Commissioner General of Immigration' a statement, etc. By the act of March 3, 1891, chap. 551, sec. 7, page 1085, 26 Stat. at Large, as amended by the act of March 2, 1895, chap. 177, 28 Stat., page 780, the office of the Commissioner of Immigration was created and his office fixed at Washington, D.C. The Government contends that the offense was a continuing one and extended from this district to Washington, D.C., and that the filing of the statement need not be at the office in Washington, but may be deposited in the post office of the United States, addressed to the Commissioner General, and this forwarding through the usual course of mail should be considered as `filing,' and that the failure to post within thirty days would commence the offense which would be continuous. This contention cannot be reconciled with the language employed in the act. The word `file' was not defined by Congress. No definition having been given, the etymology of the word must be considered and ordinary meaning applied. The word `file' is derived from the Latin word `filum,' and relates to the ancient practice of placing papers on a thread or wire for safe keeping and ready reference. Filing, it must be observed, is not complete until the document is delivered and received. `Shall file' means to deliver to the office and not send through the United States mails. Gates v. State, 128 N.Y. Court of Appeals, 221. A paper is filed when it is delivered to the proper official and by him received and filed. Bouvier Law Dictionary; White v. Stark, 134 Cal. 178; Westcott v. Eccles, 3 Utah 258; In re Van Varcke, 94 F. 352; Mutual Life Ins. Co. v. Phiney, 76 F. 618. Anything short of delivery would leave the filing a disputable fact, and that would not be consistent with the spirit of the act."

The Government in its argument here contests the views of the District Court, repeats its contention that the offense was begun in the State of Washington, and relies on § 42 of the Judicial Code, substantially reproducing § 731 of the Revised Statutes. It provides as follows:

"When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein."

The Government also cites a number of cases which it urges support the application of the statute to the case at bar. We are unable so to regard the cases or to give the statute the application contended for. Nor does the case call for elaborate discussion. Indeed, it would be difficult to add anything to the reasoning of Judge Neterer in the District Court.

Undoubtedly where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done; or where it may be said there is a continuously moving act commencing with the offender and hence ultimately consummated through him, as the mailing of a letter; or where there is a confederation in purpose between two or more persons, its execution being by acts elsewhere, as in conspiracy.

It may be that where there is a general duty it may be considered as insistent both where the "actor" is and the "subject" is, to borrow the Government's apt designations, as in the case of the duty of a father to support his children; and if the duty have criminal sanction it may be enforced in either place. The principle is not applicable where there is a place explicitly designated by law, as in § 6.

The Government, however, contends that "with few exceptions every crime has continuity. But the law, being essentially practical, does not regard every crime as continuous for the purpose of jurisdiction. . . . For practical purposes it usually suffices to punish where the actor began, or where the subject suffered the intended result."

If these propositions be granted we do not see that they carry us far in determining where a violation of § 6 is begun or completed, nor do we appreciate the criticism of the decision of the court below that it "failed to distinguish between the `beginning' and the `completion' of the offense; giving the words `shall file,' etc., a meaning so narrow as to destroy the section." But this is assertion. A court is constrained by the meaning of the words of a statute. They mark the extent of its power, and our attention has not been called to any case which decides that the requirement of a statute, whether to secure or preserve a right or to avoid the guilt of a crime, that a paper shall be filed with a particular officer, is satisfied by a deposit in the post office at some distant place. To so hold would create revolutions in the procedure of the law and the regulation of rights. In instances it might, indeed, be convenient; in others, and most others, it would result in confusion and controversies; and we would have the clash of oral testimonies for the certain evidence of the paper in the files. We hesitate, in order to accommodate the venue of a particular offense, to introduce such confusion. And would it not, besides, in particular cases preclude the possibility of a conviction, putting evidence entirely in the hands of the defendant? And there are other considerations. If depositing in the post office of the statement prescribed be required by the statute it, of course, would satisfy the statute, but to what instant of time would it be referred and at what risk the time or delays of transportation?

There need not be a prolonged embarrassment in the prosecution of offenders as the Government fears. If § 6 is deemed defective it can be corrected by legislation.

Judgment affirmed.


Summaries of

United States v. Lombardo

U.S.
Apr 24, 1916
241 U.S. 73 (1916)

concluding that venue was proper only in the District of Columbia for prosecution based on a Washington State resident's failure to file a statement required by a statute that designated the District of Columbia as the place of filing

Summary of this case from United States v. Muench

rejecting a mailbox rule construction of "file" and concluding that receipt was required

Summary of this case from Nigro v. Sullivan

recognizing in dicta that "where there is a general duty it may be considered as insistent both where the `actor' is and the `subject' is . . . as in the case of the duty of a father to support his children; and if the duty ha criminal sanction it may be enforced in either place"

Summary of this case from State v. Johnson

criminalizing the failure to file a required statement under the Mann Act

Summary of this case from United States v. Seward

interpreting “file” in a criminal appeal statute to require actual receipt

Summary of this case from Garcia v. Dep't of Homeland Sec.

In Lombardo, the Court held the phrase "shall file" as used in the "White Slave Traffic Act," meant "to deliver to the office and not send through the United States mails.

Summary of this case from Sorrentino v. I.R.S

noting that whether an offense is "continuing" under the predecessor to § 3237 does not "carry us far in determining where a[n offense] is begun or completed"

Summary of this case from U.S. v. Saavedra

In Lombardo, 241 U.S. at 77, 36 S.Ct. at 509-10 the Court said: "Undoubtedly where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done...."

Summary of this case from U.S. v. Newsom

In United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, it was held that a resident of the state of Washington was guilty of an offense in the city of Washington, District of Columbia, for failing to file with the Commissioner General of Immigration, in the District of Columbia, a statement in writing required by an Act of Congress.

Summary of this case from Yarborough v. United States

In United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, the court held that a claim is not filed at the time of its deposit in the United States mail but only when it is received by the proper office.

Summary of this case from Hilker Bletsch Co. v. United States

In United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L. Ed. 897, it was held that a resident of the state of Washington was guilty of an offense in the city of Washington, District of Columbia, for failing to file with the Commissioner General of Immigration, in the District of Columbia, a statement in writing required by an Act of Congress.

Summary of this case from Bowles v. United States

In Lombardo, the Supreme Court held that, a rule permitting a filing to be "satisfied by a deposit in the postoffice at some distant place," would "result in confusion and controversies; and we would have the clash of oral testimonies for the certain evidence of the paper in the files."

Summary of this case from U.S. v. Bell

interpreting a filing requirement imposed by a criminal statute

Summary of this case from Sorrentino v. U.S.

basing this definition on the ordinary meaning of the word because Congress did not define "file" in the White Slave Act

Summary of this case from Central States, Southeast & Southwest Areas Pension Fund v. Paramount Liquor Co.

In United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 509, 60 L.Ed. 897 (1916), a case against the government, the Supreme Court held that a paper is not "filed" until, "it is delivered to the proper official and by him received and filed.

Summary of this case from Simms v. U.S.

In Lombardo, 241 U.S. at 77, 36 S.Ct. at 509-10 the Court said: 'Undoubtedly where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done...' We see no principled reason why this precept should not apply to threats as fully as to completed crimes.

Summary of this case from U.S. v. Hersch

In United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, the court held that a claim is not filed at the time of its deposit in the United States mail but only when it is received by the proper office.

Summary of this case from Silverman v. United States

filing is not complete until the document is delivered to and received by the proper official; filing means to deliver

Summary of this case from In re Durham

In Lombardo, the defendant was indicted for violating a federal law requiring any person harboring an alien woman for the purpose of prostitution to file a statement to that effect with the Commissioner General of Immigration.

Summary of this case from In re Bracey

In United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 509, 60 L.Ed.2d 897 (1916), the Supreme Court after noting that "filed" had not been defined by Congress, enunciated the "physical delivery rule" which simply provides that filing is complete when a document is delivered and received by the IRS. The "physical delivery rule" is clearly applicable in the instant case, where the debtor has alleged to have filed his tax return by hand delivery.

Summary of this case from In re McTear

In United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, the Supreme Court had to determine whether the requirements of a statute, which called for the filing of a certain document by a specified date with a designated Government office, were fulfilled by merely placing the document in the mail prior to the due date.

Summary of this case from Modern Engineering Co. v. United States, (1953)

refusing to apply the mailbox rule to a statute that required filing with a governmental agency

Summary of this case from Lee v. State

In Lombardo, the defendant was being prosecuted for failure to file a certain document with the Commissioner General of Immigration.

Summary of this case from McKinney v. State

In United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L.Ed. 897, it was held that where a statute required a document to be filed with a particular officer by a specified date in order to preserve a right, the statute was not satisfied by a deposit in the post office at some distant place.

Summary of this case from Hilton Hotels Corporation Merger

In United States v. Lombardo, 241 U.S. 73, 76-77 (1916), the Supreme Court said, 'Filing... is not complete until the document is delivered and received.

Summary of this case from Commonwealth v. Niemeyer Olds., Inc.
Case details for

United States v. Lombardo

Case Details

Full title:UNITED STATES v . LOMBARDO

Court:U.S.

Date published: Apr 24, 1916

Citations

241 U.S. 73 (1916)
36 S. Ct. 508

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