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UNITED STATES v. KINKLE

May 24, 1985

UNITED STATES OF AMERICA
v.
AL KINKLE


Ditter, J.


The opinion of the court was delivered by: DITTER

DITTER, J.

 Al Kinkle was indicted for conspiracy to possess a controlled substance with intent to distribute and unlawful use of a communication facility. Presently before the court is defendant's motion to dismiss the latter count. For reasons that follow, this motion will be denied.

 Count two of the indictment alleges that on March 28, 1983, in the Eastern District of Pennsylvania, Al Kinkle knowingly and intentionally used a telephone to further the conspiracy described in count one. Pre-trial discovery revealed that the telephone call which underlies the second count was placed by a government informant in Philadelphia and allegedly received by defendant Kinkle in Florida. Defendant contends, therefore, that even if the allegation in the second count of the indictment is accepted as true, a violation of 21 U.S.C. § 843(b) (1982) has not taken place in the Eastern District of Pennsylvania. Accordingly, he contends, the indictment should be dismissed as this district is an improper venue.

 Both Article III, section 2 of the Constitution and Fed. R. Crim. P. 18 place venue for criminal prosecutions in the district where the offense was committed. The sixth amendment to the Constitution provides that a criminal accused has the right to a public trial by an impartial jury drawn from the district where the offense was committed. *fn1"

 Congress, in addition to enacting certain provisions setting venue for specific criminal offenses, has enacted 18 U.S.C. § 3237(a) (1982), which provides as follows:

 
Except as otherwise 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 from, through, or into which such commerce or mail moves.

 The statute defining the offense in this case makes it unlawful for "any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter . . . ." 21 U.S.C. § 843(b) (1982).

 What I must decide is where the use of the telephone took place. Defendant argues that as the recipient of the telephone call, he only used a telephone in Florida, and, therefore, a prosecution in this district for use of a telephone is improper. In response, the government asserts that section 843(b) draws no distinction between placing and receiving a telephone call and that unlawful use of a telephone is a continuing offense which takes place in both the district where the speaker is present and the district where the listener is present.

 The Supreme Court considered where "illegal use" occurred in United States v. Johnson, 323 U.S. 273, 89 L. Ed. 236, 65 S. Ct. 249 (1944), a prosecution under the Federal Dentures Act. The Act made it unlawful, in the course of the conduct of a business of constructing or supplying dentures from casts or impressions sent through the mails or in interstate commerce, to use the mails or any instrumentality of interstate commerce for the purpose of sending or bringing into "a state a denture which was cast by a person not licensed to practice dentistry in the state into which the denture was sent." Federal Denture Act of 1942, 56 Stat. 1087, 18 U.S.C. §§ 420f-420h (1943).

 The Court held that because the sender's crime was complete when the dentures were deposited in the mail, the sender could only be prosecuted in the district from which the dentures were sent. 323 U.S. at 277-78. The Court also focused upon the absence of a specific statutory provision providing for venue in both the sender's and recipient's districts. Id. at 276-77. This absence was deemed particularly significant in light of the fact that such a specific provision was suggested and rejected when the bill was in the House. Id.

 Justice Reed, joined by three other justices, issued a sharp dissent, arguing that the majority improperly restricted the sender's crime to the "first use" of the mail. Id. at 280 (Reed, J., dissenting). He contended that the operative term in the statute, "use of the mails," encompassed the entire transmission of the goods. Id. at 281-82 (Reed, J., dissenting). Justice Reed reasoned,

 
The 'use' for the 'purpose' results in a continuous offense. Since the offense is committed wherever the mails or instrumentalities of interstate commerce are used for the purpose of sending or bringing the denture into a state contrary to the statute and the act has no provision otherwise limiting ...

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