H Aurhoriwmeim eest f DECLASSIFIED ADDRESS REPLY TO - ATTORNEY AND REFER TO INITIALS AND NUMBER DEPARTMENT OF JUSTICE WASHINGTON D c June 16 1942 MEMORANDUM TO The Attorney General FROM Oscar Cox SUBJECT gisclosure cg certain gval infermgon problems of venue and related matters l In an accompanying memorandum of today's date they substantive aspects of certain disclosures of naval information are discussed A short statement of facts is there given This memorandum discusses the following questions 1 Assuming a violation of law by the reporter the managing editor of newspaper the company publishing it and the publisher can they be tried in any diatrict in which the newspaper was received by a subscriber or news- stand 2 7 Can these trials be combined 3 Assuming a violation of the law by the managing editors of and newspapers and a conspiracy between them and A the reporter can all be tried jointly in a certain district in which subscribers to both and can be found If no conspiracy exists The answers appear to be as follows 1 Each defendant can probably be tried in any dis- trict in which the newspaper was received 2 The trials will be separate in the absence of proof of conspiracy we- s wew 5 15 57 AUG 11 1959 ivwelwrlersmg DECLASSHUED Authority WM 3 Assuming a conspiracy the trial of all can be held jointly in a common district g Problems of venue place of trial Assuming a viola- tion of the law by the reporter and his superiors-amenaging editor publisher and newspaper companyn-it is probable that each defendant can be tried whether separately or jointly will be discussed below in any district in which a cepy_of the neWSpaper containing the criminal dispatch was received by a subscriber or newsstand The Constitution of the United States provides that The trial of all crimes shall be held in the State where the said crime shall have been committed Article sec 2 and that In all criminal procecutions the accused shall_ens joy the right to a trial by an impartial Jury of the state and district wherein the crime shall have been committed Amendment VI These constitutional provisions do not give a defendant a constitutional right to be tried only in the district of his resi- dence or principal place of business Haas v Henkel 216 U S 462 1909 His right is to a trial in the district where the crime was committed It seems to be reasonably well established by the Supreme Court that a crime which involves a sequence of acts crossing dis- trict boundaries is committed in any district in which any substans tial act in the sequence took place Hyde v United States 225 U S 347 1911 United States v Lombardo 241 U S 73 11915 The dis- oration of the Attorney General and the constant supervision of the courts are regarded as sufficient safeguards against double jeopardy and unnecessary multiplicity of suite The most significant act in the crime of communicating or transmitting a document relating to national defense to any person not entitled to receive it under Section 1 d of the Espionage Act U S C title 50 sec 31 d must be the actual presentation of the contents of such a document to the person not entitled to receive it When such communication or transmission is effected through the medium of a newspaper that act occurs only when the recipient of the DECLA-SSIFIED Authoritymh m 1 - 3 - newspaper has it in his control The factual chain of events which constitute the legal crime begins of course when the reporter first illegally scans the forbidden document but it does not end until rthe whole institutional apparatus of newspaper publication has de posited the finished paper in the hands of the subscriber or pur- chaser To seize upon any one factual event in the crime chains such as the physical rolling of the papers off a press--and to say that such an event only is the crime and that the crime is I'committed only at the locus of that event would be as unrealistic as it would be subversive of the policy of the statute It is not some physical step in the publishing process which is prohibited but the communi- cation of defense information to unauthorized recipients The fact that there may be unauthorized recipients in many districts only aggravates the crime It would put an insuperable burden upon the government to require it-to show which unauthorized recipients actually passed the information on to the enemy and hence to fix its venue there Direct case authority to support this reasoning is scant Helpful analogies can however be found in cases involving the any lawful transmission of goods and fraudulent mail practices Montgomery Manual of Federal Jurisdiction and Procedure sec 1150 1942 The famous old case of In re Palliser 136 U S 257 1889 which held that the offence of tendering a contract for the payment of money in a letter mailed in one district and addressed to a public officer in another to induce him to violate his official duty could be tried in the district in which the letter was received by that officer is squar urin point The opinion contains excellent supporting language Opposing authority is equally scant The federal criminal libel cases are old by lower courts not numerous and poorly reasoned They have been often criticised Miller Criminal Law 1934 495 23 Harvard L Rev 307 26 Yale L J 308 Many state court decisions are to the contrary Annotation 37 A L R 914 The leading case United States Smith 173 Fed 227 could easiLy be distinguished or discredited One section of the Judicial Code U S C title 28 sec 103 could be construed as relevant This provides that 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 DECLASSIFIED Authority MM 5 4 - with inquired of tried determined and punished in either district in the same manner as if it had been actually and wholly committed therein R S 731 Mar 3 1911 c 231 a 42 35 Stat 1100 If the argument above that a significant act of the chain crime was committed in the district where the newspaper was received is accepted an equally plausible argument could be made under this section that the offense was completed I in such district The argument from the facts and from policy would be substantially the same For determining the place of trial and allocating power be- tween courts the concept of venue serves the same function for different federal districts that the concept of jurisdiction serves for the states State courts are-ait should he noted by way of ano- logy rapidly getting away from the naive notion that a crime in- volving a sequence of acts crossing state boundaries is physically located on some one Spot Thus Mr Berge observes in Barge Crimi- ict nd the Territori inci 1e 30 Mich L Rev 238 l931 at p 269 the conclusion is irresistible that if the constituent acts of a given crime occur in more than one state each such state has an equally valid claim to jurisdiction over the whole crime Such extra- territorial elements should be frankly recOgnized by courts and no attempt should be made to cover them with legal fictions 1 Separate trials Where two or more defendants are accused of the same crime if they are conspirators or princi- pal and accessory they may be tried tagether Even here however the court may in its discretion order separate trials upon proper motion Where the crimes are different though related in nature or linked by events the defendants are entitled to separate trials if the objection is seasonably raised See Montgomery Manual of Federal Jurisdiction nd Procedure 4th Ed 1942 sec 1238 Hughes Federal Practice 1931 1941 Supp see 7084 In the instant case unless the conspiracy theory is relied upon the defendants would appear to be entitled to separate trials 4 Gone irac If a conspiracy to violate the Espionage Act can be shown 'which does not appear probable on the facts now DECLASSHHED Authority uul j g - 5 - known to me the defendants can be tried together in any district in which the conspiracy was formed or in'whieh an act was done to effeo taste the object of the conspiracy Hughes Eederal Practice 1931 1941 Supp see 6849 ggegtions of pglicy The newspapers usually stand to- gether on questions affecting their common interest The locus of a suit against reporters editors and proprietors is a matter of major importance to the publishing trade If it is established that suits based on libel or violations of the Espionage Act can be brought at any point at which even a single subscriber receives the publication the trade would feel itself in grave jeopardy Accordingly an attempt to start a prosecution at a point remote from the place of publication might raise a nationewide outcry from the press and prevent the public from reaching an understanding of the merits of the case how                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu