United States v. Johnson (215 F. Supp. 300, 1963)

THOMSEN, Chief Judge.

Defendants in this eight-count indictment found by the Grand Jury for the District of Maryland are: Thomas P. Johnson and Frank W. Boykin, who at all times mentioned in the indictment were Members of the House of Representatives of the United States from Maryland and Alabama respectively; J. Kenneth Edlin, who is alleged to have dominated and controlled certain savings and loan associations and land companies, which are named as co-conspirators but not indicted; and William L. Robinson, a lawyer, who is alleged to have been a director and officer of those associations and companies.

The First Count charges a conspiracy, in violation of 18 U.S.C.A. § 371, among defendants and others “to defraud the United States of and concerning its gov-emmental functions and rights”, in specified particulars summarized below under the heading “The Indictment". Each of the seven other counts charges that, in violation of 18 U.S.C.A. § 281 and 2, Johnson, acting in concert with and aided and abetted by the other defendants, directly or indirectly received compensation from Edlin and Robinson for services rendered and to be rendered by Johnson before the Department of Justice in relation to a charge, accusation and indictment against Edlin et al.

Each defendant has filed a number of motions, or adopted those filed by other defendants; they will be discussed. under the following headings:

I. Motions to Dismiss the First Count

A. Jurisdiction — Art. 1, sec. 6, cl. 1 of the Constitution

B. Duplicity

C. Vagueness — -Improper Use of Charge of Conspiracy to Defraud the United States.

II. Motions to Dismiss the Substantive Counts (Second to Eighth)

A. Venue

B. Claimed Failure to Charge an Offense Against the United States

C. Payor as Aider and Abettor

III. Motions for Discovery

A. Grand Jury Testimony

B. Other

The Indictment

1. The First Count, the conspiracy count, after identifying defendants and their alleged co-conspirators and referring to an indictment against Edlin et al. in the District of Maryland, charges in paragraph 14 that from on or about April 1, 1960, and continuously thereafter until on or about December 31, 1961, defendants and their co-conspirators conspired in Maryland and elsewhere to defraud the United States “of and concerning its governmental functions and rights”, described in four sub-paragraphs as: (a) its right to have the business of the Department of Justice conducted free from improper and undue influence; (b) its right to have the personnel of that Department free to transact its official business unhindered by the exercise upon them of corrupt, unlawful, improper and undue pressure and influence; (c) its right to have the duties of Johnson and Boykin in their official capacities as Members of the House performed free from corruption resulting from their personal and pecuniary interest in the success of Edlin et al. in attempting to persuade the Department of Justice to cause the postponement of the trial and the eventual dismissal of the indictment against Edlin et al; and (d) its right not to be deprived of the faithful services of Johnson and Boykin in their official capacities as Members of the House uninfluenced by corruption and by payments of money and other valuable considerations to them by the other defendants and co-conspirators as compensation for services rendered and to be rendered by Johnson in behalf of the other defendants and co-conspirators in relation to matters pending in the House, and for services rendered and to be rendered by Johnson and Boykin before the Department of Justice in relation to proceedings, charges and accusations in which the United States is a party and directly interested.

The First Count then sets out in paragraphs 15 to 25 that it was a part of the conspiracy: (para. 15) that Johnson should, at the request of Edlin and Robinson, render services for compensation to them and their co-conspirators, namely, the making of a speech on the floor of the House defending “the operations of Maryland’s ‘independent’ savings and loan associations, the financial stability and solvency thereof, and the reliability and integrity of the ‘commercial insurance’ on investments made by said ‘independent’ savings and loan associations, on the floor of the House of Representatives”; (para. 16) that Johnson, Edlin and Robinson would cause to be reprinted 50,000 copies of said speech for distribution to prospective depositors in the aforesaid savings and loan associations, to members of the General Assembly of Maryland, and to others; and (paras. 17-25) that Johnson and Boykin should at the request of the other defendants and their co-conspirators render specified services for compensation in relation to the aforesaid indictment, bringing the prestige, weight and influence of their official position to bear upon the officials of the Department of Justice to obtain decisions and actions beneficial to defendants and their co-conspirators, particularly the postponement of the trial and the eventual dismissal of the indictment.

Seventy-five overt acts to effect the objects of the alleged conspiracy are specified. Reference is made to 18 U.S. C.A. § 371.

2. The Second Count charges that on or about April 3, 1961, in the District of Maryland, Johnson, being then a Member of Congress, acting jointly and in concert with and aided and abetted by the other defendants, unlawfully, wil-fully and corruptly received, directly or indirectly, from Edlin and Robinson, compensation in the amount of $800.00, to wit, the proceeds of a bank check drawn by Robinson on a certain bank in Miami, Florida, which was “deposited in, credited to and final payment in the sum of $800.00 made thereon to the account of” Johnson at the Exchange and Savings Bank, Berlin, Maryland, the date and place of the receipt of said check by Johnson being to the Grand Jurors unknown, for services rendered and to be rendered by Johnson before the Department of Justice in relation to the proceeding, charge and accusation referred to in the First Count. Reference is made to 18 U.S.C.A. §§ 281 and 2.

3, 4, 5, 6. The Third, Fourth, Fifth and Sixth Counts are similar to the Second Count except for dates and amounts and the allegation that the cheeks referred to in those four counts were drawn by one of the alleged co-conspirators on the National Bank of Bethesda-Chevy Chase, Bethesda, Maryland.

7, 8. The Seventh and Eighth Counts are similar to the Second Count except for dates and amounts of the checks.

I.

Motions to Dismiss the First Count

A.

Jurisdiction — Art. 1, Sec. 6, Cl. 1 of Constitution

Johnson, Edlin and Robinson have moved to dismiss the First Count for lack of jurisdiction on the ground that the prosecution of the offense charged therein is barred by Art. 1, See. 6, Cl. 1 of the Constitution, which provides:

“The Senators and Representatives shall receive a compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses and going to and returning from the same; and for any Speech or Debate in either House they shall not be questioned in any other Place.”

Defendants do not cite any authority which holds that the quoted clause bars the prosecution of a Member of Congress for accepting money for making a speech on the floor of the House of which he is a member, nor for participating in a conspiracy of which that is an incident. They rely on the doctrine of the separation of powers, on the importance thereto of the privilege granted by the clause, and on the statements contained in opinions dealing with civil actions rather than criminal prosecutions. The importance of the doctrine and of the privilege is universally recognized. The question here, however, is the scope of the prohibition contained in the clause.

The historical background of the clause is reviewed at length in Kilbourn v. Thompson, 103 U.S. 168, 201 et seq., 26 L.Ed. 377, and in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; that discussion need not be repeated here.

Both of those cases were civil actions, one for false arrest and the other for deprivation of civil rights. They hold that the clause should be liberally construed to cover voting and other official action by legislators, as well as speeches and debates. Other cases hold that the question whether a matter is before the House should also be liberally construed. See, e. g., Cochran v. Couzens, 59 App. D.C. 374, 42 F.2d 783; Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241. Defendants rely heavily on the following passage in Coffin v. Coffin, 4 Mass. 1 (a civil action for slander), construing the Massachusetts Constitution: “These privileges are thus secured not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report and to every other act resulting from the nature and in the execution of the office. And I will define the article as securing to every member exemption from prosecution for everything said or done by him as a representative in the exercise of the functions of that office. * * * ”

That passage from Coffin was quoted with approval in Kilbourn, 103 U.S. at 204, 26 L.Ed. 377. It should be noted, however, that the opinion in Kilboum went on to say: “It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible.” 103 U.S. at 204, 26 L.Ed. 377. The caveat was reiterated by the Supreme Court in Tenney, 341 U.S. at 378-379, 71 S.Ct. at 789-790, 95 L.Ed. 1019.

Without question, the clause should be liberally construed to accomplish its purpose — the freedom of legislators from fear of prosecutions, whether civil or criminal, for words spoken, or votes cast, or actions taken in the pursuit of their lawful functions. But neither the statutes, the decisions, nor the text writers suggest that the purpose of the clause would be aided by a construction which would shield a legislator from prosecution for bribery or from prosecution for a conspiracy of the nature charged herein.

Congress has repeatedly enacted statutes providing for criminal prosecution in the courts of a Member of Congress for bribery and graft, including the taking of money for his action, vote or decision. See 18 U.S.C.A., 1950 ed., sec. 201 et seq., especially sec. 205 and sec. 281. See also 1962 supp., sec. 201 et seq., especially sec. 203. The debates in Congress when the first of such acts was adopted — unanimously—do not show that anyone questioned its constitutionality. Nor does it appear that any question of constitutionality was raised when Congress adopted the statute which was in effect in 1961 or the present statutes which were adopted in 1962.

The Supreme Court pointed out in Tenney, 341 U.S. at 375, n. 5, 71 S.Ct. at 788, 95 L.Ed. 1019, that provisions generally similar to Art. 1, sec. 6, cl. 1 of the United States Constitution appear in the constitutions of most of the states. Practically all of those states also have statutes making the acceptance by legislators of compensation from private individuals a criminal offense. It does not appear that any prosecution under any of those statutes has ever been held to violate the constitutional privilege. Indeed, it does not appear that the question has ever been raised. See People v. Logie, 321 Mich. 303, 32 N.W.2d 458; People v. Hammond, 132 Mich. 422, 93 N.W. 1084; State v. Burns, 238 Mo.App. 220, 177 S.W.2d 909; State v. Sullivan, 110 Mo.App. 75, 84 S.W. 105. See also Hemans v. United States, 6 Cir., 163 F.2d 228.

Leading text writers also indicate that the purpose of the provision is to prevent the prosecution of any action, civil or criminal, for words spoken, for libel or slander, and historically for treason or sedition. No authority has been cited or found which suggests that the clause was intended to bar criminal prosecutions based on the acceptance of money for speeches, votes or other legislative acts.

It appears from the foregoing discussion that the prosecution of a Member of Congress for receiving money from a private person for making a speech on the floor of the House would not be barred by Art. 1, sec. 6, cl. 1 of the Constitution. A fortiori, the prosecution of the offense charged in Count One of the present indictment is not barred. The making of the speech was but an incident of the conspiracy charged, which is alleged to have included the reprinting by Johnson, Edlin and Robinson of 50,000 copies of the speech for distribution to prospective depositors in the two savings and loan associations named as co-conspirators, among others, as well as various actions by the alleged conspirators in connection with the indictment pending against Edlin, et al. To hold Count One of the present indictment barred by the privilege would subvert rather than advance the purpose for which the privilege exists — the independence of the legislator in the fulfillment of his public trust. II James Wilson’s Works 156 (1804); Hemans, 163 F.2d at 234; United States v. Glasser, 7 Cir., 116 F.2d 690, 696, 315 U.S. 60, 66, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Manton, 2 Cir., 107 F.2d 834, 839.

The motions to dismiss Count 1 for lack of jurisdiction are hereby denied.

B.

Duplicity

Defendants’ motions to dismiss the First Count for duplicity are without merit. They admit that one conspiracy may have two or more objects, but they contend that the First Count charges two conspiracies, one involving the preparation, making and distribution of a speech before the House of Representatives and one involving the services of Johnson before the Department of Justice in connection with the indictment against Edlin et al. The Court does not so construe the First Count. It charges a single conspiracy to defraud the United States of and concerning its governmental functions and rights which are set out in subparagraphs (a), (b), (c) and (d) of paragraph 14, and charges that the conspiracy had various objects or parts, which, together with the means used to accomplish them, are set out in paragraphs 15 to 25 of Count One. The parts or objects of the conspiracy so charged all deal with the general subject of Edlin’s connection with two savings and loan associations operating in Maryland named as co-conspirators herein, with the commercial insurance of the investments of such associations, and with the indictment against Edlin and others on charges arising out of the operation of the two associations. All of the services alleged to have been rendered by Johnson, both in his speech and in his dealings with the Department of Justice, were in connection with those matters.

What was said in May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994, 1002, applies here. See also Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 63 L.Ed. 561; Travis v. United States, 10 Cir., 247 F.2d 130; United States v. Lennon, 2 Cir., 246 F.2d 24, cert. den. 355 U.S. 836, 78 S.Ct. 60, 2 L.Ed.2d 48; United States v. Manton, 2 Cir., 107 F.2d 834.

If the evidence fails to sustain the charge of a single conspiracy, the point can be raised by an appropriate motion. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314.

C.

Vagueness — Improper Use of Charge of Conspiracy to Defraud the United States

Johnson has moved to dismiss the First Count on the ground that it violates the Fifth and Sixth Amendments to the Constitution by depriving him of his right to be informed of the nature and cause of th.£ accusation, by charging him with participation in a conspiracy, the purposes of which are so vague, general and indefinite that he is not apprised of the offense charged, is unable to prepare his defense, and may not be able to plead former jeopardy in the event of a second prosecution. He further contends that a count charging the second alternative of sec. 371 — a conspiracy to defraud the United States— may not be used when the acts charged amount to substantive offenses in violation of other statutes.

Counsel for Johnson first refers to the criticism which the Supreme Court and other federal courts have leveled at the indiscriminate use of conspiracy indictments. See, e. g., Kotteakos v. United States, 328 U.S. 750, 772, 66 S.Ct. 1239, 90 L.Ed. 1557; Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; United States v. Falcone, 2 Cir., 109 F.2d 579. This Court is aware of that criticism, and is also aware that the Supreme Court has not forbidden the use of such an indictment in a proper case. Under the authorities cited to support this Court’s conclusion on the various points discussed herein, the inclusion of the conspiracy count in the present indictment was not improper.

Counsel then argues that the original of sec. 371, which proscribes conspiracies “either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose”, was passed shortly after the Civil War primarily to deal with tax violations. He criticizes the federal judiciary for broadening the classes of cases to which the statute has been held applicable; see Haas v. Henkel, 216 U.S. 462, 476-481, 30 S.Ct. 249, 54 L.Ed. 569, Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968, and numerous cases in the inferior federal courts, such as United States v. Manton, 2 Cir., 107 F.2d 834, May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994, and United States v. Bowles, D.Me., 183 F.Supp. 237. He says: “Although the effort of the Supreme Court in the Hammerschmidt case to restrict the language inadvertently used in Haas was commendable, the new definition of ‘defrauding’ was still too broad.” The definition in Hammerschmidt of which counsel complains read as follows: “To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with •or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but •only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.” 265 U.S. at 188, 44 S.Ct. at 512, 68 L.Ed. 968. This language has been construed in Mantón, May, Bowles, and other cases to permit the prosecution of counts generally similar to the First Count in the indictment under consideration. Counsel cites an article, 68 Yale L.J. 405, criticizing the use of counts charging a conspiracy to defraud the United States by dishonest means, and suggesting that Congress should repeal or amend the statute. Nevertheless, this Court should follow the law as laid down by the Supreme Court and other federal courts.

The argument that the alleged •objects of the conspiracy are so vague, broad and indefinite that they give defendants no adequate notice of the offense charged, misconstrues the nature and objects of the conspiracy. The First Count charges, in paragraph 14, a conspiracy to defraud the United States of and concerning its governmental functions and rights hereinafter described. Subparagraphs (a), (b), (c) and (d), which immediately follow, state the rights referred to. They are not, a3 Johnson’s brief assumes, purposes of the conspiracy. The purposes, parts or objects of the conspiracy are set out in paragraphs 15 to 25 of the First Count, together with the means to be used to accomplish the purposes. Thereafter 75 overt acts are alleged, as having been done and performed in pursuance of and in order to effect the objects of the conspiracy. The government has conceded what appears to me required by the allegations of the First Count, that it will not attempt to prove any purposes and objects of the conspiracy except those set out in paragraphs 15 to 25. So construed, as I think it must be, the First Count gives defendants adequate notice of the offense charged, more than sufficient to meet the requirements of the Fifth and Sixth Amendments and of Rule 7(c), F.R.Crim.P., 18 U.S.C.A.

It is true that the First Count does not allege a conspiracy “to cheat the Government out of property or money”, and that it does not in haec verba allege interference with or obstruction of lawful governmental functions “by deceit, craft or trickery, or at least by means that are dishonest”. But it does not follow that the charge fails to meet the test laid down in Hammerschmidt. Paragraphs 15 to 25 contain allegations of the means used to defraud the United States of its rights enumerated in sub-paragraphs (a), (b), (e) and (d) of paragraph 14. This Court believes that the means charged are dishonest means. See discussion of the Hammerschmidt rule in Bowles, 183 F.Supp. at 245-247, and the discussion under II. B., below.

Finally, counsel contends that a charge of a conspiracy to defraud may not be made when the indictment as a whole shows that violations of specific statutes are involved. He contends that such a prosecution must be brought for the violation of the specific statutes or for a conspiracy to violate those statutes under the first alternative of sec. 371. No authority is cited to support this proposition, which is at odds with the prevailing practice, and would unreasonably restrict the preparation of an indictment for conspiracy where repeated violations of several statutes by several persons are incidents of a single broad conspiracy to defraud the United States of its governmental functions and rights. If the government fails to prove the conspiracy charged, defendants will not be without remedy.

*

All motions to dismiss the First Count are hereby denied, without prejudice to the rights of defendants to raise similar points by motions at the conclusion of the government’s case or at the close of all the evidence.

II.

Motions to Dismiss the Second to Eighth Counts

A.

Venue

Johnson and Boykin have moved to dismiss Counts 2 through 8 of the indictment for lack of venue, on the ground that those Counts fail to allege that any violation of 18 U.S.C.A. § 281 occurred within the District of Maryland. Robinson has adopted these motions.

A prosecution under sec. 2818 *** may be brought only in the District where the Congressman or other officer rendered the services or agreed to render the services, or where he received the compensation or agreed to receive the compensation. In none of the substantive counts is it charged that Johnson rendered any services or agreed to render any services in the District of Maryland, nor is it alleged that Johnson agreed in Maryland to receive any compensation. Accordingly, the jurisdiction of this Court with respect to those counts must rest on a sufficient allegation that Johnson received compensation within the District of Maryland.

Each substantive count (Second through Eighth) charges that in the District of Maryland, Johnson, a duly elected Member of Congress, acting jointly and in concert with, and aided and’, abetted by the other defendants, unlawfully, wilfully, knowingly and corruptly did receive, directly and indirectly, compensation in a specified amount, to wit, the proceeds of a bank check payable to the order of Johnson and Johnson, which was deposited in, credited to and final payment made thereon to the account of the said Thomas F. Johnson at the Exchange and Savings Bank, Berlin, Maryland, the date and place of the receipt of the check by the defendant Thomas F. Johnson being to the Grand Jurors unknown. In the Third, Fourth, Fifth and Sixth Counts, the checks are alleged to have been drawn on the National Bank of Bethesda-Chevy Chase, Bethesda, Maryland; in the Second, Seventh and Eighth Counts, the checks are alleged to have been drawn on the Industrial National Bank of Miami, Florida.

Defendants have taken the position that compensation is received in the District in which a check is delivered and only in that District; that the place-where a check is cashed or deposited for collection and the place where it is ultimately paid are immaterial; and that since it is alleged that the place where-Johnson received the check is unknown to the Grand Jurors, the indictment fails-to allege venue in this District.

The government contends that compensation was received in each instance at the place where the proceeds of the checks were made available to Johnson; that each substantive count alleges that Johnson received compensation in the State of Maryland in a specified amount,, to wit, the proceeds of a specified check which was deposited in, credited to and final payment made thereon to Johnson’s account at a specified bank in Berlin,. Maryland; and, therefore, that the receipt of compensation in the State of Maryland has been sufficiently alleged. As an alternative contention, the government argues that when payment is made by check, the receipt of compensation in violation of sec. 281 is a continuing offense which does not end until the proceeds of the check have been made fully available to the offender; thus, “there may be venue in more than one District if the check is deposited in one District and paid in another.

The meaning of the words “receives * * * compensation”, as they are used in this section, was discussed by the Supreme Court in Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482. Burton was a Congressman, who was charged in certain counts of an indictment with illegally receiving compensation in the form of checks drawn •on a bank in St. Louis, Missouri. The indictment, which was brought in the Eastern District of Missouri, charged both that Burton received the checks and that the checks were paid in that District. The evidence showed that the checks had in fact been received in the District of Columbia and deposited there in the Riggs Bank, which had given immediate credit to Burton and had then sent the checks to Missouri for •collection. The trial judge left to the jury the decision where compensation had been received. The Supreme Court held that under the undisputed facts and the applicable banking law the Riggs Bank was not acting as Burton’s agent in collecting those checks, but that title to the checks passed in the District of ■Columbia to the Riggs Bank, which in -contemplation of law had purchased the checks; and that venue with respect to those counts could not be laid in Missouri, where the checks were ultimately paid. The Court also held that it was not a case where an offense was commenced in one district and completed in another, rejecting the contention of the government that the offense had begun when the checks were mailed from Missouri to the District of Columbia.

Since in Burton the checks were physically delivered to the Congressman in the District of Columbia and immediate credit thereon given to him by the Riggs Bank in that District, defendants argue that Burton is no authority for the proposition that venue lies where the checks were deposited and credit given rather than where they were physically delivered. However, the entire discussion of venue in the opinion of the Supreme Court was devoted to the law and facts with respect to the deposit of the cheeks, the credit given and the payment of the checks. Mr. Justice Harlan dissented only because he felt that Burton had received at St. Louis compensation for his services, since the checks were paid there to his representative, the collecting bank. The government rightly argues that if the place of physical delivery of the checks were the only place where venue might be laid, the entire discussion in Burton would have been beside the point. In this contention the government is supported by the following dictum of Judge Learned Hand in United States v. Lotsch, 2 Cir., 102 F.2d 35, 36: “Next, it is argued that the crime was committed when Lotsch took the cheques — that is in Manhattan — and not when he cashed them in Brooklyn. That was indeed held in Commonwealth v. Donovan, 170 Mass. 228, 49 N.E. 104; but State v. Walls, 54 Ind. 561, is to the contrary, and so is United States v. Green, D.C., 136 F. 618. Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482, favors the Indiana rule, at least by implication, because, if the receipt of the cheque be the offence, that would have been a short answer to the prosecution, for Burton concededly got the cheque in Washington.”

The controlling words in sec. 281, “receives * * * compensation”, are different from the controlling words in the various sections of Chapter 11 of Title 18, sec. 201 et seq., as they have read from time to time, which refer variously to the receipt of “money”, “checks” or “things of value”, or use other expressions.

The case of United States v. Green, N.D.N.Y., 136 F. 618, cited by Judge Hand, construed a bribery statute which made it an offense to tender “[a]ny contract, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value.” The Court held that a check was not a “thing of value”. Congress then amended the statute there involved by adding the word “check” before the word “contract”. See Reviser’s note to 18 U.S.C.A. § 201. Defendants argue that since no similar amendment was made to what is now sec. 281, it must be assumed that Congress felt the term compensation included checks, even though they were not “things of value”, and, therefore, that no amendment to sec. 281 was necessary. This argument ignores the probability that if Congress gave any consideration to sec. 281 at that time, it was satisfied with the construction given to that section by the Supreme Court in Burton.

The question presented by the motions presently under consideration is whether venue lies (a) where the checks were physically delivered to Johnson; (b) where the proceeds of the checks were credited to his account, either at the time of deposit or after they had been collected; (c) where the check was paid by the drawee bank; or (d) in two or more of those places.

Questions of venue are more than matters of procedure; they raise issues of public policy in the light of which legislation must be construed. Travis v. United States, 364 U.S. 631, 634, 81 S.Ct. 358, 5 L.Ed.2d 340. When venue is based solely on the receipt of compensation, there are some arguments in favor of construing the statute to mean that compensation is received at the place where a check is delivered. But this Court must be guided by the opinion in Burton, which, as Judge Learned Hand said in Lotsch, implies that the crime is committed where the check is converted into money by the-Congressman, not where it is physically delivered to him.

The application of Burton to the case-at bar is made difficult by the circumstances that the Maryland banking law is different from the banking law in-effect in the District of Columbia at the-time of Burton, as found by the majority-opinion therein. Maryland has enacted' the Bank Collection Code, Art. 11, secs. 118-134, Anno.Code of Md., 1957 ed_ Sec. 119 thereof reads:

“Except as otherwise provided by agreement and except as to subsequent holders of a negotiable instrument payable to bearer or endorsed specially or in blank, where an item is deposited or received for collection, the bank of deposit shall be-agent of the depositor for its collection and each subsequent collecting bank shall be subagent of the depositor but shall be authorized to-follow the instructions of its immediate forwarding bank and any credit given by any such agent or-subagent bank therefor shall be revocable until such time as the proceeds are received in actual money or an unconditional credit given on the-books of another bank, which such agent has requested or accepted. Where any such bank allows any revocable credit for an item to be-withdrawn, such agency relation shall nevertheless continue except the bank shall have all the rights of an owner thereof against prior- and subsequent parties to the extent, of the amount withdrawn.”

Since the indictment alleges that Johnson received in the District of Maryland “compensation * * * to wit, the proceeds of” the specified checks, which are alleged to have been “deposited in, •credited to, and final payment * * * made thereon to the account of the said Thomas F. Johnson” at a specified bank in Berlin, Maryland, it appears that Johnson is charged with having received •compensation in Maryland, within the Burton opinion.

What the evidence may show is an•other matter. If the facts show that The Berlin bank was acting as Johnson’s agent in collecting the checks, and that ■the circumstances were such that under the applicable law the checks should be ■considered as having been converted into money when and where they were paid' by the drawee banks, venue would lie in the District of Maryland with respect to the four counts dealing with checks ■drawn on the Bethesda, Maryland, bank •(Counts, 3, 4, 5 and 6) and not with respect to the three counts dealing with the checks drawn on the Miami, Florida, bank (Counts, 2, 7 and 8) unless the 'offense can be considered as having been begun in one District and completed in .another, within the meaning of 18 U.S. >

See also 1962 Pocket .Part, 18 U.S.C.A. § 281.

. Boykin has not filed a similar motion.

. Cong.Globe, 37 Cong., 2d Sess., pp. 3260, 3261, 3262 (1862). See also 8 Cong. Deb. 2511 et seq. (1832) dealing with the assault by General Sam Houston on a fellow Member of Congress.

. See Ala.Code tit. 14, ch. 21, sec. 72 (1958), Ala.Code tit. 14, ch. 21, sec. 64 (1958) ; Ariz.Rev.Stat.Ann., ch. 2, sec. 13-286 (1956) ; Ark.Stat.Ann. ch. 9, sec. 41-901 (1947) ; Colo.Rev.Stat.Ann. art. 7, sec. 40-7-5 (1953), Colo.Rev.Stat.Ann. art. 7, sec. 40-7-7 (1953) ; Conn.Gen. Stat.Ann. ch. 942, sec. 53-149 (1960) ; Ga.Code Ann. eh. 26 — 41, sec. 26-4102 (1953), Ga.Code Ann. ch. 26-50, sec. 26-5023 (Cum.Supp.1961), Ga.Code Ann. ch. 26-42, sec. 26-4203 (1953), Ga.Code Ann. ch. 26-42, sec. 26-4201 (1953) ; Idaho Code ch. 47, sec. 18-4704 (1947) ; 111. Stat.Ann. ch. 38, sec. 78 (1935), Ill.Stat. Ann. ch. 38, sec. 79 (1935) ; Ind.Stat. Ann. ch. 6, sec. 10-601 (1956) ; Kan. Gen.Stat.Ann. ch. 21, sec. 21-825 (1949) ; Ky.Stat.Rev. eh. 432, sec. 432.350 (1955) ; La.Stat.Rev. ch. 1, sec. 14.118 (1951) ; Me.Stat.Rev. ch. 135, sec. 5 (1954) ; Md. Code Ann. art. 27, sec. 23 (1957) ; Mass. Laws Ann. ch. 268, sec. 8 (1956) ; Mich. Stat.Ann. ch. 286a, sec. 28.313 (1938), Comp.Laws 1948, § 750.118; Minn.Stat. Ann. ch. 613, sec. 613.05 (1947), Minn. Stat.Ann. ch. 613, sec. 613.06 (1947) ; Vernon’s Mo.Stat.Ann. ch. 558, see. 558.-020 (1953) ; Mont.Rev.Code ch. 29, sec. 94-2906 (1947) ; Neb.Stat.Rev. ch. 28, sec. 28-706 (1943) ; N.H.Stat.Rev.Ann, ch. 587, sec. 587:27 (1955) ; N.J.Stat. Ann. ch. 93, sec. 2A:98-2 (1939) ; N. M. Stat.Ann. art. 8, sec. 40-8-1 (1953) ; N. M.Stat.Ann. art. 8, sec. 40-8-3 (1953) ; N.Y.Penal Code, sec. 1328, McKinney’s Consol.Laws, c. 40; N.D.Code Ann. ch, 12-09, sec. 12-09-09; Ohio Rev.Code Ann. eh. 2917, sec. 2917.01 (1953) ; Okla. Stat.Ann. tit. 21, ch. 7, sec. 309 (1951) ; Ore.Stat.Rev. ch. 162, sec. 162.230 (1959) ; Pa.Stat.Ann. tit. 18, art. 3, see. 4303 (1939) ; R.I.Gen.Laws ch. 7, sec. 11-7-3 (1956) ; S.D.Code ch. 13.10, sec. 13.1009 (1939) ; Tenn.Code Ann. eh. 8, sec. 39-802 (1955) ; Tox.Penal Code art. 159 (1925), Vernon’s Ann.P.C. art. 159; Utah Code Ann. art. 2, sec. 76-28-18 (1953) ; Vt.Stat.Ann. tit. 13, ch. 21, sec. 1102 (1958) ; Va.Code eh. 6, art. 2, sec. 18.1-279 (1950) ; Wash.Rev.Code Ann. ch. 9.18, sec. 9.18.020; W.Va.Code art. 5, sec. 6003 (1961) ; Wis.Stat.Ann. ch. 946, sec. 946.10 (1957) ; Wyo.Stat. ch. 8, sec. 6-156 (1957). Arkansas, Maryland, Pennsylvania and Texas have provisions in their Constitutions making acceptance by a public official -of compensation to influence him in his official capacity a criminal offense. See Ark.Const. Art. V, see. 35; Md.Const. Art. Ill, sec. 50; Pa.Const. Art. 3, sec. 29; and Tex.Const. Art. 16, sec. 41, Vernon’s Ann.St.

. 2 Cooley, Constitutional Limitations, p. 929 (8th ed. 1927) ; 1 Tucker, Constitution, sec. 207 (1899) ; 1 Willoughby, Constitution of the United States, see. 342 (2d ed. 1929).

. The basis for the dissent by Judge Stephens on this point in May does not exist in the instant case. Count I of the indictment in May charged a conspiracy both to violate old sec. 20S and to defraud the United States. The conspiracy charged in the instant case is a conspiracy to defraud the United States; a purpose to violate sec. 281 is not charged as part of the conspiracy.

. See note 2, above.

. See summary of those paragraphs under “The Indictment” supra.

. Set out in note 3 supra.

. The point is not clarified by the 1962 amendments, which, apparently ignoring the decision in Green, use the single expression “anything of value” in the new bribery statute, sec. 201, although various other expressions are used in succeeding sections of ch. 11, including new secs. 203-209. The word “compensation” has. been carried over from sec. 281 to sec. 203 so far as Members of Congress and' certain other officials are concerned. See sec. 2 of Pub.L. 87-849, Oct. 23, 1962, 78: Stat. 1126; 18 U.S.C.A., 1962 Pocket: Part, secs. 201, 203 et seq., 281.

. The government states the evidence will show that each check specified in ■Counts 2 through 8 was endorsed by Johnson in blank, that immediately upon the deposit of each such cheek Johnson was given credit on his account upon which he could draw, and that the credit was never revoked. This statement cannot change the effect of the indictment, but it is not inconsistent therewith. If the ■evidence shows that the checks were endorsed in blank, the following provision •of sec. 121 will have to be considered: “Where a deposited item is * * * indorsed by the depositor in blank * * * the fact that such item is so * * * indorsed shall not change the relation of agent of the bank of deposit to the depositor, but the subsequent holders shall have the right to rely on the presumption that the bank of deposit is the owner of the item.” This provision is criticized as anomalous by the draftsmen of the Uniform Commercial Code, Comments, Art. 4, secs. 4 — 201, but it is the statutory law of Maryland and others States. This Court does not construe that provision, however, as changing the relationship between the depositor and the depositary bank, in the absence of a specific agreement. See Art. 11, sec. 119.

. Ҥ 3237. Offenses begun in one district and completed in another

“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 ma