The opinion of the court was delivered by: Sweet, District Judge.
Defendant Nicholas Delia ("Delia") has moved pursuant to
Rule 29(a) for judgment of acquittal on Counts Two through
Four charging violations of Title 18 U.S.C. §§ 513(a)
and 2 because of the government's failure to prove that venue
properly lies in the Southern District of New York. For the
reasons set forth below, and stated in open court on September
13, 1990, Delia's motion is denied.
Delia was convicted of all charges in a jury trial
concluding on September 17, 1990. At the close of the
government's case on September 13, Delia moved for acquittal
on Counts Two through Four for lack of venue and, after
consideration, the motion was denied in open court. On
September 14, 1990 an oral version of the substance of this
opinion was delivered in open court.
The facts concerning what the government had demonstrated in
the trial are not disputed.
Delia is charged with aiding and abetting the substantive
counts and, in Count One, with a conspiracy do undertake these
violations. There is little question that venue lies in the
Southern District for conspiracy.
The dispute presented by able counsel here is whether Delia,
for whom there is no proof of any act he committed in the
Southern District, can be prosecuted here for the substantive
counts and aiding and abetting the substantive counts.
All parties agree that the government has not shown that
defendant Delia committed any act in the Southern District of
New York relating to the substantive counts charged, namely
the "making, uttering, and possessing" of each of three forged
checks with the intent to deceive an organization, in this
case Bayside Management/Continental Reinsurance company,
located in Manhattan, and from which the checks were stolen by
accomplices and unindicted coconspirators. The checks were
deposited in Brooklyn and there is testimony by a handwriting
expert that it cannot be established that Delia traced the
name "Walter J. Gross" from a signature also procured from the
Continental Reinsurance company in Manhattan.
Both Article III, § 2 cl. 3 and the Sixth Amendment guarantee
to the defendant the right to be tried in the district where
the crime is considered to have been committed and the burden
is on the government to prove that the crime was committed in
the district in which the defendant is being prosecuted for
each count charged. United States v. Beech-Nut Nutrition Corp.,
871 F.2d 1181, 1188 (2d Cir.), cert. denied, ___ U.S. ___, 110
S.Ct. 324, 107 L.Ed.2d 314 (1989); Fed.R.Crim.P. 18.
As the Second Circuit recently stated in Beech-Nut, "[i]f the
federal statute defining an offense does not indicate
explicitly where Congress believes the criminal act is
committed, `the locus delicti must be
determined from the nature of the crime alleged and the
location of the act or acts constituting it.'" 871 F.2d at
1188 (quoting United States v. Anderson, 328 U.S. 699, 703, 66
S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946)). To make this
determination, the court is guided by the statement set forth
in United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985)
the test [for constitutional venue] is best
described as a substantial contacts rule that
takes into account a number of factors — the site
of the defendant's acts, the elements and nature of
the crime, the locus of the effect of the criminal
conduct, and the suitability of each district for
One suggested method of beginning this analysis is to look
at the "key verbs" used by the statute in defining the
offense. United States v. Chestnut, 533 F.2d 40, 46-47 (2d
Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93
(1976). Accordingly, we turn to ...