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U.S. v. DELIA

September 29, 1990

UNITED STATES OF AMERICA,
v.
NICHOLAS DELIA, DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

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.

Prior Proceedings

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.

Facts

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.

Venue

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) that:

  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
  accurate factfinding.

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 ...


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