United States District Court, Southern District of New York
September 29, 1990
UNITED STATES OF AMERICA,
NICHOLAS DELIA, DEFENDANT.
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 the language of Section 513(a)
which states in pertinent part that:
[W]hoever makes, utters or possesses a forged
security of a State or . . . of an organization,
with intent to deceive another person,
organization, or government shall be fined or . .
. imprisoned . . . or both.
18 U.S.C. § 513. Additionally, the government contends that §
513 must be read in conjunction with 18 U.S.C. § 3237 whose
effect is to make an offense triable "in any district in which
such offense was begun, continued, or completed," or "in any
district from, through or into which commerce . . . moves,"
18 U.S.C. § 3237. Delia argues that the case law demonstrates that
the crimes charged here are not continuing offenses under
18 U.S.C. § 3237 but rather single act crimes.
1. Key Verbs
Section 513 contains three key verbs: "makes," "utters," and
We begin with the verb "utters" because it is the verb
construed in United States v. Rodriguez, 465 F.2d 5 (2d Cir.
1972), the case on which Delia heavily relies. In Rodriguez,
the defendant appealed from a judgment convicting her of
uttering and causing to be uttered a forged Social Security
check in violation of 18 U.S.C. § 495, a statute containing the
key verbs "utters" and "publishes." The Second Circuit noted
that "uttering" was not a continuing crime but rather a
complete offense when the instrument is offered because "the
statute merely prohibits `uttering and publishing forged
instruments with the intent to defraud.'" Id. at 10. "Offering
the forged writing," noted the Court, "is the single
unequivocal act which completes the offense." Id. at 11.
We agree that the evidence failed to establish that Delia
uttered the checks in Manhattan. Therefore, there is no venue
for "uttering" in the Southern District. The government
already has made clear, in the colloquy in the robing room
over the indictment and by informal submission that it is not
prosecuting under the theory that Delia "uttered" any of the
three checks in counts Two through Four.
The verb "makes" denotes a different form of behavior than
the verb "utters." The checks were stolen from an organization
in Manhattan. The signature from which the forged signature
was traced was also stolen from the same organization in
Manhattan. Delia argues that these were merely preparatory
acts that do not constitute the "making" of the forged
security and relies heavily on a line of perjury cases,
including United States v. Mendel, 746 F.2d 155, 165 (2d Cir.
1984), and Rodriguez for the proposition that like, uttering,
making is a single act crime.
There is, of course, a fine if inarticulable line between
the accomplishment of preparatory acts and the beginning of
the act of "making." Delia's narrow interpretation of the word
"making," merely would allow for the putting of pen to paper
to trace the name onto the check. "Making" cannot be read so
narrowly in this context. The beginning of the making occurred
with the theft of the signature, if not the theft of
the blank checks from the Manhattan office. The procuring the
ingredients of this act of creation — the checks, the
signature — were beyond preparatory, and instead essential to
the accomplishment of the crime of "making." See United States
v. Stephenson, 895 F.2d 867 (2d Cir. 1990).
Stephenson, the Second Circuit's latest word on this subject,
presents a situation where the Court had to identify whether
acts were preparatory or part of the beginning of the offense.
In Stephenson, a bribery conviction was upheld on the theory
that the defendant's phone calls into New York, "where his
bribery targets conducted business" provided venue because the
defendant "could have done none of these things [demanding,
seeking, receiving, accepting things of value] without
entering, by telephone, the Southern District. . . ." 895 F.2d
at 874. In Stephenson, although the actual bribe occurred in
Washington, the Court found that the defendant's phone calls to
New York — designed to create the anxiety and climate
sufficient to induce the bribe in Washington — "were crucial
components of, not merely preparatory to the bribe scheme that
culminated . . . in Washington, D.C." Id. at 874.
Unlike in Beech-Nut, 871 F.2d at 1190-91, where phone calls
to order adulterated juice and invoices to confirm the purchase
could not be considered the "introduction" into commerce of the
juice because those calls were preparatory, or United States v.
Bozza, 365 F.2d 206, 220-21 (2d Cir. 1966), where the making of
a contract to receive stolen goods was preparatory and not part
of the offense of receiving, here, Delia could have done none
of the "making" without the checks or signature, the obtaining
of which required entrance into Manhattan.
Unlike "uttering" which requires solely the act or
declaration that something is good or the offer to show that
it is good, "making" is a verb connoting a broader spectrum of
action. To make or create you need to bring something into
being and to do so in the context of a forged check requires
some ingredient. Here, the making of the forgery required both
the checks and the traceable signature from Manhattan. Given
the nature of this task to be performed, obtaining the
ingredients was the beginning of the making, not acts
preparatory to the making. Delia's reliance on Travis v. United
States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), and
Mendel is misplaced in that both of those cases concern the
"making" as opposed to the "filing" of false statements and not
when the "making" or creation of a false document begins. See
also United States v. Reed, 773 F.2d 477, 483 & n. 4 (2d Cir.
1985) (setting forth the confusion in the perjury cases). Just
as phoning to New York was part of the "demand[ing],"
"seek[ing] or agree[ing] to receive" in Stephenson, the
obtaining of the checks and signature was part of the "making"
under the present facts.
The third verb, "possesses," presents a more familiar legal
interpretation than both "utters" and "makes." Possession can
be both joint and constructive. Here, the proof adduced could
support the charge that Delia "possessed" the checks in the
Southern District constructively through his exercise of
control over Madeline Rosales ("Rosales") and jointly with
Rosales.*fn1 The crime of "possessing" the forged checks
could have begun jointly and constructively, the minute
Rosales obtained the checks in Manhattan and had the intent of
sharing the checks or turning them over to Delia. Accordingly,
venue would lie in the Southern District for "possessing" the
checks here constructively through and jointly with Rosales.
Unlike United States v. Davis, 666 F.2d 195, 200 (5th Cir.
1982) where the Fifth Circuit noted that neither the defendant
nor the coconspirator possessed or constructively possessed
drugs in the district where prosecution was brought, here the
coconspirator did possess the forged securities in the Southern
and the government sought to prove that Delia did so jointly
Accordingly, an analysis of the verbs contained in § 513 and
read in conjunction with § 3237 would indicate that two of the
verbs — "makes" and "possesses" could provide the basis upon
which venue would lie in the Southern District. See United
States v. Busic, 549 F.2d 252, 257 (2d Cir. 1979)
(distinguishing Bozza and Travis single act crimes from
2. Locus of Intended Effects
Another factor in the contacts test set forth in
Reed requires examination of the locus of the intended effects
of the alleged criminal conduct. Reed, 773 F.2d at 482. The
language of § 513 requires that all of the preceding three
verbs be accompanied by an "intent to deceive . . . an
Unlike in Rodriguez where the intent to deceive the
government was at issue, here the intent alleged is the
deception of an organization existing in Manhattan. Again,
turning to Reed where the criminal act, the making of an
affidavit occurred in California, the Second Circuit noted that
the affidavit was intended for use as testimony in a proceeding
in the Southern District and thus the locus of the intended
effects of the alleged criminal conduct was the Southern
District of New York. Reed, 773 F.2d at 483-84. Similarly, in
United States v. Candella, 487 F.2d 1223, 1227-28 (2d Cir.
1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d
872 (1974), where the defendants executed false affidavits in
Brooklyn, gave them to New York City officials in that borough,
and then those officials conveyed the documents to Manhattan,
the Court upheld venue in the Southern District by declaring
that 18 U.S.C. § 1001 fell within the continuing offense venue
statute, 18 U.S.C. § 3237(a). Finally, Rodriguez, the very case
on which defendant relies for the proposition that these verbs
are single acts, suggests that "the fact that a crime is
`completed' within one district does not necessarily mean that
it cannot be `continued' in other districts. . . . In certain
circumstances a court may find an offense to be continuing
though it was completed in one district if the relevant
statutes support such a conclusion and if the result is
consistent with the policies upon which the venue statutes are
based." Rodriguez, 465 F.2d at 11. Arguably, even if the making
of the checks were completed in Brooklyn, the forged check
needed to clear ultimately through the Manhattan company to
attempt to deceive the organization. Cf. United States v.
Zwego, 657 F.2d 248, 251 (10th Cir.), cert. denied,
455 U.S. 919, 102 S.Ct. 1275, 71 L.Ed.2d 460 (1981) (in prosecution for
making false statements in applications for loans from federal
bank, venue was laid properly in city where bank received false
Accordingly, whether under a continuing offense theory
pursuant to 18 U.S.C. § 3237(a) or under an examination of the
language of § 513 which explicitly requires the intent to
deceive an organization as an element of the offense, the locus
of the intended effects of the criminal acts is Manhattan —
from where those checks were stolen and to which they returned
for clearance, the ultimate destination of the deception, the
location of the organization.
3. Suitability of Prosecution
Neither party contests the appropriateness of prosecuting
the conspiracy charge in the Southern District. Moreover, the
need for the production of witnesses, the accuracy of
fact-finding, the convenience of parties is satisfied by
prosecution in the Southern District and neither party
suggests a constitutional difference between Brooklyn and
Manhattan with respect to this factor. Accordingly, no contest
exists over the suitability of prosecution in this district.
Under the test established in Reed, in assessing the
substantial contacts and the proof offered in this case,
Manhattan, as well as Brooklyn, can be fairly described as the
locus of the crimes charged. The question that remains, and a
factor not weighed above, is what constitutes the "site of
defendant's acts" when no evidence establishes
that Delia entered the Southern District.
4. Aiding and Abetting
Finally, we turn to Delia's acts and the distinction Delia
asks the court to make between conspiracy and aiding and
abetting of the substantive counts. In the context of this
case we note the shadowy and perhaps arcane distinctions
between conspiracy and aiding and abetting and find that to
dismiss the substantive counts in this case while retaining
the conspiracy charge would exalt form over substance.
No party contends that Delia walked into the Southern
District at any time to commit these crimes. Instead the
thrust of the crimes charged in this case — both the
conspiracy and substantive counts — is that Delia had an
agency relationship with Madeline Vega (who took the checks for
Rosales) and Rosales, accomplices and unindicted
co-conspirators, and that they acted at Delia's behest and he
acted through and with them in the Southern District in
violation of the crimes charged.
The Fifth Circuit addressed precisely this issue in
United States v. Downing, 348 F.2d 594 (5th Cir.), cert.
denied, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155 (1965),
where the defendant was charged with one conspiracy count and
nine substantive counts. The Court of Appeals found that there
could be prosecution for the conduct in a state the defendant
never entered on the theory that the defendant was an aider and
abettor and his coconspirator had entered that state. Downing,
348 F.2d 598-99.
Although Delia proffers the equally ancient Second Circuit
case of United States v. Bozza, 365 F.2d 206, 221-22 (2d Cir.
1966) to support the opposite proposition, we do not read Bozza
as differing significantly from Downing.
In Bozza, the Court of Appeals stated that:
Congress seems to have been content with venue
where the defendant's own accessorial acts were
committed or where the crime occurred, without
providing still another where the accessorial acts
of agents took place.
Id. (emphasis added). This language is entirely consistent with
the foregoing analysis in that the Circuit recognized that
focus of the inquiry may be either the defendant's own
accessorial acts or where the crime occurred. Contrary to
Delia's reading, we read Bozza as recognizing that a
defendant's acts may occur in a different location than the
locus of the crime and yet venue will properly lay in the
district in which the crime occurred — whether or not
defendant entered that district. See also Reed, 773 F.2d at 481
(several potential sites proper for venue because "the
constitution does not command a single exclusive venue"). Here,
the making and possessing and the intended effects of those
criminal acts can be found to have begun, continued, or
occurred in Manhattan, which also is the situs of the acts of
the agents. But see United States v. Hurwitz, 573 F. Supp. 547,
551 (S.D.W.Va. 1983) (characterizing offenses as continuing
crimes sidesteps issue of whether defendant committed the
alleged offenses in the district).
The Court in Bozza was dealing with the receiving of stolen
goods, an offense designated to be a single act crime, and
noted that aiding and abetting was inapplicable to receiving
because they construed the "offense" under 18 U.S.C. § 3237(a)
as the substantive crime and not the aiding or abetting of that
crime. Id. 365 F.2d at 220-21. Here, the government contends
that the offense began, was continued or completed in Manhattan
and that the aiding and abetting relates to the scope of the
offense, not acts in addition to the offense. 18 U.S.C. § 2
makes one who aids or abets the commission of a crime
punishable as a principal and it is under the theory that
Delia's aiding and abetting crimes beginning, continuing or
completing in the Southern District makes Delia punishable as a
principal in this district. See United States v. Kilpatrick,
458 F.2d 864, 868 (7th Cir. 1972) (where defendant gave
counterfeit bills to another who sold them in Illinois, venue
of defendant's conviction in Illinois upheld because 18 U.S.C. § 2
permits the prosecution of aider and abettor not
only in district in which he committed accessorial acts but
also district where substantive crime committed).
Finally, given the policy reasons behind venue, the nature
of the crime and the criminal behavior, and the location of
the acts constituting it, upholding venue in the Southern
District comports with Delia's constitutional rights.
It is so ordered.