that because the bribe alleged in that count was offered and given by a third party (Cantor's client) in Brooklyn and Queens, (see Gov't Mem. Ex. 2 at PP 16-20, 23, 26), venue for the substantive offense is not proper here.
Count Four charges Cantor with a violation of 18 U.S.C. §§ 2 and 666. One charged as an accessory may be tried where he committed accessorial acts. See United States v. Bozza, 365 F.2d 206, 221 (2d Cir. 1966) ("This court held in Gillette that 18 U.S.C. § 2 . . . 'does not supersede the common law rule of venue but provides an additional venue'"; "Congress seems to have been content with venue where the defendant's own accessorial acts were committed or where the crime occurred . . ."); United States v. Gillette, 189 F.2d 449, 451-52 (2d Cir.) ("Since Gillette neither transported the checks nor was present at their transportation, by the common law rule as we inherited it he would be triable only as an accessory, and only in the district where the accessorial acts took place. The statute cited in note 1 [ 18 U.S.C. § 2] makes an accessory a principal so that it is now possible to try him where the substantive offense was committed. But this, in our opinion, does not supersede the common law rule of venue but provides an additional venue") (alteration added) (footnotes omitted), cert. denied, 342 U.S. 827, 72 S. Ct. 49 (1951); United States v. McCulley, 673 F.2d 346, 350-51 (11th Cir.), cert. denied, 459 U.S. 852, 103 S. Ct. 116, 74 L. Ed. 2d 102 (1982); United States v. Sweig, 316 F. Supp. 1148, 1161 (S.D.N.Y. 1970); United States v. Branham, 1987 U.S. Dist. LEXIS 4821, Crim No. 86-63-JRR, 1987 WL 12252, at *8 (D. Del. June 5, 1987); see also United States v. Delia, 944 F.2d 1010, 1014 (2d Cir. 1991). But see United States v. Walden, 464 F.2d 1015, (4th Cir. 1972).
The government's offer of proof on the issue of venue, supported by a sworn complaint, includes the allegation that on March 24, 1992, Cantor met with Rosenblum in Cantor's Manhattan offices. At that meeting, Cantor and Rosenblum discussed the method by which the balance of the bribe would be paid to Rosenblum by John Brunetti, a principal of one of Cantor's clients. (See Gov't Mem. Ex. 2 at PP 21-22; Second Gov't Mem. at 4.) Because that accessorial act, if proven at trial, establishes venue in this district, Cantor's motion to dismiss Count Four on those grounds is denied. See United States v. Rogers, 1991 U.S. Dist. LEXIS 6676, No. 90 Cr. 377 (CSH), 1991 WL 90797, at *3 (S.D.N.Y. May 21, 1991) ("In considering a motion to dismiss an indictment the district court must take as true all of the allegations contained in the indictment. The district court can consider additional documents that have been submitted but cannot give any weight to contrary factual assertions made by the defendant"); United States v. Castellano, 610 F. Supp. 1359, 1388-89 (S.D.N.Y. 1985) ("At this stage of the proceedings, however, the government need only allege, with sufficient specificity, that venue is appropriate by reason of the commission of the charged acts in the Southern District. Where the indictment is insufficient on its face, moreover, the government may meet this burden either by amending the indictment to reflect the commission of the charged acts in the Southern District, or through a sworn bill of particulars") (citation omitted).
6. Request for further particulars
Cantor seeks further particulars concerning federal funding received by the BOE in the twelve-month period before Cantor's alleged offenses.
"'A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.'" United States v. Torres, 901 F.2d 205, 234 (2d Cir.) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989)), cert. denied sub nom. Cruz v. United States, 498 U.S. 906, 111 S. Ct. 273, 112 L. Ed. 2d 229 (1990).
The government is directed to identify the federal programs under which the BOE is claimed to have received benefits in excess of $ 10,000, the amount of the benefits received by the BOE, and the dates on which those benefits were received by the BOE. That will sufficiently inform Cantor of the charges against him to enable him to prepare a defense, to avoid surprise at trial, and to enable him to interpose a plea of double jeopardy if necessary. See Torres, 901 F.2d at 234; United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988); United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). Accordingly, his requests for other particulars are denied except as noted above.
Cantor's request for additional particulars concerning the federal funds received by the BOE is granted to the extent stated above. The motions are otherwise denied.
Dated: New York, New York
August 18, 1995
LOUIS L. STANTON
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