The opinion of the court was delivered by: Judge Joseph F. Bianco United States District Judge
JOSEPH F. BIANCO, District Judge: claims that there was insufficient evidence to support the wire fraud charge. In his On March 7, 2011, defendant Kamal motion for a new trial, defendant seeks to Abdallah (hereinafter "Abdallah" or overturn his conviction on the following "defendant") was convicted following a jury four grounds: (1) there was a constructive trial of one count of conspiracy to commit amendment or prejudicial variance to the securities and wire fraud, 18 U.S.C. superseding indictment; (2) the government §§ 1343, 1348 and 1349, one count of withheld witness statements in violation of securities fraud, 18 U.S.C. § 1348, and one Brady v. Maryland, 373 U.S. 83 (1963); (3) count of wire fraud, 18 U.S.C. § 1343. the government improperly introduced evidence of the defendant's prior bad acts in On July 1, 2011, defendant moved for a violation of Federal Rule of Evidence judgment of acquittal, pursuant to Federal 404(b); and (4) the government misled the Rule of Criminal Procedure 29, and for a jury during its rebuttal summation. new trial, pursuant to Federal Rule of Criminal Procedure 33(a). In his motion for For the reasons set forth below, the a judgment of acquittal, defendant argues Court denies defendant's motion for that venue in the Eastern District of New judgment of acquittal and defendant's York ("EDNY") was not proper for the motion for a new trial in their entirety. conspiracy charge, the securities fraud charge, or the wire fraud charge, and contends that the government manufactured venue as to each count. Defendant also
A. Superseding Indictment Familiarity with the trial record is presumed. However, the Court briefly
The grand jury returned a superseding summarizes below the evidence relevant to indictment ("Superseding Indictment") the instant motions. The evidence is against the defendant on August 17, 2010 in construed in the light most favorable to the seven counts, including conspiracy to government, as required under Rule 29 of commit securities and wire fraud, the Federal Rules of Criminal Procedure. substantive securities fraud, and five counts of wire fraud. The Superseding Indictment 1. Relevant Companies and Loans charged that between June 2009 and August 2009, the defendant paid Eric T. Seiden to The defendant was the CEO and create false demand for stock in Universal Chairman of the Board of UPDV, an oil and Property Development and Acquisition gas services company. (Tr. 671, 1013-14.)*fn1
Corporation ("UPDV"), which inflated The defendant was also Chairman of the UPDV's share price. (Sup. Ind., ¶¶ 4-9.) Board of Continental Fuels ("Continental"), Defendant and an individual named Roger an oil products-related company in which Kainth then allegedly sold their UPDV stock UPDV owned a controlling interest. (Tr. at these artificially high prices. (Sup. Ind., 677-78.) ¶¶ 5, 9.) The indictment also alleged that, during a phone call that Seiden made to the In April 2007, Sheridan Asset defendant on July 28, 2009, while Seiden Management, LLC ("Sheridan"), a was in the EDNY, the defendant and Seiden commercial finance and investment discussed a scheme to manipulate the stock management company, lent UPDV about price of UPDV and another company called $3.6 million. (Tr. 671-72.) In August 2007, Alphatrade. (Sup. Ind., ¶ 11.) During that Sheridan extended an additional $3.25 discussion, the defendant allegedly asked million to UPDV. (Tr. 675-77.) In Seiden to place fraudulent trades for December 2007, Sheridan lent Continental Alphatrade at a certain price in order to $5.5 million so that Continental could artificially inflate the price and allow acquire Geer Tank Trucks, Inc. ("Geer"). defendant and Kainth to sell their stock. (Tr. 677-79.) That same month, Sheridan (Sup. Ind., ¶ 11.) extended Continental a $3 million line of credit. UPDV guaranteed the loan and the Before the trial began, the government line of credit. (Tr. 680.) voluntarily dismissed three counts of wire fraud on venue grounds, and proceeded at In October 2008, UPDV stopped making trial on Count One charging conspiracy to payments to Sheridan on the $3.6 and $3.25 commit wire fraud, Count Two charging million loans and went into default on both. substantive securities fraud, and Count (Tr. 684-87.) That month, Continental Seven charging wire fraud on or about July stopped producing collateral reports to 28, 2009 (which was re-numbered as Count Sheridan. (Tr. 688.) Bank statements for Three for purposes of the jury's Continental and UPDV show that $4 million consideration). The trial began on February was transferred on October 14, 2008 from 14, 2011 with the selection of the jury. Geer to Continental, then to UPDV. (Tr. 693-94, 695-97; Gvt. Ex. 166.) On the same artificially increase trading volume in day, $3.5 million was transferred from UPDV stock. (Tr. 877-882; Gvt. Exs. 213, UPDV to the defendant's personal bank 214.) Between June 1 and June 19, 2009, account. (Tr. 699; Gvt. Ex. 165.) Defendant defendant and Kainth bought or sold UPDV later acknowledged that he lost $3 million stock every day that the stock market was out of the $3.5 million that was transferred open, buying a total of over 30 million to his account by engaging in currency shares, and selling 28.5 million shares. (Tr. trading. (Tr. 699-700.) Because of 881; Gvt. Ex. 215.) Moreover, their trading defendant's actions, Geer was unable to pay activity was very similar. For example, on its suppliers and began to bounce checks. June 4, 2009, defendant bought 3,921,500 (Tr. 701-02.) UPDV shares in his Fidelity brokerage account, and sold 1,206,953 UPDV shares in In December 2008, defendant resigned his Ameritrade account. (Tr. 878; Gvt. Ex. from UPDV, Continental, and all related 213.) Similarly, on June 1, 2009, Kainth companies. At that point, UPDV owed bought a total of 424,999 UPDV shares in Sheridan more than $14 million. (Tr. 704- his E*Trade and Schwab accounts and sold 06.) 5,999,994 shares in his Schwab account. (Gvt. Ex. 214.) In addition, Kainth, who sold 2. Issuance of 600 Million UPDV Shares more shares than he bought, sent some of the proceeds of such sales to the defendant.
On October 27, 2008, after the defendant (Tr. 893-97.) Finally, once the defendant had already taken the above-referenced was introduced to Seiden on June 18, 2009, money from Geer, he sent an email to and Seiden began fraudulently inflating the UPDV's transfer agent asking the transfer demand in the UPDV shares, defendant and agent to issue 600 million UPDV shares in Kainth ceased their pattern of buying and the name of Mohamed Abdellatif Yassine. selling UPDV shares between their (Tr. 304-05, 1120; Gvt. Ex. 98.) The accounts, and began to almost exclusively defendant asserted that the 600 million sell their UPDV shares. (Gvt. Exs. 215, shares could be properly issued because he 218.) had converted into common stock some 15,000 shares of Preferred B stock that 4. Defendant and Eric Seiden UPDV had issued to him on December 27, 2007. (Gvt. Ex. 98.) The defendant also Defendant first spoke to Seiden during a requested that the stock certificates be sent phone conference on June 18, 2009. (Tr. by the transfer agent overseas to Al 394-95.) Seiden told the defendant that he Mawarid Financial Services ("AM had a lot of relationships with people and Financials") in Beirut, Lebanon. (Id.) The could buy a lot of stock. (Tr. 398-99.) The stock certificates were issued and sent defendant agreed to wire Seiden money if overseas as instructed by the defendant. Seiden successfully procured buy orders for (Id.) UPDV shares. Defendant also agreed to pay
Seiden 25 percent of the purchase price of
3. Defendant and Roger Kainth any of the UPDV shares that Seiden bought. (Tr. 400-01.) That same day, Seiden bought
Beginning in June 2009, defendant and a few million UPDV shares, and defendant Roger Kainth used different brokerage wired him $3,500. (Tr. 402-04; Gvt. Ex. 18.) accounts to buy and sell UPDV shares between their respective accounts in order to After June 18, 2009, Seiden continued to defendant wired Seiden $3,500 on that day. place buy orders in UPDV stock on the (Tr. 425-46; Gvt. Ex. 18.) defendant's behalf. (Tr. 407-08.) To do so, Seiden called brokerage firms pretending to On June 25 and 26, 2009, which were be various individuals from institutional the days Seiden placed false buy orders with investors who had existing accounts at the Dinosaur Securities for a total of 38 million brokerage firms. (Tr. 408.) During these UPDV shares, the defendant sold about 8.2 phone calls, Seiden would place buy orders million UPDV shares in his personal into the accounts of the investors he was brokerage accounts. (Gvt. Ex. 216.) On June impersonating. Seiden placed fake buy 25, 2009, the defendant exchanged forty-orders on June 22, June 25, June 26, July 7, five telephone calls and text messages with and July 8, 2009 at brokerage firms such as Seiden and, on June 26, 2009, they Cantor Fitzgerald, Dinosaur Securities, Roth exchanged nineteen telephone calls and text Capital Partners, and Royal Bank of Canada messages. (Gvt. Ex. 211.) Moreover, Capital Markets. (Tr. 41-43, 70-74, 119-125, defendant deposited $2,000 into Seiden's 134-35, 155-56.) bank account on June 25, 2009, and Seiden received a payment of $9,800 on June 26, Between June 19 and July 10, 2009, 2009, from one of defendant's companies. defendant and Seiden communicated several (Tr. 426-28.) Seiden also received another times per day by phone and through text wire from the defendant in the amount of messages. (Tr. 404-05.) Through these $5,000 on July 1, 2009. (Tr. 431.) communications, defendant told Seiden how many shares to buy, the price that UPDV On July 7, 2009, which was the day shares were selling for at the time, and the Seiden put in a false buy order with Roth price at which defendant wanted to sell the Capital Partners, defendant sold about 2.4 shares, which was "always above where the million UPDV shares in his personal market was trading." (Tr. 405, 407, 411.) brokerage accounts. (Gvt. Ex. 216.) On that day, Seiden and the defendant exchanged On days that Seiden successfully placed twenty-five telephone calls and text a fake buy order, the defendant sold or messages. (Gvt. Ex. 211.) attempted to sell UPDV stock. (Gvt. Ex. 216.) He also made multiple phone calls or On July 8, 2009, which was the day that text messages on those days, and wired Royal Bank of Canada Capital Markets money to Seiden on or around the days bought 95 million shares for Seiden based when Seiden placed the buy orders. (Gvt. upon a false buy order, defendant tried to Ex. 211; Tr. 287-88, 425-28, 431.) sell 30 million UPDV shares through an account at AM Financials in Lebanon. In For example, on June 22, 2009, which particular, at 3:39 p.m., the defendant made was the day Seiden placed fraudulent buy a twelve minute call to AM Financials. (Tr. orders with Cantor Fitzgerald for 10 million 852; Gvt. Ex. 212.) While the defendant was UPDV shares, defendant sold about 5.3 on the telephone with AM Financials, an million UPDV shares in his personal order was placed by AM Financials to sell brokerage accounts. (Gvt. Ex. 216.) On that 30 million UPDV shares through another day, there were twenty-eight phone calls and brokerage firm called Pinnacle. (Tr. 848-49; text messages between the defendant and Gvt. Ex. 95.) Moreover, while the defendant Seiden. (Gvt. Ex. 211.) In addition, the was on the telephone with AM Financials, he also received two calls from Seiden, and appeared to place AM Financials on hold to 2009, Kainth sold more than 10 million speak to Seiden. (Tr. 852; Gvt. Ex. 212.) UPDV shares; (c) on June 26, 2009, Kainth AM Financials subsequently reported to sold 4.47 million UPDV shares; and (d) on Pinnacle that the sell order for 30 million July 7, 2009, Kainth sold approximately 8 shares was an unsolicited trade that was million UPDV shares. (Gvt. Ex. 217.) placed by one of its clients. (Tr. 620; Gvt. Kainth also wired a portion of the proceeds Ex. 96.) AM Financials described its client from the UPDV shares to the defendant. (Tr. as a "heavy trader" who "work[ed] a lot on 893-96.) penny stocks" and who "also trades futures, currencies, oil, natural gas, et cetera." (Tr. 6. In-Person Meeting in Texas Between 622; Gvt. Ex. 96.) In addition, AM Seiden and the Defendant Financials reported that its client was "a big shareholder in UPDV and [had] been trading On July 15, 2009, Seiden flew to San the stock for more than a year." (Tr. 622; Antonio, Texas, where defendant resided, to Gvt. Ex. 96.) The 30 million share trade was meet with defendant. (Tr. 436, 441, 998-99.) subsequently "busted," or cancelled, at the The defendant paid for Seiden's flight. (Tr. request of RBC, who had bought the AM 437.) During the visit, the defendant and Financials shares. (Tr. 614-16.) During his Seiden discussed putting in buy orders for trial testimony, Seiden recalled that the UPDV and another company defendant defendant had told him that he received a owned shares in called Alphatrade. (Tr. 442-call from one of his overseas traders about a 43, 445.) Later that day, Seiden told cancelled trade, which had resulted from the defendant his particular fraudulent technique compliance department of the brokerage for securing the buy orders. Specifically, firm stating there was a problem on the buy Seiden told the defendant that he (Seiden) side of defendant's trade.*fn2 (Tr. 432-33.) was telling brokerage firms that he had accounts there, when in fact he did not. (Tr. 5. Kainth's Trades Between June 22, 2009 446.) Seiden explained to the defendant that and July 8, 2009 some buy orders failed because the firms figured out that Seiden did not have an
The evidence at trial demonstrated that account and refused to place the buy order. Roger Kainth sold UPDV shares in his (Id.) brokerage accounts on days that Seiden made the false buy orders, including on June The next day, defendant asked Seiden to 22, June 25, June 26, and July 7, 2009. (Gvt. buy more stock for him. (Tr. 447-48.) Ex. 217.) For example, Kainth made the Seiden said he was running out of firms to following trades: (a) on June 22, 2009, call, but the defendant agreed to provide Kainth sold 999,999 UPDV shares in his Seiden with more names of people to call. personal brokerage account; (b) on June 25, (Tr. 448.)
Both before and after Seiden's trip to brokerage account at a cost of $1,555. (Tr. In the two weeks or so after the July 31 903; Gvt. Ex. 36.) phone calls, defendant sent multiple text messages to Seiden imploring him to contact 7. Seiden's Cooperation and Subsequent him so they could keep working together. Phone Calls (Gvt. Ex. 10.) For example, on July 31, 2009, at 1:57 p.m., defendant sent a text The FBI arrested Seiden on July 21, message to Seiden stating: "Eric U wanna 2009. (Tr. 448.) On July 21, July 28, and do 20 or 25 and let's see what happens." (Tr. July 31, 2009, Seiden made consensually 214; Gvt. Ex. 10.) On August 2, 2009, recorded phone calls to the defendant. (Gvt. defendant sent Seiden the following text Exs. 4, 5, 6.) Seiden was located in the message: "Eric Let's chat to prepare for the EDNY when he made the July 28, 2009 week!?" (Id.) On August 3, 2009, defendant phone call. (Gvt. Ex. 5.) During these calls, sent the following text message to Seiden: defendant requested that Seiden continue "Good morning eric, hope all is well call me placing fake buy orders for UPDV and for let's put a strategy together." (Tr. 215; Gvt. Alphatrade. In the July 21, 2009 call, for Ex. 10.) On August 6, 2009, defendant sent example, defendant told Seiden to buy 25 to Seiden the following text message: "Young 50 million shares of UPDV every other day man, call me let's make some money." (Tr. and to try to raise the price of UPDV. (Gvt. 219; Gvt. Ex. 10.) On August 10, 2009, Ex. 4.) In exchange, the defendant agreed to defendant sent the following text to Seiden: provide a kickback to Seiden of 25 percent "What's going young man please call me, of whatever shares they were able to sell. let's do something here." (Tr. 221; Gvt. Ex. (Id.) 10.)
In the July 28, 2009 call, during which 8. Defendant's Testimony
Seiden told the defendant that he was "still in New York," defendant told Seiden to put At trial, defendant testified on his own in buy orders for UPDV at up to $0.0045 per behalf. (Tr. 998-1383.) During that share, even though UPDV was trading testimony, the defendant testified in detail as between $0.0024 and $0.0028 per share. to the circumstances that led to his (Gvt. Ex. 5.) The defendant again mentioned transactions with Seiden and denied any that he would pay Seiden a kickback of 25 knowledge that Seiden was fraudulently percent on all shares that were sold. (Id.) inflating the price of stocks.
In calls on July 31, 2009, the defendant 9. The Verdict and Seiden again discussed the UPDV buy orders. (Gvt. Ex. 6-9.) Seiden said "you On March 7, 2011, the jury found the know how I'm doing it" and agreed that if defendant guilty on all three remaining the brokerage firms realized how Seiden was counts of the Superseding Indictment -- buying the stock, defendant would not tell namely, Counts One, Two, and Seven. them that he knew Seiden. (Gvt. Ex. 6.)
Seiden told the defendant that he had to be C. The Post-Trial Motions "cautious because of what I do." (Gvt. Ex. 8.) Seiden explained that he was talking By letter filed May 10, 2011, defendant "outta my, my butt when I tell them who I Abdallah requested that he be allowed to am and everything," and that he had to proceed pro se. On July 1, 2011, following a "pretend who I am." (Id. at 2, 3.) hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), the Court granted 1. Legal Standard Abdallah's application to proceed pro se and, with the consent of Abdallah, his Motions under Rule 29(c) are governed former counsel was appointed to be his legal by the same standard as motions under Rule advisor. 29(a). Pursuant to Rule 29(a), a district court shall enter a judgment of acquittal as to "any On July 1, 2011, Abdallah filed a motion offense for which the evidence is for judgment of acquittal, pursuant to Rule insufficient to sustain a conviction." Fed. R. 29 of the Federal Rules of Criminal Crim. P. 29(a). Rule 29(c) permits a Procedure, and a motion for a new trial, defendant to "move for a judgment of pursuant to Rule 33 of the Federal Rules of acquittal, or renew such a motion, within 14 Civil Procedure. On August 11, 2011, the days after a guilty verdict or after the court government filed its opposition to discharges the jury, whichever is later." Fed. Abdallah's motions. On August 26, 2011, R. Crim. P. 29(c). However, as set forth Abdallah filed his reply. On September 15, below, "'[a] defendant bears a heavy burden and 21, 2011, the Court heard oral argument in seeking to overturn a conviction on on the motions. At oral argument on grounds that the evidence was insufficient.'" September 21, 2011, the Court permitted United States v. Lorenzo, 534 F.3d 153, 159 Abdallah to file a supplemental document (2d Cir. 2008) (quoting United States v. containing a chronology of events in Cruz, 363 F.3d 187, 197 (2d Cir. 2004)); connection with his motions. Abdallah also accord United States v. Pipola, 83 F.3d 556, made additional submissions following the 564 (2d Cir. 1996) (citing Glasser v. United argument. The Court has fully considered States, 315 U.S. 60, 80 (1942)); see also the arguments and submissions of the United States v. Tillem, 906 F.2d 814, 821 parties. (2d Cir. 1990) (stating that motions to challenge sufficiency of evidence "rarely
II. DISCUSSION carry the day").
A. Motion for Judgment of Acquittal The standard under Rule 29, as articulated by the United States Supreme
Defendant Abdallah filed a Rule 29(c) Court, is "whether, after viewing the motion requesting a judgment of acquittal on evidence in the light most favorable to the the following grounds: (1) venue was prosecution, any rational trier of fact could improper on each of the three counts; and have found the essential elements of the (2) there was insufficient evidence to crime beyond a reasonable doubt.'" Jackson support a conviction on the wire fraud*fn3 v. Virginia, 443 U.S. 307 (1979); accord count. As discussed below, the Court finds United States v. Finnerty, 533 F.3d 143, 148 each of these arguments to be without merit. (2d Cir. 2008); Lorenzo, 534 F.3d at 159; United States v. Irving, 452 F.3d 110, 117 defendant committed the crime alleged is evidence in its totality. See United States v. nonexistent or so meager that no reasonable Rosenthal, 9 F.3d 1016, 1024 (2d Cir. jury could find guilt beyond a reasonable 1993); see also Guadagna, 183 F.3d at 130 doubt.'" Temple, 447 F.3d at 136 (quoting (holding that sufficiency test must be United States v. Guadagna, 183 F.3d 122, applied "to the totality of the government's 130 (2d Cir. 1999) (internal quotation marks case and not to each element, as each fact omitted)). may gain color from others"). Finally, "[d]irect evidence is not required; '[i]n fact, It is important to emphasize that, in the government is entitled to prove its case evaluating the evidence under this standard, solely through circumstantial evidence, "courts must be careful to avoid usurping provided, of course, that the government still the role of the jury when confronted with a demonstrates each element of the charged motion for acquittal." United States v. offense beyond a reasonable doubt.'" Jackson, 335 F.3d 170, 180 (2d Cir. 2003); Lorenzo, 534 F.3d at 159 (quoting United see also United States v. Florez, 447 F.3d States v. Rodriguez, 392 F.3d 539, 544 (2d 145, 154-55 (2d Cir. 2006) ("In assessing Cir. 2004)); see also Irving, 452 F.3d at 117 sufficiency, we are obliged to view the ("A jury may convict on circumstantial evidence in its totality and in the light most evidence alone."); accord Jackson, 335 F.3d favorable to the prosecution, mindful that at 180; United States v. Martinez, 54 F.3d the task of choosing among permissible 1040, 1043 (2d Cir. 1995). However, "if the competing inferences is for the jury, not a evidence viewed in the light most favorable reviewing court."); Guadagna, 183 F.3d at to the prosecution gives equal or nearly 130 (holding that a court must bear in mind equal circumstantial support to a theory of that Rule 29 "does not provide [it] with an guilt and a theory of innocence, then a opportunity to substitute its own reasonable jury must necessarily entertain a determination of . . . the weight of the reasonable doubt." United States v. Glenn, evidence and the reasonable inferences to be 312 F.3d 58, 70 (2d Cir. 2002) (internal drawn for that of the jury") (citations and quotation marks omitted); accord United internal quotation marks omitted). States v. Cassese, 428 F.3d 92, 99 (2d Cir. 2005).
Therefore, viewing the evidence in the light most favorable to the government In short, "'[w]here a court concludes means "drawing all inferences in the after a full analysis of the evidence in government's favor and deferring to the connection with a Rule 29 motion that jury's assessments of the witnesses' 'either of the two results, a reasonable doubt credibility." United States v. Arena, 180 or no reasonable doubt, is fairly possible, F.3d 380, 391 (2d Cir. 1999) (citation and [the court] must let the jury decide the internal quotation marks omitted); accord matter.'" Temple, 447 F.3d at 137 (quoting United States v. James, 239 F.3d 120, 124 United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("[T]he credibility of (2d Cir. 2000)) (internal quotation marks witnesses is the province of the jury, and [a omitted; alteration in original). On the other court] simply cannot replace the jury's hand, "'in passing upon a motion for credibility determinations with [its] own.") directed verdict of acquittal, . . . if there is (quotation omitted). In examining the no evidence upon which a reasonable mind sufficiency of the evidence, the Court also might fairly conclude guilt beyond a should not analyze pieces of evidence in reasonable doubt, the motion must be isolation, but rather must consider the granted.'" Temple, 447 F.3d at 137 (quoting United States v. Taylor, 464 F.2d 240, 243 number of factors -- the site of the (2d Cir. 1972)). defendant's acts, the elements and nature of the crime, the locus of the
2. Challenges to Venue effect of the criminal conduct, and the suitability of each district for
Defendant Abdallah challenges venue on accurate factfinding . . .
each of the counts. As discussed below, the .
Court concludes that venue existed in the United States v. Reed, 773 F.2d 477, 481 (2d Eastern District of New York for each of the Cir. 1985); accord United States v. Royer, counts based upon an interstate telephone 549 F.3d 886, 893 (2d Cir. 2008). call between the defendant and Seiden on July 28, 2009, while Seiden was in this The government bears the burden of District, during which the fraudulent scheme proving venue by a preponderance of the was discussed and Abdallah directed that evidence. United States v. Smith, 198 F.3d Seiden make fraudulent purchases of 377, 382 (2d Cir. 1999); United States v. Alphatrade and UPDV stock in exchange for Naranjo, 14 F.3d 145, 146 (2d. Cir. 1994). a 25 percent kickback, so that Abdallah Courts "review the sufficiency of the could sell his stock at the artificially inflated evidence as to venue in the light most price caused by the fraudulent purchase. favorable to the government, crediting every
a. Applicable Law inference that could have been drawn in its favor." Smith, 198 F.3d at 382 (quotations
Two provisions of the U.S. Constitution omitted). guarantee that the defendant must be tried in the place where the crime was committed. Under 18 U.S.C. § 3237(a), venue Article III, section 2, states, in relevant part, properly lies in "any district in which such that criminal trials "shall be held in the State offense was begun, continued, or where the said Crimes shall have been completed." The Second Circuit, "[a]pplying committed." U.S. Const. art. III, § 2, cl. 3. this rule to the continuing crime of The Sixth Amendment guarantees that a conspiracy[,] . . . has held that venue may lie criminal defendant shall be tried "by an in any district in which the conspiracy was impartial jury of the State and district formed or in any district in which a wherein the crime shall have been conspirator committed an overt act in committed." U.S. Const. amend. VI. In furtherance of the criminal scheme." United furtherance of these provisions, Rule 18 of States v. Rommy, 506 F.3d 108, 119 (2d Cir. the Federal Rules of Criminal Procedure 2007). Any "act performed by any requires that, "[u]nless a statute or these conspirator for the purpose of accomplishing rules ...