U.S. v. Angotti

• Citation: 105 F.3d 539
• Decision Date: 28 January 1997
• Docket Number: No. 94-50216,94-50216
• Parties: 97 Cal. Daily Op. Serv. 638, 97 Daily Journal D.A.R. 1007 UNITED STATES of America, Plaintiff-Appellee, v. Antonio M. ANGOTTI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 539

105 F.3d 539

97 Cal. Daily Op. Serv. 638, 97 Daily Journal

D.A.R. 1007

UNITED STATES of America, Plaintiff-Appellee, v. Antonio M. ANGOTTI, Defendant-Appellant.

No. 94-50216.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 10, 1995.

Decided Jan. 28, 1997.

William J. Genego, Law Offices of William J. Genego, Santa Monica, California, for defendant-appellant.

David F. Taylor, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, William J. Rea, District Judge, Presiding. D.C. No. CR 93-00491-WJR-2.

Before BROWNING, SCHROEDER and NORRIS, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

I. BACKGROUND

Antonio M. Angotti was convicted on six counts arising out of his fraudulent conduct in obtaining a loan: four of making false statements to a federally-insured financial institution, one of money laundering, and one of conspiracy to commit the substantive offenses. ¹ He appeals his convictions on the ground that venue in the Central District of California was improper, and we deal with the venue issues in this opinion. He also challenges a number of evidentiary rulings made at trial, which we address and affirm in a companion memorandum disposition pursuant to Ninth Circuit Rule 36-3. We here hold that venue was proper in the Central District for all counts and we also affirm.

Angotti was prosecuted primarily because he filed false documents to obtain a $480,000 loan from Western Federal Savings and Loan Association to buy a condominium unit in northern California. Unbeknownst to Western Federal, the condominium was part of a financially troubled real estate project developed by Angotti and his father. Angotti made just one payment on the loan and then defaulted. Western Federal is a federally insured savings and loan headquartered in Orange County, in the Central District of California. In accordance with Western Federal's usual policy, Orange County headquarters made the final decision approving Angotti's loan.

Angotti made all of his false statements to Western Federal through an innocent middle agent, Guarantee Mortgage, whom Angotti hired to help him obtain the loan. Guarantee Mortgage is located in the Northern District of California. Angotti submitted to Guarantee Mortgage a draft loan application that contained false statements. Guarantee Mortgage then unwittingly reiterated the false information in a loan package that it sent to Western Federal's Redwood Shores branch office, also in the Northern District of California. The branch office conditionally approved the loan and then sent the application to Western Federal's head office for the final decision.

After reviewing the application, Western Federal informed Guarantee Mortgage that Angotti would have to provide a "verification of deposit" to confirm the existence of some of his assets. Angotti asked Raymond Arthun, who was in the Central District, to prepare the verification of deposit. Arthun faxed the verification to Guarantee Mortgage, which sent it on to Western Federal's Redwood Shores office, which then directed it to Western Federal's head office in the Central District.

Two of Angotti's four false statement convictions concern statements in the original loan application package. Another is for misrepresentations in the Arthun verification of deposit. The remaining false statement conviction is for the false representation in a letter from Angotti found in a loan file at Western Federal's head office in Orange County. The letter stated that the down payment for Angotti's condominium would be a gift from Eugene Di Basilio, when in fact Di Basilio gave Angotti a twenty-four hour loan for the down payment, not a gift.

Additionally, Angotti was convicted of one count of money laundering for depositing $20,000 of the loan proceeds in a bank in the Northern District, and of one count of conspiracy to commit all of the underlying false statement and money laundering charges. The district court sentenced Angotti to concurrent 41 month terms of incarceration.

II. VENUE

On appeal, Angotti argues that venue did not lie in the Central District of California for any of the six counts on which he was convicted. "The existence of venue is a question of law [that] we review de novo." United States v. Childs, 5 F.3d 1328, 1331 (9th Cir.1993). The prosecution bears the burden of proving the requisite connection to a district by a preponderance of the evidence. Id. at 1332. "When a defendant is charged in more than one count, venue must be proper with respect to each count." United States v. Corona, 34 F.3d 876, 879 (9th Cir.1994).

Our venue law grows out of important concerns that a criminal jury trial be held near the place where the crime was committed and where prosecution can conveniently proceed. "In criminal cases venue involves important considerations of policy, with deep historical roots, that are now expressed in a complicated interplay of constitutional provisions, statutes and rules." Charles A. Wright, Law of Federal Courts § 43, at 271 (5th ed. 1994). The Supreme Court has, at various times, expounded on the importance of prosecuting cases near the criminal defendant's home. See, e.g., United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958); Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90 (1905). On other occasions, the Court has stressed the importance of a trial at the locus of the crime. See, e.g., Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956).

The Constitution, which protects venue rights in Article III, § 2, and the Sixth Amendment, states that a defendant must be tried in both the state and the district where the crime was committed. The criminal rules and code spell out that requirement, along with the need to consider the convenience of the defendant and the court:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.

Fed.R.Crim.P. 18; 18 U.S.C. § 3232.

Determining where an offense was committed, however, has often been a sticky question. See 2 Charles Alan Wright, Federal Practice and Procedure § 302; Armistead M. Dobie, Venue in Criminal Cases in the United States District Court, 12 Va.L.Rev. 287 (1926). Many offenses, like complex conspiracies or transporting contraband, may continue through multiple venues. Congress has eased the burden of answering this question by providing that continuing offenses may be prosecuted where they are begun, continued, or completed:

Except as otherwise expressly provided by an enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

18 U.S.C. § 3237(a). A key question in this case is whether Angotti's offenses should be treated as continuing offenses that could have been prosecuted in either the Northern District or the Central District of California, or whether, as Angotti contends, venue was proper only in the Northern District.

A. The False Statement Charges

Angotti was convicted in the Central District of California of four counts of violating 18 U.S.C. § 1014, which punishes anyone who "knowingly makes any false statement ... for the purpose of influencing ... the action" of a federally insured institution. This statute does not indicate a method for determining the location of the crime for the purpose of establishing venue. Therefore, the location "must be determined from the nature of the crime alleged and location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946).

Angotti was charged with making false statements for the purpose of influencing the actions of bank officials, who in this case were located in the Central District of California. The statements were actually communicated to those officials; indeed the officials acted upon the statements and approved Angotti's loan. We conclude that venue was therefore proper in the Central District, where the communication reached the audience whom it was intended to influence, even though some of the criminal conduct occurred in the Northern District, where the statements were submitted.

Our conclusion is consistent with the decision of another circuit that has considered materially similar facts and held that the crime of making a false statement is a continuing offense that may be prosecuted in the district where the false statement is ultimately received for final decisionmaking. United States v. Candella, 487 F.2d 1223 (2d Cir.1973) (analyzing 18 U.S.C. § 1001, which prohibits making false statements to any United States agency). In Candella, the Second Circuit explained that "[t]he statements continued to be false and continued to be within the jurisdiction of the United States not only when initially presented but also upon arrival [at the place] where the decision was reached to make the funds available." 487 F.2d at 1228. Candella applied the provisions of 18 U.S.C. § 3237(a), which provides that continuing offenses may be prosecuted where the crime "was begun, continued, or completed." The Tenth, Eleventh and Seventh Circuits have all treated § 1014 as a continuing offense. See United States v. Greene, 862 F.2d 1512, 1515-16 (11th Cir.1989); United States v. Zwego, 657 F.2d 248, 251 (10th Cir.1981); United States v. Ruehrup, 333 F.2d 641, 643 (7th Cir.1964).

Angotti, however, contends that proper venue could only lie...