U.S. v. Delia

• Decision Date: 12 September 1991
• Docket Number: No. 1389,D,1389
• Citation: 944 F.2d 1010
• Parties: 34 Fed. R. Evid. Serv. 165 UNITED STATES of America, Appellee, v. Nicholas DELIA, Defendant-Appellant. ocket 90-1745.
• Court: U.S. Court of Appeals — Second Circuit

Page 1010

944 F.2d 1010

34 Fed. R. Evid. Serv. 165

UNITED STATES of America, Appellee, v. Nicholas DELIA, Defendant-Appellant.

No. 1389, Docket 90-1745.

United States Court of Appeals, Second Circuit.

Argued May 14, 1991.

Decided Sept. 12, 1991.

Gerald L. Shargel, New York City (Nicholas A. Gravante, Jr., of counsel), for defendant-appellant Nicholas Delia.

Jonathan R. Liebman, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty. and Howard E. Heiss, Asst. U.S. Atty., of counsel), for appellee U.S. of America.

Before LUMBARD, FRIEDMAN ^* and CARDAMONE, Circuit Judges.

FRIEDMAN, Circuit Judge:

The appellant, Nicholas Delia, challenges his conviction in the United States District Court for the Southern District of New York (Sweet, J.), on one count of conspiracy to make, utter, and possess forged checks of an organization with intent to deceive, in violation of 18 U.S.C. §§ 371, 513 (1988), and three counts of making, uttering, and possessing forged checks of an organization with intent to deceive, and the aiding and abetting thereof, in violation of 18 U.S.C. §§ 2, 513 (1988). 749 F.Supp. 500. He asserts that the venue on the three substantive counts was improperly laid in the Southern District of New York, that the district court improperly admitted evidence that he was connected with an organized crime family, and that the court committed reversible error in refusing to require the prosecution to disclose to the defense rebuttal evidence that the government would offer if the defense pursued a particular theory. We affirm.

I

Delia's convictions stem from a scheme to forge and negotiate stolen checks of Bayside Management Company (Bayside), a division of Continental Reinsurance Company (Continental), a corporation in New York City. The government's case rested primarily on the testimony of Madeline Rosales and Madelyn Vega, both former Continental employees. Viewing the facts most favorably to the government, which is the standard on appeal from criminal convictions, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Gonzalez, 922 F.2d 1044, 1053 (2d Cir.1991), there was evidence from which the jury could have found the following:

In August 1986, Delia, married and living in Brooklyn, began dating Rosales, who worked in a clerical position at Continental. One to two weeks later, Rosales introduced Delia to her best friend, Vega, another Continental employee. Delia asked Rosales about Vega's job, and Rosales responded that "she works with checks" at Continental.

Delia "told" Rosales to call Vega and "see if she can get some checks." Delia stated that he planned to find out Continental's account balance and forge the checks. Rosales asked Vega if she could "get some checks" for Delia. Vega subsequently gave Rosales in Continental's Manhattan office three blank checks, which Rosales gave to Delia at his Brooklyn apartment. Delia then told Rosales that "he knew someone who could forge signatures," but needed "a copy of someone's signature that was high in the company." On Rosales' request, Vega secured a copy of the signature of a Continental executive authorized to sign checks, Walter J. Gross, and gave it to Rosales, who then gave it to Delia.

Subsequently, Delia and an individual identified as "Joseph Slacks" met in Delia's Brooklyn apartment to discuss the blank checks and the signature specimen. Rosales, who was living in Delia's apartment at the time, was present. Delia instructed Rosales to ask Vega if Continental used "some kind of code" on its checks, and if so, whether it consisted of "not only numbers but [ ] letters too." Rosales obtained the information from Vega, and gave it to Delia.

On October 23, 1986, a bank account was opened in the name of "John Stella" at a Brooklyn savings and loan association. The identification used to open this account was fake and untraceable. From October through December 1986, the three checks stolen by Vega were deposited in the account. These deposits, totalling approximately $191,675.00, were negotiated through Bayside's bank in Manhattan. Each check was a forgery payable to "John Stella" and bearing the signature of "Walter J. Gross." During that same period, a total of $165,993.00 was withdrawn from the account. There was no other activity in the account.

In January 1987, a Continental employee discovered the three forged checks while reconciling the Bayside bank account. The employee determined that the checks had been taken from the last page in a book of Bayside checks maintained at Continental's Manhattan office.

After the checks were stolen, Rosales quit her job at Continental and moved into an apartment Delia leased. Delia subsequently persuaded Rosales to become a prostitute. He made arrangements for her to work at two different locations and told her to use a false name. She turned over to him her earnings from prostitution. She "never" had "done anything like that before." Her work as a prostitute went on for three months.

Count One of the indictment charged a conspiracy to make, utter, or possess a forged security of an organization with intent to deceive, in violation of 18 U.S.C. § 513, and Counts Two through Four charged the substantive offenses and the aiding and abetting thereof, in violation of 18 U.S.C. §§ 2, 513. After a six-day jury trial, Delia was convicted on all counts. The district court sentenced Delia to three and one-half years imprisonment on Count One, suspended sentence on Counts Two through Four and placed Delia on three years probation on each of those counts, to commence upon the completion of his prison term and conditioned upon Delia's making restitution of $165,993.00 (the amount of the thefts), and imposed $200 in special assessments.

II

Delia challenges his convictions on Counts Two through Four on the ground that venue was improper in the Southern District of New York, and should have been in the Eastern District.

At the close of the government's case, Delia moved to dismiss the three substantive counts, arguing that the government failed to prove he "made," "uttered," or "possessed" a forged security in the Southern District of New York. The district court, both orally and in a post-verdict opinion, denied the motion. United States v. Delia, 749 F.Supp. 500 (S.D.N.Y.1990). The court relied primarily on the test for venue set forth in United States v. Reed, 773 F.2d 477 (2d Cir.1985), where this court stated:

[T]here is no single defined policy or mechanical test to determine constitutional venue. Rather, the test 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...."

Id. at 481.

Delia argues that "the crime of 'making' the forged checks did not take place when the blank checks or the signature were stolen, or even when they were allegedly received by Delia. Instead, the crime charged here--even if it could be characterized as a 'continuing offense'--began when the forged checks were made, continued throughout the entire period in which they were possessed, and ended when they were uttered." (emphasis in original). He asserts that there was no evidence in the record "that Delia or any of the persons with whom he was alleged to have conspired or aided and abetted had 'made' the forged checks in Manhattan," since it was "clear that the checks were blank--not forged--at the time [Rosales] gave them to him." (emphasis in original).

The district court correctly rejected this argument. Relying on Reed, supra, and 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), the court examined the "key verbs" that 18 U.S.C. § 513(a) uses in defining the offense. Distinguishing the verb "utter" from the verb "make," the court stated:

Unlike "uttering" which requires solely the act or declaration that something is good or the offer to show what 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 the acts preparatory to the making.

United States v. Delia, at 503 (citations omitted).

The court further stated:

Delia's narrow interpretation of the word "making," merely would allow for the putting of the 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 [of] 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."

Id. at 502-03 (citation omitted).

The court thus held that, unlike "uttering," the "making" of a forged security is not a single-act crime consisting solely of the actual forgery of the check, but is a continuing offense of which the actions of Rosales and Vega, performed in the Southern District at Delia's instructions, were an integral part. Their actions were not merely preparatory acts, but constituted the beginning of the act of "making." We agree with that analysis.

The "making" of a forged security that § 513 condemns is a broader crime than the forgery itself. Section 513 (previously codified at 18 U.S.C. § 511) was enacted as part of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Title II, § 1105(a), 98 Stat. 2144 (1984), "to combat widespread fraud schemes involving the use...