871 F2d 1181 United States V Beech Nut

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871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist
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Browse OpenJurist Learn the Law Find a Lawy er OpenJurist Blog 87 1 F. 2d 1181 - Unit ed St at es v. Beech-Nut Nut rit ion Corporat ion Hom e87 1 f2 d 1 1 81 united states v . beech-nut nutrition corporation 87 1 F2d 1181 Unit ed St at es v. Beech-Nut Nut rit ion Corporat ion 87 1 F.2 d 1 1 81 2 7 Fed. R. Ev id. Serv . 84 9 UNITED STATES of Am erica, Appellee, v. BEECH-NUT NUTRITION CORPORATION, Neils L. Hoy v ald, John F. Lav ery , Zeev Kaplansky , Ray m ond H. Wells, Nina B. William son, South Orange Express, Inc., Danny A. Shaeffer, Defendants, Appeal of Neils L. HOYVALD and John F. Lav ery , Defendants-Appellants. Nos. 4 2 2 , 4 2 3 , Dockets 88-1 2 87 , 88-1 2 88. United States Court of Appeals, Second Circuit. Argued Dec. 5, 1 9 88. Decided March 2 9 , 1 9 89 . John R. Fleder, Director, Office of Consum er Litigation, U.S. Dept. of Justice, Washington, D.C. (John R. Bolton, Asst. Atty . Gen., Washington, D.C., Andrew J. Maloney , U.S. Atty . for the E.D. of N.Y., Brookly n, N.Y., Kenneth L. Jost, Atty ., Office of Consum er Litigation, U.S. Dept. of Justice, Washington, D.C., Dav id C. Jam es, Thom as H. Roche, Asst. U.S. Atty s., Brookly n, N.Y., on the brief), for appellee. Barry S. Sim on, Washington, D.C. (Brendan V. Sulliv an, Jr., Paul Mogin, John D. Cline, William s & Connoly , Washington, D.C., on the brief), for defendant-appellant Hoy v ald. Stev en Kim m elm an, New York City (Jam es Alexander Burke, Stev en Kim m elm an, P.C., New York City , on the brief), for defendant-appellant Lav ery . Before OAKES, Chief Judge, KEARSE and CARDAMONE, Circuit Judges. KEARSE, Circuit Judge:
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1 Defendants Neils L. Hoy v ald and John F. Lav ery appeal from judgm ents of conv iction entered in the United States District Court for the Eastern District of New York after a jury trial before Thom as C. Platt, Judge. Hoy v ald was conv icted on 3 59 counts of introducing adulterated and m isbranded apple juice into interstate com m erce, in v iolation of the Federal Food, Drug, and Cosm etic Act ("FDCA"), 2 1 U.S.C. Secs. 3 3 1 (a) and 3 4 2 (b)(1 ) and (2 ) (1 9 82 & Supp. IV 1 9 86 ). Lav ery was conv icted on one count of conspiracy , in v iolation of 1 8 U.S.C. Sec. 3 7 1 (1 9 82 ), 1 8 counts of m ail fraud, in v iolation of 1 8 U.S.C. Secs. 1 3 4 1 and 2 (1 9 82 ), and 4 2 9 counts of introducing adulterated and m isbranded apple juice into interstate com m erce, in v iolation of 2 1 U.S.C. Secs. 3 3 1 (a), 3 4 2 (b)(1 ) and (2 ), and 1 8 U.S.C. Sec. 2 . Each defendant was fined a total of $1 00,000, sentenced to concurrent prison term s of one y ear and one day on each count on which he was conv icted, and ordered to pay the costs of prosecution. On appeal, defendants contend principally that v enue as to certain counts was im proper and that the district court m ade a v ariety of errors in adm itting or excluding ev idence and in instructing the jury . For the reasons below, we conclude that v enue as to the substantiv e FDCA counts was im proper, and we therefore rev erse defendants' conv ictions under 2 1 U.S.C. Secs. 3 3 1 (a) and 3 4 2 (b)(1 ) and (2 ) and rem and for dism issal of those counts; we affirm Lav ery 's conv iction on the conspiracy and m ail fraud counts. I. BACKGROUND 2 During the period in question, Lav ery was v ice president in charge of operations for Beech-Nut Nutrition Corporation ("Beech-Nut" or the "Com pany "), a com pany engaged in the business of, inter alia, selling fruit juice products in interstate com m erce. As v ice president for operations, Lav ery was responsible for the purchasing and processing of apple juice concentrates used in Beech-Nut's apple juice and in its "m ixed juice" products. Hoy v ald was first em ploy ed by Beech-Nut in 1 9 80 and becam e its president and chief executiv e officer in April 1 9 81 . Thereafter, Lav ery reported directly to Hoy v ald. 3 The gov ernm ent's ev idence at trial was presented principally through the testim ony of present and form er Beech-Nut em ploy ees, scientists and inv estigators em ploy ed by the Food and Drug Adm inistration ("FDA"), and expert witnesses, and through docum ents from the files of Beech-Nut. The ev idence, taken in the light m ost fav orable to the gov ernm ent, rev ealed the following. A. Ev ents Prior to June 2 5, 1 9 82 4 Beech-Nut m arketed its apple juice as pure unsweetened juice, labeling and adv ertising it as pure fruit juice with no sugar added. It m ade its juices from concentrates. In 1 9 7 7 , Univ ersal Juice Com pany ("Univ ersal") becam e its sole supplier of apple juice concentrate. In October 1 9 7 8, Dr. Jerom e LiCari, Beech-Nut's director of research and dev elopm ent, receiv ed inform ation suggesting that that
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concentrate m ight be adulterated, i.e., m ight be m ade of sy rups and edible substances other than, and cheaper than, apples. LiCari reported this inform ation to Lav ery . 5 In response, Lav ery sent two em ploy ees to inspect Univ ersal's blending operation. What the em ploy ees found, howev er, was only a warehouse without any blending facility . Lav ery did not attem pt to determ ine the location of the blending operation and pursue an inspection. Instead, he required Univ ersal to giv e the Com pany a "hold harm less" agreem ent which was intended to protect Beech-Nut from legal claim s related to the juice. 6 Thereafter, as a result of tests, LiCari continued to express to Lav ery his concerns about the quality of the concentrate supplied by Univ ersal; he argued that a supplier willing to adulterate the concentrate in the first place would likely hav e little com punction about continuing to supply adulterated product after signing a hold-harm less docum ent. Lav ery 's response was that the agreem ent would adequately protect the Com pany ev en if the juice was adulterated. 7 Lav ery told LiCari that Univ ersal's price to Beech-Nut for the concentrate was 50 cents to a dollar per gallon below the price charged by the Com pany 's prev ious supplier. He stated that, because of the trem endous econom ic pressure under which the Com pany was operating, he would not change suppliers unless LiCari's tests were sufficient to prov e in a court of law that the concentrate was adulterated. He directed LiCari to giv e the testing low priority . Beech-Nut continued to buy the adulterated concentrate. 8 In 1 9 7 9 , LiCari had the concentrate analy zed by an outside laboratory . The test results showed that the concentrate consisted prim arily of sugar sy rup. Lav ery was inform ed of these results but took no action. In July 1 9 7 9 , Lav ery receiv ed a m em orandum from the Com pany 's plant m anager in San Jose, California, adv ising him that approxim ately 9 5,000 pounds of concentrate inv entory was " 'funny ' " and "adulterated," in that it was "alm ost pure corn sy rup." (Em phasis in original.) The plant m anager suggested that Beech-Nut dem and its m oney back from the supplier. Instead, Lav ery , who did not dispute the accuracy of these reports, instructed the m anager to use the tainted concentrate in the Com pany 's m ixed juices. These too were labeled 1 00% pure juice. The Com pany continued to purchase its apple juice concentrate from Univ ersal. 9 On num erous occasions thereafter, Beech-Nut's scientists adv ised Lav ery of their concerns that the apple juice concentrate was adulterated. In August 1 9 81 , LiCari sent a m em orandum to Charles Jones, the Com pany 's purchasing m anager, with a copy to Lav ery , stating that although the scientists had not
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prov en that the concentrate was adulterated there was "a trem endous am ount of circum stantial ev idence" to that effect, "paint[ing] a grav e case against the current supplier." LiCari's m em orandum concluded that 10 [i]t is im perativ e that Beech-Nut establish the authenticity of the Apple Juice Concentrate used to form ulate our products. If the authenticity cannot be established, I feel that we hav e sufficient reason to look for a new supplier. 11 Lav ery took no action to change suppliers. Rather, he instructed Jones to ignore LiCari's m em orandum , criticized LiCari for not being a "team play er," and called his scientists "Chicken Little." He threatened to fire LiCari. 12 In late 1 9 81 , the Com pany receiv ed, unsolicited, a report from a Swiss laboratory concluding that Beech-Nut's apple juice product was adulterated, stating, "[t]he apple juice is false, can not see any apple." Lav ery rev iewed this report, and one of his aides sent it to Univ ersal. Univ ersal m ade no response, and Beech-Nut took no action. 13 Both before and after becom ing president of Beech-Nut in April 1 9 81 , Hoy v ald too receiv ed inform ation from sev eral sources about the adulteration problem . In January 1 9 81 , LiCari sent copies of a m em orandum to Hoy v ald and Lav ery expressing concern ov er the quality of the concentrate used to m ake the apple juice. In Nov em ber, purchasing m anager Jones raised the problem . In the spring of 1 9 82 , Paul Hillabush, the Com pany 's director of quality assurance, adv ised Hoy v ald not to be surprised by adv erse publicity concerning Beech-Nut's purchases of apple juice concentrate. Hoy v ald took no action in response to any of these com m unications. Rather, he told Lav ery that, for budgetary reasons, he would not approv e a change in concentrate suppliers until 1 9 83 . 14 B. The Ev ents of June 2 5, 1 9 82 , and Thereafter 15 On June 2 5, 1 9 82 , a detectiv e hired by the Processed Apple Institute v isited Lav ery at the Beech-Nut m anufacturing facility in Canajoharie, New York, and adv ised him that Beech-Nut was about to be inv olv ed in a lawsuit as a result of its use of adulterated concentrate and that adv erse publicity would ensue. Lav ery im m ediately term inated Beech-Nut's relationship with Univ ersal.
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16 Lav ery dealt with the adulterated concentrate on hand in two way s. He prom ptly ordered that so m uch of Beech-Nut's inv entory of concentrate as was located in New York be returned to Univ ersal or destroy ed. As to the inv entory of concentrate located in San Jose, California, howev er, he allowed the California plant to continue to use it in m anufacturing apple juice products. 17 In addition to the concentrate in New York and California, Beech-Nut had in June 1 9 82 an inv entory worth m illions of dollars of finished apple products already m ade from the adulterated concentrate. Hoy v ald realized that an inability to sell this inv entory would be financially crippling to the Com pany , and accordingly undertook delay ing tactics designed to giv e the Com pany tim e to sell it. 18 To av oid seizure of the inv entory in New York by state officials in August 1 9 82 , Hoy v ald had this juice m ov ed out of state during the night. It was transported from the New York plant to a warehouse in Secaucus, New Jersey , and the records of this shipm ent and others were withheld from FDA inv estigators until the inv estigators independently located the carrier Beech-Nut had used. While the FDA was searching for the adulterated products but before it had discov ered the Secaucus warehouse, Hoy v ald ordered v irtually the entire stock in that warehouse shipped to Beech-Nut's distributor in Puerto Rico; the Puerto Rico distributor had not placed an order for the product and had twice refused to buy the product ev en at great discounts offered personally by Hoy v ald. 19 Sim ilarly , in Septem ber 1 9 82 , Hoy v ald ordered a rush shipm ent of the inv entory of apple juice products held at Beech-Nut's San Jose plant, and took a num ber of unusual steps to get rid of the entire stock. He authorized price discounts of 50 percent; the largest discount ev er offered theretofore had been 1 0 percent. Hoy v ald insisted that the product be shipped "fast, fast, fast," and gav e a distributor in the Dom inican Republic only two day s, instead of the usual 3 0, to consider and respond to this product prom otion. Further, in order to get the juice out of the warehouse and out of the country as quickly as possible, the Com pany shipped it to the Dom inican Republic on the first possible sailing date, which was from an unusually distant port, thereby raising the freight cost to a lev el nearly equal to the v alue of the goods them selv es. Finally , this stock was shipped before Beech-Nut had receiv ed the necessary financial docum entation from the distributor, which, as one Beech-Nut em ploy ee testified, was "tantam ount to giv ing the stuff away ." 20 Hoy v ald also used Beech-Nut's lawy ers to help delay the gov ernm ent inv estigation, thereby giv ing the Com pany m ore tim e to sell its inv entory of adulterated juice before the product could be seized or a recall could be ordered. For exam ple, in Septem ber 1 9 82 , the FDA inform ed Beech-Nut that it intended to seize all of Beech-Nut's apple juice products m ade from Univ ersal concentrate; in October, New York
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State authorities adv ised the Com pany that they planned to initiate a local recall of these products. Beech-Nut's lawy ers, at Hoy v ald's direction, successfully negotiated with the authorities for a lim ited recall, excluding products held by retailers and stocks of m ixed juice products. Beech-Nut thus ev entually agreed to conduct a nationwide recall only of apple juice, and by the tim e of the recall Hoy v ald knew that m ore than 9 7 percent of the earlier stocks of apple juice had been sold. The Com pany continued to sell its m ixed juice products m ade from the tainted concentrate until March 1 9 83 . In Decem ber 1 9 82 , in response to Hoy v ald's request, Thom as Ward, a m em ber of a law firm retained by Beech-Nut, sent Hoy v ald a letter that sum m arized the ev ents surrounding the apple juice concentrate problem as follows: 21 From the start, we had two m ain objectiv es: 22 1 ) to m inim ize Beech-Nut's potential econom ic loss, which we understand has been conserv ativ ely estim ated at $3 .5 m illion, and 23 2 ) to m inim ize any dam age to the com pany 's reputation. 24 We determ ined that this could be done by delay ing, for as long as possible, any m arket withdrawal of products produced from the Univ ersal Juice concentrate.... 25 .... In spite of the recognition that FDA m ight wish to hav e Beech-Nut recall som e of its products, m anagem ent decided to continue sales of all such products for the tim e being.... The decision to continue sales and som e production of the products was based upon the recognition of the significant potential financial loss and loss of goodwill, and the fact that apple juice is a critical lead-in item for Beech-Nut. 26 Since the m ixed fruit juices and other products constituted the bulk of the products produced with Univ ersal concentrate, one of our m ain goals becam e to prev ent the FDA and state authorities from focusing on these products, and we were in fact successful in lim iting the controv ersy strictly to apple juice. C. The Present Prosecution 27
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In Nov em ber 1 9 86 , Beech-Nut, Hoy v ald, and Lav ery , along with Univ ersal's proprietor Zeev Kaplansky and four others (Kaplansky and these four referred to hereafter as the "suppliers"), were indicted on charges relating to the Com pany 's sale of adulterated and m isbranded apple juice products. Hoy v ald and Lav ery were charged with (A) one count of conspiring with the suppliers to v iolate the FDCA, 2 1 U.S.C. Secs. 3 3 1 (a), (k), and 3 3 3 (b) (1 9 82 & Supp. IV 1 9 86 ), in v iolation of 1 8 U.S.C. Sec. 3 7 1 ; (B) 2 0 counts of m ail fraud, in v iolation of 1 8 U.S.C. Secs. 1 3 4 1 and 2 ; and (C) 4 2 9 counts of introducing adulterated and m isbranded apple juice into interstate com m erce, in v iolation of 2 1 U.S.C. Secs. 3 3 1 (a) and 3 3 3 (b) and 1 8 U.S.C. Sec. 2 . The suppliers were also charged with introducing adulterated concentrate into interstate com m erce; Hoy v ald and Lav ery were not charged with any substantiv e offense regarding the concentrate itself, either directly or as aiders and abettors. 28 Hoy v ald and Lav ery pleaded not guilty to the charges against them . Ev entually , Beech-Nut pleaded guilty to 2 1 5 felony v iolations of Secs. 3 3 1 (a) and 3 3 3 (b); it receiv ed a $2 ,000,000 fine and was ordered to pay $1 4 0,000 to the FDA for the expenses of its inv estigation. Kaplansky and the other four supplier-defendants also ev entually pleaded guilty to som e or all of the charges against them . Hoy v ald and Lav ery thus went to trial alone. 29 Prior to trial, Hoy v ald and Lav ery m ade v arious m otions, including (1 ) a m otion to dism iss the substantiv e FDCA counts against them on the ground that none of the acts on which those counts were based occurred in the Eastern District of New York, and hence v enue was im proper; and (2 ) a m otion to dism iss the conspiracy count on the ground that it pleaded two conspiracies rather than a single conspiracy . In an opinion reported at 6 59 F.Supp. 1 4 87 (1 9 87 ), the district court denied both m otions. It denied the v enue m otion on the ground that, since transportation is necessary for the "introduction" of goods into com m erce, the FDCA offenses were continuing crim es under 1 8 U.S.C. Sec. 3 2 3 7 (a) (1 9 82 & Supp. IV 1 9 86 ) and v enue was thus proper in any district in which the offenses were begun, continued, or com pleted. It denied the m otion to dism iss the conspiracy count, finding that the indictm ent adequately alleged a single conspiracy albeit with m ultiple objectiv es. 30 The trial began in Nov em ber 1 9 87 and continued for three m onths. The gov ernm ent's ev idence included that sum m arized abov e. Hoy v ald's principal defense was that all of his acts relating to the problem of adulterated concentrate had been perform ed on the adv ice of counsel. For exam ple, there was ev idence that the Beech-Nut shipm ent of adulterated juices from its San Jose plant to the Dom inican Republic followed the receipt by Hoy v ald of a telex sent by Sheldon Klein, an associate of the law firm representing Beech-Nut, which sum m arized a telephone conference between Beech-Nut officials and its attorney s as follows: 31 We understand that approxim ately 2 5,000 cases of apple juice m anufactured from concentrate
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purchased from Univ ersal Juice is [sic ] currently in San Jose. It is strongly recom m ended that such product and all other Univ ersal products in Beech-Nut's possession any where in the US be destroy ed before a m eeting with [the FDA] takes place. 32 Hoy v ald and Klein testified that they had a follow-up conv ersation in which Klein told Hoy v ald that, as an alternativ e, it would be lawful to export the adulterated apple juice products. 33 At the close of the ev idence, two counts of m ail fraud were dism issed at the gov ernm ent's request; the rem aining counts were subm itted to the jury . The jury returned a v erdict of guilty on all of the counts against Lav ery . It returned a v erdict of guilty against Hoy v ald on 3 59 counts of adulterating and m isbranding apple juice, all of which related to shipm ents after June 2 5, 1 9 82 . It was unable to reach a v erdict on the rem aining counts against Hoy v ald, which related to ev ents prior to that date. These appeals followed. II. DISCUSSION 34 On appeal, defendants contend principally (1 ) that the Eastern District of New York was not a proper v enue for prosecution of the substantiv e counts under the FDCA; (2 ) that the court im properly curtailed their presentation of ev idence in support of their adv ice-of-counsel defense; and (3 ) that the court failed to giv e the jury proper instructions with respect to that defense and with respect to the m atter of conscious av oidance. In addition, Lav ery contends that the proof at trial did not substantiate the charge that he and Beech-Nut's suppliers were m em bers of a single conspiracy to v iolate the FDCA; both defendants contend that that their rights under the Speedy Trial Act, 1 8 U.S.C. Sec. 3 1 6 1 et seq. (1 9 82 & Supp. IV 1 9 86 ), were v iolated and that the court m ade v arious other errors in the adm ission of ev idence or the conduct of the trial. We hav e considered all of the argum ents m ade by defendants on these appeals and find m erit only in the contention that v enue as to the substantiv e FDCA counts was im proper. A. Venue as to the Substantiv e FDCA Counts 35 Appellants argue that their conv ictions on the substantiv e FDCA counts m ust be rev ersed because the gov ernm ent did not show that v enue in the Eastern District of New York was proper. For the reasons below, we are constrained to agree. 36 The Sixth Am endm ent to the Constitution prov ides that the accused in a crim inal prosecution has the
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right to be tried in the "district wherein the crim e shall hav e been com m itted." See also Fed.R.Crim .P. 1 8. The burden is on the gov ernm ent to prov e that the crim e was com m itted in the district in which the prosecution is brought, see, e.g., United States v . Potam itis, 739 F.2d 784, 7 9 1 (2 d Cir.), cert. denied, 4 6 9 U.S. 9 1 8, 1 05 S.Ct. 2 9 7 , 83 L.Ed.2 d 2 3 2 (1 9 84 ); United States v . Panebianco, 543 F.2d 447, 4 55 (2 d Cir.1 9 7 6 ), cert. denied, 4 2 9 U.S. 1 1 03 , 9 7 S.Ct. 1 1 2 9 , 51 L.Ed.2 d 553 (1 9 7 7 ), and when a defendant is charged in m ore than one count, v enue m ust be proper with respect to each count, see, e.g., United States v . Bozza, 365 F.2d 206, 2 2 0-2 2 (2 d Cir.1 9 6 6 ); United States v . Dav is, 666 F.2d 195, 1 9 8 (5th Cir. Unit B 1 9 82 ). 37 When a crim e consists of a single noncontinuing act, it is "com m itted" in the district where the act is perform ed. See, e.g., United States v . Anderson, 328 U.S. 699, 7 03 , 6 6 S.Ct. 1 2 1 3 , 1 2 1 6 , 9 0 L.Ed. 1 52 9 (1 9 4 6 ); United States v . Busic, 549 F.2d 252, 2 59 (2 d Cir.1 9 7 7 ). When a crim e is an offense that is not unitary but instead spans space or tim e, it m ay be gov erned by 1 8 U.S.C. Sec. 3 2 3 7 (a), which prov ides that, 38 [e]xcept as otherwise expressly prov ided by enactm ent of Congress, any offense against the United States begun in one district and com pleted in another, or com m itted in m ore than one district, m ay be ... prosecuted in any district in which such offense was begun, continued, or com pleted. 39 That section goes on to prov ide that "[a]ny offense inv olv ing ... transportation in interstate or foreign com m erce ... is a continuing offense and, except as otherwise expressly prov ided by enactm ent of Congress, m ay be ... prosecuted in any district from , through, or into which such com m erce ... m ov es." Id. 40 If the federal statute defining an offense does not indicate explicitly where Congress believ es the crim inal act is com m itted, "the locus delicti m ust be determ ined from the nature of the crim e alleged and the location of the act or acts constituting it." United States v . Anderson, 3 2 8 U.S. at 7 03 , 6 6 S.Ct. at 1 2 1 6 . "It is, of course, necessary in order to decide where the crim e is com m itted to ascertain what duty it was, the failure to perform which constitutes the crim e, and also what acts of the defendant constituted the v iolation." Id. at 7 05, 6 6 S.Ct. at 1 2 1 7 . Accordingly , we hav e stated that 41 the test [for constitutional v enue] is best described as a substantial contacts rule that takes into account a num ber of factors--the site of the defendant's acts, the elem ents and nature of the crim e, the locus of the effect of the crim inal conduct, and the suitability of each district for accurate factfinding,
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42 United States v . Reed, 773 F.2d 477, 4 81 (2 d Cir.1 9 85), and we hav e noted that it is helpful to exam ine the "key v erbs" used by the statute in defining the offense, United States v . Chestnut, 533 F.2d 40, 4 6 -4 7 (2 d Cir.), cert. denied, 4 2 9 U.S. 82 9 , 9 7 S.Ct. 88, 50 L.Ed.2 d 9 3 (1 9 7 6 ). 43 The substantiv e FDCA prov ision at issue here prohibits, in pertinent part, "[t]he introduction or deliv ery for introduction into interstate com m erce of any food ... that is adulterated or m isbranded." 2 1 U.S.C. Sec. 3 3 1 (a). The offense described by this section consists of "put[ting] into the stream of interstate com m erce adulterated or m isbranded" food, United States v . Dotterweich, 320 U.S. 277, 2 84 , 6 4 S.Ct. 1 3 4 , 1 3 8, 88 L.Ed. 4 8 (1 9 4 3 ), or the "send[ing of] illicit goods across state lines," id. at 2 85, 6 4 S.Ct. at 1 3 8. Although the offense is com m itted at the m om ent the goods are "introduc[ed]" or "put" into com m erce, we do not v iew the term s "introduction" and "deliv ery for introduction" as lim ited to the phy sical act of shipping the goods from the original warehouse or plant of the m anufacturer. Rather, deem ing those term s to encom pass also acts of the defendant that cause or direct the shipm ent of the goods, we hav e held that v enue is proper in a district from which the defendant caused the unlawful introduction of goods into com m erce, ev en though the phy sical shipm ent com m enced from a different district. United States v . Taller, 394 F.2d 435, 4 3 7 -3 8 (2 d Cir.), cert. denied, 3 9 3 U.S. 83 9 , 89 S.Ct. 1 1 5, 2 1 L.Ed.2 d 1 09 (1 9 6 8). 44 The district court, noting that Sec. 3 2 3 7 includes as continuing offenses those crim es that "inv olv [e]" transportation, and that the shipm ent of goods in com m erce plainly inv olv es transportation, concluded that Sec. 3 3 1 (a) defines an offense that is "continuing." See 6 59 F.Supp. at 1 4 9 3 -9 4 . Though this interpretation m ay be correct, we need not decide in this case whether a Sec. 3 3 1 (a) v iolation is a continuing offense within the m eaning of Sec. 3 2 3 7 , for the effect of Sec. 3 2 3 7 is to m ake an offense triable "in any district in which such offense was begun, continued, or com pleted," or "in any district from , through, or into which such com m erce ... m ov es," 1 8 U.S.C. Sec. 3 2 3 7 , and these prov isions do not encom pass the actions of Hoy v ald and Lav ery that were prov en at the trial of the present case. 45 Unlike the defendant in United States v . Taller, neither Hoy v ald nor Lav ery was shown to hav e conducted business from the Eastern District of New York. So far as appears from the record, these defendants were not present in that district but rather operated either from Beech-Nut's corporate headquarters in Pennsy lv ania, or from its juice m anufacturing operation in Canajoharie in the Northern District of New York. Thus, though Hoy v ald and Lav ery were shown to hav e caused the introduction of adulterated juice into interstate com m erce, that introduction was not caused by them from the Eastern District. Hence, it does not appear that their substantiv e FDCA offenses were begun, continued, or com pleted in the Eastern District of New York. 46
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Further, there was no suggestion in the record that Beech-Nut had any facility for the fabrication, storage, or shipm ent of apple juice in the Eastern District. Insofar as the juice was fabricated in New York, that occurred in the Northern District, and the juice was shipped from that district. Nor was there any proof that the juice in question was shipped "into" the Eastern District of New York. And though the docum ents rev ealed m any destinations for the juice, including cities in New Jersey , Connecticut, Verm ont, and Massachusetts, there was no ev idence that in order to reach its destination from Canajoharie, any of the juice trav eled "through" the Eastern District of New York. Thus, there was no proof of a factual predicate for deem ing this a prosecution "in any district from , through, or into which [the adulterated and m isbranded juice] ... m ov e[d]." 47 The gov ernm ent argues that prosecution in the Eastern District was perm issible because Univ ersal and its brokers were located in the Eastern District, and defendants' subordinates (1 ) telephoned the brokers to place orders for the adulterated apple juice concentrate, and (2 ) m ailed confirm ations for these concentrate orders into the Eastern District. We disagree, for these com m unications were not part of the offense of introducing the offending juice into com m erce but were m erely prior and preparatory to that offense. Whether the crim e be continuing or noncontinuing, v enue is not proper in a district in which the only acts perform ed by the defendant were preparatory to the offense and not part of the offense. See, e.g., United States v . Bozza, 3 6 5 F.2 d at 2 2 0-2 1 (noncontinuing crim e of receipt of stolen goods); United States v . Dav is, 6 6 6 F.2 d at 2 00 (continuing crim e of possession of drugs with intent to distribute). 48 Bozza inv olv ed a prosecution in the Eastern District of New York for, inter alia, the noncontinuing offense of receipt of stolen goods. The only connection of the alleged receiv er of the goods with that district was that he had gone there for an unspecified purpose and had m ade and receiv ed calls there to arrange a m eeting and negotiate price with respect to the goods; he had then gone from the Eastern District to the Southern District, where he actually receiv ed the stolen goods. We concluded that v enue in the Eastern District as to this count was im proper. We noted that 49 the cases draw a distinction between a continuing offense which is "held, for v enue purposes, to hav e been com m itted wherev er the wrongdoer roam ed," ... and "a single act which occurs at one tim e and at one place in which only it m ay be tried, although preparation for its com m ission m ay take place elsewhere." 50 3 6 5 F.2 d at 2 2 0 (citations om itted). We rejected the gov ernm ent's contention that "the m aking of a contract to receiv e [w]as the 'beginning' of a receiv ing," id., concluding instead that an act that was m erely preparatory to the offense was not part of the offense. See also United States v . Chestnut, 53 3 F.2 d at 4 7 (court m ust "decide 'when the defendant's actions hav e progressed to the point where a court
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can confidently conclude that [the offense in question] has been com m itted' ") (quoting United States v . Bithoney , 472 F.2d 16, 2 3 (2 d Cir.), cert. denied, 4 1 2 U.S. 9 3 8, 9 3 S.Ct. 2 7 7 1 , 3 7 L.Ed.2 d 3 9 7 (1 9 7 3 )). In Bozza, we concluded that 51 [t]o such extent as the issue is doubtful, it is best to resolv e the doubt in fav or of a construction which will ensure trial where witnesses to the receiv ing are m ore likely to be present; otherwise the m ere happenstance of a telephone call from a district, possibly rem ote, where a defendant chanced to be, could depriv e him of the protection of the Sixth Am endm ent. 52 3 6 5 F.2 d at 2 2 1 . 53 The principle that preparatory acts alone are insufficient to support v enue applies also to continuing offenses. Though Sec. 3 2 3 7 traces an offense from inception to com pletion, its thrust is entirely forwardlooking; it contains no retrospectiv e prov ision establishing v enue in a district in which the defendant perform ed only acts that preceded the inception of the offense. In United States v . Dav is, 6 6 6 F.2 d at 1 9 9 -2 00, the defendants were prosecuted in the Middle District of Georgia for possession of narcotics with intent to distribute, a crim e that m ay be a continuing offense within the m eaning of Sec. 3 2 3 7 . They argued that v enue on that count was im proper because the narcotics had nev er phy sically entered that district. The gov ernm ent contended that v enue was proper because the defendants had m ade arrangem ents while in that district for the acquisition of the drugs and had intended that the drugs be returned to that district for ultim ate distribution at the street lev el. The Fifth Circuit rejected the gov ernm ent's contentions and rev ersed for im proper v enue because the offense itself had not been com m itted in that district. Like the Fifth Circuit, we find no authorization in Sec. 3 2 3 7 for v enue in a district whose sole connection with the offense in question is that it was a site of preparation for the offense. 54 These principles require that we rev erse the conv ictions of Hoy v ald and Lav ery on the substantiv e FDCA counts. The m ailings and telephone calls into the Eastern District, relied on by the gov ernm ent, were orders for concentrate that would later be used in Beech-Nut's fabrication of apple juice and thus were m erely preparatory to the ev entual introduction of the juice into com m erce. Though the orders for the adulterated concentrate were undoubtedly acts in furtherance of the conspiracy , they were not part of the substantiv e Sec. 3 3 1 (a) offenses with which Hoy v ald and Lav ery were charged. Plainly if the trial record contained ev idence only of defendants' orders for the concentrate, the proof would be insufficient to support a conv iction for introduction of the juice ev entually m ade from the concentrate. And if the record contained no ev idence of the orders for the concentrate, it would nonetheless contain sufficient proof of the unlawful introduction of adulterated juice.
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55 In sum , we conclude that the substantiv e FDCA offenses with which Hoy v ald and Lav ery were charged were not com m itted, or ev en begun, in the Eastern District of New York, and that the inclusion of those charges in the present prosecution v iolated their constitutional v enue rights. Accordingly , we rev erse their conv ictions on the substantiv e FDCA counts, and rem and for dism issal of those counts. 56 B. The Challenge to the Charge of a Single Schem e or Conspiracy 57 Count 1 of the indictm ent alleged that all of the defendants had, with intent to defraud, participated in a single conspiracy to v iolate the FDCA's prohibition against the introduction of adulterated and m isbranded foods in interstate com m erce. Counts 2 -2 1 alleged that all defendants had used the m ails in furtherance of their fraudulent schem e. Lav ery contends that he is entitled to rev ersal of his conv ictions for m ail fraud and conspiracy because there was no proof that there was a single agreem ent to which both Lav ery and the concentrate suppliers were parties. He argues that the ev idence showed at best two separate schem es--one to introduce adulterated concentrate and the other to introduce adulterated juice--and that since the suppliers' aim was to defraud Beech-Nut, as a m atter of law there could not hav e been a conspiracy between Lav ery and the suppliers. We disagree. 58 The gist of conspiracy is, of course, agreem ent. In order to support a conv iction for conspiracy , the ev idence m ust be sufficient to perm it the jury to infer that the defendant and other alleged coconspirators entered into a joint enterprise with consciousness of its general nature and extent. See, e.g., United States v . Alessi, 638 F.2d 466, 4 7 3 (2 d Cir.1 9 80). When a conspiracy has been charged, the alleged coconspirators' actions m ay be assessed in light of their "interrelationship and interdependency " as well as "the nature and duration of the enterprise." United States v . Alessi, 6 3 8 F.2 d at 4 7 3 . Though accidentally parallel action is not enough to establish a conspiracy , and a m ere buy er-seller relationship is not necessarily a conspiracy , a defendant m ay be deem ed to hav e agreed to join a conspiracy 59 if there is som ething m ore, som e indication that the defendant knew of and intended to further the illegal v enture, that he som ehow encouraged the illegal use of the goods or had a stake in such use. 60 United States v . Zam brano, 776 F.2d 1091, 1 09 5 (2 d Cir.1 9 85). 61
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The agreem ent needed to support a charge of conspiracy need not be explicit but m ay be tacit. See Direct Sales Co. v . United States, 319 U.S. 703, 6 3 S.Ct. 1 2 6 5, 87 L.Ed. 1 6 7 4 (1 9 4 3 ). If buy er and seller deal in a com m odity that has lim ited legal uses, the v ery nature of the com m odity m ay help to establish the parties' knowledge of and intent "to further, prom ote, and cooperate" in the illegal schem e. Id. at 7 1 1 , 6 3 S.Ct. at 1 2 6 9 . Other aspects of the dealings between the parties, such as discounts, quantity sales, and a prolonged relationship, can also aid in prov ing that "[t]here is m ore than suspicion, m ore than knowledge ..., [that t]here is inform ed and interested cooperation." Id. at 7 1 3 , 6 3 S.Ct. at 1 2 7 0. 62 A single conspiracy , rather than m ultiple conspiracies, m ay be found where the coconspirators had a " 'com m on purpose.' " United States v . Heinem ann, 801 F.2d 86, 9 1 -9 2 (2 d Cir.1 9 86 ) (quoting Kotteakos v . United States, 328 U.S. 750, 7 6 9 , 6 6 S.Ct. 1 2 3 9 , 1 2 50, 9 0 L.Ed. 1 557 (1 9 4 6 )), cert. denied, 4 7 9 U.S. 1 09 4 , 1 07 S.Ct. 1 3 08, 9 4 L.Ed.2 d 1 6 3 (1 9 87 ). Nonetheless, the participants' goals need not be congruent for a single conspiracy to exist, so long as their goals are not at " 'cross purposes.' " United States v . Heinem ann, 801 F.2 d at 9 2 & n. 1 (quoting United States v . Cam iel, 51 9 F.Supp. 1 2 3 8, 1 2 4 4 (E.D.Pa.1 9 81 ), aff'd, 689 F.2d 31 (3 d Cir.1 9 82 )); see also United States v . Bagaric, 706 F.2d 42, 6 3 (2 d Cir.1 9 83 ) (coconspirators need not agree on details of conspiracy , where essential nature of plan is agreed on), cert. denied, 4 6 4 U.S. 84 0, 1 04 S.Ct. 1 3 4 , 7 8 L.Ed.2 d 1 2 8 (1 9 83 ). 63 The m atter of whether the ev idence has established one conspiracy or m ore than one is a question of fact for a properly instructed jury . E.g., United States v . Alessi, 6 3 8 F.2 d at 4 7 2 . In assessing the contention that the ev idence was insufficient to support the jury 's conclusion that there was a single conspiracy , we m ust v iew the ev idence as a whole in the light m ost fav orable to the gov ernm ent, see Glasser v . United States, 315 U.S. 60, 80, 6 2 S.Ct. 4 57 , 4 6 9 , 86 L.Ed. 6 80 (1 9 4 2 ); United States v . Geaney , 417 F.2d 1116, 1 1 2 1 (2 d Cir.1 9 6 9 ), cert. denied, 3 9 7 U.S. 1 02 8, 9 0 S.Ct. 1 2 7 6 , 2 5 L.Ed.2 d 53 9 (1 9 7 0), and uphold the v erdict if, v iewed in that light, a rational juror could hav e concluded bey ond a reasonable doubt (1 ) that the scope of the crim inal enterprise prov en fits the pattern of the single conspiracy alleged in the indictm ent, and (2 ) that the defendant participated in the alleged enterprise with a consciousness of its general nature and extent. In rev iewing a v erdict of guilty , "we m ust defer to the jury 's resolution of the weight of the ev idence and the credibility of the witnesses." United States v . LeRoy , 687 F.2d 610, 6 1 6 (2 d Cir.1 9 82 ), cert. denied, 4 59 U.S. 1 1 7 4 , 1 03 S.Ct. 82 3 , 7 4 L.Ed.2 d 1 01 9 (1 9 83 ); see United States v . Tropiano, 418 F.2d 1069, 1 07 4 -7 5 (2 d Cir.1 9 6 9 ), cert. denied, 3 9 7 U.S. 1 02 1 , 9 0 S.Ct. 1 2 6 2 , 2 5 L.Ed.2 d 53 0 (1 9 7 0). In the present case, we find no error in the instructions on conspiracy nor any insufficiency in the ev idence. 64 The jury was properly instructed that it m ust find a single conspiracy am ong Lav ery and the suppliers in order to conv ict Lav ery ; it was instructed as to certain characteristics of m ultiple conspiracies, such as incom patible purposes; and it was told that it m ust acquit if it found the latter rather than the single conspiracy alleged in the indictm ent. Though Lav ery asked the court to instruct the jury also that he
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could not be found guilty of conspiring with the suppliers if the jury found that the suppliers sought to defraud Beech-Nut, the court's refusal to giv e that charge was not error, for the requested instruction does not accurately reflect the law. "That certain defendants were eager to cheat each other for a large slice of the spoils does not obscure the unify ing m eans used by all of them to defraud the public...." United States v . Finkelstein, 52 6 F.2 d 51 7 , 52 2 (2 d Cir.1 9 7 5), cert. denied, 4 2 5 U.S. 9 6 0, 9 6 S.Ct. 1 7 4 2 , 4 8 L.Ed.2 d 2 05 (1 9 7 6 ). 65 The ev idence was am ple to perm it the jury to infer that Lav ery conspired with the suppliers to perpetrate a fraud on the public through the distribution of the adulterated juice. The record included proof of Lav ery 's nonpursuit of any exam ination of Univ ersal's blending facility ; his refusal to heed the warnings of Beech-Nut's own staff (e.g., indicating that the Univ ersal concentrate was largely sugar sy rup) and the warnings of independent scientists (e.g., stating that the apple juice concentrate contained no discernible apple juice); his directions to his scientific staff to m ake analy sis of the concentrate a low priority item ; and his directions to his purchasing m anager to ignore the warnings of the scientists. 66 Further, it was plain that Lav ery knew the Com pany was pay ing substantially less for the concentrate it bought from these suppliers than it had for the concentrate prev iously obtained from reputable suppliers; during the period 1 9 7 9 -1 9 82 , Lav ery repeatedly told LiCari and others that the price Univ ersal was charging Beech-Nut was 50 cents to a dollar per gallon below the price charged by BeechNut's form er supplier. This was the v ery reason Lav ery gav e his subordinates for not wanting to change suppliers. Lav ery conceded to the Processed Apple Institute detectiv e in June 1 9 82 that the fact that Univ ersal's price was "v ery substantially below the m arket" could hav e caused one to be "suspicious" of the quality of the concentrate. In addition, there was ev idence that Lav ery lied to state officials during their inv estigation, seeking to conceal his knowledge of this ground for suspicion. Thus, in 1 9 83 , when he was called to appear before the New York State Departm ent of Agriculture and Markets, Lav ery testified, notwithstanding his past repeated fiscal rem onstrations to his subordinates, that he was unaware that the price Beech-Nut had been pay ing was below m arket. 67 In sum , the ev idence was am ple to perm it the properly instructed jury to infer that Lav ery and the concentrate suppliers were participants in a single schem e of passing off bogus substances as 1 00% pure fruit juice. C. The Adv ice-of-Counsel Defense 68 In support of the defense that their conduct was not crim inal because they acted upon the adv ice of counsel, defendants proffered, inter alia, testim ony by Hoy v ald, Beech-Nut's attorney Klein, and
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Richard Morey , an attorney whose firm was retained by Klein's firm for its expertise in food-and-drug m atters. Though m uch of the ev idence proffered in support of this defense was adm itted, the court refused to perm it Klein and Morey to testify to the substance of the conv ersations between them selv es to which Hoy v old was not a party , including Klein's statem ents to Morey as to adv ice sought by Hoy v ald and Morey 's statem ents to Klein as to what acts were perm issible; and it excluded the attorney s' notes and tim e records. Hoy v ald urged the adm ission of the two excluded categories of proof as (a) the best ev idence of what had occurred at the tim e the adv ice was being giv en, (b) ev idence of the inform ation then av ailable to the attorney s, (c) corroboration for Klein's testim ony regarding the adv ice he gav e Hoy v ald, (d) proof of prior consistent statem ents m ade by Klein, to show that Klein's testim ony was not recently fabricated, and (e) proof of the states of m ind of Morey and Klein. 69 The trial judge v iewed the proffered conv ersations between the lawy ers as hearsay and as irrelev ant because they would show "the state of m ind of the lawy ers" rather than the state of m ind of Hoy v ald. He concluded that ev en if they were relev ant, they presented the danger of confusing the jury as to whose state of m ind was in issue. He excluded the attorney s' tim e records and notes on the ground that, giv en the attorney s' testim ony , the docum ents would be cum ulativ e. Though we m ight disagree with the court's characterization of som e of this ev idence as hearsay , we see no rev ersible error. 70 Rule 4 03 of the Federal Rules of Ev idence giv es the trial court broad discretion to exclude ev en relev ant ev idence if its probativ e v alue is substantially outweighed by the danger of confusion of the issues or if it would be needlessly cum ulativ e. Fed.R.Ev id. 4 03 ; United States v . Carter, 801 F.2d 78, 83 (2 d Cir.), cert. denied, 4 7 9 U.S. 1 01 2 , 1 07 S.Ct. 6 57 , 9 3 L.Ed.2 d 7 1 2 (1 9 86 ); see United States v . Martinez, 775 F.2d 31, 3 7 (2 d Cir.1 9 85). In light of the testim ony that was adm itted, we find no abuse of discretion in the exclusion of the rem aining ev idence as irrelev ant, confusing, and cum ulativ e. 71 The ev idence that was adm itted encom passed all elem ents of the adv ice-of-counsel defense. Thus, Hoy v ald described the inform ation he had giv en the attorney s and all of the adv ice he had receiv ed from all of the attorney s. The latter included the adv ice from Klein on Septem ber 1 , 1 9 82 , that the juice in the Secaucus warehouse could lawfully be shipped to Puerto Rico, and the adv ice on Septem ber 1 5, 1 9 82 , that Hoy v ald could ship the juice then in the San Jose plant. Klein too was perm itted to describe all of the adv ice he gav e to Hoy v ald. Klein also testified that he repeatedly consulted Morey and other attorney s. The court allowed both Klein and Morey to testify to the fact that they had repeatedly conv ersed and that adv ice giv en by Klein to Hoy v ald followed conv ersations of Klein with Morey . Hoy v ald was perm itted to testify that Morey was the source of the adv ice he was giv en by Klein on Septem ber 1 and 1 5. 72 In addition, the court perm itted Klein, during his testim ony , to use his original notes and tim e records
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to refresh his recollection. Further, though it did not adm it the phy sical records into ev idence, it allowed extensiv e testim ony concerning the tim e sheets later identified by the defense as the m ost im portant, and allowed them to be read v erbatim to the jury . 73 In light of the record as a whole, we find no abuse of discretion in the trial court's decision to exclude the substance of the Klein-Morey conv ersations and the attorney s' docum ents on the ground that their relev ance, if any , was outweighed by their propensity for confusion and their cum ulativ e nature. D. The Conscious-Av oidance Instruction 74 The trial court instructed the jury that it could find that the gov ernm ent had prov en Hoy v ald and Lav ery had knowledge that the Com pany 's apple juice was adulterated if it found they had deliberately av oided gaining actual knowledge of that fact. Defendants contend that this conscious-av oidance charge was erroneous because (1 ) it unfairly undercut their adv ice-of-counsel defense, and (2 ) it perm itted the jury to conv ict them without finding that they had the requisite intent to com m it the offenses. We reject both contentions. 75 1 . The Effect on the Adv ice-of-Counsel Defense 76 Defendants' claim that any conscious-av oidance charge was im perm issible because it was inconsistent with a defense of reliance on the adv ice of counsel is untenable. As described in greater detail below, the Suprem e Court has em phasized that an adv ice-of-counsel defense presupposes the defendant's solicitation of adv ice in good faith. William son v . United States, 207 U.S. 425, 4 53 , 2 8 S.Ct. 1 6 3 , 1 7 3 , 52 L.Ed. 2 7 8 (1 9 08). This Court has repeatedly approv ed use of a conscious-av oidance charge in a v ariety of cases in which there was a genuine issue as to the defendant's good-faith ignorance of the illegality of his conduct. See, e.g., United States v . Schiff, 801 F.2d 108, 1 1 2 -1 3 (2 d Cir.1 9 86 ) (knowledge of tax laws), cert. denied, 4 80 U.S. 9 4 5, 1 07 S.Ct. 1 6 03 , 9 4 L.Ed.2 d 7 89 (1 9 87 ); United States v . Heinem ann, 801 F.2 d at 9 3 -9 4 (knowledge of lawfulness of tax av oidance schem e). There is no logical reason that this instruction m ay not also be used in the presence of an adv ice-of-counsel defense, the thrust of which is that the defendant, on the basis of counsel's adv ice, believ ed his conduct to be lawful and thus could not be found to hav e had unlawful intent. Though a defendant who would rely on an adv ice-of-counsel defense is required to hav e disclosed all pertinent inform ation in his possession to his attorney , see, e.g., William son v . United States, 2 07 U.S. at 4 53 , 2 8 S.Ct. at 1 7 3 ; United States v . King, 560 F.2d 122, 1 3 2 (2 d Cir.), cert. denied, 4 3 4 U.S. 9 2 5, 9 8 S.Ct. 4 04 , 54 L.Ed.2 d 2 83 (1 9 7 7 ), there is no inherent inconsistency between his taking that action and his studious av oidance of gaining other pertinent inform ation. Accordingly , we see no doctrinal problem with the court's giv ing a conscious-av oidance instruction in this case. Accord United States v . Duncan, 850 F.2d 1104, 1 1 1 8 (6 th
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Cir.1 9 88) (where defendant asserts good-faith reliance on adv ice from tax accountant, it is appropriate to "com bin[e] the reliance instruction with an instruction on the adv erse effect 'willful blindness' m ust hav e on a good faith defense to crim inal intent"). 77 Nor did the instruction as giv en in the present case unfairly im pinge on the adv ice-of-counsel defense. In William son, the Suprem e Court approv ed the following adv ice-of-counsel instruction as the m ost fav orable to the defendant that m ay be giv en "consistently with right," 2 07 U.S. at 4 53 , 2 8 S.Ct. at 1 7 3: 78 [I]f a m an honestly and in good faith seeks adv ice of a lawy er as to what he m ay lawfully do ..., and fully and honestly lay s all the facts before his counsel, and in good faith and honestly follows such adv ice, rely ing upon it and believ ing it to be correct, and only intends that his acts shall be lawful, he could not be conv icted of crim e [sic ] which inv olv es willful and unlawful intent[,] ev en if such adv ice were an inaccurate construction of the law. But, on the other hand, no m an can willfully and knowingly v iolate the law and excuse him self from the consequences thereof by pleading that he followed the adv ice of counsel. 79 Id. 80 The instruction of the district court in the present case followed this charge nearly in haec v erba. Thus, the court stated that the jury m ust decide 81 whether the defendant y ou are considering honestly and in good faith sought the adv ice of a lawy er as to what he could lawfully do in the future; whether he fully and honestly laid all m aterial facts of which he has knowledge before the lawy er; and whether, in good faith, he honestly followed such adv ice, rely ing upon it and believ ing it to be correct. 82 ... It is the law that a defendant cannot be conv icted of a crim e that inv olv es willful and unlawful intent, ev en if such adv ice were an inaccurate construction of the law, if the defendant relies in good faith on that adv ice. 83
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On the other hand, no m an can willfully and knowingly v iolate the law and excuse him self from the consequences of his conduct by pleading that he followed the adv ice of his lawy er. 84 Accordingly , we reject the contention that the conscious-av oidance charge could not be giv en on account of the adv ice-of-counsel defense. 2 . The Elem ent of Intent 85 In order to conv ict a defendant of conspiracy or m ail fraud, the gov ernm ent m ust prov e that he had the specific intent to com m it the crim e charged. See Direct Sales Co. v . United States, 3 1 9 U.S. at 7 1 1 , 6 3 S.Ct. at 1 2 6 9 (conspiracy ); United States v . Lanza, 790 F.2d 1015, 1 02 4 (2 d Cir.) (conspiracy ), cert. denied, 4 7 9 U.S. 86 1 , 1 07 S.Ct. 2 1 1 , 9 3 L.Ed.2 d 1 4 1 (1 9 86 ); United States v . Gelb, 700 F.2d 875, 87 9 (2 d Cir.) (m ail fraud), cert. denied, 4 6 4 U.S. 853 , 1 04 S.Ct. 1 6 7 , 7 8 L.Ed.2 d 1 52 (1 9 83 ); United States v . Von Barta, 635 F.2d 999, 1 005 n. 1 4 (2 d Cir.1 9 80) (m ail fraud), cert. denied, 4 50 U.S. 9 9 8, 1 01 S.Ct. 1 7 03 , 6 8 L.Ed.2 d 1 9 9 (1 9 81 ). Sim ilarly , a defendant is guilty of felony v iolation of Sec. 3 3 1 (a) if he has acted with "intent to defraud or m islead." 2 1 U.S.C. Sec. 3 3 3 (b). Hoy v ald and Lav ery contend that the conscious-av oidance charge as deliv ered by the trial court was erroneous because it allowed the jury to conv ict them without finding the requisite intent. Although the charge could hav e been clearer in this respect, we find no rev ersible error. 86 Conscious av oidance is a concept that deals m ost directly with knowledge. A conscious-av oidance instruction is appropriate when a defendant claim s to lack "som e specific aspect of knowledge necessary to conv iction but where the ev idence m ay be construed as deliberate ignorance." United States v . Lanza, 7 9 0 F.2 d at 1 02 2 . Nonetheless, conscious av oidance is not irrelev ant to intent, for knowledge is one com ponent of intent. "Without the knowledge, the intent cannot exist." Direct Sales Co. v . United States, 3 1 9 U.S. at 7 1 1 , 6 3 S.Ct. at 1 2 6 9 . Thus, ev en in a conspiracy case, in which specific intent m ust be prov en, use of a conscious-av oidance instruction m ay be appropriate with respect to the defendant's knowledge of the objectiv es of the conspiracy , see, e.g., United States v . Gurary , 860 F.2d 521, 52 7 & n. 6 (2 d Cir.1 9 88); United States v . Lanza, 7 9 0 F.2 d at 1 02 2 -2 3 . The sam e is true of m ail fraud cases. See, e.g., United States v . Shareef, 714 F.2d 232, 2 3 3 (2 d Cir.1 9 83 ); see also United States v . Brien, 617 F.2d 299, 3 1 2 (1 st Cir.), cert. denied, 4 4 6 U.S. 9 1 9 , 1 00 S.Ct. 1 854 , 6 4 L.Ed.2 d 2 7 3 (1 9 80). 87 In contending that the trial court's conscious-av oidance charge prejudiced them with respect to the elem ent of intent, defendants focus on two sentences in the instructions: 88
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Thus, ev en if y ou find that the defendant y ou are considering did not hav e actual knowledge that the apple juice concentrate and apple juice were adulterated, y ou m ay still find that the knowledge, and intent and willfull requirem ents are satisfied if y ou find that the defendant y ou are considering consciously av oided knowledge of the authenticity of the apple juice or concentrate, 89 and 90 In determ ining whether the defendant y ou are considering acted knowingly , willfully and intentionally , y ou m ay consider whether he deliberately closed his ey es to what otherwise would hav e been obv ious to him .... 91 It would indeed be preferable for trial courts to refrain from describing conscious av oidance in a way that suggests that it is equally probativ e of knowledge and intent, for though it is relev ant to both it is sufficient only as to knowledge. From the quoted statem ents it would arguably be possible for a jury , if it focused on them in isolation, to draw the unwarranted inference that it was perm itted to find the requisite intent solely from the fact of conscious av oidance of knowledge. Thus, we would urge the trial court in each case to clarify for the jury to the greatest extent possible that the conscious-av oidance concept is pertinent to knowledge or sincerity of belief, or to the knowledge com ponent of intent, but that a finding of conscious av oidance could not alone prov ide the basis for finding purpose or for finding intent as a whole. 92 Nonetheless, in assessing the likely effect of the quoted statem ents on the jury in the present case, we m ust v iew them in light of the jury charge as a whole, Cupp v . Naughten, 414 U.S. 141, 1 4 6 -4 7 , 9 4 S.Ct. 3 9 6 , 4 00-01 , 3 8 L.Ed.2 d 3 6 8 (1 9 7 3 ), and we conclude that the charge as a whole properly instructed the jury that conscious av oidance could satisfy only the knowledge elem ent of the offense or the knowledge com ponent of the intent elem ent. For exam ple, with respect to the conspiracy count, the district court stated that a defendant m ust be found to hav e "willfully entered" the unlawful agreem ent, that he "knowingly and willfully becam e a m em ber," and that he "willfully participated in the unlawful plan with the intent to adv ance or further" the conspiracy . The court defined "willfully " as acting "v oluntarily or intentionally and with a specific intent to do som ething the law forbids." The court stated that for proof of m em bership in a conspiracy , specific intent m ust be prov en, and it m ade it clear that intent com prises both knowledge and purpose, defining specific intent as "knowingly d[oing] an act which the law forbids, purposely intending to v iolate the law." It then stated that two v arieties of knowledge are inv olv ed in a conspiracy charge, the first of which--knowing participation--requires specific intent, but the second of which--knowledge of the unlawful objectiv es--m ay be satisfied by conscious av oidance. Sim ilar explanations and definitions were giv en for the m ail fraud and FDCA charges.
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93 In sum , v iewing the charge giv en here in its entirety , we conclude that the requisite m ental state for each elem ent of each crim e alleged was correctly described, separately and repeatedly , to the jury , and that the challenged statem ents did not constitute rev ersible error. E. Miscellaneous Contentions 94 Defendants m ake a v ariety of other argum ents that we hav e also found to be without m erit. They include claim s that the failure to start trial before Nov em ber 1 9 87 v iolated the Speedy Trial Act and that the court erred in adm itting certain ev idence as coconspirator statem ents. 1 . The Speedy Trial Claim 95 The Speedy Trial Act, 1 8 U.S.C. Sec. 3 1 6 1 et seq. (the "Act"), prov ides that except for day s that are "excludable" from the com putation required by the Act, a defendant shall be brought to trial within 7 0 day s after indictm ent or arraignm ent, whichev er occurs later. Id. Secs. 3 1 6 1 (c)(1 ) and (h). Hoy v ald and Lav ery contend that the delay between their arraignm ent in Nov em ber 1 9 86 and the beginning of trial in Nov em ber 1 9 87 encom passed 1 86 nonexcludable day s, and thus the indictm ent against them should be dism issed. For the reasons stated by the district court, see 6 7 7 F.Supp. 1 1 7 (1 9 87 ), this argum ent is m eritless. 96 The Speedy Trial Act prov ides, inter alia, that the district court m ay grant a continuance on the request of either side or on its own m otion, and that the resulting delay m ay be excluded from the 7 0day com putation if the court (1 ) finds "that the ends of justice serv ed by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial," and (2 ) sets forth its reasons for that finding on the record. Id. Sec. 3 1 6 1 (h)(8)(A); see also United States v . Tunnessen, 763 F.2d 74, 7 6 -7 8 (2 d Cir.1 9 85) (finding m ust be m ade before excludable period begins). Am ong the factors the court m ay consider in m aking such a finding is that 97 the case is so unusual or so com plex, due to the num ber of defendants, the nature of the prosecution, or the existence of nov el questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the tim e lim its established by this section. 98 Id. Sec. 3 1 6 1 (h)(8)(B)(ii). While these prov isions accord the district court considerable discretion to
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grant a continuance when it is "necessary to allow further preparation" for trial, United States v . RojasContreras, 474 U.S. 231, 2 3 6 , 1 06 S.Ct. 555, 558, 88 L.Ed.2 d 53 7 (1 9 85), they do not perm it unlim ited delay s, and the trial court has the responsibility to ensure that the length of an excludable continuance is reasonably related to the needs of the case, see United States v . LoFranco, 818 F.2d 276, 2 7 7 (2 d Cir.1 9 87 ) (dictum ). All of these standards appear to hav e been m et in the present case. 99 At the arraignm ents in Nov em ber 1 9 86 , the gov ernm ent inform ed the court that the case was com plex, noting, inter alia, that there were eight defendants and 4 7 0 counts, requiring proof of m ore than 2 ,500 separate offenses at trial. It pointed out that its proof would include extensiv e scientific ev idence and thousands of docum ents designed to show that the juice and concentrate were adulterated and were shipped in interstate com m erce. The gov ernm ent also stated that counsel for Hoy v ald had indicated that he anticipated extensiv e defense m otions, and the court noted that a num ber of the defendants had requested additional tim e to m ake their m otions. In response to an inquiry from the court, Hoy v ald's attorney stated, "Your Honor, we agree with the Gov ernm ent's representation that it is a com plex case and would waiv e a Speedy Trial Act...." Lav ery 's counsel joined this representation. The court thereupon accepted the parties' representations and declared the case a "com plex case" within the m eaning of the Act and stated that it would postpone setting a trial date until pretrial proceedings were well underway . 1 00 Thereafter, defendants m ade m ore than a dozen m otions, the last of which were subm itted on March 3 1 , 1 9 87 . Am ong these were m otions by Hoy v ald for additional tim e to file other pretrial m otions, including m otions to take depositions and to issue letters rogatory . In connection with the latter m otions, Hoy v ald's counsel represented, inter alia, that pretrial discov ery was needed of present and form er em ploy ees of Beech-Nut's parent com pany , headquartered in Switzerland, and that counsel was unable at that tim e to identify with certainty the persons liv ing outside the United States who m ight be called as witnesses for Hoy v ald at trial. Counsel expected to conduct interv iews and to m ake determ inations as to what depositions and letters rogatory would be needed "ov er the next sev eral m onths." The last of the m otions filed on or before March 3 1 were decided on May 1 1 , 1 9 87 . 1 01 During this m otion period, the gov ernm ent m ade av ailable to defendants som e 3 0,000 docum ents in response to their requests for discov ery . It subsequently serv ed trial subpoenas duces tecum on BeechNut, dem anding the production of a num ber of corporate records. Beech-Nut's initial response was a wholesale refusal to produce on the ground of attorney -client-priv ilege, though it did not file a m otion to quash. During this period, Hoy v ald neither m ade any requests for depositions or letters rogatory nor inform ed the court that he had decided not to m ake such requests. Nor did any defendant adv ise the court that he, she, or it was ready for trial. 1 02
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Giv ing "substantial adv ance notice," 6 7 7 F.Supp. at 1 2 2 , the court scheduled a pretrial conference for October 1 4 , 1 9 87 . At that conference, for the first tim e, Hoy v ald m ov ed orally for dism issal of the indictm ent on the ground that the Speedy Trial Act prov isions had been v iolated, apparently attem pting to repudiate his earlier agreem ent that the case was com plex. Counsel inv oked a statem ent by the court, m ade in the process of deny ing certain of defendants' earlier m otions, that the defendants were attem pting to com plicate unnecessarily an otherwise straightforward case. See 6 59 F.Supp. at 1 4 9 0. The court denied Hoy v ald's speedy trial m otion in an opinion reported at 6 7 7 F.Supp. 1 1 7 , fam iliarity with which is assum ed. We affirm substantially for the reasons stated in the district court's opinion. 1 03 The defendants had agreed at the outset that the case was com plex; they had not adv ised the court of any change in that v iew prior to the October 1 9 87 conference. With or without their agreem ent, the court's conclusion in all the circum stances that the case was com plex within the m eaning of the Speedy Trial Act was not an abuse of discretion. Further, sev eral m atters rem ained open. Hoy v ald had represented to the court in March 1 9 87 that he needed sev eral m onths just to determ ine what depositions and letters rogatory he would need; he had not adv ised the court of any change in his discov ery plans. Beech-Nut had refused to produce docum ents pursuant to the gov ernm ent's trial subpoena, and its com pliance rem ained unresolv ed at the tim e the court, on its own m otion, scheduled the October 1 9 87 conference. 1 04 In sum , the pretrial delay here seem s to hav e been reasonably related to the actual needs of the case. Though it would perhaps generally be preferable for the court initially to set a tentativ e trial date, it is not an abuse of discretion in a case such as this to postpone the setting of a date until the extent of the needed pretrial proceedings becom es clearer, so long as there is no intent or appearance that unlim ited or undue delay will be perm itted. There is no hint whatev er in the present record that the court was willing to tolerate indefinite delay . It had indicated that it would set a trial date when defendants' pretrial discov ery needs cam e into clearer focus, and it scheduled the October 1 9 87 conference on its own m otion. In all the circum stances, we find no abuse of discretion and no v iolation of the Act. 1 05 2 . Adm issibility of the Coconspirator Statem ents 1 06 At trial, LiCari testified, ov er defendants' objection, to conv ersations he had in 1 9 83 with two BeechNut em ploy ees on the subject of Beech-Nut's sale of adulterated juice. LiCari, who had left Beech-Nut's em ploy in January 1 9 82 , testified that he had m et Beech-Nut's purchasing m anager Jones at an industry association m eeting in January or February of 1 9 83 , and that Jones "said that Mr. Lav ery had indicated that they got away with it, that the m atter was dead." LiCari testified that William Knutsen, m anager of quality control in Beech-Nut's Canajoharie plant, m ade a sim ilar statem ent to
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him . The trial court ov erruled defendants' hearsay objection to this testim ony on the ground that Lav ery 's statem ents to Jones and Knutsen were adm issions of a party and thus not hearsay , see Fed.R.Ev id. 801 (d)(2 )(A), and that the statem ents of Jones and Knutsen to LiCari were coconspirator statem ents in furtherance of the conspiracy , and thus not hearsay , see Fed.R.Ev id. 801 (d)(2 )(E). Lav ery contends that he is entitled to a new trial because "under no v iew of the facts could these m erely narrativ e statem ents, m ade to a person outside the alleged conspiracy , hav e been uttered in furtherance of any conspiracy ." We disagree. 1 07 Whether a proffered statem ent is m ade "in furtherance" of a conspiracy is a prelim inary question of fact to be determ ined by the trial court by a preponderance of the ev idence. See United States v . DeJesus, 806 F.2d 31, 3 4 (2 d Cir.1 9 86 ). The court's finding that a statem ent was m ade in furtherance of a conspiracy is not subject to rev ersal unless it is clearly erroneous. See United States v . Rahm e, 813 F.2d 31, 3 6 (2 d Cir.1 9 87 ). "Where there are two perm issible v iews of the ev idence, the factfinder's choice between them cannot be clearly erroneous." Anderson v . City of Bessem er City , 470 U.S. 564, 57 4 , 1 05 S.Ct. 1 504 , 1 51 1 , 84 L.Ed.2 d 51 8 (1 9 85). 1 08 The principal question in the "in furtherance" issue is whether the statem ent prom oted, or was intended to prom ote, the goals of the conspiracy . "[I]dle chatter" does not m eet the test, e.g., United States v . Lieberm an, 637 F.2d 95, 1 03 (2 d Cir.1 9 80); nor does a " 'm erely narrativ e' " description by one coconspirator or the acts of another, United States v . Heinem ann, 801 F.2 d at 9 5 (quoting United States v . Birnbaum , 337 F.2d 490, 4 9 5 (2 d Cir.1 9 6 4 )). Coconspirator statem ents m ay be found to be "in furtherance" of the conspiracy within the m eaning of Rule 801 (d)(2 )(E) if they "prom pt the listener to respond in a way that facilitates the carry ing out of crim inal activ ity ." United States v . Rahm e, 81 3 F.2 d at 3 5. Though the Rule requires that both the declarant and the party against whom the statem ent is offered be m em bers of the conspiracy , see, e.g., United States v . Lieberm an, 6 3 7 F.2 d at 1 02 , there is no requirem ent that the person to whom the statem ent is m ade also be a m em ber. 1 09 In the present case, the trial court found that the statem ents of Jones and Knutsen were in furtherance of the conspiracy because they were designed to "cov er up" the m atter of Beech-Nut's distribution of adulterated juice. This finding was not clearly erroneous. Although LiCari was not alleged to hav e been a m em ber of the conspiracy , he was obv iously intim ately aware of the ev ents from 1 9 7 8 to 1 9 82 and of Lav ery 's response, or lack of response, to the reports that the concentrate purchased from Univ ersal was adulterated. He was thus som ewhat at risk of being accused of com plicity in those ev ents. He also had repeatedly urged Lav ery and Jones to term inate the purchases from Univ ersal, and he m ay well hav e been perceiv ed by Lav ery and other Beech-Nut officials as a risk to them . In the circum stances, it was perm issible for the court to infer that m em bers of the conspiracy told LiCari that Lav ery believ ed the m atter was finished in an effort to reassure LiCari and encourage him to not to rev eal incrim inating inform ation. Thus, the finding that the statem ents were in furtherance of the conspiracy was not clearly erroneous.
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CONCLUSION 110 We affirm Lav ery 's conv iction on the conspiracy and m ail fraud counts. We rev erse Hoy v ald's and Lav ery 's conv ictions on the substantiv e FDCA counts for lack of v enue in the Eastern District of New York and rem and to the district court for dism issal of those counts of the indictm ent. CARDAMONE, Circuit Judge, dissenting in part: 111 Although I agree that the conspiracy and m ail fraud conv ictions should be affirm ed, I respectfully dissent from that portion of the m ajority opinion rev ersing the substantiv e FDCA conv ictions on the grounds of im proper v enue. I would hold, as did the district court, that v iolations of 2 1 U.S.C. Sec. 3 3 1 (a) are "continuing offenses," to which the v enue prov isions of 1 8 U.S.C. Sec. 3 2 3 7 (a) apply . Because a continuing offense under Sec. 3 2 3 7 (a) is triable "in any district in which such offense was begun," v enue was properly laid in the Eastern District of New York where appellants Hoy v ald and Lav ery began purchasing adulterated and m isbranded juice concentrate. In m y v iew therefore appellants' conv ictions on the FDCA offenses should be affirm ed. 112 For purposes of its v enue analy sis, the m ajority agrees that v iolations of Sec. 3 3 1 (a) are continuing offenses subject to the v enue prov isions of Sec. 3 2 3 7 . It notes that v enue is properly laid "in a district from which defendant caused the unlawful introduction of goods into com m erce, ev en though phy sical shipm ent com m enced from a different district." See United States v . Taller, 394 F.2d 435, 4 3 7 -3 8 (2 d Cir.), cert. denied, 3 9 3 U.S. 83 9 , 89 S.Ct. 1 1 5, 2 1 L.Ed.2 d 1 09 (1 9 6 8)). In construing a continuing offense, the Suprem e Court counsels that " 'the locality of [the] crim e shall extend ov er the whole area through which force propelled by an offender operates.' " United States v . Cores, 356 U.S. 405, 4 08, 7 8 S.Ct. 87 5, 87 8, 2 L.Ed.2 d 87 3 (1 9 58) (quoting United States v . Johnson, 323 U.S. 273, 2 7 5, 6 5 S.Ct. 2 4 9 , 2 50, 89 L.Ed. 2 3 6 (1 9 4 4 )). 113 Here, Lav ery had reason to question the authenticity of the concentrate Beech-Nut was purchasing as early as October 1 9 7 8 when he receiv ed Dr. LiCari's initial m em orandum . Nev ertheless, he continued to authorize purchases of such concentrate from Univ ersal's Long Island warehouse, and did so despite reports that the Univ ersal facilities did not include blending equipm ent needed to m anufacture the pure apple concentrate that Beech-Nut was allegedly buy ing. Ev en after hav ing receiv ed sev eral adv erse reports concerning the quality of Beech-Nut juices in early 1 9 81 --including the unsolicited report of the Swiss laboratory --Hoy v ald and Lav ery continued buy ing the ersatz concentrate from their bargain-basem ent suppliers in the Eastern District. Upon receipt of the concentrate at its upstate plant, Beech-Nut m erely added water and Vitam in C and m arketed a product it labeled as containing "1 00% Fruit Juice, Apple Juice from Concentrates and Vitam in C." Thus, appellants' FDCA offenses began with
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the purchase of concentrate from the district in which those offenses were tried. It seem s plain that "forces propelled by the defendants" in the com m ission of the crim es that are the subject of this appeal did "operate" in the Eastern District of New York. 114 The analy tical fram ework that is set forth in United States v . Reed, 773 F.2d 477 (2 d Cir.1 9 85), supports the conclusion that the Eastern District was the appropriate v enue for appellants' trial. In Reed, we noted that the Constitution requires "that the v enue chosen be determ ined from the nature of the crim e charged as well as from the location of the act or acts constituting it, and that it not be contrary to an explicit policy underly ing v enue law." Id. at 4 80. Because the Suprem e Court has not enum erated the precise policies underly ing v enue law, we concluded that "fairness to defendants [could not] be the sole grounds for determ ining v enue" and held that the test considers "a num ber of factors-the site of the defendant's acts, the elem ents and nature of the crim e, the locus of the effect of the crim inal conduct, and the suitability of each district for accurate factfinding...." Id. at 4 81 . 115 The m ajority first considers the situs of the defendants' crim inal acts and concludes that appellants conducted no business from the Eastern District of New York. Concededly , Hoy v ald and Lav ery did not personally go into the Eastern District to buy the concentrate. But I do not read Sec. 3 2 3 7 as requiring the phy sical presence of defendants in the district where the continuing offense was begun. Nothing in the statute or the Constitution m andates that, for v enue to be in the Eastern District, the introduction of adulterated juice into interstate com m erce m ust hav e been caused by these appellants from the Eastern District. It is sufficient that ev ery shipm ent of juice recited in counts 2 2 through 4 50 of the indictm ent resulted from the appellants' knowing purchase of sim ulated apple juice concentrate that was warehoused in the Eastern District. At the direction of Lav ery , and later Hoy v ald, Beech-Nut em ploy ees regularly placed calls to their suppliers in the Eastern District and routinely followed-up by m ailing written confirm ation orders into that district. The focus of the effect of this continuing crim e was nationwide, and suitability for factfinding was equally as good in the Eastern District as in the Northern District of New York. 116 Further, prior precedents support v enue in the Eastern district. In United States v . Cattle King Packing Co., 793 F.2d 232 (1 0th Cir.), cert. denied, 4 7 9 U.S. 9 85, 1 07 S.Ct. 57 3 , 9 3 L.Ed.2 d 57 7 (1 9 86 ), Colorado v enue was held appropriate for the trial of v arious Federal Meat Inspection Act v iolations, 2 1 U.S.C. Sec. 6 01 -6 2 4 (1 9 82 ), despite the fact that the record was dev oid of any ev idence (1 ) that the adulterated m eat--shipped from Nebraska to California--had ev er passed through the forum district, and (2 ) that the defendant who contested the Colorado v enue had ev er set foot in the district where the offenses were tried. Venue in Colorado was upheld based upon ev idence that one of the defendant's subordinates had m ade a num ber of telephone calls from Colorado at the direction of his superior in his efforts to sell the adulterated m eat to a California wholesaler. Id. at 2 3 9 n. 4 . 117
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Cattle King illustrates the m odern trend of m ov ing from form alism toward a flexible interpretation of continuing offenses under Sec. 3 2 3 7 . Thus, for exam ple, in U.S. v . Ram irez-Am ay a, 812 F.2d 813, 81 6 (2 d Cir.1 9 87 ), we upheld v enue under Sec. 3 2 3 7 (a) in the Southern District of New York with respect to charges of im portation of cocaine where (1 ) the "im portation" had occurred in Florida, and where (2 ) the only connection between the im portation and the forum district was the fact that an FBI-owned plane which transported the substances from Florida to LaGuardia Airport in the Eastern District of New York flew ov er a body of water in the joint jurisdiction of the Eastern and Southern Districts. 118 Perhaps m ost significant is United States v . Busic, 549 F.2d 252 (2 d Cir.1 9 7 7 ). There a passenger plane was hijacked in airspace outside the district where the crim e was charged. The crim e of aircraft piracy , 4 9 U.S.C. App.Sec. 1 4 7 2 (1 9 82 ), has its own v enue prov ision that em ploy s language v irtually identical to that in Sec. 3 2 3 7 : It prov ides that the offense m ay be tried in any district in which the offense was "begun, continued, or com pleted." Id. Sec. 1 4 7 3 (a). Defendants had conspired and prepared to com m it the offense in the Eastern District of New York by assem bling the constituent parts for their im itation bom bs and by boarding the plane at LaGuardia Airport. Yet the district court held that v enue on the substantiv e highjacking counts (as opposed to the conspiracy counts) was not proper in the Eastern District because the highjackers had not exercised actual control ov er the aircraft until well after it had left the district. The district judge reasoned, as does the m ajority in this case, that the offense of air piracy had not y et begun while the defendants were in the Eastern District because the acts which defendants had carried out in that district were m erely preparatory to the substantiv e crim es. 119 In rev ersing, we rejected such a "tortured and hy perconstricted reading" of the term "begun," and held that the crim e of air piracy began in the Eastern District, ev en though the actual highjack note was not passed to the crew of the aircraft until well after the plane had left the district. Id. at 2 56 . We expressly declined to adopt defendants' contention that the v enue statute is "susceptible to one narrow constitutional reading, which would adv ance the m om ent of beginning so near the point of consum m ation of the crim e that the words m ight as well be read as sy nony m ous and without any significant statutory difference." Id. In enacting Sec. 3 2 3 7 Congress did not design a theoretical statute that would operate in "an abstract world of Platonic form s, but to the real world of action." Id. at 2 58. 1 20 In the instant case, the crim e of introducing adulterated and m isbranded juice into interstate com m erce began with the knowing purchase of adulterated concentrate from suppliers in the Eastern District of New York. Such purchases were no m ore preparatory acts than were the m anufacture of the im itation dy nam ite and the boarding of the plane in Busic. The act of purchasing the adulterated concentrate was the point at which the offense was begun. The purchase was not preparation for, but initiation of the substantiv e FDCA offenses for which appellants were conv icted. 1 21
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Finally , the m ajority cites United States v . Bozza, 365 F.2d 206, 2 2 0-2 1 (2 d Cir.1 9 6 6 ), as standing for the proposition that the m aking of a contract to receiv e stolen goods is not the beginning of a receiv ing, and that appellants' purchase of concentrate cannot therefore constitute the beginning of the conduct proscribed by Sec. 3 3 1 (a). But Bozza is inapposite to the present case because there the crim es were noncontinuing, and the v enue prov isions of Sec. 3 2 3 7 were held inapplicable. Because the crim es in Bozza were single-act offenses, we could not use the liberalized v enue prov ision applicable in the instant case. The rem aining cases cited by the m ajority are also inapposite because m ost do not inv olv e continuing offenses. See, e.g., United States v . Dav is, 666 F.2d 195, 2 00 (5th Cir. Unit B 1 9 82 ) (v enue prov isions of Sec. 3 2 3 7 not m entioned); United States v . Chestnut, 533 F.2d 40, 4 7 (2 d Cir.1 9 7 6 ) (trial of a non-continuing, single-act offense). 1 22 Accordingly , I dissent from that portion of the m ajority opinion that rev erses the FDCA conv ictions on the grounds of im proper v enue and v ote to affirm those conv ictions. Print Em ail Short URL:
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BROWSE OPENJURIST Hom e87 1 f2 d 1 1 81 united states v . beech-nut nutrition corporation
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871 F2d 1181 United States V Beech Nut

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871 F2d 1181 United States V Beech Nut

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871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

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871 F2d 1181 United States v. Beech-Nut Nutrition Corporation | OpenJurist

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