871 F2d 1181 United States V Beech Nut

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871 F. 2d 1181 - United States v. Beech-Nut Nutrition Corporation

Home87 1 f2d 11 81 united states v. beech-nut nutr ition corporation

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

871 F.2d 11 81

27 Fed. R. Ev id. Serv . 849

UNITED STATES of America, Appellee,

v .BEECH-NUT NUTRITION CORPORATION, Neils L. Hoy v ald, John F.

Lav ery , Zeev Kaplansky, Ray mond H. Wells, Nina B.

Wil liam son, Sout h Orang e Ex press, Inc .,

Danny A. Shaeffer, Defendants,

Appeal of Neils L. HOYVALD a nd John F. Lav ery , Defendant s-Appel la nt s.

Nos. 422, 423, Dockets 88-1287, 88-1288.

United States Court of Appeals,

Second Circu it.

Ar gu ed Dec. 5 , 1 988 .

Decided March 29, 19 89.

John R. Fleder, Director, Office of Consum er Litiga tion, U.S. Dept. of Justice, Washin gton, D.C. (John R.

Bolton, Asst. Atty . Gen., Washington, D.C., Andrew J. Maloney , U.S. Atty . for t he E.D. of N.Y.,

Brookly n, N.Y., Kenneth L. Jost, Att y ., Office of Consum er Litigat ion, U.S. Dept. of Justice, Washing ton,

D.C., Dav id C. James, Thomas H. Roche, Asst. U.S. Atty s., Brookly n, N.Y., on the brief), for a ppellee.

Barry S. Simon, Washington, D.C. (Brendan V. Sulliv an, Jr ., Paul Mogin, John D. Cline, Williams &

Connoly , Washingt on, D.C., on the brief), for defendant -appellant Hoy v ald.

Steven Kimmelm an, New York City (Jam es Alexander Burke, Stev en Kimm elman, P.C., New York

City , on th e brief), for defendant-appellant Lavery .

Before OAKES, Chief Judge, KEARSE and CARDAMONE, Circuit Judges.

KEARSE, Circ uit Judge:

Patricia Cresta-Savagewww.pcslaw.net

Employment, Criminal & Business Law 16901 Melford Blvd, #101A, Bowie MD
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openjurist.org/871/f2d/1181/united-states-v-beech-nut-nutrition-corporation 2

1

Defendants Neils L. Hoyv ald and John F. Lav ery appeal from ju dgmen ts of conv iction entered in the

United Stat es Distr ict Court for th e Eastern Distr ict of New York after a jur y tr ial before Thom as C.

Platt, Ju dge. Hoy v ald was conv icted on 35 9 counts of introducing adult erat ed and m isbra nded apple

ju ice in to intersta te com m erce, in v iola tion of th e Feder al Food, Drug, a nd Cosmetic Ac t ("FDCA"), 21

U.S.C. Secs. 33 1 (a) and 342 (b)(1 ) and (2) (19 82 & Supp. IV 1 986 ). Lav ery was conv icted on one count

of conspiracy , in v iolation of 1 8 U.S.C. Sec. 37 1 (1 982 ), 1 8 counts of mail frau d, in v iolation of 18U.S.C. Secs. 1 34 1 and 2 (1 982 ), and 42 9 counts of introducing a dulterated and misbranded apple juice

into interstate comm erce, in v iolation of 21 U.S.C. Secs. 3 31 (a), 34 2(b)(1) an d (2), and 1 8 U.S.C. Sec.

2. Each defendant w as fined a total of $1 00,00 0, sentenced to concu rr ent prison ter ms of one y ear an d

one day on each count on wh ich h e was conv icted, an d ordered to pay th e costs of prosecution. On

appeal, defendants contend principally that v enue as to certain counts wa s improper a nd that the

district court m ade a v ariety of errors in admitting or excluding evidence and in instructing t he jury .

For t he reasons below, w e conclu de that v enue as to the substan tiv e FDCA counts was im proper, a nd we

therefore rev erse defendants' conv ictions under 21 U.S.C. Secs. 3 31 (a) and 3 42 (b)(1 ) and (2) and

rem and for dism issal of th ose counts; we affirm Lav ery 's conv iction on th e conspiracy and m ail frau d

counts.

I. BA CKGROUND

2

During th e period in question, Lav ery wa s vice president in cha rge of operations for Beech-Nut

Nut rit ion Corporat ion ("Beech-Nut " or the "Company "), a c om pany engag ed in the bu siness of, inter

alia, selling fruit ju ice products in inter state com m erce. As vice president for operat ions, Lav ery wa s

responsible for th e pur cha sing an d processing of apple juice concentr ates used in Beech-Nut's apple juiceand in its "mix ed juice" product s. Hoy v ald was first employ ed by Beech-Nut in 1 98 0 and becam e its

president an d chief executiv e officer in April 1 981 . Thereafter, Lav ery reported directly to Hoy v ald.

3

The governm ent's evidence at trial was presented principally thr ough the testimony of present and

form er Beech-Nut em ploy ees, scientists and inv estiga tors em ploy ed by th e Food and Drug

Adm inistrat ion ("FDA"), a nd exper t witnesses, a nd th roug h docum ents fr om the fil es of Beech-Nu t. Th e

evidence, taken in th e light m ost fav orable to the gov ernm ent, rev ealed the following.

A. Ev ents Prior t o Ju ne 25, 1 982

4

Beech-Nut m ar keted its apple juice as pure un sweetened juice, labeling an d adv ertising it as pure fruit

ju ice w ith no suga r added. It m ade it s ju ices from concen tr at es. In 1 97 7 , Un iv ersal Ju ice Com pany

("Univ ersal") became it s sole supplier of apple juice concentr ate. In October 1 97 8, Dr. Jerome LiCari,

Beech-Nut's director of research and development, received information suggesting that that


3/31



concentrat e migh t be adulterated, i.e., m ight be made of sy rups and edible substances other than , an d

cheaper tha n, a pples. LiCari reported this inform ation to Lav ery .

5

In r esponse, Lav ery sent tw o employ ees to inspect Univ ersal's blending operation. Wha t t he em ploy ees

found, however, w as only a war ehouse with out an y blending facility . Lav ery did not att empt to

determ ine th e locat ion of the blending opera tion and pur sue an inspection. Instead, he requir edUniv ersal to giv e the Com pany a "hold har ml ess" agr eement w hich w as intended to protect Beech-Nut

from legal claims related to the juice.

6

Therea fter, as a r esult of tests, LiCari contin ued to express to Lav ery his concern s about t he qualit y of

the concentra te supplied by Universal; he argu ed that a supplier w illing to adulterate the concentra te

in th e first place would likely hav e little compunct ion about continuing to supply adulterated product

after signing a h old-ha rm less docum ent. Lav ery 's response wa s tha t th e agreem ent would adequa tely

protect the Company ev en if the juice was adulterated.

7

Lav ery told LiCar i tha t Univ ersal's price to Beech-Nut for th e concentr ate w as 50 cents to a dollar per

gallon below th e price charg ed by th e Com pany 's prev ious supplier. He stat ed that, because of the

trem endous economic pressure u nder which the Company was operating, he would not ch ange

suppliers unless LiCari's tests were sufficient t o prove in a court of law th at t he concentra te wa s

adulterated. He directed LiCari to giv e the testing low priority . Beech-Nut continued to buy the

adulterated concentrate.

8

In 1 97 9, LiCari had th e concentrat e analy zed by an outside laborat ory . The test results showed that the

concent ra te consisted prima rily of sugar sy ru p. Lav ery wa s inform ed of these results but took no action.

In July 1 97 9, Lav ery received a memorandum from the Company 's plant ma nager in San Jose,

California, adv ising him that approxima tely 95,000 pounds of concentrat e inv entory was " 'funny ' "

and "adult erat ed," in tha t it wa s "alm ost pur e corn sy ru p." (Empha sis in orig inal. ) The plant m ana ger

suggested th at Beech-Nut dema nd its m oney back from t he supplier. Instead, Lav ery , wh o did not

dispute the a ccuracy of these reports, instructed the m anager to use the tainted concentrat e in th e

Com pany 's m ixed juices. These too wer e labeled 1 00% pure juice. Th e Com pany continued to pur cha se

its apple juice concent ra te from Univ ersal.

9

On num erous occasions thereafter , Beech-Nut's scientists adv ised Lav ery of th eir concerns tha t th e

apple juice concentrat e was adulterated. In Au gust 1 981 , LiCari sent a mem orandum to Charles Jones,

the Company 's purch asing m anager, with a copy to Lav ery , stating th at alt hough th e scientists had not


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prov en that the concentra te was adulterated there w as "a tr emendous amount of circumstantial

evidence" to that effect, "paint[ing] a grave case against the current supplier." LiCari's memorandum

concluded that

1 0

[i]t is imperativ e that Beech-Nut establish t he au thenticity of the Apple Juice Concentrat e used to

form ula te our pr oduct s. If the aut hent icity cann ot be established, I feel tha t w e hav e sufficient reason tolook for a new supplier.

1 1

Lav ery took no action to cha nge suppliers. Rath er, h e instruct ed Jones to ignore LiCari's memoran dum ,

crit icized LiCari for n ot being a "team play er," and called his scientists "Chicken Little." He thr eatened to

fire LiCari.

1 2

In lat e 1 981 , th e Company received, unsolicited, a report from a Swiss laborat ory concluding tha t

Beech-Nut 's apple juice product w as adulter ated, stat ing, "[t]he a pple juice is false, ca n not see any

apple." Lav ery rev iewed this report , and one of his aides sent it t o Univ ersal. Univ ersal ma de no

response, and Beech-Nut took no action.

1 3

Both before and after becoming pr esident of Beech-Nut in Apr il 1 98 1 , Hoy v ald too receiv ed inform ation

from sev eral sour ces about the adult erat ion problem. In Janu ar y 1 98 1 , LiCari sent copies of amem orandum to Hoy v ald and Lav ery expressing concern ov er the quality of the concentrat e used to

ma ke the apple juice. In Nov ember, pu rch asing m ana ger Jones ra ised the problem. In the spring of

1 982 , Paul Hillabush, th e Company 's director of quality assura nce, adv ised Hoy v ald not to be surprised

by adv erse publicity concer ning Beech-Nu t's pu rch ases of apple ju ice concentr ate. Hoy v al d took no

action in response to any of th ese comm un ications. Rath er, he told Lav ery th at, for budgetary reasons,

he would not approve a ch ange in concentrate suppliers until 1 983 .

1 4

B. The Events of June 25, 1 982 , and Thereafter

1 5

On June 25, 1 982 , a detectiv e hired by t he Processed Apple Institute v isited Lav ery at t he Beech-Nut

ma nufactur ing facility in Canajoharie, New York, and adv ised him tha t Beech-Nut was about t o be

inv olv ed in a law suit a s a result of its use of adulterated concentrat e and tha t adv erse publicity would

ensue. Lav ery imm ediately term inated Beech-Nut's relationship with Universal.


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1 6

Lav ery dealt w ith th e adulterated concentrat e on ha nd in two way s. He promptly ordered tha t so mu ch

of Beech-Nut's inv entory of concentra te as was located in New York be retur ned to Univ ersal or

destr oy ed. As to the inv entory of concentra te located in San Jose, Californ ia, howev er, he all owed the

California plant to continue to use it in manufacturing apple juice products.

1 7

In addition to the concentr ate in New York an d California, Beech-Nut had in Ju ne 1 982 an inv entory

wort h m illions of dollar s of finished apple pr oducts already m ade fr om th e adult erated concen tr at e.

Hoy v ald realized that an ina bility to sell this inv entory would be financially crippling to the Company ,

and accordingly undertook delaying tactics designed to give t he Company time to sell it.

1 8

To av oid seizure of the inv entory in New York by state officials in August 1 982 , Hoy v ald had this juice

mov ed out of stat e dur ing th e night . It w as tran sport ed from th e New York plant to a war ehouse in

Secaucu s, New Jersey, a nd the records of th is shipment a nd oth ers were with held from FDA

inv estigators until t he inv estigators independently located the ca rrier Beech-Nut had u sed. While the

FDA w as search ing for the adul tera ted products but before it h ad discover ed the Secaucu s wareh ouse,

Hoy v ald ordered v irt ual ly th e entire stock in tha t wa rehouse shipped to Beech-Nut's distr ibutor in

Puerto Rico; th e Puerto Rico distributor h ad not placed an order for th e product and h ad tw ice refused to

buy the pr oduct ev en at gr eat discou nt s offered per sonally by Hoy v ald.

1 9

Similarly , in September 1 982 , Hoy v ald ordered a ru sh shipment of the inv entory of apple juice

product s held at Beech-Nut's San Jose plant , an d took a n um ber of un usual steps to get r id of the ent ire

stock. He au thorized price discount s of 50 percent ; th e lar gest discount ev er offered ther etofore had been

1 0 percent. Hoy v ald insisted that th e product be shipped "fast, fast, fast," and gav e a distr ibutor in th e

Dom inican Republic only tw o day s, instead of the u sual 3 0, t o consider a nd respond to this product

promotion. Furt her, in order to get the juice out of th e war ehouse and out of the coun tr y as quickly as

possible, the Compan y shipped it to the Dominican Republic on th e first possible sailing date, w hich wa s

from an un usually distant port, t hereby raising the freight cost to a level nearly equal to the v alue of

the g oods them selv es. Finally , th is stock was shipped before Beech-Nut h ad receiv ed the necessar y

financia l docum enta tion from th e distributor, w hich , as one Beech-Nut em ploy ee testified, wa s

"tant am ount to giving th e stuff away ."

20

Hoy v ald also used Beech-Nut's lawy ers to help delay the govern ment inv estigation, thereby giv ing th e

Com pany m ore tim e to sell its inv entory of adult erat ed juice before the product could be seized or a

recall could be ordered. For exam ple, in Septem ber 1 98 2, t he FDA informed Beech-Nut t hat it intended

to seize all of Beech-Nut 's apple juice product s made from Univ ersal concentr ate; in October, N ew York


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State aut horities adv ised the Company that they planned to initiate a local recall of these products.

Beech-Nut 's law y ers, at Hoy v ald's direction, successfully negotiated with t he aut horities for a lim ited

recall, excluding product s held by reta ilers and stocks of mixed juice products. Beech-Nut th us

eventu ally agreed to conduct a nationwide recall only of apple juice, and by the tim e of the recall

Hoy v ald knew t hat m ore than 9 7 percent of th e earlier stocks of apple juice had been sold. The

Com pany continued to sell its mixed juice products made from th e tainted concent ra te unt il Mar ch

1 983 . In December 1 982 , in response to Hoy v ald's request, Th oma s Ward, a m ember of a law firm

retained by Beech-Nut, sent Hoyv ald a letter th at sum ma rized the ev ents surr ounding th e apple juiceconcent ra te pr oblem as follows:

21

From the start, we had tw o main objectives:

22

1 ) to m inim ize Beech-Nu t's potent ial economic loss, which w e understand ha s been conserv ativ ely

estima ted at $3.5 m illion, an d

23

2) to minim ize any damag e to the company 's reputat ion.

24

We det ermined that th is cou ld be done by dela y ing, for a s long as possible, an y m ar ket withdraw al of

products produced from the Universal Juice concentrate....

25

.... In spite of the recognition th at FDA m ight wish to hav e Beech-Nut recall some of its product s,

ma nag ement decided to continue sales of all such product s for t he tim e being.... The decision t o contin ue

sales and som e production of th e products was based upon t he r ecognit ion of th e significant potent ial

financia l loss and loss of goodwill, a nd th e fact th at apple juice is a critica l lead-in item for Beech-Nut.

26

Since the m ixed fruit ju ices and oth er products constitut ed the bulk of the products produced with

Univ ersal concentr ate, one of our ma in goals became to prev ent th e FDA and stat e auth orities from

focusing on these product s, and we were in fact successful in lim iting t he controv ersy str ictly to apple

ju ice.

C. The Present Prosecution

27


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In Nov ember 1 986 , Beech-Nut, Hoy v ald, and Lavery , along with Universal's proprietor Zeev

Kaplansky and four others (Kaplansky and th ese four referred to hereafter as the "suppliers"), w ere

indicted on ch arg es relat ing t o th e Compa ny 's sale of adult erat ed and misbranded apple juice products.

Hoy v ald and Lav ery were char ged with (A) one count of conspiring w ith t he suppliers to v iolate the

FDCA, 21 U.S.C. Secs. 331 (a), (k), and 333 (b) (1 982 & Supp. IV 1 986 ), in v iolation of 1 8 U.S.C. Sec.

37 1 ; (B) 20 counts of mail fraud, in v iolation of 18 U.S.C. Secs. 13 41 and 2; and (C) 429 counts of

intr oducin g adult erat ed and misbran ded apple juice into interstat e com m erce, in v iolation of 21 U.S.C.

Secs. 3 31 (a) and 33 3(b) and 1 8 U.S.C. Sec. 2. The suppliers were also char ged with intr oducingadulterated concentrat e into interstate comm erce; Hoy v ald and Lav ery were not charged with a ny

substan tiv e offense regarding t he concentra te itself, either direct ly or as aiders and abettors.

28

Hoy v ald and Lav ery pleaded not guilty to the charges against them. Eventu ally , Beech-Nut pleaded

guilty to 21 5 felony v iolations of Secs. 33 1 (a) and 33 3(b); it receiv ed a $2,000,000 fine and was

ordered to pay $14 0,000 to the FDA for t he expenses of its inv estiga tion. Kaplansky a nd the other four

supplier-defendants also ev entu ally pleaded guilt y to som e or all of the cha rg es aga inst them . Hoy v ald

and Lav ery thu s went to trial alone.

29

Prior t o trial, Hoy v ald and Lavery ma de va rious motions, including (1 ) a m otion to dismiss the

substan tiv e FDCA count s aga inst them on the ground th at n one of the acts on wh ich th ose coun ts were

based occu rred in t he Ea ster n District of New York, an d hence v enue w as im proper; and (2 ) a m otion to

dism iss th e conspiracy coun t on the ground th at it pleaded two conspiracies ra ther th an a single

conspiracy . In an opinion r eported at 6 59 F.Supp. 1 487 (1 987 ), th e district court denied both motions.

It denied the v enue m otion on the gr oun d that , since tra nsport ation is necessary for t he "intr oduct ion"of goods into com m erce, th e FDCA offenses were continu ing cr imes under 1 8 U.S.C. Sec. 323 7 (a) (1 98 2

& Supp. IV 1 986 ) and v enue was thu s proper in an y district in wh ich th e offenses were begun,

contin ued, or completed. It denied the m otion to dismiss th e conspiracy count, finding t ha t th e

indictm ent adequately alleged a single conspiracy albeit w ith mu ltiple objectiv es.

30

The trial began in Nov ember 1 987 and continued for th ree months. The gov ernm ent's ev idence

inclu ded th at sum m ar ized abov e. Hoy v ald's principal defense was that a ll of his act s relat ing to the

problem of adultera ted concent ra te ha d been perform ed on th e adv ice of coun sel. For exa mple, t here

was ev iden ce th at the Beech -Nut shipm ent of adu lt erat ed ju ices from its San Jose plant to th e

Dom inican Republic followed the receipt by Hoy v ald of a t elex sent by Sheldon Klein, an associate of the

law firm representing Beech-Nut, which summarized a telephone conference between Beech-Nut

officials an d its at torney s as follows:

31

We u ndersta nd that approximately 25, 00 0 cases of a pple ju ice m an ufac tu red fr om concen trate


8/31



purch ased from Univ ersal Juice is [sic ] curr ently in San Jose. It is str ongly recomm ended th at such

product and a ll other Univ ersal products in Beech-Nut's possession a ny wh ere in t he US be destroyed

before a m eeting with [the FDA] t akes plac e.

32

Hoy v ald and Klein testified that t hey had a follow-up conv ersation in wh ich Klein t old Hoy v ald that , as

an a lternativ e, it w ould be lawful to export the adultera ted apple juice products.

33

At th e cl ose of the ev iden ce, tw o coun ts of m ai l fr aud were dism issed at th e gov ernm ent's requ est; the

rema ining counts were submitted to the jury . The jury retur ned a v erdict of guilty on all of the counts

against Lav ery . It retur ned a verdict of guilty against Hoy v ald on 359 counts of adulterat ing and

misbranding apple juice, all of which r elated to shipments after June 2 5, 1 982 . It w as unable to reach a

v erdict on t he r em aining count s ag ainst Hoy v ald, which rela ted to ev ents prior to th at date. These

appeals followed.

II. DISCUSSION

34

On appeal, defendants contend principal ly (1 ) tha t th e Eastern District of New York w as not a proper

v enue for prosecution of the substan tiv e cou nt s under th e FDCA ; (2 ) that the cou rt im properly

cur tailed th eir presentat ion of ev idence in support of their adv ice-of-counsel defense; and (3 ) th at t he

cour t failed to giv e the jur y proper instru ctions wit h respect to th at defense and with r espect to the

ma tter of conscious av oidance. In addition, Lav ery contends th at t he proof at tr ial did not substan tiat ethe ch ar ge tha t he an d Beech-Nut's suppliers were m embers of a single conspiracy to violate th e FDCA;

both defen dan ts contend that th at their rights un der the Speedy Tr ia l A ct , 1 8 U. S.C. Sec. 3 1 61 et seq.

(19 82 & Supp. IV 1 986 ), were v iolated and that the court m ade va rious other err ors in the admission of

ev idence or th e conduct of the trial . We hav e considered all of the arg um ents made by defendants on

these appeals and find merit only in th e contention that v enue as to the substantiv e FDCA counts was

improper.

A. Venue as to t he Su bsta ntiv e FDCA Counts

35

Appella nts a rgu e that th eir conv ictions on the substa nt iv e FDCA count s must be rev ersed becau se the

gov ernm ent did not show th at v enue in th e Eastern District of New York w as proper. For th e reasons

below, we are constr ained to ag ree.

36

The Sixth A mendment to the Constitution provides that the accu sed in a crim inal prosecution h as the


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righ t to be tr ied in th e "distr ict wh erein th e crim e shal l hav e been com m itted." See also Fed.R.Crim .P.

1 8. The burden is on the gov ernment to prove th at th e crime wa s comm itted in the district in which

the prosecut ion is brough t, see, e.g., United States v . Potam itis, 739 F.2d 784, 7 91 (2d Cir.), cert.

denied, 46 9 U.S. 91 8, 1 05 S.Ct. 297 , 83 L.Ed.2d 23 2 (1 984 ); United States v . Panebianco,543 F.2d

447, 455 (2d Cir.197 6), cert. denied, 429 U.S. 11 03, 97 S.Ct. 1 1 29, 51 L.Ed.2d 553 (197 7 ), and when a

defendant is char ged in more tha n one coun t, v enue m ust be proper with r espect to each count , see,

e.g., United States v . Bozza,365 F.2d 206, 220 -22 (2 d Cir.1 96 6); United States v . Davis, 666 F.2d 195,

1 98 (5th Cir. Unit B 1982 ).

37

When a cr im e consists of a sin gl e noncontinuing act , it is "commit ted" in t he dist rict where the act is

perform ed. See, e.g., United Stat es v . An derson,328 U.S. 699, 703, 6 6 S.Ct. 121 3, 1 21 6, 90 L.Ed. 1529

(19 46 ); United States v . Busic,549 F.2d 252, 259 (2d Cir.19 7 7 ). When a crim e is an offense that is not

unitar y but instead spans space or tim e, it may be gov erned by 1 8 U.S.C. Sec. 32 37 (a), which provides

that,

38

[e]xcept as other wise expressly pr ov ided by enact m ent of Congr ess, any offense against th e United

States begun in one district and completed in another, or committed in more than one district, may be

... pr osecut ed in any distr ict in w hich such offense was begun, c ontin ued, or completed.

39

That section goes on to provide tha t "[a]ny offense inv olvin g .. . tr ansport ation in int erstate or foreign

com m erce ... is a contin uing offense and, except as oth erw ise expressly provided by enac tm ent ofCongress, m ay be ... prosecuted in any district from, t hrough, or into wh ich such comm erce ... m ov es."

Id.

40

If the federal sta tut e defining an offense does not in dicate explicitly wh ere Congress believ es the

crimina l act is comm itted, "the locus delicti must be determ ined from th e natu re of the crime a lleged

and the location of the act or a cts constituting it." United States v . An derson, 3 28 U.S. at 7 03, 66 S.Ct.

at 1 21 6. "It is, of cour se, necessar y in order to decide where th e crim e is comm itted to ascertain wh at

duty it wa s, th e failure to perform which constitutes the crime, and also wha t a cts of the defendant

constituted the violation." Id. at 7 05, 66 S.Ct. at 1 21 7 . Accordingly , we hav e stated that

41

the t est [for constitut ional v enue] is best described as a substantia l contact s rule th at t akes into accoun t

a nu m ber of factors--the site of the defendant 's acts, the elem ents and na tu re of the crim e, th e locus of

the effect of th e crimin al conduct, and th e suita bility of each district for accu ra te factfinding,
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42

United States v . Reed, 77 3 F.2d 477, 481 (2d Cir.1 985), an d we hav e noted that it is helpful to exam ine

the "key v erbs" used by th e stat ut e in defining t he offense, United Stat es v . Chestnu t, 533 F.2d 40, 46-47

(2d Cir.), cert. denied, 429 U.S. 829, 9 7 S.Ct. 88, 50 L.Ed.2d 93 (1 97 6).

43

The substan tiv e FDCA prov ision at issue her e prohibits, in pertin ent par t, "[t]he intr oduction or

deliver y for int roduction into inter state comm erce of any food ... th at is adultera ted or m isbran ded." 21

U.S.C. Sec. 33 1 (a). Th e offense described by this section consists of "put[t ing] in to the str eam of

inter state comm erce adult erat ed or m isbra nded" food, United Stat es v . Dotter weich ,320 U.S. 277, 284,

64 S.Ct. 1 34 , 1 38 , 88 L.Ed. 48 (1 94 3), or th e "send[ing of] illicit goods acr oss state lines," id. at 28 5, 6 4

S.Ct. at 1 3 8. Al th oug h th e offense is comm itted at t he m om ent th e goods are "intr oduc[ed]" or "put " into

com m erce, w e do not v iew th e term s "intr oduction" and "deliver y for int roduction" as limited to the

phy sical act of shipping th e goods from the original w areh ouse or plant of th e man ufact ur er. Rather,

deem ing t hose term s to encompass also act s of the defendant th at cau se or direct th e shipment of the

goods, w e hav e held that v enue is proper in a district from which the defendant caused the unlaw ful

intr oduct ion of goods into com mer ce, ev en though th e phy sical shipm ent comm enced from a different

district. United States v. Taller, 394 F.2d 435, 43 7 -38 (2 d Cir.), cert. denied, 39 3 U.S. 839, 89 S.Ct.

11 5, 21 L.Ed.2d 109 (1 968).

44

The distr ict court, noting t hat Sec. 3 23 7 inclu des as contin uing offenses those crim es th at "inv olv[e]"

tr ansport ation, and tha t the shipment of goods in com m erce plainly inv olv es tr ansporta tion, conclu ded

that Sec. 3 31 (a) defines an offense that is "continuing. " See 659 F.Supp. at 1 49 3-94. Though th isinterpretation m ay be correct, we need not decide in th is case wheth er a Sec. 3 31 (a) v iolation is a

contin uing offense within t he m eaning of Sec. 32 37 , for th e effect of Sec. 32 37 is to make an offense

tr iable "in an y district in wh ich such offense was begun , continu ed, or completed," or "in any district

from, thr ough, or int o which such commerce ... mov es," 1 8 U.S.C. Sec. 32 37 , and th ese prov isions do

not encompass the actions of Hoy v ald and Lav ery that were proven a t th e trial of the present case.

45

Unlike the defendant in United States v. Taller, neither Hoyv ald nor Lav ery was shown to hav e

conduct ed business from th e Eastern District of New York. So far as appears from th e record, th ese

defendants were not present in t ha t distr ict but r ath er operat ed either fr om Beech-Nut 's corporate

headquar ters in Pennsy lv ania, or from its juice manufactu ring operation in Canajoharie in the

North ern District of New York. Thus, though Hoy v ald and Lav ery were shown t o hav e caused the

intr oduct ion of adult erat ed juice into interstate comm erce, th at int roduction was not caused by t hem

from th e Eastern Distr ict. Hence, it does not appear t hat their substan tiv e FDCA offenses wer e begun,

contin ued, or completed in the Eastern Distr ict of New York.

46
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Further, t here was no suggestion in t he record that Beech-Nut ha d any facility for th e fabrication,

stora ge, or shipment of apple juice in th e Eastern District. Insofar a s the juice w as fabricated in N ew

York, that occu rred in th e Nort hern District, a nd th e ju ice w as shipped from that district. Nor was

ther e any proof tha t th e juice in question was shipped "into" the Eastern Distr ict of New York. An d

though t he docum ents rev ealed ma ny destinations for t he juice, including cities in New Jersey,

Connect icut , Verm ont, a nd Massach usetts, ther e was no ev idence that in order to reach its destina tion

from Canajohar ie, any of the juice tr av eled "thr ough " the Eastern District of New York. Thus, th ere was

no proof of a factu al predicate for deemin g th is a prosecut ion "in an y distr ict from, t hr ough, or int owhich [the adult erat ed and m isbranded ju ice] . .. m ov e[d]."

47

The government argues that prosecution in the Eastern District was permissible because Universal and

its brokers wer e located in th e Eastern District, and defendants' subordinat es (1) t elephoned the brokers

to place orders for t he adult erat ed apple juice concentra te, an d (2) m ailed confirm ations for t hese

concent ra te orders into the Eastern District. We disagree, for t hese comm un ications were not part of the

offense of introducing th e offending juice int o comm erce but w ere mer ely prior and preparat ory to that

offense. Whether th e crim e be continuin g or noncontinu ing, v enue is not proper in a distr ict in w hich

the only acts perform ed by th e defendant w ere prepara tory to the offense and not part of the offense.

See, e.g. , United States v . Bozza, 3 65 F.2 d at 2 20-21 (noncontin uing crim e of receipt of stolen goods);

United Stat es v . Dav is, 666 F.2d at 2 00 (continuin g crim e of possession of drug s wit h int ent to

distribute).

48

Bozza inv olved a prosecution in th e Eastern Distr ict of New York for, in ter a lia, t he noncontinuin g

offense of receipt of stolen goods. Th e only connection of th e alleged r eceiv er of the goods with th atdistr ict wa s tha t he ha d gone ther e for an unspecified purpose and ha d made and receiv ed calls th ere to

arr ang e a meeting and negotiate price wit h respect to th e goods; he had then g one from th e Eastern

District to the Southern District, where he act ually received the stolen goods. We concluded that v enue

in th e Eastern District as to th is count w as improper. We noted tha t

49

the ca ses draw a distinction betw een a continuin g offense which is "held, for v enue pur poses, to hav e

been com m itted w herev er the w rongdoer roam ed," ... an d "a single act which occu rs at one t im e and at

one place in which only it m ay be tried, alth ough preparation for its comm ission m ay take place

elsewhere."

50

36 5 F.2d at 22 0 (citations omitt ed). We rejected the gov ernm ent's contention that "the m aking of a

contr act t o receiv e [w]as the 'beginning' of a r eceiv ing," id., concluding instead that a n a ct th at was

mer ely prepara tory to the offense was not part of the offense. See also United States v. Chestnut , 53 3

F.2d at 4 7 (court m ust "decide 'wh en th e defendant's actions hav e progr essed to the point wh ere a court


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can c onfidently conclu de that [th e offense in question] h as been comm itted' ") (quoting United Stat es v.

Bithoney, 472 F.2d 16, 23 (2d Cir.), cert. denied, 412 U.S. 938, 93 S.Ct. 27 7 1 , 37 L.Ed.2d 397 (19 7 3)).

In Bozza, we concluded that

51

[t]o such extent as the issue is doubtful , it is best t o resolve t he doubt in fav or of a constr uct ion w hich

will ensu re tria l w here w it nesses to the r eceiv ing ar e m ore likel y to be present; oth erwise t he m erehappenstance of a telephone call from a district , possibly rem ote, wher e a defendant ch anced to be,

could depriv e him of the protection of the Sixth A m endment .

52

365 F.2d at 221 .

53

The principle th at prepar atory acts alone are insufficient to support v enue applies also to contin uing

offenses. Though Sec. 32 37 tr aces an offense from in ception to com pletion, it s thru st is entir ely forw ar d-

looking; it contain s no retr ospectiv e prov ision establishing v enue in a district in w hich t he defendant

perform ed only acts th at pr eceded the inception of the offense. In United States v . Dav is, 666 F.2d at

1 99 -200, th e defendants w ere prosecut ed in t he Middle Distr ict of Georg ia for possession of nar cotics

with intent to distr ibu te, a cr im e that m ay be a continuing offense within th e m eaning of Sec. 3237 .

They argu ed that v enue on th at count wa s improper because the nar cotics had nev er phy sically

entered that district. The gov ernm ent contended that v enue was proper because the defendants had

ma de arrangem ents while in tha t district for the acquisition of the drug s and had intended that the

drugs be returned to that district for u ltima te distribution at t he street level. The Fifth Circuit r ejectedthe g ov ernm ent's contentions and rev ersed for im proper v enue because th e offense itself had not been

comm itted in that district. Like the Fifth Circuit, we find no auth orization in Sec. 32 37 for v enue in a

distr ict w hose sole connection wit h t he offense in question is th at it w as a site of prepar ation for th e

offense.

54

These principles require th at we r everse the conv ictions of Hoy v ald and Lav ery on th e substant iv e

FDCA count s. The m ailing s and telephone calls into th e Eastern District, r elied on by the gov ernm ent,

were order s for concentr at e that would la ter be u sed in Beech-Nu t's fabr icat ion of apple juice and th us

were m erely preparator y to t he ev entu al int roduction of th e ju ice in to comm erce. Th oug h the orders

for t he adulterat ed concentrat e were u ndoubtedly acts in furth erance of the conspiracy , th ey were not

part of the substant iv e Sec. 33 1 (a) offenses with which Hoy v ald and Lav ery were char ged. Plainly if

the t rial record conta ined evidence only of defendants' orders for t he concentr ate, t he proof would be

insufficient to support a conv iction for introduction of the juice ev entu ally m ade from th e concentr ate.

An d if t he recor d conta ined no ev iden ce of th e order s for t he concen tr at e, it would nonet heless cont ain

sufficient proof of the u nlaw ful int roduction of adulter ated 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 char ged

were not comm itted, or ev en begun, in the Ea ster n District of New York, and that the in clusion of t hose

charg es in th e present prosecution v iolated their constitut ional v enue right s. Accordingly , w e rev erse

their conv ictions on t he substan tiv e FDCA counts, an d rema nd for dismissal of those count s.

56

B. The Chal lenge to the Cha rg e of a Single Schem e or Conspira cy

57

Count 1 of the indictment alleged that all of the defendants had, with intent to defraud, participated in

a single conspiracy to violate th e FDCA's prohibition again st the int roduction of adultera ted and

misbran ded foods in inter state comm erce. Counts 2-21 alleged th at a ll defendants ha d used the m ails in

furthera nce of their frau dulent scheme. Lav ery contends that h e is entitled to reversal of his

conv ictions for m ail frau d and conspiracy because there wa s no proof that ther e was a single ag reem ent

to which both Lav ery and the concentrat e suppliers were parties. He arg ues that the ev idence showed

at best two separa te schemes--one to introduce adulter ated concentra te and th e oth er to intr oduce

adult erat ed juice--and th at since the suppliers' aim wa s to defraud Beech-Nu t, as a m att er of law th ere

could not hav e been a conspiracy between Lav ery and the suppliers. We disagree.

58

The gist of conspiracy is, of cour se, ag reem ent. In order t o support a conv iction for conspiracy , th e

evidence must be sufficient to perm it th e jury to infer th at t he defendant and other allegedcoconspirat ors enter ed into a joint enter prise with consciousness of its genera l na tu re a nd extent . See,

e.g., United Stat es v . Alessi, 638 F.2d 466, 47 3 (2d Cir.1 980). When a conspiracy has been charged, the

alleged coconspirators' actions ma y be assessed in ligh t of their "inter relat ionship and in terdependency "

as well as "the na tu re and durat ion of the enterprise." United Stat es v . Alessi, 63 8 F.2d at 47 3. Th ough

accidental ly para llel action is not enoug h to establish a conspiracy , and a mer e buy er-seller

relat ionship is not necessarily a conspiracy , a defendant m ay be deemed to ha v e agreed to join a

conspiracy

59

if there is som ethin g m ore, som e indication that t he defendant kn ew of and inten ded to fur ther th e

illegal v entu re, t ha t he som ehow encourag ed the illegal u se of the goods or h ad a stake in such u se.

60

United States v. Zambrano, 77 6 F.2d 1091, 1 095 (2d Cir.19 85).

61
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The agr eement n eeded to support a char ge of conspiracy need not be explicit but m ay be tacit. See

Direct Sales Co. v . United States,319 U.S. 7 03, 63 S.Ct. 1 265, 87 L.Ed. 1 67 4 (1 943 ). If buy er and seller

deal in a comm odity t hat h as limited legal uses, the v ery natu re of the comm odity m ay help to

establish th e part ies' knowledge of and int ent "to furt her, promote, and cooperate" in the illega l scheme.

Id. at 7 1 1 , 6 3 S.Ct. at 1 26 9. Other aspects of the dealings between th e parties, such as discounts,

quan tity sales, and a prolonged relat ionship, can al so aid in provin g th at "[t]h ere is m ore than

suspicion, m ore th an kn owledge ..., [t ha t t]h ere is inform ed and interested cooperation." Id. at 7 1 3, 6 3

S.Ct. at 127 0.

62

A sing le conspir acy , r ath er th an m ult iple conspir acies, m ay be found where the coconspir at ors h ad a "

'comm on pu rpose.' " United States v . Heinema nn, 801 F.2d 86, 91 -92 (2d Cir.1 986 ) (quoting Kotteakos

v . Un it ed St at es,328 U.S. 750, 76 9, 66 S.Ct. 12 39, 1 250, 90 L.Ed. 1 557 (1 946 )), cert. denied, 47 9 U.S.

1 094 , 1 07 S.Ct. 1 308, 94 L.Ed.2d 1 63 (1 987 ). Nonetheless, the participants' goals need not be

congr uen t for a singl e conspira cy to exist, so long as their goals ar e not at " 'cross purposes.' " United

States v. Heinemann, 801 F.2d at 9 2 & n. 1 (quoting United States v . Camiel, 519 F.Supp. 12 38, 1 244

(E.D.Pa.1981), aff'd, 689 F.2d 31 (3d Cir.1 982 )); see also United States v . Bagar ic, 706 F.2d 42, 63 (2d

Cir.1 98 3) (coconspirators need not agr ee on details of conspiracy , wh ere essentia l nat ur e of plan is

agreed on), cert. denied, 464 U.S. 840, 1 04 S.Ct. 1 34, 7 8 L.Ed.2d 128 (19 83).

63

The m att er of wh ether t he ev idence has established one conspiracy or m ore th an one is a question of fact

for a properly instru cted jury . E.g., United States v. Alessi, 63 8 F.2d at 47 2. In assessing t he contention

tha t th e ev idence wa s insufficient to support the jur y 's conclu sion th at th ere was a single conspiracy ,

we m ust v iew the ev iden ce a s a whole in th e light m ost fav ora ble to t he gov ernm ent, see Glasser v .United Stat es,315 U.S. 60, 80, 62 S.Ct. 457 , 46 9, 86 L.Ed. 680 (1 942 ); United States v. Geaney , 417

F.2d 1 11 6, 1 1 21 (2d Cir.196 9), cert. denied, 397 U.S. 1028, 90 S.Ct. 127 6, 25 L.Ed.2d 539 (1 97 0), and

uphold the v erdict if, v iewed in th at light, a r ational juror could hav e concluded bey ond a r easonable

doubt (1 ) tha t th e scope of the crim inal ent erprise prov en fits th e pattern of the single conspirac y

alleged in th e indictm ent, an d (2) th at t he defendant participated in the alleged enterprise with a

consciousness of its genera l nat ur e and extent. In rev iewing a v erdict of guil ty , "we m ust defer to the

jury 's resolu tion of the w eig ht of th e ev iden ce an d the credibility of th e w it nesses." Unit ed St at es v .

LeRoy, 687 F.2d 610, 61 6 (2d Cir.19 82), cert. denied, 459 U.S. 11 7 4, 1 03 S.Ct. 823, 7 4 L.Ed.2d 1 019

(1983); see United States v. Tropiano, 418 F.2d 1069, 1 074 -7 5 (2d Cir.1 969 ), cert. denied, 39 7 U.S.

1 021 , 90 S.Ct. 1 26 2, 2 5 L.Ed.2d 530 (1 97 0). In th e present case, we find no error in the instructions on

conspiracy nor any insufficiency in the ev idence.

64

The jury was properly instru cted that it m ust find a single conspiracy am ong Lav ery and the suppliers

in order to conv ict Lav ery ; it was instr uct ed as to certa in char act eristics of m ult iple conspiracies, such

as incompatible purposes; and it was told that it m ust acquit if it found the latter rath er th an the single

conspiracy alleged in the indictment. Th ough Lavery asked the court to instruct th e jury also that he
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could not be found gu ilty of conspiring w ith t he suppliers if the jury foun d that t he suppliers soug ht t o

defra ud Beech-Nut , th e cour t's refusal to giv e that cha rg e was not err or, for th e requested instru ction

does not accu rately reflect th e law. "That certain defendants were eager t o cheat each other for a large

slice of the spoils does not obscur e the u nify ing m eans used by all of them to defrau d the public.. .."

United States v. Finkelstein, 526 F.2d 517 , 522 (2d Cir.1 97 5), cert. denied, 42 5 U.S. 96 0, 96 S.Ct.

17 42, 48 L.Ed.2d 205 (1 97 6).

65

The ev idence was am ple to permit t he jury to infer tha t Lav ery conspired with th e suppliers to

perpetrate a fraud on the public through the distribution of the adulterated juice. The record included

proof of Lav ery 's nonpur suit of any exam inat ion of Univ ersal's blending facility ; his refusal t o heed the

war nings of Beech -Nu t's own sta ff (e.g ., indicating th at the Univ ersal concen trat e w as largely sug ar

syrup) and the warnings of independent scientists (e.g., stating that the apple juice concentrate

conta ined no discernible apple juice); h is directions to his scientific staff to ma ke ana ly sis of th e

concentrat e a low priority item; and h is directions to his purch asing ma nager to ignore th e war nings of

the scientists.

66

Further, it w as plain tha t Lavery knew the Company was pay ing substantially less for th e concentrat e

it boug ht from th ese suppliers than it h ad for th e concentr ate prev iously obtain ed from reputa ble

suppliers; during the period 19 7 9-19 82, Lav ery repeatedly told LiCari and others that the price

Universal was char ging Beech-Nut was 50 cents to a dollar per gallon below the price char ged by Beech-

Nut's form er supplier. This was the v ery reason Lav ery gav e his subordinates for not wa nting t o chang e

suppliers. Lav ery conceded to the Processed Apple Institu te detectiv e in June 1 98 2 th at th e fact th at

Univ ersal's price was "v ery substan tially below the ma rket" could h av e cau sed one to be "suspicious" ofthe quality of the concentrat e. In a ddition, t here w as evidence that Lavery lied to state officials during

their in v estiga tion, seeking to conceal h is knowledge of this ground for suspicion. Th us, in 1 98 3, w hen

he was called to appear before the New York State Department of Agriculture and Markets, Lavery

testified, notwith standing h is past repeated fiscal r emonstrat ions to his subordinates, tha t h e was

unaw are th at th e price Beech-Nut had been pay ing wa s below m arket.

67

In sum, th e ev idence was ample to permit the properly instructed jury to infer that Lav ery and the

concent ra te suppliers were part icipants in a single scheme of passing off bogus substances as 1 00% pur e

fruit juice.

C. Th e Adv ice-of-Counsel Defense

68

In support of the defense that th eir conduct w as not crim inal becau se th ey act ed upon the adv ice of

coun sel, defendants proffered, inter alia , testimony by Hoy v ald, Beech-Nut 's att orney Klein, an d


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Richar d Morey , an att orn ey wh ose firm wa s retained by Klein's firm for it s expert ise in food-and-drug

ma tter s. Thoug h m uch of th e evidence proffered in support of this defense was admit ted, the court

refused to perm it Klein and Morey to testify to the substan ce of the conv ersations between th emselv es to

which Hoy v old w as n ot a party , inc lu ding Klein's stat em ents to Morey as t o adv ice soug ht by Hoy v al d

and Morey 's stat ement s to Klein as to wh at a cts were perm issible; and it exclu ded the a ttorney s' notes

and t ime r ecords. Hoy v ald ur ged the a dmission of the t wo excluded categories of proof as (a) th e best

evidence of what had occurr ed at the tim e the adv ice was being giv en, (b) ev idence of the inform ation

then a v ailable to the attorney s, (c) corroborat ion for Klein's testimony regarding t he adv ice he gav eHoy v ald, (d) proof of prior consistent statem ents ma de by Klein, t o show th at Klein's testimony wa s not

recentl y fabricat ed, and (e) proof of the sta tes of min d of Morey and Klein.

69

The trial ju dge viewed the proffered conv ersations between th e lawy ers as hearsay and as irrelevan t

becau se they would show "th e stat e of m ind of th e law y ers" rat her than the stat e of m ind of Hoy v al d. He

concluded that ev en if they were relev ant, they presented the danger of confusing th e jury as to whose

state of m ind was in issue. He excluded the att orn ey s' tim e records and notes on the gr ound that , giv en

the att orney s' testimony , the docum ents would be cum ulativ e. Though we m ight disagree with the

cour t's cha rac terization of some of this ev idence as hearsay , w e see no rev ersible err or.

7 0

Rule 4 03 of th e Federa l Rules of Evidence giv es th e tria l court broad discretion to exclude ev en relev ant

ev idence if its probativ e v alu e is substan tially outweigh ed by the dang er of confusion of th e issues or if it

would be n eedlessly cu m ula tiv e. Fed.R.Ev id. 403 ; United St at es v . Carter, 801 F.2d 7 8, 83 (2 d Cir.),

cert. denied, 47 9 U.S. 10 1 2, 1 07 S.Ct. 657 , 93 L.Ed.2d 71 2 (1 986 ); see United States v . Martinez, 775

F.2d 31, 3 7 (2d Cir.1 985). In ligh t of the testimony that was admitted, we find no abuse of discretion in

the exclusion of the remaining ev idence as irrelevan t, confusing, and cum ulativ e.

7 1

The ev idence tha t w as admit ted encompassed all elem ents of th e adv ice-of-counsel defense. Th us,

Hoy v ald described the inform ation he had giv en the at torney s and all of the adv ice he had received

from all of the attorney s. The latter included the adv ice from Klein on September 1 , 1 982 , tha t the juice

in th e Secaucus wa rehouse could law fully be shipped to Puerto Rico, and the adv ice on September 1 5,

1 98 2, t ha t Hoy v ald could ship the juice then in t he San Jose plant. Klein too wa s perm itted to describe

all of the adv ice he gav e to Hoy v ald. Klein also testified that he repeatedly consult ed Morey and other

attorney s. The court allowed both Klein and Morey to testify to the fact th at they had repeatedly

conv ersed and th at a dv ice giv en by Klein to Hoy v ald followed conv ersations of Klein wit h Morey .

Hoy v ald was permitted to testify that Morey was the source of the advice he wa s given by Klein on

September 1 an d 15.

7 2

In addition, the court perm itted Klein, dur ing h is testim ony , to use his origin al notes and time r ecords
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to refresh his recollection. Fur ther , th ough it did not adm it th e phy sical records into ev idence, it

allowed exten sive testim ony concerning t he tim e sheets later identified by th e defense as th e most

importan t, and allowed them to be read v erbatim to the jury .

7 3

In lig ht of th e record as a w hole, we find no abuse of discretion in th e tr ial cour t's decision t o exclu de the

substan ce of the Klein-Morey conv ersations and th e att orn ey s' docum ents on th e ground th at t heirreleva nce, if any , wa s outw eighed by their propensity for confusion and their cu mu lativ e natur e.

D. The Conscious-Av oidan ce Instr uct ion

7 4

The trial court instruct ed the jury that it could find that t he gov ernm ent had prov en Hoy v ald and

Lav ery had knowledge tha t th e Company 's apple juice was adulterated if it found th ey had deliberately

av oided gain ing a ctu al knowledge of that fact. Defendant s conten d that t his conscious-av oidance cha rge

was erroneous beca use (1 ) it unfa ir ly undercu t th eir adv ice-of-counsel defen se, a nd (2 ) it per m itted the

jury to conv ict th em without finding that th ey had the requ isit e in tent to comm it th e offenses. We

reject both contentions.

7 5

1 . The Effect on the Adv ice-of-Counsel Defense

7 6

Defendants' claim th at a ny conscious-av oidance cha rg e was imperm issible becau se it wa s inconsistent

with a defen se of relian ce on the adv ice of counsel is unt enable. As descr ibed in gr eater detai l below, t he

Suprem e Court has em phasized tha t an adv ice-of-coun sel defense presupposes the defendant's

solicitat ion of advice in good faith. William son v . United States, 207 U.S. 425, 453, 28 S.Ct. 16 3, 17 3,

52 L.Ed. 27 8 (1 908 ). This Cour t ha s repeatedly approv ed use of a conscious-av oidance cha rge in a

v ar iet y of cases in which there w as a genuine issue as to the defen dan t's good-faith ignor an ce of th e

illegalit y of his conduct. See, e.g., Unit ed Stat es v . Schiff, 801 F.2d 108, 11 2-13 (2d Cir.1986 )

(knowledge of tax laws), cert. denied, 480 U.S. 945, 1 07 S.Ct. 16 03, 9 4 L.Ed.2d 7 89 (1 987 ); United

States v. Heineman n, 8 01 F.2d at 9 3-94 (knowledge of lawfulness of tax av oidance scheme). There is no

logical rea son t ha t t his instru ction m ay not also be used in the pr esence of an adv ice-of-counsel defense,

the t hr ust of wh ich is tha t t he defendant , on the basis of counsel's adv ice, believed his conduct to be

lawful an d thus could not be found to hav e had unlaw ful intent. Th ough a defendant wh o would rely on

an a dv ice-of-counsel defense is requir ed to ha v e disclosed all pert inen t inform at ion in his possession to

his attorney , see, e.g., Williamson v . United States, 207 U.S. at 4 53, 2 8 S.Ct. at 1 7 3; United States v .

King,560 F.2d 122, 1 32 (2d Cir.), cert. denied, 43 4 U.S. 92 5, 98 S.Ct. 404, 54 L.Ed.2d 283 (19 7 7 ),

ther e is no inherent in consistency between his taking th at a ction and his studious av oidance of gaining

other pertinent inform ation. Accordingly , w e see no doctrinal problem with the court's giv ing a

conscious-av oidance instru ction in th is case. Accord United Stat es v . Dunca n, 850 F.2d 1104, 111 8 (6th
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Cir.1 98 8) (wh ere defendant asserts good-faith r eliance on adv ice from ta x account ant , it is appropriate

to "combin[e] the relia nce instru ction with an in struct ion on the adv erse effect 'willful blindness' m ust

hav e on a g ood faith defense to crim inal in tent").

7 7

Nor did th e instruct ion as giv en in th e present ca se unfair ly im pinge on the adv ice-of-counsel defense.

In William son, t he Suprem e Cour t approv ed the following a dv ice-of-counsel instru ction as the m ostfav orable to the defendant tha t m ay be giv en "consistently with r ight," 207 U.S. at 4 53, 2 8 S.Ct. at

1 7 3 :

7 8

[I]f a ma n honestly and in good faith seeks adv ice of a lawy er as to what he m ay lawfully do ..., an d

fully and honestly lay s all the facts before his counsel, an d in good faith an d honestly follows such

advice, r elying upon it a nd believing it to be correct, and only intends that his acts shall be lawful, he

could not be conv icted of crime [sic ] which inv olv es willful and unla wful intent[,] ev en if such adv ice

were an inaccu rate constr uct ion of th e law . But, on the oth er han d, n o man can willfu lly an d

knowingly v iolate th e law and excuse himself from the consequences thereof by pleading t hat he

followed the adv ice of counsel.

7 9

Id.

80

The instruction of the district court in th e present case followed this charg e nearly in ha ec v erba. Thus,

the court stated that the jury mu st decide

81

whether th e defendan t y ou a re consider ing honest ly an d in good faith sought th e adv ice of a la wy er as

to what h e could lawfully do in the futur e; whether he fully and honestly la id all material facts of

which he has knowledge before th e la wy er; and whether , in good faith, h e honest ly follow ed such

advice, r elying upon it a nd believing 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 unla wful

intent, ev en if such adv ice were an inaccurat e construction of the law , if the defendant r elies in good

faith on tha t adv ice.

83


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On the other h and, no man can willfully and knowingly v iolate the law and excuse himself from the

consequences of his conduct by pleading th at h e followed the adv ice of his lawy er.

84

Accordin gly , w e r eject th e contention t hat the conscious-av oidance char ge could n ot be giv en on

account of the a dv ice-of-counsel defense.

2. Th e Element of Intent

85

In order to conv ict a defendant of conspiracy or m ail fraud, th e gov ernm ent m ust prov e that he had th e

specific intent t o comm it th e crime cha rged. See Direct Sales Co. v . United States, 3 1 9 U.S. at 7 1 1 , 63

S.Ct. at 1 26 9 (conspiracy ); United States v . Lanza, 790 F.2d 1015, 1 024 (2d Cir.) (conspiracy ), cert.

denied, 47 9 U.S. 861 , 1 07 S.Ct. 21 1 , 93 L.Ed.2d 14 1 (19 86); United States v. Gelb, 700 F.2d 875, 879

(2d Cir.) (mail fraud), cert. denied, 46 4 U.S. 853 , 1 04 S.Ct. 1 67 , 7 8 L.Ed.2d 1 52 (1 983 ); United States

v . V on Ba rta , 635 F.2d 999, 1 005 n. 1 4 (2d Cir.19 80) (mail fraud), cert. denied, 450 U.S. 998, 1 01

S.Ct. 17 03, 6 8 L.Ed.2d 1 99 (1 981 ). Similar ly , a defendant is guilty of felony v iolation of Sec. 331 (a) if

he has acted with "intent t o defrau d or m islead." 21 U.S.C. Sec. 33 3(b). Hoy v ald and Lav ery contend

tha t th e conscious-av oidance char ge as deliv ered by th e trial court wa s erroneous because it allowed the

jury to conv ict th em without finding the r equ isit e in tent . Althoug h the ch arge cou ld h av e been clearer

in th is respect, we find no rev ersible error.

86

Conscious av oidance is a concept tha t deals most directly wit h kn owledge. A conscious-av oidanceinstru ction is appropriate w hen a defendant claim s to lack "som e specific aspect of knowledge n ecessary

to conv iction but wh ere the ev idence may be constru ed as deliberate ignoran ce." United Stat es v . Lanza,

7 90 F.2 d at 1 022 . Nonetheless, conscious av oidance is not irrelev ant t o intent , for knowledge is one

com ponent of intent. "Without t he knowledge, th e intent c ann ot exist." Direct Sales Co. v . United States,

31 9 U.S. at 7 1 1 , 63 S.Ct. at 1 269 . Thus, even in a conspiracy case, in which specific intent must be

proven , use of a conscious-av oidance instru ction ma y be appropriat e with respect to the defendant 's

knowledge of the objectiv es of the conspiracy , see, e.g., United States v . Gur ar y , 860 F.2d 5 21, 527 & n.

6 (2d Cir.1 988 ); United States v. Lanza, 7 90 F.2d at 1 022 -23 . The same is tru e of mail fraud cases. See,

e.g., United States v. Shareef, 714 F.2d 232, 23 3 (2d Cir.1 983 ); see also United States v . Brien, 617 F.2d

299, 31 2 (1 st Cir.), cert. denied, 446 U.S. 919 , 1 00 S.Ct. 1 854, 64 L.Ed.2d 27 3 (1 980).

87

In contending th at t he tr ial court's conscious-av oidance char ge prejudiced th em w ith r espect to the

element of intent , defendants focus on tw o sentences in t he instr uct ions:

88
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93

In sum, v iewing the cha rge giv en here in its entirety , we conclude that t he requisite mental state for

each element of each cr ime alleged was correctly described, separat ely and repeatedly , to the jury , and

that the ch allenged statem ents did not constitute rev ersible error.

E. Miscellaneous Contentions

94

Defendants make a v ariety of other a rgu ments that we hav e also found to be without m erit. They

include claims that the failure to start trial before November 1 987 v iolated the Speedy Trial Act a nd

that the court err ed in admitting certain ev idence as coconspirator statements.

1 . The Speedy Trial Claim

95

The Speedy Trial Act, 1 8 U.S.C. Sec. 3 1 61 et seq. (the "Act"), prov ides that except for day s that ar e

"excludable" from the computat ion r equired by the Act , a defendant shall be brought t o trial with in 7 0

days after indictment or arraign ment, w hichev er occurs later. Id. Secs. 31 61 (c)(1) and (h). Hoy v ald

and Lav ery contend that the delay between their arr aignm ent in Nov ember 19 86 and the beginning of

trial in Novem ber 19 87 encompassed 1 86 n onexcludable day s, and thus the indictm ent against them

should be dismissed. For t he reasons stated by the district court , see 67 7 F.Supp. 1 1 7 (1 987 ), th is

argu ment is meritless.

96

The Speedy Trial Act provides, inter alia, th at th e district court m ay gran t a continuance on the

request of either side or on its own motion, a nd that the r esulting delay ma y be excluded from th e 7 0-

day computa tion if the court (1 ) finds "tha t th e ends of justice serv ed by th e gran ting of such

contin ua nce outweigh the best interests of the public an d the defendant in a speedy tr ial," and (2) sets

fort h its reasons for t hat finding on the record. Id. Sec. 31 61 (h)(8)(A); see also United States v.

Tunnessen, 763 F.2d 74, 76-78 (2d Cir.1985) (finding must be made before excludable period begins).

Am ong the fact ors the cou rt m ay consider in m ak ing such a fin ding is that

97

the c ase is so unusua l or so complex, due t o the nu mber of defendants, t he na tur e of the pr osecut ion, or

the existence of nov el questions of fact or law , th at it is unr easonable to expect adequat e preparat ion for

pretr ial proceedings or for the tr ial itself with in th e tim e limit s established by th is section.

98

Id. Sec. 31 61 (h)(8)(B)(ii). While t hese prov isions accord the district cour t considerable discretion to
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gra nt a continu ance w hen it is "necessar y to allow fur th er prepara tion" for tr ial, United States v. Rojas-

Contreras, 474 U.S. 231, 23 6, 1 06 S.Ct. 555, 558, 88 L.Ed.2d 537 (19 85), they do not permit unlimited

delay s, and the tr ial court h as the responsibility to ensure t hat the length of an excludable continua nce

is reasonably relat ed to the needs of the c ase, see United States v . LoFranco, 818 F.2d 276, 277 (2d

Cir.1 987 ) (dictum ). All of these standards appear to hav e been m et in th e present case.

99

At th e arraign m ents in Nov em ber 1 986, t he gov ernm ent inform ed the cou rt th at th e ca se was

complex, noting, int er alia, that there w ere eight defendants and 47 0 counts, requiring proof of more

tha n 2 ,500 separa te offenses at tr ial. It pointed out th at its proof would inclu de extensive scientific

ev idence and thousands of docum ents designed to show th at t he juice and concentra te wer e adultera ted

and were shipped in interstate comm erce. The governm ent also stated that counsel for Hoy v ald had

indicated that he anticipated extensive defense motions, and the court noted that a number of the

defendants ha d requested additional tim e to make th eir m otions. In r esponse to an in quiry from th e

court , Hoy v ald's attorney stated, "Your Honor, we ag ree with the Governm ent's representation that it is

a complex case and would wa iv e a Speedy Tr ial Act .... " Lav ery 's counsel joined this representa tion. The

cour t t hereu pon ac cepted the part ies' representat ions and declared the ca se a "com plex case" wit hin t he

mea ning of the Act an d stat ed th at it w ould postpone settin g a tr ial date un til pretr ial proceedings were

well underway .

1 00

Therea fter, defendant s m ade more tha n a dozen m otions, the last of wh ich w ere subm itted on March 3 1 ,

1 987 . Am ong t hese were m otions by Hoy v ald for additional t ime to file other pretrial m otions,

inclu ding m otions to take depositions and to issue letters rogatory . In connect ion w ith th e latt er

motions, Hoy v ald's coun sel represented, inter alia, tha t pretr ial discover y wa s needed of present an dform er employ ees of Beech-Nut 's parent com pany , headquar tered in Switzerland, an d that counsel was

unable at t hat time t o identify with certainty the persons living outside the United States who might be

called as witnesses for Hoyv ald at t rial . Counsel expected to conduct inter v iews and to make

determ inat ions as to wh at depositions and letters rogatory would be needed "ov er th e next sev eral

month s." The last of th e motions filed on or before March 3 1 wer e decided on May 1 1 , 1 98 7 .

1 01

During this motion period, the government made available to defendants some 30,000 documents in

response to th eir requests for discov ery . It subsequent ly serv ed trial subpoenas duces tecum on Beech-

Nut , dema nding t he production of a nu m ber of corpora te records. Beech-Nut's initia l response was a

wholesale refusal to pr oduce on th e groun d of at tor ney -client-pr iv ilege, thoug h it did n ot fi le a m otion t o

quash. Dur ing t his period, Hoyv ald neither m ade any requests for depositions or lett ers rogat ory nor

inform ed th e cour t th at h e had decided not to m ake such requests. Nor did any defendant a dv ise th e

court that he, she, or it w as ready for tr ial.

1 02
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Giving "substantial adv ance notice," 67 7 F.Supp. at 1 22 , th e court scheduled a pretrial conference for

October 1 4, 1 987 . At that conference, for t he first tim e, Hoy v ald moved orally for dismissal of the

indictm ent on the gr ound th at the Speedy Trial Act prov isions had been v iolated, apparently

attem pting to repudiate his earlier a greement that the case was complex. Counsel inv oked a statem ent

by th e cou rt, m ade in the pr ocess of deny ing cer ta in of defendan ts' ear lier m otions, t hat th e defenda nts

were a tt em pting to complicate unn ecessar ily an oth erwise straigh tforw ar d ca se. See 6 59 F.Su pp. at

1 49 0. The court denied Hoy v ald's speedy trial m otion in a n opinion r eported at 6 7 7 F.Supp. 1 1 7 ,

familiarity with which is assum ed. We affirm substant ially for t he reasons stated in th e district court 'sopinion.

1 03

The defendants had agr eed at t he outset that t he case was complex; th ey ha d not adv ised the cour t of

any chang e in that v iew prior to the October 19 87 conference. With or with out th eir agreement, th e

cour t's conclu sion in all t he circu m stances that t he case was com plex with in th e mean ing of the Speedy

Trial Act was not an abuse of discretion. Furt her, sev eral m atters rem ained open. Hoy v ald had

represented to the court in March 1 987 that he needed sev eral m onths just to determine wh at

depositions and letters rogatory he w ould need; he had not adv ised the court of any cha nge in h is

discover y plans. Beech-Nut h ad refused to produce document s pursua nt t o th e gov ernm ent's tr ial

subpoena, a nd its com pliance rem ained unr esolv ed at t he tim e the court, on its own m otion, scheduled

the October 1 987 conference.

1 04

In sum , th e pretrial delay here seem s to hav e been reasonably relat ed to the actu al needs of the case.

Though it would perha ps generally be preferable for th e court initially to set a tenta tiv e trial date, it is

not an a buse of discretion in a case such as this to postpone th e settin g of a date un til t he exten t of theneeded pretrial proceedings becomes clear er, so long as there is no intent or appearan ce tha t u nlim ited

or un due delay will be permitt ed. There is no hint w hatev er in the present record that the court was

willing to tolerate indefin ite delay . It had indicat ed that it would set a tr ia l da te when defen dant s'

pretr ial discover y needs cam e into clear er focus, and it scheduled th e October 19 87 conference on its

own m otion. In al l th e circu m stances, we find no abuse of discretion an d no violation of th e Act.

1 05

2. A dmissibility of th e Coconspirat or Statem ents

1 06

At tr ia l, LiCari testified, ov er defen dan ts' objection, to conv ersat ions he had in 1 983 with two Beech -

Nut employ ees on t he subject of Beech-Nut's sale of adultera ted juice. LiCari, wh o had left Beech-Nut's

employ in Janua ry 1 982 , testified that he had m et Beech-Nut's purchasing m anager Jones at an

industry association m eeting in Januar y or Februa ry of 19 83 , and tha t Jones "said that Mr. Lav ery

had indicated that t hey got away with it, th at th e mat ter wa s dead." LiCari testified that William

Knutsen, m anager of quality control in Beech-Nut's Canajoharie plant, m ade a similar statem ent to


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him. The trial court ov erruled defendants' hearsay objection t o this testimony on th e ground that

Lav ery 's stat ement s to Jones and Knut sen wer e admissions of a party and th us not hear say , see

Fed.R.Ev id. 801 (d)(2)(A), an d that th e stat ement s of Jones and Knut sen to LiCari w ere coconspirator

statem ents in furth erance of the conspiracy , an d thu s not hearsay , see Fed.R.Ev id. 801 (d)(2)(E).

Lav ery contends th at h e is entit led to a new t rial becau se "under no v iew of th e fact s could these merely

narr ativ e statem ents, m ade to a person outside the alleged conspiracy , h av e been u ttered in

furt hera nce of any conspiracy ." We disagree.

1 07

Whether a proffered stat em ent is m ade "in fu rth erance" of a conspir acy is a prelim inar y question of fact

to be determ ined by t he tr ial court by a preponderan ce of the ev idence. See United Stat es v . DeJesus,

806 F.2d 31, 3 4 (2d Cir.1 986 ). The court 's finding that a statement wa s made in furth erance of a

conspiracy is not subject to rev ersal un less it is clearl y erroneous. See United Stat es v . Rahm e, 813 F.2d

31 , 36 (2d Cir.1987). "Where there are two permissible views of the evidence, the factfinder's choice

between th em ca nn ot be clearly erroneous." An derson v . City of Bessemer Cit y , 470 U.S. 564, 574, 105

S.Ct. 1504 , 151 1 , 84 L.Ed.2d 518 (19 85).

1 08

The principal question in t he "in furt hera nce" issue is wheth er th e stat ement promoted, or w as intended

to prom ote, the g oals of th e conspiracy . "[I]dle chat ter" does not m eet th e test, e.g. , United Stat es v.

Lieberman, 637 F.2d 95, 1 03 (2 d Cir.1 98 0); nor does a " 'm erely nar ra tiv e' " description by one

coconspirat or or th e acts of another, United States v. Heineman n, 80 1 F.2d at 9 5 (quoting United Stat es

v . Bir nbaum , 337 F.2d 490, 4 95 (2d Cir.1 96 4)). Coconspirator statements ma y be found to be "in

furthera nce" of the conspiracy with in th e meaning of Rule 801 (d)(2)(E) if they "prompt the listener t o

respond in a way that facilitates the carry ing out of crimina l activ ity ." United States v. Rahm e, 81 3F.2d at 35. Though th e Rule requires tha t both th e declarant an d the party against whom th e

statem ent is offered be m embers of the conspiracy , see, e.g., United States v. Lieberma n, 6 37 F.2d at

1 02, there is no requirement th at t he person to whom t he statement is ma de also be a m ember.

1 09

In th e present case, the tr ial court found tha t th e stat ement s of Jones and Knutsen were in fur ther ance

of the c onspiracy because they wer e designed to "cover up" the m att er of Beech-Nut's distribution of

adult erat ed juice. This finding wa s not clearly erroneous. Alth ough LiCari was not alleged to hav e been

a mem ber of the conspiracy , he was obviously intima tely awa re of the events from 1 97 8 to 19 82 a nd of

Lav ery 's response, or la ck of response, to th e report s that the concentr ate pur cha sed from Univ ersal wa s

adult erat ed. He wa s thus som ewh at a t r isk of being a ccused of com plicity in th ose ev ents. He also had

repeatedly u rged Lav ery and Jones to term inate the purcha ses from Univ ersal, and he may well hav e

been per ceiv ed by Lav ery an d oth er Beech-Nut official s as a risk t o th em . In th e cir cu msta nces, it was

permissible for the court to infer that members of the conspiracy told LiCari that Lavery believed the

ma tter w as finished in an effort to reassure LiCari and encoura ge him to not t o reveal incr iminat ing

inform ation. Thus, the finding tha t t he statements were in furthera nce of the conspiracy was not

clearly erroneous.
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CONCLUSION

1 1 0

We a ffir m Lav ery 's conv iction on th e conspir acy an d m ail frau d count s. We rev erse Hoy v al d's and

Lav ery 's conv ictions on th e substant iv e FDCA coun ts for la ck of v enue in t he Eastern District of New

York a nd rem an d to th e dist rict court for dism issal of th ose coun ts of t he in dictment.

CARDAMONE, Circuit J udge, dissenting in part :

1 1 1

Althoug h I agree t hat the conspir ac y and m ai l fr au d conv ictions should be a ffir m ed, I respec tfully

dissent from t hat port ion of th e majority opinion rev ersing th e substant iv e FDCA conv ictions on th e

grounds of improper v enue. I would hold, as did the distr ict court , th at v iolations of 21 U.S.C. Sec.

33 1 (a) are "continuing offenses," to which the v enue prov isions of 1 8 U.S.C. Sec. 3 23 7 (a) apply.

Because a contin uing offense under Sec. 32 3 7 (a) is tr iable "in any district in wh ich such offense wa s

begun, " venue w as properly la id in th e Ea ster n District of New York w here appella nt s Hoy v al d and

Lav ery began purchasing adulterated and misbranded juice concentrat e. In m y v iew therefore

appella nts' conv ictions on the FDCA offenses should be affirmed.

1 1 2

For pur poses of its venue analy sis, the m ajority agrees that v iolations of Sec. 3 31 (a) are continuing

offenses subject to the v enue prov isions of Sec. 32 37 . It notes th at v enue is properly laid "in a distr ict

from wh ich defendant ca used the un law ful intr oduction of goods into com m erce, ev en though ph y sical

shipment com men ced from a different district." See United Stat es v . Taller ,394 F.2d 435

, 437 -38 (2dCir.), cert. denied, 393 U.S. 839 , 89 S.Ct. 1 1 5, 21 L.Ed.2d 109 (1 96 8)). In construing a continuing

offense, the Suprem e Cour t counsels th at " 'th e localit y of [the] crim e sha ll extend over the w hole area

thr oug h w hich force propelled by an offender opera tes.' " United States v . Cores,356 U.S. 405, 408, 78

S.Ct. 87 5, 87 8, 2 L.Ed.2d 87 3 (1 958) (quoting United States v . Johnson, 323 U.S. 273, 27 5, 65 S.Ct.

249 , 250, 89 L.Ed. 236 (1 944 )).

1 1 3

Here, Lav ery had reason t o question th e auth enticity of the concentra te Beech-Nut wa s purch asing a s

early as October 1 97 8 w hen he r eceiv ed Dr. LiCari's initial m emorandum. Nev ertheless, he continued

to aut horize purch ases of such c oncent ra te from Univ ersal's Long Island wa rehouse, an d did so despite

report s th at th e Univ ersal facilities did not include blending equipmen t needed to m anu factu re the

pure apple concentrat e that Beech-Nut w as allegedly buy ing. Ev en after hav ing received sev eral

adverse reports concerning the qua lity of Beech-Nut juices in early 1 981 --including th e unsolicited

report of the Sw iss laboratory --Hoy v ald and Lav ery continued buy ing t he ersatz concentrat e from their

barga in-basem ent suppliers in the Eastern District. Upon r eceipt of th e concentrate at its upsta te plan t,

Beech-Nut merely added water and Vita min C and ma rketed a product it labeled as containing "1 00%

Fruit J uice, Apple Juice from Concentr ates and Vita m in C." Thu s, appellan ts' FDCA offenses began w ith
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the pur cha se of concentr ate from t he distr ict in w hich those offenses wer e tried. It seems plain t hat

"forces propelled by th e defendants" in t he comm ission of the cr im es that are t he subject of this appeal

did "operat e" in t he Eastern Distr ict of New York.

1 1 4

The analy tical fram ework t hat is set forth in United States v . Reed, 77 3 F.2d 477(2d Cir.1 985),

support s the conclu sion th at t he Eastern Distr ict wa s th e appropriat e v enue for appellant s' tr ial. InReed, we noted that t he Constitut ion requir es "th at t he v enue chosen be determ ined from th e natu re of

the crim e charg ed as well as from the location of the act or a cts constituting it, and tha t it not be

contr ary to an explicit policy underly ing v enue law." Id. at 4 80. Because the Supreme Court has not

enum erat ed th e precise policies underly ing v enue law , we concluded th at "fairn ess to defendants [could

not] be the sole gr ounds for determ ining v enue" and held th at the t est considers "a n um ber of factors--

the site of th e defendant's acts, the elem ents and na tur e of the cr im e, th e locus of th e effect of the

crimina l conduct, and the suitability of each district for a ccurat e factfinding...." Id. at 4 81 .

1 1 5

The m ajority first considers the situs of the defendants' crim inal a cts and concludes th at a ppellants

conduct ed no business from t he 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 r ead Sec. 3 23 7 as requiring

the phy sical presence of defendant s in th e district w here th e contin uing offense was begun . Nothing in

the statut e or t he Constitution m andates that, for v enue to be in t he Eastern District, the intr oduction

of adulterated juice into interstate commerce m ust hav e been cau sed by these appellants from the

Eastern District. It is sufficient tha t ev ery shipment of juice recited in counts 22 thr ough 450 of the

indictment resulted from the appellants' knowing purchase of simulated apple juice concentrate that

was w arehoused in th e Ea ster n District. At the dir ect ion of Lav ery , an d la ter Hoy v al d, Beech-Nu temploy ees regu lar ly placed calls to their suppliers in th e Eastern Distr ict an d rout inely followed-up by

ma iling w ritt en confirm ation orders into th at district. Th e focus of the effect of th is contin uing crim e

was n ationw ide, an d sui tability for fac tfinding was equally as g ood in t he Ea ster n District as in th e

Norther n Distr ict of New York.

1 1 6

Furth er, prior precedents support v enue in th e Eastern district . In United Stat es v . Catt le King Packing

Co., 793 F.2d 232 (10th Cir.), cert. denied, 479 U.S. 985, 107 S.Ct. 57 3, 9 3 L.Ed.2d 57 7 (19 86),

Colorado v enue w as held appropria te for t he tr ial of v arious Federal Meat Inspection Ac t v iolations, 21

U.S.C. Sec. 601 -62 4 (1 982 ), despite the fact that t he record was dev oid of any ev idence (1) t hat t he

adult erat ed meat--shipped from N ebraska to Californ ia--had ev er passed through the forum distr ict,

and (2) th at t he defendant w ho contested the Colorado v enue ha d ever set foot in th e district w here th e

offenses wer e tr ied. Venu e in Colora do wa s upheld based upon ev idence tha t one of the defendant's

subordinat es had m ade a n um ber of telephone calls from Colora do at the direction of his superior in his

efforts

871 F2d 1181 United States V Beech Nut

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