Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. H CR 81-20 -- Jesse E. Eschbach, Judge.
Swygert, Senior Circuit Judge, Wood and Cudahy, Circuit Judges.
SWYGERT, Senior Circuit Judge.
The issue presented in this appeal is whether the failure to give a venue instruction in this criminal case constitutes error. We hold that there was no error and affirm the conviction.
The defendant, Joseph George Massa, was indicted on five counts of presenting fraudulent tax returns as claims for tax refunds, in violation of 18 U.S.C. § 287. The indictment alleged that the returns were prepared, signed, and mailed in the Northern District of Indiana.
Evidence at trial established that in 1977 Massa contracted with Local 1014 of the United States Steel Workers, Gary Works, to manage a tax preparation program for union members. Union members brought their financial records to the union hall in early 1978, where the returns were prepared by Massa's trainees. An original and two copies of each return were prepared. The original was filed with the Internal Revenue Service, one copy went to the union member, and one copy was retained by Massa. Massa kept the copies of the 1977 returns at his office in Merrillville, Indiana.
Massa apparently used these 1977 returns to prepare 1979 tax refund returns with altered W-2 forms attached which were purportedly prepared by United States Steel Corporation. Each return bore the name, or a reasonably close approximation of the name, of a Local 1014 member whose 1977 return had been prepared by Massa. Each return bore the true Social Security number of the union member. The signatures on the returns were forgeries.
In April 1980 the Internal Revenue Service detected irregularities in five 1979 returns at the Memphis Service Center. Three of the five returns listed the same Gary, Indiana address; the name on one matched that of a taxpayer who had already filed a return; and one matched the address on an already-filed return. The addresses on all of the questioned returns belonged to people the defendant knew. Two of the addresses used were of friends whose returns had been prepared at Massa's Merrillville office.
The questioned returns had handwritten, handprinted, and typewritten portions. These were compared at trial with exemplars obtained from Massa. A Treasury Department documents examiner testified that the handwritten and handprinted portions of the returns either exactly matched the exemplars or there was a high degree of probability that they were written by the same person. He also stated that the typewritten portions of the questioned returns were made from the same machine as that from which Massa provided an exemplar. Massa stated in an interview with a Treasury Department agent that he generally typed his clients' tax returns in his Merrillville office on an electric Smith-Corona typewriter that he had owned for about two years; that he had never taken the typewriter from Lake County, Indiana; and that he could not remember loaning the typewriter to anyone.*fn1 He also stated that no one with access to the typewriter also had access to the Local 1014 returns.
After a two-day trial, Massa was found guilty on all counts. The district court sentenced him to five-year sentences on Counts I through IV, to run concurrently, and five years probation on Count V.
Massa argues that his conviction should be overturned because the Government failed to prove venue. In the alternative, Massa contends that even if the evidence on venue was sufficient, the district court erred in refusing to tender a venue instruction to the jury.
Proof of venue is an essential element of the Government's case. United States v. Kampiles, 609 F.2d 1233, 1238 (7th Cir. 1979), cert. denied, 446 U.S. 954, 64 L. Ed. 2d 812, 100 S. Ct. 2923 (1980). It may be established either by direct or circumstantial evidence. United States v. Aldridge, 484 F.2d 655, 659 (7th Cir. 1973), cert. denied, 415 U.S. 921, 39 L. Ed. 2d 477, 94 S. Ct. 1423 (1974), and cert. denied, 415 U.S. 922, 94 S. Ct. 1423, 39 L. Ed. 2d 477 (1974). Furthermore, unlike other elements of a crime which must be proved beyond a reasonable doubt, venue need only be proved by a preponderance of the evidence. United States v. Kampiles, 609 F.2d 1233, 1239 (7th Cir. 1979), cert. denied, 446 U.S. 954, 64 L. Ed. 2d 812, 100 S. Ct. 2923 (1980).
Massa was charged with violating 18 U.S.C. § 287*fn2 by presenting fraudulent tax refund claims to the Government. Rule 18 of the Federal Rules of Criminal Procedure requires that prosecution for a crime must occur where the offense was committed.*fn3 Thus, in this case venue lies in either the judicial district where the fraudulent claims were prepared or mailed, or where the claims were presented. The Government here chose to prosecute where it alleged the fraudulent claims were prepared, in Merrillville, Indiana, which is within the Northern District of Indiana.
Viewing the evidence in the light most favorable to the Government, we have no doubt that the Government presented sufficient evidence to establish venue in the Northern District of Indiana. Massa normally prepared returns at his office in Merrillville; the records of the 1977 union returns which must have been used to prepare the 1979 fraudulent returns were stored in Massa's Merrillville office; and the typewriter used on some portions of the fraudulent returns was in the Merrillville office ...