dissenting:
I join the majority opinion to the extent it affirms Smith’s convictions on Counts 1-3, 5, 7-9, and 11. However, the record contains absolutely no evidence linking the crimes charged against Smith in Counts, 4, 6, and 10 to the Southern District of New York. Moreover, the legal constructs the majority employs to avoid the consequences of this absence of proof are at odds both with our prior case law and with constitutional venue requirements. As a result, I would reverse the judgment of conviction as to Counts, 4, 6, and 10 for improper venue.
Because, in my view, the majority decision disregards well-settled principles governing venue in criminal cases, it is worth restating the basic rules at the outset. Article III of the Constitution requires that “[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. This command is reinforced by the Sixth Amendment’s requirement that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI. Both the Supreme court and this court have recently confirmed that the locus delicti of the charged offense must be determined “from the nature of the crime alleged and the location of the act or acts constituting it.” United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 1242, 143 L.Ed.2d 388 (1999)(internal quotations omitted); see also United States v. Brennan, 183 F.3d 139, 144-45 (2nd Cir.1999)(citing Rodriguez-Moreno). “in performing this inquiry, a court must initially identify the conduct constituting the offense ... and then discern the location of the commission of the criminal acts.” Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. at 1242-43. Venue must be established separately for each crime with which the defendant is charged. See United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir.1989). Finally, an aider and abettor may be tried either in the district in which the aiding and abetting took place, or in the district where the principal committed the underlying substantive offense. See United States v. Delia, 944 F.2d 1010, 1014 (2d Cir.1991).
As the above standards make clear, the initial focus of our venue inquiry is on the definitions of the specific crimes with which the defendant is charged. Section 894, which forms the basis of Smith’s conviction in Counts 4 and 6, states: “Whoever knowingly participates in any way ... in the use of any extortionate means ... to collect ... any extension of credit” is guilty of the crime of extortionate collection. 18 U.S.C. § 894(a). Section 1951, which forms the basis of Smith’s conviction on Count 10, states: “Whoever in any way or degree obstructs, delays, or affects commerce ... by robbery or extortion” is guilty of a Hobbs Act violation. 18 U.S.C. § 1951(a). both statutes, by their terms, outlaw individual acts of extortion, not schemes or patterns of extortion. Therefore, each act of extortion constitutes a separate violation of these statutes, and a separate crimes, even if the extortionate acts are part of the same extortionate scheme. See United States v. Payseno, 782 F.2d 832, 835-37 (9th Cir.1986)(each act of extortion is a separate offense under section 894(a)). As a result, DeBernardis committed a separate crime each time he used violence or the threat of violence to collect a payment, 18 U.S.C. § 894(a), or affected commerce through extortion, 18 U.S.C. § 1951(a). The same is true of Smith.
It is undisputed that Smith himself never took any action outside of the Eastern District of New York in connection with the specific crimes charged in Counts 4, 6, and 10. Thus, in order to prove that venue was proper in the Southern District of *388New York as to those Counts, the government must prove either: (1) that the specific crimes of extortionate collection that Smith was charged with committing himself were begun, continued, or completed by DeBernardis in the Southern District; or (2) that Smith aided and abetted the specific crimes that DeBernardis committed, at least in part, through actions taken in the Southern District.
Through its silence, the majority concedes that the government failed to prove the first of these two scenarios true. The majority cites to no evidence that DeBer-nardis called Scott or Davis from Manhattan to tell them that Smith was on his way to collect a payment. The majority fails to cite this evidence for good reason: It does not exist in the record. The most that can be said is that there was proof that on some occasions DeBernardis made calls to Scott and Davis from Manhattan, but none of those calls was ever connected to collections Smith performed.
Nor did the government prove that Smith aided and abetted those specific crimes of extortion against Scott and Davis that DeBernardis committed, at least in part, by means of phone calls from Manhattan. In order to prove a defendant guilty of aiding and abetting, “[t]he government must ... prove ... that the defendant himself either acted or failed to act with the specific intent of advancing the commission of the underlying crime.” United States v. Pipola, 83 F.3d 556, 562 (2d Cir.1996). As the majority correctly points out, the government proved that DeBernardis committed individual crimes of extortion against Scott and Davis while in the Southern District. What the majority does not emphasize, however, is that there is absolutely no evidence that Smith even knew about, must less acted to advance, those particular crimes. And without evidence connecting Smith’s Eastern District actions to DeBernardis’s Southern District crimes, it cannot be said that Smith aided and abetted any crimes that occurred in the Southern District.
The majority attempts to avoid the consequences of these failures of proof in two ways. First, it relies on the fact that Smith’s crimes were part of DeBernardis’s “overall scheme,” or set of “criminal endeavors,” some of which included “offense conduct,” in the Southern District. But, as noted above, section 894(a) and 1951(a) do not proscribe “schemes” or sets of “criminal endeavors”; they proscribe individual acts of extortion. While the fact that Smith contributed to DeBernardis’s overall scheme was central to the government’s successful effort to prove proper venue on the conspiracy charged in Count 8, it does not rove that Smith aided and abetted the individual substantive extortion offenses that DeBernardis committed in Manhattan. To find otherwise, as the majority appears to do, flies in the face of the heretofore established rule that even when venue is proper as to a conspiracy charge, the government must separately establish venue for each substantive crime committed in furtherance of that conspiracy. See Beech-Nut Nutrition Corp., 871 F.2d at 1188-91; see also United States v. Corona, 34 F.3d 876, 878-91 (9th Cir.1994)(citing Beechr-Nut).
Perhaps recognizing that the law requires proof that Smith committed or abetted a crime in the Southern District, rather than simply furthered an ill-defined scheme there, the majority next takes the unprecedented step of lumping all of the individual crimes of extortion committed by both DeBernardis and Smith into a single so-called “continuing offense” and charging Smith with it. As its sole support for this novel approach, the majority relies on a handful of decisions from other courts holding that multiple crimes of extortion that are part of the same scheme can be treated as a single offense for statute of limitations purposes.
But this case differs in several disposi-tive ways from those on which the majority relies. First and most obviously, the government is not simply joining many instances of extortion committed by the same defendant in order to ensure that the *389full extent of that defendant’s related wrongdoing does not go unprosecuted; it is attempting to join separate crimes committed by two principals in order to create a single crime that satisfies jurisdictional requirements. Until today, no reported decision by any court has so utilized the continuing crimes construct to confer venue where it would not otherwise exist.
Second, absent application of the majority’s continuing offense theory, the government would not be precluded from punishing the individual instances of extortion that Smith committed outside of the Southern District; it would simply be required to prosecute them in the district in which they occurred. The question is not whether a proper venue exists, but where the proper venue exists.
Finally, and most importantly, application of the majority’s definition of a continuing crime impairs Smith’s constitutional right to be tried “by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const, amend. VI. The majority attempts to minimize the importance of this requirement by pointing out that, unlike the elements of a crime, venue need only be proved by a preponderance of the evidence. But I fail to see how this lower standard of proof in any way exempts the government from complying with the substantive venue standards that the Constitution does (twice) impose on it. In my view, the government should not be allowed to perform and end-run around this fundamental constitutional guarantee by amalgamating several district crimes committed by more than one individual into a single “continuing offense” for the purpose of establishing venue. The contrary rule the majority adopts is of questionable constitutionality, at best.
For these reasons, I respectfully dissent from the majority opinion to the extent it affirms the judgments of conviction on Counts, 4, 6, and 10.