A tale of three districts
on Mar 24, 2023 at 5:37 pm
It might be fairly said that in recent decades venue in criminal cases has not been the hottest topic on the court’s docket. Nevertheless, as the briefs in Smith v. United States emphasize, the criminal venue right was so significant to the Framers that the Constitution addressed it twice. The original Constitution provides in Article III that jury trials in criminal cases “shall be held in the State where the said Crimes shall have been committed.” The Sixth Amendment added that the jury shall be drawn from “the State and district wherein the crime shall have been committed.” The texts thus seem to contemplate that crimes normally occur in a single place, and while that is often true even now, the rise of the telephone and internet, highways and aircraft, as well as complex crimes like conspiracy and RICO, mean that multiple districts may sometimes have valid claims to venue.
The question in Smith is the appropriate remedy when a conviction is set aside on appeal for improper venue: Does the defendant get a new trial in a proper venue, as the United States argues? Or, as Smith and his amici contend, should the disposition be treated as equivalent to an acquittal, with the result that the conviction is set aside, and a retrial barred by double jeopardy?
Underlying Smith is a fish story. Timothy Smith is a computer expert with an interest in fishing. In his home in Mobile, Alabama, he used a software program to obtain and decrypt proprietary information about desirable fishing spots in the Gulf of Mexico. The information was owned by a business called StrikeLines, located in Pensacola – in the Northern District of Florida. However, the company’s computer servers, from which the information was actually obtained were in Orlando, in the Middle District of Florida.
After Smith collected the data, he spoke by phone with the owners of StrikeLines to discuss their computer security and posted on Facebook that he had obtained all of StrikeLines’ fishing data. Smith proposed an exchange in which he would delete the Facebook post if StrikeLines provided him with additional information about certain locations where grouper – evidently a particularly coveted fish – could be found. However, StrikeLines and Smith did not reach an agreement, and StrikeLines contacted law enforcement.
Smith was tried by a jury in the Northern District of Florida – a venue to which he had vigorously objected. He was convicted of stealing trade secrets and extortion and acquitted of unauthorized access of a federally protected computer. He was sentenced to concurrent terms of 18 months in prison, followed by one year of supervised release.
The U.S. Court of Appeals for the 11th Circuit found that venue for the extortion charge was proper in the Northern District of Florida because the victims, StrikeLines’ owners, were there when Smith made his demands. However, the court of appeals reached a different conclusion with regard to Smith’s conviction for theft of trade secrets. Smith took the fishing information from the Southern District of Florida, and his conduct occurred in the Southern District of Alabama. Because there appeared to be no connection to the Northern District of Florida, where the trial took place and from which the jury was drawn, the 11th Circuit found that venue was improper and vacated Smith’s conviction.
In the 11th Circuit’s view, and under the holdings of the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits, the remedy for improper venue was a new trial. Smith contended that if his conviction been vacated for improper venue in the 5th or 8th Circuits, the case would have been treated as an appellate acquittal, and no retrial would have been allowed.
One aspect of Smith’s argument before the Supreme Court is based on the structure of the situation. He marshals substantial precedent, not challenged by the government, that whether venue is proper is a jury question, which is resolved as part of its general verdict. The trial court directed the jury to find Smith not guilty if any element, or venue, was not proved beyond a reasonable doubt. Because the 11th Circuit’s invalidation of his sentence represented a determination that the jury erred on the venue question, there is no justification, Smith insists, for a different remedy simply because the finding that venue is lacking occurs on appeal.
Indeed, Smith argues, there are good reasons – such as the prevention of governmental abuse and oppression – to use the same rule at both stages of litigation. Smith notes that the prosecutor has the opportunity to choose the venue. In addition, it appears undisputed that improper venue is waivable by lack of objection. Accordingly, the issue can be raised on appeal only after the defendant first brought the issue to the attention of the prosecutor and the court. When the mistake is pointed out to prosecutors, yet they refuse to yield, Smith suggests, the law should not bend over backwards to relieve them of the consequences of their own constitutional violation. “Under the Eleventh Circuit’s rule,” Smith emphasizes, “the government may opt to prosecute in a borderline (and ultimately unconstitutional) jurisdiction not just once, but repeatedly, without consequence.”
The federal government counters that other errors related to the jury trial right — such as a denial of the right to counsel or discriminatory jury selection — result in a new trial, even though they, too, mean that a defendant was subjected to unnecessary anxiety and expense. A retrial, the government contends, is a complete remedy. If it occurs, the defendant will have the advantage of having seen all of the prosecution’s evidence and testimony at the first trial. But in any event, it may never occur – for example, if the prosecutors in another district elect not to take it up, or if the government loses interest. Given the press of business, the government insists, there is no reason for prosecutors to knowingly pursue a case in which venue is lacking over the defendant’s objection.
Perhaps the most relevant body of law to which the court will turn are the English and other early precedents addressing the issue. Smith notes that under those precedents a jury in the absence of venue would acquit. Although the government does not deny that such dispositions were often called acquittals, it reads many of them as holding that an acquittal based on improper venue did not bar retrial in the right place. The acquittal is not a full acquittal, this authority reasons, because in light of the bad venue, the trial court never had jurisdiction, and the defendant was never really in jeopardy.
These precedents may well prove to be important to the justices. The English rule that the government claims applies would allow a retrial after a jury acquittal if venue was in fact bad. But the government cannot be arguing that the English rule now applies in unmodified form, which would allow the government to retry the defendant after a jury acquittal. And there seems to be no dispute that in the United States now a venue error is waivable. Because trial in the wrong venue can lead to a valid conviction if there is no objection, it cannot be said that improper venue alone deprives the court of jurisdiction, or means a defendant is not in jeopardy. Accordingly, it is arguable that U.S. law has already departed from the English approach on this issue.
The case attracted several amici, all on Smith’s side, including the National Association of Criminal Defense Lawyers, the National Association for Public Defense, the Cato Institute and the Rutherford Institute, and law professors Brian Kalt and Drew Kershen, the latter of whom is cited extensively in the government’s brief. These briefs reinforce the historical importance of the venue right, and the British abuses which led to it. However, they also contend that a rule allowing retrial not only encouraged prosecutors to forum-shop, but unfairly aided prosecutors in plea bargaining, by increasing the pressure to plead guilty. A defendant who believed that venue was improper would know that even if he was right, he would have to endure trial and appeal before obtaining a trial in the next venue — and even that subsequent trial might or might not be where the law provided that it should be.
Although speculation, it might not be surprising to hear questions from the court that were not addressed in the briefing. One question is whether venue was actually proper. Although factually complicated, at first blush one element of the theft offense arguably related to the Northern District of Florida — specifically, whether Smith knew that the owner of the trade secret would be injured. In any event, although the 11th Circuit held that this was purely an intent element irrelevant to venue, it supports the argument that the United States did not willfully decide to pursue a case in the wrong place.
Another question to watch for is whether venue is a question for the judge or jury. If venue is part of the jury trial right, that may strengthen the argument that it is an acquittal if a jury finds it does not exist or should have so found. But venue is not treated as an ordinary element of the offense, jurisdictional or otherwise, because it is not subject to the proof beyond a reasonable doubt standard, so perhaps it could be determined by a judge. Or the question could be reversed: A justice might ask whether venue is an element of the offense, and thus must be proved beyond a reasonable doubt, like every other fact necessary to establish guilt.