Sixth Amendment:

In 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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

To date, the Supreme Court has applied the Sixth Amendment right to a trial before a jury of “the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law” —known as the vicinage requirement1 —in federal prosecutions only.2 The Court has not considered whether the requirement applies to state-level prosecutions via the Due Process Clause of the Fourteenth Amendment.3

Under the vicinage requirement, the “location of the commission of the criminal acts” determines the propriety of the trial venue.4 The defendant cannot be tried in a federal district if the charged offense was not committed there.5 Thus, a defendant could not be tried in Missouri for money-laundering when the financial transactions that constituted the charged offenses occurred entirely in Florida.6 Although the drug trafficking activity that generated the illicit funds occurred in Missouri, the defendant was charged only in connection with the money laundering, and venue was therefore proper only in Florida.7

If the charged criminal acts occur in multiple districts, the trial may occur in any one of those districts.8 In a prosecution for conspiracy, the accused may be tried in the district where the conspiracy was formed9 or, more broadly, in any district where the accused or a co-conspirator carried out an overt act.10 The offense of obtaining transportation of property in interstate commerce at less than the carrier’s published rates may be tried in any district through which the forbidden transportation is conducted.11 Similarly, where an offense consists of sending illicit material through the mail, the Sixth Amendment permits the trial to take place in any district through which the material passes, although for policy reasons Congress may limit this range of permissible venues by statute.12

The Sixth Amendment does not entitle the accused to a preliminary hearing before being removed for trial to the federal district in which the charged offenses are alleged to have occurred.13 The assignment of a district judge from one district to another, pursuant to statute, does not violate the vicinage requirement—that is, such assignment does not create a new judicial district whose boundaries are undefined or subject the accused to trial in a district not established when the offense with which he is charged was committed.14

For offenses against federal laws not committed within any state, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.15 The place of trial may be designated by statute after the offense has been committed.16

On June 15, 2023, the Supreme Court decided Smith v. United States17 , a case involving whether the Double Jeopardy Clause prevents retrial of a defendant tried and convicted in an improper venue, or by a jury from the wrong district, in violation of the Constitution’s Venue and Vicinage Clauses, respectively.18 The Court distinguished between judicial decisions of improper venue and verdicts of acquittal, noting that the Court in earlier decisions recognized no protection from retrial when a trial terminates “on a basis unrelated to factual guilt or innocence of the offence of which [the defendant] is accused.” 19 Accordingly, the Court found that the Double Jeopardy clause did not bar retrial in a proper venue.

Footnotes

1

See Williams v. Florida, 399 U.S. 78, 93 n.35 (1970) ( “'[V]icinage’ means neighborhood, and ‘vicinage of the jury’ meant jury of the neighborhood or, in medieval England, jury of the county.” ).

2

See, e.g. United States v. Cabrales, 524 U.S. 1, 6 (1998); Johnston v. United States, 351 U.S. 215, 220–21 (1956); see generally 1 Wayne R. LaFave et al., Criminal Procedure § 2.6(b) (4th ed. 2015) (explaining that Supreme Court precedent has not “addressed the incorporation of the Sixth Amendment’s vicinage requirements” and reviewing various strains of lower court caselaw on the issue).

3

See Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004); LaFave, supra note 2, at § 2.6(b); cf. Nashville, Chicago & St. Louis Ry. v. Alabama, 128 U.S. 96, 101 (1888) (holding that the Article III, § 2 provision requiring that a criminal jury trial “shall be held in the State where the said Crimes shall have been committed” applies only in federal courts).

4

United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999); Cabrales, 524 U.S. at 6–7; United States v. Cores, 356 U.S. 405, 407 (1958); Johnston v. United States, 351 U.S. 215 (1956).

5

Salinger v. Loisel, 265 U.S. 224, 232 (1924).

6

Cabrales, 524 U.S. at 3–4.

7

Id. at 7.

8

Rodriguez-Moreno, 526 U.S. at 281–82; United States v. Lombardo, 241 U.S. 73, 77 (1916) ( “Undoubtedly where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done . . . .” ); Palliser v. United States, 136 U.S. 257, 266 (1890) ( “Where a crime is committed partly in one district and partly in another it must, in order to prevent an absolute failure of justice, be tried in either district, or in that one which the legislature may designate . . . .” ); see also Hagner v. United States, 285 U.S. 427, 429 (1932) (reasoning that offense of scheming to defraud a corporation by mail is committed both in the place where the letter is mailed and, by virtue of a delivery presumption, also in the place to which the letter is addressed).

9

Burton v. United States, 202 U.S. 344, 388–89 (1906).

10

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252–53 (1940); Brown v. Elliott, 225 U.S. 392, 401–02 (1912); Hyde v. United States, 225 U.S. 347, 367 (1912); Haas v. Henkel, 216 U.S. 462, 474 (1910).

11

Armour Packing Co. v. United States, 209 U.S. 56, 76–77 (1908).

12

United States v. Johnson, 323 U.S. 273, 274 (1944) ( “Congress may constitutionally make the practices which led to the Federal Denture Act triable in any federal district through which an offending denture is transported.” ).

13

United States ex rel. Hughes v. Gault, 271 U.S. 142, 149 (1926); see also Beavers v. Henkel, 194 U.S. 73, 84–85 (1904) (reasoning that the sufficiency of an indictment may be challenged in the trial venue but generally not prior to removal to that venue); cf. Tinsley v. Treat, 205 U.S. 20 (1907) (distinguishing Beavers and holding that the federal removal statute entitled the accused to at least offer evidence as to lack of probable cause).

14

Lamar v. United States, 241 U.S. 103, 117–118 (1916).

15

Jones v. United States, 137 U.S. 202, 211 (1890); United States v. Dawson, 56 U.S. (15 How.) 467, 488 (1853).

16

Cook v. United States, 138 U.S. 157, 181–83 (1891) (holding that retroactive designation of the trial venue for a crime committed in federal territory did not violate the Sixth Amendment vicinage requirement, the Article III jury trial provision, or the ex post facto clause).

17

Smith v. United States, No. 21–1576 (U.S. June 15, 2023).

18

See generally U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. V; U.S. Const. amend. VI.

19

Smith, slip op. at 15 (citing United States v. Scott, 437 U.S. 82, 99 (1978) (alteration in original)).