Smith v. United States

HISTORICAL UNDERSTANDING OF THE VENUE RIGHT

Smith argues that requiring acquittal when the government fails to prove venue “accords with the text, history, and purpose of the venue right.” Brief for Petitioner, Timothy Smith at 4. According to Smith, defendants’ right to be tried in the district where the crimes they are accused of allegedly occurred is protected by Article III of the United States Constitution, the Sixth Amendment, and Rule 18 of the Federal Rules of Criminal Procedure. Id. at 13, 20. Smith contends that the venue right provides protection from being tried in the wrong place, as opposed to merely being convicted there. Id. at 24–25. The right is therefore violated, Smith asserts, whenever a trial occurs in an improper venue, regardless of the result. Id. at 25. The venue right’s “preconviction focus,” Smith argues, seeks to minimize anxiety and hardship in the trial process itself, and accordingly requires a remedy that prevents future harm brought by subsequent trials. Id. at 29. Consequently, Smith contends that permitting retrials would not uphold the venue right, as it would only multiply the hardship of being tried in the wrong place without effectively deterring violations in the first instance. Id. at 26.

Emphasizing the venue right’s “centrality” at the time of the Founding, Smith claims that the Framers would not permit “serial retrials” in improper venues. Id. at 20. Smith supports his claim by pointing out that the venue right served as a key protection from oppressive government action and was designed to protect people from the hardship of being prosecuted in a remote place before potentially hostile juries. Id. at 21, 30. Smith further argues that the venue right is crucial for ensuring impartial and unbiased convictions by prohibiting the government from selecting favorable forums. Id. at 26. Allowing retrials, Smith asserts, cannot cure this “core injustice” because multiple retrials could occur in multiple improper venues unless the government were to act in good faith. Id. at 27-28. Smith argues that allowing re-prosecution would be unduly expensive, as it would involve costs such as lodging, travel, and transporting witnesses to the trial site. Id. at 25–26, 30. Giving the government a “do-over,” Smith maintains, leaves the government with the same power when it initially violated a defendant’s venue rights, plus a likely increased familiarity with that defendant’s defense strategy and greater bargaining power. Id. at 30.

Smith argues that common law practices at the time of the Founding required acquittal if the government failed to prove venue sufficiently. Id. at 31. For instance, Smith notes, venue was treated as an element that the prosecution must include in the indictment. Id. at 31–32. Smith adds that the prosecution bore the burden of proof that venue was proper. Id. Consequently, Smith asserts that the jury could acquit if the prosecution failed to meet this burden of proof. Id. at 33. Thus, Smith contends that the “original understanding” of the venue right during the Founding era suggests that the government’s failure to prove venue, followed by acquittal, precluded subsequent prosecution for the same offense. Id. at 35. Smith bases this argument on the Double Jeopardy Clause of the Fifth Amendment, which bars the same sovereign from re-prosecuting a defendant who has already been acquitted, convicted, or pardoned for the same offense by the same sovereign. Id.

The United States responds that re-prosecution after an initial trial in the wrong venue was permitted “before, during, and after the framing” of the Sixth Amendment. Brief for Respondent, United States at 12. The United States asserts that this practice remained the controlling rule in English common law during the eighteenth century, referring to commentaries from this time that determinations of improper venue constituted mistrials rather than acquittals. Id. at 12–13. The United States notes that determinations of improper venue were based on limitations preventing courts from addressing criminal conduct that occurred outside the counties where indictments were filed, citing English common law decisions for support. Id. at 14–15. Accordingly, the United States concludes, the Framers would have understood that violations of the venue right could be redressed by retrial. Id. at 13. The United States further observes that a mistrial never precluded subsequent retrial in either English or contemporary American practice. Id.

The United States asserts that this common law practice was adopted into United States jurisprudence at the time of the Founding. Id. at 16. Here, as in England, the United States maintains, determinations of improper venue are considered jurisdictional questions. Id. Accordingly, the United States contends that the majority of federal courts of appeals have recognized that appellate reversals of proper venue do not preclude re-prosecution. Id. at 19. Rather than an element of various crimes, the United States argues that the venue right instead places “an additional requirement on the prosecution.” Id.

The United States argues that Smith’s reference to expense and hardship is not compelling because crimes can occur in a wide range of districts, and defendants have no right to be tried at their places of residence. Id. at 30–31. The United States notes that venue would have been proper in Orlando, which is five hundred miles from Smith’s home, while the trial actually occurred only an hour’s drive away. Id. at 31. The United States also asserts that there is always expense and hardship associated with undergoing retrial, which is nevertheless permissible to cure other constitutional defects. Id. Regarding appellate reversals on grounds other than factual guilt or innocence, the United States concludes, retrial has already been found not to present an unacceptably high risk of the government attempting to wear defendants down notwithstanding their innocence. Id. at 33. On the contrary, the United States argues, since retrials in other venues would generally require the cooperation of other prosecutors’ offices, prosecutors are already incentivized to bring charges in the correct venue in the first instance. Id. at 33. Finally, the United States contends that Smith has not provided any examples of the “serial retrials” he warns of, lessening the likelihood of government abuse. Id. at 34.

CONTEMPORANEOUS CRIMINAL PRACTICE

In addition to his analysis of “history and tradition,” Smith also points to current criminal practice. Brief for Petitioner at 36. Smith notes that federal courts universally require the issue of venue to be submitted to juries whenever it is an issue, and the government bears the burden of proof. Id. at 36–37. Smith further explains that juries today are frequently instructed to acquit defendants if the government fails to meet this burden, citing recent judicial decisions and jury instructions from recent cases. Id. at 37. Moreover, Smith emphasizes that many federal courts of appeals have consequently referred to venue as an “element” of every federal crime. Id. at 38.

While the circuits have split over whether re-prosecution is permitted when evidence of proper venue is found insufficient on appeal, Smith argues, it is undisputed that failure to prove venue at the trial level precludes subsequent prosecution for the same offense. Id. at 38. The result is the same, Smith reasons, whether a jury or an appellate court determines that the government has failed to prove proper venue. Id. at 38–39. Referring to Double Jeopardy precedents that prohibit reconsideration of factual guilt on appeal and in subsequent criminal trials, Smith argues that to rule otherwise in this context would create a “purely arbitrary distinction.” Id. at 39.

The United States counters that the ordinary rule, which permits retrial when defendants obtain appellate reversals of unsatisfied convictions, should apply in this case. Brief for Respondent at 21. This rule, the United States explains, denies the prosecution “the fruits of its transgression” while also vindicating the “societal interest” in subjecting those accused of criminal conduct to trials rather than granting them immunity because of trial errors. Id. at 21–22. The United States further notes that almost every Sixth Amendment violation is remedied by retrial with the previous trial defect removed, rather than an acquittal barring re-prosecution. Id. at 22. The United States explains that this rule applies, for example, in cases of ineffective assistance of counsel, violations of the Confrontation Clause, and conviction by a non-unanimous jury. Id. at 23.

The United States contends that this rule avoids giving defendants a “windfall” that is “not in the public interest.” Id. at 24. Moreover, the United States argues that the purpose behind the venue right does not support a prohibition of re-prosecution. Id. at 28. Specifically, the United States argues that the primary purpose was to ensure that jurors resolve criminal cases based on their own knowledge of crimes and the areas in which they occurred. Id. at 29. This interest, the United States asserts, has since been abandoned in contemporary practice. Id. Additionally, the United States contends that the purpose of enabling the jury to express community opinions, such as by disregarding laws with which it disagreed, has also been abandoned, as jurors can no longer decide questions of law. Id. at 29–30.