OPINION ANALYSIS

Unanimous court holds that the remedy for a venue error is retrial

In Smith v. United States, a unanimous court held on Thursday that when an appellate court finds that venue for a criminal trial was improper, the conviction should be vacated with the possibility of a retrial. In other words, those cases should not be dismissed with a retrial barred by double jeopardy.

The defendant in the case, Timothy Smith, was charged with theft of trade secrets, among other things, after he used a software program to obtain proprietary information about desirable fishing spots from a Pensacola, Fla., fishing company. The trade secrets were on servers located in the Middle District of Florida, and the Smith’s conduct occurred at his home in Alabama. Over Smith’s objection, the case was tried in the Northern District of Florida, where the fishing company was located. On appeal, the U.S. Court of Appeals for the 11th Circuit agreed that the venue was improper, but it held that the appropriate remedy was to vacate the conviction, rather than issue a judgment acquitting Smith of any wrongdoing.

The Supreme Court on Thursday upheld 11th Circuit’s ruling. Surveying the court’s prior decisions, Justice Samuel Alito’s opinion noted that the usual remedy for error was a new trial, rather than complete dismissal of the case. The only exception the court had recognized to that rule, Alito observed, was the violation of the right to a speedy trial – which, he explained, the court has categorized as “generically different,” presumably because a delayed trial is hardly remedied by one still further delayed. 

The court found no reason based on text or precedent to treat the venue clause (Article III’s requirement that a trial must be “held in the State where the said Crimes shall have been committed”) or the vicinage clause (the Sixth Amendment’s instruction that a defendant be tried before an “impartial jury of the State and district wherein the crime shall have been committed”) any differently than other constitutional rights. Smith argued that the purpose of those clauses was to prevent undue hardship to a defendant tried “in a distant and improper place.” But the court noted that any retrial is a hardship, yet retrial was the remedy for virtually all reversible errors.

In addition, the court pointed out that the design and operation of the venue and vicinage clauses were not particularly related to minimizing hardship to a defendant. The “State in which a crime is committed may be far from a defendant’s residence,” Alito observed, and “many federal crimes occur in multiple States,” any one of which is a proper venue. Alito cited with approval cases allowing a conspiracy to be prosecuted in any district where any conspirator committed an overt act, and a charge of illegally shipping goods to be tried in any district through which the goods passed. Under these decisions, a defendant could be haled into court in a state where they had never even been.

The court also rejected Smith’s claim that the historical background of the venue and vicinage clauses barred a retrial. Alito noted that, beginning in 1593, English authorities permitted retrial when a defendant’s conviction was set aside based on improper venue. While the court recognized that “the right was highly prized by the founding generation,” it also found no evidence that the Constitution was intended to eliminate the availability of a retrial, citing federal cases as early as 1799 treating retrial as the appropriate remedy.

The court, finally, rejected the argument that double jeopardy considerations warranted a ban on retrials. The problem is this: Venue is presented to the jury and evaluated as part of its general verdict. That is, a jury which finds that venue is improper returns a verdict of “not guilty.”  Acquittals, under cases that the Smith court did not question, are final, and courts may not inquire into the reasons for them in search of a basis to set them aside. But the court found that the same logic did not apply to an appellate determination that venue was improper; in such cases, the legal system does know precisely why a prosecution failed, and, Alito explained, the defect is unrelated to the concerns of the double jeopardy clause – namely, a defendant’s culpability. Unlike a general verdict of not guilty, an appellate reversal for bad venue “is perfectly consistent with the possibility that the defendant is guilty of the charged offense.”

Thursday’s decision raises several interesting possibilities for the future treatment of venue. If, as seems clear from the opinion, venue is not an element of a criminal offense and is unrelated to culpability, it may be possible that it is a legal question for the court. Notwithstanding their importance and factual nature, juries do not decide, for example, whether one of their number should have been excused for cause, or whether they were drawn from a fair cross-section of the community. If most questions about the formation of the jury and conduct of the trial are decided by judges, it is not clear, after Thursday’s decision, why venue should be an exception. Indeed, some courts, such as the Supreme Court of California under its own law, hold that “venue is a question of law for the court, to be decided prior to trial.”

Assuming that at least in some cases, venue is a factual question, one also wonders whether it must be decided as part of the general verdict, given that it is not related to culpability, and that it does not, of its own force, give rise to a double jeopardy bar. Perhaps when a jury evaluates venue it could be asked to render a special verdict: “Guilty,” “Not Guilty,” or “Improper Venue.” Thursday’s decision left untouched the court’s holding in Burks v. United States that appellate reversal based on insufficiency of the evidence triggers double jeopardy. Accordingly, if an appeals court holds both that there is no venue and that the evidence is insufficient, there could be no retrial. Similarly, if a jury found both that the prosecution had not proved the case and that there is no venue, a defendant would be entitled to outright acquittal. But if a jury found that lack of venue was the only infirmity in a prosecution, there seems to be no constitutional reason to bar retrial.