We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
VENUE IS ROCKIN’ DOWN THE HIGHWAY
Venue – whether the court in which your case is being heard in is the proper one – is a poorly understood criminal procedural requirement. It hardly counts for a thing in civil practice, and a lot of people figure it is equally insignificant in criminal law.
They would be wrong. I once had a former Asst U.S. Attorney, a guy who tried some pretty high-profile cases, dismiss my concern about venue in a tax evasion case. The defendant was accused of conspiracy to evade taxes in the Eastern District of Pennsylvania, but he lived in another. For good measure, the indictment included seven “filing false tax return” counts. The problem was that he had prepared the tax returns at his home in Oregon, and mailed them to the IRS at an address in California.
I argued that there was no venue in Pennsylvania for the false return counts. The former AUSA, who was on the defense team, said I was wasting my time. He told me, “Venue’s nothing. No one ever gets counts dismissed over venue.” Two weeks later, the seven false return counts were thrown out for lack of venue. That district court understood venue.
Criminal venue is not a mere affirmative defense. It is a constitutional right under the 6th Amendment. Generally speaking, it’s good to be king. King George III knew that, and understood one of the many perks (besides the cool crown and flashy robe) was that when someone committed a crime against him, he could haul the defendant’s sorry butt halfway around the world to try him. Georgie’s abuse of English criminal venue law was one of the enumerated grievances in the Declaration of Independence, which accused G-III of “transporting us beyond Seas to be tried for pretended offenses.”
When the Constitution was drafted, the conventioneers had not forgotten their ire at the Crown’s criminal venue mischief. They included a provision in Article III, Sec. 2 of the United States Constitution that “Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” And for good measure, the 6th Amendment provides that, “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…”
But as the 2nd Circuit case showed us last week, there are a lot of ways to engage in venue mischief. Tom Holcombe was convicted in the Southern District of New York of violating the Sex Offender Registration and Notification Act for failing to update his registration when he moved from New York to Maryland. SORNA makes it a crime for a sex offender who is required to register and who travels in interstate commerce to knowingly fail to register or update a registration to report the new residence.
Venue is easy to determine when someone is arrested on the corner for selling drugs. It is more complex when a crime is continuing through more than one district. If you are hauling a truckload of cocaine from LA to New York, you can be indicted in any of the 15 districts you drive through. The continuing offenses statute says venue for crimes that begin “in one district and completed in another, or committed in more than one district, may be… prosecuted in any district in which such offense was begun, continued, or completed.”
Tom argued that his SORNA offense did not occur until he got to Maryland and failed to register. But the 2nd Circuit said it began in the Southern District of New York, from which his travel began. “The offense begins where the interstate journey begins,” the court said, “regardless of whether the defendant had already formed an intent to violate the statute when the interstate travel began… Venue turns on “where physical conduct occurred, and not where criminal intent was formed.”
The decision suggests that venue becomes one of those Family Circus “wandering Billy” cartoons. If Billy is born in Bangor, moves to Boston as a child, goes to Baltimore for college, takes a job in Boise, Idaho, and finally ends up in Bakersfield (where he robs a bank), did he commit a Travel Act violation that can be tried in California, Idaho, Maryland, Massachusetts and Maine? He did not intend to rob the bank when mom and dad moved with the toddler to the Bay State, or the freshman matriculated in Maryland, or took a job in Boise. But when he formed the intent is irrelevant, the 2nd said, because an element is interstate travel, and that started when baby Billy crossed the line from Maine into New Hampshire.
The Court should have told the U.S. Attorney to send the whole mess to Maryland. The SORNA violation would have easily been proven there. Instead, as we see all too often, the Court needlessly expended its resources and bent a constitutional right rather than tell the AUSA to go packing.
United States v. Holcomb, Case No. 16-1429 (2nd Cir. Feb. 23, 2018)
– Thomas L. Root