Venue is a platypus, a mixed-up animal


At the oral argument in Smith v. United States, there was no dispute that in the tradition of both English and U.S. law, venue was a fact issue presented to juries, and decided as part of their general verdict of guilty or not guilty. Thus, the government conceded, if the jury in this case had acquitted defendant Timothy Smith, that acquittal would have been final for double jeopardy purposes. An acquittal would have barred the government from retrying him even if venue had been lacking. But in fact, the jury convicted Smith of theft of trade secrets, rather than acquitting him, and it was not until Smith appealed to the U.S. Court of Appeals for the 11th Circuit that the lack of venue was found.

In 1978, the Supreme Court ruled unanimously in Burks v. United States that an appellate finding of insufficient evidence equated to a jury acquittal and precluded retrial, overruling contrary prior decisions. On Tuesday, the court seemed to struggle with how Burks applies to venue. As Smith argued, is venue the equivalent of an element of an offense, so that the appellate reversal is on all fours with Burks? Or, as the government contended, is venue distinct from guilt or innocence, and merely a necessary predicate to a valid conviction? In that scenario, a venue error – just like, for example, a biased jury or improper instructions – would only entitle a defendant to a do-over.

Recognizing the court’s interest in originalism, Assistant to the Solicitor General Sopan Joshi, arguing for the government, emphasized that the early cases allowed retrial of both acquittals and vacated convictions when venue was lacking.

But Justice Sonia Sotomayor noted that those cases are of limited relevance as the court no longer allows retrials of acquittals under any circumstances.

Justice Samuel Alito questioned whether the practice at the founding was better captured by Burks or instead by the cases it overruled. Without explicitly proposing to overrule Burks, he suggested that extending Burks to venue would be a further departure from the original meaning of the double jeopardy clause.

As I predicted in my preview, several justices tested the legal character of venue by asking whether it could be decided by a judge and not presented to the jury at all. Justice Ketanji Brown Jackson commented, “[E]lements have to be presented to a jury, and they have to be proven beyond a reasonable doubt. I don’t know that venue has to be presented to a jury in every case.”

Sotomayor observed, “[O]ur case law is very confusing as to what ‘venue’ is, we seem all to agree or people assume it’s not an element of the crime, yet we submit it to the jury, and yet we do put the government to a burden of proof, and yet we don’t want to call it an element. It’s a little bit like that platypus, this mixed-up animal, isn’t it?” Justice Brett Kavanaugh also addressed this point.

The main case on this issue discussed at oral argument was United States v. Jackalow, a Civil War-era piracy decision. Jackalow seemed to hold that such factual questions were for the jury, but it construed a jurisdictional element in the statute’s text, not the Constitution’s venue provisions. If the court is considering holding that venue is not an element, it will have to address the line of cases, not addressed in the briefs, flowing from Apprendi v. New Jersey, which seem to suggest that “any fact necessary” to a judgment must be presented to the jury. While venue does not go to culpability — theft of trade secrets is wrong, whether done in Florida or Alabama — the same is true of jurisdictional elements which require no intent yet must be found by the jury.

Several justices explored another question unaddressed in the briefs – namely, how the problem would be affected by using special verdicts so that the jury’s findings on venue would be explicit. Joshi posited that a defendant could be retried if on a special verdict a jury found the defendant guilty but venue lacking.

Gorsuch suggested that in that case, special verdicts would be requested in every jury trial.

Apparently referring to Black v. United States, Sotomayor noted that the court’s cases discourage special interrogatories in criminal cases, at least over a defendant’s objection.

Here, the court enters a complex field. On the one hand, Samir Deger-Sen – who argued on Smith’s behalf – argued that juries had a right to render general verdicts. As Justice Antonin Scalia wrote in United States v. Gaudin, “Juries at the time of the framing could not be forced to produce mere ‘factual findings,’ but were entitled to deliver a general verdict pronouncing the defendant’s guilt or innocence.” Yet, special findings are now common in the context of, for example, death-penalty cases, in which juries evaluate aggravating and mitigating circumstances, and in non-capital criminal cases, in which sentencing may turn on factual findings such as a loss amount or use of a weapon. Whether venue can be decided as a distinct issue from guilt or innocence may reduce to the question of whether it is an element.

There was also a hint that the issue is premature. In response to a question from Sotomayor, Joshi conceded that Smith has a “live double-jeopardy claim” in the sense that if he is re-charged, he could then plead a double jeopardy claim. The discussion is a reminder that the status quo is that the conviction has been set aside, and no new indictment has been lodged in any district. The government says it may never be. While Smith insists that he is entitled to a judgment on this issue now, a dismissal of the case as improvidently granted or some other narrow disposition is not out of the question, given that Smith may never in fact face the harm of a second prosecution.

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