By William T. Easton
As criminal defense attorneys, we are inclined to think of venue as something we want to change. Thus, we occasionally make a motion for a change of venue based on prejudicial pre-trial publicity. To preserve our client’s right to due process, we want to get out of Dodge– preferably as far away as possible–to avoid the pervasive publicity generally concentrated in the locale where the crime occurred. As a result, as defense attorneys we may undervalue the inverse motion, bringing the case back closer to the defendant or where the crime was committed. These instances are usually conspiracy offenses, where our client is far away from the other conspirators, or a fraud case–where the purported financial victim is headquartered in a distant city. Despite legislative and prosecutorial hostility to any interference with prosecutorial convenience, this type of motion has stronger constitutional rooting than a pure due process motion to remove a case to a different district.
The Sixth Amendment provides that the accused shall have the right to “an impartial jury of the State and district wherein the crime shall had been committed,” U.S. Const. amend. VI. Additionally, the Constitution provides that provides that trials “shall be held in the State where the....Crimes shall have been committed,” U.S. Const. art III § 2, cl. 3. Statutorily, Fed.R.Crim.P. 18 provides that venue lies in the district where the crime was committed with due regard for the convenience of the “defendant, any victim, and the witnesses, and the prompt administration of justice.”
Venue should be distinguished from jurisdiction. The principles of federal jurisdiction are entirely separate from the constitutional basis of venue–which is the location of the trial itself. Regarding venue, or “vicinage” as it was called, the founding fathers were intensely concerned with the plight of people being removed far from their homes to stand trial in distant locales. This was a grievance specifically cited in the Declaration of Independence and was expressly inserted–twice–in the Constitution at the passionate insistence of the anti-federalists.
In the modern era, as prosecutorial authorities–especially federal prosecutors–became more powerful and sophisticated, they have pursued multi-jurisdictional crimes with zeal, choosing the venue of these prosecutions according to their own preferences. At the same time, Congress passed statutes allowing the prosecution almost unfettered discretion regarding where to bring the prosecution. These statutes focused on “continuing offenses” such as conspiracy, or on offenses involving the mail/wire transmissions, and allow venue just about anywhere. See 18 USC § 3237(a) allowing prosecution of continuing offenses in any district where “ ....such offense was begun, continued, or completed.” Regarding mail offenses, 18 USC § 3237(a) goes on to state that:
Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.
Such expansive statutes stand in tension to the express constitutional limitations–a tension that both the Second Circuit and the United States Supreme Court have recognized.
In United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181 (2d Cir. 1989) defendants were charged under the Federal Food, Drug, and Cosmetic Act with “[t]he introduction or delivery for introduction into interstate commerce of any food ... that is adulterated or misbranded.” 21 U.S.C. § 331(a). Although they were prosecuted in the Eastern District of New York, their only connections with that venue were that they had placed telephone orders for adulterated apple juice concentrate to suppliers there and had mailed the suppliers confirmations of these orders. Beech-Nut, 871 F.2d at 1190. In Beech-Nut, the Second Circuit held that “these communications were not part of the offense of introducing the offending juice into commerce but were merely prior and preparatory to that offense.” The Beechnut Court further noted that “Whether the crime be continuing or noncontinuing, venue is not proper in a district in which the only acts performed by the defendant were preparatory to the offense and not part of the offense.”
Years later, the United States Supreme Court validated Beech-Nut in United States v. Cabrales, 524 U.S. 1, 6-7 (1998), holding that venue for a money laundering offense that physically took place in Florida did not lie in Missouri, where the money originated as direct proceeds of a drug conspiracy that occurred there despite the government’s efforts to characterize the crime as “continuing.”
Re-asserting the importance of venue after Cabrales, the Second Circuit has emphasized the constitutional and historical anchors of the requirement that a trial be held where the crime occurred rather than a distant locale. “Our constitutional rule–based on its history–requires that venue be linked to the nature of the crime charged and where the acts constituting it took place, and that the accused not be subject to the hardship of being tried in a district remote from where the crime was committed.” United States v. Saavedra, 223 F.3d 85, 88 (2d Cir. 2000). To that end, the Circuit has suggested a four part “substantial contacts test” test for venue that is relatively favorable to the defendant and much more restrictive than the federal venue statutes. The “substantial contacts” test takes into account four main factors: (1) the site of the crime, (2) its elements and nature, (3) the place where the effect of the criminal conduct occurs, and (4) suitability of the venue chosen for accurate factfinding.” United States v. Reed,773 F.2d 477, 481 (2d Cir. 1985).
So if you have a client who is roped into a federal prosecution in a distant jurisdiction, in addition to retaining counsel in that jurisdiction, you should certainly explore a motion to bring the case back to where your client’s alleged crime occurred. Sometimes, there’s no place like home.