I. THE HISTORY OF CRIMINAL VENUE
In early English practice, jurors—both grand and petit—were expected to rely on their knowledge of the community and the defendant when deciding cases.[1] Consequently, it was “impossible for the jurors of one county to try a crime committed in another county or outside the country.”[2] Similarly, grand jurors could only investigate events occurring in their respective counties.[3] This became problematic when murders of British subjects committed in foreign countries or on the high seas could not be prosecuted.[4] Although the notion of the impartial jury became commonplace in the mid-eighteenth century,[5] Parliament nevertheless enacted venue statutes permitting such cases to be investigated and prosecuted in England.[6] For example, in 1534, Parliament enacted a law providing that “[p]ersons accused of committing murder, counterfeiting, and other crimes in Wales may be indicted and tried by juries of adjoining English colonies.”[7]
These English venue provisions proliferated,[8] and their abuse led to the constitutional venue requirements that we have today.[9] In 1769—four years after the Stamp Act and four years before the Boston Tea Party—Parliament enacted a law permitting colonists suspected of treason to be tried in England.[10] Interestingly, one member of the House of Commons, Constantine Phipps, criticized the law as “more calculated to promote rather than prevent rebellion.”[11] Edmund Burke cautioned that when a defendant “is brought hither in the dungeon of a ship’s hold, thence he is vomited into a dungeon on land, loaded with irons, unfurnished with money, unsupported by friends, three thousand miles from all means of calling upon or confronting evidence, where no one local circumstance that tends to detect perjury can possibly be judged of—such a person may be executed according to form, but he can never be tried according to justice.”[12] Proponents of the law responded that “although transporting defendants to London for trial might be to condemn unheard, indictment in America was to acquit without trial.”[13] Given the frequency of grand jury nullification in the colonies, this assertion, while misguided, was not entirely meritless.[14]
As Phipps expected, the American colonists were infuriated, viewing the law as part of King George III’s broader effort to usurp the authority of colonial governments.[15] Legislatures in Virginia and Massachusetts quickly enacted resolutions condemning the law; other colonies followed soon thereafter.[16] The 1769 law eventually “became a serious grievance helping to drive the Americans to rebellion.”[17] In 1772, Parliament enacted another statute, which allowed for the prosecution in England of colonists charged with destroying “the King’s dock yards, magazines, ships, ammunition, and stores.”[18]
Although the laws were never used,[19] the colonists did not forget them. Not only did these provisions spark colonial protest and legislative condemnation,[20] but, in 1774, John Adams recommended that the colonists hold British officials hostage if the venue statutes were ever used against a colonist.[21] That same year, the First Continental Congress denounced the laws, asserting “[t]hat the respective colonies are entitled to . . . the great and inestimable privilege of being tried by their peers of the vicinage.”[22] Then, on July 4, 1776, the Second Continental Congress adopted the Declaration of Independence.[23] Included in the litany of criticisms Thomas Jefferson lodged at King George III was paragraph twenty-one, which rebuked the King “[f]or transporting us beyond Seas to be tried for pretended offenses.”[24] This was an unequivocal reference to the 1769 and 1772 laws.[25]
Seeking to prevent a repeat of the colonists’ experience, the Framers included a criminal venue requirement in Article III of the U.S. Constitution, which reads: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said crimes shall have been committed; but when not committed in any state, the Trial shall be at such Place or Places as the Congress may by Law have directed.”[26] The Sixth Amendment supplements Article III’s venue clause with the vicinage clause, which requires that “[i]n 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.”[27]
These constitutional requirements serve three purposes. First and most prominently, they protect criminal defendants from the difficulties inherent in litigating in a distant forum.[28] Second, they enable local communities to prosecute criminal acts occurring within their jurisdiction and deter those that may occur in the future.[29] Third, they ensure that the defendant is tried in a location where the relevant witnesses and evidence will be most easily accessible.[30]
II. CRIMINAL VENUE IN THE SUPREME COURT
Read together, the venue and vicinage clauses present a fundamental question: how do we determine where a crime is committed? The answer is not as clear as one might think. Obviously, the location of a burglary is easy to ascertain. But continuing multi-district offenses present more difficult challenges. Consider an identity theft case where the victim is in New York and the perpetrator acted entirely from California. Consider an obstruction of justice case where the defendant destroys evidence in Maryland to obstruct a proceeding in Delaware. Consider the analytical challenges one might confront when multiple perpetrators or multiple victims are involved.
By the mid-twentieth century, the Supreme Court realized that a clear framework was needed to decide these questions. Enter United States v. Anderson.[31] In Anderson, the defendant’s number was called by a draft board in Spokane, Washington, in the Eastern District of Washington.[32] The defendant reported to the board and traveled to Fort Lewis—in the Western District of Washington—where the defendant was to take his oath.[33] The defendant refused to take the oath unless he was exempted from the Army’s requirement that inductees be properly vaccinated.[34] No such exemption was provided.[35] The defendant was indicted in the Western District of Washington, charged with violating the Selective Draft Act of 1917.[36] The Anderson Court explained that absent a specific venue provision delineating where venue is proper, venue is ascertained from the locus delicti of the offense—“determined from the nature of the crime alleged and the location of the act or acts constituting it.”[37] The nature of the defendant’s crime was his refusal to submit to the selective service, which did not occur until the defendant refused to take the required oath.[38] This refusal occurred in the Western District, where Fort Lewis was located—not in the Eastern District where the draft board was located.[39] Therefore, venue was proper in the Western District.[40]
Anderson thereby provided a two-prong test for venue analyses.[41] First, a court must identify “the nature of the crime alleged.”[42] Then, the court must identify the “location of the act or acts constituting” the crime.[43] Applying this general framework to a wide variety of statutes and factual scenarios proved difficult, and lower courts formulated additional tests to guide their analysis. For example, in United States v. Reed, the Second Circuit created the “substantial contacts” test, which determines the location of an offense by considering four factors: (1) “the site of the defendant’s acts,” (2) “the elements and nature of the crime,” (3) “the locus of the effect of the criminal conduct,” and (4) “the suitability of each district for accurate factfinding.”[44]
Another common mechanism for applying the locus delicti standard was the “verb test.” The “verb test” looked to the essential verb of the statute to identify the fundamental action the statute prohibited and ascertain where the defendant engaged in that act.[45] For example, in a case involving unlawful campaign contributions, the Second Circuit inquired into where the defendant “caused” “the receiving and accepting of the unlawful contribution.”[46] In a false statements case, the Ninth Circuit asked where the statement at issue was “made.”[47] However, in United States v. Rodriguez-Moreno, the Supreme Court rejected the “verb test,” criticizing it as too restrictive.[48]
In that case, Jacinto Rodriguez-Moreno was hired by a cocaine distributor to find a drug dealer who had stolen thirty kilograms of cocaine.[49] Throughout Rodriguez-Moreno’s search, he held hostage Ephrain Avendano, a “middleman” from the drug deal during which the cocaine was stolen.[50] Although the search began in Texas, Avendano was brought to New Jersey, then New York, and finally into Maryland, as Rodriguez-Moreno and his associates attempted to locate the drug dealer.[51] While in Maryland, Rodriguez-Moreno decided to kill Avendano and held a revolver to Avendano’s neck.[52] Avendano was not shot, however, and he ultimately escaped.[53] Rodriguez-Moreno was charged, tried, and convicted in New Jersey under 18 U.S.C. § 924(c)(1) for “using and carrying a firearm in relation to the kidnapping of Avendano.”[54] On appeal, the Third Circuit, applying the verb test, held that venue was improper in New Jersey because Rodriguez-Moreno never “used” or “carried” the firearm in New Jersey.[55]
The Supreme Court reversed, rejecting the Third Circuit’s application of the verb test: “While the ‘verb test’ certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.”[56] Instead, the Court held that the language, “in relation to any crime of violence,” is “an essential conduct element” of § 924(c)(1),[57] and venue is proper where an “essential conduct element” occurs.[58] Therefore, under the Supreme Court’s current jurisprudence, when analyzing the “nature of the crime alleged,” a court must look to all “essential conduct element[s]” and ignore “circumstance element[s].”[59]
III. SPECIFIC VENUE PROVISIONS
The locus delicti framework is not the only means by which venue can be ascertained. Because Congress initially defines the scope of each criminal statute, Congress may include a provision defining where, for the purposes of the statute, the crime is committed.[60] These clauses are called “specific venue provisions.”[61]
Generally, specific venue provisions permit venue in districts in addition to those in which an “essential conduct element” occurs. For example, some immigration offenses may be prosecuted where an undocumented immigrant is “found,” regardless of where the individual engaged in unlawful conduct.[62] Moreover, some terrorism offenses may be prosecuted in districts other than where “the underlying offense was committed.”[63] Special venue provisions may also authorize prosecution in the location where a crime’s effects are felt.[64] For example, following a circuit split on the question of whether venue is proper for an obstruction of justice offense in the district in which the official proceeding that was sought to be obstructed is ongoing,[65] Congress enacted 18 U.S.C. § 1512(i).[66] This provision stipulates that for violations of § 1512, the witness tampering statute, venue is proper “in the district in which the official proceeding (whether pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred.”[67] Finally, specific venue provisions can permit venue in a specific, pre-determined district. For example, some provisions governing offenses committed outside the continental U.S. allow prosecution in either “the district at which the person enters the United States” or “the District of Columbia.”[68]
Although these statutes may sometimes contradict the venue requirements imposed by the Supreme Court, the law is clear that where a specific venue provision exists, the locus delicti analysis is irrelevant.[69] Courts have asserted that there is a constitutional line that specific venue provisions cannot cross.[70] However, these limits are “unclear” and the Supreme Court has never found a specific venue provision to be unconstitutional.[71] Accordingly, Congress enjoys great authority to provide for venue in fora that fall outside the parameters of the locus delicti analysis and the “essential conduct element” test.[72]
Unsurprisingly, specific venue provisions are a convenient manner by which Congress can resolve venue issues. As recently as 2019, a specific venue provision was offered as a solution to the venue problems that often arise with the Computer Fraud and Abuse Act.[73] Obviously, the lack of judicial scrutiny makes such a provision an attractive option. Moreover, the uniformity that specific venue provisions impose ensures consistency and predictability, avoiding circuit splits and protracted litigation.
Despite these apparent benefits, this approach can be problematic. By requiring an analysis of the “location of the act or acts constituting” the offense, the locus delicti framework ensures that the district of prosecution is connected to the facts of each case.[74] Specific venue provisions can reduce or eliminate this protection, undermining the venue clause’s historical purpose.[75] The ability of courts to transfer venue to another forum cannot justify the excesses of specific venue provisions. Unlike improper venue motions, which question the propriety of the initial forum and are reviewed de novo,[76] trial courts generally have far more discretion to reject a defendant’s effort to transfer venue to another forum.[77] In fact, these motions rarely succeed, even in high-profile cases.[78]
Specific venue provisions also fail to address the underlying problem that renders them necessary: the Court’s locus delicti analysis is unclear and unsuited to the modern age. As the Second Circuit explained in United States v. Saavedra, “in today’s wired world of telecommunication and technology, it is often difficult to determine exactly where a crime was committed, since different elements may be widely scattered in both time and space, and those elements may not coincide with the accused’s actual presence.”[79] This is as true for obstruction of justice offenses (which brought us a circuit split and § 1512(i))[80] as it is for identity theft (for which venue was severely—and in my view, improperly—restricted by the Third Circuit in United States v. Auernheimer).[81] This fundamental issue is not one Congress can resolve. Congress cannot modify the constitutional venue framework of Anderson and Rodriguez-Moreno by statute.[82] And as a practical matter, Congress is unlikely to add specific venue provisions to every federal statute for which they might someday be needed.
The Supreme Court must reconsider its venue framework, recognizing that the proliferation of specific venue provisions evidences the need to adapt its twentieth-century framework to the modern age. An improved locus delicti analysis would retain its fact-specific nature, enhancing the likelihood that the exercise of venue in a district is fair to defendants. Furthermore, the Court should permit limited consideration of the effects of an offense in venue inquiries, understanding that in our complex and interconnected society, criminal defendants can impose profound harm in a jurisdiction without even setting foot there. A well-structured test would reduce judicial confusion over the applicable standard and any resulting litigation would be limited to fact-specific, as-applied challenges. The “substantial contacts” test employed by the Second, Sixth, and Seventh Circuits is a good place to start.[83] Finally, courts should closely scrutinize specific venue provisions that operate outside the locus delicti framework, ensuring that the use of such provisions is procedurally fair to defendants and consistent with the underlying policies of the venue and vicinage clauses.
[1] See William Wirt Blume, The Place of Trial of Criminal Cases: Constitutional Vicinage and Venue, 43 MICH. L. REV. 59, 60 (1944).
[2] Id. at 61.
[3] See id.
[4] See id.
[5] See id. at 60.
[6] See id. at 61-63.
[7] Id. at 62.
[8] See id. at 61-63.
[9] See Paul Mogin, Fundamental Since Our Country’s Founding: United States v. Auernheimer and the Sixth Amendment Right to Be Tried in the District in Which the Alleged Crime Was Committed, 6 U. DENV. CRIM. L. REV. 37, 40-41 (2016).
[10] Id.
[11] Neil L. York, Imperial Impotence: Treason in 1774 Massachusetts, 29 L. & HIST. REV. 657, 659 (2011).
[12] JOHN PHILLIP REID, The Authority to Legislate, in CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 283 (abr. ed. 1991).
[13] Id.
[14] See Roger A. Fairfax, Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV. 703, 722 (2008) (stating that “[c]olonial grand juries famously . . . refused to indict colonial protesters of British laws whose prosecutions were thought to be unfair; for example, in 1765 a Boston grand jury declined to indict the Stamp Act rioters.”).
[15] See York, supra note 11.
[16] See Blume, supra note 1, at 64-65.
[17] REID, supra note 12, at 284.
[18] Blume, supra note 1, at 63.
[19] York, supra note 11 (explaining that “George III did not use the statute as Parliament recommended, either then or five years later, when again encouraged to do so. From 1768 on he had felt that something decisive needed to be done and he probably sympathized with those who believed that, even if no colonist was ever actually prosecuted under the statute, ‘it may awe, it may deter.’”).
[20] See REID, supra note 12, at 284-86.
[21] Id. at 285.
[22] Blume, supra note 1, at 65.
[23] See The Declaration of Independence: How Did it Happen?, NAT’L ARCHIVES: AMERICA’S FOUNDING DOCUMENTS (last visited Apr. 19, 2020), https://www.archives.gov/founding-docs/declaration/how-did-it-happen.
[24] THE DECLARATION OF INDEPENDENCE para. 21 (U.S. 1776).
[25] See Mogin, supra note 9, at 41.
[26] U.S. CONST. art. III, § 2, cl. 3 (emphasis added).
[27] U.S. CONST. amend. XI (emphasis added).
[28] See United States v. Cores, 356 U.S. 405, 407 (1958).
[29] See United States v. Reed, 773 F.2d 477, 482 (2d Cir. 1985); Steven A. Engel, The Public’s Vicinage Right: A Constitutional Argument, 75 N.Y.U. L. REV. 1658, 1661 (2000) (stating that “the vicinage presumption fulfills the jury’s democratic function by allowing the aggrieved community to participate through its representatives on the jury”); cf. United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013) (quoting United States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008)) (explaining that “[c]ommunity-based considerations are inextricably intertwined with deterrence, which aims to ‘prevent[ ] criminal behavior by the population at large and, therefore, incorporates some consideration of persons beyond the defendant.’”).
[30] See Travis v. United States, 364 U.S. 631, 640 (1961) (quoting Cores, 356 U.S. at 407 (Harlan, J., dissenting)).
[31] United States v. Anderson, 328 U.S. 699, 700 (1946).
[32] Id. at 700.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id. at 703.
[38] Id. at 705-06.
[39] Id.
[40] Id. at 706.
[41] See id. at 703.
[42] Id.
[43] Id.
[44] United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985).
[45] See United States v. Rodriguez-Moreno, 526 U.S. 275, 280 n.4 (1999).
[46] United States v. Chestnut, 533 F.2d 40, 46-47 (2d Cir. 1976); see also 18 U.S.C. § 610 (1970) (prohibiting campaign contributions made in the name of another, now codified as 52 U.S.C. § 30122 (2018)).
[47] United States v. Angotti, 105 F.3d 539, 543 (9th Cir. 1997); see also 18 U.S.C. § 1001(a)(2) (2018) (prohibiting false statements statute).
[48] Rodriguez-Moreno, 526 U.S. at 280 (explaining that “[t]he [verb] test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.”).
[49] Id.
[50] Id. at 276-77.
[51] Id. at 277.
[52] Id.
[53] Id.
[54] Id.
[55] Id. at 278.
[56] Id. at 279-80.
[57] Id. at 280.
[58] Id. at 282. (stating that “[w]here venue is appropriate for the underlying crime of violence, so too it is for the § 924(c)(1) offense. As the kidnaping was properly tried in New Jersey, the § 924(c)(1) offense could be tried there as well.”).
[59] Id.
[60] United States v. Trie, 21 F. Supp. 2d 7, 17-18 (D.C. Cir. 1998).
[61] See, e.g., United States v. Petlechkov, 922 F.3d 762, 769 (6th Cir. 2019); United States v. Johnson, 519 F. Supp. 3d 521, 524 (4th Cir. 2007).
[62] 8 U.S.C. § 1329 (2018); see also United States v. Uribe-Rios, 558 F.3d 347, 357 (4th Cir. 2009) (citing United States v. Herrera-Ordones, 190 F.3d 504, 511 (7th Cir. 1999)) (explaining that “[c]ourts have interpreted this provision[ ] [(8 U.S.C. § 1329)] as placing venue for a section 1326 offense in any district where an alien is ‘found,’ whether his presence is voluntary or the authorities have brought him there.”).
[63] See 18 U.S.C. §§ 2339(b), 2339A(a) (2018).
[64] See, e.g., 18 U.S.C. §§ 228(e), 1073 (2018).
[65] Compare United States v. White, 887 F.2d 267, 272 n.3 (D.C. Cir. 1989), with United States v. Cofield, 11 F.3d 413, 417 (4th Cir. 1993).
[66] Jacob T. Wall, Where to Prosecute Cybercrimes, 17 DUKE L. & TECH. REV. 146, 159-60 (2019).
[67] 18 U.S.C. § 1512(i) (2018).
[68] 46 U.S.C. § 70504(b) (2018); see also 21 U.S.C. § 959(d) (2018).
[69] See United States v. Anderson, 328 U.S. 699, 703 (1946) (stating that “[s]ince the statute does not indicate where Congress considered the place of committing the crime to be. . .the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.”).
[70] United States v. Salinas, 373 F.3d 161, 164 (1st Cir. 2004) (explaining that “[i]f the statute under which the defendant is charged contains a specific venue provision, that provision must be honored (assuming, of course, that it satisfies the constitutional minima).”).
[71] See Wall, supra note 66, at 160, n.96 (citing United States v. Saavedra, 223 F.3d 85, 92 (2d Cir. 2000) (stating that “[t]he outer limits on how broadly Congress may define a continuing offense and thereby create multiple venues is unclear.”)).
[72] See United States v. Trie, 21 F. Supp. 2d 7, 17-18 (D.C. Cir. 1998).
[73] See Wall, supra note 66.
[74] See Anderson, 328 U.S. at 703.
[75] See supra Part I.
[76] See, e.g., United States v. Lange, 834 F.3d 58, 69 (2d Cir. 2016); United States v. Lukashov, 694 F.3d 1107, 1119 (9th Cir. 2012).
[77] See, e.g., United States v. Wilcox, 631 F.3d 740, 747 (5th Cir. 2011); United States v. Williams, 897 F.2d 1034, 1037 (10th Cir. 1990).
[78] See, e.g., Skilling v. United States, 561 U.S. 358, 377-99 (2010).
[79] United States v. Saavedra, 223 F.3d 85, 86 (2d Cir. 2000).
[80] See supra, Part III.
[81] See United States v. Auernheimer, 748 F.3d 525, 535-37 (3d Cir. 2014).
[82] See Dickerson v. United States, 530 U.S. 428, 437 (2000) (explaining that “[c]ongress may not legislatively supersede our decisions interpreting and applying the Constitution.”).
[83] See, e.g., United States v. Coplan, 703 F.3d 46, 80 (2d Cir. 2012) (collecting cases); United States v. Castaneda, 315 F. App’x 564, 569-70 (6th Cir. 2009) (stating that “[t]he Sixth Circuit also employs a substantial contacts test to determine venue.”); United States v. Muhammad, 502 F.3d 646, 652-55 (7th Cir. 2007) (applying “substantial contacts” test to drug distribution scheme).
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