SCOTUS Announces Proper Remedy for Venue and Vicinage Clause Violations Is Retrial in Proper Venue, Not Barring Retrial
by Richard Resch
The Supreme Court of the United States unanimously held that a conviction that is reversed based on a judicial determination that the Venue Clause and the Vicinage Clause of the Sixth Amendment were violated due to a trial held in an improper venue does not adjudicate the defendant’s culpability, and thus, the Double Jeopardy Clause of the Fifth Amendment is not triggered and does not prohibit retrying the defendant in the proper venue.
Timothy Smith is a software engineer and fishing enthusiast from Mobile, Alabama. In 2018, he came across a company called StrikeLines that utilizes sonar equipment to locate private, artificial reefs that people build to attract fish. The company sells the geographic coordinates of the reefs to interested fishing enthusiasts.
Smith apparently objected to this business model because StrikeLines was profiting, unfairly in his opinion, from the work of private reef builders. He used an application to secretly obtain portions of the company’s reef coordinate data and offered it to others online. StrikeLines eventually contacted him, and Smith offered to remove the online data as well as fix the company’s security flaws in exchange for coordinates to “deep grouper spots” that he was unable to get from the company’s website. The negotiations broke down, and Strikelines contacted law enforcement.
He was indicted on various theft of trade secrets charges in the Northern District of Florida. Prior to trial, he moved to dismiss the indictment for lack of venue under the Constitution’s Venue Clause, Art. III, § 2, cl. 3, and the Vicinage Clause, Amdt. 6, arguing that venue was improper because he accessed the data from Mobile (located in the Southern District of Alabama) and the company’s servers were located in Orlando (located in the Middle District of Florida).
The U.S. District Court for the Northern District of Florida denied Smith’s motion to dismiss without prejudice, concluding that disputed venue is a factual issue that needs to be resolved by the jury. Following the jury’s guilty verdict, Smith moved for a judgment of acquittal due to improper venue. See Fed. Rule Crim. Proc. 29. The District Court denied the motion, reasoning that Strikelines suffered the effects of Smith’s crime at its headquarters in the Northern District of Florida. Smith timely appealed.
The U.S. Court of Appeals for the Eleventh Circuit held that venue was indeed improper for the trade secrets charge but concluded that he could be retried in the proper venue. Smith timely appealed again.
The U.S. Supreme Court granted certiorari to answer the question of whether “the Constitution permits the retrial of a defendant following a trial in an improper venue and before a jury drawn from the wrong district.”
The Court began its analysis by reviewing the general Retrial Rule, which provides that the appropriate remedy for prejudicial trial error, in nearly all instances, “is simply the award of a retrial, not a judgment barring reprosecution,” stated the Court. See, e.g., United States v. Morrison, 449 U.S. 361 (1981). The Court noted that it has recognized a single exception to this general rule, and that’s for violations of the Speedy Trial Clause. Barker v. Wingo, 407 U.S. 514 (1972). But for violations of every other Clause of the Sixth Amendment, the Supreme Court has applied the general rule, except for the Vicinage Clause, which it had not yet addressed with respect to this issue. It does so now.
The Venue Clause states that the “Trial of all Crimes … shall be held in the State where the … Crimes shall have been committed.” Art. III, § 2, cl. 3. The Court stated that nothing in “the language that frames this requirement suggests that a new trial in the proper venue is not an adequate remedy for its violation.”
Smith argued that the core purpose of the Venue Clause is to prevent the defendant from having to endure the hardships of a trial in a distant and improper venue. The Court flatly rejected that argument, reasoning that the text of the Clause itself belies the argument that the Venue Clause is in any way concerned with the burden placed on the defendant based on venue. It pointed out that venue lies “in the State where the … Crimes shall have been committed,” not where the defendant resides or where it would be most convenient for the defendant.
For example, if a New York resident were to commit a crime in Hawaii, venue would be in Hawaii where the crime was committed, not New York where the defendant lives, yet the Venue Clause mandates that proper venue is in the state in which the crime occurred (Hawaii which is the less convenient venue in the scenario) – thus establishing that the Venue Clause does not take convenience of the defendant into account, the Court reasoned.
Turning to the Vicinage Clause, the Court stated that it “provides no stronger textual support for [Smith’s] argument.” That Clause guarantees “the right to … an impartial jury of the State and district wherein the crime shall have been committed.” Amdt. 6. According to the Court, the Vicinage Clause just reinforces the coverage of the Venue Clause “because, in protecting the right to a jury drawn from the place where a crime occurred, it functionally prescribes the place where a trial must be held.” United States v. Rodriguez-Moreno, 526 U.S. 275 (1999).
The Court stated that the Vicinage Clause differs from the Venue Clause in two ways: “it concerns jury composition, not the place where a trial may be held, and it narrows the place where the trial is permissible by specifying that jury must be drawn from ‘the State and district wherein the crime shall have been committed.” Amdt. 6. However, neither of these differences supports a different and broader remedy for its violation than awarded for a Venue Clause violation, i.e., retrial in the proper venue, according to the Court.
It explained that Glasser v. United States, 315 U.S. 60 (1942), is the most analogous case to the current one. The Glasser Court determined that retrial is the most appropriate remedy when a defendant is tried before a jury that does not represent a fair cross-section of the community. The Court explained that there “is no reason to conclude that trial before a jury drawn from the wrong geographic area demands a different remedy than trial before a jury drawn inadequately from within the community.”
Failing to convince the Court that the Venue and Vicinage Clauses should not be subject to the general Retrial Rule based on a textual analysis or precedent, Smith turned to a historical analysis to persuade the Court. That argument similarly failed. The Court stated that neither it nor Smith can cite to a single court opinion “barring retrial based on a successful venue or vicinage objection in either the centuries of common law predating the founding or in the early years of practice following ratification.” In fact, the historical record shows that courts permitted retrial following trials in an improper venue or in front of improperly constituted juries. Thus, the Court concluded “we have no reason to doubt that the retrial rule applies.”
Finally, Smith argued that the Double Jeopardy Clause of the Fifth Amendment bars his retrial, reasoning that the Court of Appeals’ ruling that venue was improper on his motion to acquit must lead to the same result as a jury’s general verdict of acquittal, i.e., categorically precluding retrial for the same offense.
Once again, the Court rejected his argument, explaining that a judicial determination on venue is “fundamentally different” than a jury’s general verdict of acquittal. It explained that the Court of Appeals’ ruling on venue “did not adjudicate Smith’s culpability,” in contrast to a jury’s verdict of acquittal. The Court further explained that culpability “is the touchstone” in determining whether retrial is allowed under the Double Jeopardy Clause. Evans v. Michigan, 568 U.S. 313 (2013). Thus, the Court ruled that because the Court of Appeals’ decision did not adjudicate Smith’s culpability, the Double Jeopardy Clause was not triggered, and so, it does not bar his retrial.
Accordingly, the Court affirmed the judgment of the Court of Appeals. See: Smith v. United States, 143 S. Ct. 1594 (2023).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login