Venue: A Legal Analysis of Where a Federal Crime May Be Tried
CRS Report for Congress
Venue: A Legal Analysis of
Where a Federal Crime May Be Tried
December 28, 2005
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress
Venue: A Legal Analysis of Where a Federal Crime May
Be Tried
Summary
Federal law promises criminal defendants a proper venue, i.e., trial in the district
in which the federal crime was committed. A crime is committed in any district in
which any of its “conduct” elements are committed. Some offenses are committed
entirely within a single district; there they must be tried. Others begin in one district
and are completed in another. They may be tried where they occur unless Congress
has limited the choice of venue for the particular offense. Conspiracy may be tried
in any district in which an overt act in its furtherance is committed, at least when the
commission of an overt act is an element of the conspiracy statute at issue. Crimes
committed beyond the territorial confines of the United States are usually tried in the
district into which the accused is first brought. The court may grant a change of
venue at the behest of the defendant to avoid undue prejudice, for the convenience
of the parties, or for sentencing purposes. This report is available in an abridged
form as CRS Report RS22361, Venue: A Brief Look at Federal Law Governing
Where a Federal Crime May Be Tried, by Charles Doyle, stripped of the footnotes
and most of the citations to authority found in this report. It will be revised as
circumstances warrant. Related reports include CRS Report RS22360, Venue for
Federal Criminal Prosecution: Proposals in the 109th Congress, by Charles Doyle.
Contents
In troduction ..................................................1
Background: The Melding of Venue and Vicinage....................2
Threshold Issues...............................................7
In What District Did the Crime Occur..............................8
Multi-District Crimes...........................................9
Crimes Continuing Through More than One District..............9
Venue in Murder Cases........................................17
Crimes With Individual Venue Statutes...........................18
Venue for Crimes Committed Outside Any District..................20
Venue Transfers..............................................23
For Prejudice............................................23
For Convenience.........................................24
For Plea and Sentencing....................................27
Venue: Legal Analysis of Where a Federal
Crime May Be Tried
Introduction
The Constitution states that those accused of a federal crime shall be tried in the
state in which the crime occurred (venue) by a jury selected from the district in which
the crime was committed (vicinage).
The Trial of all Crimes . . . shall be by Jury . . . 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,
U.S.Const. Art. III, §2, cl.3.
In all criminal prosecutions, the accused shall enjoy the right to . . . 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 . . . .
U.S.Const. Amend. VI.
The Constitution’s demands are deceptively simple: juries must be drawn and
federal crimes must be tried where the crimes occur; jury selection and the place of
trial for crimes that occur beyond the bounds of any state shall be as Congress by law
provides. Rule 18 of the Federal Rules of Criminal Procedure is if anything more
cryptic, “Unless a statute or these rules permit otherwise, the government must
prosecute an offense in a district where the offense was committed.” But what
exceptions exist by statute or rule? What marks the district where the offense was
committed? Suppose the crime appears to have been committed in more than one
district? How does Congress provide for the trial of overseas crimes? When should
the request of an accused for a change of venue be granted?
The Constitution describes venue as the state where trial is proper and vicinage
as the district from which the jury is to be drawn, but with a single recently added
exception the two are generally thought of as one and their dual requirements are1
generally referred to simply as “venue.”
1 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE §301 (Crim. 3d ed. 2000)(“Strictly
speaking the former constitutional provision [Art.III, §2, cl.3] is a venue provision, since it
fixes the place of trial, while the latter [Amend. VI] is a vicinage provision, since it deals
with the place from which the jurors are to be selected. This technical distinction has been
of no importance whatever”), citing inter alia, Orfield, Venue of Federal Criminal Cases,
Professor Wright’s observation may be subject to one small caveat. Following
hurricane devastation in the Gulf states, Congress enacted legislation that authorizes the
federal district courts to relocate outside their districts in emergency situations, 28 U.S.C.
Background: The Melding of Venue and Vicinage
The melding of venue and vicinage is something of an American phenomenon.
Of the two concepts we now think of as venue – where a trial must be held and where
the jury must come from – the common law spoke more often of vicinage. The
theory that the jury in a criminal trial ought to come from the neighborhood in which
the crime was committed pre-dates and is acknowledged in the Magna Charta which
declared that “no freeman shall be taken or imprisoned . . . unless by the lawful
judgment of his peers. . .” and that punishment would not be “assessed but by the
oath of honest men in the neighborhood,” Magna Carta, XXXIX, XX. Of course, the
jury of Runnymede was a far cry from the jury of today. Then and for sometime
thereafter, it was the body whose verdict rested upon the knowledge of its members
– their prior knowledge of the circumstances of the offense, of the character of the
defendant, and of the credibility of the witnesses.2 By the beginning of the colonial
period, however, the English jury had been transformed into an institution more
familiar to us, an impartial panel rather than one necessarily convened with prior
knowledge and thus perhaps with bias. By then, a jury panel could no longer be
challenged simply because none of its members came from the neighborhood where
the offense had occurred; it was enough that the panel was drawn from the county
where the offense had occurred.3
141(b). The provision revives the state (venue)-district (vicinage) distinction. A district
court, relocated in the different state, may try criminal cases arising in its former district
with the consent of the defendant, but regardless of whether it has relocated in another state
or within another district within the same state unless the defendant consents, it must draw
jurors from the district in which the crime occurred, 28 U.S.C. 141(b)(2),(3).
As a general rule, each district court must establish a plan for the random selection of
jurors representing “a fair cross section of the community in the district or division wherein
the court convenes,” 28 U.S.C. 1861, 1863.
Other than section 141 noted above there does not appear to be any authority for a
district court to convene other than in the judicial district to which it is assigned.
2 PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW, 112-24 (5th ed. 1956); II
POLLOCK & MAITLAND, HISTORY OF ENGLISH LAW, 645-56 (2d ed. 1898); 1 STEPHEN,
HISTORY OF THE CRIMINAL LAW OF ENGLAND, 254-65 (1883); HELLER, THE SIXTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, 8 (1951).
3 III BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 359-60 (1768)(“Also, by
the policy of the ancient law, the jury was to come de vicineto, from the neighbourhood of
the vill or place where the cause of action was laid in the declaration; and therefore some
of the jury were obliged to be returned from the hundred in which such vill lay; and, if none
were returned, the array might be challenged for defect of hundredors. . . for, living in the
neighbourhood, they were properly the very country, or pais, to which both parties had
appealed; and were supposed to know before-hand the characters of the parties and
witnesses, and therefore the better knew what credit to give to the facts alleged in evidence.
But this convenience was overballanced by another very natural and almost unavoidable
inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt to
intermix their prejudices and partialities in the trial of the right. And this our law was so
sensible of, that for a long time has been gradually relinquishing this practice. . . At length,
by statute 4 &5 Ann. c.16, it was entirely abolished upon all civil actions, except upon penal
statutes; and upon those also by the 24 Geo.II. c.18. the jury being now only to come de
corpore comitatus, from the body of the county at large, and not de vicineto, or from the
In turbulence that lead to the American Revolution, grievances over venue
seemed to roil as much as those over vicinage. Unrest in Massachusetts spurred the
British Parliament to enact measures under which misconduct in the colonies might
be tried in England or Canada. This denied the colonial suspect the advantages of
both venue and vicinage, since jurors for a trial in London or Halifax were not likely
to be drawn from a county in any of the thirteen colonies. The famous protest of the
Virginia House of Burgesses spoke candidly of disadvantages of the change in venue
– the hardships faced while awaiting trial and the difficulty of securing the attendance
of witnesses. It spoke somewhat more cryptically of the disadvantages of the loss of
vicinage – “not to await his Trial before a . . . Jury . . . from a Knowledge of whom
[he] is encouraged to hope for speedy Justice.”4 Yet when the First Continental
Congress later echoed the same objections it did so in terms more clearly grounded
in both vicinage and venue:
Whereas . . . it has lately been resolved in Parliament, that by force of a statute
made in the thirty-fifth year of the reign of king Henry the Eighth, colonists may
be transported to England, and tried there upon accusations for treasons and
misprisions, or concealments of treasons committed in the colonies. . . Resolved,
That the following acts of Parliament are infringements and violations of the
rights of the colonists; and that the repeal of them is essentially necessary, in
order to restore harmony between Great Britain and the American colonies . . .
12 Geo.3, ch. 24 . . . which declares a new offense in America, and deprives the
American subject of a constitutional trial by jury of the vicinage, by authorizing
the trial of any person charged with the committing [of] any offense described
in the said act, out of the realm, to be indicted and tried for the same in shire or
county within the realm . . . 1 JOURNAL OF THE CONTINENTAL CONGRESS 69 (Oct.
particular neighbourhood ”); Blume, The Place of Trial of Criminal Cases: Constitutional
Vicinage and Venue, 43 MICHIGAN LAW REVIEW 59, 60 (1944); see generally, Kershen,
Vicinage, 29 OKLAHOMA LAW REVIEW 801 (1976)(Pt.I); 30 OKLAHOMA LAW REVIEW 73
(1977)(Pt.II).
4 Letter dated May 17, 1769, to His Royal Majesty, George III, from the Virginia House of
Burgesses, JOURNALS OF THE HOUSE OF BURGESSES 1766-1769, 216 (“When we consider,
that by the established Laws and Constitution of this Colony, the most ample Provision is
made for apprehending and punishing all those who shall dare to engage in any treasonable
Practices against your Majesty, or disturb the Tranquility of Government, we cannot,
without Horror, thinks of the new, unusual, and permit us, with all Humility, to add,
unconstitutional and illegal Mode, recommended to your Majesty, of seizing and carrying
beyond Sea, the Inhabitants of America, suspected of any Crime; and of trying such Persons
in any other Manner than by the ancient and long established Course of Proceeding: For,
how truly deplorable must be the Case of a wretched American, who, have incurred the
Displeasure of any one in Power, is dragged from his native Home, and his dearest
domestick Connections, thrown into Prison, not to await his Trial before a Court, Jury, or
Judges, from a Knowledge of whom is encouraged to hope for speedy Justice; but to
exchange his Imprisonment in his own Country, for Fetters amongst Strangers? Conveyed
to a distant Land, where no Friend, no Relation, will alleviate his Distresses, or minister to
his Necessities; and where no Witness can be found to testify [to] his Innocence; shunned
by the reputable and honest, and consigned to the Society and Converse of the wretched and
abandoned; he can only pray that he may soon end his Misery with his life”).
On the other hand, when it came time to list colonial complaints against the
British Crown in the Declaration of Independence, that document mentioned only
venue:
. . . “He [the King of Great Britain] has combined with others to subject us to a
jurisdiction foreign to our constitution, and unacknowledged by our laws; giving
his Assent to their acts of pretended Legislation:
* * *
For transporting us beyond Seas to be tried for pretended offenses.
The men who drafted the Constitution apparently never seriously questioned the
proposition that became Article III, §2, cl.3 (“In trial of all Crimes . . . shall be by
Jury; and such Trial shall be held in the State where the said Crimes shall have been
committed. . .”), for it was feature of each of the preliminary proposals – as language56
in the Pinckney Plan, as well as in the Hamilton Plan, and in all probability figured
in the formulation of the New Jersey or Patterson Plan.7 But vicinage was nowhere
mentioned.
Some of the delegates to the various states conventions called to ratify the
Constitution objected to the omission,8 and when the First Congress convened James
Madison attempted to meet the objection. He proposed an amendment to appear not
5 III FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, 600 (1966) (“All
Criminal offenses, (except in cases of impeachment), shall be tried in the State where they
shall be committed – the trial shall be open & public & be by Jury–”).
6 III FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, 626 (1966) (“All crimes,
except upon impeachment, shall be tried by a Jury of twelve men; and if they shall have
been committed within any State, shall be tried within such State . . . ”).
7 Farrand quotes the proposals of Convention delegate Roger Sherman of Connecticut
which Farrand believed “more probably present[ed] the ideas of the Connecticut delegation
in forming the New Jersey Plan,” III FARRAND, RECORDS OF THE FEDERAL CONVENTION OF
1787, 615 (1966). Sherman proposed, inter alia, “That no person shall be liable to be tried
for any criminal offence, committed within any of the United States, in any other state than
that wherein the offence shall be committed, nor be deprived of the privilege of trial by a
jury, by virtue of any law of the United States,” ID. at 616.
8 II ELLIOT, DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 109-10 (Holmes-
Mass.)(“It is a maxim universally admitted, that the safety of the subject consists in having
a right to a trial as free and impartial as the lot of humanity will admit of. Does the
Constitution make provision for such a trial? I think not; for in a criminal process, a person
shall not have a right to insist on a trial in the vicinity where the fact was committed where
a jury of the peers would, from their local situation, have an opportunity to form a judgment
of the character of the person charged with the crime, and also to judge of the credibility
of the witnesses. There a person must be tried by a jury of strangers; a jury who may be
interested in his conviction; and where he may by reason of the distance of his residence
from the place of trial, be incapable of making such a defence as he is, in justice, entitled
to, and which he could avail himself of, if his trial was in the same county where the crime
is said to have been committed”); see also, ID. at 400 (Treadway -N.Y.); III ELLIOT,
DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 545 (Henry-Va.); ID. at 569
(Grayson-Va.); IV ELLIOT, DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 150
(McDowall- N.C.).
as a Sixth Amendment in a Bill of Rights but in Article III of the Constitution under
which criminal trials would “be by an impartial jury of freeholders of the vicinage.”9
Although the provision passed the House, the Senate would not agree perhaps
because the laws of some of the states permitted jurors to be drawn from anywhere
within the state.10 The language upon which the two Houses ultimately agreed is
found in the Sixth Amendment today, “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.”11 Story explained the
compromise as an effort to ensure that the accused would not be unfairly
inconvenienced nor the beneficiary of too parochial a jury.12
By the time the Amendments were sent to the states for ratification, the
geographical distinction between venue (state in which the crime occurs) and
vicinage (district in which the crime occurs) made little difference, for Congress had
established the federal courts with a single district for each state, except in Virginia
and Massachusetts where separate districts were created for portions of those states
which would soon become the states of Kentucky and Maine.13 Congress preserved
a semblance of common law vicinage distinct from venue, however, when it decreed
9 1 ANNALS 436 (1789).
10 Letter from James Madison to Edmund Pendleton, dated September 14, 1789,“The Senate
have sent back the plan of amendments with some alternations which strike in my opinion
at the most salutary articles. In many of the States juries even in criminal cases, are taken
from the State at large – in others from districts of considerable extent – in very few from
the County alone. Hence a dislike to the restraint with respect to vicinage, which has
produced a negative on that clause, ”12 THE PAPERS OF JAMES MADISON 402.
11 1 Stat. 98 (1789).
12 II STORY, COMMENTARIES ON THE CONSTITUTION §1781 (1833)(“It is observable, that
the trial of all crimes is not only to be by jury, but to be held in the State where they are
committed. The object of this clause is to secure the party accused from being dragged to
a trial in some distant State, away from his friends, and witnesses, and neighborhood, and
thus to be subjected to the verdict of mere strangers, who may feel on common sympathy,
or who may even cherish animosities or prejudices against him. Besides this, a trial in a
distant State or territory might subject the party to the most oppressive expenses, or perhaps
even to the inability of procuring the proper witnesses to establish his innocence. There is
little danger, indeed, that Congress would ever exert their power in such an oppressive and
unjustifiable a manner. But upon a subject so vital to the security of the citizen, it was fit to
leave as little as possible to mere discretion. By the common law, trial of all crimes is
required to be in the county where they are committed. Nay, it originally carried its jealousy
still further, and required that the jury itself should come from the vicinage of the place
where the crime was alleged to be committed. This was certain a precaution which,
however, justifiable in an early and barbarous state of society, is little commendable in its
more advance stages. It has been justly remarked, that in such cases to summon a jury
laboring under local prejudices is laying a snare for their consciences; and though they
should have virtue and vigor of mind sufficient to keep them upright, the parties will grow
suspicious, and indulge other doubts of the impartiality of the trial”).
13 1 Stat. 73 (1789).
that in federal capital cases trial had to be held in the county in which the offense
occurred, if possible, and jurors had to be drawn from there in any event.14
The county venue requirement in capital cases survives to this day,15 but the
distinct vicinage component that insisted that jurors be drawn from the county of the
crime was repealed in 1862.16 Thereafter, other explicit vicinage components,
distinct from constitutional venue and vicinage requirements surfaced occasionally
when Congress divided districts into divisions.17 The Judicial Code revision of 1911
eliminated the explicit statutory basis for all of these,18 but up until 1966 divisional
vicinage practices continued in some districts under the umbrella of the venue
provisions of Rule 18 of the Federal Rules of Criminal Procedure.19 When the
division clause was eliminated from Rule 18 in 1966 at least one commentator
concluded that for purposes of federal law the venue has consumed vicinage;20 the
14 1 Stat. 88 (1789)(“in cases punishable with death, the trial shall be held in the county
where the offence was committed, or where that cannot be done without great
inconvenience, twelve petit jurors at least shall be summoned from thence”). Early federal
capital offenses included piracy, treason, murder, and counterfeiting, 1 Stat. 112-14 (1789).
15 18 U.S.C. 3235.
16 12 Stat. 588 (1862).
17 E.g., 20 Stat. 102 (1878)(“All offenses committed in either of the subdivisions shall be
cognizable and indictable within said division. . . All grand and petit jurors summoned for
service in each division shall be residents of such division”); see also, 21 Stat. 64 (1880),
18 36 Stat. 1169 (1911).
19 F.R.Crim.P. 18 (1964 ed.)(“. . . if the district consists of two or more divisions the trial
shall be had in a division in which the offense was committed”).
20 Kershen, Vicinage, 30 OKLAHOMA LAW REVIEW 3, 65, 72, 74-5 (1977)(“After 1911, so
far as Congress was concerned, the concept of vicinage had disappeared as an independent,
significant concept. . . Hence, after 1911, the federal courts, just like Congress, totally
identified the geographical source from which petit jurors were summoned with the place
at which the trial was being held. For the courts, too, the concept of vicinage had been
subsumed within the concept of venue . . . In light of the legislative and decisional history
of the concepts of venue and vicinage. . . it is understandable that Professor Wright could
say . . . that the distinction between venue and vicinage is a ‘technical distinction having no
importance.’ It is also understandable that Professor Blue could write as early as 1944: ‘The
tendency of modern law is to think of the place of trial rather than the place from which the
jury must be summoned. From vicinage to venue has been the pattern of development, and
the transition is about complete.’ With the deletion of the divisional venue in 1966 . . . the
transition was complete”), quoting, I WRIGHT, FEDERAL PRACTICE AND PROCEDURE §301,
at 579 (Crim. 1969) and Blume, The Place of Trial of Criminal Cases: Constitutional
Vicinage and Venue, 43 MICHIGAN LAW REVIEW 59, 91 (1944); see also, United States v.th
Wipf, 397 F.3d 677, 685-86 (8 Cir. 2005)(the Sixth Amendment does not require
summoning jurors from the division of the district in which the crime occurred); United
States v. Miller, 116 F.3d 641, 659 (2d Cir. 1997)(“The [Sixth] Amendment’s guarantees
of an impartial jury ‘of the State and district’ in which the crime was committed does not
require a narrower geographical focus than the district itself”).
For arguments in favor of recognizing a community right to vicinage see, Engel, The
Public’s Vicinage Right: A Constitutional Argument, 75 NEW YORK UNIVERSITY LAW
questions of where have become one. In what district[s] is venue (venue/vicinage)
proper?
Threshold Issues
Before a court decides whether venue in a particular district is proper, it would
confront the questions of who bears the burden of persuasion on the issue, to what
level of persuasion, and whether waiver by the accused obviates the need for further
inquiry. It is generally agreed that the government bears the burden of establishing
that venue is proper, i.e., that the offense is being prosecuted in the district in which
it was committed.21 This obligation extends to every count within the indictment or
information; there is no supplemental venue.22 Venue, however, is not a substantive
element of the offense and consequently the government need only establish venue
by a preponderance of the evidence.23 Moreover, venue is not jurisdictional.24
Therefore, a court in an improper venue enjoys the judicial authority to proceed to
conviction or acquittal, if the accused waives objection.25 If the absence of proper
venue is apparent on the face of indictment or information, failure to object prior to
trial constitutes waiver.26 If the failure of proper venue is not apparent on the face of
the charging document and is not established during the presentation of the
government’s case in the main, objection may raised at the close of the government’s
case. 27
REVIEW 1658 (2000); Levenson, Change of Venue and the Role of the Criminal Jury, 66
SOUTHERN CALIFORNIA LAW REVIEW 1533 (1992).
21 United States v. Salinas, 373 F.3d 161, 164 (1st Cir. 2004); United States v. Ramirez, 420
F.3d 134, 139 (2d Cir. 2005); United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005);
United States v. Morgan, 393 F.3d 192, (D.C.Cir. 2004).
22 United States v. Ramirez, 420 F.3d 134, 140 (2d Cir. 2005)(“Because venue must be
proper with respect to each count, we may conclude that venue was proper as to some counts
but not as to others”); United States v. Haire, 371 F.3d 833, 837 (D.C.Cir. 2004); Unitedth
Stats v. Wood, 364 F.3d 704, 710 (6 Cir. 2004); United States v. Villarini, 238 F.3d 530,th
23 United States v. Ramirez, 420 F.3d 134, 139 (2d Cir. 2005); United States v. Strain, 396
F.3d 689, 692 (5th Cir. 2005); United States v. Haire, 371 F.3d 833, 837 (D.C.Cir. 2004);th
United States v. Wren, 363 F.3d 654, 660 (7 Cir. 2004).
24 United States v. Calderon, 243 F.3d 587, 590-91 (2d Cir. 2001); United States v.
Cordova, 157 F.3d 587, 597 (8th Cir. 1998).
25 United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).
26 United States v. Grenoble, 413 F.3d 569, 573 (6th Cir. 2005); United States v. Strain, 396
F.3d 689, 693 (5th Cir. 2005); United States v. Roberts, 308 F.3d 1147, 1151-152 (11th Cir.
27 United States v. Strain, 396 F.3d 689, 693 (5th Cir. 2005); United States v. Collins, 372
F.3d 629, 633 (4th Cir. 2004); United States v. Roberts, 308 F.3d 1147, 1152 (11th Cir. 2002);th
United States v. Ringer, 300 F.3d 788, 790 (7 Cir. 2002).
In What District Did the Crime Occur
The district in which venue is proper, the district in which the offense was
committed, “the ‘locus delicti [of the charged offense,] must be determined from the
nature of the crime alleged and the location of the act or acts constituting it.’ In
performing this inquiry, a court must initially identify the conduct constituting the
offense (the nature of the crime) and then discern the location of the commission of
the criminal acts.”28 Which is to say, the inquiry begins by identifying (1) the
statutory prohibition charged, (2) what acts or omissions of the accused are alleged
to have been committed in violation of the prohibition, and (3) where those acts or
omissions occurred.
The words Congress uses when it drafts a criminal proscription will establish
where the offense occurs and therefore the district or districts in which venue is
proper. For some time, the courts and academics used a so-called “verb test” as one
means of identify where an offense was committed.29 The test may still be useful to
determine where venue is proper, but particularly in the case of purported multi-
district offenses it is not necessarily dispositive of where venue is not proper. In the
words of the Supreme Court, “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,” United States v.
Rodriguez-Moreno, 526 U.S. 275, 280 (1999).30 The test endorsed in Rodriguez-
Moreno, is – where did the activity or omission that offends the statute’s “conduct
element” occur? Id.
28 United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999), quoting, United States v.
Cabrales, 524 U.S. 1, 6-7 (1998), and United States v. Anderson, 326 U.S. 699, 703 (1946).
29 Dobie, Venue in Criminal Cases in the Untied States District Court, 12 VIRGINIA LAW
REVIEW 287, 289-90 (1926)(emphasis in the original)(“All federal crimes are statutory, and
these crimes are often defined, hidden away amid pompous verbosity, in terms of a single
verb. That essential verb usually contains the key to the solution of the question: In what
district was the crime committed. . . So in the celebrated Burton case, twice before the
Supreme Court, the statute said: ‘No Senator * * * shall receive or agree to receive any
compensation’ for a certain kind of service. In the first opinion, the question was where was
the compensation received, at St. Louis, where the check was mailed and where the ban was
on which it was drawn, or in Washington, where defendant deposited it in another bank
which placed the amount of the check unconditionally to his credit. The receipt was held to
be in Washington and the St. Louis conviction reversed[, United States v. Burton, 196 U.S.
283 (1906)]. But the second opinion dealt with where the defendant agreed to receive the
compensation. This the court said, was in St. Louis, the place where the agreement was
finally accepted and ratified[, United States v. Burton, 202 U.S. 344(1906)]”); United States
v. Palma-Ruedas, 121 F.3d 841, 847-51 (3d Cir. 1997), rev’d sub nom., United States v.
Rodriguez-Moreno, 526 U.S. 275 (1999).
30 For a critical review of Rodriguez-Moreno see, Stretching Venue Beyond Constitutional
Recognition, 90 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 951 (1999).
Multi-District Crimes
Some statutes limit venue to a particular district even though the offense could
be said to have been committed in more than one district and thus otherwise might
have been tried in any of the two or more districts in which it was committed. Others
simply clarify the several districts in which venue for the trial of certain offenses is
proper. The general statute that seeks to clarify venue in the case of multi-district
crimes is 18 U.S.C. 3237. It consists of three parts: one for continuing offenses
generally, another for offenses involving elements of the mails or interstate
commerce, and a third for tax offenses.
Crimes Continuing Through More than One District. The first
paragraph of section 3237 is the oldest portion of the statute. Originally enacted
during Reconstruction as part of the general conspiracy statute now found in 18
U.S.C. 371,31 the Revised Statutes made it applicable to all multi-district federal32
crimes. Slightly modified in the 1948 revision, it now provides:
Except as otherwise expressly provided by enactment of Congress, any offense
against the United States begun in one district and completed in another, or
committed in more than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or completed.
Over the years, there has been a certain ebb and flow of the Supreme Court’s
reading of venue requirements of the section. The Court first considered the
provision in Palliser v. United States, 136 U.S.257, 267-68 (1890), when it held that
prosecution of an offense under the postal bribery statute might be held in the district
in Connecticut in which the letter offering the bribe was received even though the
accused had acted entirely outside of the district. The Court expressed no opinion
as to whether the offense might also have been tried in the district in New York from
which the letter had been sent, 136 U.S. at 268. Two years later the Court held that
the trial of an indictment for causing the mail delivery of lottery material might be
held in the district in which the mail was delivered, but observed that “perhaps” trial
might also be held in the district in which the material was deposited in the mail,
Horner v. United States, 143 U.S. 207, 211-12 (1892).
In later years, it concluded that the failure to file required documentation with
immigration officials was not a continuous offense and must be prosecuted in the
district where the document had to be filed; United States v. Lombardo, 241 U.S. 73,
76-9 (1916), but that an alien crewman’s unlawfully remaining in the United States
was a continuous offense and consequently that venue “lies in any district where the
crewman willfully remains, ” United States v. Cores, 356 U.S. 405, 409 (1958).
More recently, it held that money laundering and the crimes that generated the
tainted funds did not automatically form one continuous criminal episode so as to
permit trial of the laundering offense in the foreign district in which money-
generating offense occurred, United States v. Cabrales, 524 U.S. 1, 5-6 (1998). The
31 14 Stat. 484 (1867).
32 Rev. Stat. §731 (1878).
Court was quick to point out, however, that under different circumstances, venue
over a money laundering charge might be proper in the district in which its predicate
offenses occurred. “Notably, the counts at issue do not charge Cabrales with
conspiracy; they do not link her to, or assert her responsibility for, acts done by
others. Nor do they charge her as an aider or abettor in the Missouri drug trafficking.
. . Cabrales is charged in the money-laundering counts with criminal activity ‘after
the fact’ of an offense begun and completed by others,” 524 U.S. at 7. Further,
“[m]oney laundering . . . arguably might rank as a continuing offense triable in more
than one place, if the launderer acquired the funds in one district and transported
them into another. But that is tellingly not this case,” 524 U.S. at 8.
Conspiracy. Conspiracy may be the most commonly recognized “continuing
offense,” although whether conspiracy is really a continuing offense or merely shares
the attributes of a continuing offense is not clear. When the present, general federal33
conspiracy statute was first drafted it contained an overt act requirement, as it does
today.34 The crime under the general statute was not, and is not, complete until one
of the conspirators takes some affirmative action in furtherance of the criminal
scheme. An overt act is an element of the crime.35 In such cases, it would come as
no surprise if venue were said to be proper wherever an overt act was committed –
was proper wherever a conduct element of the crime occurred. Under several
individual federal conspiracy statutes, however, an overt act is not required and
therefore is not an element of the offense.36 In such cases, is venue nevertheless
proper wherever an overt act in furtherance of the conspiracy is committed? It
appears so.
Some time ago, the Supreme Court pointed out that conspiracy could be
considered something akin to a continuous offense. Conspiracy, it declared, may be
tried in any district in which an overt act in its furtherance is committed, at least
when the conspiracy statute has an overt act requirement, Hyde v. United States, 225
U.S. 347, 360-61 (1912)(“if the unlawful combination and the overt act constitute the
offense . . . marking its beginning and its execution or a step in its execution, §731
of the Revised Statutes [18 U.S.C. 3237's predecessor] must be applied”). Even for
those conspiracy offenses for which an overt act is not an element, the Court in Hyde
implied that a prosecution might be had in any district in which an overt act in their37
furtherance was committed. Without apparent exception, the lower federal
33 14 Stat. 484 (1867).
34 18 U.S.C. 371.
35 United States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005); United States v. Beverly,
36 United States v. Shabani, 513 U.S. 10 (1994)(21 U.S.C. 846, conspiracy to violate the
Controlled Substances Act, has no overt act requirement); Whitfield v. United States, 543
U.S. 209 (2005)(18 U.S.C. 1956, conspiracy to commit money laundering, has no overt act
requirement).
37 “The court, passing on the ruling of the trial court, said by District Judge Carland, and
we quote its language to avail ourselves not only of the citation of cases, but of the
comments upon them: ‘. . .[At common law] no overt act need be shown or ever performed
appellate courts have followed Hyde’s lead and found venue proper for trial of
conspiracy charges in any district in which an overt act is committed, regardless of
whether the conspiracy statute in question requires proof of an overt act38 or not.39
Nevertheless, it is interesting to note that when Cabrales observed that the money
launderer might have been tried as a conspirator in the district where the predicate
offense (drug trafficking) occurred, it referred to the general conspiracy statute that
requires an overt act, 18 U.S.C. 371, rather than the equally applicable drug
trafficking conspiracy statute that does not, 21 U.S.C. 846.40
Aiding and Abetting. Those who aid and abet the commission of a federal
crime are punishable as principals, 18 U.S.C. 2. Cabrales suggests they may be
prosecuted wherever the underlying offense was committed, 524 U.S. at 7 (“Nor do
they charge her as an aider or abettor in the Missouri drug trafficking”). Subsequent
lower federal appellate courts have so held.41
to authorize a conviction. If conspirators enter into the illegal agreement in one county, the
crime is perpetrated there, and they may be immediately prosecuted; but the proceedings
against them must be in that county. If they go into another county to execute their plans
of mischief, and there commit an overt act, they may be punished in the latter county
without any evidence of an express renewal of their agreement. . . If this was the law of
venue in conspiracies at common law, where proof of an overt act was not necessary to
show a completed offense, the same rule can be urged with much greater force [here], as the
offense described [here] for all practical purposes is not complete until an overt act is
committed . . . It seems clear, then, that whether we place reliance on the common law or
on §731, Rev. Stat., the venue of the offense was correctly laid. . .’” 225 U.S. at 365-66. For
a more extensive discussion of Hyde, see, Abrams, Conspiracy and Multi-Venue in Federal
Criminal Prosecutions: The Crime Committed Formula, 9 UCLA LAW REVIEW 751 (1962).
38 E.g., United States v. Nichols, 416 F.3d 811, 824 (8th Cir. 2005); United States v. Geibel,
1997). Each of these cases involves conspiracy under 18 U.S.C. 371 which carries an overt
act requirement.
39 E.g., United States v. Hull, 419 F.3d 762, 768 (8th Cir. 2005); United States v. Haire, 371
F.3d 833, 838 (D.C. Cir. 2004); United States v. Carbajal, 290 F.3d 277, 289 (5th Cir. 2002);th
United States v. Crozier, 259 F.3d 503, 519 (6 Cir. 2001); United States v. Antonakeas, 255thth
F.3d 714, 726 (9 Cir. 2001); United States v. Matthews, 168 F.3d 1234, 1246 (11 Cir.th
1999); United States v. Cordova, 157 F.3d 587, 597 (8 Cir. 1998). Each of these cases
involves conspiracy under 21 U.S.C. 846 which does not include an overt act requirement
(United States v. Shabani, 513 U.S. 10 (1994)).
40 “If the Government can prove the [conspiratorial] agreement it has alleged, Cabrales can
be prosecuted in Missouri for that confederacy, and her money laundering in Florida could
be shown as overt acts in furtherance of the conspiracy. See 18 U.S.C. §371 (requiring
proof of an act to effect the object of the conspiracy),” 524 U.S. at 9.
41 United States v. Stewart, 256 F.3d 231, 244 (4th Cir. 2001); United States v. Smith, 198
F.3d 377, 382 (2d Cir. 1999). Where conduct which constitutes the aiding and abetting is
itself a crime, at least one court has held that a defendant may not be tried in one district for
selling a precursor chemical and then tried in another district for aiding and abetting the
manufacture of a controlled substance by selling the chemical to the manufacturer, United
States v. Valdez-Santos, 370 F.Supp.2d 1051, 1055 (E.D.Cal. 2005).
Continuous Offenses. In Armour Packing Co. v. United States, 209 U.S.
56, 77 (1908), the Supreme Court upheld a conviction following a trial in the
Western District of Missouri for the offense of continuous carriage by rail of the
defendant’s products from Kansas to New York at an illegally reduced rate. The
Court concluded that “[t]his is a single continuing offense . . . continuously
committed in each district through which the transportation is received at the
prohibited rate,” id. The Court’s most recent venue decision confirmed the
continued vitality of this view when it held that if Congress so crafts a criminal
offense as to embed within it a continuing offense as one of the conduct elements of
the new crime, venue over the new crime is proper wherever trial over the continuing
offense may be had. In United States v. Rodriguez-Moreno, 526 U.S. 275, 281
(1999), it held that the constitutional right to a jury trial in the state and district in
which the crime occurs did not preclude trial for use of a firearm during the
commission of a predicate offense in a state and district – New Jersey – other than
that in which the firearm was used – Maryland. The crime in question, 18 U.S.C.
924(c)(1), “contains two distinct conduct elements – as is relevant in this case, the
‘using and carrying’ of a gun and the commission of a kidnaping,” 526 U.S. at 280.
A defendant commits a crime and may be tried where he commits any of its conduct42
elements. Kidnaping is a crime that continues from capture until release and
therefore can be tried in any place from, through or into which the victim is taken,
and the appended gun charge travels with it:
The kidnaping, to which the §924(c)(1) offense is attached, was committed in all
of the places that any part of it took place, and venue for the kidnaping charge
against respondent was appropriate in any of them. (Congress has provided that
continuing offenses can be tried ‘in any district in which such offense was begun,
continued, or completed,’ 18 U.S.C. §3237(a).) Where venue is appropriate for
the underlying crime of violence [, in this case kidnaping,] so too it is for the
§924(c)(1) offense. 526 U.S. at 282.
In addition to kidnaping, the lower federal appellate courts have found venue
proper based on the continuing nature of violations involving, inter alia:
!false statements (18 U.S.C. 1001);43
!wire fraud (18 U.S.C.1343);44 45
!mail fraud (18 U.S.C. 1341);
!bank fraud (18 U.S.C. 1344);46
42 This is the difference between Cabrales and Rodriguez-Moreno: “The existence of
criminally generated proceeds [in Cabrales] was a circumstance element of the offense but
the proscribed conduct – defendant’s money laundering activity – occurred after the fact of
an offense begun and completed by others. [In Rodriguez-Moreno], by contrast, given the
‘during and in relation to’ language, the underlying crime of violence is a critical part of the
§9245(c)(1) offense,” 526 U.S. at 280-81 n.4.
43 United States v. Ramirez, 420 F.3d 134, 142-43 (2d Cir. 2005).
44 United States v. Ebersole, 411 F.3d 517, 525-27 (4th Cir. 2005); United States v. Pace,
45 United States v. Woods, 364 F.3d 704,710 (6th Cir. 2004).
46 United States v. Scott, 270 F.3d 30, 36 (1st Cir. 2001).
!possession of controlled substances with the intent to distribute (21
U.S.C. 841);47
!Hobbs Act (violent interference with interstate commerce) (18
U.S.C. 1951);48
!unlawful possession of a firearm (18 U.S.C. 922(g));49
!Travel Act (interstate travel in aid of racketeering)(18 U.S.C.
!violent crimes in aid of racketeering (18 U.S.C. 1959);51 and
!failure to pay child support (18 U.S.C. 228).52
Venue in the Place of Impact. Continuing offenses and the first paragraph
of subsection 3237(a) present one other puzzle – when is venue proper in any district
in which the crime’s effects are felt? The Court expressly declined to address the
issue in Rodriguez-Moreno: “The Government argues that venue also may
permissibly be based upon the effects of a defendant’s conduct in a district other than
the one in which the defendant performs the acts constituting the offense. Brief for
the United States 16-17. Because this case only concerns the locus delicti, we
express no opinion as to whether the Government’s assertion is correct,” 526 U.S.
at 279 n.2. The Brief declares that “[v]enue may also be based on the effects of a
defendant’s conduct in another district,” and cites Armour Packing Co. (rail
transportation at unlawful rate), supra, and the mail cases discussed below, Brief for
the United States at 16-17. It also cites the lower court obstruction of justice and
Hobbs Act cases, id.
The Hobbs Act outlaws the obstruction of interstate or foreign commerce
through the use of violence or extortion.53 Venue for a Hobbs Act violation is
generally considered proper in any district in which there is an obstruction of
commerce.54 Yet obstruction is an element of the offense.55 The act is drafted in
47 United States v. Zidell, 323 F.3d 412 (6th Cir. 2003); United States v. Solis, 299 F.3d 420,
445 n.76 (5th Cir. 2002); United States v. Uribe, 890 F.2d 554, 559 (1st Cir. 1989); United
States v. Baskin, 886 F.2d 383, 388 (D.C.Cir. 1989).
48 United States v. Fabian, 312 F.3d 550, 557 (2d Cir. 2002).
49 United States v. Fleischli, 305 F.3d 643, 658 (7th Cir. 2002).
50 United States v. Williams, 291 F.3d 1180, 1189 (9th Cir. 2002).
51 United States v. Saavedra, 223 F.3d 85, 91 (2d Cir. 2000).
52 United States v. Muench, 153 F.3d 1298, 1303-305(11th Cir. 1998); United States v.
Crawford, 115 F.3d 1397, 1406 (8th Cir. 1997).
53 “Whoever in any way or degree obstructs, delays, or affects commerce or the movement
of any article or commodity in commerce, by robbery or extortion or attempts or conspires
so to do, or commits or threatens physical violence to any person or property in furtherance
of a plan or purpose to do anything in violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both,” 18 U.S.C. 1951(a).
54 United States v. Lewis, 797 F.2d 358, 367 (7th Cir. 1986)(“venue for a Hobbs Act
prosecution lies in any district where the requisite effect on commerce is present, even if the
acts of extortion occur outside the jurisdiction”); United States v. Stephenson, 895 F.2d 867,
875 (2d Cir. 1990)(“Venue under the Hobbs Act is proper in any district where the interstate
such a way that obstruction is arguably a “conduct” element (“Whoever in any way
or degree obstructs . . .”); if so, it would seem to provide little support for “impact”
venue in the case of those crimes for whom the effect is not a conduct element.
An earlier line of cases suggested that an obstruction of justice – intimidation
or bribery of witness, bail jumping, or the like – might be tried in the district in which
the proceedings were conducted even when the act of obstruction was committed
elsewhere.56 The line gave birth to a suggestion that venue might be predicated upon
the impact of the crime within a particular district especially when the offense
involved other “substantial contacts” with the district of victimization.57
After Rodriguez-Moreno, the courts continue to recognize an “effects” or
“substantial contacts” test for venue,58 but generally hold that the effect must also
commerce is affected or where the alleged acts took place”).
55 Stirone v. United States, 361 U.S. 212, 218 (1960); United States v. Vega Molina, 407
F.3d 511, 526-27 (1st Cir. 2005); United Sates v. McCarter, 406 F.3d 460, 462 (7th Cir.th
56 United States v. O’Donnell, 510 F.2d 1190, 1192-195 (6th Cir. 1975); United States v.
Tedesco, 635 F.2d 902, 904-906 (1st Cir. 1980); United States v. Barham, 666 F.2d 521, 523-thth
24 (11 Cir. 1982); United States v. Kibler, 667 F.2d 452, 454-55 (4 Cir. 1975); United
States v. Reed, 773 F.2d 477, 484-86 (2d Cir. 1985); United States v. Frederick, 835 F.2d
Cir. 1971); see generally, Criminal Venue in the Federal Courts: The Obstruction of Justice
Puzzle, 82 MICHIGAN LAW REVIEW 90 (1983).
57 United States v. Reed, 773 F.2d 477, 481, 482 (2d Cir. 1985)(emphasis added)(“a review
of relevant authorities demonstrates that there is no single defined policy or mechanical test
to determine constitutional venue. Rather, the test is best described as a substantial contacts
rule that takes into account a number of factors – the site of the defendant’s acts, the
elements and nature of the crime, the locus of the effect of the criminal conduct, and the
suitability of each district for accurate findfinding. . . places that suffer the effects of a crime
are entitled to consideration for venue purposes”); see also, United States v. Williams, 788th
F.2d 1213, 1215 (6 Cir. 1986)(applying “the substantial contacts test as well as the
rationale and framework of analysis articulated by the Reed court” to venue in a bailth
jumping case); United States v. Beddow, 957 F.2d 1330, 1336 (6 Cir. 1992)(“the funds
involved in both money laundering counts were acquired by selling drugs in the Western
District of Michigan. . . Under the substantial contacts test used in the Sixth Circuit, venue
was proper in the Western District of Michigan”); United States v. Newsom, 9 F.3d 337, 339thth
(4 Cir. 1993); United States v. Bagnell, 679 F.2d 826, 832 (11 Cir. 1982)(“prosecution [of
the use of interstate carrier to transport obscene material] in the district of receipt is
eminently reasonable in view of the fact that it is the recipient community that suffers the
deleterious effects of pornography distribution”).
58 United States v. Ramirez, 420 F.3d 134, (2d Cir. 2005)(“when venue may properly lie in
more than one district under a continuing offense theory, we should also ask whether the
criminal acts in question bear substantial contacts with any given venue”); United States v.th
Brika, 416 F.3d 514, 527 (6 Cir. 2005)(“The crime is also one in which the locus of the
effect of the criminal conduct is to be found more in the district in which the call is received
that in the district in which it is placed, meeting the third factor of the substantial contacts
test”).
constitute a “conduct element” under the statute defining the offense,59 and that venue
may not be based on elements of the offense which are not conduct elements.60
Mail and Commerce Cases. The second paragraph of subsection 3237(a)
expands the number of districts where prosecutions for offenses involving
smuggling, the mails or commerce may be brought to any district from, through, or61
into which “commerce, mail matter, or [an] imported object or person moves.” The
paragraph was added when title 18 of the United States Code was revised in 1948.
Interstate transportation and mail cases had previously been resolved under the
continuing offense language of the first paragraph discussed above. Professor Wright
has suggested that the paragraph stems from a misreading of the Supreme Court’s
opinion in United States v. Johnson and that at its outer limits the paragraph may lie62
beyond constitutional expectations. Perhaps for this reason although the paragraph
59 United States v. Bowens, 224 F.3d 302, 311 (4th Cir. 2000)(“the government argues, venue
for a §1071 prosecution should lie in the district where the effects of the criminal conduct
are felt. . . Instead, we conclude that the Supreme Court’s recent decisions in Cabrales and
Rodriguez-Moreno require us to determine venue solely by reference to the essential
conduct elements of the crime, without regard to Congress’s purpose in forbidding the
conduct”); United States v. Peterson, 357 F.Supp.2d 748, 752 (S.D.N.Y. 2005)(“all three
crimes alleged are continuing offenses that involved conduct in New York and elsewhere.
Wire fraud clearly is a continuing offense. The crime of engaging in the insurance business
following a felony conviction likewise is a crime that spans space and time, and here
Peterson is alleged to have conducted the business of insurance over a period of time, with
actions occurring in and having an effect on a number of jurisdictions. The money
laundering charge also involves, in the context alleged here, a continuing offense, as the
Government alleges that Peterson caused illegal proceeds of his insurance fraud scheme to
be cleared through New York for transmission to a bank account in the Cayman Islands. .
. All three of these offenses alleged involved some conduct in New York, the effects of the
conduct are felt here . . . and this Court certainly is a suitable forum for accurate fact-
finding”); United States v. D-1 Mikell, 163 F.Supp.2d 720, 733 (E.D.Mich. 2001) (“although
venue may lie where the effects of the defendant’s conduct are felt, this is true only when
Congress had defined the essential conduct elements in terms of those effects”).
60 United States v. Ramirez, 420 F.3d 134, 144-45 (2d Cir. 2005)(“While a scheme to
defraud is certainly one of three essential elements of mail fraud, it is not an essential
conduct element. . . [Thus,] having devised or intending to devise a scheme or artifice to
defraud, while an essential element, is not an essential conduct element for purposes ofth
establishing venue”); United States v. Strain, 396 F.3d 689, 694 (5 Cir. 2005)(“The
issuance of the warrant and Strain’s knowledge of it, however, are ‘circumstance elements’
of the offense of harboring, insofar as they do not involve any proscribed conduct by the
accused. As such neither may serve as a basis for establishing venue”).
61 “ . . .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,” 18 U.S.C. 3237(a).
62 “Four years earlier the Supreme Court had held that an offense under the Federal
Denture Act was complete when the goods are deposited in the mails, and that prosecution
could be had at the place of delivery. This construction was required the Court thought, by
‘the large policy back of the constitutional safeguards.’ The Reviser of the Criminal Code
read that decision, however, as having ‘turned on the absence of a special venue provision
has been used under a wide range of circumstances, its invocation has not always
been successful.63
Tax Cases. The tax provision, subsection 3237(b), is in fact a limited transfer
provision under which the accused may opt for trial in the district in which he resided
at the time when the alleged offense occurred.64 The subsection was added in 1958
upon the view that prosecution in the district where a return was received or due
rather than the district in which the taxpayer resided visited inappropriate65
inconvenience and expense upon taxpayers, their attorneys and witnesses. The
in the Denture Act’ and added the second paragraph to §3237(a) that ‘removes all doubt as
to the venue of continuing offenses and makes unnecessary special venue provisions* * *.’
This of course presupposes that wide choice of venue is necessarily a good thing, a view
prosecutors are likely to share but that many persons, include not infrequently a majority of
the Supreme Court, have rejected,” 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE, §303
(Crim. 3d ed. 2000), referring to United States v. Johnson, 323 U.S. 273 (1944).
63 ID. and cases cited therein; see also, United States v. Rowe, 414 F.3d 271, (2d Cir.
2005)(venue for prosecution of an Internet offer, transmitted in interstate commerce, to
exchange or distribute child pornography was proper in the district were it was received);
United States v. Haire, 371 F.3d 833, 838 (D.C. Cir. 2004)(venue for unlawful importation
of cocaine prosecution was proper under the second paragraph of §3237(a) in the district
into which the cocaine was imported); United States v. Breitweiser, 357 F.3d 1249, 1253-th
254 (11 Cir. 2004)(venue for sexual contact within U.S. special aircraft jurisdiction was
proper under the second paragraph of §3237(a) in the district in which the plane landed);
United States v. Cole, 262 F.3d 704, 710 (8th Cir. 2001)(venue for prosecution of a charge
of interstate transportation for immoral purposes was proper under the second paragraph of
§3237(a) in the district in which the victim was transported); United States v. Sutton, 13
F.3d 595, 598-99 (2d Cir. 1994)(venue for prosecution of a charge of producing and
transferring false documents was proper under the second paragraph of §3237(a) either in
the district in which they were produced or the district into which they were mailed); contra,
United States v. Morgan, 393 F.3d 192, 197-200 (D.C.Cir. 2004)(venue in the district for
the District of Columbia was not proper under the second paragraph of §3237(a) for
prosecution of a charge of receiving, in Maryland, federal property stolen in the District ofth
Columbia); United States v. Villarini, 238 F.3d 530, 535-36 (4 Cir. 2001)(venue for
prosecution of a money laundering charge was not proper under the second paragraph of
§3237(a) in the district where the offenses which generated the tainted cash were committed
when the laundering occurred elsewhere); United States v. Brennan, 183 F.3d 139, 144-49
(2d Cir. 1999)(venue for prosecution of a mail fraud charge was not proper under the second
paragraph of §3237(a) in a district through which mail passed from another district in which
it was mailed to destinations outside the district of transit).
64 “Notwithstanding subsection (a), where an offense is described in section 7203 of the
Internal Revenue Code of 1986, or where venue for prosecution of an offense described in
section 7201 or 7206(1), (2), or (5) of such Code (whether or not the offense is also
described in another provision of law) is based solely on a mailing to the Internal Revenue
Service, and prosecution is begun in a judicial district other than the judicial district in
which the defendant resides, he may upon motion filed in the district in which the
prosecution is begun, elect to be tried in the district in which he was residing at the time the
alleged offense was committed: Provided, That the motion is filed within twenty days after
arraignment of the defendant upon indictment or information,” 18 U.S.C. 3237(b).
65 “The cost and inconvenience to the defendant may be substantial especially in the case
of an extended trial. The additional expense to the defendant of living away from home, the
subsection is only available in the case of prosecutions under 26 U.S.C. 7203 (willful
failure to file a return, supply information or pay a tax),66 or, if the government seeks
to prosecute in a district where venue exists solely because of a mailing to the
Internal Revenue Service, under 26 U.S.C. 7201 (attempted tax evasion) or
Venue in Murder Cases
Sections 3235 and 3236 provide special venue requirements in murder cases.
Section 3235 dates from the First Congress, 1 Stat. 88 (1789), and states that “the
trial of offenses punishable with death shall be had in the county where the offense
was committed, where that can be done without great inconvenience.” The cases
under the section are few and rarely seem to favor the accused. For instance, more
than one court has held that the section does not apply to offenses punishable with
death unless the charges are for “unitary” murder offenses.68 As in other instances,
the benefits of section 3235 can be waived if the accused fails to move to dismiss for
improper venue.69 Moreover, the determination of the benefit can be afforded
“without great inconvenience” is a matter within the trial court’s discretion.70 Great
inconvenience has been found when there was no federal courthouse within the
county in which the crime was committed;71 when a majority of the government’s
problem of getting his local attorneys to leave their offices and practices for several days or
weeks and the increased cost incurred thereby, the inconvenience to witnesses, these are all
factors which the committee believes place a heavy burden upon the defendant which can
be better borne by the Government. The committee believes, further, that, in the type of
case covered by this bill, the acts for which the defendant is really being tried are generally
committed in the district in which he resides and certainly bear little or no relationship to
the place where his tax return is received,” H.Rep.No. 85-1952, at 2 (1958); see also,
S.Rep.No. 85-1890 (1958).
66 As originally enacted subsection 3237(b) included only 26 U.S.C. 7201 and 7206(1),(2)
and (5) cases. Section 7203 cases were added in 1966 for the same reasons as the originals
– relative cost and inconvenience to the taxpayers, their attorneys, and witnesses, H.Rep.No.
67 The transfer option for cases under 26 U.S.C. 7201 (attempted tax evasion) or
7206(1),(2), or (5)(various frauds and false statements) does not apply when venue is proper
in a nonresidential district for reasons other than a mailing, United States v. Humphreys, 982th
F.2d 254, 260 (8 Cir. 1993).
68 United States v. Barnette, 211 F.3d 803, 814 (4th Cir. 2000)(18 U.S.C. 924(c),(j)(use or
carriage of a firearm to commit murder during the commission of crime of violence or drug
trafficking crime)); United States v. Aiken, 76 F.Supp.2d 1346, 1349-351 (S.D.Fla. 1999)(18
U.S.C. 1959 (murder in aid of racketeering)).
69 Hayes v. United States, 296 F.2d 657, 667 (8th Cir. 1961); Bickford v. Looney, 219 F.2d
70 United States v. Parker, 103 F.2d 857, 861 (3d Cir. 1939); Barrett v. United States, 82
F.2d 528, 534 (7th Cir. 1936); Davis v. United States, 32 F.2d 860, 860 (9th Cir. 1929).
71 Hayes v. United States, 296 F.2d 657, 667 (8th Cir. 1961); Davis v. United States, 32 F.2d
witness were located outside of the county in which the crime was committed;72 and
when observance would overburden court resources.73
Section 3236 provides that for venue purposes in murder and manslaughter
cases, the offense will be deemed to have occurred where the death causing act is
committed.74 Congress enacted section 3236 in apparent reaction to a Supreme Court
observation that a federal murder case could not be brought if an injury were inflicted
within a district in the United States but death occurred elsewhere.75 Here too the
case law is sparse. Two trial courts have held that the section only applies to
“unitary” murder cases and thus does not apply to murders committed in aid of
racketeering in violation of 18 U.S.C. 1959.76 And an appellate court has held that
under the section a father who battered his three-year old daughter in one district may
be tried in a second district where she died of pneumonia as a consequence of his
negligence there.77
Crimes With Individual Venue Statutes
In a few instances, Congress had enacted special venue provisions for particular
crimes. The provisions dictate venue decisions unless they contravene constitutional
requirements. The list includes:
!8 U.S.C. 1328 (importation of aliens for immoral purposes);78
72 United States v. Parker, 103 F.2d 857, 861 (3d Cir. 1939).
73 United States v. Taylor, 316 F.Supp.2d 722, 728 (N.D.Ind. 2004).
74 “In all cases of murder or manslaughter, the offense shall be deemed to have been
committed at the place where the injury was inflicted, or the poison administered or other
means employed which caused the death, without regard to the place where the death
occurs,” 18 U.S.C. 3236.
75 Ball v. United States, 140 U.S. 118, 136 (1891)(“If this section [relating venue over
offenses occurring in more than one district] is applicable to the crime of murder, it certainly
could not apply if the stroke were given in one district and the death ensued in some other
country than the United States”). In Ball, the Court also noted that at common law,
jurisdiction over the offense of murder required that the assault and resulting death occur
within the same jurisdiction, 140 U.S. at 133.
76 United States v. Perez, 940 F.Supp. 540, 548-49 (S.D.N.Y. 1996); United States v. Aiken,
77 United States v. Eder, 836 F.2d 1145, 1148 (8th Cir. 1988). Eder is reminiscent of the
cases that cite section 3236 for the proposition that a violation of 18 U.S.C. 1111, murder
within the special maritime and territorial jurisdiction of the United States, occurs when a
victim is assaulted outside the territorial jurisdiction of the United States and then brought
by the defendant within U.S. territorial jurisdiction and abandoned to the elements there
under conditions that lead to the victim’s death, United States v. Todd, 657 F.2d 212, 215thth
(8 Cir. 1981); United States v. Parker, 622 F.2d 298, 301 (8 Cir. 1980).
78 “. . .The trial and punishment of offenses under this section may be in any district to or
into which such alien is brought in pursuance of importation by the persons or persons
accused, or in any district in which a violation of any of the provisions of this section
occurs. . .” 8 U.S.C. 1328.
!8 U.S.C. 1329 (immigration offenses generally);79
!15 U.S.C. 80a-43 (investment company offenses);80
!15 U.S.C. 298 (falsely stamped gold or silver);81
!18 U.S.C. 228(e)(failure to pay legal child support obligations);82
!18 U.S.C. 1073 (flight to avoid prosecution);83
!18 U.S.C. 1074 (flight to avoid prosecution for property damage);84
!18 U.S.C. 1512(i)(obstruction of justice);85
!18 U.S.C. 1752(c)(secret service offenses);86
79 “. . .[S]uch prosecutions . . . may be instituted at any place in the United States at which
the violation may occur or at which the person charged with a violation under section 1325
or 1326 of this title may be apprehended . . .” 8 U.S.C. 1329.
80 “. . .Any criminal proceeding may be brought in the district wherein any act or
transaction constituting the violation occurred. A criminal proceeding based upon a
violation of section 80a-33 of this title [destruction and falsification of records], or upon a
failure to file a report other document required to be filed under this subchapter, may be
brought in the district wherein the defendant is an inhabitant or maintains his principal
office or place of business,” 15 U.S.C. 80a-43.
81 “. . . the district in which such violation was committed or through which has been
conducted the transportation of the article in respect to which such violations has been
committed. . .” 15 U.S.C. 298.
82 “With respect to an offense under this section, an action may be inquired of and
prosecuted in a district court of the United States for– (1) the district in which the child who
is the subject of the support obligation involved resided during a period during which a
person described in subsection (a) (referred to in this subsection as an ‘obliger’) failed to
meet that support obligation; (2) the district in which the obliger resided during a period
described in paragraph (1); or (3) any other district with jurisdiction otherwise provided for
by law,” 18 U.S.C. 228(e).
83 “. . .Violations of this section may be prosecuted only in the Federal judicial district in
which the original crime was alleged to have been committed, or in which the person was
held in custody or confinement, or in which an avoidance of service of process or a
contempt referred to in clause (3) of the first paragraph of this section is alleged to have
been committed, and only upon formal approval in writing by the Attorney General, the
Deputy Attorney General, the Associate Attorney General, or an Assistant Attorney General
of the United States, which function of approving prosecutions may not be delegated,” 18
U.S.C. 1073.
84 “Violations of this section may be prosecuted in the Federal judicial district in which the
original crime was alleged to have been committed or in which the person was held in
custody or confinement: Provided, however, That this section shall not be construed as
indicating an intent on the part of Congress to prevent any State, Territory, Commonwealth,
or possession of the United States of any jurisdiction over any offense over which they
would have jurisdiction in the absence of such section,” 18 U.S.C. 1074(b).
85 “A prosecution under this section [witness tampering] or section 1503 [obstruction of
judicial proceedings] may be brought in the district in which the official proceeding
(whether or not pending or about to be instituted) was intended to be affected or in the
district in which the conduct constituting the alleged offense occurred,” 18 U.S.C. 1512(i).
86 “Violation of this section, and attempts or conspiracies to commit such violations, shall
be prosecuted by the United States attorney in the Federal district court having jurisdiction
of the place where the offense occurred,” 18U.S.C. 1752(c).
!18 U.S.C. 1956(i) (money laundering);87
!18 U.S.C. 2339(b) (harboring terrorists);88
!18 U.S.C. 2339A(a)(material support of terrorists).89
A few others have special venue provisions that simply replicate the features of rule
!15 U.S.C. 78aa (securities offenses);
!15 U.S.C. 79y (public utility holding company violations);
!15 U.S.C. 80a-43 (investment company offenses generally);
!15 U.S.C. 80b-14 (investment adviser offenses);
!15 U.S.C. 715i (interstate transportation of petroleum products);
!15 U.S.C. 717u (natural gas offenses);
!21 U.S.C. 17 (falsely labeled dairy or food products).
Venue for Crimes Committed Outside Any District
The Constitution recognizes that certain crimes, like piracy, may be committed
beyond the geographical confines of any federal judicial district. Article III after
declaring that the trial of crimes shall be in the state in which they are committed
provides that, “but when not committed within any State, the Trial shall be at such
Place or Places as the Congress may be Law have directed.”90 The First Congress
decided that “the trial of crimes committed on the high seas, or in any place out of
the jurisdiction of any particular state, shall be in the district where the offender is
apprehended, or into which he may first be brought.”91 The approach changed little
87 “(1) Except as provided in paragraph (2), a prosecution for an offense under this section
or section 1957 may be brought in– (A) any district in which the financial or monetary
transaction is conducted; or (B) any district where a prosecution for the underlying specified
unlawful activity could be brought, if the defendant participated in the transfer of the
proceeds of the specified unlawful activity from that district to the district where the
financial or monetary transaction is conducted. (2) A prosecution for an attempt or
conspiracy offense under this section or section 1957 may be brought in the district where
venue would lie for the completed offense under paragraph (1), or in any other district where
an act in furtherance of the attempt or conspiracy took place. (3) For purposes of this
section, a transfer of funds from one place to another, by wire or any other means, shall
constitute a single, continuing transaction. Any person who conducts (as that term is
defined in subsection (c)(2)) any portion of the transaction may be charged in any district
in which the transaction takes place,” 18 U.S.C. 1956(i).
88 “A violation of this section may be prosecuted in any Federal judicial district in which
the underlying offense was committed, or in any other Federal judicial district as provided
by law,” 18 U.S.C. 2339(b).
89 “. . .A violation of this section may be prosecuted in any Federal judicial district in which
the underlying offense was committed or in any other Federal judicial district as provided
by law,” 18 U.S.C. 2339A(a).
90 U.S.Const. Art.III, §2, cl.3.
91 1 Stat. 114 (1790).
over the years until the early 1960s.92 Then it was amended to address two problems
(1) to permit a single trial for crimes committed overseas by a group of offenders
who scattered when they returned to this country, and (2) to toll the statute of
limitations by permitting indictment when the suspect was overseas but not clearly
a fugitive.93 It now reads:
The trial of all offenses begun or committed upon the high seas, or elsewhere out
of the jurisdiction of any particular State or district, shall be in the district in
which the offender, or any one of two or more joint offenders, is arrested or is
first brought; but if such offender or offenders are not so arrested or brought into
any district, an indictment or information may be filed in the district of the last
known residence of the offender or of any one of two or more joint offenders, or
if no such residence is known the indictment or information may be filed in the
District of Columbia. 18 U.S.C. 3238.
Venue cannot be claimed under section 3238 for an offense begun in the United
States, even if it were also partially committed overseas.94 The district in which a
defendant is arrested or into which he is brought for purposes of section 3238 is the
district “where the defendant is first restrained of his liberty in connection with the95
offense charged.” Thus, venue in a particular district by operation of section 3238
is no less proper because the defendant was initially arrested in another district under96
another charge. Conversely, venue is not proper in a second district after an
accused has been arrested for the extraterritorial offense in another.97 The “last
known address” or District of Columbia basis for venue under section 3238 is an
alternative basis for venue over an extraterritorial offense available to the exclusion
of venue elsewhere when the offender has not first been arrested in or brought to
another district.98 Of course, in the case of multiple, joint offenders, venue over an
extraterritorial offense is proper for all offenders in any district in which it is proper
92 See Rev.Stat. §729 (1878)(“The trial of all offenses committed upon the high seas, or
elsewhere out of the jurisdiction of any particular state or district, shall be in the district
where the offender is found, or into which he may first be brought”); 18 U.S.C. 3238 (1956
ed.)(“The trial of all offenses begun or committed upon the high seas, or elsewhere out of
the jurisdiction of any particular state or district, shall be in the district where the offender
is found, or into which he may first be brought”).
93 S.Rep.No. 88-146 (1963); see generally, 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE
§304 (Crim. 3d ed. 2000).
94 United States v. Pace, 314 F.3d 344, (9th Cir. 2002).
95 United States v. Wharton, 320 F.3d 526, 536-37 (5th Cir. 2003)(emphasis in the original),
quoting, United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973); see also, United Statesth
v. Feng, 277 F.3d 1151, 1155 (9 Cir. 2002); United States v. Catino, 735 F.2d 718, 724 (2d
Cir. 1984).
96 United States v. Wharton, 320 F.3d 526, 536-37 (5th Cir. 2003).
97 United States v. Liang, 224 F.3d 1057, 1060-62 (9th Cir. 2000).
98 United States v. Feng, 277 F.3d 1151, 1155 (9th Cir. 2002); United States v. Fraser, 709
F.2d 1556, 1558 (6th Cir. 1983); United States v. Hsin-Yung, 97 F.Supp.2d 24, 28 (D.D.C.
for one of them.99 Finally, the fact that venue may be proper elsewhere under other
statutory provisions, does not preclude venue under section 3238.100
There is a second, alternative venue statute for certain espionage related cases:
The trial for any offense involving a violation, begun or committed upon the high
seas or elsewhere out of the jurisdiction of any particular State or district, of–
(1) section 793, 794, 798, [espionage] or section 1030(a)(1)[obtaining classified
information by unauthorized computer access] of this title;
(2) section 601 of the National Security Act of 1947 (50 U.S.C. 421)[disclosure
of the identities of covert agents]; or
(3) section 4(b) or 4(c) of the Subversive Activities Control Act of 1950 (50
U.S.C. 783(b) or (c))[receipt of classified information by foreign agents];
may be in the District of Columbia or in any other district authorized by law.18
U.S.C. 3239.
Section 3238 permits the government to bring an extraterritorial espionage case
in the District of Columbia if the offender’s residence is unknown. If the offender’s
last address in this country is known, section 3238 requires that the case be brought
there or in the district in which the offender is first arrested or brought or any other
district in which venue is otherwise proper. But without more the option to bring an
extraterritorial espionage case in the District of Columbia is not necessarily available
in all cases. Section 3239 changes that. It affords the government the option to bring
an exterritorial espionage case in the District Columbia when it would otherwise be
precluded from doing so.
Section 3239’s limited history suggests proponents may have initially had
something else in mind. It was enacted as section 320909 of the Violent Crime
Control and Law Enforcement Act of 1994, 108 Stat. 2127 (1994). The committee
reports accompanying that legislation barely mention it;101 the conference report102
acknowledges that it comes from the Senate bill but says no more; there are no
Senate reports. The Senate Select Committee on Intelligence, however, had reported
out a bill with identical language, the Counterintelligence and Security Enhancements
Act of 1994 (S. 2056). The Committee’s report indicates that the section was
thought to provide a more explicit statement of extraterritorial jurisdiction rather than
99 United States v. Pearson, 791 F.2d 867, 869-70 (11th Cir. 1986)(venue over offenders first
brought into the Southern District of Florida was proper in the Southern District of Alabama
in which a joint offender had been first brought).
100 United States v. Levy Auto Parts, 787 F.2d 946, 950-52 (4th Cir. 1986); United States v.
Erwin, 602 F.2d 1183, 1185 (5th Cir. 1979); United States v. Stickle, 355 F.Supp.2d 1317,
101 H.Rept. 103-324; H.Rept. 103-489 (1994).
102 H.Rept. 103-711, at 408, reprinted in, 1994 U.S.C.C.A.N. 1876 (“Section 320909 –
House recedes to Senate section 2961, optional venue for espionage”).
an expansion of venue options.103 This may explain why there are no reported cases
under section 3239.
Venue Transfers
For Prejudice.
While the Constitution promises the accused a trial in the district in which the
offense was committed, it also promises him a trial by an impartial jury. U.S.Const.
Amend. VI. To fulfill this second promise, Rule 21(a) of the Federal Rules of
Criminal Procedure entitles the accused to a change of venue for trial in another
district when “so great a prejudice against the defendant exists in the transferring
district that the defendant cannot obtain a fair and impartial trial there.”104
Pre-trial publicity usually supplies the basis for a change of venue request under
Rule 21(a).105 The applicable standard is a demanding one. A transfer will ordinarily
only be granted when no less disruptive curative measures will suffice. To create so
great a prejudice that an impartial trial is not possible, media coverage must have
been pervasive, inflammatory, contemporaneous to trial, and produced a serious
contamination of the jury pool.106 Requests for transfer under Rule 21(a) have been
103 S.Rept. 103-296, at 27 (1994)(“Section 6 would give the U.S. District Court for the
District of Columbia and other federal district court authorized by law jurisdiction over
trials of offenses involving violations of U.S. espionage statutes and related statutes where
the alleged misconduct took place outside the United States. According to Justice
Department representatives, the lack of such jurisdiction in U.S. courts has posed, from time
to time, a substantial problem in terms of trying U.S. citizens in U.S. courts even [though]
their conduct allegedly violated U.S. law, e.g., passing classified U.S. information to a
foreign agent. This has led to prosecutions in foreign courts even though the United States
had the predominant interest in prosecution. Section 6 is intended to provide an alternative
in such circumstances”). This suggests the alternative sought was trial in U.S. courts rather
than trial in foreign courts; not trial in the District of Columbia rather than in some other
U.S. judicial district. Venue is not mentioned; jurisdiction is.
104 “Upon the defendant’s motion, the court must transfer the proceeding against that
defendant to another district if the court is satisfied that so great a prejudice against the
defendant exists in the transferring district that the defendant cannot obtain a fair and
impartial trial there,” F.R.Crim.P. 21(a); see generally, The Right to Venue and the Right to
an Impartial Jury: Resolving the Conflict in the Federal Constitution, 52 UNIVERSITY OF
CHICAGO LAW REVIEW 729 (1985).
105 Requests have also been made on the basis of the demographic composition of the
district, but the standard here seems even more demanding than that used in the press cases,th
e.g., United States v. Granillo, 288 F.3d 1071 (8 Cir. 2002)(“Notwithstanding defendant’s
evidence suggesting that Hispanics comprise a small portion of the population in the state
of Iowa, defendant did not present evidence indicating that his ethnic background would
prevent jurors from being fair and impartial or that Hispanics were otherwise the target of
purposeful discrimination in the jury selection process within the Southern District of
Iowa”)
106 United States v. Higgs, 353 F.3d 281, 307-308 (4th Cir. 2003)(“the determination of
whether a change of venue is required as a result of pretrial publicity involves a two-step
process. First, the district court must determine whether the publicity is so inherently
rejected when the coverage was less than pervasive,107 when the coverage had
subsided between the commission or discovery of the crime or arrest of the accused
and the time of trial,108 when the coverage was not overwhelmingly inflammatory or
sensational,109 or when evidence suggested that an untainted jury might nevertheless
be selected.110 In a compelling case, the court may order trial to be elsewhere within
the district under Rule 18, which allows the trial court to set the place of trial,111 and
in a rare case may grant a change of venue.112
For Convenience.
Under Rule 21(b) of the Federal Rules of Criminal Procedure, “Upon the
defendant's motion, the court may transfer the proceeding, or one or more counts,
against that defendant to another district for the convenience of the parties and
prejudicial that trial proceedings must be presumed to be stained, and , if so, grant a change
of venue prior to jury selection. However, only in extreme circumstances may prejudice to
a defendant’s right to a fair trial be presumed from the existence of pretrial publicity itself.
Ordinarily the trial court must conduct a voir dire of prospective jurors to determine if actualth
prejudice exists”); United States v. Nelson, 347 F.3d 701, 707-708 (8 Cir. 2003)
107 United States v. Jamieson, 427 F.3d 394, 413 (6th Cir. 2005); United States v. Sherwood,
United States v. Nettles, 349 F.Supp.2d 1085, 1088 (N.D.Ill. 2004).
108 United States v. Nelson, 347 F.3d 701, 709 (8th Cir. 2003); United States v. Allee, 299
F.3d 996, 1000 (8th Cir. 2002); United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003);
United States v. Johnson, 354 F.Supp.2d 939, 982 (N.D. Iowa 2005).
109 United States v. Jamieson, 427 F.3d 394, 413 (6th Cir. 2005); United States v. Higgs,
United States v. Brandon, 17 F.3d 409, 441 (1 Cir. 1994); United States v. Nettles, 349
F.Supp.2d 1085, 1088 (N.D.Ill. 2004); United States v. Johnson, 354 F.Supp.2d 939, 982
(N.D. Iowa 2005).
110 United States v. Nelson, 347 F.3d 701, 709 (8th Cir. 2003)(jury pool survey indicated
“only 29% of those jurors had formed strong or fixed opinions about the case”); United
States v. Blom, 242 F.3d 799, 804 (8th Cir. 2001)(jury pool drawn from the entire state,
questionnaires to probe impartiality sent to prospective jurors, increase in the number of
peremptory strikes).
111 United States v. Knox, 363 F.Supp.2d 845, 847 (W.D.Va. 2005)(scheduling retrial in
another division following media attention surrounding the racketeering trial that ended inth
a hung jury); United States v. Dakota, 197 F.3d 821, 826-27 (6 Cir. 2000)(finding no abuse
of discretion when the district court scheduled trial in different city within the same district
in a case involving an anonymous jury empaneled “to minimize the prejudicial effects of
pretrial publicity and an emotional, political atmosphere”); but see, United States v. Lentz,
352 F.Supp.2d 718, 722-23 (E.D.Va. 2005)(denying motion for retrial in another division
until after voir dire established it was necessary since nature and level of media coverage
was not so inherently prejudicial that taint had to be assumed).
112 United States v. McVeigh, 918 F.Supp. 1467 (W.D.Okla. 1996)(Oklahoma City bombing
case); United States v. Gordon, 380 F.Supp.2d 356, 365 (D.Del. 2005)(extensive press
coverage, much of it adverse; substantial evidence that a high percentage of potential jurors
had made up their minds and concluded the accused were guilty; trial could be transferred
from Wilmington to Philadelphia with little difficulty or inconvenience).
witnesses and in the interest of justice.” When weighing a motion for a transfer
under Rule 21(b), the lower federal courts frequently point to the ten factors
mentioned in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-44
(1964):
(1) location of [the] defendant;
(2) location of possible witnesses;
(3) location of events likely to be in issue;
(4) location of documents and records likely to be involved;
(5) disruption of defendant’s business unless the case is transferred;
(6) expense to the parties;
(7) location of counsel;
(8) relative accessibility of place of trial;
(9) docket condition of each district or division involved; and113
(10) any other special elements which might affect the transfer.
The motion runs to the discretion of the trial court, and the trial court’s decision
will only be overturned for an abuse of discretion114 such as a failure to apply the
proper standard.115 The defendant bears the burden of establishing that convenience
and the interests of justice compel a transfer.116 Professor Wright has described the
rule as one designed for the convenience of the accused:
Rule 21(b) gives the court ample power in every case to provide for trial in the
most convenient forum if the defendant makes such a request . . . One court has
said that the rule is only intended to insure defendant a fair trial, and that it must
be a rare case in which mere inconvenience to him will prevent a fair and just
113 In re United States, 273 F.3d 380, 387-88 (3d Cir. 2001); United States v. Morrison, 946
F.2d 484, 490 (7th Cir. 1991); United States v. Crutchfield, 379 F.Supp.2d 913, 923 (W.D.
Tenn. 2005); United States v. Stickle, 355 F.Supp.2d 1317, 1321 (S.D.Fla. 2004); United
States v. Johnson, 354 F.Supp.2d 939, 984 (N.D. Iowa 2005); United States v. Smallwood,
293 F.Supp.2d 631, 639-40 (E.D.Va. 2003); United States v. Carey, 152 F.Supp.2d 415, 421
(S.D.N.Y. 2001).
114 United States v. Jordan, 223 F.3d 676, 685 (7th Cir. 2000); United States v. Perry, 152
F.3d 900, 904 (8th Cir. 1998); United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2dth
Cir. 1990); United States v. Fagan, 821 F.2d 1002, 1008 (5 Cir. 1987).
115 In re United States, 273 F.3d 380, 389 (3d Cir. 2001)(record was unclear whether the
trial court required to accused to bear the burden of proof on the Rule 21(b) motion); In reth
Balsimo, 68 F.3d 185, 187 (7 Cir. 1995)(trial court erroneously applied a presumption
against transfers to a contiguous district except on a showing of truly compellingth
circumstances); United States v. McManus, 535 F.2d 460, (8 Cir. 1976)(finding an abuse
of discretion in granting a change of venue to the California district of residence of the
defendants because, “in view of the recent decisions of the Supreme Court that obscenity
vel non must be determined on a local community standard, we have no choice but to order
that this case be tried in Iowa. . . A stronger showing than made here, such as intentional
overreaching by the government, must be made, however, to overcome the government’s
choice of forum in postal obscenity cases”).
116 In re United States, 273 F.3d 380, 388 (3d Cir. 2001); United States v. Crutchfield, 379
F.Supp.2d 913, 923 (W.D. Tenn. 2005); United States v. Stickle, 355 F.Supp.2d 1317, 1321
(S.D.Fla. 2004); United States v. Quattrone, 277 F.Supp.2d 278, 279-80 (S.D.N.Y. 2003);
United States v. Carey, 152 F.Supp.2d 415, 421-23 (S.D.N.Y. 2001).
trial. This approach seems erroneous. Rule 21(a) is intended to protect
defendant’s right to a fair trial, while Rule 21(b) looks to a convenient trial. The
beneficent purposes of Rule 21(b) will be thwarted, also, if it is supposed that
there is a “general rule that a criminal prosecution should be retained in the
original district.”117
Be that as it may, a number of courts continue to observe a general rule that
prosecution should be kept in the district where the government filed it.118 Others119
appear to exercise their discretion to the same effect. Still others speak in terms
that seem at odds with the sentiments that led to drafting of the venue provisions in120
Article III and the Sixth Amendment. The more recently reported cases indicate
that few defendants are able to carry their burden.121 Those who do fall into two122
categories – (1) cases involve extraordinary facts, or (2) cases whose results defy
117 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE 401-403 (Crim. 3d ed. 2000), citing
United States v. Hinton, 268 F.Supp. 728, 731 (E.D.La. 1967), and quoting, United States
v. Bloom, 78 F.R.D. 591, 608 (E.D.Pa. 1977); see also, Marcus, Re-Evaluating Large
Multiple-Defendant Criminal Prosecutions, 11 WILLIAM & MARY BILL OF RIGHTS JOURNAL
67 (2002)(“Federal Rule of Criminal Procedure 21(b) allows the trial judge to transfer the
proceedings, at the defendant’s request, ‘in the interest of justice.’ However, the hope of
deference to negatively-impacted defendants never has been realized. These provisions. . .
often are not applied in favor of criminal defendants. To the contrary, they usually are
construed quite narrowly in response to removal motions based on venue hardships”).
118 United States v. Carey, 152 F.Supp.2d 415, 421 (S.D.N.Y. 2001); United States v.
Guastella, 90 F.Supp.2d 335, 338 (S.D.N.Y. 2000); United States v. Spy Factory, Inc., 951
F.Supp. 450 (S.D.N.Y. 1997); United States v. Wecker, 620 F.Supp. 1002, 1004 (D.Del.
119 United States v. Stickle, 355 F.Supp.2d 1317, 1321 (S.D.Fla. 2004)(“The burden falls
on the defendant to demonstrate a substantial imbalance of inconvenience to himself if he
is to succeed in nullifying the prosecutor’s choice of venue”).
120 United States v. McDade, 827 F.Supp. 1153, 1191 (E.D.Pa. 1993)(“the government
points out that it would be equally, if not more, difficult to get a fair trial in the Scranton
area, where nearly everyone at least knows of Mr. McDade, and where his case has received
plentiful press coverage. For this reason, the practical effect of this motion is substantial.
At oral argument, counsel for Mr. McDade conceded that Mr. McDade would be more likely
to get a favorable array of prospective jurors when picking from his friends, neighbors, and
constituents, than he would in a relatively strange vicinage. . . It must be remembered that
it is not just the defendant, but also the government, that is entitled to a fair trial”).
121 This is not to suggest that inconvenience to the defendant is always greater than
inconvenience to the government. Several cases seem to involve some governmental
administrative inconvenience and relatively little defendant inconvenience, e.g., cases where
defendants sought a transfer between the Eastern District and Southern District of New York
or between the Eastern District of Virginia and District of Columbia District, United States
v. Smallwood, 293 F.Supp.2d 631, 639-44 (E.D.Va. 2003); United States v. Elson, 968
F.Supp. 900, 902-904 (S.D.N.Y. 1997); United States v. Persico, 621 F.Supp. 842, 858-59
(S.D.N.Y. 1985).
122 United States v. McDonald, 740 F.Supp. 757, (D.Alaska 1990)(“The unpredictability
and probability of volcanic activity could radically disrupt the orderly course of trial.
Erratic accessibility is not an asset. Under the circumstances, western [district of]
Washington is more accessible than [the district of] Alaska”); United States v. Coffee, 113
explanation since their facts seem indistinguishable from those in the cases where the
motion was denied.123
For Plea and Sentencing.
Defendants who wish to waive their right to trial may petition the court in the
district in which they have been charged for a change of venue, for sentencing
purposes, to the district in which they are being held or are present.124 By definition,
the rule requires the pendency of an indictment, information, or complaint in the
district from which the accused seeks a transfer of venue.125 Prosecutors in both
districts must concur.126 Should the defendant subsequently fail to plead as agreed
or should the receiving court refuse to accept the plea, the transfer is revoked.127
F.Supp.2d 751, 759 (facts so one-sided that the court was driven to observe, “one wonders
why the Government brought this prosecution in this district in the first place . . . the
Government assures us that this was not a tactic to maximize the pressure for guilty pleas”).
123 United States v. Lopez, 343 F.Supp.2d 824, 825-26 (E.D.Mo. 2004)(in which the court
rejected the magistrate judge’s recommendation that the motion be denied; the magistrate
judge’s report included in the opinion reads like many of the opinions where the motion was
ultimately denied); United States v. Templin, 251 F.Supp.2d 1223, 1225 (S.D.N.Y.
2003)(“In this case, Factor (8)[accessibility of trial location] has no bearing; and the docket
considerations (factor (9) in Indiana as compared to the Southern District of New York have
not been addressed by either party. Factors (4)[evidence location] and (7) [counsel location]
favor the government marginally. But factors (1)[defendant location], (3)[location of events
at issue], (5)[disruption of the defendant’s business], and (6)[party expenses] weigh heavily
in favor of the defendant”)(this is an equation that in various other cases in the Southern
District presaged denial); accord, United States v. Morris, 176 F.Supp.2d 668, 672-73
(N.D.Tex. 2001).
124 “A prosecution may be transferred from the district where the indictment or information
is pending, or from which a warrant on a complaint has been issued, to the district where the
defendant is arrested, held, or present if: (1) the defendant states in writing a wish to plead
guilty or nolo contendere and to waive trial in the district where the indictment, information,
or complaint is pending, consents in writing to the court's disposing of the case in the
transferee district, and files the statement in the transferee district; and (2) the United States
attorneys in both districts approve the transfer in writing,” F.R.Crim.P. 20(a).
125 Id.; United States v. Sevick, 234 F.3d 248, 250 (5th Cir. 2000).
126 “A prosecution may be transferred from the district where the indictment or information
is pending, or from which a warrant on a complaint has been issued, to the district where the
defendant is arrested, held, or present if: . . . (2) the United States attorneys in both districts
approve the transfer in writing,” F.R.Crim.P. 20(c); United States v. Lovell, 81 F.3d 58, 60-1thth
(7 Cir. 1996); United States v. French, 787 F.2d 1381, 1384-385 (9 Cir. 1986); Unitedth
States v. Herbst, 565 F.2d 638, 643 (10 Cir. 1977).
127 “If the defendant pleads not guilty after the case has been transferred under Rule 20(a),
the clerk must return the papers to the court where the prosecution began, and that court
must restore the proceeding to its docket. The defendant's statement that the defendant
wished to plead guilty or nolo contendere is not, in any civil or criminal proceeding,
admissible against the defendant,” F.R.Crim.P. 20(c); United States v. Khan, 822 F.2d 451,th
455 (4 Cir. 1987)(following transfer under the rule, a district court has no authority to sua
sponte withdraw the defendant’s guilty plea, substitute a plea of nolo contendere, and acquitst
the defendant); In re Arvedon, 523 F.2d 914, 916 (1Ccir. 1975)(“rules 11 and 20 should be
Juveniles who wish to waive federal delinquency proceedings enjoy similar
benefits. 128
read in harmony with one another. The court is, of course, not obliged to accept an
involuntary or improvident plea of guilty because the defendant comes before it on a rule
transfer. But, since every defendant who invokes Rule 20 does so from a desire not to return
to the indicting district, that desire, by itself, is an impermissible reason to reject a proffered
plea of guilty under Rule 11”).
128 “A juvenile, as defined in 18 U.S.C. § 5031, may be proceeded against as a juvenile
delinquent in the district where the juvenile is arrested, held, or present if: (A) the alleged
offense that occurred in the other district is not punishable by death or life imprisonment;
(B) an attorney has advised the juvenile; (C) the court has informed the juvenile of the
juvenile's rights – including the right to be returned to the district where the offense
allegedly occurred – and the consequences of waiving those rights; (D) the juvenile, after
receiving the court's information about rights, consents in writing to be proceeded against
in the transferee district, and files the consent in the transferee district; (E) the United States
attorneys for both districts approve the transfer in writing; and (F) the transferee court
approves the transfer,” F.R.Crim.P.20(d).