Venue for Federal Criminal Prosecution: Proposals in the 109th Congress
Venue for Federal Criminal Prosecution:
th
Proposals in the 109 Congress
Charles Doyle
Senior Specialist
American Law Division
Summary
Venue, the place where federal criminal trials may be held, is a matter ofth
constitutional and statutory law. Several proposals in the 109 Congress would have
expanded federal venue. The Supreme Court’s recent decisions in Cabrales and
Rodriguez-Moreno suggest that a few of the proposals might have been more limited
than their terms might indicate. The proposals dealt with venue in cases involving
capital offenses, obstruction of justice, violent crime, drug trafficking offenses, false
statements, failure to pay spousal support, wartime procurement fraud, and trial in
emergency conditions. They appeared in H.R. 229, H.R. 970, H.R. 1279, H.R. 1751,
H.R. 4437, H.R. 4472, S. 12, S. 155, S. 1968, S. 2356, S. 2361, S. 2454, S. 2611, S.
Related reports include CRS Report RL33223, Venue: A Legal Analysis of Where
a Federal Crime May Be Tried, which is available in abbreviated form as CRS Report
RS22361, Venue: A Brief Look at Federal Law Governing Where a Federal Crime May
Be Tried, both by Charles Doyle.
Introduction. The Constitution guarantees those accused of a federal crime the
right to trial in the state where the crime was committed, U.S. Const. Art.III, §2, cl.3, and
the right to trial by a jury selected from the district where the crime was committed, U.S.
Const. Amend. VI. In 1998, the Supreme Court held that federal charges involving
money laundering, in Florida but of the proceeds from drug trafficking in Missouri, could
not be tried in Missouri, United States v. Cabrales, 524 U.S.1, (1998). The following
year, the Court held that use of a firearm, in Maryland, in connection with a multi-state
kidnaping could be tried in New Jersey, United States v. Rodriguez-Moreno, 526 U.S. 275
(1999). Subsequent Congresses have seen a number of proposals to expand venue for theth
trial of various federal criminal offenses. The pattern continued in the 109.
Constitutional venue requirements understood in light of Cabrales and Rodriguez-Moreno
might have precluded realization of the full literal benefits of some of these proposals.
Cabrales and Rodriguez-Moreno. Cabrales is not as restrictive as it might
seem at first; nor is Rodriguez-Moreno as permissive. Cabrales laundered the Missouri
drug money in Florida, but there was no evidence that she was a member of the Missouri
drug trafficking conspiracy or that she had transported the money from Missouri to
Florida. The Court acknowledged that she might have been tried in Missouri had either
been the case, 524 U.S. at 8, 10.
Rodriguez-Moreno and his confederates kidnapped a drug trafficking associate and
transported him over the course of time from Texas to New Jersey and then to Maryland.
Rodriguez-Moreno acquired the firearm with which he threatened the kidnap victim in
Maryland but was tried in New Jersey for using a firearm “during and in relation to a
crime of violence [kidnaping]” in violation of 18 U.S.C. 924(c)(1). Section 924(c)(1) in
the eyes of the Court has “two distinct conduct elements . . . using and carrying of a gun
and the commission of a kidnaping,” 526 U.S. at 280 (emphasis added). A crime with
distinct conduct elements may be tried wherever any of those elements occurred;
kidnaping is a continuous offense that in this case began in Texas and continued through
New Jersey to Maryland; venue over the kidnaping, a conduct element of the section
924(c)(1), was proper in Texas, New Jersey or Maryland; consequently venue over the
violation of section 924(c)(1) was proper in either Texas, New Jersey or Maryland, 526
U.S. at 280-82.
The Court was quick to distinguish Cabrales from 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 the offense begun and completed by others.” In Rodriguez-
Moreno, “given the ‘during and in relation to’ language, the underlying crime of violence
is a critical part of the §924(c)(1) offense,” 526 U.S. at 280-81 n.4. The Court also
declined to address the so-called “effects” test used by the some of the lower federal
courts in obstruction of justice and Hobbs Act (“effect”) cases to determine the presence
of proper venue, 526 U.S. at 279 n.2.
Obstruction of Justice. One of the most common venue proposals in the 109th
Congress related to retaliation against witnesses in federal proceedings, 18 U.S.C. 1513.
It is found in H.R. 970/S. 155 (§207), S. 1968(§8), H.R. 1751(as passed by the House,
§10/ as passed by the Senate, §204), H.R. 4028 (§312), H.R. 4472(§715)(as passed by the
House), and S. 2767 (§1086) (as passed by the Senate). Under the proposal a new
subsection would have been added to section 1513 of Title 18 reading, “A prosecution
under this section may be brought in the district in which the official proceeding (whether
or not pending, about to be instituted or completed) was intended to be affected or was
completed, or in which the conduct constituting the alleged offense occurred,” proposed
18 U.S.C. 1513(g). The language replicated that found in 18 U.S.C. 1512(h) concerning
venue in federal witness tampering cases and added to section 1512 in 1988 prior to
Cabrales or Rodriguez-Moreno.
The “official proceeding affected” would appear to have more closely resembled the
“circumstance element” found insufficient in Cabrales than the “conduct element”
approved in Rodriguez-Moreno. In what seems to be the only federal appellate decision
to address the question, the Fourth Circuit concluded that its earlier approval of venue
under section 1513 in the district where the official proceeding had been, were being or
would be held “cannot be reconciled with the Supreme Court’s later decisions in Cabrales
and Rodriguez-Moreno. Rather the Supreme Court’s recent venue decisions instruct that
the nature of the crime refers only to the conduct constituting the offense and that the
conduct constituting the offense is limited to essential conduct elements,” United States
v. Bowens, 224 F.3d 302, 312 (4th Cir. 2000).
Violence During and In Relation to Drug Trafficking. A second common
proposal would have built upon the scheme approved in Rodriguez-Moreno. The statute
before the Court, 18 U.S.C. 924(c)(1) outlaws the use of a firearm “during and in relation”
to a crime of violence or serious drug offense. Several bills — e.g., H.R. 970/S. 155
(§108), H.R. 1279 (as passed the House) (§106) — proposed a new federal crime, one that
would have prohibited the commission of a crime of violence “during and in relation” to
a drug trafficking offense, proposed 21 U.S.C. 865. They would have permitted
prosecution for such an offense “in (1) the judicial district in which the murder or other
crime of violence occurred; or (2) any judicial district in which the drug trafficking crime
may be prosecuted,” proposed 21 U.S.C. 865(b).
This analogy to Rodriguez-Moreno seems likely to have worked, especially if the
drug trafficking offense, like the kidnaping offense in Rodriguez-Moreno, was considered
a continuous offense in time and space. Many drug trafficking offenses are likely to be
considered continuing offenses for venue purposes, see e.g., United States v. Zidell, 323th
F.3d 412, 422 (6 Cir. 2003)(possession with intent to distribute); United States v. Brown,
although Rodriguez-Moreno used a firearm during and in relation to a continuing offense
(kidnaping) that occurred in the same district, that does not appear to have been necessary
for the Court’s analysis. The Court’s analysis suggests no different result if the kidnap
victim had been kept in New Jersey and never been transported to Maryland, but
Rodriguez-Moreno had traveled to Maryland and used a firearm there to a discourage an
informant from disclosing the victim’s whereabouts to authorities. “Where a crime
consists of distinct parts which have different localities, the whole may be tried where any
part can be proved to have been done,” 526 U.S. at 281. In the case of the proposal, the
new crime apparently would have consisted of two conduct elements, a crime of violence
and a drug trafficking crime; it would seem to have followed that the new crime might
have been tried wherever either the crime of violence or a continuous drug trafficking
offense occurred.
Venue in Capital Cases. The same bills that propose venue changes for drug-
related crimes of violence, would have replaced an existing provision relating to venue
in capital cases, H.R. 970/S. 155 (§203), H.R. 1279 (as passed by the House)(§110), and
H.R. 4472 (as passed by the House)(§810). Existing law provides that where possible
capital cases should be tried in the county in which the crime occurred, 18 U.S.C. 3235.
Section 3235 is followed by a section that provides that murder and manslaughter cases
should be tried where the death-causing injury was inflicted regardless of where death
actually occurs, 18 U.S.C. 3236. The more specific instruction of section 3236 overrides
the general multi-district venue provisions of 18 U.S.C. 3237(a) which provides that
multi-district crimes may be tried where they are begun, continued, or completed and that
offenses involving the use of the mails, transportation in interstate or foreign commerce,
or importation into the United States may be tried in any district from, through, or into
which commerce, mail, or imports travel.
At least one federal appellate court has held that the specific instruction of section
murder offenses, such as murder by a federal prisoner, 18 U.S.C. 1118. Section 3236
does not apply, the court held, to “death resulting” cases, cases where murder is a
sentencing element rather than a substantive element of the offense, such as in cases of
a violation of 18 U.S.C. 924(c)(use of a firearm during and relating to the commission of
crime of violence), the sentence for which is determined in part by whether death resulted
from the commission of the offense, United States v. Barnette, 211 F.3d 803, 814 (4th Cir.
The proposal would have repealed the “county trial” language of section 3235 and
replaced it with language reminiscent of the multi-district terms of section 3237(a): “(a)
the trial of any offense punishable by death shall be held in the district where the offense
was committed or in any district in which the offense began, continued, or was completed.
(b) If the offense, or related conduct, under subsection (a) involves activities which affect
interstate or foreign commerce, or the importation of an object or person into the United
States, such offense may be prosecuted in any district in which those activities occurred.”
Although it is far from certain, the proposal apparently intended to repeal the “county
trial” feature of section 3235 and, by indirection, repeal the section 3236 override of
multi-district section 3237 in murder cases. The manslaughter features of 3236 would
presumably have continued in place since they are not capital cases and thus by definition
would have been beyond the reach of the proposed capital venue provisions of the
amended section 3235.
Constructional quandaries aside, it is not clear that predicating venue upon the
interstate impact of related conduct will always survive analysis under Cabrales. The
proposal apparently would have permitted trial of an offense in a district in which related
conduct affecting interstate or foreign commerce occurred even if the offense itself was
committed entirely in another district. The Cabrales’ money generating drug trafficking
in Missouri would seem to qualify as conduct related to the laundering in Florida. Nor
would the proposal always meet Rodriguez-Moreno’s “conduct element” standard. There
was nothing in the proposal that would have required that the “related conduct affecting
interstate commerce” be an element of the offense to be tried. In fact, the alternative
wording — “if the offense, or related conduct . . . involves activities which affect
interstate commerce” — seemed to contemplate situations in which affecting commerce
was not an element, conduct or otherwise, of the offense.
False Statements in Passport Applications. H.R. 4437 (§213), as passed by
the House, would have outlawed making false statements in a passport application,
mailing or presenting a passport application containing a false statement, or causing the
production of a passport by fraud or false application, proposed 18 U.S.C. 1542. The
bill’s additional venue section would have allowed prosecution in “(1) any district in
which the false statement or representation was made; or (2) any district in which the
passport application was prepared, submitted, mailed, received, processed, or adjudicated;
or (3) in the case of an application prepared and adjudicated outside the United States, in
the district in which the resultant passport was produced,” proposed 18 U.S.C. 1551.
Similar provisions were found in S. 2611 (§208), as passed by the Senate, S. 2612 (§208),
and S. 2454 (§208). The proposals seemed compatible with constitutional requirements
as explained in Cabrales and Rodriguez-Moreno. With the exception of subsection (3),
venue seemed to be pegged to the conduct elements of the new offense. As to subsection
(3), the Constitution authorizes Congress to provide venue for crimes committed outside
of the United States, U.S. Const. Art.III, §2, cl.3; Amend. VI.
Violence in Aid of Racketeering. Section 105 of H.R. 1279, as passed by the
House, would have amended 18 U.S.C. 1959(a) to outlaw crimes of violence committed
(1) for hire at the behest of a racketeering enterprise, (2) to further the purposes of a
racketeering enterprise, or (3) to acquire, maintain or enhance the offender’s position
within a racketeering enterprise. It would have added a new subsection 1959(c) under
which violations of the section may be prosecuted in “(1) the judicial district in which the
crime of violence occurred; or (2) in any judicial district in which racketeering activity of
the enterprise occurred .” Section 1959 would have used the definition of “racketeering
activity” found in 18 U.S.C. 1961 that lists the crimes which mark the activities of a
racketeer influenced and corrupt organization (RICO), 18 U.S.C. 1959(b). It is uncertain
whether venue over a section 1959 offense would have been constitutionally proper in any
district where a RICO predicate offense (“racketeering activity”) had been committed.
For instance, the section 1959 “for hire by a RICO enterprise” crime of violence might
easily have been compared to the “after the fact” money laundering in Cabrales. On the
other hand, the section 1959 “in furtherance of a RICO enterprise” crime, and perhaps the
“in furtherance of a position in a RICO enterprise”crime, seem to more closely resemble
the conspiratorial or aiding and abetting exceptions suggested in Cabrales.
Runaway Spouses. H.R. 229 would have outlawed interstate flight to avoid
court ordered payments to a spouse or ex-spouse and the failure to make such payments
with respect to spouse or ex-spouse living in another state, proposed 18 U.S.C. 228A(a).
Venue would have been proper in the district in which either party resided or any other
district recognized by law, proposed 18 U.S.C. 228A(e). In a case prior to Rodriguez-
Moreno but after Cabrales, the Eleventh Circuit upheld an identical venue provision
found in the child support provisions of 18 U.S.C. 228, United States v. Muench, 153 F.3d
1298, 1300-304 (11th Cir. 1998). The results would seem to have been compatible with
Rodriguez-Moreno. Since payment would have involved both tender and receipt, failure
to pay would have constituted a “conduct element” occurring both where the debtor and
the creditor were found.
Trial in Emergency Conditions. In emergency conditions and with the consent
of the accused, P.L. 109-63, the Federal Judiciary Emergency Special Sessions Act of
2005, criminal trials may be held outside the state in which the offense occurred before
a jury drawn from outside the district in which the offense occurred, 28 U.S.C. 141(b).
Although there is no Supreme Court precedent directly on point, the lower federal
appellate courts have held without exception that the accused may waive the
Constitution’s venue requirements, see e.g., United States v. Grenoble, 413 F.3d 569, 573thth
(6 Cir. 2005); United States v. Ebersole, 411 F.3d 517, 525 (4 Cir. 2005); United States
v. Strain, 396 F.3d 689, 693 (5th Cir. 2005); United States v. Rendon, 354 F.3d 1320,th
War Profiteering and Fraud. Section 502 of S. 12 would have outlawed wartime
profiteering and fraud and permitted trial anywhere the general venue chapter of Title 18
(chapter 211) would have authorized it as well as in “any district where any act in
furtherance of the offense took place” or where “any party to the contract or provider of
goods or services is located.” The proscription extends to fraud, concealment or
falsification of material facts, and overvaluation in a procurement context, proposed 18
U.S.C. 1038(c). It does require the participation of multiple defendants. Comparable
proposals appeared in H.R. 4682 (§705), S. 2356 (§2), S. 2361 (§101), and S. 3875
(§1402). Other than in cases brought in reliance on chapter 211 or where the misconduct
occurred overseas, establishing compatibility between the new venue claims and the
constitutional requirements as explained in Cabrales and Rodriguez-Moreno might have
proved challenging.