What's New with Venue?

By Professor Laurie Levenson

[This article was originally posted in the Los Angeles Daily Journal.]

The fundamental rules of venue are not that difficult. The government must prosecute an offense in a district where the crime was committed. See U.S. Const. art. III, § 2, cl. 3; U.S. Const., Amend. VI; Fed. R. Crim. P. 18. Generally, venue requirements for criminal cases are set by statute. See 18 U.S.C. §§ 3234 - 3244. If a crime takes place in multiple venues, the prosecutor usually has discretion as to where to charge the crime.

Despite these basic rules, interesting venue issues arise all the time. In the past year, there have been several cases addressing venue challenges in federal court. For example, in United States v. Gonzalez, 2012 U.S. App. LEXIS 13149 (9th Cir. 2012), the Ninth Circuit once again ruled on a challenge to venue in a conspiracy case. Circuit Judge Richard C. Tallman began his opinion by noting that "[d]etermining where an offense occurred can be quite tricky - particularly for continuing crimes, like conspiracy, where the conspirators' activities often have a ripple-like effect that may involve numerous districts." Id. at *1.

In Gonzalez, defendant was charged with conspiring to sell drugs. During the alleged conspiracy, Gonzalez never set foot in the district where the crime was charged. Rather, venue was based upon two telephone calls to Gonzalez's cell number that a confidential informant ("CI") made at the direction of the Drug Enforcement Administration ("DEA"). Nothing in the stipulated facts indicated whether Gonzalez knew or suspected that the CI was calling from another district at the time of the calls. However, the Ninth Circuit panel held that it did not matter. Because the calls were used to negotiate the sale and delivery of drugs, venue was proper in the district from which the calls were made.

Congress has sanctioned the broad reach of venue in conspiracy cases. For a continuous crime, such as conspiracy, venue lies in any district where the "offense was begun, continued, or completed." 18 U.S.C. § 3237(a). Courts long ago interpreted this to mean that "a conspiracy charge is proper where the conspiracy was formed or where any overt act in furtherance of the conspiracy occurred." Gonzalez, supra at *5, citing United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1994). Furthermore, it makes no difference that the CI who made the call secretly intended to frustrate the conspiracy or that the defendant never intended to enter the CI's district. "[B]ecause conspiracy is a continuing offense, the crime occurs both where a communication is made and where it is received." See Andrews v. United States, 817 F.2d 1277, 1279 (7th Cir. 1987).

Given these broad venue rules, prosecutors have the ability to strategically decide where to charge conspiracy cases. Prosecutors can shop for venues where juror attitudes or judicial biases may favor the government. Although some courts have not yet decided whether prosecutors can do anything to create venue in a conspiracy case, simply having informants make calls from outside the district is not enough to claim that the government improperly "manufactured" venue. See United States v. Chi Tong Kuok, 671 F.3d 931, 937-38 (9th Cir. 2012).

In fact, in most jurisdictions, a claim of "manufactured" venue is a non-starter. For example, the Fourth Circuit has plainly stated, "There is no such thing as 'manufactured venue' or 'venue entrapment.'" United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995). See also United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir. 2006) (holding that the entrapment doctrine does not apply to venue). Accordingly, even if government agents induce a defendant or his or her co-conspirators to commit overt acts in their venue of choice, a defendant cannot claim that there is no venue in the district.

Many different crimes are considered continuing offenses that permit venue to be set in a district different from where a crime commenced. Consider, for example, this year's case of the drunken United Express pilot. In United States v. Cope, 676 F.3d 1219 (10th Cir. 201), Aaron Cope was not coping too well when he flew puffy faced and bloodshot from Austin to Denver. When a fellow crew member "took a big whiff" of Cope and realized that he reeked from the smell of alcohol, Cope was referred for a breathalyzer test. His first test was a .094. Thankfully, he was not permitted to fly the next leg of his scheduled flight. He was indicted soon thereafter for operating a common carrier while under the influence of alcohol in violation of 18 U.S.C. § 342. Cope claimed there was no venue in the district where he was apprehended; the court disagreed. It held that venue was proper in any district through which Cope traveled on the flight, including where he landed.

Even cases involving false statements and striped bass may open the door to venue far from where the false statement was actually made. Venue for violations of 18 U.S.C. § 1001 (false statements to a government agency) lies both where the false statement is made and where its prescribed effects are felt. Thus, when the operators of Oceanpro, a seafood wholesale operation, falsely stated in Washington, D.C., that they had never purchased any untagged striped bass, they could be charged in Maryland because they had purchased untagged striped bass harvested from the Potomac River. Venue was proper because their false statements affected a Maryland-based investigation of their illegal fish activities. See also United States v. Rubin/Chambers, 798 F.Supp.2d 517 (S.D.N.Y. 2011) (false statements made to federal agents in Beverly Hills affected New York-based agents investigating fraud in New York).

While it is difficult to win a challenge to venue, it is not impossible. Just this year, in United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012), Louisiana Congressman William J. Jefferson was able to vacate one of his convictions for improper venue. The government had charged a wire fraud occasioned by a single telephone call. Although Jefferson may have formed the intent to defraud in the district where the crime was charged, the appellate court held that venue was not established because the call did not originate nor was it received in that district. The other ten convictions against Jefferson were affirmed.

The primary safeguard against venue shopping is a defendant's right under Fed. R. Crim. P. 21 to seek transfer of venue. Rule 21(a) requires transfer when the defendant has shown a level of prejudice that "is likely to mar a trial in the original district." United States v. Walker, 665 F.3d 212, 223 (1st Cir. 2011). "This requires prejudice so great that the defendant cannot receive a fair trial." Id. A second basis for transferring venue is for the convenience of the parties and the interests of justice. Fed. R. Crim. P. 21(b).

In trying to use these venue-transfer rules, defendants often have a glorified view of how much attention their crimes have attracted. For example, in United States v. Quiles-Olivo, 2012 U.S. App. LEXIS 13398 (1st Cir. 2012), a defendant donned a t-shirt with the words "Desobediencia Civil" (which translates to "Civil Disobedience") and destroyed computer equipment in a room adjacent to the court clerk's office. Defendant moved for change of venue, claiming he could not receive a fair and impartial trial in the original district because of excessive prejudice. Alternatively, he argued that his case should be transferred for the convenience of the parties, witnesses, victims and in the interest of justice.

The court rejected his claim. It wrote, "[T]here is no indication ... that Quiles's altercation with the computer equipment entered the local zeitgeist to such a magnified or spectacular extent that it might have tainted the jury pool." Id. at *10. Confident that the media was not flocking to the case, the court properly denied the request for change of venue.

One argument that is likely to fail in seeking a venue change is a claim that jurors in another district are likely to be more understanding of the defendant's activities. In United States v. Datta, 797 F.Supp.2d 448 (S.D.N.Y. 2011), defendant, Vikram Datta, sought a change of venue to Texas because "things that might seem inherently suspect to New York jurors could readily be seen by Texas jurors as normal and appropriate." Id. at 451. The court responded curtly, "[a] moment's reflection on the fact that jurors regularly decide such matters as what would be obvious to a person skilled in art or science with which they were personally unfamiliar ... demonstrates the fallacy of the [defendant's] argument. Jurors are not selected for their special knowledge of the factual milieus in which particular cases arise. They are selected for their neutrality and their ability to consider the evidence presented to them fairly and properly." Id.

Both prosecutors and defense counsel try to use the venue rules to obtain the most advantageous location to try their cases. In the end, the question of venue often comes down to a discretionary call by the judge about where the case can be fairly tried. Statutory provisions regarding venue are the starting point in the court's analysis; they are not, however, the finishing line. Defendants seeking venue change should focus not only on where a crime technically occurred, but on very practical reasons why the court will want to change venue. Witness availability, costs of accessing evidence, location of counsel and the docket conditions of each district can be critical to the court's decision. See generally Platt v. Minn. Mining Mfg. Co., 376 U.S. 240, 243-44 (1964). There are no venue rules in the abstract. By definition, venue depends on both how a crime occurs and the challenges of prosecuting it.