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SCOTUS: Defendant convicted in the wrong venue can be retried

Smith v. United States, USSC No. 21-1576, 2023 WL 4002949 (June 15, 2023), affirming United States v. Smith, 22 F. 4th 1236 (11th Cir. 2022); Scotusblog page (including links to briefs and commentary).

A unanimous Supreme Court holds that the Constitution does not bar retrial of a defendant whose conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location.

Smith was charged under federal law with theft of trade secrets and extortion after he hacked into the website of a business and got access to proprietary data. The charges were filed in the Northern District of Florida, where the business was located. Smith unsuccessfully argued in the trial court this was the wrong venue, claiming he should be charged in the Southern District of Alabama, where he lived, or in the Middle District of Florida, where the servers storing the data were located. On appeal, the 11th Circuit agreed the trade secrets charge was brought in the wrong district, but held the remedy for that error was a retrial in a proper venue. (Slip op. 1-2).

In the Supreme Court Smith argues that retrial is barred by the Constitution. The Court rejects all his arguments, working from the general rule that “[e]xcept as prohibited by the Double Jeopardy Clause, it ‘has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events.’” (Slip op. 3 (quoted source omitted)).

First, Smith cites the “venue” clause, Art. III, § 2, cl. 3, which says “[t]rial of all Crimes … shall be held in the State where the … Crimes shall have been committed.” But, the Court holds, “[n]othing about the language that frames this requirement suggests that a new trial in the proper venue is not an adequate remedy for its violation.” (Slip op. 4-6).

Second, Smith cites the “vicinage” clause of the Sixth Amendment guarantees “the right to … an impartial jury of the State and district wherein the crime shall have been committed.” While this reinforces the venue clause, it also fails to provide textual support for a remedy different than the one available when the venue clause is violated. Further, “[t]he vicinage right is only one aspect of the jury-trial rights protected by the Sixth Amendment, and we have repeatedly acknowledged that retrials are the appropriate remedy for violations of other jury-trial rights.” (Slip op. 6-7 (citing cases in which Sixth Amendment violations were remedied by retrial)).

As is now de ri·gueur in federal constitutional litigation, the Court examines the history underlying the two clauses and concludes that history “cannot justify an exception to the retrial rule.” (Slip op. 7-14).

Smith’s final claim is that even if the venue and vicinage clauses do not bar retrial of their own force, they are “inseparably interwoven” with the Double Jeopardy Clause, which, he claims, precludes retrial here. The Court holds that the Double Jeopardy Clause is not implicated by a retrial in a proper venue:

A judicial decision on venue is fundamentally different from a jury’s general verdict of acquittal. When a jury returns a general verdict of not guilty, its decision “cannot be upset by speculation or inquiry into such matters” by courts. …. To conclude otherwise would impermissibly authorize judges to usurp the jury right. ….

This rationale is consistent with the general rule that “[c]ulpability … is the touchstone” for determining whether retrial is permitted under the Double Jeopardy Clause. …. When a trial terminates with a finding that the defendant’s “criminal culpability had not been established,” retrial is prohibited. …. This typically occurs with “ ‘a resolution, correct or not, of some or all of the factual elements of the offense charged.’” ….

Conversely, retrial is permissible when a trial terminates “on a basis unrelated to factual guilt or innocence of the offence of which [the defendant] is accused.” …. For example, the Double Jeopardy Clause is not triggered when a trial ends in juror deadlock, or with a judgment dismissing charges because of a procedural issue like preindictment delay, … In these circumstances, the termination of proceedings is perfectly consistent with the possibility that the defendant is guilty of the charged offense.

The reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of acquittal” under Rule 29, plainly does not resolve “the bottom-line question of ‘criminal culpability.’” …. Instead, such a reversal is quintessentially a decision that “the Government’s case against [the defendant] must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.” …. In this case, then, the Eleventh Circuit’s decision that venue in the Northern District of Florida was improper did not adjudicate Smith’s culpability. It thus does not trigger the Double Jeopardy Clause.

(Slip op. 14-16).

Article I, § 7 of the Wisconsin Constitution assures the right to a “trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.” The law by which venue is “ascertained” is § 971.19. The defendant may, of course, waive this right, and does so by moving to change venue. Otherwise, venue cannot be changed. State v. Mendoza, 80 Wis. 2d 122, 135-48, 258 N.W.2d 260 (1977). The state has the burden to prove venue (though it’s rarely contested), but venue is not an element of the offense. State v. Dombrowski, 44 Wis. 2d 486, 171 N.W.2d 349 (1969); Smazal v. State, 31 Wis. 2d 360, 142 N.W.2d 808 (1960).

No Wisconsin case addresses arguments like those made in Smith. However, Mendoza ordered a new trial in a case where the trial court improperly ordered a change of venue on its own over the defendant’s objection. 80 Wis. 2d at 145. And, like the federal Constitution’s venue and vicinage provisions, Art. I, § 7 provides no textual support to argue against retrial. Further, a challenge to retrial under the state constitution’s Double Jeopardy clause, Art. I, § 8(1) has no prospect of success, given the holding in Smith and the fact that the federal and state Double Jeopardy protections are coextensive and treated as one. State v. Gruetzmacher, 2004 WI 55, ¶21, 271 Wis. 2d 585, 679 N.W.2d 533.

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