This Report summarizes cases granted review on December 13, 2022 (Part I).
Case Granted Review: Smith v. United States, 21-1576
Smith v. United States, 21-1576. The question presented is “[w]hether the proper remedy for the government’s failure to prove venue is an acquittal barring reprosecution of the offense, . . . or whether instead the government may re-try the defendant for the same offense in a different venue[.]” Petitioner Timothy Smith is a software engineer and avid fisherman who lives in Mobile, Alabama. He hacked into the website of StrikeLines, a small business in Pensacola, Florida that identifies the locations of artificial fishing reefs, which commercial and recreational fishermen have paid to place, and sells those reefs’ coordinates to other fishermen. Smith started offering others access to StrikeLines’s data on Facebook, which prompted StrikeLines’s customers to complain to the company. Smith offered to remove his Facebook posts and stop interfering with StrikeLines’s business if StrikeLines would give him its “deep grouper numbers.” StrikeLines’s owners contacted law enforcement, and Smith was later indicted by a federal grand jury in the Northern District of Florida for intentionally accessing protected computer without authorization and obtaining information valued in excess of $5000; theft of trade secrets; and transmitting a threat through interstate commerce with intent to extort a thing of value. The jury found petitioner not guilty on the computer-fraud count but found him guilty on the trade-secrets-theft and extortion counts. The Eleventh Circuit affirmed Smith’s extortion conviction, but vacated Smith’s trade-secrets-theft conviction on venue grounds. The court looked to the “essential conduct elements” of the offense, none of which had been committed in the Northern District of Florida. 22 F.4th 1236.
With respect to remedy, Smith sought entry of a judgment of acquittal on his theft-of-trade-secrets count. Relying on circuit precedent, the Eleventh Circuit found that the “remedy for improper venue is vacatur of the conviction, not acquittal or dismissal with prejudice.” The court relied on its decision in Haney v. Burgess, 799 F.2d 661, 664 (11th Cir. 1986) (per curiam), which held that “retrial in a proper venue after [a court] vacate[s] a conviction for improper venue” is permissible because the Double Jeopardy Clause “is not implicated by” the government’s failure to prove venue. The court thus vacated Smith’s theft-of-trade-secrets count, and remanded for resentencing on the extortion count.
Smith argues that “[t]he Fifth and Eighth Circuits require entry of a judgment of acquittal when the government has failed to prove venue at trial. But the Sixth, Ninth, Tenth, and Eleventh Circuits hold that failure to prove venue requires vacatur or dismissal without prejudice and thus does not bar re-prosecution.” On the merits, he argues that “[w]hen the government fails to prove venue at trial, the constitutionally required result is the entry of a judgment of acquittal, for two independent reasons. First, venue is a constitutionally imposed element of every offense, and the government’s failure to bear its burden on venue should produce the same result as it would for any other element—acquittal and preclusion of a subsequent prosecution under the Double Jeopardy Clause.” Smith notes that “[t]he fact that venue does not go to the actus reus or mens rea elements of the crime does not obviate its status as a fact that must be proven to the jury to obtain a valid conviction.” “Second,” argues Smith, “even aside from the double-jeopardy rationale, the Constitution independently requires acquittal in order to safeguard the venue right’s important historical and constitutional purposes—just as this Court has recognized for the analogous speedy trial right.” Smith asserts that “the venue right was intended to ‘secure the party accused from being dragged to a trial in some distant state, away from his friends, and witnesses, and neighbourhood.’ The relevant hardship is the trial itself—not just a subsequent conviction. And the underlying right can only be meaningfully secured when the government is discouraged from initiating prosecutions in the wrong venue, through the threat of acquittal.” (Citations omitted.)
The United States responds that “venue is not an ‘element’ of an offense akin to those that define the crime” because, “[b]y its very nature, venue governs only the locations where the prosecution of a criminal offense may be properly pursued after the offense has been committed.” As a result, venue “plays no role in defining what conduct constitutes a crime.” The United States further argues that the venue right is not analogous to the speedy trial right. “The reason why a violation of the Speedy Trial Clause can result in dismissal with prejudice is that the violation cannot be ‘cured by providing th[e] guaranteed right[] in a new trial’: once the constitutionally permissible pretrial period has been exceeded, a defendant’s reindictment and a new trial will exacerbate the constitutional injury by extending further that period’s already unconstitutionally long duration.” Says the United States, “[a] right to trial in a proper venue, by contrast, is vindicated by dismissing charges or vacating a conviction if venue is improper. Retrial in a proper venue is then consistent with a defendant’s right to trial in such a venue.”
Editor’s note: Some of the language in the background sections of the summaries below was taken from the petitions for writ of certiorari and briefs in opposition.
