In United States v. Moran-Garcia, --- F.3d ---, No. 19-50134 (9th Cir. 2020), the Ninth Circuit gives us a great decision on venue.
The Court vacated the defendant's convictions for attempting to enter the United States after
having been deported and attempting to enter the United
States other than at a place designated (8 USC 1326, 1325), and remanded for
dismissal of the indictment without prejudice.
The case really is a must read for federal practitioners. Here are the highlights:
Facts
Before trial, the government argued that the district court
should take judicial notice that the Southern District of
California extended twelve miles out to sea and so instruct the
jury. The evidence at trial established that Moran was
apprehended six miles off the coast, within sight of San Diego, in the SD Ca.
At the conclusion of the government’s evidence,
defense counsel moved for a judgment of acquittal based on insufficient
evidence of venue. Defense counsel argued that the Southern
District extended only three miles out to sea, not twelve, so
the government had failed to prove that the offense was
committed within the Southern District. The district court
denied the motion, accepting the government’s argument that
the location where the boat was captured was within the
Southern District.
The district court then ruled that no jury instruction on venue was appropriate because, in its view,
venue was not a question of fact for the jury but instead a
legal question that it had already decided by denying defense
counsel’s Rule 29 motion.
However, the government (and the district court) were wrong. As the Ninth explained: "The territorial
sea of the United States . . . extends to 12 nautical miles, but
that is not true of the Southern District of California.
California law defines the western border of San Diego
County as extending to a point three English miles [into the]
Pacific Ocean. Thus it is beyond debate that the location of
the putative offense was within the territorial waters of the
United States but was not within the Southern District of
California."
Law
"Controlling circuit law establishes that, although venue is
not an element of the offense, nevertheless it must still be
proved by the government at trial. Venue is a question of
fact that the government must prove by a preponderance of the evidence. It is a jury question. [N]ormally it is not for
the court to determine venue and it is error to not give a
requested instruction on venue. Venue is part of the
bedrock of our federal system, and proper venue is a constitutional right, not a mere technicality. The district
court therefore could not properly decide venue itself and
should have submitted the issue to the jury. The district court
could not properly take judicial notice that the location where
the boat was captured fell within the Southern District of
California, since it did not."
The Court also rejected the government's alternative argument "that venue
was proper in the Southern District of California under
18 U.S.C. § 3238, which provides that the trial of an offense
begun or committed outside any judicial district 'shall be in
the district in which the offender . . . is arrested or is first
brought.'"
The Court explained: "The government would thus have us apply the usual test
for insufficiency of evidence: whether 'any rational juror' could have concluded that Moran was 'first brought' to the
Southern District of California. This would be the correct
test if the jury had concluded that venue was proper, but it is
the wrong test for harmless error in this case where the
question was not put to the jury and the jury made no
determination."
Instead: "'[W]hen a court has failed to give a venue instruction to
the jury, that error will be viewed as harmless if the evidence
viewed rationally by a jury could only support a conclusion
that venue existed.' Thus, the test for harmless error is not whether 'any rational juror' could have concluded that
Moran was first brought to the Southern District of
California, but rather whether the evidence, had it been
viewed by a rational jury, could only have led to that
conclusion."
"This is a kind of converse of the sufficiency of
the evidence test applicable where a jury has made a
determination: Instead of asking whether a rational juror
could have reached the conclusion, we ask whether a rational
juror could have rejected the urged conclusion. Applying the
correct test, the government has not established harmlessness
of the error."
The Court further rejected the government's attempt to meet its burden by using evidence not presented to the jury: "This argument is hard to understand, since rational
jurors could not have drawn an inference from evidence never
presented to them."
Thus, the Court concluded: "Venue is not an element of the crime. Unlike an
element, it need not be proved beyond a reasonable doubt. But venue does need to be put to the jury, and proved by the
government, albeit only by a preponderance of the evidence. Neither was done here, and the evidence viewed rationally by
a jury would not necessarily support the conclusion that
venue lay in the Southern District of California. The errors,
not being harmless under the applicable standard, require that
Moran’s conviction be vacated."
The Court, however, allowed for the possibility of a retrial, explaining: "Generally, under the Double Jeopardy Clause, the
government does not get a second trial to prove what it failed
to prove by sufficient evidence in the first trial. But double
jeopardy does not apply in the same way to a failure to prove
venue as it does to a failure to prove an element of an offense.
Unlike the typical reversal for sufficiency of the evidence, the
missing evidence here did not go to guilt or innocence; that
is, it had nothing to do with whether the defendant did or did
not do the criminal acts alleged in the indictment."
