Stretching venue beyond constitutional recognition.

• Author: Lloyd, Todd
• Position: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure

United States v. Rodriguez-Moreno, 119 S. Ct. 1239 (1999)

1. INTRODUCTION

   In United States v. Rodriguez-Moreno,(1) the United States Supreme Court held that venue for prosecution under 18 U.S.C. [sections] 924(c)(1),(2) which makes it a separate crime to use or carry a firearm during a crime of violence, is proper in any federal jurisdictional district where the underlying crime of violence was committed, regardless of where the firearm was actually used.(3)

   This Note examines the constitutional right to a proper venue for a criminal prosecution within the context of the constitutionally-accepted practice of enacting federal laws with broad venue provisions. This Note argues that the Supreme Court improperly interpreted 18 U.S.C. [sections] 924(c) (1) by allowing the venue to be determined by the underlying violent crime rather than determining the venue by the nexus between the violent crime and the use of the firearm.(4) In reaching this decision, this Note argues, the Court undermined the constitutional right of the accused and engaged in unwarranted judicial legislation. The latter criticism sparked Justice Scalia's pointed dissent, while the former most likely prompted Justice Stevens to join Justice Scalia in their uncommon alliance.

2. BACKGROUND

   1. CONSTITUTIONAL RIGHT TO A VENUE WHERE THE CRIME OCCURS

      1. Overview

         The United States Constitution explicitly requires crimes to be tried where they are committed.(5) Article III, Section 2 of the Constitution states that "[t]he Trial of all Crimes, except in Cases of Impeachment, shall be ... held in the State where the said Crimes shall have been committed...."(6) The importance of this requirement is reinforced by the vicinage(7) provision of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...."(8) The Federal Rules of Criminal Procedure support this constitutional right by providing that "the prosecution shall be had in a district in which the offense was committed."(9)

         The Fifth Circuit Court of Appeals, echoing prior Supreme Court precedent, acknowledged that the constitutional venue provisions, bolstered by the Federal Rules of Criminal Procedure, "reflect that in criminal cases the question of venue is not a legal technicality, instead it is a significant matter of public policy."(10) Other United States Circuit Courts have concurred in this sentiment, emphasizing that the right to a proper venue is of "constitutional dimension" as opposed to a mere formal requirement.(11)

         The assertion that venue rights are of a "constitutional dimension" is supported by historical justifications. As tensions mounted between the colonies and Great Britain immediately prior to the American Revolution, colonial officials representing the Crown became increasingly concerned that American courts could not adequately protect royal interests, especially when American patriots were charged with a crime.(12) Thus, Parliament revived an ancient statute under which those on colonial soil (whether colonist or English soldier) could be taken to England or another colony for trial.(13) This practice drew the ire of the colonists at a time when revolutionist nerves were particularly frayed, thus becoming a precipitating factor in the American Revolution.(14) Thomas Jefferson made specific note of this perceived royal offense in the Declaration of Independence, criticizing King George III "for transporting us beyond Seas to be tried for pretended offenses."(15)

         Following independence, with the British action still fresh in the memory of those organizing the new state governments, several states included state constitutional provisions limiting criminal prosecutions to the place where the crimes were committed.(16) After many proposals and little debate, a similar provision was adopted in the United States Constitution.(17) Because the uniformity of acceptance left the historical record bare,(18) one may never know the exact reasons for the Framers' enactment of the venue provisions. Justice Joseph Story, an early constitutional historian, did advance some possible and probable justifications of the venue provisions:

         The object ... is to secure the party accused from being dragged to a trial in some distant state, away from his friends, witnesses, and neighborhood; and thus subjected to the verdict of mere strangers, who may feel no common sympathy, or who may even cherish animosities, or prejudices against him. Besides this; a trial in a distant state or territory might subject a party to the most oppressive expenses, or perhaps even to the inability of procuring proper witnesses to establish his innocence.(19) Such historically-accepted justifications prompted constitutional scholar Drew Kershen to conclude "that the draftsmen of Article III, Section 2, clause three intended limited venue to be of benefit primarily to the accused."(20)

         Just as likely, though, the Framers chose this provision to help prevent government abuses, for or against the accused.(21) The Declaration of Independence charged the King with "protecting [troops] by a mock trial, from Punishment for any Murders which they should commit on the Inhabitants of these States,"(22) allowing a leading commentator to conclude that the "circumvention of the judgment of the victimized community was attacked as a `Mock Trial' system in the Declaration of Independence."(23) The Framers, with recent history of governmental abuse in mind, recognized that a venue provision would limit the possible abuse of power otherwise available if one could manipulate the geographical location of a trial.(24)

         Another compelling justification for the venue provisions, suggested by more recent scholarship, was that the provisions protected a community's right to stage the trial of local offenses.(25) States have traditionally held the balance of power within the federal system over shaping criminal statutes in a way that reflects local preferences.(26) As the federal government has increasingly encroached into this territory, the states, through the venue provision, have had the consolation of trying the accused with local juries, thus mirroring, to some extent, local values in a trial's outcome.(27) If the federal government has the power to choose venue, this consolation to the states is lost.(28)

         The constitutional venue provisions thus protect at least three policy interests. First, the venue provisions protect the rights of the accused.(29) The accused is more likely to stand trial in a familiar or procedurally sound venue: witnesses to the alleged crime most likely live in the area of the crime; tangible evidence of the crime is most often found at the place of the crime;(30) and the accused is also more likely to be tried at the accused's place of residence, allowing for comfort and support of family and friends and knowledge of local counsel.(31) Second, federal governmental power against the individual is checked.(32) Limiting venue can help prevent the federal government from gaining an advantage or leverage that can come with the power to choose venue in a more or less sympathetic state.(33) And, finally, federal governmental power against the individual states is curtailed.(34) The venue provisions allow each state the right to try the person who actually committed the crime within the state's territory.(35) Judge Alito of the Third Circuit summed up the prevailing justifications for this constitutional mandate by stating that the "provisions were meant to put in place important substantive protections against government abuse."(36)

      2. Constitutionality of Federal Legislation That Broadens Venue

         While Congress cannot altogether negate the constitutional venue guarantee, it can broadly define a crime so that the commission of the crime could likely cross district and state borders, thus providing a number of venue choices.(37) And Congress, without constitutional challenge, has explicitly provided broadened venue provisions for particular offenses, so long as the venue bears some relation to the offense.(38) Pushing the borders both constitutionally and geographically of congressional venue-stretching, courts have concluded that venue is proper in conspiracy cases in any district where an overt act which furthered the conspiracy happened or anywhere a conspiracy agreement was formed.(39) The Supreme Court approved this rule, permitting trials in districts where defendants have never stepped foot, despite "its dilutent effect upon venue rights."(40) The Court thus signaled its willingness to weaken venue rights in order to strengthen Congress's ability to deter crime.(41) Therefore, in order for the judiciary to broadly interpret the criminal venue, Congress must establish a rational nexus between the crime and the venue within a venue provision,(42) or a court must find from the words of the statute that the crime, at least in part, was committed within the court's jurisdictional area.(43)

      3. 18 U.S.C. [sections] 924(c)(1) Does Not Have a Specific Venue Provision

         The Supreme Court has given Congress a green light to structure statutes in a way that defines venue broadly enough to reach criminals with only the slightest of ties to certain geographical areas.(44) Congress, however, has refrained from placing a venue provision on 18 U.S.C. [sections] 924(c)(1), which would explicitly allow for the firearm crime to be properly tried in any venue where the predicate crime was committed.(45) At the time of Rodriguez-Moreno's offense, the substantive portion of [sections] 924(c)(1) read: "whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years...."(46)

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