Justices Endorse New Venue Retrial Rules

June 15, 2023 by Dan McCue
Justices Endorse New Venue Retrial Rules
Detail of the U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON — The Supreme Court on Thursday ruled the government can retry defendants whose conviction was overturned on appeal because the case was originally heard in an improper venue.

The case arose from the criminal prosecution of Timothy Smith, a software engineer and avid fisherman living in Mobile, Alabama, who was convicted and sentenced to 18 months in prison for hacking into the website of an Orlando, Florida-based company, StrikeLines, which identifies and sells the location of artificial fishing reefs.

Before his trial got underway, Smith moved for dismissal, citing the Constitution’s venue clause, which states that criminal trials shall be heard by a jury and in the state where the crimes had been committed.

He also cited the vicinage clause which states the accused shall be entitled to an “impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”

Smith argued that the Northern District of Florida was an improper venue for his case because he accessed the StrikeLines’ website from his home in Mobile, a city which geographically falls under the jurisdiction of the Southern District of Alabama.

The district court ultimately concluded that any factual disputes related to the venue should be resolved by the jury and denied Smith’s motion to dismiss without prejudice.

The jury found Smith guilty and he immediately moved for a judgment of acquittal based on improper venue. The trial court again denied Smith’s motion, noting that the effects of his crime were felt at StrikeLines’ Orlando headquarters, well within the jurisdiction of the Northern District of Florida.

On appeal, the 11th U.S. Circuit Court of Appeals said the lower court got its wrong when it came to the venue issue, but it also rejected Smith’s further claim that having his case heard in an improper venue before a jury drawn from the wrong district made him immune from retrial.

Though the 11th Circuit did vacate Smith’s original conviction for theft of trade secrets, it did so leaving him open to prosecution. That’s when he petitioned the Supreme Court for review.

Writing for a unanimous court, which resolved a circuit court split over the issue, Justice Samuel Alito Jr., said, quoting the 1966 case United States v. Ewell, that except 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.” 

“Remedies for constitutional violations in criminal trials, we have explained, ‘should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests,’” Alito continued. 

“When a conviction is obtained in a proceeding marred by harmful trial error, ‘the accused has a strong interest in obtaining a fair re-adjudication of his guilt,’” the justices continued, now quoting from the 1978 case Burks v. United States

“Therefore, the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the award of a retrial, not a judgment barring re-prosecution,” he said.

Alito then went on to describe the distinction between a case like the one Smith brought to the court and those involving the double jeopardy clause.

“A judicial decision on venue is fundamentally different from a jury’s general verdict of acquittal,” Alito wrote. 

“When a jury returns a general verdict of not guilty, its decision ‘cannot be upset by speculation or inquiry into such matters’ by courts. … And because it is impossible for courts to be certain about the ground for the verdict without improperly delving into jury deliberations, the basis for the jury’s verdict cannot be a ground for setting aside an acquittal. 

“General verdicts of acquittal are thus consistent with the general rule that ‘[c]ulpability … is the touchstone’ for determining whether retrial is permitted under the double jeopardy clause,” he continued. 

“Under that rule, when a trial terminates with a finding that the defendant’s ‘criminal culpability had not been established,’ retrial is prohibited,” Alito said. “Conversely, retrial is permissible when a trial terminates ‘on a basis unrelated to factual guilt or innocence of the offense of which [the defendant] is accused.’”

The court’s ruling in Smith v. United States was one of three decisions handed down Thursday morning, which means the justices now have 20 cases left to decide for this term. Additional cases are expected to be decided on Friday, with future dates likely to be announced at the end of Friday’s session.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue

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