Venue-

and the Constitution

By:  Wayne C. Fricke; March 1997

Recently, I appeared in a case filed in United States District Court in Montana, involving a contraband cigarette conspiracy to evade the Washington State tax laws.  As part of the case we are attempting to get venue changed to the Western District of Washington, even though the conspiracy involves actions in both Montana and Washington.  While preparing this motion I have become aware that venue is not just a matter of court rule and witness convenience, etc., but indeed is an issue of constitutional magnitude.  I must admit, I never considered it as a constitutional question prior to this time.

                Specifically, Article III, Section 2 of the United States Constitution provides in pertinent part:

        The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed...

                Additionally, the Sixth Amendment to the United States Constitution provides:

        For 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.

                Importantly, even though in a conspiracy case where certain overt acts and crimes may have been committed in another state, making venue proper in that state, if any substantive charges that are set out in the Indictment took place in a different state, the defendant has the right to have those particular counts tried in the state where they occurred.  See United States v. Walden, 464 F.2d 1015 (1972), citing Johnson v. United States, 351 U.S. 250 (1956).

                In Walden, defendants were charged and tried of conspiracy to rob numerous banks.  The case was tried in one of the states where part of the conspiracy took place, and included the trial of each individual count of bank robbery, although those robberies had occurred in different states.  Although the court upheld the conspiracy conviction, the convictions for the substantive charges were reversed and dismissed by the appellate court because the venue was not proper for those counts since they were not tried in the states where the robberies occurred.  In essence, the court reversed because the particular district court did not have jurisdiction over the crimes. 

                It's also important to note that if one doesn't challenge the venue pretrial, even though it's a constitutional question, venue can still be waived.  See United States v. Black Cloud, 590 F.2d 270 (8th Cir. 1979).

                These provisions are obviously important in a criminal context, because rather than leaving the decision to the discretion of the court based on witness convenience and those types of issues, the court is required to change venue by the United States Constitution if the defendant so requests.  Thus, the defendant retains a degree of control as to the location of the trial and potentially can use this to his advantage in negotiations or otherwise.