Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the Fifth and Eighth Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the Sixth, Ninth, Tenth, and Eleventh Circuits have held.
The U.S. Constitution permits retrial when a conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location. Smith was indicted in the Northern District of Florida for theft of trade secrets, among other charges. After the jury returned a guilty verdict, Smith moved for a judgment of acquittal based on improper venue. The district court denied the motion. On appeal, the Eleventh Circuit held that venue was improper on the trade secrets charge but that the error did not bar reprosecution. Held: Affirmed. In almost all circumstances, the appropriate remedy for prejudicial trial error is simply the award of a retrial, not a judgment barring reprosecution. Violations of the venue and vicinage clauses are not exceptions to the general retrial rule. Nothing about the venue clause, which requires that trial occur in the state where the crime was committed, suggests that a new trial in the proper venue is not an adequate remedy for its violation. The additional hardship of a second trial does not justify an exemption from the retrial rule. The vicinage clause guarantees the right to an impartial jury of the state and district where the crime was committed. It concerns jury composition and differs from the venue clause in that it narrows the place where trial is permissible by specifying both the state and district from where the jury shall be drawn. Given that retrial is the appropriate remedy when a defendant is tried by a jury that does not reflect a fair cross-section of the community, there is no reason to conclude that trial before a jury drawn from the wrong geographic area demands a different remedy. The court further concluded that the double jeopardy clause is not implicated by retrial in a proper venue, as reversal of a conviction based on a violation of the venue or vicinage clauses does not resolve the question of the defendant’s criminal culpability.
This case was decided on 6/15/2023. Justice Alito delivered the opinion for a unanimous court.