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Chapter 4: Trial Defenses


VENUE


Overview

Constitutionally, criminal trials are to be held in the district in which the charged crime was committed.[1] This is to protect defendants from the bias and inconvenience involved in being subject to trial in a forum other than the one in which the crime was committed. In addition to this provision in the Constitution, statutes may also lay the venue for particular crimes: “unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.”[2]

The Supreme Court instructed that a district court determining the suitability of a particular venue “must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.”[3] If “the acts constituting the crime and the nature of the crime charged implicate more than one location, the Constitution does not command a single exclusive venue.”[4] In this case, “the whole may be tried where any part can be proved to have been done.”[5] This is also consistent with United States Code: any offense “begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.”[6]

For offenses involving interstate or foreign commerce, which is true of federal child pornography cases, offenses “may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.”[7] Transporting and receiving child pornography via Internet services involves interstate commerce. Such offenses are considered “continuing” offenses.

The district court “must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.”[8] The government bears the burden of proving that the venue is proper for each count, but only by a preponderance of the evidence.[9] That being said, a defendant does not have a right to be tried in a particular division, and district courts have broad discretion in deciding where a trial will be held. The Fifth and Eleventh Circuit, for example, agree that “there need not be direct proof of venue where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.”[10]


[1] United States v. Johnson, 323 U.S. 273, 65 S. Ct. 249, 89 L. Ed. 236 (1944); United States v. Cores, 356 U.S. 405, 78 S. Ct. 875, 2 L. Ed. 2d 873 (1958)

[2] Rule 18 of the Federal Rules of Criminal

[3] United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S. Ct. 1239, 143 L. Ed. 2d 388 (1999)

[4] United States v. Reed, 773 F.2d 477, 480 (2d Cir. 1985)

[5] United States v. Lombardo, 241 U.S. 73, 77, 36 S. Ct. 508, 510, 60 L. Ed. 897 (1916)

[6] 18 U.S.C. § 3237

[7] Id.

[8] Rule 18 of the Federal Rules of Criminal

[9] United States v. Root, 585 F.3d 145, 155 (3d Cir. 2009)

[10] United States v. Nicholson, 24 F.4th 1341, 1350 (11th Cir.), cert. denied, 142 S. Ct. 2795, 213 L. Ed. 2d 1025 (2022); United States v. Turner, 586 F.2d 395, 397 (5th Cir. 1978)

[11] U.S. CONST. Art. III, § 2, cl. (the “Trial of all Crimes … shall be held in the State where the said Crimes shall have been committed”); U.S. CONST. Amend. VI (trial of criminal defendants shall be “by an impartial jury of the State and district wherein the crime shall have been committed”)

[12] United States v. Rowe, 414 F.3d 271, 280 (2d Cir. 2005)

Possession

The Eleventh Circuit found that even though it was unclear where the defendant opened specific emails and attached images, there was undisputed evidence that he was in Tampa when he possessed and emailed a different child pornographic image, thus establishing the Middle District of Florida as a proper venue. [13] This implies that anywhere a person possesses any child pornography at issue in their case can provide the grounds for proper venue. 


[13] United States v. Little, 864 F.3d 1283 (11th Cir. 2017)

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The Second Circuit found that the act of publishing an advertisement to trade child pornography on the Internet amounts to a continuing offense anywhere, because “the advertisement would be transmitted by computer to anyone in the whole world over who logged onto the site and entered the chat room.” Thus, for the case to be prosecuted in a district in which the chat room was entered from is a proper venue.[14] This implies that a proper venue can be established anywhere advertisements posted on the Internet can be accessed, and is not merely limited to the location from which the advertisement was posted.


[14] United States v. Rowe, 414 F.3d 271, 279 (2d Cir. 2005)

Transportation

The First Circuit found that while the defendant sent and received child pornography in New York, the images were stored on his laptop, which he later brought into Maine, thus making Maine a proper venue. Further, the defendant lived in Maine, so it was not inconvenient, and there was no evidence that the court was unfairly biased. This implies that anywhere the material is transported to can establish the proper venue, even for other charges.


[15] United States v. Cameron, 699 F.3d 621, 636 (1st Cir. 2012)

Production

Production of child pornography was found to be a continuing offense by the Eleventh Circuit, as § 2251(a) “ties the punishment for the ‘use’ of a minor in and ‘production’ of visual depictions of sexually explicit conduct to the transport of the visual depictions or the means of producing those visual depictions in interstate or foreign commerce.” Therefore, it was appropriate to prosecute the case in the district in which images and the camera moved.[16]

The Ninth Circuit found that even though the defendant produced the video that formed the basis of the charge in the Eastern District of California, his conduct constituting the offense spanned into the Northern District, where he established and maintained his relationship with the victim.[17] Similarly, the Fourth Circuit held that the venue for a violation of § 2251(a) is proper in the district where a defendant entices the victim to engage in sexual conduct, even though the defendant created the video at issue in a different district.[18] This implies that the proper venue can be found for a production case anywhere conduct related to the production occurred, regardless of the jurisdiction in which the actual production occurred. 


[16] United States v. Kapordelis, 569 F.3d 1291, 1308 (11th Cir. 2009)

[17] United States v. Sullivan, 797 F.3d 623, 631 (9th Cir. 2015)

[18] United States v. Engle, 676 F.3d 405, 417 (4th Cir. 2012)

Conspiracy

For conspiracy, the venue lies “wherever a co-conspirator has committed an act in furtherance of the conspiracy.” [19] There “may be a constructive presence in a state, distinct from a personal presence, by which a crime may be consummated.” [20] This means that the proper venue for conspiracy is not necessarily the jurisdiction from which one conspired from, but can include anywhere any of the conspirators acted from.


[19] Hyde v. United States, 225 U.S. 347, 363, 32 S. Ct. 793, 800, 56 L. Ed. 1114 (1912)

[20] Id.

Coercion

The Second Circuit found that it was reasonable to assume that the victim received the defendant’s text message asking for an explicit picture in, and subsequently took and sent the picture from, the district in which the victim lived, making that district a proper venue.[21[ This implies that the proper venue for coercion is not necessarily the jurisdiction from which one did the coercing from, but can also include the jurisdiction in which the victim was remotely coerced in.


[21]  United States v. Nicholson, 24 F.4th 1341, 1350 (11th Cir.), cert. denied, 142 S. Ct. 2795, 213 L. Ed. 2d 1025 (2022)

Distribution

The Ninth Circuit found that when a “rational fact finder” could conclude that the defendant emailed an image to himself in a certain district, that venue was proper.[22]


[22] United States v. Basey, 784 F. App’x 497, 500 (9th Cir. 2019) (Unreported)

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