Guest post by Brandon Shinder -- Smith v. United States (2023)

No Venue, No Problem: SCOTUS Unanimously Decides For Federal Government

By: Brandon Shinder

            First, I would like to thank David Oscar Markus and John R. Byrne for the opportunity to submit this guest post. This post will cover the Supreme Court’s recent decision in Smith v. United States, which entails a legal issue that was the subject of the 2023 Gibbons Criminal Procedure Moot Court Competition, where my partner, Gaby Pinzon, and I represented the University of Miami School of Law in winning First Place at the competition.  I would also like to thank our incredible coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition. 

(L to R) Gaby Pinzon, Adam Stolz (coach), Brandon Shinder; not pictured: Luis Reyes (coach).

            On Thursday June 15, 2023, the Supreme Court decided Smith and reaffirmed that—even in 2023—there are some things on which the Justices unanimously agree. In Smith, it was that the proper remedy for a criminal trial in the incorrect venue is not acquittal, but a retrial in the proper venue:

When a conviction is reversed because of a trial error, this Court has long allowed retrial     in nearly all circumstances. We consider in this case whether the Constitution requires a different outcome when a conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location. We             hold that it does not.

            The Court’s holding in Smith is the first time the Court has addressed the proper remedy for a violation of venue. Historically, when constitutional rights are violated during the trial process, the Court has held that the proper remedy is a retrial:

Therefore, the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the award of a retrial, not a judgment barring reprosecution . . . [i]n all other circumstances, we have found that retrial is the strongest appropriate remedy, and we   have applied this rule to every other      Clause of the Sixth Amendment [.]

However, the Court was careful to say “in almost all circumstances” because the Court reaffirmed that violations of the Speedy Trial Clause are categorically different from other Sixth Amendment violations, and as such require the remedy of acquittal.

            The Court rejected all three of Petitioner’s arguments. First, Petitioner argued that the Venue and Vicinage Clauses were incorporated into the Constitution to limit hardships in trial; however, the additional hardship of a retrial was not a reason to require acquittal, as the Court noted:

But any criminal trial, whether or not in the right venue, imposes hardship, and any retrial after a reversal for trial error adds to that initial harm … [and that] the mere burden of a second trial has never justified an exemption from the retrial rule . . . we have repeatedly rejected objections based on the serious hardship in . . . prosecutions in places distant from the [defendant’s] home.

            Second, Petitioner argued that the historical backdrop underlying the Clauses supports the remedy of acquittal. Under English common law, however, venue violations were remedied by retrial.  Nevertheless, Petitioner argued that the incorporation of the Venue and Vicinage Clauses into the Constitution elevated the right to proper venue in American law more so than in common law. The Court again disagreed:  

[A]lthough the Clauses depart in some respects from the common law—most notably by providing new specifications about the place where a crime may be tried—there is no meaningful evidence that the Constitution altered the remedy prescribed by common law for violations of the vicinage right.

            Lastly, Petitioner argued that the Double Jeopardy Clause likewise supports the remedy of acquittal. Petitioner argued that, when juries acquit for improper venue, “a judicial ruling that venue was improper on a motion to acquit should have the same result.” The Court rejected this argument and distinguished judicial decisions from a jury’s general verdict:

[B]ecause it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations, the jury holds an unreviewable power . . . to return a verdict of not guilty even for impermissible reasons.

***

The reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of         acquittal” under Rule 29, plainly does not resolve the bottom-line question of             criminal culpability . . . [i]nstead, such a reversal is quintessentially a decision that “the Government’s case against [the defendant] must fail  even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.”

 

            The Court’s opinion, however, leaves unanswered public policy concerns as posed by the NACDL Amicus Brief, co-authored by our very own David Oscar Markus, which explains how the remedy of retrial “invites prosecutors to engage in even more creative endeavors because it fails to associate any consequence with incorrect choices.”