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257.11 Venue

    257.11.1 Venue: Federal Models
    257.11.2 Venue: Necessity Of Instruction
    257.11.3 Venue And Territorial Jurisdiction: Difference In Burden Of Proof
    257.11.4 Venue: Burden On Prosecution
    257.11.5 Venue: Clarification That All Other Matters Besides Venue Must Be Proven Beyond A Reasonable Doubt
    257.11.6 Vicinage As Distinguished From Venue
    257.11.7 Vicinage And Cross-Section Representation
    257.11.8 Venue: Money Laundering
    257.11.9 Mail Fraud (18 USC 1341): Venue

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See 6th Circuit Pattern Jury Instructions - Criminal 3.07.

See 8th Circuit Pattern Jury Instructions - Criminal 3.13.

See also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 3-11, p. 3-24.

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PRACTICE NOTE: The venue requirement derives from both the United States Constitution (U.S. Const. Amend. VI, art. II, § 2, cl. 3) and the Federal Rules of Criminal Procedure. (FRCRP 18.) The Supreme Court has explained that venue issues "raise deep issues of public policy." (United States v. Johnson (1944) 323 US 273 [65 Sct 249; 89 LEd 236]; see also United States v. Delgado, 914 F2d 1062, 1064 (8th Cir. 1990); United States v. Netz, 758 F2d 1308, 1312 (8th Cir. 1985) ["[i]n criminal cases, the issue of venue is not a mere technicality, but rather, a significant matter of public policy"].)  

    Venue has been described as an "element" of every crime which must be found by the jury. (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 3-11, Comment, p. 3-25.)

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RESEARCH NOTES:

LaFave & Scott, Substantive Criminal Law (West, 1986) section 2.7(b), 2.9; see also Model Penal Code (1985) section 1.12 and 1.13(a).

CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI Newsletter, Vol. I, No. 2 [Selecting The Jury For The Guilt Phase ] p. 4 (New York Office of Court Administration, 1993).

Capital Punishment Handbook [2.3 a. Pre-Trial Publicity And Venue: General Principles And Authorities].

6th Circuit Pattern Instructions -  Criminal 3.07.

8th Circuit Model Jury Instructions - Criminal 3.13.

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PRACTICE NOTE: The burden of proving proper venue is an essential part of the prosecution’s case. (Cissell, Federal Criminal Trials, (Lexis, 5th ed. 1999) § 1-2(b).) Venue  a jury question and it is reversible error to not instruct on the prosecution’s burden if venue is disputed. (Ibid.; see also FORECITE National™ 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt]; FORECITE National™ 296.2.3.2 [Standard Of Prejudice On Appeal: Removal Of A Single Element].)

See also Capital Punishment Handbook [2.3 a. Pre-Trial Publicity And Venue: General Principles And Authorities].

6th Circuit Pattern Instructions -  Criminal 3.07.

8th Circuit Model Jury Instructions - Criminal 3.13.

 VOLUME 11 - CHAPTER 257

RATIONALE: Without special instruction the jury may confuse the lesser standard applicable to venue with the higher standard applicable to proof of all other elements of the offense.

POINTS AND AUTHORITIES: See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.07 [Venue] (1991); See FORECITE National™ 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt].

    See also FORECITE National™ 257.9.3 [Statute Of Limitations: Lesser Standard Or Burden Does Not Apply To Other Elements].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See also Capital Punishment Handbook [2.3 a. Pre-Trial Publicity And Venue: General Principles And Authorities].

6th Circuit Pattern Instructions -  Criminal 3.07.

8th Circuit Model Jury Instructions - Criminal 3.13.

    (1)     Now, some of the events that you have heard about happened in other places. There is no requirement that the entire conspiracy take place here in . But for you to return a guilty verdict on the conspiracy charge, the government must convince you that either the agreement, or one of the overt acts, took place here in .

    (2)     Unlike all the other elements that I have described, this is just a fact that the government only has to prove by a preponderance of the evidence. This means that government only has to convince you that it is more likely that not that part of the conspiracy took place here.

    (3)     Remember that all the other elements I have described must be proved beyond a reasonable doubt.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.07 [Venue] (1991).]

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RATIONALE: Where venue or locus delicti is an issue, special instruction may be necessary so the jury understands the issues involved.

POINTS AND AUTHORITIES: Venue or locus delicti is the right to be tried in the county in which the crime was committed. (See e.g., People v. Sering (CA 1991) 232 CA3d 677, 684 [283 CR 507].) Establishment of locus delicti is a question of fact for the jury but in many jurisdictions such as California it only requires proof by a preponderance of the evidence. (Ibid.; see also People v. Jones (CA 1964) 228 CA2d 74, 85-7 [39 CR 302].)

    Typically, venue must be raised before the jury is sworn.  However, if the question is raised for the first time by evidence at trial, the defendant may be able to present the claim at trial.  (See State v. Dent (WA 1994) 869 P2d 392, 400; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.20 [Elements Of The Crime-Format] comment (West, 2nd ed. 1994) (1998 Pocket Part); Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:82 [General Instructions-Venue] (West, 1999).)

    In California, there is a split in authority as to whether proof of locus delicti is essential to conviction. (Compare People v. Megladdery (CA 1940) 40 CA2d 748, 756, 765-66 [106 P2d 84] with People v. Sering 232 CA3d at 685-89 [locus delicti is a waivable statutory right which is neither an element of the offense nor essential to conviction].) Hence, it is unclear whether the trial court has a sua sponte duty to instruct upon this question. (See also People v. Remington (CA 1990) 217 CA3d 423, 430 [266 CR 183]; People v. Price (CA 1989) 210 CA3d 1183, 1189 [259 CR 282].)

    In any event, it is clear that a defense theory instruction on locus delicti should be available to the defendant upon request when appropriate. Failure to require the requisite fact finding upon request would implicate 14th Amendment due process principles and the defendant's 6th Amendment right to trial by jury and compulsory process by failing to instruct on a defense raised by the defendant. (See generally, FORECITE National™ 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction].)

    "[F]ailure to instruct on venue, when requested, is reversible error unless it is beyond a reasonable doubt that the jury’s guilty verdict on the charged offense necessarily incorporates a finding of proper venue." (U.S. v. Miller (10th Cir. 1997) 111 F3d 747, 751; see also U.S. v. Carter (10th Cir. 1997) 130 F3d 1432, 1438 [failure to instruct on venue required reversal because evidence showed possession with intent to distribute in two different districts and verdict did not include implicit finding of venue].)

    Vicinage As Distinguished From Venue: The constitutional right of vicinage is a geographic requirement. (Hernandez v. Municipal Court (CA 1989) 49 C3d 713, 716, fn 1 [263 CR 513].) It is the right of a criminal defendant, guaranteed by the 6th and 14th Amendments, to be tried by a jury from the area in which the crime occurred. (Ibid.) Hence, venue which concerns the applicable local jurisdiction and vicinage are separate concepts. (See FORECITE National™ 257.11.7 [Vicinage And Cross-Section Representation].)

    See also FORECITE National™ 68.4 [Accessory After The Fact: Locus Delicti As Defense Theory].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

Annotation, Necessity Of Proving Venue Or Territorial Jurisdiction Of Criminal Offense Beyond Reasonable Doubt, 67 ALR3d 988 And Later Case Service.

Annotation, Jurisdiction And Venue Of Criminal Charge For Child Desertion Or Nonsupport As Affected By Nonresidence Of Parent Or Child, 44 ALR2d 886.

Liljegren, Criminal Procedure: Failure to Instruct the Jury on Venue, When Requested, Constitutes Reversible Error, Notwithstanding Venue Subsumed By a Guilty Verdict, 37 Washburn L.J. 439, Winter 1998.

Caplow & Griffin, Multidefendant Criminal Cases: Federal Law and Procedure" (West, 1998) Chapter 8, § 8.7.

See also Capital Punishment Handbook [2.3 a. Pre-Trial Publicity And Venue: General Principles And Authorities].

6th Circuit Pattern Instructions -  Criminal 3.07.

8th Circuit Model Jury Instructions - Criminal 3.13.

    The question of whether the crime, or some part thereof, was committed in [_________ county] [______________ (state)], is for you the jury, to determine. The prosecution must prove this fact by a preponderance of evidence. If it fails to do so, you must find the defendant not guilty.

[Source: FORECITE National™.]

    The burden is on the prosecution to prove that the county of prosecution is where the alleged crime was committed or that a statutory exception applies. The place of the crime and any other fact relevant to venue, are questions for you to decide.  However, the prosecution need only prove venue by a preponderance of the evidence. 

[Cf. Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:82.50 [General Instructions-Venue-Model Charge] (West, 1999).]

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PRACTICE NOTE: A distinction should be made between the related but distinct concepts of venue, cross-section representation and vicinage. "Venue fixes the place of trial. It is determined, for federal prosecutions, by section 2 of article III of the United States Constitution ("in the State where the said Crimes shall have been committed") and by FRE 18 (FRCRP) which guarantees a federal criminal defendant the right to be tried in the federal judicial district in which the crime occurred. In state prosecutions, venue ... is in any competent court within the 'jurisdictional territory' of which it is committed." (Hernandez v. Municipal Court (CA 1989) 49 C3d 713, 716 [263 CR 513].) "Vicinage and cross-section representation are guaranteed by the 6th and 14th Amendments. Although sometimes erroneously used interchangeably, vicinage and cross-section representation are discrete principles of criminal jury trials. The right to cross-section representation is a demographic requirement, which assures a criminal defendant a trial by a jury selected without systematic or intentional exclusion of cognizable economic, social, religious, racial, political and geographical groups. [Citations.] ...The vicinage right is a geographic requirement. It is the right of a criminal defendant to be tried by a jury drawn from the area in which the crime occurred. [Citation.] It is unrelated to the ideal of impartiality [citation] and has nothing to do with the defendant's place of residence. Although the vicinage right is assertable by a defendant in a criminal trial, in the present day criminal justice system the vicinage requirement also protects the right of the offended community to pass judgment in criminal matters. [Citation.]" (Ibid.)

See also Capital Punishment Handbook [2.3 a. Pre-Trial Publicity And Venue: General Principles And Authorities].

6th Circuit Pattern Instructions -  Criminal 3.07.

8th Circuit Model Jury Instructions - Criminal 3.13.

PRACTICE NOTE:  When multiple counts are alleged in an indictment, venue must be proper on each count. (See United States v. Bowens (4th Cir. 2000) 224 F3d 302, 308.) Venue on a count is proper only in a district in which an essential conduct element of the offense took place. (See Id. at 309.) The burden is on the Government to prove venue by a preponderance of the evidence. (See United States v. Barsanti (4th Cir. 1991) 943 F2d 428, 434.)

PRACTICE NOTE:  See FORECITE National™ 103.7.1.3 [Mail Fraud (18 USC 1341): Venue].