Where the Offense Was Committed

Where the Offense Was Committed

The first sentence of Rule 18 sets the baseline for federal prosecutions: unless a statute or another rule permits otherwise, the government must prosecute an offense in a district where the offense was committed.¹ The opening clause leaves room for statutes and rules to move the trial elsewhere, and a later section takes up those exceptions. Under the baseline itself, everything turns on what it means for an offense to be committed in a district, and a court answers that by examining the offense: what the charging statute punishes and where that conduct took place. Anchoring venue to conduct has a practical reason, because the place where the charged acts occurred is where the witnesses and circumstances bearing on the charge are most likely to be found, which promotes accurate fact-finding.² It also has an incentive reason. A venue rule keyed to something else, such as the location of the government's evidence or of some earlier crime, would let the prosecutor's choice fix the courthouse, and tying the place to the accused's own conduct removes that choice at the source.

The Locus Delicti Test

When the statute that defines a crime contains no venue provision of its own, a court must work out where the offense was committed, and that inquiry carries a Latin label, locus delicti, meaning the place of the crime. In United States v. Cabrales the Court adhered to the general guide that this place “must be determined from the nature of the crime alleged and the location of the act or acts constituting it.”³ United States v. Cores applied the same standard to an offense statute that fixed no specific venue.⁴ Courts run the guide as two steps: they first identify the conduct that constitutes the offense, and then discern where that conduct was performed.⁵

The first step needs care because the elements of a crime do not all play the same role. An essential conduct element is something the defendant does. A circumstance element is a fact that already exists when the defendant acts, and only the essential conduct elements can provide a basis for venue.⁶ The sorting follows from the purpose of venue. A circumstance element marks no place where the defendant did anything, so a district connected to the offense only by such a fact has no link to the conduct the accused must answer for.

The simplest application arises when all of the conduct occurs in one district. Where every act and omission connected with the offense happens and takes effect in a single district, that district is necessarily one where the offense was committed, a point recognized in United States v. Williams.⁹ Difficulty begins only when the participants' conduct, or the acts and their effects, are spread across more than one district, and the next section takes up those cases. A single act gives the same easy answer. Venue in a perjury case lies only where the perjurious statement is supposed to have been made, so in Jones v. Gasch the government had no choice of forum and no chance to shop for one.¹⁰

The test also locates omissions. Where the crime charged is a failure to do a legally required act, the place fixed for performing the act fixes the situs of the crime.¹¹ In Johnston v. United States, three conscientious objectors reported to their local draft boards but refused to go on to state hospitals in other districts, and none of them entered the district where he was later indicted.¹² The Court placed venue in the hospital districts, because the crime charged was the failure to report for employment there, and venue lies where that failure occurred.¹³

Cabrales and the Laundering Counts

The prosecution in Cabrales shows the test excluding a district that earlier criminal activity had touched. A grand jury in the Western District of Missouri returned a three-count indictment against Vickie Cabrales as the sole defendant. Count I charged conspiracy to avoid a transaction-reporting requirement, Count II charged conducting a financial transaction to avoid that requirement under 18 U.S.C. § 1956(a)(1)(B)(ii), and Count III charged engaging in a monetary transaction in criminally derived property worth more than $10,000 under 18 U.S.C. § 1957.¹⁵ The indictment alleged that in January 1991 she deposited $40,000 at a Florida bank and, within a week, made four separate withdrawals of $9,500 each, and that the money was traceable to cocaine sales in Missouri.¹⁶

Cabrales moved to dismiss for improper venue. The district court denied the motion as to the conspiracy count, relying on the government's assertions that she was present in Missouri during the conspiracy and took part in activities there, but it dismissed the two laundering counts because the deposit and withdrawals occurred in Florida and no laundering activity occurred in Missouri.¹⁷ The Eighth Circuit affirmed the dismissal of the laundering counts. The conspiracy charge was not part of that appeal and remained pending in the Missouri district court.¹⁸ Other courts of appeals had allowed venue for laundering in the district where the funds were unlawfully generated, and the Supreme Court granted review to resolve that conflict.¹⁹ It affirmed, holding that Missouri was not a proper place for trial of the two laundering counts, so the holding reaches only those counts.²⁰

The reasoning follows the two steps above. The laundering statutes punish only the financial transactions, which were acts located entirely in Florida, and they do not punish the earlier criminal conduct that produced the funds.²¹ Later decisions put the point in the vocabulary of conduct and circumstance: the existence of criminally generated proceeds is a circumstance element of money laundering, a fact already in place when the defendant performed her laundering acts, and so it cannot support venue.²² The way the counts were drafted mattered too. Counts II and III charged no conspiracy and did not link Cabrales to acts done by others, and they did not charge her as an aider or abettor of the Missouri drug trafficking. She was charged with activity after the fact of an offense that others had begun and completed.²³ Whether she knew where the first crime occurred was immaterial, and the Missouri location of the drug activity was, in the Eighth Circuit's words, “of no moment.”²⁴

The government's two best authorities did not change that result, and the reason shows where the line sits. Hyde v. United States allowed venue in the District of Columbia for a conspiracy because of a co-conspirator's overt acts there, and the laundering counts alleged no conspiracy. In re Palliser allowed prosecution in Connecticut where mail the defendant addressed and dispatched was received, and Cabrales dispatched nothing from one state into another, since she and the money moved only inside Florida.²⁵ The Court also recognized that different facts could change the picture, because the Eighth Circuit had acknowledged that money laundering arguably might rank as a continuing offense, triable in more than one place, if the launderer acquired the funds in one district and transported them into another. That, the Court said, was tellingly not the case before it.²⁶

On an exam stem built on this pattern, the temptation is to treat where the money came from as a place where the laundering was committed. The sounder question is what the charged statute punishes and whether any of that conduct, as opposed to a fact that merely existed when the defendant acted, occurred in the district chosen for trial.

Proving the District

The government carries the burden of showing that the district it chose is one where the offense was committed.²⁸ Venue is not an element of the crime, so the standard is a preponderance of the evidence and not proof beyond a reasonable doubt, and circumstantial evidence from the record as a whole can carry it.²⁹ The difference in standards follows from what venue asks, which is where the charged conduct happened and not whether the defendant is guilty of it.

In United States v. White, the defendant was convicted of forging the endorsement on a Social Security check mailed to Jacksonville, Florida. The government's own proof showed the check was cashed at a Jacksonville bank and that the endorsement was in the defendant's handwriting, but whether the signing occurred in the Middle District of Florida was a close question on that proof alone.³⁰ The defense then offered hearsay testimony that placed the defendant, the check, and others in a Jacksonville motel room. Because a defendant who presents evidence after a denied acquittal motion and renews the motion at the close puts the whole record before the reviewing court, that testimony counted, and the court of appeals found venue shown by a preponderance.³¹