Opposition Brief — Timothy J. Smith, Petitioner v. United States
Supreme Court briefOct 28, 2022
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No. 21-1576
In the Supreme Court of the United States
TIMOTHY J. SMITH, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KENNETH A. POLITE, JR.
Assistant Attorney General
FRANCESCO VALENTINI
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals permissibly vacated
and dismissed without prejudice one of petitioner’s
counts of conviction, rather than directing a judgment
of acquittal, after agreeing with his challenge to venue
for that count.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument....................................................................................... 7
Conclusion ................................................................................... 23
TABLE OF AUTHORITIES
Cases:
Betterman v. Montana, 578 U.S. 437 (2016) ...................... 17
Blockburger v. United States, 284 U.S. 299 (1932) ............ 16
Brotherhood of Locomotive Firemen & Enginemen
v. Bangor & Aroostock R.R., 389 U.S. 327 (1967) ............. 9
Camreta v. Greene, 563 U.S. 692 (2011) .............................. 23
Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415 (5th Cir. 1996) ................................................. 9
Empower Texans, Inc. v. Geren,
977 F.3d 367 (5th Cir. 2020) ................................................. 9
Evans v. Michigan, 568 U.S. 313 (2013) ............................. 15
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1916)................................................................ 9
Haney v. Burgess, 799 F.2d 661 (11th Cir. 1986) ........... 7, 15
Major League Baseball Players Ass’n v. Garvey,
532 U.S. 504 (2001).............................................................. 10
Richardson v. United States, 468 U.S. 317 (1984) ............. 11
Ruiz v. Wing, 991 F.3d 1130 (11th Cir. 2021) ....................... 9
Stevenson v. Lewis,
384 F.3d 1069 (9th Cir. 2004), cert. denied,
543 U.S. 1191 (2005)............................................................ 14
Strunk v. United States, 412 U.S. 434 (1973) ............... 16, 17
Travis v. United States, 364 U.S. 631 (1961) ...................... 18
(III)
IV
Cases—Continued:
Page
United States v. Auernheimer,
748 F.3d 525 (3d Cir. 2014) .......................................... 13, 15
United States v. Bowens,
224 F.3d 302 (4th Cir. 2000), cert. denied,
532 U.S. 944 (2001)................................................................ 5
United States v. Brennan,
183 F.3d 139 (2d Cir. 1999) ................................................ 15
United States v. Carbajal,
290 F.3d 277 (5th Cir.), cert. denied,
537 U.S. 934 (2002).............................................................. 13
United States v. Carreon-Palacio,
267 F.3d 381 (5th Cir. 2001) ............................................... 12
United States v. Cordero, 668 F.2d 32 (1st Cir. 1982)........ 13
United States v. Cores, 356 U.S. 405 (1958) ........................ 18
United States v. Crozier,
259 F.3d 503 (6th Cir. 2001), cert. denied,
534 U.S. 1149, and 534 U.S. 1171 (2002) ........................... 14
United States v. Cryar,
232 F.3d 1318 (10th Cir. 2000), cert. denied,
532 U.S. 951 (2001).............................................................. 14
United States v. Davis,
666 F.2d 195 (5th Cir. Unit B 1982) .......................... 7, 8, 21
United States v. Fahnbulleh,
752 F.3d 470 (D.C. Cir. 2014), cert. denied,
574 U.S. 921 (2014), and 574 U.S. 1202 (2015) ................. 13
United States v. Ghanem,
993 F.3d 1113 (9th Cir. 2021) ............................................. 16
United States v. Grammatikos,
633 F.2d 1013 (2d Cir. 1980) .............................................. 13
United States v. Greene, 995 F.2d 793 (1993) ..................... 22
United States v. Griley,
814 F.2d 967 (4th Cir. 1987) ............................................... 12
V
Cases—Continued:
Page
United States v. Haire,
371 F.3d 833 (D.C. Cir. 2004), vacated on other
grounds, 543 U.S. 1109, judgment reinstated,
No. 02-3009, 2005 WL 3279991 (D.C. Cir. 2005) .............. 13
United States v. Hernandez,
189 F.3d 785 (9th Cir. 1999), cert. denied,
529 U.S. 1028 (2000)............................................................ 15
United States v. Jackalow,
66 U.S. (1 Black) 484 (1862) ............................................... 13
United States v. Jefferson,
674 F.3d 332, 369 (4th Cir.), cert. denied,
568 U.S. 1041 (2012)............................................................ 15
United States v. Johnson, 323 U.S. 273 (1944) ............. 17, 18
United States v. Johnson,
462 F.3d 815 (8th Cir. 2006), cert. denied,
549 U.S. 1298 (2007)............................................................ 14
United States v. Kaytso,
868 F.2d 1020 (9th Cir. 1989) ............................................. 12
United States v. Lanier,
879 F.3d 141 (5th Cir.), cert. denied,
139 S. Ct. 247 (2018) ........................................................... 22
United States v. Lanoue,
137 F.3d 656 (1st Cir. 1998) ............................................... 12
United States v. Lee,
966 F.3d 310 (5th Cir.), cert. denied,
141 S. Ct. 639 (2020) ..................................................... 12, 14
United States v. Little,
864 F.3d 1283 (11th Cir. 2017) ........................................... 14
United States v. Lozoya,
920 F.3d 1231 (9th Cir. 2019), rev’d,
982 F.3d 648 (9th Cir. 2020) (en banc), cert. denied,
142 S. Ct. 128 (2021) ..................................................... 22, 23
VI
Cases—Continued:
Page
United States v. Miller, 111 F.3d 747 (10th Cir. 1997) ...... 13
United States v. Morgan,
393 F.3d 192 (D.C. Cir. 2004) ............................................. 14
United States v. Muhammad,
502 F.3d 646 (7th Cir. 2007), cert. denied,
552 U.S. 1144 (2008)...................................................... 12, 14
United States v. Niamatali,
712 Fed. Appx. 417 (5th Cir. 2018) .................................... 21
United States v. Nwoye,
663 F.3d 460 (D.C. Cir. 2011) ............................................. 13
United States v. Pace, 314 F.3d 344 (9th Cir. 2002) ........... 14
United States v. Perez,
280 F.3d 318 (3d Cir.), cert. denied,
537 U.S. 859 (2002).................................................. 12, 13, 14
United States v. Petlechkov,
922 F.3d 762 (6th Cir. 2019) ............................................... 15
United States v. Robinson,
275 F.3d 371 (4th Cir. 2001), cert. denied,
535 U.S. 1006, and 535 U.S. 1070 (2002) ........................... 14
United States v. Rommy,
506 F.3d 108 (2d Cir. 2007), cert. denied,
552 U.S. 1260 (2008)...................................................... 12, 14
United States v. Salinas,
373 F.3d 161 (1st Cir. 2004) ............................................... 14
United States v. Scott, 437 U.S. 82 (1978) ........................... 15
United States v. Siegelman,
786 F.3d 1322 (11th Cir. 2015), cert. denied,
577 U.S. 1092 (2016)............................................................ 10
United States v. Stickle,
454 F.3d 1265 (11th Cir. 2006) ........................................... 12
United States v. Strain:
396 F.3d 689 (5th Cir. 2005), reh’g denied,
407 F.3d 379 (5th Cir. 2005) ................................ 19, 20
VII
Cases—Continued:
Page
407 F.3d 379 (5th Cir. 2005)...................................... 20, 21
United States v. Texas Tech Univ.,
171 F.3d 279 (5th Cir. 1999), cert. denied,
530 U.S. 1202, and 530 U.S. 1203 (2000) ........................... 21
United States v. Thomas,
690 F.3d 358 (5th Cir. 2012), cert. denied,
568 U.S. 1037 (2012), 568 U.S. 1178,
and 569 U.S. 912 (2013) ...................................................... 22
United States v. Vonn, 535 U.S. 55 (2002) ............................ 9
United States v. White, 887 F.2d 267 (D.C. Cir. 1989) ...... 15
United States v. Williams, 504 U.S. 36 (1992) ..................... 9
Virginia Military Inst. v. United States,
508 U.S. 946 (1993)................................................................ 9
Wilkett v. United States,
655 F.2d 1007 (10th Cir. 1981), cert. denied,
454 U.S. 1142 (1982)...................................................... 12, 15
Constitution, statutes, guideline, and rules:
U.S. Const.:
Art. III .............................................................................. 14
§ 1 ............................................................................... 14
§ 2, Cl. 3 (Venue Clause) ........................................... 11
Amend. V (Double Jeopardy Clause) ...................... 14, 16
Amend. VI ........................................................................ 11
Speedy Trial Clause .................................................. 17
Vicinage Clause.................................................... 11, 14
Amend. XIV ..................................................................... 14
18 U.S.C. 875(d) ................................................................... 2, 4
18 U.S.C. 1030(a)(2)(C) ........................................................... 4
18 U.S.C. 1030(c)(2)(B)(iii) ...................................................... 4
18 U.S.C. 1832(a)(l) .............................................................. 2, 4
VIII
Guideline and rules—Continued:
Page
United States Sentencing Guidelines
§ 1B1.3 (2002) ...................................................................... 10
Fed. R. Crim. P. 29 ................................................................ 19
Sup. Ct. R. 10(a) ..................................................................... 23
Miscellaneous:
Model Penal Code (1985) ...................................................... 14
2 Charles Alan Wright et al., Federal Practice
and Procedure (4th ed. 2009 & Supp. 2022) ..................... 13
In the Supreme Court of the United States
No. 21-1576
TIMOTHY J. SMITH, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-18a)
is reported at 22 F.4th 1236. The order of the district
court (Pet. App. 19a-38a) is reported at 469 F. Supp. 3d
1249.
JURISDICTION
The judgment of the court of appeals was entered on
January 12, 2022. A petition for rehearing was denied
on February 16, 2022 (Pet. App. 39a). On May 10, 2022,
Justice Thomas extended the time within which to file a
petition for a writ of certiorari to and including June 16,
2022, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District
Court for the Northern District of Florida, petitioner
(1)
2
was convicted of theft of trade secrets, in violation of 18
U.S.C. 1832(a)(l), and transmitting a threat through interstate commerce with intent to extort a thing of value,
in violation of 18 U.S.C. 875(d). Pet. App. 41a. The district court sentenced petitioner to concurrent 18-month
terms of imprisonment on each count, to be followed by
one year of supervised release. Id. at 43a-44a. The
court of appeals vacated the trade-secrets-theft conviction on venue grounds, affirmed the extortion conviction, and remanded for resentencing. Id. at 1a-18a.
1. Petitioner is a software engineer and avid fisherman who lived in Mobile, Alabama (in the Southern District of Alabama). Pet. App. 1a-2a. In 2018, petitioner
learned of a business named StrikeLines based in Pensacola, Florida (in the Northern District of Florida),
which sells on its website the coordinates for artificial
reefs in the Gulf of Mexico. Id. at 2a, 6a. The commercial and recreational fishermen who build artificial reefs
to create attractive fishing locations do not typically
share their coordinates with the public. Id. at 2a.
StrikeLines therefore identifies the coordinates that it
sells by, among other things, analyzing sonar data from
boats that it launches into the Gulf. Ibid. StrikeLines
then sells the coordinates for each private reef only
once. Ibid. The servers that host StrikeLines’s website
data are located in Orlando (in the Middle District of
Florida). Id. at 2a, 6a.
In May 2018, petitioner used a web application called
“Fiddler” to access StrikeLines’s coordinates for private
artificial reefs. Pet. App. 2a. Petitioner subsequently
contacted StrikeLines’s owners, informed them that he
had been able to access the company’s private reef coordinates through a vulnerability in its website, and
provided them with photographs of the reef data he had
3
obtained. Id. at 3a, 21a. Petitioner refused, however,
to disclose how he had gained access to the data. Ibid.
In response, StrikeLines had its web developer enhance the security of its website. Pet. App. 3a. But petitioner was able to continue to access StrikeLines’s private reef data. Id. at 4a. Petitioner also started offering
others access to StrikeLines’s data on Facebook, which
prompted StrikeLines’s customers to complain to the
company. Id. at 3a-4a. Petitioner subsequently informed StrikeLines’s owners that he could still access
the data, but he continued to refuse to disclose how he
did so. Id. at 4a.
After StrikeLines’s owners complained to petitioner,
petitioner offered to remove his Facebook posts and
stop interfering with StrikeLines’s business in exchange for “help with one thing.” Pet. App. 4a. Petitioner stated that he wanted StrikeLines’s “deep
grouper numbers” and that he would then help StrikeLines “fix [its] problem free of charge.” Ibid. Communications between petitioner and StrikeLines broke
down the following day, and StrikeLines’s owners contacted law enforcement. Id. at 4a-5a.
Law-enforcement officers obtained and executed a
search warrant at petitioner’s residence in Mobile. Pet.
App. 5a. After being advised of his Miranda rights, petitioner admitted that he had “infiltrate[d]” the StrikeLines’s website and had written computer “code to decrypt the [website’s] information.” Ibid. Petitioner further admitted that he had accessed StrikeLines’s website after StrikeLines had upgraded its security, written the Facebook posts, and shared StrikeLines’s coordinates with third parties. Ibid.
2. A federal grand jury in the Northern District of
Florida indicted petitioner for intentionally accessing a
4
protected computer without authorization and obtaining information valued in excess of $5000, in violation of
18 U.S.C. 1030(a)(2)(C) and (c)(2)(B)(iii); theft of trade
secrets, in violation of 18 U.S.C. 1832(a)(1); and transmitting a threat through interstate commerce with intent to extort a thing of value, in violation of 18 U.S.C.
875(d) (Count 3). See Superseding Indictment 1-3.
Before trial, petitioner moved to dismiss the indictment for improper venue. D. Ct. Doc. 38 (July 12, 2019).
Petitioner argued that the Northern District of Florida
was not a proper venue for the computer fraud and
trade-secrets-theft counts because all of his alleged offense conduct occurred where he lived in the Southern
District of Alabama and because the computer data that
he allegedly accessed and obtained was located in the
Middle District of Florida. Id. at 2-3, 7. Petitioner further argued that the Northern District of Florida was
not a proper venue for the extortion count, on the theory
that “venue must be proper with respect to each count”
of a multicount indictment. Id. at 8. The district court
denied the motion without prejudice, concluding that
the indictment sufficiently alleged venue and that “any
determination by the Court as to whether the Government’s evidence is sufficient to support a finding of
venue must * * * await trial.” D. Ct. Doc. 46, at 7-8
(Aug. 5, 2019).
Petitioner renewed his venue motion at trial. Pet.
App. 7a. The district court denied the motion with respect to the extortion count but otherwise reserved its
ruling on venue. Ibid.; 12/3/2019 Tr. 158, 162. The court
then submitted the case to the jury with instructions
that the government must prove venue by a preponderance of the evidence. Pet. App. 7a; see 12/3/2019 Tr.
185, 221. The jury found petitioner not guilty on the
5
computer-fraud count but found him guilty on the tradesecrets-theft and extortion counts. Pet. App. 7a.
The district court subsequently denied petitioner’s
venue motion. Pet. App. 25a-30a, 35a & n.26. With respect to petitioner’s trade-secrets-theft conviction, the
court reasoned that “venue may lie where the effects of
criminal conduct are felt ‘when an essential conduct element is itself defined in terms of its effects.’ ” Id. at
27a (quoting United States v. Bowens, 224 F.3d 302, 311,
313 (4th Cir. 2000), cert. denied, 532 U.S. 944 (2001)).
Applying that principle, the court determined that venue
is proper for a trade-secrets-theft offense “in the place
where the owner of the trade secret is located and feels
the loss of its trade secret”—here, the Northern District
of Florida—because “the essential conduct of theft or
misappropriation is necessarily defined in terms of its
effects, i.e., the owner’s loss of the trade secret.” Id. at
29a-30a.
The district court sentenced petitioner to 18 months
of imprisonment on the trade-secrets-theft count, to be
followed by one year of supervised release. Pet. App.
43a-44a. The court also sentenced petitioner to 18
months of imprisonment on the extortion count, to be
followed by one year of supervised release. Ibid. The
court ordered the sentences for each count to run concurrently. Ibid.
3. On appeal, petitioner reasserted his contention
that the Northern District of Florida was an improper
venue for his trade-secrets-theft count, Pet. C.A. Br. 2132, arguing that the count should have been “dismissed
due to lack of venue,” id. at 21 (capitalization and emphasis omitted), and that his conviction for tradesecrets theft should be “reversed and a judgment rendered in [his] favor,” id. at 77. Petitioner also argued
6
“[i]n the alternative” that the evidence was insufficient
to sustain his conviction on that count. Id. at 33, 77;
see id. at 32-45. The remedy that petitioner sought on
the evidentiary-insufficiency claim was not “revers[al]
and a judgment * * * in [his] favor” on the trade-secretstheft count, but instead a “judgment of acquittal” on
that count. Id. at 77; see id. at 33. Petitioner later represented that, unlike evidentiary insufficiency warranting acquittal, “[p]roper venue is not a consideration going to the guilt or innocence of a defendant.” Pet. C.A.
Reh’g Pet. 13.
At oral argument, the court of appeals asked petitioner’s counsel whether “[petitioner] could be recharged in
Mobile,” Alabama, “[i]f the conviction on [the tradesecrets-theft] count were vacated” on venue grounds.
C.A. Oral Argument at 4:52-5:00 (Dec. 15, 2021).1 Counsel responded, “Theoretically, I think so” but added
that it was unclear whether that would occur in “reality.” Id. at 5:04-5:09. The court then clarified its understanding that petitioner could be recharged “as a matter of law,” and petitioner responded, “Yes, sir, I
agree.” Id. at 5:09-5:12.
4. The court of appeals affirmed in part, vacated in
part, and remanded for resentencing. Pet. App. 1a-18a.
The court of appeals affirmed petitioner’s extortion
conviction, finding that venue was proper, Pet. App.
15a, and that the evidence sufficiently established the
offense, id. at 16a. But the court of appeals vacated petitioner’s trade-secrets-theft conviction on venue grounds.
Id. at 10a-15a.
The recording of the oral argument in the court of appeals is
available at https://www.ca11.uscourts.gov/system/files_force/oral_
argument_recordings/20-12667.mp3?download=1.
1
7
The court of appeals reasoned that venue is proper
in any district in which the “ ‘conduct constituting the
offense’ ” occurred; “[t]he essential conduct element of
the [trade-secrets-theft offense] is that the defendant
must steal, take without authorization, or obtain by
fraud or deception trade-secret information”; and that
the Northern District of Florida was not a proper venue
for that offense because petitioner “never committed
any essential conduct in that [district].” Pet. App. 11a12a (citation omitted). The court accordingly stated
that “venue would be proper in the Southern District of
Alabama, where [petitioner] was located when he took
the trade secrets,” while noting that it “need not decide”
whether venue would also be proper in the Middle District of Florida, where the computer servers containing
the trade-secret data had been located. Id. at 12a.
Consistent with petitioner’s acknowledgment at oral
argument, the court of appeals stated that “[t]he remedy for improper venue is vacatur of the conviction, not
acquittal or dismissal with prejudice.” Pet. App. 15a
(citing United States v. Davis, 666 F.2d 195, 202 (5th
Cir. Unit B 1982)). The court added that “[t]he Double
Jeopardy clause is not implicated by a retrial in a proper
venue after we vacate a conviction for improper venue.”
Ibid. (citing Haney v. Burgess, 799 F.2d 661, 664 (11th
Cir. 1986) (per curiam)). The court accordingly vacated
petitioner’s trade-secrets-theft conviction and remanded for resentencing on petitioner’s extortion conviction.
Id. at 18a.
ARGUMENT
Petitioner contends (Pet. 25-34) that the court of appeals erred by vacating his trade-secrets-theft conviction, asserting that its agreement with his claim of improper venue instead required a judgment of acquittal.
8
Petitioner further contends (Pet. 14-22) that the courts
of appeals are divided over whether a judgment of acquittal must be entered when the government fails to
prove venue. The court of appeals’ judgment is correct,
and its decision does not implicate a division of authority that might warrant review. Review in this particular
case would be unwarranted in any event, because petitioner affirmatively disclaimed on appeal the position
that he asserts in this Court. The interlocutory posture
of this case and the remedial nature of petitioner’s claim
further counsel against the Court’s review at this time.
The petition should be denied.
1. As a threshold matter, this Court’s review is unwarranted for at least two reasons.
a. First, the venue-remedy question that petitioner
presents is not properly before the Court. Although petitioner requested that the court of appeals direct the
entry of a “judgment of acquittal” to remedy other asserted errors, he sought only the “dismissal” of his
trade-secrets-theft count on venue grounds. See pp. 56, supra. Petitioner then specifically confirmed to the
court of appeals at oral argument that if the tradesecrets-theft count were dismissed on venue grounds,
the government could, “as a matter of law,” recharge
him on that count. See p. 6, supra. Because the court
of appeals applied the venue remedy that petitioner
himself represented to be correct, petitioner’s current
challenge to that remedy is not properly before this
Court.
The court of appeals’ citation of prior precedent to
illustrate that “[t]he remedy for improper venue is vacatur of the conviction, not acquittal or dismissal with
prejudice,” Pet. App. 15a (citing United States v. Davis,
666 F.2d 195, 202 (5th Cir. Unit B 1982)), does not
9
excuse petitioner’s representation.2 This Court has excused litigants from the normal obligation to challenge
circuit precedent in the case under review if the litigant
both (1) had previously challenged that precedent “in
‘the recent proceeding upon which the lower courts relied for their resolution of the issue’ ” and (2) “ ‘did not
concede in the current case the correctness of that precedent.’ ” United States v. Vonn, 535 U.S. 55, 58 n.1
(2002) (quoting United States v. Williams, 504 U.S. 36,
44-45 (1992)). But here, petitioner affirmatively agreed
that “as a matter of law” he could be recharged in another district in which venue is proper. See p. 6, supra.
b. Second, the interlocutory posture of this case
“alone furnishe[s] sufficient ground for the denial” of
the petition. Hamilton-Brown Shoe Co. v. Wolf Bros. &
Co., 240 U.S. 251, 258 (1916); see Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostock
R.R., 389 U.S. 327, 328 (1967) (per curiam) (explaining
that a case remanded to district court “is not yet ripe
for review by this Court”); see also Virginia Military
Inst. v. United States, 508 U.S. 946, 946 (1993) (Scalia,
J., respecting the denial of the petition for writ of certiorari). The court of appeals ordered the case remanded
to district court for resentencing. Pet. App. 18a. And
once petitioner is resentenced and a final judgment is
entered, petitioner may appeal and assert his current
contentions—together with any other claims that may
arise on remand—in a single certiorari petition. See
Decisions by Unit B panels of the former Fifth Circuit are binding precedent both in the Fifth Circuit, Empower Texans, Inc. v.
Geren, 977 F.3d 367, 372 & n.2 (5th Cir. 2020); Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1422 n.8 (5th Cir. 1996) (en banc),
and in the Eleventh Circuit, Ruiz v. Wing, 991 F.3d 1130, 1141 n.8
(11th Cir. 2021).
2
10
Major League Baseball Players Ass’n v. Garvey, 532
U.S. 504, 508 n.1 (2001) (per curiam).
No sound reason exists to depart from the Court’s
practice of denying certiorari in criminal cases that
arise in interlocutory postures. Indeed, interlocutory
review would be particularly unwarranted here. The
district court originally sentenced petitioner to concurrent 18-month terms of imprisonment for petitioner’s
extortion and trade-secrets-theft convictions. Pet. App.
43a. After the court of appeals vacated the trade-secretstheft conviction and remanded, the Probation Office determined in a new Presentence Investigation Report
that the advisory Sentencing Guidelines range for petitioner’s extortion conviction is 12-18 months, D. Ct. Doc.
145 ¶ 93 (Aug. 18, 2022), and the government has argued
that the district court should impose the same 18-month
term of imprisonment that it previously imposed for
that count, D. Ct. Doc. 139, at 4 (Aug. 1, 2022).
That sentence remains appropriate, particularly because the district court can properly consider petitioner’s conduct concerning the vacated trade-secretstheft conviction as “relevant conduct” for determining
the proper sentence for his extortion conviction. See
United States v. Siegelman, 786 F.3d 1322, 1332 (11th
Cir. 2015) (discussing Sentencing Guidelines § 1B1.3),
cert. denied, 577 U.S. 1092 (2016). And so long as the
district court imposes a guidelines-range term of imprisonment that approaches or equals the original 18month term, the question presented to this Court would
have no practical effect for petitioner because the
United States has no intention to recharge petitioner on
the trade-secrets-theft count in a different district.
Even if the district court imposes a lower sentence
on remand, the United States may elect not to recharge
11
petitioner. And if it did, the remedial nature of petitioner’s venue-remedy claim illustrates that the claim
could be presented when petitioner’s feared injury is
imminent, as opposed to speculative. Petitioner contends that the Sixth Amendment makes venue “a constitutionally imposed element of every offense” and, if
the government fails to prove that element, the government cannot retry the defendant in a district with
proper venue. Pet. 25-26, 31. That contention could be
presented if petitioner is in fact charged again for tradesecrets theft through a motion to dismiss on doublejeopardy grounds, a denial of which would be immediately appealable as a “final decision,” Richardson v.
United States, 468 U.S. 317, 320-322 (1984), and which
could thereby reach this Court.
2. In any event, the court of appeals correctly determined that dismissal of petitioner’s trade-secrets-theft
conviction was the proper remedy for a venue defect.
a. Article III’s Venue Clause provides that the
“Trial of all Crimes * * * shall be held in the State where
the said Crimes shall have been committed.” U.S.
Const. Art. III, § 2, Cl. 3. The Sixth Amendment’s Vicinage Clause affords defendants the related but more
specific right to a trial by “an impartial jury of the State
and district wherein the crime shall have been committed.” U.S. Const. Amend. VI. Those provisions defining
where a prosecution may be brought do not require that
a prosecution filed in the wrong district be remedied by
a judgment of acquittal that forecloses subsequent
prosecution in a proper venue.
By its very nature, venue governs only the locations
where the prosecution of a criminal offense may be
properly pursued after the offense has been committed.
As a result, venue—unlike an actual element of an
12
offense—plays no role in defining what conduct constitutes a crime. The courts of appeals have thus consistently recognized that venue is not an “element” of an
offense akin to those that define the crime. See, e.g.,
United States v. Lanoue, 137 F.3d 656, 661 (1st Cir.
1998); United States v. Rommy, 506 F.3d 108, 119 (2d
Cir. 2007), cert. denied, 552 U.S. 1260 (2008); United
States v. Perez, 280 F.3d 318, 330 (3d Cir.), cert. denied,
537 U.S. 859 (2002); United States v. Griley, 814 F.2d
967, 973 (4th Cir. 1987); United States v. Muhammad,
502 F.3d 646, 652 (7th Cir. 2007), cert. denied, 552 U.S.
1144 (2008); United States v. Kaytso, 868 F.2d 1020,
1021 (9th Cir. 1989); United States v. Stickle, 454 F.3d
1265, 1271-1272 (11th Cir. 2006); see also, e.g., United
States v. Lee, 966 F.3d 310, 320 n.2 (5th Cir.) (stating
that venue is not “an element of the offense or an issue
that goes to guilt”), cert. denied, 141 S. Ct. 639 (2020);
United States v. Carreon-Palacio, 267 F.3d 381, 390-391
(5th Cir. 2001) (explaining that “[v]enue differs from
traditional offense elements” and that the description of
venue as “an element of the offense” is correct only “in
the narrow context of what must be proven in order for
a conviction to pass constitutional muster”).
Evidence relevant to venue—“unlike the substantive
facts which bear on guilt or innocence in the case”—will
never “prove or disprove the guilt of the accused.”
Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir.
1981), cert. denied, 454 U.S. 1142 (1982). As petitioner
himself observed below (Pet. C.A. Reh’g Pet. 13),
“venue is not a consideration going to the guilt or innocence of a defendant.” That core characteristic of venue
has several consequences for a defendant’s assertion of
his venue right at trial, three of which are instructive
here.
13
First, although the government always has the burden of proving to a jury the true elements of a criminal
offense, a jury finding on venue is not required in every
case. Instead, venue becomes a jury question only if it
is genuinely “in issue.” United States v. Fahnbulleh, 752
F.3d 470, 477 (D.C. Cir. 2014) (quoting United States v.
Haire, 371 F.3d 833, 840 (D.C. Cir. 2004), vacated on
other grounds, 543 U.S. 1109, judgment reinstated, No.
02-3009, 2005 WL 3279991 (D.C. Cir. 2005) (per curiam),
cert. denied, 546 U.S. 1131 (2006)), cert. denied, 574
U.S. 921 (2014), and 574 U.S. 1202 (2015); see, e.g., Perez, 280 F.3d at 333-336 (discussing different methods
for determining if venue is “in issue”); see also United
States v. Jackalow, 66 U.S. (1 Black) 484, 487 (1862)
(stating that a venue determination that turns on the
disputed “place” of the offense conduct near a state border requires “application of the evidence” and “belongs
to the jury”). Venue is “in issue” only if the defendant
objects to venue before the jury’s verdict and/or timely
requests a jury instruction on the question. See, e.g.,
United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1982)
(Breyer, J.); United States v. Grammatikos, 633 F.2d
1013, 1022 (2d Cir. 1980); United States v. Auernheimer, 748 F.3d 525, 532 (3d Cir. 2014); United States v.
Carbajal, 290 F.3d 277, 288-289 & n.19 (5th Cir.), cert.
denied, 537 U.S. 934 (2002); United States v. Nwoye, 663
F.3d 460, 466 (D.C. Cir. 2011); 2 Charles Alan Wright et
al., Federal Practice and Procedure § 306 (4th ed. 2009
& Supp. 2022); see also United States v. Miller, 111 F.3d
747, 751 (10th Cir. 1997) (explaining that “failure to instruct on venue, when requested, is reversible error”
unless the “jury of necessity finds an illegal act within
the trial jurisdiction”) (emphasis added).
14
Second, as petitioner acknowledged below, the government need only “prove venue * * * by a preponderance of the evidence.” Pet. C.A. Reh’g Pet. 15. Every
court of appeals with jurisdiction over criminal cases
has recognized that principle. See United States v. Salinas, 373 F.3d 161, 163 (1st Cir. 2004); Rommy, 506
F.3d at 119 (2d Cir.); Perez, 280 F.3d at 330 (3d Cir.);
United States v. Robinson, 275 F.3d 371, 378 (4th Cir.
2001), cert. denied, 535 U.S. 1006, and 535 U.S. 1070
(2002); Lee, 966 F.3d at 320 & n.2 (5th Cir.); United
States v. Crozier, 259 F.3d 503, 519 (6th Cir. 2001), cert.
denied, 534 U.S. 1149, and 534 U.S. 1171 (2002); Muhammad, 502 F.3d at 652 (7th Cir.); United States v.
Johnson, 462 F.3d 815, 819 (8th Cir. 2006), cert. denied,
549 U.S. 1298 (2007); United States v. Pace, 314 F.3d
344, 349 (9th Cir. 2002); United States v. Cryar, 232
F.3d 1318, 1323 (10th Cir. 2000), cert. denied, 532 U.S.
951 (2001); United States v. Little, 864 F.3d 1283, 1287
(11th Cir. 2017); United States v. Morgan, 393 F.3d 192,
195 (D.C. Cir. 2004).3
Third, and most relevant here, a failure of proof on
venue does not implicate the Double Jeopardy Clause.
When a criminal defendant “choos[es] to seek termination of the proceedings against him on a basis unrelated
Petitioner states that “many [state] jurisdictions” require venue
to be proven beyond a reasonable doubt and that the Model Penal
Code (for state criminal law) follows that approach, Pet. 27 & n.10,
but petitioner does not contend that those non-federal sources reflect a federal constitutional requirement. Article III concerns the
“judicial Power of the United States,” U.S. Const. Art. III, § 1, and
every federal court of appeals to have addressed whether the Sixth
Amendment’s Vicinage Clause applies to the States (through the
Fourteenth Amendment) has held that it does not, see Stevenson v.
Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004), cert. denied, 543 U.S.
1191 (2005).
3
15
to factual guilt or innocence of the offense of which he
is accused,” he “suffers no injury cognizable under the
Double Jeopardy Clause” if he is later retried for the
offense. United States v. Scott, 437 U.S. 82, 98-99
(1978); see Evans v. Michigan, 568 U.S. 313, 318-320
(2013). And a defendant who seeks to terminate his
prosecution based on improper venue does exactly that:
he seeks termination of the proceedings against him on
a basis that, as petitioner argued below, is wholly unrelated to his “guilt or innocence.” Pet. C.A. Reh’g Pet.
13. A dismissal without prejudice, not a judgment of acquittal, is therefore the appropriate remedy for a venue
defect. At least eight courts of appeals have reached
that conclusion with varying degrees of explanation.
See Pet. 17-18 & n.6.4
See, e.g., United States v. Brennan, 183 F.3d 139, 149, 151 (2d
Cir. 1999) (reversing conviction and dismissing charge for improper
venue; noting that “a United States Attorney in a district where
venue could properly be laid may consider undertaking a new prosecution”); Auernheimer, 748 F.3d at 541 (3d Cir.) (reversing district
court’s venue determination and vacating defendant’s conviction);
United States v. Jefferson, 674 F.3d 332, 369 (4th Cir.) (vacating conviction on venue grounds), cert. denied, 568 U.S. 1041 (2012); United
States v. Petlechkov, 922 F.3d 762, 771 (6th Cir. 2019) (holding that
“dismissal without prejudice is appropriate” because a “dismissal on
venue grounds does not qualify as an ‘acquittal’ for double jeopardy
purposes”); United States v. Hernandez, 189 F.3d 785, 792 n.5 (9th
Cir. 1999) (concluding that “a judgment of acquittal is [not] the appropriate remedy in the case of improper venue” because venue
does not concern guilt or innocence), cert. denied, 529 U.S. 1028
(2000); Wilkett, 655 F.2d at 1012 (10th Cir.) (holding that defendant
“can be retried in the district where the crime was committed” because a prior dismissal on venue grounds “brings about the termination of the [earlier] proceedings on a basis other than adjudication
of guilt or innocence”); Haney v. Burgess, 799 F.2d 661, 663-664
(11th Cir. 1986) (per curiam) (following Wilkett); United States v.
White, 887 F.2d 267, 272 n.5 (D.C. Cir. 1989).
4
16
b. Petitioner contends (Pet. 25-29) that “venue is a
constitutionally imposed element of every offense” and,
for that reason, “the government’s failure to bear its
burden on venue should produce the same result as it
would for any other element—acquittal and preclusion
of a subsequent prosecution under the Double Jeopardy
Clause,” Pet. 25-26. For the reasons just explained, his
contention rests on an unsound premise. In addition,
the conclusion he draws from that premise is unsound.
One offense is not the same as another under the Double
Jeopardy Clause so long as the elements of one are not
a subset of the elements of the other. See Blockburger
v. United States, 284 U.S. 299, 304 (1932). And that
would be true even under petitioner’s approach: a crime
charged in district A would have an “element” of commission in district A; a crime charged in district B would
have an “element” of commission in district B.
Petitioner contends (Pet. 26, 29-32) that a judgment
of acquittal must be entered if venue is improper because, he argues, the venue right is analogous to the
constitutional right to a speedy trial, the violation of
which can warrant a dismissal with prejudice. See
Strunk v. United States, 412 U.S. 434, 439-440 (1973).
That is incorrect. The reason why a violation of the
Speedy Trial Clause can result in dismissal with
The Ninth Circuit has observed that if a jury renders a general
verdict of not guilty after being instructed on the government’s burden to establish venue, “jeopardy would attach” because one would
be unable to determine the basis for the verdict. United States v.
Ghanem, 993 F.3d 1113, 1130 (9th Cir. 2021). The court therefore
recommends “using a special-verdict form requiring a venue finding
separate from substantive guilt” to prevent defendants from “attempting to win an acquittal” though a late request for “a venue instruction.” Id. at 1131. That observation suggests no “confusion”
(Pet. 19) about the proper remedy for venue defects.
17
prejudice is that the violation cannot be “cured by
providing th[e] guaranteed right[] in a new trial”: once
the constitutionally permissible pretrial period has
been exceeded, a defendant’s reindictment and a new
trial will exacerbate the constitutional injury by extending further that period’s already unconstitutionally long
duration. Id. at 439.5 A right to trial in a proper venue,
by contrast, is vindicated by dismissing charges or vacating a conviction if venue is improper. Retrial in a
proper venue is then consistent with a defendant’s right
to trial in such a venue.
Petitioner asserts (Pet. 29) that questions of venue
are “not merely matters of formal legal procedure,”
United States v. Johnson, 323 U.S. 273, 276 (1944), and
cites (Pet. 32-33) Johnson as announcing the “core purposes of the venue right.” But Johnson’s observations
do not speak to constitutional venue requirements.
Johnson recognized that “Congress may, to be sure,”
broadly define proper venue for an offense to “extend
over the whole area through which force propelled by
an offender operates.” 323 U.S. at 275. Yet despite that
broad constitutional authority, the Court noted that
“Congress has not been unmindful” of factors concerning “the fair administration of criminal justice and public confidence” that may be implicated if a statutory
The Court later clarified that the Speedy Trial Clause does not
apply to delays between a defendant’s conviction and sentencing.
Betterman v. Montana, 578 U.S. 437, 440-441 (2016). In doing so,
the Court stated that the “sole remedy” for a speedy-trial violation
—“dismissal of the charges—fits the preconviction focus of the
[Speedy Trial] Clause” and that “[i ]t would be an unjustified windfall ” to “remedy sentencing delay by vacating validly obtained convictions.” Id. at 444 (emphasis added; citations omitted). Petitioner’s reliance on that passage (Pet. 31) does not support his position.
5
18
venue provision “opens the door to needless hardship to
an accused” and “the appearance of abuses, if not to
abuses, in the selection of what may be deemed a tribunal favorable to the prosecution.” Id. at 275-276 (emphasis added).
Johnson accordingly stated that venue questions,
“are not merely matters of formal legal procedure” and
“raise deep issues of public policy in the light of which
legislation must be construed.” Johnson, 323 U.S. at
276 (emphases added). And the Court concluded that if
federal legislation “equally permits” a reading that allows “the underlying spirit of the constitutional concern
for trial in the vicinage to be respected,” that construction should normally be adopted, “even though [it is] not
commanded” by the Constitution’s venue provisions.
Ibid.; accord Travis v. United States, 364 U.S. 631, 634
(1961) (invoking Johnson’s discussion on the “constru[ction]” of “venue provisions in Acts of Congress”);
see United States v. Cores, 356 U.S. 405, 407 (1958)
(similar). That tie-breaking principle for statutory construction has no application to petitioner’s remedial
claim here, and Johnson overall belies his assertion that
the constitutional venue right directly protects against
the possibility of prosecution in an inconvenient location. See 323 U.S. at 275-276.
Petitioner’s observation (Pet. 30, 32) that the venue
right “is violated whenever an accused is made to stand
trial in a constitutionally improper venue” and that such
a trial “may” hinder a defendant’s “ability to present an
effective defense” is accordingly not relevant to the
proper remedy for a venue violation. Many actions that
violate trial rights have the potential to hinder a defendant’s defense, but such violations are remedied (if not
harmless) by requiring a new trial, not by entering a
19
judgment of acquittal. Petitioner separately argues
(Pet. 33) that improper venue can give rise to an appearance of abuse and damage “public confidence in the justice system.” But that policy consideration likewise applies to any number of trial errors, and any perception
of unfairness is sufficiently redressed by correcting the
error and dismissing the relevant charges or vacating
the relevant convictions.
Finally, petitioner asserts (Pet. 30) that the venue
right “can only be meaningfully secured when the government is discouraged from initiating prosecutions in
the wrong venue, through the threat of acquittal.” That
is incorrect. Venue violations, like violations of other
trial rights, are amply discouraged by, as here, vacatur
of a conviction that rests on an impartial jury’s finding
of guilt beyond a reasonable doubt. Moreover, there is
no reason to conclude that the prosecutors here acted
improperly in bringing the prosecution where the victim
—whose (intangible) trade secrets were stolen and with
whom petitioner communicated to extort a thing of
value—was located.
3. Petitioner errs in asserting (Pet. 14-22) that the
courts of appeals are divided over the question presented because “[t]he Fifth and Eighth Circuits require
entry of a judgment of acquittal when the government
has failed to prove venue at trial,” Pet. 14 (emphasis
added). No division of authority exists that might warrant this Court’s review.
a. In United States v. Strain, 396 F.3d 689 (2005),
the Fifth Circuit reversed the denial of a Rule 29 motion
for acquittal based on its conclusion that the trial evidence was insufficient to establish venue. Id. at 693697. In its conclusion, the court stated, “we reverse the
[district court’s] ruling, vacate the judgment and
20
remand to the district court for entry of a judgment of
acquittal.” Id. at 697. The court subsequently rejected
the government’s rehearing petition, which had argued
that the proper remedy was to dismiss the conviction
“without prejudice.” United States v. Strain, 407 F.3d
379, 379 (2005) (per curiam). The court stated that the
Fifth Circuit had not “squarely addressed the question
whether, or under what circumstances, acquittal may be
an appropriate remedy for failure to prove venue.”
Ibid.
The Fifth Circuit also stated that although multiple
courts of appeals had dismissed charges without prejudice for failure to prove venue, “none of the circuits has
held that dismissal is the sole appropriate remedy for
lack of venue.” Strain, 407 F.3d at 380 & n.* (emphasis
added). The court therefore considered such decisions
“largely irrelevant” to the question presented by the rehearing petition, i.e., “whether acquittal may be the
proper result” when the government fails to prove
venue. Id. at 380 (emphasis added). The court then
noted that its prior decisions reflect that venue is a
“constitutionally-imposed element of every crime,”
though “not an element [of an offense] in the traditional
statutory sense.” Ibid. The court ultimately found no
reason to grant rehearing to reconsider its disposition
directing a judgment of acquittal. Ibid.
Although the denial of rehearing in Strain potentially suggests some tension with decisions concluding
that dismissal without prejudice is warranted, see p. 15
& n.4, supra, Strain’s application of a rehearing standard to deny rehearing does not appear to reflect a disposition that should control future cases. The Fifth Circuit does not appear to have ever cited Strain’s per curiam rehearing denial in the 17 years since it was issued.
21
And the fact that the Fifth Circuit has since “decline[d]
to decide whether a judgment of acquittal is the only
proper remedy” when the government fails to prove
venue, United States v. Niamatali, 712 Fed. Appx. 417,
423 (2018) (per curiam) (unpublished), suggests that
Strain’s disposition is not binding for future cases. Cf.
id. at 420, 423 (twice citing Strain’s original opinion
without citing Strain’s decision on rehearing). In addition, well before Strain, the Fifth Circuit had “reversed
and remanded to vacate [a count of conviction],” rather
than directing a judgment of acquittal, where the court
concluded that the government had failed to prove
venue. Davis, 666 F.2d at 202 (5th Cir. Unit B); cf. p. 9
n.1, supra. To the extent that Strain and earlier precedent conflict, the earlier precedent would control.
United States v. Texas Tech Univ., 171 F.3d 279, 285 n.9
(5th Cir. 1999) (“Where two panel decisions conflict, the
prior decision constitutes the binding precedent.”), cert.
denied, 530 U.S. 1202, and 530 U.S. 1203 (2000).
Even if Strain’s rehearing decision were binding on
subsequent panels, the Fifth Circuit did not, as petitioner asserts, “require entry of a judgment of acquittal,” Pet. 14 (emphasis added). The court merely determined that the “narrow question raised by the [rehearing] petition” was “whether acquittal may be the proper
result” and that rehearing was unwarranted in part because the Fifth Circuit had “never squarely addressed
the question whether, or under what circumstances, acquittal may be an appropriate remedy.” Strain, 407
F.3d at 379-380 (emphasis added). Even assuming that
acquittal “may” be a proper result in some cases in
which the government fails to prove venue, that does
not suggest it is “the sole appropriate remedy for lack
of venue.” Id. at 380. And since Strain, the Fifth
22
Circuit has vacated or set aside criminal convictions,
without indicating that acquittal would be required on
remand, when it has determined that the evidence was
insufficient to prove venue. See, e.g., United States v.
Lanier, 879 F.3d 141, 149, 152 (5th Cir.) (vacating convictions), cert. denied, 139 S. Ct. 247 (2018); id. at 147149 (twice citing Strain’s original opinion without citing
Strain’s decision on rehearing); United States v.
Thomas, 690 F.3d 358, 371-372 (5th Cir. 2012) (reversing convictions), cert. denied, 568 U.S. 1037 (2012), 568
U.S. 1178, and 569 U.S. 912 (2013); id. at 368, 371 (repeatedly citing Strain’s original opinion but not
Strain’s decision on rehearing). In short, Strain does
not reflect a division of authority relevant to the proper
disposition in this case.
b. The Eighth Circuit in United States v. Greene,
995 F.2d 793 (1993), concluded that the evidence was insufficient to prove venue for one count of conviction. Id.
at 800-801. The court added, without elaboration, that
it was “remand[ing]” the case “for the entry of a judgment
of acquittal” on that count. Id. at 801; see id. at 795, 802
(repeating disposition). That disposition does not suggest that acquittal is always required, and Greene itself
contains no indication that the parties disputed that disposition. Furthermore, in the nearly 30 years since
Greene, the Eighth Circuit appears never to have cited
or followed that particular aspect of Greene, embodied
solely in its one-sentence disposition. It is thus unclear
whether a future Eighth Circuit panel would consider
itself bound to order the disposition announced in
Greene if the issue were properly presented for its decision.6
Like petitioner (Pet. 20), the defendant in United States v.
Lozoya, 920 F.3d 1231 (9th Cir. 2019), rev’d, 982 F.3d 648 (9th Cir.
6
23
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
KENNETH A. POLITE, JR.
Assistant Attorney General
FRANCESCO VALENTINI
Attorney
OCTOBER 2022
2020) (en banc), cert. denied, 142 S. Ct. 128 (2021), “observe[d]” that
Strain and Greene reflect “a circuit conflict,” and the panel noted as
much in following its own precedent on the issue. Id. at 1241 n.5.
Petitioner additionally purports (Pet. 21-22) to identify conflicting
results in certain district court decisions. But it is settled that a
“decision of a federal district court judge is not binding precedent
in either a different judicial district, the same judicial district, or
even upon the same judge in a different case.” Camreta v. Greene,
563 U.S. 692, 709 n.7 (2011) (citation omitted). District court decisions therefore reflect no conflict of authority warranting this
Court’s review. See Sup. Ct. R. 10(a).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.