Reply Brief — Timothy J. Smith, Petitioner v. United States

No. 21-1576

In the

Supreme Court of the United States

TIMOTHY J. SMITH,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

MARGARET A. UPSHAW

BRENT T. MURPHY

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

MARISSA MARANDOLA

LATHAM & WATKINS LLP

200 Clarendon Street

Boston, MA 02116

SAMIR DEGER-SEN

Counsel of Record

PETER TROMBLY*

LATHAM & WATKINS LLP

1271 Avenue of the

Americas

New York, NY 10020

(212) 906-4619

samir.deger-sen@lw.com

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTRODUCTION .......................................................1

ARGUMENT ...............................................................3

I.

The Government Misunderstands The

Purposes Of The Venue Right ............................3

II.

The Government’s Defense Of Its Retrial

Rule Lacks Any Grounding In History Or

Precedent .............................................................9

III. The Government Identifies No Historical

Practice That Supports Its Retrial Rule ..........13

IV. The Government’s Distinction Between

Jury Acquittals And Judicial Acquittals Is

Baseless .............................................................19

CONCLUSION ..........................................................23

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Arundel’s Case,

(1593) 77 Eng. Rep. 273 (K.B.) ............................16

Betterman v. Montana,

578 U.S. 437 (2016) ..............................................10

Burks v. United States,

437 U.S. 1 (1978) ........................................3, 20, 21

Crawford v. Washington,

541 U.S. 36 (2004) ..................................................4

Duncan v. Louisiana,

391 U.S. 145 (1968) ................................................9

Evans v. Michigan,

568 U.S. 313 (2013) .................................. 16, 20, 21

Fong Foo v. United States,

369 U.S. 141 (1962) ..............................................20

Gideon v. Wainwright,

372 U.S. 335 (1963) ................................................5

Haas v. Henkel,

216 U.S. 462 (1910) ................................................4

Jones v. United States,

574 U.S. 948 (2014) ................................................8

Patton v. United States,

281 U.S. 276 (1930) ..............................................17

iii

TABLE OF AUTHORITIES—Continued

Page(s)

People v. Barrett,

1 Johns. 66 (N.Y. Sup. Ct. 1806) .........................15

Ramos v. Louisiana,

140 S. Ct. 1390 (2020)..........................................10

Smith v. Massachusetts,

543 U.S. 462 (2005) ..............................................20

Sparf v. United States,

156 U.S. 51 (1895) ..................................................9

Strunk v. United States,

412 U.S. 434 (1973) ..............................................10

Tharold v. Spight,

(1623) 79 Eng. Rep. 585 (K.B.) ............................16

United States v. Ball,

163 U.S. 662 (1896) .................................... 2, 14, 15

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015) ................................8

United States v. Bravo-Fernández,

913 F.3d 244 (1st Cir. 2019) ................................22

United States v. Burr,

25 F. Cas. 187 (C.C.D. Va. 1807) .........................19

United States v. Burr,

25 F. Cas. 201 (C.C.D. Va. 1807) ...................18, 19

United States v. Cabrales,

524 U.S. 1 (1998) ....................................................6

iv

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Gaudin,

515 U.S. 506 (1995) ..........................................9, 14

United States v. Gibert,

25 F. Cas. 1287 (C.C.D. Mass. 1834) ...................18

United States v. Johnson,

323 U.S. 273 (1944) ................................................6

United States v. Keen,

26 F. Cas. 686 (C.C.D. Ind. 1839) ..................15, 18

United States v. Martin Linen Supply Co.,

430 U.S. 564 (1977) .................................... 2, 16, 21

United States v. Morrison,

449 U.S. 361 (1981) .................................... 6, 10, 11

United States v. Scott,

437 U.S. 82 (1978) ..........................................21, 22

United States v. Sisson,

399 U.S. 267 (1970) ..............................................16

United States v. Stevens,

559 U.S. 460 (2010) ............................................1, 7

Vaux’s Case,

(1591) 76 Eng. Rep. 992 (K.B.) ............................14

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017)..........................................10

v

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

Steven A. Engel, The Public’s Vicinage

Right: A Constitutional Argument, 75

N.Y.U. L. Rev. 1658 (2000) ....................................9

Fed. R. Crim. P. 29(a) ...............................................21

2 William Hawkins, A Treatise of the Pleas

of the Crown (2d ed. 1726) ...................................15

7 The Papers of John Marshall (Charles

Hobson ed. 1993) ............................................18, 19

1 David Robertson, Reports of the Trials of

Colonel Aaron Burr (1808) ..................................18

Sentencing Guidelines for U.S. Courts, 88

Fed. Reg. 7180 (Feb. 2, 2023) ................................8

2 W. Staundforde, Les Plees Del Coron

(1557) ....................................................................15

3 Joseph Story, Commentaries on the

Constitution (1833) ........................................3, 5, 7

1

INTRODUCTION

The government advances a view of the

constitutional venue right that would be

unrecognizable to the Framers. According to the

government, the venue right is a common law relic

whose purposes have been “mooted” over time. Gov’t

Br. 29-30. And because the venue right has no

ongoing purpose, the paramount consideration in

determining a remedy should be safeguarding the

government’s ability to secure more convictions—a

goal that retrial serves best.

That proposition ignores the historical record and

defies this Court’s precedent. The Framers viewed

the constitutional venue right as an indispensable

defense against government oppression and abuses

like those threatened by the British Crown. The

government does not even acknowledge that history,

much less offer an account of how its proposed remedy

accords with it. Instead, it admits that its approach

has no real limiting principle, leaving the government

unfettered power to prosecute again (and again) in

new venues of its choosing.

And while the

government claims (at 33) it “has neither the time nor

the resources” to engage in the oppression of criminal

defendants, that assurance surely would not have

satisfied a founding generation who experienced the

abuses of the British Crown firsthand.

The

government’s theory ultimately depends on believing

the Framers would have left a constitutional right

founded on mistrust of government solely at the

“mercy of noblesse oblige.” United States v. Stevens,

559 U.S. 460, 480 (2010).

The government’s “historical practice” argument

fares no better. The government does not actually

2

contest the most relevant founding-era practice:

venue was submitted to the jury as an indispensable

component of the government’s case and a judgment

of acquittal was entered when the government failed

to carry that burden. The government does not cite a

single federal case allowing reprosecution after a jury

acquittal on venue grounds. That is no surprise. It is

one of the “most fundamental rule[s]” of our

constitutional order that a verdict of acquittal bars a

second prosecution. See United States v. Martin

Linen Supply Co., 430 U.S. 564, 571, 576 (1977). The

government instead relies on a common law principle

under which a general verdict of acquittal would not

bar reprosecution if there were a defect in the

indictment. But, over a century ago, this Court

decisively rejected that principle for purposes of the

Fifth Amendment, because it would permit a

prosecutor “bent on conviction” to pursue serial

retrials. United States v. Ball, 163 U.S. 662, 668

(1896) (citation omitted). The government’s historical

practice argument thus hinges on the contention that

the Framers simultaneously rejected that common

law rule for purposes of the Fifth Amendment, while

uncritically adopting it in an area—the venue right—

where they were especially attuned to the possibility

of government abuse.

That contention is as

“ahistorical” as they come. See Gov’t Br. 8.

Finally, the government has no meaningful

response to the basic anomaly its position creates.

The government does not dispute that when a jury

acquits for insufficient proof of venue, the government

is barred from reprosecuting, yet it maintains that the

result should be different when appellate judges

make that very same sufficiency determination. That

arbitrary distinction is squarely foreclosed by this

3

Court’s precedent. See, e.g., Burks v. United States,

437 U.S. 1, 11, 16 (1978); see also Smith Br. 39.

At bottom, the government’s proposed rule rests

on the view that the constitutional venue right serves

no real purpose and requires no real remedy. But that

is not a judgment the Framers left to the government.

When the constitutional venue right is taken

seriously, as it must be, its violation after the

government fails to prove venue at trial demands an

acquittal barring reprosecution.

The decision below should be reversed.

ARGUMENT

I. The Government Misunderstands

Purposes Of The Venue Right

The

The government does not dispute that the remedy

for a violation of the constitutional venue right must

be tailored to the right’s unique purposes. See Smith

Br. 20-21; Gov’t Br. 22. Yet the government does

not—and cannot—offer any account of how its

proposed retrial remedy actually serves the interests

the Framers sought to protect when they enshrined

the venue right in the Constitution.

1. The government asserts that Mr. Smith is

“mistaken” in stating that the Constitution’s venue

provisions were designed to protect against the

hardship and expense of being “‘dragged to a trial’” in

a distant location. Gov’t Br. 28 (quoting Smith Br.

25). But that is not just Mr. Smith’s “suggesti[on],”

id.—that is what this Court has repeatedly said,

echoing the ratification debates themselves and

Justice Story’s analysis shortly after the founding.

Smith Br. 7-10, 24-28; see 3 Joseph Story,

Commentaries on the Constitution § 1775 (1833).

4

The government nonetheless asserts that the

venue right must not be concerned with the hardship

of trial in remote places, because the venue right does

not always protect against that result. See Gov’t Br.

30-31. But it makes no sense to conclude that a

constitutional right does not serve a particular

purpose simply because it does not do so perfectly.

Under that logic, the Confrontation Clause would not

serve the “ultimate goal” of “ensur[ing] reliability of

evidence” because in some circumstances, unreliable

evidence may be credited even after the “crucible of

cross-examination.” Crawford v. Washington, 541

U.S. 36, 61 (2004). This Court has never interpreted

the Constitution that way.

The example the government offers to illustrate its

point just reveals the shortcomings of its position.

The government claims (at 30-31) Mr. Smith benefited

from its violation of his constitutional rights, because

it could have prosecuted Mr. Smith even further from

his home in the Middle District of Florida—where

Strikelines’ servers were located.

But the

government has a “plain duty” to “determine in which

[district] the offense was most probably committed,

and bring the offender to trial there.” Haas v. Henkel,

216 U.S. 462, 474 (1910) (emphasis added). In Mr.

Smith’s case, that district was unquestionably the

Southern District of Alabama, where all of the offense

conduct took place. The fact that the government

claims it could have selected an even worse venue in

which to try Mr. Smith simply underscores the

5

problem with a “remedy” that affords the government

a do-over when it selects an unconstitutional venue.1

Finally, the government asserts (at 31) that Mr.

Smith’s argument that the venue right protects

against oppressive expenses “proves too much”

because the costs of “a first criminal trial” exist for

any error. But the rights the government enumerates

are not designed to prevent the hardship of the trial

itself. See, e.g., Gideon v. Wainwright, 372 U.S. 335,

344 (1963) (explaining that right to counsel protects

against “the danger of conviction” (citation omitted)).

By contrast, the venue right is directly concerned with

harms from the trial—specifically, those unique

harms and “oppressive expenses” associated with

trial in an unconstitutional venue. Story, supra,

§ 1775. That distinction is crucial. As the Framers

would have understood, once a person has suffered

the hardship and indignity of being shipped to

London, it is no “remedy” to permit the government a

do-over—the core purpose of the right has already

1 The government claims Mr. Smith conceded “that venue

would have been proper in the Middle District of Florida.” Gov’t

Br. 24. That is wrong. Indeed, the same briefing cited by the

government explains that “the only appropriate venue for Count

Two would be the Southern District of Alabama.” JA60

(emphasis added); JA57-59 (identifying “the Southern District of

Alabama” as “the correct venue”); see also Smith C.A. Br. 26

(similar). The government’s concession argument is based on

snippets of Mr. Smith’s post-trial briefing taken out of context.

Mr. Smith stated that the essential conduct “occurred in either”

the Southern District of Alabama or the Middle District of

Florida only to emphasize that “no evidence whatsoever”

supported the government’s preferred venue, JA39; see also

JA60 (arguing that Northern District of Florida was not one of

the “only two possible appropriate districts for venue” (emphasis

added)).

6

been defeated. The only permissible remedy “tailored

to the injury suffered” is one that effectively deters

the government from violating the venue right before

the hardship of an unconstitutional trial has

occurred. United States v. Morrison, 449 U.S. 361,

364 (1981).

2. The government gives even shorter shrift to the

venue provisions’ purpose of preventing government

overreach and abuse.

It relegates those

considerations to the end of its brief as a “policy-based

argument” to be disregarded. Gov’t Br. 33. But the

Framers adopted the venue provisions specifically to

prevent government abuses like those they had

experienced at the hand of the British Crown. United

States v. Cabrales, 524 U.S. 1, 6 & n.1 (1998); United

States v. Johnson, 323 U.S. 273, 275 (1944); see Smith

Br. 27-28. The notion that this Court should discern

the proper remedy for venue violations without

reference to the purposes and concerns that drove the

Framers to enshrine those rights in the Constitution

makes little sense.

The government has no real answer to Mr. Smith’s

contention that a retrial remedy would license

government abuses—including serial retrials in

improper venues.

It suggests that statutory

limitations periods might bar reprosecution in some

cases, and that bureaucratic hurdles and time and

resource constraints will lead the government to

exercise its prosecutorial discretion judiciously. Gov’t

Br. 33-34. Yet the Framers, who rebelled against a

royal government that changed the rules of

prosecution on a dime, would take little comfort in the

government’s assurances. Indeed, they drafted two

constitutional provisions meant to “leave as little as

possible to mere discretion,” upon a subject “so vital

7

to the security of the citizen.” Story, supra, § 1775.

As this Court has explained, the Constitution “does

not leave [citizens] at the mercy of noblesse oblige,”

and constitutional concerns are not resolved simply

because the prosecution “promise[s] to use” its power

“responsibly.” United States v. Stevens, 559 U.S. 460,

480 (2010).

The government’s assurances ring particularly

hollow in this case. If the government “ha[d] neither

the time nor the resources to” “risk having a guilty

verdict set aside on venue grounds,” Gov’t Br. 33, it is

hard to imagine why the government brought its case

in the Northern District of Florida, instead of the

Southern District of Alabama, where all of the offense

conduct took place, and why—when Mr. Smith argued

vigorously before trial that venue was improper—the

government insisted the case go to the jury anyway.

Nor is there any reason to think this case is an outlier.

See Rutherford Br. 17-20 (collecting additional

examples of cases brought in facially questionable

venues).

The government’s suggestion that it might decide

“not to retry a defendant even once” is equally empty.

Gov’t Br. 33. Again, it points to this case, but even in

this case, which surely is not the most serious offense

on the federal government’s criminal docket, the

government still has not disavowed its intent to retry

Mr. Smith.

Id.

Instead, the government has

suggested it will retry him if he does not receive a

sentence to the government’s liking on a separate

count. BIO 10-11.2 That strategic use of repeated

2

The government has expressed its intent to use the

vacated trade-secrets count to increase Mr. Smith’s sentence on

8

trials is just the type of government overreach that

puts pressure on defendants to forgo their jury trial

rights altogether and plead guilty. See NACDL Br.

11-14.

Ultimately, even the government seems to

recognize that a rule with no limit on the

government’s power to serially retry a defendant

would be intolerable. It eventually concedes that a

court may grant acquittal “in extraordinary

circumstances.” Gov’t Br. 34. But if the government’s

own rule produces a result even the government

cannot stomach, there is every reason to think the

Framers, who were acutely concerned with venue

abuses, would reject it out of hand.3

the extortion count. BIO 10. This Court’s resolution of the

question presented in this case may bear on the propriety of that

sentencing position and the proper disposition of the extortion

count. See Pet. I, McClinton v. United States, No. 21-1557 (June

10, 2022) (seeking review of constitutionality of sentencing based

on acquitted conduct); see also Sentencing Guidelines for U.S.

Courts, 88 Fed. Reg. 7180, 7224-25 (Feb. 2, 2023) (proposing

limits on consideration of acquitted conduct at sentencing);

United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015)

(Kavanaugh, J., concurring in denial of rehearing en banc)

(describing sentencing based on acquitted conduct as “a dubious

infringement” of the right “to a jury trial”); Jones v. United

States, 574 U.S. 948, 949-50 (2014) (Scalia, J., dissenting from

denial of certiorari) (similar).

3 Given the government’s concession, this Court should at

a minimum vacate the Eleventh Circuit’s holding that “[t]he

remedy for improper venue is vacatur of the conviction, not

acquittal.” Pet. App. 15a (emphasis added).

9

II. The Government’s Defense Of Its Retrial

Rule Lacks Any Grounding In History Or

Precedent

The government’s affirmative attempts to justify

its retrial rule merely confirm that acquittal is the

appropriate remedy.

1. Rather than engage with the venue right’s

acknowledged purposes, the government posits two

alternate “original purpose[s]” of “requiring local

trials.” Gov’t Br. 29. The first is the “antiquated” one

whereby jurors resolved disputed questions of fact

based on their own knowledge. Id. But that purpose

has no relevance here, because, as the government

concedes, it was abandoned well before the Framers

chose to incorporate the venue right into the

Constitution, and thus plainly was not the reason

they did so. See Steven A. Engel, The Public’s

Vicinage Right: A Constitutional Argument, 75 N.Y.U.

L. Rev. 1658, 1675 & n.84 (2000); Gov’t Br. 29. The

second purpose the government suggests is to permit

the jury to serve “as the conscience of the community,”

a purpose the government contends was “mooted” by

this Court’s decision in Sparf v. United States, 156

U.S. 51, 105-06 (1895), that the jury does not have a

freestanding right to decide what the law is. Gov’t Br.

29-30.4

4

The idea that the value of “community participation in

the determination of guilt and innocence” has been “mooted” is

wrong on its own terms. Duncan v. Louisiana, 391 U.S. 145, 156

(1968) (explaining that “[f]ear” of the government’s “unchecked

power” “found expression” in “community participation” in

criminal trials); see also United States v. Gaudin, 515 U.S. 506,

511-14 (1995) (describing Sparf’s narrow ruling and

emphasizing that jury must still apply law to facts to render

“ultimate verdict”).

10

The government thus implies that because the

venue right serves no ongoing purpose, the Court can

revert to a supposed “default remedy” of retrial. Gov’t

Br. 8, 21-24. But the government cannot obtain its

preferred remedy simply by denigrating the present

value of the venue right. Neither the government, nor

the courts, are free to “reassess whether [a

constitutional right] is ‘important enough’ to retain.”

Ramos v. Louisiana, 140 S. Ct. 1390, 1402 (2020); see

also Rutherford Br. 22-23 (refuting idea that venue

right is “a mere technicality relegated to second-class

status”).

Nor is there any such thing as a “default remedy.”

Rather, this Court has specifically stated that a

remedy must be “tailored to the injury suffered from

the constitutional violation” and informed by the

policies underlying the right. Morrison, 449 U.S. at

364; Strunk v. United States, 412 U.S. 434, 438-40

(1973). It has thus endorsed differing remedies

depending on the purposes of the right. See, e.g.,

Betterman v. Montana, 578 U.S. 437, 444 (2016)

(explaining that dismissal with prejudice is

appropriate remedy for violation of speedy trial right

given “major evils” with which right is concerned

(citation omitted)); cf. Weaver v. Massachusetts, 137 S.

Ct. 1899, 1908, 1910 (2017) (explaining that certain

errors that “always result[] in fundamental

unfairness,” like denial of counsel, require “‘automatic

reversal’” (citation omitted)).

The government’s

invocation of a “default remedy” is just an effort to

duck the central inquiry mandated by this Court’s

precedent.

2. Instead of examining what remedy would be

tailored to the specific purposes of the venue right, the

government resorts to inapposite analogies to other

11

constitutional rights. To do so, it first decouples the

“Venue Clause” in Article III and the “Vicinage

Clause” of the Sixth Amendment, and contends this

case “involves only a violation of the Vicinage Clause.”

Gov’t Br. 24. It then argues that, as to the vicinage

right—i.e., the right to have a jury drawn from a

certain place—retrial is the proper remedy, because

the vicinage right is akin to other jury-composition

rights.

See id. at 24, 26; see also id. at 27

(distinguishing speedy trial right on this basis).

The government’s maneuver is just a veiled

concession that its retrial remedy is not “tailored to

the injury suffered from” a violation of the venue

right. Morrison, 449 U.S. at 364. In any event, the

government ultimately concedes that venue and

vicinage are “‘inextricably linked’” because the

“requirement that a jury come from a particular

district” also requires “that the trial be held in the

same district,” and a violation of the venue right will

virtually always lead to a violation of the vicinage

right.

Gov’t Br. 25 (citation omitted).

The

government’s laborious efforts to separate vicinage

and venue thus get it nowhere.

Even if one could consider the vicinage right in

isolation, it is fundamentally different than the jurycomposition rights the government analogizes it to.

Unlike a non-unanimous jury, a jury selected from a

locally unrepresentative venire, or a jury with a

racially biased juror, Gov’t Br. 23, trial in an improper

venue is a direct result of the prosecutor’s own choice.

Acquittal is a critical counterweight to that vast

discretionary power. The alternative of ordering a

new trial in a new venue—again, of the government’s

choosing—both fails to impose any meaningful

consequence for the government’s initial violation and

12

opens the door to a repeat of the constitutional

violation in a way that is far less likely in other

contexts.

For that reason, the government’s suggestion

throughout its brief that its proposed remedy is

“retrial in a proper venue” with a “jury drawn from

the correct district,” Gov’t Br. 9, 11, 21, 27, is

incorrect. Its proposed remedy is retrial in a new, but

not necessarily proper, venue chosen by the

prosecutor—with nothing but the prosecutor’s own

grace to ensure that it is, in fact, “proper.” Such a

remedy is drastically out of step with the Framers’

fears of unchecked government power.

3. Ultimately,

the

government’s

primary

argument in favor of its retrial remedy is that,

regardless of the harms imposed by a venue violation,

retrial is appropriate because acquittal would give

“guilty defendants a windfall.” Id. at 11; see also id.

at 22, 24, 35. The government cannot point to any

historical evidence suggesting the Framers’

overriding concern was preserving government

convictions, rather than protecting against

government abuses.

But, in any event, an acquittal when the

government fails to prove its case is not a windfall; it’s

standard practice. See infra 20. And it is particularly

odd to describe acquittal as a windfall in the venue

context because defendants are required to raise the

issue of venue before trial if the defect is apparent in

the indictment, just as Mr. Smith did here. Doing so

gives the government an opportunity to correct its

error and to avoid the risk of acquittal. When the

government instead urges that the case must proceed

to trial in the unconstitutional venue, and then fails

to carry its burden, it is the government that gets a

13

windfall by obtaining a second opportunity to try its

case.

And the government’s assertion (at 8, 35) that

acquittal is still too high a cost because defendants

tried in an improper venue have already been “found

guilty” by an “impartial jury” incorrectly presumes

that the venue and vicinage rights have no bearing on

the partiality of the jury or the validity of the verdict.

That too is a proposition the Framers would surely

have disputed. See Smith Br. 26-27 (describing

discussion in ratification debates and Justice Story’s

Commentaries regarding fear of conviction by biased

juries).

III. The Government Identifies No Historical

Practice That Supports Its Retrial Rule

Contemporaneous practice at the founding

confirms that acquittal is the appropriate remedy for

a failure to prove venue. The government does not

dispute the most important historical practice at

issue: that venue was traditionally submitted to the

jury and the government’s failure to prove venue

required acquittal. Gov’t Br. 16-19. And it does not

cite any federal case allowing reprosecution after a

jury verdict of acquittal on venue grounds. Instead,

the government asserts that the Framers “would . . .

have understood” that retrial was permissible based

on a common law doctrine that this Court has long

held was not incorporated into the Constitution. Id.

at 12-19. That argument is wrong, and it provides an

exceedingly weak basis to adopt a rule at odds with

the clear purposes of the venue right.

1. As an initial matter, the government’s premise

that common law doctrines prevailing in England

provide the exclusive means of discerning the

14

Framers’ intent is a particularly poor fit for analyzing

the venue right. As scholars have recognized, the

strength of the protection provided by venue

principles in England waxed and waned over time.

Scholars’ Br. 4-6. By enshrining the venue right in

the Constitution, the Framers repudiated a version of

those rights that had been subject to manipulation

and abuse by the British Crown. See id. at 7-14.

There is no reason to think the Framers nevertheless

effected a wholesale adoption of common law

remedies—even where those remedies would license

government abuses. See United States v. Gaudin, 515

U.S. 506, 516 (1995) (rejecting purported historical

practice that was contrary to the “understanding

consistent with [the] principle[s]” of the Fifth and

Sixth Amendments).

2. In any event, the government’s historical

practice argument fails on its own terms. The

government points repeatedly to the common law

principle that a prosecution founded on a defective

indictment could not yield a preclusive acquittal.

Gov’t Br. 15-18. But that principle was contested at

common law and rejected in this country.

For example, Lord Hale took the view that

subsequent reprosecution was permitted only when a

judgment in a defendant’s favor was given “for the

insufficiency of the indictment,” while a disposition

that went “to the matter of the verdict” would be “a

perpetual discharge.” See United States v. Ball, 163

U.S. 662, 667 (1896) (discussing Vaux’s Case, (1591)

76 Eng. Rep. 992 (K.B.)). That is the same principle

Mr. Smith proposes in this case. See Smith Br. 46-47

(explaining that acquittal remedy “applies only

where” the government “insists on proceeding” to trial

in an unconstitutional venue). And the government’s

15

own sources acknowledge authority providing that

when there is an acquittal in one county, that

acquittal “may be pleaded in Bar of a subsequent

Indictment in another County for the same” offense.

2 William Hawkins, A Treatise of the Pleas of the

Crown, ch. 35, § 3, at 370 (2d ed. 1726) (citing 2 W.

Staundforde, Les Plees Del Coron 105 (1557)); see also

United States v. Keen, 26 F. Cas. 686, 688 (C.C.D. Ind.

1839) (explaining that “[a] construction of [a common

law] maxim drawn from inference” and which is

“somewhat doubtful” “can afford but little aid to a

correct understanding of the constitution”).

But more fundamentally, whatever the precise

contours of the common law rule, this Court has

decisively rejected the notion that reprosecutions

after acquittal are permissible under the

Constitution. See Ball, 163 U.S. at 666-69. In Ball,

this Court held that, regardless of the English rule,

under the Constitution, “a general verdict of

acquittal” bars a second prosecution, no matter the

purported defects in the first indictment. Id. at 669.

In doing so, Ball cited approvingly to Justice

Livingston’s dissent in People v. Barrett, which

explained that the common law rule would permit

“the prosecutor, if he be dissatisfied, and bent on

conviction . . . to tell the court that his own indictment

was good for nothing, that it has no venue, or is

deficient in other particulars; and that therefore, he

has a right to a second chance of convicting the

prisoner.” People v. Barrett, 1 Johns. 66, 74 (N.Y. Sup.

Ct. 1806) (Livingston, J., dissenting).

The government’s argument depends on that

rejected contention—that a prosecutor may

collaterally attack his own indictment to justify a new

prosecution, even after a defendant has been

16

acquitted. But this Court has described the principle

that a prosecutor cannot reindict following an

acquittal as “[p]erhaps the most fundamental rule in

the history of double jeopardy jurisprudence.” United

States v. Martin Linen Supply Co., 430 U.S. 564, 571,

576 (1977); Evans v. Michigan, 568 U.S. 313, 320

(2013) (collecting cases “instruct[ing] that an

acquittal due to insufficient evidence precludes

retrial”). Accepting the government’s theory here

would mean that the Framers intended to adopt a

common law rule that they unequivocally rejected for

purposes of the Fifth Amendment as the remedy for

violations of the venue right. That position cannot be

squared with the Framers’ recognition that the venue

right was particularly susceptible to governmental

abuse. And, tellingly, the government does not point

to any federal decision, even before Ball, applying its

defective-indictment rule to permit retrial after a

venue acquittal.

3. For similar reasons, the government’s

assertion that a venue violation “would constitute

only a mistrial” at common law is inapposite. Gov’t

Br. 12-13. The government’s cited sources, including

Arundel’s Case, involve circumstances where a jury

was drawn from the wrong place and the defendant

brought a motion to arrest judgment after conviction,

not an effort to reprosecute following acquittal.

Arundel’s Case, (1593) 77 Eng. Rep. 273, 273-74

(K.B.); see also, e.g., Tharold v. Spight, (1623) 79 Eng.

Rep. 585, 585-86 (K.B.) (involving motion “in arrest of

judgment, that it is a mis-trial” where civil jury was

drawn from wrong village); see also United States v.

Sisson, 399 U.S. 267, 280-81 (1970) (explaining that

arrest of judgment does not permit challenges to the

evidence, but only to errors evident on the “face” of the

17

record, like an improper indictment). Those cases do

not implicate the situation here, where the

government has taken the question of venue to a jury

and failed to satisfy its burden of proof. That scenario

has always resulted in acquittal, not mistrial, at

common law and in the early Republic—as even the

government acknowledges. Gov’t Br. 14.

4. The government also notes that at common

law, venue had jurisdictional stature, such that

proceedings in an improper venue were a nullity and

did not preclude reprosecution under double jeopardy

principles. Gov’t Br. 14, 16. But that premise cannot

have been incorporated into the Constitution, because

the jurisdiction of the federal courts is defined by

Article III and Congress, not by English common law

principles. And the government obviously does not

believe that venue is a matter of jurisdiction in the

United States. See id. at 24 (arguing that Mr. Smith

conceded venue); see also id. at 18; Patton v. United

States, 281 U.S. 276, 298 (1930) (holding that Article

III, section 2’s jury trial right “is not jurisdictional”).

Double jeopardy principles premised on a lack of

jurisdiction thus have no bearing on the proper

remedy for the government’s failure to prove venue at

trial.

5. Tellingly, the government cites no federal case

that actually applies the rule it contends is supported

by “hundreds of years of precedent and historical

practice.” Gov’t Br. 11. It touts (at 16-17, 26) two

opinions—authored by Justices McLean and Story—

as its key support, but both of those cases involve the

unrelated question whether a convicted capital

defendant could be awarded a new trial on his own

motion under the Double Jeopardy Clause. Justice

McLean and Justice Story disagreed on the answer to

18

that constitutional question, and in doing so, both

considered common law principles related to a

defendant’s ability to attack a conviction for errors on

the face of the proceedings, such as defects in the

indictment or an improperly drawn jury. Keen, 26 F.

Cas. at 690; United States v. Gibert, 25 F. Cas. 1287,

1298 (C.C.D. Mass. 1834). But neither remotely

answers the question at issue here—whether an

acquittal for failure to prove venue carries preclusive

effect.

The only founding-era federal proceeding cited by

the government that begins to approach the question

presented cuts against the government’s arguments.

The government relies on a letter Chief Justice

Marshall wrote before Aaron Burr’s treason and

misdemeanor trials, in which he expressed

substantial doubt as to whether Burr could be

indicted again in Kentucky if he were acquitted in

Virginia. Gov’t Br. 17 (citing Letter from John

Marshall to William Cushing (June 29, 1807),

reprinted in 7 The Papers of John Marshall 60-61

(Charles Hobson ed. 1993)); see also 1 David

Robertson, Reports of the Trials of Colonel Aaron Burr

429-30 (1808) (swearing the jury for Burr’s treason

trial on August 17, 1807).

While Chief Justice Marshall surmises in the

letter that “perhaps” an acquittal would not bar an

indictment elsewhere, what he did after Burr’s

seriatim treason and misdemeanor trials undercuts

the government’s claims of settled practice. When the

government sought to commit Burr for trial on

charges of levying war and providing the means for a

military expedition in another district, Burr advanced

“a preliminary defence . . . in the nature of a plea of

autrefois acquit.” United States v. Burr, 25 F. Cas.

19

201, 202 (C.C.D. Va. 1807). Chief Justice Marshall

considered Burr’s plea a “new and important

question[]” about “constitutional” law which should be

brought “before the supreme court.” Id. at 202-03. He

thus declined to resolve the issue, instead considering

the government’s commitment motion “as if no verdict

had been rendered for either of the parties” and

deferring the issue to the court to which Burr was

committed. Id. (emphasis added).5 Chief Justice

Marshall surely would not have hedged in this way

had the government’s retrial rule truly been

“incorporated into the legal practices of the United

States.” Gov’t Br. 15.

Indeed, Chief Justice Marshall recognized what

the government ignores—the question presented is

one of constitutional law, to be decided in accordance

with the principles of our founding charter. The

inapposite and unsettled common law principles the

government invokes do not justify a remedy that

severely undermines the core purposes of the venue

right, especially when the Framers’ firsthand

experience with venue abuses led them to make that

right “the stronger in the United States,” by

“affirm[ing]” it in “the constitution itself.” United

States v. Burr, 25 F. Cas. 187, 196 (C.C.D. Va. 1807).

IV. The Government’s Distinction Between

Jury Acquittals And Judicial Acquittals Is

Baseless

The government’s retrial rule makes no more

sense as a matter of modern practice and doctrine

5 Although Burr was committed to Ohio, “[t]he

government did not pursue this prosecution,” and Burr was, “for

all practical purposes,” “a free man.” 7 The Papers of John

Marshall, supra, at 5, 164 n.20.

20

than it does as a matter of history and purpose. The

government does not dispute anywhere in its brief

that juries are routinely instructed to acquit when the

government fails to prove venue, that a jury must

acquit when the government fails to prove venue, and

that those acquittals bar reprosecution. See Smith

Br. 37-39; Gov’t Br. 31-33. Instead, the government

urges this Court to treat appellate findings that the

government failed to prove venue differently from

jury verdicts reaching the same conclusion. Gov’t Br.

31-33. That argument is flatly inconsistent with this

Court’s precedent.

This Court has long held that a judicial acquittal—

including an appellate reversal for insufficiency of the

evidence—bars a subsequent prosecution to the same

degree as a jury acquittal. See, e.g., Evans, 568 U.S.

at 328-29; Smith v. Massachusetts, 543 U.S. 462, 46667 (2005); Burks v. United States, 437 U.S. 1, 11, 16

(1978); Fong Foo v. United States, 369 U.S. 141, 143

(1962) (per curiam). Any other rule would create a

“purely arbitrary distinction” between those

defendants for whom the insufficiency of the

government’s evidence was identified on appeal, and

those who obtained a correct determination from the

jury itself or from the trial court. Burks, 437 U.S. at

11.

This case illustrates that anomaly.

The

government agreed that if the jury found insufficient

proof of venue, it should return a verdict of acquittal,

barring reprosecution. See JA29; JA110 (government

requesting instruction that jury “must find the

Defendant not guilty” if the government “has failed to

establish proper venue”). But it now argues that

because the jury erred in its determination, the

government is entitled to a second chance. There is

21

simply no reason for a constitutional remedy to turn

on that arbitrary happenstance.

The government attempts to justify its position by

arguing that a reversal for insufficient proof of venue

is a reversal on grounds “other than the insufficiency

of the evidence to support the verdict.” Gov’t Br. 32

(quoting United States v. Scott, 437 U.S. 82, 90-91

(1978)). But that cannot possibly be right. A reversal

for insufficient proof of venue is, by definition, a

reversal for “insufficiency of the evidence to support

the verdict.” That follows inescapably from the fact

that the jury cannot return a valid verdict of guilt

unless it finds that the government has presented

sufficient evidence of venue. See, e.g., JA29. And that

is why the standard vehicle for challenging venue

after trial is a motion for a judgment of acquittal on

the ground that “the evidence is insufficient to sustain

a conviction.” Fed. R. Crim. P. 29(a).

The

government’s

only

basis

for

its

counterintuitive argument is that venue does not

relate to “factual guilt or innocence.” Gov’t Br. 32

(quoting Scott, 437 U.S. at 87). But this Court has

always referred to “factual guilt or innocence”

synonymously with the government’s ability to

present evidence sufficient to sustain a conviction.

See, e.g., Martin Linen, 430 U.S. at 572 (asking

whether government’s evidence was “legally

insufficient to sustain a conviction”); Evans, 568 U.S.

at 319 (explaining that an acquittal is any “ruling by

the court that the evidence is insufficient to convict”

(citation omitted)); Burks, 437 U.S. at 15 (describing

“evidentiary insufficiency” as a ruling “that the

22

government has failed to prove its case”).6 That is

why courts have held that a failure to prove a

jurisdictional element results in acquittal barring

reprosecution, even though the question whether, e.g.,

a bank engages in interstate commerce, does not go to

a defendant’s inherent culpability any more than

venue does. See, e.g., United States v. BravoFernández, 913 F.3d 244, 250-51 (1st Cir. 2019)

(explaining that “the failure to offer any actual proof

of [certain] relatively obvious jurisdictional facts has

repeatedly proved fatal to criminal prosecutions” and

directing entry of judgment of acquittal).

If venue were not a valid basis for a preclusive

acquittal, it would make no sense to submit the issue

to the jury, with instructions to acquit for failure to

prove venue. But that is what courts have always

done, since before the founding. And that is exactly

what happened in this case. In fact, everyone agrees

the jury should have acquitted on venue grounds and

that such an acquittal would bar reprosecution.

There is no principled basis for affording the Eleventh

Circuit’s correction of that error any lesser effect.

6 Scott illustrates the distinction. There, the Court held

that a dismissal based on prejudice from preindictment delay did

not bar reprosecution. 437 U.S. at 95, 100-01. Those grounds

had nothing to do with the sufficiency of the government’s

evidence, and a jury plainly could not have acquitted on that

basis.

23

CONCLUSION

The Eleventh Circuit’s judgment should be

reversed.

Respectfully submitted,

MARGARET A. UPSHAW

BRENT T. MURPHY

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

MARISSA MARANDOLA

LATHAM & WATKINS LLP

200 Clarendon Street

Boston, MA 02116

SAMIR DEGER-SEN

Counsel of Record

PETER TROMBLY*

LATHAM & WATKINS LLP

1271 Avenue of the

Americas

New York, NY 10020

(212) 906-4619

samir.deger-sen@lw.com

Counsel for Petitioner

March 17, 2023

*

Admitted to practice in Virginia only.