Order Code RS22360
January 6, 2006
CRS Report for Congress
Received through the CRS Web
Venue for Federal Criminal Prosecution:
Proposals in the 109th Congress
Charles Doyle
Senior Specialist
American Law Division
Summary
Venue, the place were federal criminal trials may be held, is a matter of
constitutional and statutory law. Several proposals in the 109th Congress would expand
federal venue. The Supreme Court’s recent decisions in Cabrales and Rodriguez-
Moreno suggest that a few of the proposals may be more limited than their terms might
indicate. The proposals deal with venue in cases involving capital offenses, obstruction
of justice, violent crime, drug trafficking offenses, false statements, failure to pay
spousal support, and trial in emergency conditions. They appear in H.R. 229, H.R. 970,
H.R. 1279, H.R. 1751, H.R. 4437, S. 155, and S. 1968. This report will be revised as
circumstances warrant.
Related reports include CRS Report RL33223, Venue: A Legal Analysis of Where
a Federal Crime May Be Tried, which is available in abbreviated form as CRS Report
RS22361, Venue: A Brief Look at Federal Law Governing Where a Federal Crime May
Be Tried, both by Charles Doyle.
Introduction. The Constitution guarantees those accused of a federal crime the
right to trial in the state where the crime was committed, U.S. Const. Art.III, §2, cl.3, and
the right to trial by a jury selected from the district where the crime was committed, U.S.
Const. Amend. VI. In 1998, the Supreme Court held that federal charges involving
money laundering, in Florida but of the proceeds from drug trafficking in Missouri, could
not be tried in Missouri, United States v. Cabrales, 524 U.S.1, (1998). The following
year, the Court held that use of a firearm, in Maryland, in connection with a multi-state
kidnaping could be tried in New Jersey, United States v. Rodriguez-Moreno, 526 U.S. 275
(1999). Subsequent Congresses have seen a number of proposals to expand venue for the
trial of various federal criminal offenses. The pattern continues in the 109th.
Constitutional venue requirements understood in light of Cabrales and Rodriguez-Moreno
may preclude realization of the full literal benefits of some of these proposals.
Cabrales and Rodriguez-Moreno. Cabrales is not as restrictive as it might
seem at first; nor is Rodriguez-Moreno as permissive. Cabrales laundered the Missouri
drug money in Florida, but there was no evidence that she was a member of the Missouri
Congressional Research Service ˜ The Library of Congress

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drug trafficking conspiracy or that she had transported the money from Missouri to
Florida. The Court acknowledged that she might have been tried in Missouri had either
been the case, 524 U.S. at 8, 10.
Rodriguez-Moreno and his confederates kidnapped a drug trafficking associate and
transported him over the course of time from Texas to New Jersey and then to Maryland.
Rodriguez-Moreno acquired the firearm with which he threatened the kidnap victim in
Maryland but was tried in New Jersey for using a firearm “during and in relation to a
crime of violence [kidnaping]” in violation of 18 U.S.C. 924(c)(1). Section 924(c)(1) in
the eyes of the Court has “two distinct conduct elements . . . using and carrying of a gun
and the commission of a kidnaping,” 526 U.S. at 280 (emphasis added). A crime with
distinct conduct elements may be tried wherever any of those elements occurred;
kidnaping is a continuous offense that in this case began in Texas and continued through
New Jersey to Maryland; venue over the kidnaping, a conduct element of the section
924(c)(1), was proper in Texas, New Jersey or Maryland; consequently venue over the
violation of section 924(c)(1) was proper in either Texas, New Jersey or Maryland, 526
U.S. at 280-82.
The Court was quick to distinguish Cabrales from Rodriguez-Moreno: “The
existence of criminally generated proceeds [in Cabrales] was a circumstance element of
the offense but the proscribed conduct — defendant’s money laundering activity —
occurred after the fact of the offense begun and completed by others.” In Rodriguez-
Moreno, “given the ‘during and in relation to’ language, the underlying crime of violence
is a critical part of the §924(c)(1) offense,” 526 U.S. at 280-81 n.4. The Court also
declined to address the so-called “effects” test used by the some of the lower federal
courts in obstruction of justice and Hobbs Act (“effect”) cases to determine the presence
of proper venue, 526 U.S. at 279 n.2.
Obstruction of Justice. The most common venue proposal in the 109th Congress
relates to retaliation against witnesses in federal proceedings, 18 U.S.C. 1513. It is found
in H.R. 970/S. 155 (§207), S. 1968(§8), H.R. 1751(as passed by the House)(§10), H.R.
4472(§717). Under the proposal a new subsection would be added to section 1513 of title
18 reading, “A prosecution under this section may be brought in the district in which the
official proceeding (whether or not pending, about to be instituted or completed) was
intended to be affected or was completed, or in which the conduct constituting the alleged
offense occurred,” proposed 18 U.S.C. 1513(g). The language replicates that found in 18
U.S.C. 1512(h) concerning venue in federal witness tampering cases and added to section
1512 in 1988 prior to Cabrales or Rodriguez-Moreno.
The “official proceeding affected” would appear to more closely resemble the
“circumstance element” found insufficient in Cabrales than the “conduct element”
approved in Rodriguez-Moreno. In what seems to be the only federal appellate decision
to address the question, the Fourth Circuit concluded that its earlier approval of venue
under section 1513 in the district where the official proceeding had been, were being or
would be held “cannot be reconciled with the Supreme Court’s later decisions in Cabrales
and Rodriguez-Moreno. Rather the Supreme Court’s recent venue decisions instruct that
the nature of the crime refers only to the conduct constituting the offense and that the
conduct constituting the offense is limited to essential conduct elements,” United States
v. Bowens, 224 F.3d 302, 312 (4th Cir. 2000).

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Violence During and In Relation to Drug Trafficking. A second common
proposal builds upon the scheme approved in Rodriguez-Moreno. The statute before the
Court, 18 U.S.C. 924(c)(1) outlaws the use of a firearm “during and in relation” to a crime
of violence or serious drug offense. Several bills — e.g., H.R. 970/S. 155 (§108), H.R.
1279 (as passed the House) (§106) — propose a new federal crime, one that would
prohibit the commission of a crime of violence “during and in relation” to a drug
trafficking offense, proposed 21 U.S.C. 865. They would permit prosecution for such an
offense “in (1) the judicial district in which the murder or other crime of violence
occurred; or (2) any judicial district in which the drug trafficking crime may be
prosecuted,” proposed 21 U.S.C. 865(b).
This analogy to Rodriguez-Moreno seems to work, especially if the drug trafficking
offense, like the kidnaping offense in Rodriguez-Moreno, is considered a continuous
offense in time and space. Many drug trafficking offenses are likely to be considered
continuing offenses for venue purposes, see e.g., United States v. Zidell, 323 F.3d 412,
422 (6th Cir. 2003)(possession with intent to distribute); United States v. Brown, 400 F.3d
1242, 1250 (10th Cir. 2005)(manufacturing methamphetamine). Moreover, although
Rodriguez-Moreno used a firearm during and in relation to a continuing offense
(kidnaping) that occurred in the same district, that does not appear to have been necessary
for the Court’s analysis. The Court’s analysis suggests no different result if the kidnap
victim had been kept in New Jersey and never been transported to Maryland, but
Rodriguez-Moreno had traveled to Maryland and used a firearm there to a discourage an
informant from disclosing the victim’s whereabouts to authorities. “Where a crime
consists of distinct parts which have different localities, the whole may be tried where any
part can be proved to have been done,” 526 U.S. at 281. In the case of the proposal, the
new crime appears to consist of two conduct elements, a crime of violence and a drug
trafficking crime; it seems to follow that the new crime may be tried wherever either the
crime of violence or a continuous drug trafficking offense occurs.

Venue in Capital Cases. The same bills that propose venue changes for drug-
related crimes of violence, replace an existing provision relating to venue in capital cases,
H.R. 970/S. 155 (§203), and H.R. 1279 (as passed by the House)(§110). Existing law
provides that where possible capital cases should be tried in the county in which the crime
occurred, 18 U.S.C. 3235. Section 3235 is followed by a section that provides that
murder and manslaughter cases should be tried where the death-causing injury was
inflicted regardless of where death actually occurs, 18 U.S.C. 3236. The more specific
instruction of section 3236 overrides the general multi-district venue provisions of 18
U.S.C. 3237(a) which provides that multi-district crimes may be tried where they are
begun, continued, or completed and that offenses involving the use of the mails,
transportation in interstate or foreign commerce, or importation into the United States
may be tried in any district from, through, or into which commerce, mail, or imports
travel.
At least one federal appellate court has held that the specific instruction of section
3236 overrides the general instructions of section 3237(a) only with regard to “unitary”
murder offenses, such as murder by a federal prisoner, 18 U.S.C. 1118. Section 3236
does not apply, the court held, to “death resulting” cases, cases where murder is a
sentencing element rather than a substantive element of the offense, such as in cases of
a violation of 18 U.S.C. 924(c)(use of a firearm during and relating to the commission of
crime of violence), the sentence for which is determined in part by whether death resulted

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from the commission of the offense, United States v. Barnette, 211 F.3d 803, 814 (4th Cir.
2000).
The proposal repeals the “county trial” language of section 3235 and replaces it with
language reminiscent of the multi-district terms of section 3237(a): “(a) the trial of any
offense punishable by death shall be held in the district where the offense was committed
or in any district in which the offense began, continued, or was completed. (b) If the
offense, or related conduct, under subsection (a) involves activities which affect interstate
or foreign commerce, or the importation of an object or person into the United States,
such offense may be prosecuted in any district in which those activities occurred.”
Although it is far from certain, the proposal appears intent upon repealing the
“county trial” feature of section 3235 and, by indirection, repealing the section 3236
override of multi-district section 3237 in murder cases. The manslaughter features of
3236 would presumably continue in place since they are not capital cases and thus by
definition would be beyond the reach of the proposed capital venue provisions of the
amended section 3235.
Constructional quandaries aside, it is not clear that predicating venue upon the
interstate impact of related conduct will always survive analysis under Cabrales. The
proposal would appear to permit trial of an offense in a district in which related conduct
affecting interstate or foreign commerce occurs even if the offense itself is committed
entirely in another district. The Cabrales’ money generating drug trafficking in Missouri
would seem to qualify as conduct related to the laundering in Florida. Nor would the
proposal always meet Rodriguez-Moreno’s “conduct element” standard. There is nothing
in the proposal that requires that the “related conduct affecting interstate commerce” be
an element of the offense to be tried. In fact, the alternative wording — “if the offense,
or related conduct . . . involves activities which affect interstate commerce” — seems to
contemplate situations in which affecting commerce is not an element, conduct or
otherwise, of the offense.
False Statements in Passport Applications. H.R. 4437, as passed by the
House, outlaws making false statements in a passport application, mailing or presenting
a passport application containing a false statement, or causing the production of a passport
by fraud or false application, proposed 18 U.S.C. 1542. The bill’s additional venue
section allows prosecution in “(1) any district in which the false statement or
representation was made; or (2) any district in which the passport application was
prepared, submitted, mailed, received, processed, or adjudicated; or (3) in the case of an
application prepared and adjudicated outside the United States, in the district in which the
resultant passport was produced,” proposed 18 U.S.C. 1551. The proposals seem
compatible with constitutional requirements as explained in Cabrales and Rodriguez-
Moreno. With the exception of subsection (3), venue seems to be pegged to the conduct
elements of the new offense. As to subsection (3), the Constitution authorizes Congress
to provide venue for crimes committed outside of the United States, U.S. Const. Art.III,
§2, cl.3; Amend. VI.
Violence in Aid of Racketeering. Section 105 of H.R. 1279, as passed by the
House, amends 18 U.S.C. 1959(a) to outlaw crimes of violence committed (1) for hire
at the behest of a racketeering enterprise, (2) to further the purposes of a racketeering
enterprise, or (3) to acquire, maintain or enhance the offender’s position within a

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racketeering enterprise. It adds a new subsection 1959(c) under which violations of the
section may be prosecuted in “(1) the judicial district in which the crime of violence
occurred; or (2) in any judicial district in which racketeering activity of the enterprise
occurred .” Section 1959 uses the definition of “racketeering activity” found in 18 U.S.C.
1961 that lists the crimes which mark the activities of a racketeer influenced and corrupt
organization (RICO), 18 U.S.C. 1959(b). It is uncertain whether venue over a section
1959 offense would be constitutionally proper in any district where a RICO predicate
offense (“racketeering activity”) had been committed. For instance, the section 1959 “for
hire by a RICO enterprise” crime of violence might easily be compared to the “after the
fact” money laundering in Cabrales. On the other hand, the section 1959 “in furtherance
of a RICO enterprise” crime, and perhaps the “in furtherance of a position in a RICO
enterprise”crime, seem to more closely resemble the conspiratorial or aiding and abetting
exceptions suggested in Cabrales.
Runaway Spouses. H.R. 229 would outlaw interstate flight to avoid court
ordered payments to a spouse or ex-spouse and the failure to make such payments with
respect to spouse or ex-spouse living in another state, proposed 18 U.S.C. 228A(a).
Venue would lie in the district in which either party resided or any other district
recognized by law, proposed 18 U.S.C. 228A(e). In a case prior to Rodriguez-Moreno but
after Cabrales, the Eleventh Circuit upheld an identical venue provision found in the child
support provisions of 18 U.S.C. 228, United States v. Muench, 153 F.3d 1298, 1300-304
(11th Cir. 1998). The results seems compatible with Rodriguez-Moreno. Since payment
involves both tender and receipt, failure to pay constitutes a “conduct element” occurring
both where the debtor and the creditor are found.
Trial in Emergency Conditions. In emergency conditions and with the consent
of the accused, P.L. 109-63, the Federal Judiciary Emergency Special Sessions Act of
2005, criminal trials may be held outside the state in which the offense occurred before
a jury drawn from outside the district in which the offense occurred, 28 U.S.C. 141(b).
Although there is no Supreme Court precedent directly on point, the lower federal
appellate courts have held without exception that the accused may waive the
Constitution’s venue requirements, see e.g., United States v. Grenoble, 413 F.3d 569, 573
(6th Cir. 2005); United States v. Ebersole, 411 F.3d 517, 525 (4th Cir. 2005); United States
v. Strain, 396 F.3d 689, 693 (5th Cir. 2005); United States v. Rendon, 354 F.3d 1320,
1326 n.5 (11th Cir. 2003); 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE §306 (2000).

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