Order Code RS22361
January 6, 2006
CRS Report for Congress
Received through the CRS Web
Venue: A Brief Look at Federal Law
Governing Where a Federal Crime May Be
Tried
Charles Doyle
Senior Specialist
American Law Division
Summary
Federal law promises criminal defendants a proper venue, i.e., trial in the district
in which the federal crime was committed. A crime is committed in any district in
which any of its “conduct” elements are committed. Some offenses are committed
entirely within a single district; there they must be tried. Others begin in one district and
are completed in another. They may be tried where they occur unless Congress has
limited the choice of venue for the particular offense. Conspiracy may be tried in any
district in which an overt act in its furtherance is committed, at least when the
commission of an overt act is an element of the conspiracy statute at issue. Crimes
committed beyond the territorial confines of the United States are usually tried in the
district into which the accused is first brought. The court may grant a change of venue
at the behest of the defendant to avoid undue prejudice, for the convenience of the
parties, or for sentencing purposes. This report is an abridged version of CRS Report
RL33223, Venue: A Legal Analysis of Where a Federal Crime May Be Tried, by Charles
Doyle, stripped of the footnotes and most of the citations to authority found in the longer
version. It will be revised as circumstances warrant.
Related reports include CRS Report RS22360, Venue for Federal Criminal
Prosecution: Proposals in the 109th Congress, by Charles Doyle.
Threshold Issues. Before a court decides whether venue in a particular district
is proper, it would confront the question of who bears the burden of persuasion on the
issue, to what level of persuasion, and whether waiver by the accused obviates the need
for further inquiry. It is generally agreed that the government bears the burden of
establishing that venue is proper, i.e., that the offense is being prosecuted in the district
in which it was committed. This obligation extends to every count within the indictment
or information; there is no supplemental venue. Venue, however, is not a substantive
element of the offense and consequently the government need only establish venue by a
preponderance of the evidence. Moreover, venue is not jurisdictional. Therefore, a court
in an improper venue enjoys the judicial authority to proceed to conviction or acquittal,
Congressional Research Service ˜ The Library of Congress

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if the accused waives objection. If the absence of proper venue is apparent on the face of
indictment or information, failure to object prior to trial constitutes waiver. If the failure
of proper venue is not apparent on the face of the charging document and is not
established during the presentation of the government’s case in the main, objection may
raised at the close of the government’s case.
In What District Did the Crime Occur. The district in which venue is proper,
the district in which the offense was committed, “the ‘locus delicti [of the charged
offense,] must be determined from the nature of the crime alleged and the location of the
act or acts constituting it.’ In performing this inquiry, a court must initially identify the
conduct constituting the offense (the nature of the crime) and then discern the location of
the commission of the criminal acts.” Which is to say, the inquiry begins by identifying
(1) the statutory prohibition charged, (2) what acts or omissions of the accused are alleged
to have been committed in violation of the prohibition, and (3) where those acts or
omissions occurred. The words Congress uses when it drafts a criminal proscription will
establish where the offense occurs and therefore the district or districts in which venue
is proper. The test endorsed by the Supreme Court is – where did the activity or omission
that satisfies the statute’s “conduct element” occur?
Multi-District Crimes. There is a general statute that seeks to clarify venue in the
case of multi-district crimes, 18 U.S.C. 3237. It consists of three parts: one for continuing
offenses generally, another for offenses involving elements of the mails or interstate
commerce, and a third for tax offenses.

Crimes Continuing Through More than One District. The first paragraph
of section 3237 provides, “Except as otherwise expressly provided by enactment of
Congress, any offense against the United States begun in one district and completed in
another, or committed in more than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or completed.” Although money
laundering is sometimes a continuing offense, the Supreme Court has observed recently
that money laundering and the crimes that generated the tainted funds do not
automatically form one continuous criminal episode so as to permit trial of the laundering
offense in the foreign district in which money-generating offense occurred, United States
v. Cabrales.
Conspiracy. Conspiracy may be the most commonly recognized “continuing
offense,” although whether conspiracy is really a continuing offense or merely shares the
attributes of a continuing offense is not clear. Some time ago, the Supreme Court pointed
out that conspiracy could be considered something akin to a continuous offense.
Conspiracy, it declared, may be tried in any district in which an overt act in its furtherance
is committed, at least when the conspiracy statute has an overt act requirement, Hyde v.
United States, 225 U.S. 347, 360-61 (1912). Even for those conspiracy offenses for
which an overt act is not an element, the Court in Hyde implied that a prosecution might
be had in any district in which an overt act in their furtherance was committed. Without
apparent exception, the lower federal appellate courts have followed Hyde’s lead and
found venue proper for trial of conspiracy charges in any district in which an overt act is
committed, regardless of whether the conspiracy statute in question requires proof of an
overt act or not. Nevertheless it is interesting to note that when Cabrales observed that
the money launderer might have been tried as a conspirator in the district where the
predicate offense (drug trafficking) occurred, it referred to the general conspiracy statute

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that requires an overt act, 18 U.S.C. 371, rather than the equally applicable drug
trafficking conspiracy statute that does not, 21 U.S.C. 846.
Aiding and Abetting. Those who aid and abet the commission of a federal crime
are punishable as principals, 18 U.S.C. 2. Cabrales suggests they may be prosecuted
wherever the underlying offense was committed. Subsequent lower federal appellate
courts have so held.
Continuous Offenses. In Armour Packing Co. v. United States, the Supreme Court
upheld a conviction following a trial in the Western District of Missouri for the offense
of continuous carriage by rail of the defendant’s products from Kansas to New York at
an illegally reduced rate. The Court concluded that “[t]his is a single continuing offense
. . . continuously committed in each district through which the transportation is received
at the prohibited rate,” id. The Court’s most recent venue decision confirmed the
continued vitality of this view when it held that if Congress so crafts a criminal offense
as to embed within it a continuing offense as one of the conduct elements of the new
crime, venue over the new crime is proper wherever trial over the continuing offense may
be had. In United States v. Rodriguez-Moreno, it held that the constitutional right to a
jury trial in the state and district in which the crime occurs did not preclude trial for use
of a firearm during the commission of a predicate offense in a state and district – New
Jersey – other than that in which the firearm was used – Maryland. The crime in question,
18 U.S.C. 924(c)(1), contains two distinct conduct elements – as is relevant in this case,
the using and carrying of a gun and the commission of a kidnaping. A defendant commits
a crime and may be tried where he commits any of its conduct elements. Kidnaping is a
crime that continues from capture until release and therefore can be tried in any place
from, through or into which the victim is taken, and the appended gun charge travels with
it.
In addition to kidnaping, the lower federal appellate courts have found venue proper
based on the continuing nature of violations involving, inter alia: (a) false statements (18
U.S.C. 1001); (b) wire fraud (18 U.S.C.1343); (c) mail fraud (18 U.S.C. 1341); (d) bank
fraud (18 U.S.C. 1344); (e) possession of controlled substances with the intent to
distribute (21 U.S.C. 841); (f) Hobbs Act (violent interference with interstate commerce)
(18 U.S.C. 1951); (g) unlawful possession of a firearm (18 U.S.C. 922(g)); (h) Travel Act
(interstate travel in aid of racketeering) (18 U.S.C. 1952); (i) violent crimes in aid of
racketeering (18 U.S.C. 1959); and (j) failure to pay child support (18 U.S.C. 228).
Venue in the Place of Impact. Continuing offenses and the first paragraph of
subsection 3237(a) present one other puzzle – when is venue proper in any district in
which the crime’s effects are felt? The Court expressly declined to address the issue in
Rodriguez-Moreno. The government had argued venue may also be based on the effects
of a defendant’s conduct in another district and cited the lower court obstruction of justice
and Hobbs Act cases. The Hobbs Act outlaws the obstruction of interstate or foreign
commerce through the use of violence or extortion. Venue for a Hobbs Act violation is
generally considered proper in any district in which there is an obstruction of commerce.
Yet obstruction is an element of the offense. The act is drafted in such a way that
obstruction is arguably a conduct element; if so, it would seem to provide little support
for “impact” venue in the case of those crimes for whom the effect is not a conduct
element.

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An earlier line of cases suggested that an obstruction of justice – intimidation or
bribery of witness, bail jumping, or the like – might be tried in the district in which the
proceedings were conducted even when the act of obstruction was committed elsewhere.
The line gave birth to a suggestion that venue might be predicated upon the impact of the
crime within a particular district especially when the offense involved other “substantial
contacts” with the district of victimization. After Rodriguez-Moreno, the courts continue
to recognize an “effects” or “substantial contacts” test for venue, but generally hold that
the effect must also constitute a “conduct element” under the statute defining the offense,
and that venue may not be based on elements of the offense which are not conduct
elements.
Mail and Commerce Cases. The second paragraph of subsection 3237(a) expands
the number of districts where prosecutions for offenses involving smuggling, the mails
or commerce may be brought to any district from, through, or into which “commerce,
mail matter, or [an] imported object or person moves.” The paragraph was added when
title 18 of the United States Code was revised in 1948. Interstate transportation and mail
cases had previously been resolved under the continuing offense language of the first
paragraph discussed above. Professor Wright has suggested that the paragraph stems
from a misreading of the Supreme Court’s opinion in United States v. Johnson and that
at its outer limits the paragraph may lie beyond constitutional expectations. Perhaps for
this reason although the paragraph has been used under a wide range of circumstances,
its invocation has not always been successful.
Tax Cases. The tax provision, subsection 3237(b), is in fact a limited transfer
provision under which the accused may opt for trial in the district in which he resided at
the time when the alleged offense occurred. The subsection was added in 1958 upon the
view that prosecution in the district where a return was received or due rather than the
district in which the taxpayer resided visited inappropriate inconvenience and expense
upon taxpayers, their attorneys and witnesses. The subsection is only available in the case
of prosecutions under 26 U.S.C. 7203 (willful failure to file a return, supply information
or pay a tax), or, if the government seeks to prosecute in a district where venue exists
solely because of a mailing to the Internal Revenue Service, under 26 U.S.C. 7201
(attempted tax evasion) or 7206(1),(2), or (5)(various frauds and false statements).
Crimes With Individual Venue Statutes. In a few instances, Congress had
enacted special venue provisions for particular crimes. The provisions dictate venue
decisions unless they contravene constitutional requirements. The list includes (a) 8
U.S.C. 1328 (importation of aliens for immoral purposes); (b) 8 U.S.C. 1329
(immigration offenses generally); (c)15 U.S.C. 80a-43 (investment company offenses);
(d) 15 U.S.C. 298 (falsely stamped gold or silver); (e) 18 U.S.C. 228(e) (failure to pay
legal child support obligations); (f) 18 U.S.C. 1073 (flight to avoid prosecution); (g) 18
U.S.C. 1074 (flight to avoid prosecution for property damage); (h) 18 U.S.C.
1512(i)(obstruction of justice); (i) 18 U.S.C. 1752(c)(secret service offenses); (j) 18
U.S.C. 1956(i) (money laundering); (k) 18 U.S.C. 2339(b) (harboring terrorists); and (l)
18 U.S.C. 2339A(a)(material support of terrorists).
Venue for Crimes Committed Outside Any District. The Constitution
recognizes that certain crimes, like piracy, may be committed beyond the geographical
confines of any federal judicial district. The application section now declares, “The trial
of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction
of any particular State or district, shall be in the district in which the offender, or any one

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of two or more joint offenders, is arrested or is first brought; but if such offender or
offenders are not so arrested or brought into any district, an indictment or information
may be filed in the district of the last known residence of the offender or of any one of
two or more joint offenders, or if no such residence is known the indictment or
information may be filed in the District of Columbia,” 18 U.S.C. 3238.
There is a second, alternative venue statute for certain espionage related cases, “The
trial for any offense involving a violation, begun or committed upon the high seas or
elsewhere out of the jurisdiction of any particular State or district, of – (1) section 793,
794, 798, [espionage] or section 1030(a)(1)[obtaining classified information by
unauthorized computer access] of this title; (2) section 601 of the National Security Act
of 1947 (50 U.S.C. 421)[disclosure of the identities of covert agents]; or (3) section 4(b)
or 4(c) of the Subversive Activities Control Act of 1950(50 U.S.C. 783(b) or (c))[receipt
of classified information by foreign agents]; may be in the District of Columbia or in any
other district authorized by law,”18 U.S.C. 3239.

Section 3238 permits the government to bring an extraterritorial espionage case in
the District of Columbia if the offender’s residence is unknown. If the offender’s last
address in this country is known, section 3238 requires that the case be brought there or
in the district in which the offender is first arrested or brought or any other district in
which venue is otherwise proper. But without more the option to bring an extraterritorial
espionage case in the District of Columbia is not necessarily available in all cases.
Section 3239 changes that. It affords the government the option to bring an exterritorial
espionage case in the District Columbia when it would otherwise be precluded from doing
so.
Section 3239’s limited history suggests proponents may have initially had something
else in mind. It was enacted as section 320909 of the Violent Crime Control and Law
Enforcement Act of 1994, 108 Stat. 2127 (1994). The committee reports accompanying
that legislation barely mention it; the conference report acknowledges that it comes from
the Senate bill but says no more; there are no Senate reports. The Senate Select
Committee on Intelligence, however, had reported out a bill with identical language, the
Counterintelligence and Security Enhancements Act of 1994 (S. 2056). The Committee’s
report indicates that the section was thought to provide a more explicit statement of
extraterritorial jurisdiction rather than an expansion of venue options. This may explain
why there are no reported cases under section 3239.
Venue Transfers.
For Prejudice. While the Constitution promises the accused a trial in the district
in which the offense was committed, it also promises him a trial by an impartial jury.
U.S.Const. Amend. VI. To fulfill this second promise, Rule 21(a) of the Federal Rules
of Criminal Procedure entitles the accused to a change of venue for trial in another district
when “so great a prejudice against the defendant exists in the transferring district that the
defendant cannot obtain a fair and impartial trial there.”
Pre-trial publicity usually supplies the basis for a change of venue request under Rule
21(a). The applicable standard is a demanding one. A transfer will ordinarily only be
granted when no less disruptive curative measures will suffice. To create so great a
prejudice that an impartial trial is not possible, media coverage must have been pervasive,
inflammatory, contemporaneous to trial, and produced a serious contamination of the jury

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pool. Requests for transfer under Rule 21(a) have been rejected when the coverage was
less than pervasive, when the coverage had subsided between the commission or
discovery of the crime or arrest of the accused and the time of trial, when the coverage
was not overwhelmingly inflammatory or sensational, or when evidence suggested that
an untainted jury might nevertheless be selected. In a compelling case, the court may
order trial to be elsewhere within the district under Rule 18, which allows the trial court
to set the place of trial, and in a rare case may grant a change of venue.
For Convenience. Under Rule 21(b) of the Federal Rules of Criminal Procedure,
“Upon the defendant's motion, the court may transfer the proceeding, or one or more
counts, against that defendant to another district for the convenience of the parties and
witnesses and in the interest of justice.” When weighing a motion for a transfer under
Rule 21(b), the lower federal courts frequently point the ten factors mentioned in Platt v.
Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-44 (1964):(1) location of
[the] defendant; (2) location of possible witnesses; (3) location of events likely to be in
issue; (4) location of documents and records likely to be involved; (5) disruption of
defendant’s business unless the case is transferred; (6) expense to the parties; (7) location
of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district
or division involved; and (10) any other special elements which might affect the transfer.
The motion runs to the discretion of the trial court, and the trial court’s decision will
only be overturned for an abuse of discretion such as a failure to apply the proper
standard. The defendant bears the burden of establishing that convenience and the
interests of justice compel a transfer. WRIGHT ON FEDERAL PRACTICE AND PROCEDURE
describes the rule as one designed for the convenience of the accused. Be that as it may,
a number of courts continue to observe a general rule that prosecution should be kept in
the district where the government filed it. Others appear to exercise their discretion to the
same effect. Still others speak in terms that seem at odds with the sentiments that led to
drafting of the venue provisions in Article III and the Sixth Amendment. The more
recently reported cases indicate that few defendants are able to carry their burden. Those
who do fall into two categories – (1) cases involve extraordinary facts, or (2) cases whose
results defy explanation since their facts seem indistinguishable from those in the cases
where the motion was denied.
For Plea and Sentencing. Defendants who wish to waive their right to trial may
petition the court in the district in which they have been charged for a change of venue,
for sentencing purposes, to the district in which they are being held or are present. By
definition, the rule requires the pendency of an indictment, information, or complaint in
the district from which the accused seeks a transfer of venue. Prosecutors in both districts
must concur. Should the defendant subsequently fail to plead as agreed or should the
receiving court refuse to accept the plea, the transfer is revoked. Juveniles who wish to
waived federal delinquency proceedings enjoy similar benefits.

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