Concept
Offenses Spanning Several Districts
Place of Prosecution and Trial
Offenses Spanning Several Districts
When every participant acts in one district and every act or omission takes effect there, Rule 18 gives an immediate answer, because that district is necessarily one where the offense was committed.1 The rule's wording leaves room for more than that. It directs that prosecution be had in a district where the offense was committed, and the indefinite article matters, because a single offense can be committed in several districts at once.2 That possibility arises often. Most federal crimes involve interstate or foreign commerce and so touch more than one state or district, and a federal offense may begin in one state and finish in another, or it may be a continuing offense, such as unauthorized use of the mails or transport of prohibited goods across state lines.3
Once conduct or consequences are spread across districts, the words of Rule 18 no longer pick out a place by themselves. A court has to look at the offense and ask where it can be said to occur, and the questions it asks follow a fixed order.
These questions come up for traditional offenses and for newly created statutory ones alike. A new statute has to be analyzed afresh unless Congress has written a venue provision into it, and analogies to older crimes can mislead, since the very purpose of the new offense may be to change the older offense in a way that matters for venue.5
A decided case shows the same difficulty on a statute that says nothing about venue. In United States v. Williams a defendant indicted in the Eastern District of Kentucky was arrested in Indianapolis, where a magistrate in the Southern District of Indiana released him on bond and ordered him to appear in the Eastern District of Kentucky. He did not appear, and he was charged in Kentucky with willful failure to appear under the bail-jumping statute, 18 U.S.C. § 3150.8 He argued that venue lay only in Indiana, where the order to appear was issued. The Sixth Circuit held that venue under that statute is proper both in the district that issued the order and in the district where the defendant was ordered to appear.9 The court reached that result by following the Second Circuit's decision in United States v. Reed, which reasoned that where the acts constituting the crime and the nature of the crime implicate more than one location, the Constitution does not command a single exclusive venue.10
The reason venue doctrine tolerates more than one district comes from the structure of the problem. A rule that forced a single district would either make some crimes hard to prosecute, because the offense occupies no single point, or leave the prosecutor to pick among arbitrary places and then defend the pick. The constitutional text asks for less than a single place. It requires trial in a district where the crime was committed and gives the accused no right to be tried at home.11 That freedom has a limit built into it: a second or third district qualifies only where the defendant's own conduct, or conduct attributable to the defendant, occurred or continued there. Congress also decides where venue lies under any given statute, so a venue provision written into the offense statute controls over the general inquiry.12 On an exam, the usual error is to assume the offense has only one proper district and to choose the defendant's home or the place of the last act.
The sections below take up three ways a multi-district offense can be tried in a given district: the continuing-offense statute, which is the clearest; mailings and conspiracies that bring another district's acts into the case; and the substantial-contacts approach, which some courts apply when the statute is silent and which is the most contested. The first begins with the statute that makes an offense triable wherever it was begun, continued, or completed.
Continuing Offenses
The statute that makes one offense triable in several districts is 18 U.S.C. § 3237(a). Unless Congress has expressly provided otherwise, “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be . . . prosecuted in any district in which such offense was begun, continued, or completed.”14 An offense that fits this description is called a continuing offense, meaning a crime that is not finished at a single moment and place but goes on, or moves, so that it is still being committed at each stage. The idea is an old one. In Armour Packing Co. v. United States the Supreme Court upheld the continuing-offense concept as a basis for venue, in a prosecution for shipping goods at rates below the published tariffs, because a violation of that kind is committed at every point along the journey, whether at the beginning, in the middle, or at the end.15 Since the offense is being committed in each of those places, trial in any of them satisfies the command that prosecution be had in a district where the offense was committed.16
The harder question is whether a particular crime is continuing, and the answer comes from the definition of the offense, since no list settles it. United States v. Cores shows a court working this out for a crime that looks, at first glance, complete in an instant. An alien crewman entered the United States at Philadelphia on April 27, 1955, holding a conditional landing permit good for 29 days. He stayed, spent about a year in New York, and then went to Bethel, Connecticut, where he was found. The Government filed an information in the District of Connecticut charging that he willfully remained in the United States, specifically in Bethel, in violation of § 252(c) of the Immigration and Nationality Act.17 He pleaded guilty, but before sentencing a government attorney told the court that he had not been in Connecticut when the permit expired. The district judge allowed the plea to be withdrawn and dismissed the case, relying on an earlier decision of the same court that § 252(c) did not define a continuing crime and reasoning that Connecticut was an improper district because the crewman was elsewhere on the day the permit ran out. The Supreme Court reversed.18
The Court began from the rule that venue turns on where the crime was committed and from the policy behind that rule. Trial near the place of the crime protects an accused from the unfairness and hardship of prosecution in a remote place, so a statute should be read to respect that protection when its language permits.19 The statute contained no venue provision of its own beyond a general reference to any place in the United States where the violation may occur. The Court therefore looked to the nature of the crime alleged and the location of the acts constituting it, and it observed that if Congress had created a continuing offense, the locality of the crime extends over the whole area through which the offender's conduct operates.20
The statutory words then decided the case. Section 252(c) punishes an alien crewman who willfully remains in the United States beyond the allowed days, so the prohibited conduct is the affirmative act of willfully remaining, and the word “remains” can carry no meaning other than continuing presence.21 The crewman argued that the offense was complete the instant the permit expired. The Court agreed that remaining at that instant satisfies the definition of the crime but held that it does not exhaust it, because it would be incongruous to say that an alien willfully remains on the twenty-ninth day yet no longer does so on the thirtieth while still physically present. The crime “achieves no finality” until the alien physically leaves the country.22 Section 3237(a) allows prosecution wherever an offense was continued, so venue lay in any district where the crewman willfully remained after the permit expired, and Connecticut was one of them.23
Two practical reasons support reading the statute this way, and they favor different parties. The first favors the Government. The Senate committee that studied the problem had found that the difficulties with seamen were created by those who remain beyond the time granted and become lost in the general populace, and the Court thought it unlikely that Congress would create a sanction for them and then cripple it by requiring trial where the crewman happened to be when the permit expired.25 The mechanism is easy to trace. Venue tied to one day would depend on proving where a person stood on that day, and that proof fades with time and is obscured by the person's own movement, so the crewman who hides most successfully would be the hardest to place.
The second reason favors the accused. Rule 21(b) allows a defendant to move for transfer to another district when the offense was committed in more than one district and the interest of justice supports the move, and that rule would be unavailable for an offense confined to a single district.26 A crewman forced to trial in the district where the permit expired could face real hardship far from home, and characterizing the crime as continuing gives the crewman a route to a more convenient forum. The transfer rules receive their own section below.
The same reasoning reaches ordinary false-statement prosecutions. In United States v. Coplan the Second Circuit considered a defendant, Vaughn, who made false statements to the IRS during a deposition in Nashville, and it held venue proper in the Southern District of New York, where IRS officials later reviewed and discussed the transcript.27 The court first identified what 18 U.S.C. § 1001(a)(2) punishes, which is the making of a materially false statement. The requirement that the matter be within federal jurisdiction and the mental-state requirement are circumstance elements that do not locate the crime.28 Materiality then did the work. A statement is material if it has a natural tendency to influence the decisionmaking body to which it is addressed, so proving materiality required evidence that the statements reached or affected the investigators in Manhattan, and the offense that began in Tennessee continued into New York.29 That result matched earlier Second Circuit decisions: in Candella, affidavits filed in a Brooklyn office were conveyed to a Manhattan office, and in Ramirez, false statements continued to be false and within federal jurisdiction when they reached Manhattan.30 The courts of appeals are not unanimous, since the Tenth Circuit has found venue only where the statement was made when the statement was unrecorded.31
The boundaries of the category matter as much as its reach. The Cores Court observed that § 252(c) is not tied to a particular locality such as the place of entry, because it reaches willful remaining anywhere in the United States.32 An illegal-entry offense is the opposite case. The crossing is complete at the place of entry, nothing about the offense persists afterward, and § 3237(a) therefore offers no basis for trial in a district the person reaches later. If Congress wants such an offense tried elsewhere, it has to supply a specific venue provision, a subject taken up later in this chapter. Cabrales draws the line from the other side. The Court acknowledged that money laundering arguably might rank as a continuing offense if the launderer acquired funds in one district and transported them into another, but the counts charged transactions that began, continued, and were completed only in Florida, so nothing carried venue into Missouri.33 The continuing-offense label also leaves the conduct inquiry in place, because courts applying § 3237(a) still identify the conduct constituting the offense and then locate it, and as the Third Circuit stressed in United States v. Auernheimer, only essential conduct elements, never circumstance elements, can supply venue.34
On an exam stem, the common error is to place the offense at its first moment: the district where the permit expired, the border where the person entered, or the place where a statement was first made. Asking only where the defendant started overlooks that a persisting offense is also committed wherever it continues. The opposite error is to treat every multi-district fact pattern as continuing, when the question is whether the charged conduct itself, and not merely a fact that existed beforehand, reached the chosen district.
Mailings and Conspiracies
The continuing-offense statute reaches districts along the path of the defendant's own conduct. Two further situations carry venue into a district the defendant never physically entered, and both rest on a single idea: an act performed in that other district counts, in law, as the defendant's own act, which is how the offense comes to be committed there as Rule 18 requires.37 United States v. Cabrales shows both by explaining why neither applied to the defendant before the Court. The Government defended trial in Missouri, where drug proceeds were generated, of a defendant who laundered those proceeds only in Florida, and it named In re Palliser and Hyde v. United States as its two best cases.38 The Court read each decision as resting on a link between the defendant and the other district, and it found that no such link existed for the defendant before it.39
The first situation is a mailing that moves into another district. In Palliser a man sent letters from New York to postmasters in Connecticut, trying to gain postage on credit, and the Court held that he could be prosecuted in Connecticut, where the mail he addressed and dispatched was received.40 Cabrales described that decision as recognizing that a mailing to Connecticut is properly ranked as an act completed in that state.41 The description follows from what a mailing is. The sender uses the postal system as an instrument, and the instrument carries the sender's act across the state line to the place where it reaches its target. Trial at the destination therefore does not pull the sender to a place unconnected with the conduct charged, because the conduct operated there. Section 3237(a) says so expressly for offenses involving the use of the mails, which may be prosecuted in “any district from, through, or into which such . . . mail matter . . . moves.”42
The constitutional ceiling is high, yet the words of the particular offense still come first. Cabrales cited United States v. Johnson for the point that, consistent with the Constitution, an illegal use of the mails “may subject the user to prosecution in the district where he sent the goods, or in the district of their arrival, or in any intervening district.”43 In Johnson itself, however, the Court read a statute forbidding use of the mails to send or bring dentures into a state so that the crime of the sender, a shipper who mailed dentures in Illinois, was complete when he used the mails in Chicago, while the crime of the unlicensed dentist who ordered them lay in the state where he received them, and the shipper could be tried only in Illinois.44 The two statements fit together once the ceiling is separated from the definition of the crime: the Constitution permits trial wherever a mailing operates, and a statute that punishes only the act of sending can place the offense at the point of sending. The first question therefore remains what conduct the particular statute punishes, the same step the continuing-offense analysis begins with.
Cabrales falls on the other side of the mailing line. The defendant dispatched no missive from one state into another, and the counts portrayed her and the money she deposited and withdrew as moving inside Florida only, so the mailing rationale had nothing to attach to in Missouri.45
The second situation is a conspiracy in which a partner acts in the district. In Hyde the defendants were convicted in the District of Columbia of conspiracy to defraud the United States, and although none of them had entered the District as part of the conspiracy, venue was appropriate there because of the overt acts of a co-conspirator.46 The reasoning parallels the mailing rule. A conspiracy is an agreement to pursue a shared criminal objective, and each member answers for what a partner does to advance it, so an act by one member in a district is, for venue purposes, the act of every member. The venue guarantee protects an accused from trial in a place with no connection to the charged conduct, and a conspirator who joined a venture that operated in a district has a connection to that district through the venture itself.
Conspiracy venue has two established routes. The district where the unlawful agreement was reached satisfies the default rule of Rule 18, a point traced to Hyde v. Shine, and venue also lies in any district where an overt act in furtherance of the conspiracy was committed, even when the conspiracy statute does not make an overt act an element of the offense.47 Whitfield v. United States stated both routes while addressing a venue provision for money-laundering conspiracies, and it observed that the provision's language, under which a prosecution “may be brought” in specified districts, appears permissive, so that it supplements the default rule of Rule 18 instead of replacing it.48 The Third Circuit applied the same overt-act rule when it said that venue for a conspiracy can be established wherever a co-conspirator has committed an act in furtherance of it.49
The act that counts must be something a conspirator did in the district. In Auernheimer the defendant and an associate were never in New Jersey while allegedly committing the offense, and the servers they accessed were elsewhere, yet the district court sustained venue there because the disclosure of about 4,500 New Jersey residents' email addresses affected those residents in New Jersey.50 The Third Circuit found venue lacking, because harm felt in a district is not a conspirator's act there, and only essential conduct elements, never circumstance elements, can supply venue.51 That decision does not cut against the co-conspirator rule. It marks where the rule stops, since the rule looks for something a conspirator did in the district and gives no weight to effects that landed there.
Cabrales supplies the contrasting pole. The counts against the defendant did not charge conspiracy, did not link her to acts done by others, and did not charge her as an aider or abettor of the Missouri drug trafficking; they charged criminal activity after the fact of an offense begun and completed by others.52 For such an actor the question is where to try the after-the-fact actor, and it was immaterial whether she knew where the first crime was committed, so the Missouri location of the drug activity was beside the point.53 The mechanism explains the result. If the place of the first crime fixed venue for every later act of assistance, the place of trial would turn on a fact the later actor did not control and need not even know, and the link between the defendant's own conduct and the trial court would disappear. The Government was not disarmed, however, because the defendant had also been charged with conspiring with the Missouri drug dealers, and if the Government could prove that agreement she could be prosecuted in Missouri for the conspiracy, with her Florida laundering shown as overt acts in furtherance of it.54 Venue therefore depends on how the case is charged as well as on what happened, because the same Florida transactions that supply no Missouri venue as laundering counts can supply it as overt acts of a proved conspiracy.
The recurring error on an exam stem is to let the location of someone else's crime, or of the harm, stand in for the defendant's own conduct. Students lose this issue when they treat where the proceeds came from as a place where the defendant acted. The existence of criminally generated proceeds is a circumstance element of money laundering, a fact that already existed when the defendant acted, and circumstance elements cannot supply venue.55 The better analysis asks what the defendant did, what a mailing carried into another district, and with whom the defendant agreed.
Substantial Contacts Test
The conduct-focused inquiry in the preceding sections works smoothly when a statute punishes something that can be placed on a map, such as a letter mailed, a transaction carried out, or an agreement reached. It works less smoothly when the statute says nothing about venue and the crime touches more than one place, because Rule 18's default command to prosecute in a district where the offense was committed then yields more than one candidate.58 The constitutional provisions that Rule 18 implements, Article III's call for trial in the state where the crime was committed and the Sixth Amendment's reference to the state and district of the crime, do not say which district prevails when an offense straddles two.59 Some circuits fill the gap with a substantial contacts test, which asks which districts have real connections to the offense. The test originated in the Second Circuit and was adopted by the Sixth, so it is a circuit-level supplement. The Supreme Court did not announce it in United States v. Cabrales, which rests on a different guide discussed at the end of this section.60
The Sixth Circuit adopted the test in United States v. Williams, a bail-jumping prosecution. A federal grand jury in the Eastern District of Kentucky had indicted the defendant on firearms charges, and after his arrest in Indianapolis a magistrate in the Southern District of Indiana released him on a $25,000 bond and ordered him to appear for arraignment in Kentucky. He did not appear, and the Kentucky grand jury then indicted him under what was then 18 U.S.C. § 3150 for willfully failing to appear.61 The defendant moved to dismiss for lack of venue on the theory that the proper district was Indiana, where the order issued, and after the motion was denied he pleaded guilty while reserving the venue question for appeal.62
The circuits had divided over where a failure to appear is committed. The Sixth and Eleventh Circuits had placed venue in the district that released the defendant, reasoning that a failure to appear is an affront to the power and dignity of the court that admitted the defendant to bail. The Eighth Circuit had placed venue in the district where the defendant was to appear, reasoning that the statute punishes a failure to act, so the offense is committed where the act was due.63 Each view captures a real feature of the offense, and every circuit to address the question had left open whether both districts could be proper.64 An omission has no single physical location of its own, because the duty arose from an order issued in one district and was to be performed in another, so choosing one district by label leaves out the connection of the other. Williams resolved the split by holding that venue under the statute lies in both districts.65
The route to that answer ran through United States v. Reed, a Second Circuit decision on statutes, such as bail jumping, that contain no venue provision.66 The trial-court opinion in that litigation records the kind of dispute the test was built for. The defendant was prosecuted in the Southern District of New York and argued that nothing tied the case to that district except the location of the stock exchange, because his option orders were placed from California and Virginia and his deposition was given in California.67 The government replied that the perjury occurred in a proceeding ancillary to a civil action pending in that district and that obstruction may be tried where the administration of justice was meant to be impeded.68
Reed began from the premise that when the acts constituting the crime and the nature of the crime implicate more than one location, the Constitution does not command a single exclusive venue, and it concluded that no single mechanical test determines constitutional venue.69 What it described instead is a substantial contacts rule that weighs four things: the site of the defendant's acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate fact-finding.70 Williams adopted that test together with Reed's rationale and framework of analysis.71 The reason for weighing several factors is structural. A rule that fixed one location would have to pick a single feature of the offense and ignore the rest, and for an offense defined by a duty owed to one court and performed in another, every feature is a real connection.
Applied to bail jumping, the factors explain why one offense can have two homes. The court's treatment of the first two factors confirmed, as the Sixth Circuit had held earlier, that venue lies in the district that released the defendant.72 The third factor, the locus of the effect, is where the second district enters the analysis. The primary effect of bail jumping falls on the administration of justice in the court that granted bail, an injury the Sixth Circuit had likened to a constructive contempt of court.73 Yet the effect in the district where the defendant was ordered to appear cannot be underestimated, because a missed appearance forces a delay in the trial and frustrates society's interest in bringing a suspected criminal to trial.74 The legislative history adds that defendants who hide long enough let the government's case weaken as witnesses become unavailable and memories fade, and those harms are felt most strongly in the district where the defendant was to appear.75
The fourth factor asks which district is suited to find the facts accurately. Reed's instruction is that the answer comes from scrutinizing the definition of the crime and the likely location of evidence of such crimes generally, and Williams added that potential defenses and the evidence supporting them belong in the inquiry.76 A defense that the defendant never received the order points toward the district that issued it, here Indiana, while the questions whether the order was obeyed and whether any failure was willful point toward the district where the appearance was due, here Kentucky.77 The failure-to-appear statute's affirmative defense of uncontrollable circumstances points the same direction, because a vehicle breakdown or a storm halting traffic on the way to court is most likely to arise in the district where performance was required.78 Since each district holds a different part of the proof, the court held that venue lies both in the district that released the defendant and in the district where he was ordered to appear, and it affirmed the Kentucky conviction.79
The place of this test in the larger scheme matters, because the Supreme Court's own guide is narrower. In Cabrales the Court determined the place of the crime from the nature of the crime alleged and where the acts constituting it occurred, and it applied that guide to money-laundering statutes that interdict only the financial transactions, all of which took place in Florida, so venue did not lie in Missouri where the funds were generated.80 Both approaches begin with the nature of the crime, but Cabrales reached its result by locating the defendant's own acts and did not adopt a contacts test or give weight to the place where effects land. Even in the Second Circuit the test has been used only on occasion as a supplement, and the court has alternately applied and ignored it since Reed, with one panel reading Reed as treating the locale of the defendant's acts as a sufficient basis for venue.81 That court has also said that venue is proper only where the essential conduct elements of the offense took place.82 A factor that counts effects sits uneasily beside a rule that looks to where the essential conduct occurred, so an answer resting on effects alone is the weakest part of the analysis.
On an exam, the mistake to avoid is presenting the contacts test as a Supreme Court rule for every multi-district offense. The accurate order of analysis starts with the statute, moves to the conduct-focused inquiry into where the acts constituting the offense occurred, and reaches contacts only as a supplement in the circuits that use it. When the stem describes a defendant released in one district and ordered to appear in another, the answer is that venue lies in both, with the releasing court's affront and the appearance court's delay as the reasons. When the stem adds a third district that is only where the defendant was later arrested, that district has no contact with the offense and should be rejected. When the offense statute carries its own venue provision, that provision controls under the exceptions to Rule 18's baseline taken up later in this chapter.