Exceptions to the General Rule

Exceptions to the General Rule

Rule 18 begins with a qualification that is easy to read past: the government must prosecute an offense in a district where it was committed, but only "unless a statute or these rules permit otherwise."¹ That opening clause marks the committed-where command as a baseline that can be displaced. The reason for building it this way is practical. A single uniform rule would fit some offenses badly, because a few crimes have no obvious location and some defendants have good reason to be tried somewhere else, so the drafters kept the default and allowed targeted departures. Two sources can authorize a departure, and each has its own sub-section below.

The first source is Congress. A venue provision written into the substantive offense can name the place of trial outright, or it can deem the offense committed wherever the defendant did a specified thing, and that specific provision then controls over the general inquiry into where the offense was committed. The general statute for offenses begun in one district and finished in another, 18 U.S.C. § 3237, taught in the preceding section, is the broadest example of this kind of departure, and the next sub-section turns to provisions aimed at particular offenses. The second source is the procedural rules, which supply mechanisms for moving a pending case to another district. Those mechanisms are ordinarily set in motion by the defendant, and that feature matters for reasons developed below.

Both departures serve the policy the baseline serves, and neither is a way around it. The guarantee of trial where the crime was committed exists for the accused, and a protection built for one party is naturally one that party can choose to relax. That is why transfer follows the defendant's motion: the person who holds the protection decides whether trial elsewhere is worth giving it up. It also explains why the prosecution cannot use transfer to change the place of trial at will. A prosecutor has an obvious incentive to prefer a forum with a friendlier jury pool or a more convenient courthouse, and the baseline would restrain very little if the restrained party could waive it. A venue statute differs in kind, because Congress fixes it in advance for a whole category of offenses rather than for one prosecutor's convenience in one case, and it usually ties the place of trial to something the defendant actually did.

The sequence of analysis follows from the opening clause. Begin with the offense statute and ask whether it supplies its own venue provision, and if it does not, return to the committed-where inquiry. The common error is to treat any convenience to the government as enough to move a case, when only a statute or a rule can displace the baseline, and the rules do so on the defendant's motion rather than on the prosecutor's preference.

Specific Venue Statutes

Rule 18's opening clause lets a statute displace the baseline, and the most direct way Congress uses that permission is to write a venue provision into the offense statute itself.³ The reason is practical. As the court observed in Reed Enterprises v. Clark, most federal crimes involve interstate or foreign commerce and touch several districts, so Congress must decide where venue lies under any given statute, and silence on its part would only lead to chaos.⁴ A provision in the offense statute settles the place of trial before any prosecution begins, which spares both sides a fight over where the crime happened. Because the statute is the very source Rule 18 says can permit otherwise, the specific provision controls, and the court applies its terms in place of the general committed-where inquiry.

Congress has drafted these provisions in several forms. The stolen-goods statute, 18 U.S.C. § 659, provides in the relevant part that the offense is deemed to have been committed in any district in which the defendant may have taken or been in possession of the goods.⁵ The Court in United States v. Cores cited that provision as an example of Congress making its intent plain for a continuing illegal status like possession.⁶ Venue under § 659 therefore lies in each district where the defendant took or possessed the goods, and no one needs to argue about where the crime truly occurred, because the text has already answered that question. The Elkins Act, which prohibits transporting goods in interstate commerce at rates other than those in regulated tariffs, takes a route-based form: it permits prosecution in any district in which the violation was committed or through which the transportation may have been conducted.⁷ The footnote in Cores that collects statutes with specific venue provisions lists others, including flight to avoid prosecution or giving testimony and murder or manslaughter, which shows how common the technique is.⁸

A statute can mention venue and still leave the real question open. The immigration provision at issue in Cores, which punishes an alien crewman who willfully remains beyond the days allowed by a conditional landing permit, carried only general language placing venue “at any place in the United States at which the violation may occur,” and the Court observed that it contained no specific provision fixing venue of the kind other statutes contain.⁹ Because that language does not say where a continued act of remaining takes place, the Court fell back on the general guide, under which the locality of the crime is determined from the nature of the crime alleged and the location of the act or acts constituting it.¹⁰ Applying the guide, the Court treated willful remaining as continuing, so venue lies in any district where the crewman remains after the permit expires.¹¹ The Court also explained why a different immigration offense needed more: illegal entry is tied to a particular locality, so a specific venue provision was required before entry cases could be prosecuted where the defendant was apprehended, whereas a provision for the continuing offense of remaining would add nothing.¹² That contrast shows when Congress most needs to speak. An offense with a single obvious location gains a second venue only if a statute adds one, while an offense that continues already carries venue along with it.

The money-laundering prosecution in United States v. Cabrales shows the fallback applied against the government. The counts rested on 18 U.S.C. §§ 1956(a)(1)(B)(ii) and 1957, which interdict only the financial transactions, and those transactions took place entirely in Florida, so the Court adhered to the nature-of-the-crime-and-location-of-the-acts guide and affirmed that venue did not lie in Missouri, where the funds were generated.¹³ The counts charged no conspiracy and no aiding and abetting of the Missouri drug trafficking, which left the Missouri conduct outside the acts the statutes punish.¹⁴ What separates Cabrales from the stolen-goods statute is a single fact. The stolen-goods provision says where the offense is deemed committed, while the statutes in Cabrales said nothing about venue, so the Court had only the acts to look at. Congress did add a venue provision to the money-laundering statute, § 1956(i), in 2001, and it speaks to attempts and conspiracies by allowing a prosecution in the district where venue would lie for the completed offense or in any other district where an act in furtherance took place.¹⁵

Some venue statutes exist because the baseline has nothing to point to. An offense begun or committed outside the jurisdiction of any state or district has no district where it was committed, so 18 U.S.C. § 3238 supplies a place of trial: the district in which the offender, or any one of two or more joint offenders, is arrested.¹⁶ In United States v. Slatten the D.C. Circuit read the statute's two contested phrases. “Arrested” means where the defendant is first restrained of liberty in connection with the offense charged, and restraint includes submission to an assertion of authority, so an offender who flew from California to the District of Columbia under a plea agreement and was seized there by the FBI was arrested in the District even though never handcuffed or confined.¹⁷ “Joint offender” is not confined to conspiracies, because a joint offense is a crime committed by the participation of two or more persons.¹⁸ The government had arranged that travel so that the case would be heard in the District of Columbia, and the court held the arrest test easily satisfied there.¹⁹

A venue provision does not always remove the baseline. In Whitfield v. United States the Court considered § 1956(i) and noted that, because the provision says a conspiracy prosecution may be brought in the specified districts, its language appears permissive rather than exclusive, which suggests it supplements the default rule instead of replacing it.²⁰ The Court did not definitively construe the provision, but the point has a practical consequence: a district that satisfies Rule 18 on its own terms, such as the district where a conspiracy's unlawful agreement was reached, remains available alongside the districts the statute adds.²¹ Congress's freedom to draft also has a ceiling. The Constitution twice safeguards the defendant's venue right, in Article III's command that trial be held in the State where the crimes were committed and in the Sixth Amendment's guarantee of an impartial jury of the State and district wherein the crime was committed, and Rule 18 echoes those commands.²² A venue statute therefore operates inside that frame, and Cores instructs that venue legislation be read with the policy of avoiding the unfairness and hardship of prosecution in a remote place in view.²³ A provision such as § 659 respects that policy by tying the place of trial to something the defendant did, taking or possessing the goods, which is the same kind of connection the baseline relies on.

On an exam, the first move is to find out whether the offense statute speaks to venue at all. The frequent error is to read a clause saying a prosecution “may be brought” in certain districts as the only permitted place, when permissive wording adds districts and leaves Rule 18's baseline in place, and the opposite error is to treat a statute's silence as permission to try the case wherever the proceeds or background conduct arose.²⁴ When the stem includes a deemed-committed clause, apply its text. When it includes nothing, ask where the acts the statute punishes took place.

Transfer Under the Rules

Specific venue statutes fix the place of trial in advance, while the procedural rules act later, on a prosecution already pending, by allowing it to be moved to another district. Rule 18's opening clause makes room for them by yielding to anything the rules permit.²⁷ This is a short orientation, because the detailed practice of transfer is taught elsewhere in the course. The feature to hold onto here is that transfer runs on the defendant's motion, and the reason for that design lies in who owns the right being relaxed.

The footnotes in Jones v. Gasch collect the earlier versions of the transfer rules, and they are best read as history rather than as the current text.²⁸ In those versions Rule 19 governed transfers within a district and was rescinded effective July 1, 1966, Rule 20 allowed a case to move between districts for plea and sentence, and Rule 21 governed transfer from a district or division for trial.²⁹ Rule 21 as then written had two grounds, each beginning with the defendant's motion. The first was prejudice in the pending district so great that the defendant could not obtain a fair and impartial trial there, and the second was an offense committed in more than one district, where the interest of justice favored another district in which its commission was charged.³⁰ The second ground connects directly to the multi-district offenses taught earlier in this chapter.

The advisory committee's note to the original Rule 21 explains why the defendant alone holds the motion. The rule provided for a change of venue only on the defendant's motion and gave the prosecution no matching right, because the defendant holds the constitutional right to be tried in the district where the offense was committed, and by moving for a change the defendant waives that right.³¹ Two links in that reasoning deserve to be written out. A protection that exists for one party can be relaxed only by that party, since the person it shields is the one who can judge whether trial elsewhere is worth giving it up. The other party has the opposite incentive: the Supreme Court has warned that leeway in choosing the place of trial brings hardship to the accused and the appearance of abuses in selecting a tribunal favorable to the prosecution, so letting the prosecutor waive the right would leave it restraining very little.³² The note also records a problem and a response, because the original rule was an addition to existing law that filled a gap: federal practice had not allowed a defendant to move for a change of venue even where local feeling threatened a fair trial.³³

United States v. Cores ties the transfer rule to offenses spread over several districts. Having held that an alien crewman who willfully remains after a landing permit expires commits a continuing offense that may be prosecuted in any district where the crewman remains, the Court observed that the holding gives the accused a protection: Rule 21(b) permits transfer on the defendant's motion where the offense was committed in more than one district and the court is satisfied that the interest of justice requires moving the proceeding to another district in which the offense is charged.³⁴ The Court added that the rule, with its inherent flexibility, would be inapplicable if the offense were not continuing.³⁵ Broad venue and the transfer valve therefore operate as a pair. A continuing offense multiplies the districts where the government may file, which raises the risk that the accused will face trial far from home, and the transfer rule gives the person who bears that burden a way to ask for relief. Cores itself did not involve a transfer motion; the Court cited the rule as a tool of justice that characterizing the offense as continuing makes available to the defendant.

The procedural history of Johnston v. United States shows that an order transferring a case does not settle where venue lies. One of the registrants prosecuted there was indicted in Kansas, and the Kansas district court ordered the case transferred to Oklahoma under Rule 21(b); the Oklahoma court sent it back because it believed venue lay in Kansas, and the Kansas court then dismissed the indictment on the ground that venue lay in Oklahoma.³⁶ The Supreme Court had to determine the proper venue itself.³⁷ A transfer under the rules moves a case between districts in which the offense is charged, so it assumes that the venue analysis taught earlier in this chapter has been done correctly and cannot replace it.

The interest of justice standard is discretionary, and Platt v. Minnesota Mining & Mfg. Co. shows what the trial judge looks at. In that criminal prosecution, pending in the Eastern District of Illinois, the trial judge refused to transfer the case to the District of Minnesota, where the corporate defendant had its main office, after weighing the location of the defendant, the likely witnesses, the events at issue, and the documents and records; the disruption of the defendant's business and the expense to the parties; the location of counsel; the accessibility of the place of trial; the docket condition of each district; and any other special elements.³⁸ The parties agreed that the first nine of these factors were appropriate, and the Supreme Court assumed their validity without deciding the point.³⁹ The factors are practical because transfer exists to respond to circumstances that a fixed place-of-trial rule cannot anticipate, such as where the proof and the people are.

The Court also set the limits of appellate review. It held that the court of appeals erred by reviewing the transfer motion de novo and ordering transfer itself, because the reviewing court's function was to determine the appropriate criteria and leave their application to the trial judge, and an extraordinary writ cannot be used to control the trial court's decision.⁴⁰ The discretion sits with the trial judge because the weight a factor deserves is a matter peculiarly within that judge's knowledge of the case. The Court further rejected the idea that criminal defendants have a constitutionally based right to trial in their home districts, since Article III and the Sixth Amendment point to where the crime was committed. It added that the defendant's main office or home in the proposed district has no independent significance in the interest of justice inquiry, although it may matter through factors such as the convenience of records, personnel, and counsel.⁴¹

Civil transfer statutes rest on different premises, and importing them is a common error on criminal questions. Section 1406(a) applies when a civil case is filed laying venue in the wrong district, and it directs the court to dismiss or, if the interest of justice requires, to transfer the case to a district where it could have been brought.⁴² Whether venue is wrong is settled by the civil venue statute, 28 U.S.C. § 1391, so a case filed in a district that satisfies that statute is not laid in the wrong district for purposes of § 1406(a).⁴³ Section 1404(a) operates on the premise that the plaintiff properly exercised a venue privilege, and it addresses the problem of a forum that is proper but inconvenient.⁴⁴ Criminal transfer follows its own logic, since it depends on the defendant's motion and on a constitutional venue right the defendant may waive, so the first question on an exam stem is who is asking for the move.