Venue
6.00
VENUE
Updated
May 2001
6.01 GENERALLY
6.01[1] Constitutional and Statutory Provisions
6.01[2] Policy Considerations
6.02 PROOF OF VENUE
6.02[1] Government's Burden
6.02[2] Waiver of Improper Venue
6.03 VENUE IN TAX PROSECUTIONS
6.03[1] 26 U.S.C. § 7201: Tax Evasion
6.03[2] 26 U.S.C. § 7203: Failure to File
6.03[3] 26 U.S.C. § 7206(1): File False Tax Return
6.03[4] 26 U.S.C. § 7206(2): Aid in Preparation of False Return
6.04 REMOVAL TO DISTRICT OF RESIDENCE
6.04[1] Section 3237(b)
6.04[2] Rule 21(b)
6.01 GENERALLY
6.01[1] Constitutional and Statutory Provisions
The Constitution and the federal laws of the
United States
grant a
defendant in a criminal case the right to be tried in the judicial district
in which the offenses occurred. United States v. Maldonado-Rivera,
922 F.2d 934, 968 (2d Cir. 1990); United States v. Bryan, 896 F.2d
68, 72 (5th Cir. 1990); United States v. Griley, 814 F.2d 967, 973
(4th Cir. 1987); United States v. Felak, 831 F.2d 794, 798 (8th Cir.
1987).
Two provisions in the U.S. Constitution address this guarantee.
Article
III
, section 2 of the U.S. Constitution states: "The Trial of all
Crimes . . . shall be held in the State where the said Crimes shall have
been committed." U.S. Const. art.
III
, § 2. The Sixth Amendment
amplifies this guarantee and provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed.
U.S. Const. amend. VI.
Rule 18 of the Federal Rules of Criminal Procedure also provides for this
guarantee:
Except as otherwise permitted by statute or by these rules, the
prosecution shall be had in a district in which the offense was committed.
Thus, the general rule is that a defendant in a criminal trial has the
right to be tried in the district where the offense took place. The
"'locus delicti must be determined from the nature of the crime
alleged and the location of the act or acts constituting it.'" United
States v. Cabrales, 524 U.S. 1, 6-7 (1998) (quoting United States v.
Anderson, 328 U.S. 699, 703 (1946)). To make this determination, "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." United States v. Rodriguez-Moreno, 526 U.S. 275, 279
(1999) (citations omitted). While not the only consideration, courts will
look at the "key verbs" in the statute defining the criminal offense to
identify the conduct constituting the offense. United States v.
Brennan, 183 F.3d 139, 145 (2d Cir. 1999).
An "exception" exists, however, for "continuing offenses" which are
begun in one district and completed in another. United States v.
Slutsky, 487 F.2d 832, 839 (2d Cir. 1973). In these circumstances, the
continuing offenses statute, 18 U.S.C. §3237(a), applies. This statute
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 the offense was begun,
continued, or completed.
18 U.S.C. § 3237(a) (1988). Thus, under this statute, the government
has the option of prosecuting an offense in any district in which criminal
activity took place. United States v. Marchant, 774 F.2d 888, 891
(8th Cir. 1985).
Although defendants have the right to be tried in the district where
the offense took place, they do not have a right to trial in a particular
division within that district. In re Chesson, 897 F.2d 156, 158 (5th
Cir. 1990). Rather, the courts apply a balancing test which weighs the
convenience of the defendant and witnesses with the prompt administration of
justice. 897 F.2d at 159.
6.01[2] Policy Considerations
Prosecutors should be aware that it is the policy of the Department of
Justice generally to attempt to establish venue for a criminal tax prosecution
in the judicial district of the taxpayer's residence or principal place of
business because prosecution in that judicial district usually has the most
significant deterrent effect.
6.02 PROOF OF VENUE
6.02[1] Government's Burden
The government has the burden of proving venue as to each count
charged against the defendant. United States v. Maldonado-Rivera,
922 F.2d 934, 968 (2d Cir. 1990). Venue, however, is not an essential
element of the government's case because failure to establish this element
does not impact on the guilt or innocence of the defendant. United States
v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1988); United States v.
Griley, 814 F.2d 967, 973 (4th Cir. 1987); United States v. Netz,
758 F.2d 1308, 1311 (7th Cir. 1987).
As a result, unlike other elements of a crime which must be
established beyond a reasonable doubt, venue need only be proved by a
preponderance of the evidence. Maldonado-Rivera, 922 F.2d at 968;
United States v. Delgado, 914 F.2d 1062, 1064 (8th Cir. 1990); ;
United States v. Bryan, 896 F.2d 68, 72 (5th Cir. 1990); United
States v. Marrinson, 832 F.2d 1465, 1475 (7th Cir. 1987);
Griley, 814 F.2d at 973. Moreover, venue may be established either
by direct or circumstantial evidence. Griley, 814 F.2d at 973;
Marrinson, 832 F.2d at 1475; Netz, 758 F.2d at 1311.
6.02[2] Waiver of Improper Venue
The issue of improper venue may be waived if not timely raised by the
defense. United States v. Netz, 758 F.2d 1308, 1311 (8th Cir. 1985).
Generally, where venue is improper on the face of an indictment, venue
objections are waived if not made prior to trial. United States v. Black
Cloud, 590 F.2d 270, 272 (8th Cir. 1979). However, where the indictment
contains a proper allegation of venue so that a defendant has no notice of a
defect until the government rests its case, an objection is timely if made
at the close of evidence. Id.
6.03 VENUE IN TAX PROSECUTIONS
6.03[1] 26 U.S.C. § 7201: Tax Evasion
The courts have recognized that the crime of willfully attempting to
evade or defeat a tax liability is a "continuing offense" within the meaning
of 18 U.S.C. § 3237(a). United States v. Felak, 831 F.2d 794,
799 (8th Cir. 1987); United States v. Marchant, 774 F.2d 888, 891
(8th Cir. 1985); United States v. Slutsky, 487 F.2d 832, 839 (2d
Cir. 1973).. As such, venue is proper in a section 7201 prosecution in any
district where an act in furtherance of the crime was committed. This would
include districts where the return was prepared, signed, mailed or filed.
Felak, 831 F.2d at 799; Marchant, 774 F.2d at 891;
Slutsky, 487 F.2d at 839. In cases where a return was not filed, it
would include districts where the affirmative acts of evasion took place.
Felak, 831 F.2d at 799; Marchant, 774 F.2d at 891;
Slutsky, 487 F.2d at 839.
Notwithstanding the above rule, prosecutors should be aware of 18
U.S.C. § 3237(b), which provides that a defendant charged under section
7201 has the right to remove the case to the district where the defendant
resided at the time the offense was committed if venue is based solely on a
mailing to the
IRS
. 18 U.S.C. § 3237(b) (1988). See Section
6.04[1], infra. For a more detailed discussion of venue in section
7201 cases, see Section 8.07, infra.
6.03[2]
26 U.S.C. § 7203: Failure to File
Failure to file a tax return is a crime of omission. The place of
venue for crimes of omission is any district where the duty could have been
performed. United States v. Clines, 958 F.2d 578, 583 (4th Cir.
1992); United States v. Garman, 748 F.2d 218, 219 (4th Cir. 1984).
Section 6091 of Title 26 sets forth the places for filing individual
income tax returns. Generally, a return must be filed either: (1) "in the
internal revenue district in which is located the legal residence . . . of
the person making the return; or (2) "at a service center serving the
internal revenue district referred to [above]." 26 U.S.C. §
6091(b)(1)(A) (1988). Thus, venue in a section 7203 prosecution is proper
in either the district of residence or the district where the service center
is located. Clines, 958 F.2d at 583; Garman, 748 F.2d at 219.
Notwithstanding the above rule, prosecutors should be aware of 18
U.S.C. § 3237(b), which provides that a defendant charged under section
7203 has the right to remove the case to the district where the defendant
resided at the time the offense was committed. 18 U.S.C. § 3237(b)
(1988). See Section 6.04[1], infra. For a more detailed
discussion of venue in section 7203 cases, see Section 10.04[7],
infra.
6.03[3] 26 U.S.C. § 7206(1): File False Tax Return
The courts have recognized that the crime of willfully making or
subscribing a false tax return is a "continuing offense" within the meaning
of 18 U.S.C. § 3237(a). United States v. Slutsky, 487 F.2d 832,
839 (2d Cir. 1973). As such, venue is proper in a section 7206(1)
prosecution in any district where the false return was prepared and signed,
even if filed and received elsewhere. United States v. Rooney, 866
F.2d 28, 31 (2d Cir. 1989); United States v. Marrinson, 832 F.2d
1465, 1475 (7th Cir. 1987); Slutsky, 487 F.2d at 839. Venue is also
proper where the return was filed. Rooney, 866 F.2d at 31;
Slutsky, 487 F.2d at 839.
Similarly, venue is proper in the district where the return preparer
received information from the taxpayer, even though the taxpayer may have
signed and filed the return in other districts. Rooney, 866 F.2d at
31.
Notwithstanding the above rules, prosecutors should be aware of 18
U.S.C. § 3237(b), which provides that a defendant charged under section
7206(1) has the right to remove the case to the district where the defendant
resided at the time the offense was committed where venue is based solely on
a mailing to the
IRS
. 18 U.S.C. § 3237(b) (1988). See Section
6.04[1], infra. For a more detailed discussion of venue in section
7206(1) cases, see Section 12.11, infra.
6.03[4] 26 U.S.C. § 7206(2): Aid in Preparation of False Return
The courts have recognized that the crime of willfully aiding and
assisting in the preparation of a false tax return is a "continuing offense"
within the meaning of 18 U.S.C. § 3237(a). United States v.
Hirschfeld, 964 F.2d 318, 321 (4th Cir. 1992); United States v.
Bryan, 896 F.2d 68, 72 (5th Cir. 1990). As such, venue is proper in a
section 7206(2) prosecution in any district where the false return was
prepared and signed, even though filed in another district.
Hirschfeld, 964 F.2d at 321; Bryan, 896 F.2d at 72.
Similarly, venue is proper in the district where the false return was filed.
In addition, venue is proper in any district where the acts of aiding and
assisting took place. Hirschfeld, 964 F.2d at 321; Bryan, 896
F.2d at 72.
Notwithstanding the above rules, prosecutors should be aware of 18
U.S.C. § 3237(b), which provides that a defendant charged under section
7206(2) has the right to remove the case to the district where the defendant
resided at the time the offense was committed where venue is based solely on
a mailing to the
IRS
. 18 U.S.C. § 3237(b) (1988). See Section
6.04[1], infra. For a more detailed discussion of venue in section
7206(2) cases, see Section 13.08, infra.
6.04 REMOVAL TO DISTRICT OF RESIDENCE
6.04[1] Section 3237(b)
Section 3237(a) of Title 18 is the federal "continuing offenses"
statute and allows the government certain discretion in establishing venue.
Under section 3237(b), however, certain income tax violations are not
subject to this discretion. Rather, the defendant is given the option to
transfer venue to the district where he or she resided at the time the
offense was committed. Section 3237(b) provides:
Notwithstanding subsection (a), where an offense is described in
section 7203 of the Internal Revenue Code, or where venue for
prosecution of an offense described in section 7201 or 7206(1), (2),
or (5) . . . is based solely on a mailing to the Internal Revenue
Service, and prosecution is begun in a judicial district other than
the judicial district in which the defendant resides, he may upon
motion filed in the district in which the prosecution is begun, elect
to be tried in the district in which he was residing at the time the
alleged offense was committed: Provided, That the motion is
filed within twenty days after arraignment of the defendant upon
indictment or information.
18 U.S.C. § 3237(b) (1988). Thus, under section 3237(b), prosecutions
under 26 U.S.C. §§ 7201, 7203, 7206(1), (2) or (5) may be subject
to removal by the defendant, provided a motion is made within twenty days of
arraignment.
Application of subsection (b) requires that the venue for offenses
under Section 7201 or 7206(1), (2) or (5) be based solely on a mailing to
the Internal Revenue Service. United States v. Melvan, 676 F. Supp.
997, 1001-02 (C.D. Cal. 1987). This means the defendant has the right to
transfer venue unless the government can establish contact within the
designated district by means other than a mailing. United States v.
Humphreys, 982 F.2d 254, 260 (8th Cir. 1992).
Subsection (b)'s mailing requirement does not apply to failure to file
prosecutions under section 7203. In these cases, the defendant has the
absolute right to transfer venue if the designated district was not the
defendant's place of residence at the time the crime was committed.
United States v. U.S. District Court, 693 F.2d 68, 70 (9th Cir.
1982).
Prosecutors should be aware that when section 3237(b) provides a basis
for transferring fewer than all counts, a court may consider it to be in the
interests of justice to transfer all counts concerning that defendant to the
district of residence. United States v. DeMarco, 394 F.Supp. 611,
618 (D.D.C. 1975). A district court is not required, however, to transfer
charges concerning that defendant which are not covered by section 3237(b).
United States v. United States District Court for the Southern District
of California, 693 F.2d 68 (9th Cir. 1982). Similarly, a court might
use a defendant's section 3237(b) motion to transfer fewer than all counts
as justification to grant a defendant's Rule 21(b) motion on the remaining
charges.
6.04[2] Rule 21(b)
Rule 21(b) of the Federal Rules of Criminal Procedure provides an
alternate basis for transfer of venue by the defendant. United States v.
Benjamin, 623 F. Supp. 1204, 1211 (D.D.C. 1985). The rule provides:
For the convenience of parties and witnesses, and in the interests of
justice, the court upon motion of the defendant may transfer the
proceeding as to that defendant or any one or more of the counts
thereof to another district.
Fed. R. Crim. P. 21(b).
The Supreme Court in Platt v. Minnesota Mining & Mfg. Co., 376
U.S. 240 (1964), analyzed the factors relevant to a Rule 21(b) transfer
decision. These factors included: (1) location of the defendants; (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; (6) expense to the parties; (7) location
of counsel; (8) accessibility of the place of trial; (9) docket condition of
each district; and (10) special considerations unique to the case. 376 U.S.
at 243-44.
In exercising the discretion afforded the government to place venue in
a particular district, prosecutors should be cognizant of the factors
enumerated above and the possibility of transfer under Rule 21(b).
