THE DEFENSE NEVER RESTS
Seventh Circuit standard for Venue is Beyond a Reasonable Doubt.
February 21st, 2011
The Seventh Circuit standard for Venue is Beyond a Reasonable Doubt.
Based on a single erroneous decision the law of venue in the Seventh Circuit
is misapplied across three states. An erroneous decisions is and has been
the catalyst for other cases to follow this misplaced decision. Without
question the Court at hand could have overruled prior decisions and set
forth the law as it now stands. However this has not been the lineage of
cases. Each case continues to cite back a single erroneous decision. Not
erroneous in its judgment or reasoning but erroneous nunc pro tunc,
erroneous in a scriveners error.
The standard of proof for the element of venue.
Three cases are at the heart of this controversy.: United States v. Canino,
949 F.2d 928 (7th Cir.1991); U.S. v. Andrus, 775 F.2d 825 (7th Cir. 1985)
and United States v. Mayo, 721 F.2d 1084 (7th Cir.1983.
At the outset Andrus is set forth verbatim in pertinent part:
“Defendants Andrus and Tom Whittington argue that venue was not proper in
the Central District of Illinois. Venue is an essential element of an
offense that the government must prove beyond a reasonable doubt. United
States v. Jones, 174 F.2d 746, 748 (7th Cir.1949). The defendants' theory is
that because proof of an overt act is unnecessary to this conspiracy
conviction, United States v. Umentum, 547 F.2d 987, 991 (7th Cir.1976),
cert. denied, 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977), venue
cannot be based upon the occurrence of overt acts within the district. “
- U.S. v. Andrus, 775 F.2d 825 (7th Cir. 1985)"
In this portion the defendants argument is set forth. The argument is about
the locus of the act and NOT the standard of proof. It is true, as boiler
plate, the standard is set forth. However none of the paragraph focuses or
even raises this controversy. Immediately after the standard the heart of
defendants argument is set forth which begins ‘the defendants theory’ and
then sets forth the very theory:
“an overt act is unnecessary to this conspiracy conviction...venue cannot be
based upon the occurrence of overt acts within the district”.
This is the whole of defendants theory in Andrus.
The whole of the argument is whether the overt act may be the source of
venue in his case. No where does it argue that the standard is or is not
beyond a reasonable doubt. It merely states the law much as many briefs and
Mayo is then addressed in the Andrus opinion. Mayo is cited NOT for the
relevant standard of proof but for a completely different argument:
This is the whole of the Andrus opinion which mentions Mayo:
“In United States v. Mayo, 721 F.2d 1084 (7th Cir.1983), this court rejected
the argument defendants press here. [The locus of the overt act making venue
proper] In that case, the court held that venue is proper in any district
where any overt act in furtherance of the conspiracy occurs. Id. at 1089-90.
Given the standard set forth in Mayo, there was sufficient evidence that
venue was proper in the Central District of Illinois. Collett met with Till
at the Holiday Inn in Champaign. Collett carried the kilogram of cocaine off
the plane in Champaign. Collett and Lutson made numerous stops in Kankakee
on trips to deliver or pick up cocaine. Clearly, the government presented
ample proof demonstrating that overt acts in furtherance of the conspiracy
occurred in the Central District of Illinois and, therefore, that venue was
In that paragraph the Court is discussing WHERE the overt act must occur and
NOT any standard. The last part of the paragraph starts ‘’Given the standard
set forth in Mayo...” There is NO standard given in Mayo.
The Mayo opinion does not even mention the word preponderance. The only
place it mentions ‘beyond’ as in the standard is ‘beyond a reasonable doubt’
is when discussing a quantum of proof at trial and whether the defendant was
proven guilty beyond a reasonable doubt. In the section entitled venue, the
word ‘beyond’ is not used at all.
Notwithstanding this computer driven argument, the whole opinion never
argues or mentions the standards. The whole of Mayo is the dispute as to
what act or agreement must occur and in what locus it occurs for venue to
lie. No where is it mentioned what standard is used.
Mayo is completely useless in determining the standard of proof required to
prove venue. It is a non issue and should be redacted from any case that
We are left with the Andrus case still stating that venue is to be proven
beyond a reasonable doubt. Canino is where things went wrong and have stayed
United States v. Canino, 949 F.2d 928 (7th Cir.1991)
The whole of the relevant text of Canino is set forth:
“F. Venue Instruction
The defendants claim that it was error for the court to issue a jury
instruction which only required the government to prove by a preponderance
of the evidence that venue existed in the Southern District of Illinois. The
defendants claim that the jury should have been instructed that the
government was required to prove venue beyond a reasonable doubt. The sole
authority cited by defendants in their brief for their contention is United
States v. Andrus, 775 F.2d 825 (7th Cir.1985), which states:
Defendants ... argue that venue is not proper in the Central District of
Illinois. Venue is an essential element of an offense that the government
must prove beyond a reasonable doubt.
Id. at 846.
The defense is ill-served by relying upon the above-quoted passage from
Andrus as being the law of this circuit. The quoted passage was merely a
portion of this court's paraphrase of the defendant's argument in the Andrus
case--it was not a holding. A little further along in that decision, in
response to the quoted characterization on the law of venue, this court
wrote: "In United States v. Mayo, 721 F.2d 1084 (7th Cir.1983), this court
rejected the argument defendants press here." The law of this circuit is
that venue is shown by a preponderance of the evidence, which may include
inferences drawn from circumstantial evidence. United States v. Marrinson,
832 F.2d 1465, 1475 (7th Cir.1987); United States v. Lewis, 797 F.2d 358,
366 (7th Cir.1986); United States v. Rodgers, 755 F.2d 533, 549 n. 19 (7th
Cir.), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985);
United States v. Martin, 732 F.2d 591, 593 (7th Cir.1984). The instruction
given by the district court requiring that venue be established by a
preponderance of the evidence was correct.”
Canino correctly quotes Andrus but incorrectly refers to the argument which
was rejected in Mayo. The Mayo court NEVER addresses the standard so the
only argument it could be rejecting is the dispute over the locus of the act
sufficient to make venue proper. The Mayo rejection is key to understanding
the Andrus opinion. Since Mayo never addressed the standard of proof it
could only be rejecting the defendants theory regarding the locus of the act
sufficient to be found.
VENUE IS AN INESTIMABLE RIGHT
“This great privilege....is prostrated by this paper. Juries from the
vicinage being not secured, this right is in reality sacrificed All is
gone...Why do we love this trial by jury? Because it prevents the hand of
oppression from cutting you off...Has not your mother country magnanimously
preserved this noble privilege upwards of a thousand years?...And shall
Americans give up that which nothing could induce the English people to
relinquish? the idea is abhorrent to my mind...” Patrick Henry
AND THE SIXTH AMENDMENT
“It may be laid down as a rule, that where the governing power possesses an
unlimited control over the venue, no mans life is in safety...The idea which
I call true vicinage is, that a man shall be tried by his neighbors,. But
the idea here is that he may be tried in any part of the state......The
conclusion ...is that they can hang any one they please, by having a jury to
suit their purposes”. Grayson -While speaking of Rome and its abandonment of
the jury trial by ones peers.
AND THE SIXTH AMENDMENT
These historical giants in propounding the Constitution of the United States
spoke in favor of the right to a jury drawn from the vicinage. Venue refers
to the locus of the trial, while vicinage refers to where the jury shall be
drawn from. In addressing the concerns that the vicinage would not be
included in the new Constitution, Marshall, speaking at the Virginia
Constitutional convention, assured that there was no intention of making
these infringements and even went further to say that these rights would be
more secure in the United States than in England. Id. (Emphasis added)
On, December 15 1768, the House of Lords condemned colonists for certain
acts and declared that such acts were daring insults offered to his
Majesty’s Authority...” A resolution was issued that such persons committing
such acts would be brought before the Crown in England from the colonies.
Venue of Criminal Cases, 43 Mich.L.Rev. 65 1944 citing 16 Hansard,
Parliamentary Debates to the Yar 1803, p 476-480 (1813). The English Lords
in arguing whether to issue such an edict, specifically brought up in the
“great debates” that trying individuals (colonists) in England from the
America’s would inflame the Colonists and could lead to war.
The English Lords in opposition to the passing of such an edict,
“..commented forcibly on the cruelty and injustice of dragging an individual
three thousand miles from his family, his friends, and his business, ‘from
assistance, countenance, comfort and counsel necessary to support a man
under such trying circumstances,’ in order that, with the Atlantic between
him and his own witnesses, he might be put to peril of his life before a
panel of twelve Englishmen in no true sense of the word his peers. Of those
jurymen the accused colonist would not possess the personal knowledge which
alone could enable him to avail himself of his right to challenge...”
RIGHT TO A JURY TRIAL BY A JURY OF THE VICINAGE,
57 U.PA.L.Rev. 4, Jan 1909.
Upon hearing word of this, the colonists responded in the Virginia Resolves
of May 16, 1769, specifically addressing the issue of being tried in their
own locale that “send such person or persons, to places beyond the sea, to
be tried, is highly derogatory of the rights of British subjects; as thereby
the inestimable privilege of being tried by a jury from the vicinage, as
well as the liberty of summoning and producing witnesses on such trial will
be taken away from the party accused”. (Emphasis added) Journals of the
House of Burgesses, 1766-1769, Kennedy ed 214 (1906). This resolve was
adopted by the other American Colonies. This fervor than grew into the 1774
Continental Congress which declared “That the respective Colonies are
entitled to the common law of England, and more especially to the great and
inestimable privilege of being tried by their peers of the vicinage...”
Documents of American History, 2d Commager ed., 83-84 (1940). Ultimately the
right of trial by jury of the vicinage was one of the “sacred rights” which
the colonists went to war with England over.
RIGHT TO A TRIAL BY A JURY OF THE VICINAGE.
57 U.Pa.L.Rev. 4 (Jan 1909) p 197, 199.
As the framers sought the provision was included in the Constitution in two
places-Article III, Section II and the Sixth Amendment. It appears that our
“modern” laws of the United States recognizes what we fought for decades ago
in the only war fought on our soil outside of the Civil War. Justice
Frankfurter explains in U.S. v. Johnson, 323 U.S. 273, 275 (1944), that the
framers were "[a]ware of the unfairness and hardship to which trial in an
environment alien to the accused exposes him . . . ." The second provision,
providing the" State and district" from which the jury is to be drawn,
serves as a reinforcement to the first "[a]s though to underscore the
importance of this safeguard." Id.
Article III is a venue provision because it fixes the place of trial. United
States v. Passodelis, 615 F.2d 975, 977 (3d Cir. 1980). The Sixth Amendment
is a vicinage guarantee because it determines from where the jurors in a
criminal trial shall be selected. Id.
This distinction, however, has never been given any weight, perhaps because
it is unlikely that jurors from one district would be asked to serve at a
trial in another district, or perhaps, more importantly, because the
requirement . . . presupposes that the jury will sit where it is chosen."
United States v. Passodelis, 615 F.2d 975, 977 n.3 (3d Cir. 1980).
In 1944, Congress embedded the constitutional guarantee of venue in the
Federal Rules of Criminal Procedure. Rule 18 states that "[e]xcept as
otherwise permitted by statute or by these rules, the prosecution shall be
had in a district in which the offense was committed. . . .", later that
same year, the United States Supreme Court, in the landmark case United
States v. Johnson, 323 U.S. 273 (1944), underscored the importance of
safeguarding the constitutional guarantee of proper venue in criminal
trials. U.S. v. Perez, 280 F.3d 318 (3d Cir. 2002).
Venue is a matter that is at the heart of the fair administration of
criminal justice. U.S. v. Perez, 280 F.3d 318 (3d Cir. 2002). It imports
confidence in the legal system to the people at large. Id. Venue is an
important issue in consideration of the effective enforcement of the
criminal law Id.
“. . . . Questions of venue in criminal cases, therefore, are not merely
matters of formal legal procedure. They raise deep issues of public policy
in the light of which legislation must be construed”. U.S. v. Perez, 280
F.3d 318 (3d Cir. 2002). citing Johnson, 323 U.S. at 276.
Venue raises deep issues of public policy. U.S. v. Cores, 356 U.S. 405 at
407 (1957). The principals espoused at the creation of our country are
reiterated some two hundred years later - The provision for trial in the
vicinity of the crime is a safeguard against the unfairness and hardship
involved when an accused is prosecuted in a remote place. U.S. v. Cores, 356
U.S. 405 at 407 (1957).
“It is a maxim universally admitted, that the safety of the subject consists
in having a right to trial as free and impartial as the lot of humanity will
admit of. Does the Constitution make provision for such a trial? I think
not; for in a criminal process, a person shall have a right to insist on a
trial in the vicinity where the the fact was committed, where a jury of the
peers would, , from their local situation, have an opportunity to form a
judgment of the character of the person charged with the crime, and also to
judge of the credibility of the witnesses. There a person must be tried by a
jury of strangers; a jury who may be interested in his conviction; and he
may, by reason of the distance of his residence from the place of trial, be
incapable of making such defense as he is, in justice, entitled to, and
which he could avail himself of, if his trial was in the same county where
the crime is said to have been committed...” Holmes. - COLONIAL EXPERIENCES
AND THE SIXTH AMENDMENT p24-26. (1944)
This right of venue is only second to the right of jury trial (and arguably
one and the same) in its physical appearance in the Constitution and its
figurative appearance in our jurisprudence and theory of justice in a free
society. The law is rife with cases, state and federal, stating that proper
venue is a safeguard that is guaranteed by our Constitution.
Having said this and traced a brief history of venue through our system of
laws it is quite the anomaly its current position in our legal system. It is
indisputable that the right to venue is guaranteed. Given that venue is
guaranteed or ensured to every citizen how is that the federal rule is that
venue must only be proven by a preponderance of the evidence rather than
beyond a reasonable doubt?
See, e.g., United States v. Barsanti, 943 F.2d 428 (4th Cir.), cert. denied,
503 U.S. 936 (1991); United States v. Gonzalez, 922 F.2d 1044, 1054-55 (2d
Cir.), cert. denied, 502 U.S. 1014 (1991); United States v.Taylor, 828 F.2d
630 (10th Cir. 1987); Winship, 724 F.2d at 1124; United States v. Males, 715
F.2d 568 (11th Cir. 1983); Massa, 686 F.2d at 531; United States v. Davis,
666 F.2d 195 (5th Cir. 1982); United States v. Haley , 500 F.2d 302, 305
(8th Cir. 1974); United States v. Powell, 498 F.2d 890 (9th Cir.), cert.
denied, 419 U.S. 866 (1974); 2 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure S 307 (3d ed. 2000).
Preponderance of evidence is defined as a level of proof in which the trier
of fact finds that a fact is more likely than not to have occurred. Barrons
Law 3d Ed. 366-367. The preponderance standard is often referred to as
winning by 51%. It seems elemental that in order to guarantee a right to a
citizen, a standard greater than more likely than not or 51% would be
required. Especially in light of the fact that the element of venue
transcends any and every other element of any crime known, from the pettiest
of offenses to the most grotesque and heinous crimes, in that this
particular element is contained twice in the United States Constitution, the
founders debated heatedly over its inclusion, with their being ultimately no
disagreement over its inclusion, and the country went to war over an attempt
to thwart its guarantee.
Standard to be applied is not a settled rule of law.
In fourteen states there is a conflict between federal and state law as
these fourteen states use beyond a reasonable doubt as their standard for
proof of venue.
States requiring proof beyond a reasonable doubt in proving venue: Alaska,
Alabama, Colorado, Georgia, Illinois, Iowa, Kansas, Louisiana, Maryland,
Kentucky, Michigan, Minnesota, Mississippi, Montana, Nebraska, Ohio, Oregon,
S. Dakota, Virginia, Washington, Wisconsin. 67 ALR 3d 988, 997.
States allowing for proof by a preponderance of evidence in proving venue:
Arizona, Arkansas, California, Florida, Indiana, Iowa, Louisiana, Maine,
Missouri, Montana, Nevada, New Mexico, New York, North Carolina, Oklahoma,
Rhode Island, South Dakota, Tennessee, Texas Utah, West Virginia, Washington
Wisconsin.67 ALR 3d 988, 1000.
Six of those states are split within their own state as to the proper
standard. Oddly enough both states which the Seventh Circuit governs, and
which the entirety of the matter sub judice occurred, Wisconsin and
Illinois, require proof beyond a reasonable doubt in establishing venue. Id.
Federal Courts have employed the beyond a reasonable doubt standard. As
recently as 1973 the Tenth Circuit held on to beyond a reasonable doubt as
their standard of proof. In United States v. Brewer, 486 f.2d 507, 509 (10th
Cir. 1973).the court, simply stated that the prosecutions burden was proof
of venue beyond a reasonable doubt. Fourteen years later, in 1987, the Tenth
Circuit reversed itself and set forth that the standard was a preponderance
of evidence with no analysis or reasoning other than to cite other cases
following this rule and the 3rd Circuits refusal to address the issue
altogether. U.S. v. Taylor, 828 F.2d 630, 633 (10th Cir. 1987).
The Seventh Circuit employs a standard of beyond a reasonable doubt in
proving venue. This Court in U.S. v. Andrus, 775 F.2d 825 (7th Cir. 1985)
stated that venue is an essential element of the offense which must be
proven beyond a reasonable doubt. In U.S. v. Canino, 949 f.2d 928, 942 (7th
Cir.) the Court asserted that in Andrus the assertion that the standard is
beyond reasonable doubt was a defense argument not agreed with by the Court.
The language of Andrus indicates that the rule is as stated. The Andrus
court set forth the rule regarding proof beyond a reasonable doubt then,
after the standard, sets forth the defence argument that there was no proof
of an agreement sufficient, under the law of conspiracy, to sustain a
finding of venue. The Court in Andrus then rejects the argument regarding
conspiracy and the lack of a need of an overt act using U.S. v. Mayo, 721
F.2d 1084 (7th Cir. 1983) to support that rejection. Mayo does not stand for
the proposition that venue is established by a preponderance but stands, in
the Andrus case, for the rejection of the argument regarding conspiracy and
the need of an overt act in that case to prove venue.
In fact, the Mayo case does not even mention the standards
applicable-preponderance or beyond a reasonable doubt. Andrus is a case
intact and still not overruled. Moreover, - according to Shephards the case
is not overruled and the federal digests cite this case as standing for the
proposition that venue must be proven beyond a reasonable doubt. 29B F.P.D
4th 616. According to stare decisis it is good law and controlling.
Apprendi mandates that venue be proven beyond a reasonable doubt
Though venue and its own historical and Constitutional significance
militates for a standard greater than a preponderance of evidence, the
United States Supreme Court has recently stated anew the same principles
which lead to this inescapable conclusion.
To guard against a spirit of oppression and tyranny on the part of rulers,
and as the great bulwark of our civil and political liberties, ...trial by
jury ...requires that the truth of every accusation,... should be confirmed
by the unanimous suffrage of twelve of [the defendant's]... neighbours .....
Equally well founded is the companion right to have the jury verdict based
on proof beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466,
The right to a jury trial is paramount. In so saying, the right to a jury
trial of the vicinage is paramount.
Beyond a reasonable doubt is now accepted in common law jurisdictions as the
measure of persuasion by which the prosecution must convince the trier of
fact of all the essential elements of guilt.' Apprendi citing C. McCormick,
Evidence @ 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence @ 2497
(3d ed. 1940)." Winship, 397 U.S. at 361. Apprendi v. New Jersey, 530 U.S.
Specifically, Apprendi stands for the proposition that any fact which
increases the sentence beyond the statutory limit must be submitted to a
jury and proven beyond a reasonable doubt. Those are the facts and issue
which arose in Apprendi. Generally, and in order to get to that specific
holding, the Court necessarily had to come to the conclusion that every
element must be proven beyond a reasonable doubt.
Venue is an element of every offense. See, e.g., United States v. Miller,
111 F.3d 747 (10th Cir. 1997); United States v. Winship, 724 F.2d 1116, 1124
(5th Cir. 1984); United States v. White, 611 F.2d 531, 536 (5th Cir.), cert.
denied, 446 U.S. 992 (1980).The Constitution gives a criminal defendant the
right to have a jury determine, beyond a reasonable doubt, his guilt of
every element of the crime with which he is charged." United States v.
Gaudin, 515 U.S. 506, 522-23 (1995).The Model penal code requires that the
government prove each element beyond a reasonable doubt. Element includes
facts which establish jurisdiction or venue. ALI Model Penal code, § 1.12,
1.13(9) (1962). Venue is an element of every offense in the Seventh Circuit
as well. U.S. v. Andrus, 775 F.2d 825 (7th Cir. 1985).
Returning to Apprendi and the likely argument that it only involves an
increase of sentence beyond the statutory maximum - a finding that venue
does not lie will effect the defendant’s sentence significantly. He will be
found not guilty and he will have no sentence at all. The issue of every
element being proven beyond a reasonable doubt is a fundamental precept to
the issue of whether “a factor” can increase ones sentence. If venue is not
proven the defendant is found not guilty.
The Supreme Court in Apprendi necessarily must come to the conclusion that
every element must be proven beyond a reasonable doubt to get to the issue
of sentencing factors. So even if the holding in Apprendi goes too far, it
does just that, it goes too far in proving the fundamental nature that every
element must be proven beyond a reasonable doubt.
Ultimately Andrus controls. While there are strong policy, ethical,
historical and legal reasons to do so stare decisis mandates that the proper
opinion on the matter? Send an email --->Email