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The 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 issue:

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 opinions do.

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 proper.”

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 mentions it.

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 wrong.

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.


“This great 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

“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 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.

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...”

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.

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, (2000).

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. 466, (2000).

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 standard apply.





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