[This article was originally posted in the Los Angeles Daily Journal.]
The fundamental rules of venue are not that difficult. The government must prosecute an offense in a district where the crime was committed. See U.S. Const. art. III, § 2, cl. 3; U.S. Const., Amend. VI; Fed. R. Crim. P. 18. Generally, venue requirements for criminal cases are set by statute. See 18 U.S.C. §§ 3234 - 3244. If a crime takes place in multiple venues, the prosecutor usually has discretion as to where to charge the crime.
Despite these basic rules, interesting venue issues arise all the time. In the past year, there have been several cases addressing venue challenges in federal court. For example, in United States v. Gonzalez, 2012 U.S. App. LEXIS 13149 (9th Cir. 2012), the Ninth Circuit once again ruled on a challenge to venue in a conspiracy case. Circuit Judge Richard C. Tallman began his opinion by noting that "[d]etermining where an offense occurred can be quite tricky - particularly for continuing crimes, like conspiracy, where the conspirators' activities often have a ripple-like effect that may involve numerous districts." Id. at *1.
In Gonzalez, defendant was charged with conspiring to sell drugs. During the alleged conspiracy, Gonzalez never set foot in the district where the crime was charged. Rather, venue was based upon two telephone calls to Gonzalez's cell number that a confidential informant ("CI") made at the direction of the Drug Enforcement Administration ("DEA"). Nothing in the stipulated facts indicated whether Gonzalez knew or suspected that the CI was calling from another district at the time of the calls. However, the Ninth Circuit panel held that it did not matter. Because the calls were used to negotiate the sale and delivery of drugs, venue was proper in the district from which the calls were made.