Smith v. United States: Double Jeopardy does not bar retrial of case tried in wrong venue or district

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

Double Jeopardy does not bar retrial of a case tried in the wrong venue or district, the U.S. Supreme Court held June 15 in Smith v. United States.

Timothy Smith was a resident of Mobile, Alabama. He used a computer application to surreptitiously obtain data from a Florida company’s computer.

Smith was charged in the Northern District of Florida with theft of trade secrets.

Smith argued trial there violated the constitution’s Venue and Vicinage Clauses because he had accessed the data from Alabama, and the servers on which the data was located were in Orlando, which was in the Middle District of Florida.

The Venue Clause, contained in Article III, Sec. 2, provides that trial of all crimes shall be held in the state where the crimes have been committed.

The Sixth Amendment Vicinage Clause guarantees the right to an impartial jury “of the State and district wherein the crime shall have been committed.”

The District Court rejected Smith’s contentions.

After conviction at trial in Florida, Smith appealed to the 11th Circuit. It held venue was improper in Florida, but that Double Jeopardy did not bar retrial in Alabama.

Holding

The Supreme Court affirmed, in a unanimous opinion.

The Court began by noting the general rule that defendants who obtain reversal of their convictions can be retried, without violating Double Jeopardy.

This is because when a conviction results from “trial error,” the defendant has an interest in retrial of guilt, but “society maintains a valid concern for insuring that the guilty are punished,” the Court said.

“Therefore, the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply award of a retrial, not a judgment barring reprosecution”, the Court said. The one exception is violation of the Speedy Trial Clause, which is “different” than “any other criminal right in the Constitution”, the Court said.

But the text and history of the Venue and Vicinage Clauses provide no basis for departing from the general rule allowing retrial, the Court said.

“Nothing about the language” in the Venue Clause “suggests that a new trial in the proper venue is not an adequate remedy for its violation”, the Court said.

And although the Vicinage Clause concerns jury composition and narrows the district where the crime occurred, “nothing about these differences dictates a remedy that is broader than the one awarded when the Venue Clause is violated”, the Court said.

“We have repeatedly acknowledged that retrials are the appropriate remedy for violations of other jury-trial rights”, the Court noted.

“Most analogous of the case before us, we have recognized that retrial is the appropriate remedy when a defendant is tried by a jury that does not reflect a fair cross-section of the community”, the Court said. “There is no reason to conclude that trial before a jury drawn from the wrong geographic area demands a different remedy”.

Moreover, common law at the time of the adoption of the constitution allowed retrial after a trial in an improper venue or before an improper jury, the Court said.

“We have found … no decision barring retrial based on a successful venue or vicinage objection in either the centuries of common law predating the founding or in the early years of practice following ratification”, the Court said. “This absence alone is considerable evidence that the Clauses do not bar retrial”.