Getting Off Scot Free for a Technical Error?

Paul Larkin and Cully Stimson have this article in the Federalist Society Review previewing the case of Smith v. United States, No. 21-1576, set for argument in the Supreme Court Tuesday, March 28.

Smith was tried in the wrong district, so the Eleventh Circuit reversed his conviction and granted him a new trial in the correct district. He claims that’s not enough; he should get off completely. Larkin and Stimson explain why that is not the law.

When this case first came up, I thought the claim to be so obviously wrong that there was no chance the Court would buy it. I still think so. The rule has long been established that if the government fails to introduce enough evidence at the first trial to prove the elements of the offense, the defendant is entitled to an acquittal, not a new trial. The Fifth and Eighth Circuits have held that venue is an element of the offense, according to the certiorari petition, but the Sixth, Ninth, Tenth, and Eleventh Circuits have held to the contrary. The Solicitor General said petitioner had overstated the extent of the split, but the Court’s grant of certiorari moots that dispute.

The present case does not involve a heinous crime, but if the principle the defendant wants is established, it would apply to all federal crimes, even treason.

I think the venue-as-element argument is head-shakingly wrong. Should be a fun argument to listen to.