United States v. Strain

United States Court of Appeals
Fifth Circuit
F I L E D
April 14, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-50029
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THERESA LUCRETIA STRAIN,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Midland
USDC No. MO-03-CR-83-ALL
_________________________________________________________________
ON PETITION FOR REHEARING
(Opinion 1/10/05, 5 Cir., United States v. Strain, 396 F.3d 689)
Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:
The government has filed a petition for rehearing. The
petition does not challenge this court’s substantive holding –-
i.e., that the prosecution failed to prove that venue was proper in
the Western District of Texas. Instead, the government contends
that we erred in remanding for a judgment of acquittal, and that
the proper remedy would have been dismissal of Strain’s conviction
without prejudice. As explained below, the contention is
meritless.

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The government does not contend that acquittal was improper
under this circuit’s own case law; it plainly is not. This court
has never squarely addressed the question whether, or under what
circumstances, acquittal may be an appropriate remedy for failure
to prove venue. We have, however, consistently held that an
objection to venue is preserved by a Rule 29 motion for acquittal.
See, e.g., United States v. Carreon-Palacio, 267 F.3d 381, 393 (5th
Cir. 2001).
Instead, the government contends that “a judgment of acquittal
does not appear to be in accordance with other circuits”. This is
incorrect. In United States v. Greene, the Eighth Circuit remanded
for a judgment of acquittal where, as here, the government failed
to prove venue and the defendant preserved his venue objection via
a motion for acquittal. 995 F.2d 793, 802 (8th Cir. 1993).
Moreover, where, as here, the government tries a case to a jury
verdict but fails to prove venue by a preponderance of the
evidence, federal district courts routinely grant Rule 29 motions
for acquittal. See, e.g., United States v. Mikell, 163 F. Supp. 2d
720, 743 (E.D. Mich. 2001).
The government nonetheless asserts that “several other
circuits have concluded that the proper remedy for improper venue
is vacation of the conviction and dismissal of the indictment”.
This argument is a significant overstatement; none of the circuits

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* See United States v. Salinas, 373 F.3d 161, 162 (1st Cir.
2004)(dismissing a grand jury indictment without prejudice, where
the defendant pled guilty, but preserved objection pursuant to FED.
R. CRIM. P. 11(a)(2)); United States v. Stewart, 256 F.3d 231, 235
(4th Cir. 2001) (vacating conviction and sentence due to improper
venue); United States v. Liang, 224 F.3d 1057, 1062 (9th Cir. 2000)
(dismissing an indictment for lack of venue); United States v.
Brennan, 183 F.3d 139, 151 (2d Cir. 1999) (dismissing mail fraud
indictment against corporate defendant without prejudice for lack
of venue).
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has held that dismissal is the sole appropriate remedy for lack of
venue, or that remand for acquittal is inappropriate per se.
In support of its argument, the government cites five cases
from various circuits. Four are simply instances in which an
appeals court has decided to order some remedy other than
acquittal.* As such, they are largely irrelevant to the narrow
question raised by the petition –- i.e., whether acquittal may be
the proper result where the government tries a case to jury verdict
but fails to prove venue by a preponderance.
In the one remaining case, United States v. Ruelas-Arreguin,
the Ninth Circuit notes (in dicta within a footnote) that, where
venue is improperly laid, the district court should transfer the
case or dismiss without prejudice, rather than granting acquittal.
219 F.3d 1056, 1060 n.1 (9th Cir. 2000). Although this position
arguably is in conflict with our decision in Strain, Ruelas-
Arreguin is not particularly persuasive precedent –- the dicta in
question has never been cited with approval by the Ninth Circuit or
any other court.

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Finally, the government contends that, because venue need be
proven only by a preponderance of the evidence, “a resolution of
venue in [the defendant’s] favor should not produce an acquittal”.
The government fails to offer any explanation as to why we should
adopt this ipse dixit as law. Although not an element in the
traditional statutory sense, venue is nonetheless a
constitutionally-imposed element of every crime. See, e.g., United
States v. Winship, 724 F.2d 1116, 1124 (5th Cir. 1984). In this
case, venue turned on a question of the sufficiency of evidence and
was put before a jury. The fact that the jury reached a verdict
not supported by evidence -- and subsequently reversed by this
court -- does not entitle the government to a second chance at
prosecution.
In sum, this court’s decision in Strain is well within the
mainstream of federal jurisprudence on venue. The petition for
rehearing is
DENIED. 1

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