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Wednesday, July 19th, 2023

For computer offenses of “causing damage” to a computer, Second Circuit allows venue in the location of any computer that was prevented from accessing files that were unlawfully deleted from the remote server of a software vendor.

In United States v. Calonge, No. 21-3089 (2d Cir. July 14, 2023) (Parker, Lynch, Lohier), the Circuit affirmed convictions under the Computer Fraud and Abuse Act (“CFAA”) in the Southern District of New York for transmitting a program code or command and intentionally “caus[ing] damage” to a computer and accessing a computer without authorization and recklessly “caus[ing] damage,” in violation of 18 U.S.C. §§1030(a)(5)(A) and (B).  The defendant’s conduct of deleting files from a software vendor used by her employer was committed in Florida. Venue in New York had been based on the loss of access to those files by the computers at the New York headquarters of her employer.  Calonge argued that no New York computer was “damaged” and that venue could only lie in Florida, where the conduct was committed, or in Virginia or California, where the deleted data resided on the vendor’s servers. The …

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Friday, June 23rd, 2023

Supreme Court holds that a defendant tried in an improper venue may be retried if the conviction is overturned on that ground.

In Smith v. United States, decided June 15, 2023, the Supreme Court ruled that if a defendant is successful in showing that their trial was held in an improper venue, the government is nonetheless permitted to retry them in the proper venue.

The Court reasoned that nothing in the language or history of either the venue clause of Art. I, section 2, clause 3 or the vicinage clause of the Sixth Amendment bars a retrial.  The Court further ruled that double jeopardy is not implicated because reversal on venue grounds is unrelated to factual guilt or innocence and does not resolve the “bottom-line question of criminal culpability.”

The decision unanimously affirmed the Eleventh Circuit in an opinion by Justice Alito.…

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Categories: double jeopardy, Sixth Amendment, venue

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Categories: double jeopardy, Sixth Amendment, venue

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Tuesday, April 20th, 2021

Second Circuit upholds conviction for insider trading. United States v.  Chow, No. 19-0325, __F.3d__, 2021 WL 1256649 (2d Cir. Apr. 6, 2021) (C.J.J. Kearse, Carney, Bianco).

Benjamin Chow was a high ranking corporate officer at a couple of Chinese State-owned firms that, in 2016, tried to acquire Lattice Semiconductor Corporation, a manufacturer of a type of semi-conductor used in smart-phones. Op. 4, 5. Mr. Chow was alleged to have tipped off someone he knew, named Michael Yin, about the progress of the negotiations to acquire Lattice. Op. at 4-9 . During a 4-month period from July to November 2016, Yin traded on Lattice stock, purportedly based on this information, and made $5 million. Id. at 15.

A jury convicted Benjamin Chow of one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; one count of securities fraud, in violation of 18 U.S.C. §§ 1348 and 2; and six counts of insider trading, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. §§ 240.10b-5 and 10b5-2, and 18 U.S.C. § …

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Categories: insider trading, jury instructions, sufficiency, venue

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Friday, March 16th, 2018

SDNY: Venue for the World (St. Croix edition)

The Second Circuit held yesterday that venue in the SDNY was proper for defendants charged with a narcotics conspiracy that operated in the U.S. Virgin Islands and Florida. The only meaningful link to the SDNY was that, after arrest, a co-conspirator was transported to Manhattan and, at the behest of government agents, called some of his co-conspirators to inform them that he was “in New York.” See United States v. Tank Yuk et al., No. 15-131 (2d Cir. 2018) (Chin, Carney, Forrest (SDNY)) (appeal from Nathan, J., SDNY). Judge Chin wrote a short dissent that shows not only the peculiarity of this holding, but also how it expands the government’s power to charge defendants in any district they choose. The opinion—which also rejects Brady, sufficiency-of-the-evidence, Napue, and Guidelines claims—is available here.

The defendants in Tang Yuk were charged with a conspiracy involving the shipment of …

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Categories: conspiracy, venue

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Thursday, August 31st, 2017

Judge Caproni Dismisses § 922(g) Charge for Lack of Venue

Yesterday, Southern District Judge Valerie Caproni dismissed an indictment for lack of venue. The indictment charged a defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Judge Caproni’s opinion, however, is valuable beyond the § 922(g) context as a concise primer on a difficult-to-parse set of venue cases.

The opinion and order are available here.

Section 922(g) makes it unlawful for a person convicted of a felony  to “possess in or affecting commerce, any firearm or ammunition.” In this case, United States v. DeJesus, Port Authority police stopped the defendant at the New Jersey entrance to the George Washington Bridge and found a handgun while searching his car. The government conceded that Mr. DeJesus did not possess a firearm in New York, but contended that venue was proper in the Southern District because “he was about to use an instrumentality …

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Categories: 922(g), interstate commerce, venue

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Monday, August 27th, 2012

A Bronx Tale

United States v. Davis, No. 10-3424-cr (2d Cir. August 8, 2012) (Leval, Raggi, Chin, CJJ)

Appellant Davis attempted to rob a drug dealer in Elmont, Queens. Once inside the dealer’s house, he shot and killed the dealer’s girlfriend, and shot at (but missed) the dealer’s mother. He was tried, convicted and sentenced on this – along with other offenses not challenged on appeal – in the Southern District

On appeal, he argued that there was no Southern District venue for the Elmont attempted robbery and associated weapons offenses. The circuit affirmed.

The opinion begins with a long and interesting discussion of venue, culminating with the circuit’s rule that for venue to lie there must be more than “some activity in the situs district” – there must be “substantial contacts.” Whether these exist depends on “the site of the defendant’s acts, the elements and nature of the crime, the locus …

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Thursday, June 16th, 2011

Coffee, Tea or Venue?

United States v. Tzolov, No. 10-562-cr (2d Cir. June 15, 2011) (Feinberg, Parker, Wesley, CJJ)

Eric Butler, the appellant here, was one of the conspirators in a securities fraud scheme arising from the failure of the auction rate securities market. The scheme operated largely out of an office in Manhattan, but Butler was prosecuted in the Eastern District, where he was convicted of securities fraud and conspiracy to commit securities and wire fraud. The scheme’s ties to EDNY were, to put it mildly, scant – on occasion the defendants would fly out of JFK to meet with investors in other cities and try to scam them. But, apart from that, everything happened elsewhere.

On appeal, the circuit agreed that venue was improper in EDNY for the substantive securities fraud count, but affirmed as to the conspiracy counts. In light of the dismissal of one count, the court also remanded the …

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Sunday, September 5th, 2010

Southern Discomfort

United States v. Barrie, No. 09-3035-cr (2d Cir. August 31, 2010) (Katzmann, Hall, Chin, CJJ)

Alalim Barrie was convicted of bank fraud and aggravated identity theft in connection with a scheme in which he and his confederates obtained money from banks using counterfeit checks and stolen credit card accounts. Southern District venue was clearly proper with respect to the bank fraud, since Barrie transferred stolen money into banks located in the Bronx. But he argued that there was no Southern District venue for the associated identity theft, since all of the actions that constituted aggravated identity theft occurred outside the district.

While the circuit agreed with Barrie’s view of the facts, it nevertheless affirmed. In a prosecution under 18 U.S.C. § 1028A, venue is proper in “any district where the predicate felony offense was committed, even if the means of identification of another person was not transferred, possessed, or used …

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Categories: right to be present; aggravated identity theft, Uncategorized, venue

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Sunday, November 18th, 2007

Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin – although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of …

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Categories: manufactured venue, Miranda, MLAT, Sixth Amendment, Uncategorized, venue

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