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Full Opinion
PRELIMINARY PRINT
Volume 599 U. S. Part 1
Pages 236–254
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 15, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
236 OCTOBER TERM, 2022
Syllabus
SMITH v. UNITED STATES
certiorari to the united states court of appeals for
the eleventh circuit
No. 21–1576. Argued March 28, 2023—Decided June 15, 2023
Timothy Smith was indicted in the Northern District of Florida for theft
of trade secrets from a website owned by StrikeLines. Before trial,
Smith moved to dismiss the indictment for lack of venue, citing the Con-
stitution's Venue Clause, Art. III, § 2, cl. 3, and its Vicinage Clause,
Amdt. 6. Smith argued that trial in the Northern District of Florida
was improper because he had accessed StrikeLines' website from his
home in Mobile (in the Southern District of Alabama) and the servers
storing StrikeLines' data were located in Orlando (in the Middle Dis-
trict of Florida). The District Court concluded that factual disputes
related to venue should be resolved by the jury and denied Smith's mo-
tion to dismiss without prejudice. The jury found Smith guilty, and
Smith moved for a judgment of acquittal based on improper venue. See
Fed. Rule Crim. Proc. 29. The District Court denied the motion, rea-
Page Proof Pending Publication
soning that the effects of Smith's crime were felt at StrikeLines' head-
quarters, located in the Northern District of Florida. On appeal, the
Eleventh Circuit determined that venue was improper, but disagreed
with Smith that a trial in an improper venue barred reprosecution. The
Eleventh Circuit therefore vacated Smith's conviction for theft of
trade secrets.
Held: The Constitution permits the retrial of a defendant following a trial
in an improper venue conducted before a jury drawn from the wrong
district. Pp. 241–254.
(a) Except as prohibited by the Double Jeopardy Clause, it “has long
been the rule that when a defendant obtains a reversal of a prior, unsat-
isfed conviction, he may be retried in the normal course of events.”
United States v. Ewell, 383 U. S. 116, 121. In all circumstances outside
of the Speedy Trial Clause, the strongest appropriate remedy for trial
error is a new trial, not a judgment barring reprosecution. Pp. 241–252.
(1) Text and precedent provide no basis for concluding that viola-
tions of the Venue and Vicinage Clauses are exceptions to the retrial
rule. The Venue Clause mandates that the “Trial of all Crimes . . .
shall be held in the State where the . . . Crimes shall have been com-
mitted.” Art. III, § 2, cl. 3. Nothing about this language suggests that
a new trial in the proper venue is not an adequate remedy for its viola-
tion. Smith primarily argues that the Venue Clause aims to prevent
Cite as: 599 U. S. 236 (2023) 237
Syllabus
the infiction of additional harm on a defendant who has already under-
gone the hardship of an initial trial in a distant and improper place.
But the mere burden of a second trial has never justifed an exemption
from the retrial rule. See Ewell, 383 U. S., at 121. Indeed, while the
most convenient trial venue for a defendant would presumably be where
he lives, the Venue Clause is keyed to the location of the alleged crimes.
The Clause does not allow “variation . . . for convenience of the . . .
accused,” Johnston v. United States, 351 U. S. 215, 221, and this Court
has repeatedly rejected objections based on the hardships created when
a defendant is prosecuted far from home.
The Vicinage Clause—which guarantees “the right to . . . an impartial
jury of the State and district wherein the crime shall have been com-
mitted,” Amdt. 6—similarly provides no support for Smith's argument
that retrial is barred here. The Vicinage Clause differs from the Venue
Clause in two ways: it concerns jury composition, not the place where a
trial may be held, and it concerns the district where the crime was
committed, rather than the State. Nothing about these differences dic-
tates a remedy that is broader than the one awarded when the Venue
Clause is violated. The vicinage right is only one aspect of the jury-
trial rights protected by the Sixth Amendment, and the Court has re-
Page Proof Pending Publication
peatedly acknowledged that retrials are the appropriate remedy for vio-
lations of other jury-trial rights. Most analogous to this case, the Court
has held that retrial is the appropriate remedy when a defendant is tried
by a jury that does not refect a fair cross-section of the community.
See Glasser v. United States, 315 U. S. 60, 85–87. There is no reason
to conclude that trial before a jury drawn from the wrong geographic
area demands a different remedy. Pp. 242–245.
(2) The historical background of the Venue and Vicinage Clauses
similarly does not demand a departure from the retrial rule. The
common-law “vicinage” right presumptively entitled defendants to a
jury of the “neighbourhood” where the crime was allegedly committed.
4 W. Blackstone, Commentaries on the Laws of England 344. As a
practical matter, this right imposed a venue requirement: Trials needed
to be held at the location where “the matter of fact issuable” allegedly
occurred to allow the “Inhabitants whereof ” to serve on the jury. E.
Coke, 1 Institutes of the Laws of England § 193, p. 125. History reveals
that the common-law vicinage right was highly prized by the founding
generation, and this right undoubtedly inspired the Venue and Vicinage
Clauses in the Constitution. Although the Clauses as adopted depart
in some respects from the common law—most notably by providing new
specifcations about the place where a crime may be tried—there is no
meaningful evidence to support Smith's contention that the Constitution
238 SMITH v. UNITED STATES
Syllabus
altered the remedy prescribed by common law for violations of the vici-
nage right.
By the time of the founding, compelling evidence supported the con-
clusion that pleas of prior acquittal or conviction could not be grounded
on a verdict issued in or returned by a jury from the wrong vicinage.
See Arundel's Case, 6 Co. Rep. 14a, 77 Eng. Rep. 273. Judicial decisions
and prominent treatises of the time and since refect no common-law
principle at the founding that precluded retrial following a trial in an
improper venue or before an improper jury. Indeed, this Court em-
braced the retrial rule for a venue error in United States v. Jackalow,
1 Black 484, and this decision did not break new ground. The Court
has found—and Smith points to—no decision barring retrial based on
a successful venue or vicinage objection in either the centuries of com-
mon law predating the founding or in the early years of practice fol-
lowing ratifcation. This absence alone is considerable evidence that
the clauses do not bar retrial of their own force. See, e. g., Gamble v.
United States, 587 U. S. –––, –––. Moreover, courts affrmatively al-
lowed retrial following trials in an improper venue or before improperly
constituted juries. This leaves no reason to doubt that the retrial rule
applies here. Pp. 245–252.
(b) The Court rejects Smith's argument that the Double Jeopardy
Page Proof Pending Publication
Clause is implicated by retrial in a proper venue. A judicial decision
on venue is fundamentally different from a jury's general verdict of ac-
quittal. When a jury returns a general verdict of not guilty, its decision
“cannot be upset by speculation or inquiry into such matters” by courts.
Dunn v. United States, 284 U. S. 390, 393–394. And because it is impos-
sible for courts to be certain about the ground for the verdict without
improperly delving into jury deliberations, the basis for the jury's ver-
dict cannot be a ground for setting aside an acquittal. General verdicts
of acquittal are thus consistent with the general rule that “[c]ulpability
. . . is the touchstone” for determining whether retrial is permitted
under the Double Jeopardy Clause. Evans v. Michigan, 568 U. S. 313,
324. Under that rule, when a trial terminates with a fnding that the
defendant's “criminal culpability had not been established,” retrial is
prohibited. Burks v. United States, 437 U. S. 1, 10. Conversely, retrial
is permissible when a trial terminates “on a basis unrelated to factual
guilt or innocence of the offense of which [the defendant] is accused,”
United States v. Scott, 437 U. S. 82, 99, e. g., juror deadlock, see Blueford
v. Arkansas, 566 U. S. 599, 610. Similarly, the reversal of a conviction
based on a violation of the Venue or Vicinage Clauses, even when styled
as a “judgment of acquittal” under Rule 29, plainly does not resolve “the
bottom-line question of `criminal culpability.' ” Evans, 568 U. S., at 324,
n. 6. In this case, then, the Eleventh Circuit's decision that venue was
Cite as: 599 U. S. 236 (2023) 239
Opinion of the Court
improper did not adjudicate Smith's culpability, and thus does not trig-
ger the Double Jeopardy Clause. Pp. 252–254.
22 F. 4th 1236, affrmed.
Alito, J., delivered the opinion for a unanimous Court.
Samir Deger-Sen argued the cause for petitioner. With
him on the briefs were Peter Trombly, Margaret A. Upshaw,
Brent T. Murphy, and Marissa Marandola.
Sopan Joshi argued the cause for the United States.
With him on the brief were Solicitor General Prelogar, As-
sistant Attorney General Polite, and Deputy Solicitor Gen-
eral Feigin.*
Justice Alito delivered the opinion of the Court.
When a conviction is reversed because of a trial error, this
Court has long allowed retrial in nearly all circumstances.
We consider in this case whether the Constitution requires
a different outcome when a conviction is reversed because
Page Proof Pending Publication
the prosecution occurred in the wrong venue and before a
jury drawn from the wrong location. We hold that it does
not.
I
Timothy Smith is a software engineer and avid angler
from Mobile, Alabama, who spends much of his time fshing,
sailing, and diving in the Gulf of Mexico. In 2018, he discov-
ered StrikeLines, a company that uses sonar equipment to
identify private, artifcial reefs that individuals construct to
attract fsh. StrikeLines sells the geographic coordinates of
those reefs to interested parties. This business model irri-
*Briefs of amici curiae urging reversal were fled for the National Asso-
ciation of Criminal Defense Lawyers by Jeffrey T. Green, Meredith R.
Aska McBride, David Oscar Markus, and Xiao Wang; for The Rutherford
Institute et al. by Michael Li-Ming Wong, Vladimir J. Semendyai, John
W. Whitehead, Clark M. Neily III, Jay R. Schweikert, Emily Hughes, and
H. Louis Sirkin; and for Drew L. Kershen et al. by Sally L. Pei, Kolya
D. Glick, and Kirk Jenkins.
240 SMITH v. UNITED STATES
Opinion of the Court
tated Smith, who believed that StrikeLines was unfairly
profting from the work of private reef builders.
Smith used a web application to obtain tranches of coordi-
nates from the company's website surreptitiously. He then
announced on a social-media website that he had Strike-
Lines' data and invited readers to message him and “ `see
what ree[f]' ” coordinates StrikeLines had discovered. 22 F.
4th 1236, 1239 (CA11 2022) (case below). When contacted
by StrikeLines, Smith offered to remove his social-media
posts and fx the company's security issues in exchange for
“ `one thing' ”: the coordinates of certain “ `deep grouper
spots' ” that he had apparently been unable to obtain from
the website. Ibid. The ensuing negotiations over grouper
coordinates eventually failed, leading StrikeLines to contact
law-enforcement authorities.
Smith was indicted in the Northern District of Florida for,
among other charges, theft of trade secrets. See 18 U. S. C.
Page Proof Pending Publication
§ 1832(a)(1). Before trial, he moved to dismiss the indict-
ment for lack of venue, citing the Constitution's Venue
Clause, Art. III, § 2, cl. 3, and its Vicinage Clause, Amdt. 6.
He argued that trial in the Northern District of Florida was
improper because he had accessed the data from Mobile (in
the Southern District of Alabama) and the servers storing
StrikeLines' coordinates were located in Orlando (in the Mid-
dle District of Florida). The District Court concluded that
the jury needed to resolve factual disputes related to venue,
and it therefore denied the motion to dismiss without preju-
dice. After the jury returned a verdict of guilty under
§ 1832(a)(1), Smith moved for a judgment of acquittal based
on improper venue. See Fed. Rule Crim. Proc. 29. The
District Court denied the motion, reasoning that StrikeLines
felt the effects of the crime at its headquarters in the North-
ern District of Florida.
On appeal, the Eleventh Circuit held that venue was im-
proper on the trade secrets charge, but it disagreed with
Smith that this error barred reprosecution. It concluded
Cite as: 599 U. S. 236 (2023) 241
Opinion of the Court
that the “remedy for improper venue is vacatur of the convic-
tion, not acquittal or dismissal with prejudice,” and that the
“Double Jeopardy [C]lause is not implicated by a retrial in a
proper venue.” 22 F. 4th, at 1244.
We granted certiorari to determine whether the Constitu-
tion permits the retrial of a defendant following a trial in an
improper venue and before a jury drawn from the wrong
district. 598 U. S. ––– (2022).1
II
A
Except as prohibited by the Double Jeopardy Clause, it
“has long been the rule that when a defendant obtains a re-
versal of a prior, unsatisfed conviction, he may be retried in
the normal course of events.” United States v. Ewell, 383
U. S. 116, 121 (1966); accord, Bravo-Fernandez v. United
States, 580 U. S. 5, 18–19 (2016). Remedies for constitu-
Page Proof Pending Publication
tional violations in criminal trials, we have explained,
“should be tailored to the injury suffered from the constitu-
tional violation and should not unnecessarily infringe on
competing interests.” United States v. Morrison, 449 U. S.
361, 364 (1981). When a conviction is obtained in a proceed-
ing marred by harmful trial error, “the accused has a strong
interest in obtaining a fair readjudication of his guilt,” and
society “maintains a valid concern for insuring that the
guilty are punished.” Burks v. United States, 437 U. S. 1,
15 (1978). Therefore, the appropriate remedy for prejudi-
cial trial error, in almost all circumstances, is simply the
1
The Government did not cross-appeal the Eleventh Circuit's decision
that venue for trade secrets theft was improper in the Northern District
of Florida. We thus express no opinion on that issue. See, e. g., Burks
v. United States, 437 U. S. 1, 5 (1978). We likewise do not resolve whether
venue on that charge would be proper in the Middle District of Florida, a
question that the Eleventh Circuit declined to address. See Cutter v.
Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not
of frst view”).
242 SMITH v. UNITED STATES
Opinion of the Court
award of a retrial, not a judgment barring reprosecution.
See, e. g., Morrison, 449 U. S., at 363, 365–367; United States
v. Blue, 384 U. S. 251, 254–255 (1966).2
We have recognized one exception to this general rule: vio-
lations of the Speedy Trial Clause, which we have described
as “generically different” from “any” other criminal right in
the Constitution, Barker v. Wingo, 407 U. S. 514, 519 (1972),
preclude retrial. In all other circumstances, we have found
that retrial is the strongest appropriate remedy, and we have
applied this rule to every other Clause of the Sixth Amend-
ment except for the Vicinage Clause (which we now address
along with the Venue Clause).3
B
Against this backdrop, we are asked to consider whether
violations of the Venue and Vicinage Clauses are exceptions
to the retrial rule. Text and precedent provide no basis for
Page Proof Pending Publication
that result.
We start with the Venue Clause, which concerns the place
where a trial must be held. That Clause mandates that the
“Trial of all Crimes . . . shall be held in the State where the
2
In some circumstances, a constitutional violation may not require re-
trial. See, e. g., Waller v. Georgia, 467 U. S. 39, 49–50 (1984).
3
See, e. g., Weaver v. Massachusetts, 582 U. S. 286, 305 (2017) (Counsel
Clause); Waller, 467 U. S., at 49–50 (Public Trial Clause); Ramos v. Louisi-
ana, 590 U. S. –––, ––– – ––– (2020) (Jury Clause); Idaho v. Wright, 497
U. S. 805, 813, 827 (1990) (Confrontation Clause); Pennsylvania v. Ritchie,
480 U. S. 39, 56, 58 (1987) (Compulsory Process Clause); Russell v. United
States, 369 U. S. 749, 761, 764, 770 (1962) (Arraignment Clause); see also,
e. g., Grunewald v. United States, 353 U. S. 391, 424 (1957) (Self-Incrimina-
tion Clause); Russell, 369 U. S., at 761, 769–770 (Grand Jury Clause); Kyles
v. Whitley, 514 U. S. 419, 421–422 (1995) (Due Process Clause); Hill v.
Texas, 316 U. S. 400, 406 (1942) (holding that a State may fle a new indict-
ment following the postconviction dismissal of an indictment under the
Equal Protection Clause); United States v. Morrison, 449 U. S. 361, 364–
365 (1981) (collecting other decisions).
Cite as: 599 U. S. 236 (2023) 243
Opinion of the Court
. . . Crimes shall have been committed.” Art. III, § 2, cl. 3.4
Nothing about the language that frames this requirement
suggests that a new trial in the proper venue is not an ade-
quate remedy for its violation.
Smith contends that the purpose of the Venue Clause sup-
ports his argument, but that argument is unpersuasive for
at least two reasons. First, the purpose he attributes to the
Clause is insuffcient to justify a departure from the general
retrial rule. Smith primarily argues that the Venue Clause
aims to prevent the infiction of additional harm on a defend-
ant who has already undergone the hardship of an initial trial
in a distant and improper place. But any criminal trial,
whether or not in the right venue, imposes hardship, and any
retrial after a reversal for trial error adds to that initial
harm. Indeed, in some cases, the lost time, emotional bur-
den, and expense of a fawed initial trial in a defendant's
home State may exceed the hardship of an initial trial in a
State that is nearby but improper under the Venue Clause.
Page Proof Pending Publication
And the mere burden of a second trial has never justifed
an exemption from the retrial rule. See Ewell, 383 U. S.,
at 121.
Second, Smith's argument exaggerates the connection be-
tween the venue right and the hardship of trial in an im-
proper venue. The most convenient trial venue for a de-
fendant would presumably be where he lives, and yet the
Venue Clause is keyed to the location of the alleged
“Crimes,” Art. III, § 2, cl. 3, “not . . . the district where the
accused resides, or even . . . the district in which he is person-
ally at the time of committing the crime,” In re Palliser,
136 U. S. 257, 265 (1890). Thus, the Clause does not allow
“variation . . . for convenience of the . . . accused.” Johnston
v. United States, 351 U. S. 215, 221 (1956); accord, e. g., Ar-
4
The Venue Clause also includes a necessary exception: the trial for
crimes “not committed within any State . . . shall be at such Place or
Places as the Congress may by Law have directed.” Art. III, § 2, cl. 3.
244 SMITH v. UNITED STATES
Opinion of the Court
mour Packing Co. v. United States, 209 U. S. 56, 77 (1908).
The State in which a crime is committed may be far from a
defendant's residence. For example, a resident of New York
charged with committing a crime during a short visit to
Hawaii may be tried in Hawaii under the Venue Clause even
though that trial may be very inconvenient. Equally telling,
the Clause would preclude trial for that crime in New York
unless it somehow extended to the State. See, e. g., Travis
v. United States, 364 U. S. 631, 634–637 (1961) (holding that
prosecution was proper only in Washington, D. C., rather
than in the defendant's residence in Colorado); United States
v. Lombardo, 241 U. S. 73, 76–78 (1916) (holding the same for
a defendant who resided in Washington State). If avoiding
hardship to a defendant were a “core purpos[e]” of the Venue
Clause, Brief for Petitioner 18, such results would be
inexplicable.
This disconnect between the State where trial would be
Page Proof Pending Publication
least burdensome and the State where a crime was com-
mitted is exacerbated by the fact that many federal crimes
occur in multiple States. We have held that a trial may be
held “ `where any part' ” of a crime “ `can be proved to have
been done.' ” United States v. Rodriguez-Moreno, 526 U. S.
275, 281 (1999) (quoting Lombardo, 241 U. S., at 77). As a
result, the Venue Clause permits a defendant charged with
conspiracy to be tried in any State in which any co-
conspirator took any overt act in furtherance of the en-
deavor, Hyde v. United States, 225 U. S. 347, 365–367 (1912),
and a defendant charged with illegally shipping goods may
be tried in any State through which the goods were illegally
transported, Armour Packing, 209 U. S., at 76–77. In these
cases, as others, we have repeatedly rejected objections
based on the “serious hardship in . . . prosecutions in places
distant from the [defendant's] home.” Id., at 77.
The Vicinage Clause provides no stronger textual support
for petitioner's argument. That Clause guarantees “the
right to . . . an impartial jury of the State and district
Cite as: 599 U. S. 236 (2023) 245
Opinion of the Court
wherein the crime shall have been committed.” Amdt. 6.
The coverage of this Clause “reinforce[s]” the coverage of
the Venue Clause because, in protecting the right to a jury
drawn from the place where a crime occurred, it functionally
prescribes the place where a trial must be held. Rodriguez-
Moreno, 526 U. S., at 278; Travis, 364 U. S., at 634; see, e. g.,
Palliser, 136 U. S., at 265. But the Vicinage Clause differs
from the Venue Clause in two ways: it concerns jury com-
position, not the place where a trial may be held, and it nar-
rows the place where trial is permissible by specifying that
a jury must be drawn from “the State and district wherein
the crime shall have been committed.” Amdt. 6 (emphasis
added).
Nothing about these differences dictates a remedy that is
broader than the one awarded when the Venue Clause is vio-
lated. The vicinage right is only one aspect of the jury-trial
rights protected by the Sixth Amendment, and we have re-
Page Proof Pending Publication
peatedly acknowledged that retrials are the appropriate
remedy for violations of other jury-trial rights. See, e. g.,
Ramos v. Louisiana, 590 U. S. –––, ––– – ––– (2020) (non-
unanimous jury); Pena-Rodriguez v. Colorado, 580 U. S. 206,
228 (2017) (racially biased jury); Sheppard v. Maxwell, 384
U. S. 333, 362–363 (1966) (partial jury). Most analogous to
the case before us, we have recognized that retrial is the
appropriate remedy when a defendant is tried by a jury that
does not refect a fair cross-section of the community. See,
e. g., Glasser v. United States, 315 U. S. 60, 85–87 (1942).
There is no reason to conclude that trial before a jury drawn
from the wrong geographic area demands a different remedy
than trial before a jury drawn inadequately from within the
community.
C
Failing to demonstrate that he is entitled to an acquittal
based on text or precedent, Smith appeals to the historical
background of the Venue and Vicinage Clauses. The history
246 SMITH v. UNITED STATES
Opinion of the Court
underlying the Clauses cannot justify an exception to the
retrial rule.
1
In examining this history, the relevant starting point, as
both parties agree, is the common-law “vicinage” right,
which presumptively entitled defendants to a jury of the
“neighbourhood” where the crime was allegedly committed.
4 W. Blackstone, Commentaries on the Laws of England 344
(1769) (Blackstone). As a practical matter, this right im-
posed a venue requirement: trials needed to be held at the
location where “the matter of fact issuable” allegedly oc-
curred to allow the “Inhabitants whereof ” to serve on the
jury. 1 E. Coke, Institutes of the Laws of England § 193, at
125 (1628) (Coke).5
Both of these requirements were well settled by the found-
ing. See, e. g., Rex v. Harris, 3 Burr. 1330, 1334, 97 Eng.
Rep. 858, 860 (K. B. 1762) (Wilmot, J.) (opining that there
Page Proof Pending Publication
was “no rule better established” than “ `that all causes shall
be tried in the county, and by the neighbourhood of the place,
where the fact is committed' ”). Smith contends, however,
that the Constitution not only incorporated this right but
“elevated” it “to an even higher stature in American law,”
and that this enhanced right favors his preferred remedy.
Brief for Petitioner 21. The historical record, however, does
not support this argument.
There is no question that the founding generation enthusi-
astically embraced the vicinage right and wielded it “as a
political argument of the Revolution.” 6 Prior to the Revo-
lution, Parliament enacted measures to circumvent local
trials before colonial juries, most notably by authorizing
5
See W. Blume, The Place of Trial in Criminal Cases, 43 Mich. L. Rev.
59, 61 (1944) (Blume); D. Kershen, Vicinage, 29 Okla. L. Rev. 801, 811–812,
830–831 (1976).
6
F. Heller, The Sixth Amendment to the Constitution of the United
States 95 (1951) (Heller); see Blume 65–66; J. Reid, Constitutional History
of the American Revolution: The Authority of Rights 53–55 (1986).
Cite as: 599 U. S. 236 (2023) 247
Opinion of the Court
trials in England for both British soldiers charged with
murdering colonists and colonists accused of treason.7 The
Continental Congress and colonial legislatures forcefully ob-
jected to trials in England before loyalist juries, characteriz-
ing the practice as an affront to the existing “common law of
England, and more especially to the great and inestimable
privilege of being tried by . . . peers of the vicinage.” 8 The
Declaration of Independence also denounced these laws,
under which, it said, British soldiers were “protect[ed] . . .
by a mock Trial” and colonists were “transport[ed] . . . be-
yond Seas to be tried for pretended offences.” 9 As States
declared independence, most incorporated some form of a
venue or vicinage clause in their governing documents, and
none of these provisions specifed a particular remedy for
violations.10
7
See 14 Geo. 3, c. 39 (1774); Proceedings in Both Houses Respecting the
Discontents in America, Feb. 8, 1769, in 16 Parliamentary History of Eng-
Page Proof Pending Publication
land From the Earliest Period to the Year 1803, at 510–511 (T. Hansard
ed. 1813) (approving the use of the Treason Act of 1543, 35 Hen. 8, c. 2).
8
Declaration and Resolves of the First Continental Congress, Oct. 14,
1774, in 1 Journals of the Continental Congress, 1774–1789, at 69 (W. Ford.
ed. 1904); accord, e. g., Virginia Resolves, May 16, 1769, Journals of the
House of Burgesses of Virginia, 1766–1769, at 214 (J. Kennedy ed. 1906);
Resolutions of July 7, 1769, in 45 Journals of the House of Representatives
of Massachusetts 59–60 (1976); Resolutions of Aug. 27, 1774, in 9 Colonial
Records of North Carolina 1045 (W. Saunders ed. 1890); see also J. Reid,
Constitutional History of the American Revolution: The Authority To Leg-
islate 281–286 (1991).
9
Declaration of Independence ¶¶17, 21; see E. Dumbauld, The Declara-
tion of Independence 133–137 (1950).
10
See Del. Decl. of Rights § 13 (1776), in 1 B. Schwartz, The Bill of
Rights: A Documentary History 278 (1971); Del. Const., Art. 30 (1776), in
1 Federal and State Constitutions 568 (F. Thorpe ed. 1909) (Thorpe); Md.
Const., Decl. of Rights, Art. XVIII (1776), in 3 id., at 1688; Pa. Const.,
Decl. of Rights, Art. IX (1776), in 5 id., at 3083; Va. Const., Bill of Rights
§ 8 (1776), in 7 id., at 3813; S. C. Const., Art. XVIII (1776), in 6 id., at 3246;
Ga. Const., Art. XXXIX (1777), in 2 id., at 783; Mass. Const., Decl. of
Rights, Art. XIII (1780), in 3 id., at 1891; N. H. Const., Bill of Rights, Art.
XVII (1784), in 4 id., at 2455–2456; N. Y. Bill of Rights ¶3 (1787), in The
248 SMITH v. UNITED STATES
Opinion of the Court
The common-law vicinage right, both as a jury require-
ment and as a proxy for venue, remained prominent during
debates over the ratifcation of the Constitution. As origi-
nally proposed, the Constitution contained only the Venue
Clause, which, as noted, says nothing about jury composition.
Appealing to “ancient common law,” Anti-Federalists ob-
jected to this omission.11 Federalists responded that Con-
gress could secure the vicinage right by statute, analogizing
to common law, where “the preservation of this right [was]
in the hands of Parliament.” 12
After the ratifcation of the Constitution, Congress yielded
in part to the Anti-Federalists' argument and included a vici-
nage right in the Sixth Amendment. James Madison's ini-
tial draft of the Amendment required a jury “of the vici-
nage,” 1 Annals of Cong. 435 (1789), but Congress amended
that language so that it guaranteed a jury from the State of
the crime and from any smaller judicial districts that Con-
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gress chose to create.13
This history tells us two important things about the way
in which the Constitution dealt with the common-law vici-
nage right. First, the right was highly prized by the found-
ing generation, and this right undoubtedly inspired the
Venue and Vicinage Clauses. Second, although the Clauses
Complete Bill of Rights 410 (N. Cogan ed. 1997); see also N. C. Const.,
Decl. of Rights, Art. IX (1776), in 5 Thorpe 2787 (preserving the jury right
“as heretofore used”).
11
3 Debates on the Constitution 446–447 (J. Elliot ed. 1836) (Elliot's De-
bates) (P. Henry); see, e. g., 1 id., at 504 (R. Lee); 2 id., at 109–110 (A.
Holmes); id., at 400 (T. Tredwell); 3 id., at 568–569 (W. Grayson); 4 id., at
150, 211 (J. M'Dowall); Federal Farmer No. 4 (1787), in 2 The Complete
Anti-Federalist 249 (H. Storing ed. 1981) (Storing); see also, e. g., 4 Elliot's
Debates 154–155 (S. Spencer); Agrippa No. 5 (1787), in 4 Storing 78–79.
12
3 Elliot's Debates 558 (J. Marshall); see also, e. g., id., at 537 (J. Madi-
son); id., at 451 (G. Nicholas); id., at 520–521 (E. Pendleton); 4 id., at 147–
148 (J. Iredell); id., at 175–176 (A. Maclaine).
13
See Heller 93; E. Kaufman, Territoriality in American Criminal Law,
121 Mich. L. Rev. 353, 366–367 (2022).
Cite as: 599 U. S. 236 (2023) 249
Opinion of the Court
depart in some respects from the common law—most notably
by providing new specifcations about the place where a
crime may be tried—there is no meaningful evidence that
the Constitution altered the remedy prescribed by common
law for violations of the vicinage right.
2
With this background in mind, we examine the remedy at
common law for an initial trial in the wrong venue or before
a jury drawn from the wrong vicinage, and we fnd that this
history does not demand a departure from the retrial rule.
By the time of the founding, compelling evidence supported
the conclusion that pleas of prior acquittal or conviction
could not be grounded on a verdict issued in or returned by
a jury from the wrong vicinage.
The leading decision at common law was Arundel's Case,
6 Co. Rep. 14a, 77 Eng. Rep. 273 (K. B. 1593), which con-
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cerned a vicinage challenge to a jury that had found the de-
fendant guilty of murder. Id., at 14a–14b, 77 Eng. Rep., at
274. The King's Bench arrested judgment on the conviction
because the jury was insuffciently local, but it did not bar
retrial. Ibid. Instead, “a new venire facias [was] awarded
to try the issue again.” Ibid.; see also Vaux's Case, 4 Co. Rep.
44a, 45a, 76 Eng. Rep. 992, 994 (K. B. 1591) (adopting a simi-
lar rationale for insuffcient indictments). Discussing Arun-
del's Case at length, Sir Edward Coke's 17th-century treatise
agreed that juries lacked authority to convict outside of their
vicinage and added that a verdict by an improperly consti-
tuted jury would cause a “mistryall.” 1 Coke § 193, at 125;
see also 3 id., at 137 (1644); Rex v. Fenwicke, 1 Keble 546, 83
Eng. Rep. 1104 (K. B. 1662) (recognizing the availability of
retrial “for misawarding of venue”); Rex v. Talbot, Cro. Car.
311, 312, 79 Eng. Rep. 871, 872 (K. B. 1633) (awarding a new
jury venire to remedy a vicinage error).
Arundel's remedy remained unchanged throughout the
18th century. Because “indictments are local,” one promi-
250 SMITH v. UNITED STATES
Opinion of the Court
nent treatise explained, a prior acquittal on an indictment
“laid in an improper county” would not “bar . . . a subsequent
indictment in the proper county.” 2 W. Hawkins, Pleas of
the Crown 526 (6th ed. 1788). Hale and Blackstone reached
similar conclusions. See 2 M. Hale, History of the Pleas of
the Crown 245 (1736) (concluding that a second prosecution
was available for indictments in different counties because
courts “can only inquire touching a felony” in their own
county); 4 Blackstone 368–369 (explaining that a defendant
“may be indicted again” when a judgment of conviction is
arrested for failure to adequately identify “the place” of
the crime in the indictment); see also, e. g., Rex v. Huggins,
2 Ld. Raym. 1574, 1585, 92 Eng. Rep. 518, 525 (K. B. 1730)
(approvingly citing the remedy in Arundel's Case). In sum,
no common-law principle at the founding precluded retrial
following a trial in an improper venue or before an im-
proper jury.
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Early American practice provides further confrmation
that violations of the Venue and Vicinage Clauses do not ex-
empt defendants from retrial. Cf. Ramos, 590 U. S., at –––;
District of Columbia v. Heller, 554 U. S. 570, 605 (2008);
Crawford v. Washington, 541 U. S. 36, 49–50 (2004). Per-
haps most relevant here, this Court embraced the retrial
rule for a venue error in United States v. Jackalow, 1 Black
484 (1862). In that case, the defendant had been convicted
in New Jersey for a crime committed on a ship located off
the coast of New York and Connecticut. Because the crime
occurred outside of New Jersey, trial in that State was
proper under the Venue and Vicinage Clauses only if the
crime was committed outside the limits of any State. See
supra, at 243, n. 4. And because the jury's special verdict
on the issue of venue did not establish that fact, the Court
directed the lower court “to set aside the special verdict, and
grant a new trial.” Jackalow, 1 Black, at 488.
This decision did not break new ground. Decades earlier,
Justice Story had concluded that “there are cases where
Cite as: 599 U. S. 236 (2023) 251
Opinion of the Court
there may be a new trial; as in cases of a mistrial by an
improper jury,” United States v. Gibert, 25 F. Cas. 1287, 1302
(No. 15,204) (CC Mass. 1834) (citing Arundel's Case), and Jus-
tice Iredell had found it “unnecessary” to consider a vicinage
objection because a new trial was warranted on other
grounds, United States v. Fries, 3 Dall. 515, 518 (CC Pa.
1799). Other federal decisions ordered retrials for venue vi-
olations, see United States v. Plympton, 27 F. Cas. 578 (No.
16,057) (CC DC 1833), or otherwise accepted that a retrial
would be suffcient to cure such an error, see, e. g., United
States v. Keen, 26 F. Cas. 686, 690 (No. 15,510) (CC Ind. 1839)
(“It is laid down in all the authorities, that if the court have
not jurisdiction . . . or the jury have not been legally sum-
moned, the defendant, though tried, cannot be considered as
having been in jeopardy”). State courts had likewise begun
reaching similar conclusions, notwithstanding the existence
of venue and vicinage clauses in their State Constitutions.14
Given these developments, it is not surprising that American
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treatises from this period agreed with their English counter-
parts regarding the availability of retrial.15
Far from justifying an exemption from the retrial rule, the
historical background of the Venue and Vicinage Clauses
supports the opposite inference. We have found—and
Smith points to—no decision barring retrial based on a suc-
cessful venue or vicinage objection in either the centuries of
common law predating the founding or in the early years of
practice following ratifcation. This absence alone is consid-
erable evidence that the Clauses do not bar retrial of their
14
See, e. g., Commonwealth v. Call, 38 Mass. 509, 514–515 (1839); State
v. George, 8 La. 535, 539–540 (1844); Methard v. State, 19 Ohio St. 363,
367 (1869).
15
See, e. g., F. Wharton, Criminal Law 139 (1846) (“An acquittal upon an
indictment in a wrong county, cannot be pleaded to a subsequent indict-
ment for the offence in another county”); 1 J. Chitty, Criminal Law 309
(Am. ed. 1819) (similar); 1 W. Russell & C. Greaves, Crimes and Misde-
meanors 835 (5th Am. ed. 1845) (similar); 2 M. Hale, The History of the
Pleas of the Crown 255, n. 1 (1st Am. ed. 1847) (similar).
252 SMITH v. UNITED STATES
Opinion of the Court
own force. See, e. g., Gamble v. United States, 587 U. S.
–––, ––– (2019). Moreover, courts affrmatively allowed re-
trial following trials in an improper venue or before improp-
erly constituted juries. All told, we have no reason to doubt
that the retrial rule applies.16
III
Smith argues that even if the Venue and Vicinage Clauses
do not bar retrial of their own force, they are “inseparably
interwoven” with the Double Jeopardy Clause, which, he
claims, precludes retrial here. Tr. of Oral Arg. 23; see Brief
for Petitioner 38–39, 44. Smith starts from the premise that
juries in criminal trials often resolve factual disputes related
to venue and, thus, can acquit defendants if venue is absent.
And because a jury's general verdict of acquittal categori-
cally precludes retrial for the same offense under the Double
Jeopardy Clause, Smith contends that a judicial ruling that
venue was improper on a motion to acquit should have the
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same result. The Eleventh Circuit rejected this argument
and held that the Double Jeopardy Clause “is not implicated
by a retrial in a proper venue.” 22 F. 4th, at 1244. We
agree.
A judicial decision on venue is fundamentally different
from a jury's general verdict of acquittal. When a jury re-
turns a general verdict of not guilty, its decision “cannot be
upset by speculation or inquiry into such matters” by courts.
Dunn v. United States, 284 U. S. 390, 393–394 (1932); see
United States v. Powell, 469 U. S. 57, 66–67 (1984). To con-
clude otherwise would impermissibly authorize judges to
usurp the jury right. See ibid.; cf. United States v. Martin
Linen Supply Co., 430 U. S. 564, 572–573 (1977). And be-
cause it is impossible for a court to be certain about the
16
Because the evidence is uniformly consistent with the retrial rule, we
need not determine the proper weight to give to this postratifcation his-
tory. See New York State Rife & Pistol Assn., Inc. v. Bruen, 597 U. S.
–––, ––– – ––– (2022) (Barrett, J., concurring).
Cite as: 599 U. S. 236 (2023) 253
Opinion of the Court
ground for the verdict without improperly delving into the
jurors' deliberations, the jury holds an “ `unreviewable power
. . . to return a verdict of not guilty' ” even “ `for impermissi-
ble reasons.' ” Powell, 469 U. S., at 63, 66–67; see Dunn, 284
U. S., at 393–394.
This rationale is consistent with the general rule that
“[c]ulpability . . . is the touchstone” for determining whether
retrial is permitted under the Double Jeopardy Clause.
Evans v. Michigan, 568 U. S. 313, 324 (2013). When a trial
terminates with a fnding that the defendant's “criminal cul-
pability had not been established,” retrial is prohibited.
Burks, 437 U. S., at 10. This typically occurs with “ `a reso-
lution, correct or not, of some or all of the factual elements
of the offense charged.' ” Smith v. Massachusetts, 543 U. S.
462, 468 (2005); see, e. g., Martin Linen, 430 U. S., at 572.
But it also extends to “essentially factual defense[s]” that
negate culpability by “provid[ing] a legally adequate justif-
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cation for otherwise criminal acts.” United States v. Scott,
437 U. S. 82, 97–98 (1978); see Burks, 437 U. S., at 5, 10 (in-
sanity defense).
Conversely, retrial is permissible when a trial terminates
“on a basis unrelated to factual guilt or innocence of the of-
fense of which [the defendant] is accused.” Scott, 437 U. S.,
at 99. For example, the Double Jeopardy Clause is not trig-
gered when a trial ends in juror deadlock, see Blueford v.
Arkansas, 566 U. S. 599, 610 (2012), or with a judgment
dismissing charges because of a procedural issue like pre-
indictment delay, see Scott, 437 U. S., at 84. In these cir-
cumstances, the termination of proceedings is perfectly
consistent with the possibility that the defendant is guilty of
the charged offense.
The reversal of a conviction based on a violation of the
Venue or Vicinage Clauses, even when styled as a “judgment
of acquittal” under Rule 29, plainly does not resolve “the
bottom-line question of `criminal culpability.' ” Evans, 568
U. S., at 324, n. 6; see also Martin Linen, 430 U. S., at 571
254 SMITH v. UNITED STATES
Opinion of the Court
(“[W]hat constitutes an `acquittal' is not to be controlled by
the form of the judge's action”). Instead, such a reversal
is quintessentially a decision that “the Government's case
against [the defendant] must fail even though it might satisfy
the trier of fact that he was guilty beyond a reasonable
doubt.” Scott, 437 U. S., at 96. In this case, then, the Elev-
enth Circuit's decision that venue in the Northern District
of Florida was improper did not adjudicate Smith's culpabil-
ity. It thus does not trigger the Double Jeopardy Clause.
* * *
For these reasons, the judgment of the Court of Appeals
for the Eleventh Circuit is affrmed.
It is so ordered.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
Page Proof Pending Publication
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 247, line 11, “the” is deleted
p. 247, line 14, “but” is changed to “and”