What is Venue and How is it Determined?
Venue means the district in which an action or prosecution is brought for trial.
An individual has a right to be tried in a location, i.e. venue, where the alleged crime was committed. This right is set forth as follows:
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed ; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. U.S. Const. art. III, § 2, cl. 3 (emphasis supplied).
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed , which district shall have been previously ascertained by law…. U.S. Const. amend. VI (emphasis supplied).
Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice. Fed. R. Crim. P. 18.
Venue must be proven by the government through a preponderance of evidence. So, the government’s burden of proof regarding venue is lower (preponderance) than it is regarding other elements of tax crimes (beyond a reasonable doubt).
An individual may argue against venue before entering a plea or commencement of trial. If not done so, argument against venue will be waived by the individual. Argument on the sufficiency of evidence to support venue must be made in a motion for acquittal or it will be waived.
Venue for Tax Evasion Cases and Aiding the Preparation of a False Return
Tax evasion cases and aiding the preparation of a false return cases are considered “continuing offenses,” therefore, venue is proper in any judicial district where an affirmative act of the tax evasion or aiding the preparation of a false return occurred.
Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed…. 18 U.S.C. § 3237(a).
However, an individual can request that venue be changed to the district in which they reside, if venue was determined solely by a mailing to the IRS.
(b)…where venue is…based solely on a mailing to the Internal Revenue Service, and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed: Provided, that the motion is filed within twenty days after arraignment of the defendant upon indictment or information. 18 U.S.C. § 3237(b).
Venue for Failure to File Cases
Failure to file a tax return is a crime of omission; therefore, venue is proper in the district where the tax return was required to be filed. In most failure to file cases, the government will set venue in the district in which an individual resides or has the principal place of business.
Change of Venue to District of Residency
As stated above, in prosecutions under § 7203 or where venue is set solely on the basis of a mailing to the IRS under 26 U.S.C §§ 7201, 7206(1), 7206(2), or 7206(5), an individual may request a change of venue to the district in which they resided, providing a motion be made requesting the transfer within 20 days after arraignment.
In situations where the change of venue involves the transfer of only a portion of the counts in an indictment, the district court has the option to (1) maintain those counts not transferred to the venue of residency in its district or (2) transfer all counts to the district of residency, as provided for under Rule 21(b).
Rule 21. Transfer for Trial
(b) For Convenience. Upon the defendant’s motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice. Fed. R. Crim. P. 21(b).