Case o' The Week: Ninth a Tough Venue Venue - Lukashov, Jury Verdicts, and Venue

Professor Glanville Williams

“It used to be said that hard cases make bad law - a proposition that our less pedantic age regards as doubtful. What is certain is that cases in which the moral indignation of the judge is aroused frequently make bad law.” 

  Glanville Williams, The Sanctity of Life and the Criminal Law, 105 (1957).

  Professor Williams knew of what he spoke. United States v. Lukashov, 2012 WL 4075751 (9th Cir. Sept. 18, 2012), decision available here.

Players: Decision by Judge Gould, joined by Judges Schroeder and Alarcón.

Facts: Lukashov was a trucker. Id. at 1. At his girlfriend’s request, he took her 8-year old daughter with him on a trip from Oregon to various states, and back. Id. Lukashov sexually abused the girl during the trip. Id. He was charged with aggravated sexual abuse, travel with intent to engage in illicit sexual, and transportation with intent to engage in criminal sexual. Id. at *2. 

Over defense objection, the district court gave a venue instruction with all of the government’s venue theories. Id. The jury found Lukashov guilty of the agg sex abuse count, not guilty on the “travel” count, and could not reach a verdict on the “transportation” count. In a special verdict the jury explained that the government had not proved that the offense began and ended in Oregon. Id. at *3. 

The district court rejected defense post-trial challenges to venue, finding as a matter of law that venue had been established. Id. at *5. 

Lukashov was sentenced to 30 years. Id.

Issue(s): “[T]the unusual circumstances of this case, where the district court first gave an instruction on venue and then, after the jury's determination of guilt beyond a reasonable doubt in substance, decided the venue question of when the crime was completed as a matter of law, require us to take a fresh look at the governing principles. We have found no prior precedent holding that the evidence in a case permitted the trial court, as the district court did here, to take the venue issue from the jury and determine it as a matter of law.” Id. at *10.

Held: “[W]e formulate the following rule to be applied: Where a rational jury could not fail to conclude that a preponderance of the evidence establishes venue, then a court is justified in determining venue as a matter of law.” Id. 

“The district court correctly perceived that once the jury found beyond a reasonable doubt that Lukashov had sexually abused T.F. on the trip to New York and back to Portland, the government had ‘necessarily’ proved venue by a preponderance of the evidence because the offense continued into and was completed in Oregon as a matter of law. No rational jury could have failed to so conclude. We hold that venue was proper under the first paragraph of § 3237(a) . . . .” Id. at *12.

Of Note: Stand back a bit from the details of this case, and you’ll find a troubling new Ninth rule. It is undisputed that the jury must decide venue by a preponderance of evidence. Here, the jury made a special finding that venue in Oregon was not proved. Thus, the venue question wasn’t just taken from the jury by the Ninth – it was decided despite the jury. 

The Ninth’s new rule – converting this issue to a question of law for the judge – seems directly at odds with the post-Apprendi emphasis on the ascendant power of the jury. As described below, this rule should be treated as a very limited holding. (Read the oddly-detailed description of the sexual abuse at the outset of the case, and it also fair to surmise that grim facts are coloring the venue analysis).

How to Use: Lukashov does not stand for the broad proposition that criminal venue is a question of law for the judge. Instead, the case is properly read as a very limited holding on highly unusual facts. Closely read, Lukashov allows a judge to deny a post-verdict challenge when bungled jury instructions produce a venue verdict inconsistent with facts necessarily proved for the substantive offenses. We respectfully view Lukashov as already treading thin constitutional ice – expand its venue holding at all, and it crashes through.

                                               

For Further Reading: For a useful overview of the history and law of federal criminal venue, see a description written for Congress: Charles Doyle, Venue: A Legal Analysis of Where a Crime May Be Tried, available here. 

Image of Professor Glanville Williams from http://elsareview.org/wp-content/uploads/2011/11/glanville-williams.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org