Sunday, February 08, 2015

Case o' The Week: Venue, Anew - Hsuing and Venue in Federal Criminal Trials

  “Better late than never.”
  True, if you’re the government, and you’re arguing venue.
United States v. Hsuing, 2015 WL 400550 (9th Cir. Jan. 30, 2015) (Ord. amend.), decision available here.

Players: Decision by Judge McKeown, joined by Chief Judge Thomas and District Judge Kendall. Appeal of convictions from trial before Northern District of California District Judge Susan Illston.

Facts: Foreign companies and foreign-national executives were tried for price-fixing under the Sherman Act, for TFT-LCD technologies (flat panel screens). Id. at *1. (The colorful image to the left is the tech under a microscope).
   The defendants met repeatedly in Taiwan, and there fixed prices to charge US customers. Id. During closing arguments, the defense argued that the government had not proved venue. Id. at *3. In rebuttal, the government addressed venue for the first time, arguing defendants’ negotiations of fixed- priced technologies with HP in Cupertino was sufficient to prove venue. Id. at *3. Defense objections that this misrepresented the evidence were overruled. Id.

Issue(s): “[T]he defendants appeal on the basis of improper venue. Four issues are subsumed in the venue challenge (i) our standard of review (ii) the proper standard for proof at trial (iii) whether the government’s representation in closing arguments constituted prosecutorial misconduct, and (iv) whether the government proved venue.” Id. at *4.

Held: “[W]e review de novo whether venue was proper.” Id. at *4. 
  “It is well established that a preponderance of the evidence is the proper standard of proof for venue.” Id. 
  “The defendants accuse the government of sandbagging by relying on ‘late-breaking theories’ of venue in rebuttal. However, the defense invited a response by raising the venue issue in the first place. A prosecutor may respond in rebuttal to an attack made in the defendant’s closing argument.” Id. “[T]he prosecutor did not commit misconduct by making these statements during closing argument, and the district court properly overruled the defendant’s objection.” Id. 
  “Finally, the evidence referenced by the government was sufficient to establish venue by a preponderance of the evidence.” Id. at *5.

Of Note: Read the opening brief by able appellate counsel – one gets the sense that the government’s venue theory was late and, to be charitable, the proof, thin. 2013 WL 526193 at *64. Some of the govt’s venue theories were first “unfurled in post-trial briefing.” Id. The brief rejection of the venue argument in Hsuing also fails to wrestle with an interesting defense argument for a “reasonable doubt” standard (notably, the states are nearly evenly split on whether venue must be proven beyond a reasonable doubt, id. at *81 & n.15).

How to Use: An odd beast, venue. Proof of venue is the government’s burden, but as noted above, need only be shown by a preponderance. Id. at *4. Failure to prove venue can lead to a Rule 29 victory, but the district court can find venue as a matter of law (even when the jury did not find venue proper!). Id. at *4 (citing United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012)). Some impressive defense talent slugged away at venue in Hsiung; it is a disappointing decision, but the appellate briefing is well worth a read when mulling a venue attack.

For Further Reading: Practice tip. If these are the facial expressions of your panel during a Ninth Circuit argument, things are not going well.
   This screen shot is from the argument in Johnny Baca v. Derral Adams. If you have not yet watched the video of this remarkable Ninth habeas argument, do so now - it is available here.  
   In Baca, outraged Judges Kozinski, W. Fletcher, and Wardlaw wonder why California judges were not cracking down on prosecutorial misconduct. See L.A. Times article here.  
   By the end of the argument, Judge Kozinzki – encourages – the Deputy AG to make AG Harris aware of the prosecutorial misconduct in the case within 48 hours. Id.; video at 30:11. The AG’s office quickly folded its tent: Mr. Baca will get a new trial. See Prosecutorial Accountability blog article, here
   Recall that in 2013, (then) Chief Judge Kozinski warned, "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." See CJ Kozinski's 2013 dissent in Olsen, available here; Huff post here; see also recent McDavid Brady / Giglio debacle in the ED Cal. 

Image of TFT-LCD technology from "Dell axim LCD under microscope" by Deglr6328, Gabelstaplerfahrer - Transferred from en.wikipedia to Commons.. Licensed under CC BY-SA 3.0 via Wikimedia Commons -

Image of (skeptical) Judges Wardlaw, Reinhardt, and W. Fletcher, in Baca v. Adams, from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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