Venue seems like one of those boring topics we learned in law school that doesn’t have much practical application. But in a recent case out of the Fourth Circuit, a defendant won the dismissal of a charge based on lack of venue.
Maybe you should have paid attention in Civ Pro that day.
This is the case about Jeffrey Sterling. You may have forgotten his name, but you may remember the story. Mr. Sterling is a former CIA agent who was accused of leaking classified information and documents to a New York Times reporter named James Risen.
Mr. Sterling worked for the CIA from 1993 to 2002. During that time, he was the case manager for a classified program that tried to disrupt Iran’s nuclear capability. In May 2002, Mr. Sterling moved from New York to Northern Virginia to work at CIA headquarters. In August 2003, however, Mr. Sterling moved from Northern Virginia to Missouri. That move is important for the venue holding in the court of appeals opinion.
In April 2003, two months before Mr. Sterling moved from Virginia to Missouri, reporter James Risen told the CIA that he learned about the classified program related to Iran—the one on which Mr. Sterling had worked. He intended to publish an article about it. Ultimately, the New York Times, under pressure from the CIA, decided not to publish the article.
Mr. Risen, undeterred, wrote a book about it. The FBI, also undeterred, began an investigation to determine how Mr. Risen had learned about the classified program.
Mr. Risen and Mr. Sterling were not strangers to each other. Mr. Risen had written an article about Mr. Sterling’s discrimination lawsuit against the CIA into 2002, and Mr. Sterling sent an email to the reporter in March 2003 that contained a link to a CNN article about Iran’s nuclear program.
During the FBI’s investigation, it executed a search warrant on Mr. Sterling’s Missouri home and seized for classified documents (but not the key letter about the Iran program).
The Charges and Trial
Four years after the search warrant was executed, a grand jury in the Eastern District of Virginia returned a 10-count indictment charging Mr. Sterling with numerous crimes.
These included unauthorized disclosure of national defense information to the public, unlawful retention of a classified letter relating to the Iran program, unauthorized disclosure to Mr. Risen of classified information and the program letter, attempted unauthorized disclosure of classified information, mail fraud, unauthorized conveyance of government property, and obstruction of justice.
Who says DOJ overcharges people?
The issue at trial that led to a lot of play in the press was the government’s effort to force Mr. Risen to testify about his sources. Ultimately, although the Fourth Circuit said he could not exercise the reporter’s privilege, the government did not call Mr. Risen in a trial.
Mr. Sterling’s defense was that he was not Mr. Risen’s source. The government introduced evidence about phone calls from Mr. Sterling and Mr. Risen, and the four classified documents he seized from his home for years earlier. Those documents were ultimately introduced under Rule 404(b) to establish that Mr. Sterling had a modus operandi to store classified documents at his home.
Rule 404(b) evidence is a huge topic, and I will leave it for another day. In short, it’s troubling to see the government introduce evidence of prior bad acts to convince the jury that the defendant must have committed the prior crime for which he is currently charged.
The Argument on Appeal (and the Basics of Venue)
One of Mr. Sterling’s challenges on appeal was to the lack of evidence proving that the Eastern District of Virginia was the proper venue for trial. Venue is a constitutional requirement. Under Article III, defendants have the right to stand trial in the state where the crime was committed.
Established case law shows that venue must lie as to each count charged in the indictment. For that reason, the Fourth Circuit analyzed every count to determine whether or not there was proper venue.
The rules governing venue aren’t that complicated. Venue is appropriate only in a judicial district in which a “essential conduct element of the offense took place.” The court must, first, identify the conduct constituting the offense. Second, it must determine where the conduct was actually committed.
You may be wondering what happens when the conduct occurs in more than one judicial district. The answer is not surprising. The government can charge the defendant in any of the venues where the offense started continued or was completed.
The Court’s Opinion
The court started by looking at three of the counts that charged Mr. Sterling with willfully causing the disclosure and conveyance of classified information to the public. This included the letter he supposedly gave Mr. Risen about the classified Iranian nuclear program.
The evidence presented by the government on this point was weak, but enough for the court of appeals. The court adopted one of the government’s theories for why venue is appropriate in the Virginia; namely, that Mr. Sterling disclosed information to Mr. Risen while in that district.
The government had evidence of a few phone calls between February and March 2003 from Mr. Sterling’s home in Virginia to Mr. Risen’s home in Maryland. The court pointed out that these calls were made just a month before Mr. Risen told CIA he was planning to write an article about the classified program. It also noted that these calls are made nearly a year after Mr. Risen had initially written an article about Mr. Sterling’s lawsuit against the CIA, thus suggesting that there could not be any reason for the calls other than to send classified information.
The court concluded
That circumstantial evidence, viewed in the light most favorable to the government, could have led a rational jury to infer that Sterling discussed some classified information with Risen during those calls – the longest of which was 91 seconds – or encourage rising to publish the information. Thus, a jury could find that, more likely than not, Sterling helped “cause” dissemination of information to the public through phone communications from his home in the Eastern District of Virginia, making venue proper for count I, II and IX.
I don’t know much about being a reporter, but it seems to me it would take more than 91 seconds to learn enough information to allow me to write a section of his book about a secret CIA program to disrupt an Iranian nuclear plan.
Plus, there are many other (noncriminal) explanations for why the they spoken a few times. Maybe they became friends when Mr. Risen wrote the article about Mr. Sterling’s lawsuit. Maybe they were catching up about the status of the claims. Maybe they were talking about sports or cooking for their favorite book or politics.
The court of appeals also examined whether proper venue is proper for the two counts related to attempt crimes. It noted that “venue is proper anywhere Sterling committed a substantial step towards communicating, delivering, and transmitting information about the program to the general public.”
The government pointed to two pieces of evidence to support venue for these counts. First, it argued that Mr. Sterling gave Mr. Risen classified information for the New York Times article and that only intervention by top government officials prevented the publication of that article. Second, the government introduced evidence that Mr. Sterling called Mr. Risen several times during this period and sent him a single email drawing attention to the Iran nuclear program. This phone calls and this email were sent from Mr. Sterling’s home in Virginia.
Ultimately the court concluded that “a rational jury could have inferred that Sterling tried to convince Risen to publish the information, and since those communications originated in Virginia also find that venue is proper. ”
Once again, the government’s evidence was not only circumstantial but weak. There’s no indication the opinion about the content of the phone calls or that the email contained classified information. Nonetheless Mr. Sterling lost.
The court then looked at the count charging Mr. Sterling with improper retention of classified information. This was the letter about the Iran program that he supposedly gave to Mr. Risen.
Looking at the opinion, it doesn’t appear that the government had any evidence that Mr. Sterling stored this letter in his home in Virginia. Instead it introduced evidence through the testimony of a Russian scientist that the scientist gave Mr. Sterling a copy of the letter in 2000. Mr. Risen notified authorities that he’d seen this letter in April 2003. The only other evidence the government had was that Mr. Sterling had stored other classified documents in his Missouri home.
To be perfectly clear about it: government had no evidence that this document was kept in Mr. Sterling’s Virginia home. Nonetheless the court again concluded
a jury could therefore reasonably infer that after Sterling left the CIA into 2002, he unlawfully retained the program letter in his home – which was then in the Eastern District of Virginia.
Essentially, the court concluded that because Mr. Sterling was fired in 2002, he must have kept the letter in his Virginia home before giving it to Mr. Risen sometime before spring 2003. And that was enough.
Finally, the court got to count V, which was the count charged Mr. Sterling with unlawful delivery or transmission of the Iran program letter to Mr. Risen. According to the opinion, both sides agreed that Mr. Sterling provided Mr. Risen a paper copy of the letter, not an email or another type of electronic transmission. The government also conceded that it did not present direct evidence of trial of where the hand-off allegedly occurred.
For once, Mr. Sterling won.
The court went through its two-step process and set with some care. It looked to be essential conduct elements of 18 U.S.C. § 793(e). This punishes anyone who “willfully communicates, delivers, transmits” or causes or attempts such transmission “to any person not entitled to receive it.” So, concluded the court, the government had to show that the communication, the delivery, or the transmission of the letter occurred in the Eastern District of Virginia
Because the government presented no evidence about where Risen actually received the letter, both parties focus on where the transmission began. The government asserts that because Sterling kept the classified program letter in his Virginia home, the process of communicating, delivering, or transmitting the letter’s contents to Risen and likely began within the Eastern District of Virginia.
Ultimately, the court concluded
If, for example, the government had offered evidence showing how Sterling transmitted classified information in the past, a jury might have been able to infer a similar method was used to transmit the letter to Risen. That, in turn, might have provided a basis for the jury to determine whether the process of communication, delivery, or transmission began in the Eastern District of Virginia, thus supporting the venue. Absent such evidence, we agree with Sterling that the government failed to shoulder its burden as to venue with respect to count V.
The Unfortunate Power of Weak and Circumstantial Evidence
We should always consider venue. It’s an essential element in the government must offer evidence at trial to meet their burden. In theory, the lack of evidence on this point could constitute wonderful gotcha moment for defense counsel.
But the Sterling opinion shows how hard it is to win the argument. The Fourth Circuit relied on incredibly weak and circumstantial evidence to conclude the venue was appropriate. Recall that this is a constitutional requirement. Even so, the court allowed the government to prove only the existence of the phone calls and the jury was allowed to infer that those phone calls contained specific content. That makes no sense. This shouldn’t be enough to satisfy a constitutional requirement. Even circumstantial evidence has its logical limits.
If you raise a venue concern early in the case, the government could simply transfer the case to a different jurisdiction where proper venue lives. But in a criminal case you could wait until trial and see what happens. Maybe the government will forget to introduce evidence. Maybe a witness will say something unexpected. There’s a lot going on during a trial and proving venue is likely not forefront in the prosecutors’ minds.
Getting this single count reversed likely won’t affect Mr. Sterling’s sentence. But it is a win nonetheless. Bravo.