A defendant has a right to be tried in a forum where the crime
was committed. See Article III, Section 2, Constitution of
United States; Sixth Amendment,Constitution of the United States;
R. Crim. P. 18. As discussed, infra, this "right" may be
but absent a waiver, the government's case fails for lack of proof
venue. See United States v. Branan, 457 F.2d 1062,
(6th Cir. 1972). The necessity of proving venue, however, does not
require it to be alleged in the indictment. Fed. R. Crim. P.
does not require venue to be alleged in an indictment. United
v. Votteller, 544 F.2d 1355 (6th Cir. 1976). See this Manual at 229. To avoid the filing of
bill of particulars to discover where the offense was committed,
better practice is to include such information in the indictment.
See Hemphill v. United States, 392 F.2d 45, 48 (8th
cert. denied, 393 U.S. 877 (1968).|
Venue must be proved at trial by the government by a
preponderance of the evidence, and proof may be by direct or
circumstantial evidence. See United States v.
Lewis, 797 F.2d 358, 366 (7th Cir. 1986), cert.
479 U.S. 1093 (1987); United States v. McDonough, 603 F.2d
(7th Cir. 1979); United States v. Powell, 498 F.2d 890, 891
Cir.), cert. denied, 419 U.S. 866 (1974); United States
Luton, 486 F.2d 1021, 1023 (5th Cir. 1973), cert.
U.S. 920 (1974). A division of a district, however, is not a unit
venue. See United States v. Burns, 662 F.2d 1378
Cir. 1981). Any defect in venue apparent from the indictment will
waived if the defendant fails to object before pleading guilty or
trial. See United States v. Allen, 24 F.3d 1180, 1830
(10th Cir.), cert. denied, 115 S.Ct. 493 (1994); United
v. Semel, 347 F.2d 228, 229 (4th Cir.), cert. denied,
U.S. 840 (1965); United States v. Jones, 162 F.2d 72, 73 (2d
1947); Fed. R. Crim. P. 12(b)(2). A claim of insufficient evidence
support a finding of venue will be waived if not specifically
a motion for acquittal. See United States v.
F.2d 51 (2d Cir. 1979). See also United States v.
Roberts, 618 F.2d 530 (9th Cir.), appeal after
F.2d 225, cert. denied, 452 U.S. 942 (1980).
A number of statutes regulate the venue of particular criminal
proceedings in the district courts. See, e.g., 18 U.S.C.
1073 (flight to avoid prosecution or giving testimony), 3236
manslaughter), 3237(a) (continuing offenses and offenses committed
more than one district), 3239 (threatening communications).