Proof of Territorial Jurisdiction
There has been a trend to treat certain "jurisdictional facts" that
not bear on guilt (mens rea or actus reus) as non-elements of the
and therefore as issues for the court rather than the jury, and to require
by only a preponderance that the offense was committed in the territorial
jurisdiction of the court to establish that venue has been properly laid.
See United States v. Bowers, 660 F.2d 527, 531 (5th Cir.
Government of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir.
United States v. Black Cloud, 590 F.2d 270 (8th Cir. 1979)
question); United States v. Powell, 498 F.2d 890, 891 (9th Cir.
The court in Government of Canal Zone v. Burjan, 596 F.2d at 694-95,
applied the preponderance test to determinations of whether or not the
took place within the Canal Zone which established not merely proper venue
subject matter jurisdiction as well. Other cases, however, hold that the
of whether the United States has jurisdiction over the site of a crime is a
judicial question, see United States v. Jones, 480 F.2d
1135, 1138 (2d Cir. 1973), but that the issue of whether the act was
within the borders of the Federal enclave is for the jury and must be
beyond a reasonable doubt. See United States v. Parker, 622
298 (8th Cir. 1980); United States v. Jones, 480 F.2d at 1138. The
of your Circuit must be consulted to determine which approach is followed in
The decision in Burjan should be viewed with caution. The
analogy between territorial jurisdiction and venue has much to recommend it.
Nevertheless, it is important to recognize that the two are not of equal
importance. As the Burjan court noted, citing Fed. R. Crim. P. 12,
subject matter jurisdiction is so important that it cannot be waived and may
noticed at any stage of the proceeding, see Government of the
Zone v. Burjan, 596 F.2d at 693, whereas the Ninth Circuit in
rested its ruling that venue need be proved by only a preponderance on the
relative unimportance of venue as evidenced by its waivability. There is a
distinction between the question of which court of a sovereign may try an
for a violation of its laws and whether the sovereign's law has been
Proof of territorial jurisdiction may be by direct or
evidence, and at least at the trial level may be aided by judicial notice.
See United States v. Bowers, 660 F.2d at 530-31; Government
Canal Zone v. Burjan, 596 F.2d at 694. Compare Government of
Zone v. Burjan, 596 F.2d 690 with United States v. Jones,
F.2d 1135, concerning the role judicial notice may play on appeal.
[cited in USAM 9-20.100]