Page:Smith v. United States (2023).pdf/9

Rh not an adequate remedy for its violation.

Smith contends that the purpose of the Venue Clause supports his argument, but that argument is unpersuasive for at least two reasons. First, the purpose he attributes to the Clause is insufficient to justify a departure from the general retrial rule. Smith primarily argues that the Venue Clause aims to prevent the infliction of additional harm on a defendant who has already undergone the hardship of an initial trial in a distant and improper place. But any criminal trial, whether or not in the right venue, imposes hardship, and any retrial after a reversal for trial error adds to that initial harm. Indeed, in some cases, the lost time, emotional burden, and expense of a flawed initial trial in a defendant’s home State may exceed the hardship of an initial trial in a State that is nearby but improper under the Venue Clause. And the mere burden of a second trial has never justified an exemption from the retrial rule. See Ewell, 383 U. S., at 121.

Second, Smith’s argument exaggerates the connection between the venue right and the hardship of trial in an improper venue. The most convenient trial venue for a defendant would presumably be where he lives, and yet the Venue Clause is keyed to the location of the alleged “Crimes,” Art. III, §2, cl. 3, “not … the district where the accused resides, or even … the district in which he is personally at the time of committing the crime,” In re Palliser, 136 U. S. 257, 265 (1890). Thus, the Clause does not allow “variation … for convenience of the … accused.” Johnston v. United States, 351 U. S. 215, 221 (1956); accord, e.g., Armour Packing Co. v. United States, 209 U. S. 56, 77 (1908). The State in which a crime is committed may be far from a defendant’s residence. For example, a resident of New York charged with committing a crime during a short visit to Hawaii may be tried in Hawaii under the Venue Clause even though that trial may be very inconvenient. Equally telling, the Clause would preclude trial for that crime in New