PRELIMINARY PRINT 

Volume 599 U. S. Part 1 

Pages 236–254 

OFFICIAL REPORTS 

OF 

THE SUPREME COURT 

June 15, 2023 

REBECCA A. WOMELDORF 

reporter of decisions 

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NOTICE: This preliminary print is subject to formal revision before 

the bound volume is published. Users are requested to notify the Reporter 

of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 

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236 OCTOBER TERM, 2022 

Syllabus 

SMITH v. UNITED STATES 

certiorari to the united states court of appeals for 

the eleventh circuit 

No. 21–1576. Argued March 28, 2023—Decided June 15, 2023 

Timothy Smith was indicted in the Northern District of Florida for theft 

of trade secrets from a website owned by StrikeLines. Before trial, 

Smith moved to dismiss the indictment for lack of venue, citing the Constitution's Venue Clause, Art. III, § 2, cl. 3, and its Vicinage Clause, 

Amdt. 6. Smith argued that trial in the Northern District of Florida 

was improper because he had accessed StrikeLines' website from his 

home in Mobile (in the Southern District of Alabama) and the servers 

storing StrikeLines' data were located in Orlando (in the Middle District of Florida). The District Court concluded that factual disputes 

related to venue should be resolved by the jury and denied Smith's motion to dismiss without prejudice. The jury found Smith guilty, and 

Smith moved for a judgment of acquittal based on improper venue. See 

Fed. Rule Crim. Proc. 29. The District Court denied the motion, reasoning that the effects of Smith's crime were felt at StrikeLines' headquarters, located in the Northern District of Florida. On appeal, the 

Eleventh Circuit determined that venue was improper, but disagreed 

with Smith that a trial in an improper venue barred reprosecution. The 

Eleventh Circuit therefore vacated Smith's conviction for theft of 

trade secrets. 

Held: The Constitution permits the retrial of a defendant following a trial 

in an improper venue conducted before a jury drawn from the wrong 

district. Pp. 241–254. 

(a) Except as prohibited by the Double Jeopardy Clause, it “has long 

been the rule that when a defendant obtains a reversal of a prior, unsatisfed conviction, he may be retried in the normal course of events.” 

United States v. Ewell, 383 U. S. 116, 121. In all circumstances outside 

of the Speedy Trial Clause, the strongest appropriate remedy for trial 

error is a new trial, not a judgment barring reprosecution. Pp. 241–252. 

(1) Text and precedent provide no basis for concluding that violations of the Venue and Vicinage Clauses are exceptions to the retrial 

rule. The Venue Clause mandates that the “Trial of all Crimes . . . 

shall be held in the State where the . . . Crimes shall have been committed.” Art. III, § 2, cl. 3. Nothing about this language suggests that 

a new trial in the proper venue is not an adequate remedy for its violation. Smith primarily argues that the Venue Clause aims to prevent 
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Syllabus 

the infiction of additional harm on a defendant who has already undergone the hardship of an initial trial in a distant and improper place. 

But the mere burden of a second trial has never justifed an exemption 

from the retrial rule. See Ewell, 383 U. S., at 121. Indeed, while the 

most convenient trial venue for a defendant would presumably be where 

he lives, the Venue Clause is keyed to the location of the alleged crimes. 

The Clause does not allow “variation . . . for convenience of the . . . 

accused,” Johnston v. United States, 351 U. S. 215, 221, and this Court 

has repeatedly rejected objections based on the hardships created when 

a defendant is prosecuted far from home. 

The Vicinage Clause—which guarantees “the right to . . . an impartial 

jury of the State and district wherein the crime shall have been committed,” Amdt. 6—similarly provides no support for Smith's argument 

that retrial is barred here. The Vicinage Clause differs from the Venue 

Clause in two ways: it concerns jury composition, not the place where a 

trial may be held, and it concerns the district where the crime was 

committed, rather than the State. Nothing about these differences dictates a remedy that is broader than the one awarded when the Venue 

Clause is violated. The vicinage right is only one aspect of the jurytrial rights protected by the Sixth Amendment, and the Court has repeatedly acknowledged that retrials are the appropriate remedy for violations of other jury-trial rights. Most analogous to this case, the Court 

has held that retrial is the appropriate remedy when a defendant is tried 

by a jury that does not refect a fair cross-section of the community. 

See Glasser v. United States, 315 U. S. 60, 85–87. There is no reason 

to conclude that trial before a jury drawn from the wrong geographic 

area demands a different remedy. Pp. 242–245. 

(2) The historical background of the Venue and Vicinage Clauses 

similarly does not demand a departure from the retrial rule. The 

common-law “vicinage” right presumptively entitled defendants to a 

jury of the “neighbourhood” where the crime was allegedly committed. 

4 W. Blackstone, Commentaries on the Laws of England 344. As a 

practical matter, this right imposed a venue requirement: Trials needed 

to be held at the location where “the matter of fact issuable” allegedly 

occurred to allow the “Inhabitants whereof ” to serve on the jury. E. 

Coke, 1 Institutes of the Laws of England § 193, p. 125. History reveals 

that the common-law vicinage right was highly prized by the founding 

generation, and this right undoubtedly inspired the Venue and Vicinage 

Clauses in the Constitution. Although the Clauses as adopted depart 

in some respects from the common law—most notably by providing new 

specifcations about the place where a crime may be tried—there is no 

meaningful evidence to support Smith's contention that the Constitution 
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238 SMITH v. UNITED STATES 

Syllabus 

altered the remedy prescribed by common law for violations of the vicinage right. 

By the time of the founding, compelling evidence supported the conclusion that pleas of prior acquittal or conviction could not be grounded 

on a verdict issued in or returned by a jury from the wrong vicinage. 

See Arundel's Case, 6 Co. Rep. 14a, 77 Eng. Rep. 273. Judicial decisions 

and prominent treatises of the time and since refect no common-law 

principle at the founding that precluded retrial following a trial in an 

improper venue or before an improper jury. Indeed, this Court embraced the retrial rule for a venue error in United States v. Jackalow, 

1 Black 484, and this decision did not break new ground. The Court 

has found—and Smith points to—no decision barring retrial based on 

a successful venue or vicinage objection in either the centuries of common law predating the founding or in the early years of practice following ratifcation. This absence alone is considerable evidence that 

the clauses do not bar retrial of their own force. See, e. g., Gamble v. 

United States, 587 U. S. –––, –––. Moreover, courts affrmatively allowed retrial following trials in an improper venue or before improperly 

constituted juries. This leaves no reason to doubt that the retrial rule 

applies here. Pp. 245–252. 

(b) The Court rejects Smith's argument that the Double Jeopardy 

Clause is implicated by retrial in a proper venue. A judicial decision 

on venue is fundamentally different from a jury's general verdict of acquittal. When a jury returns a general verdict of not guilty, its decision 

“cannot be upset by speculation or inquiry into such matters” by courts. 

Dunn v. United States, 284 U. S. 390, 393–394. And because it is impossible for courts to be certain about the ground for the verdict without 

improperly delving into jury deliberations, the basis for the jury's verdict cannot be a ground for setting aside an acquittal. General verdicts 

of acquittal are thus consistent with the general rule that “[c]ulpability 

. . . is the touchstone” for determining whether retrial is permitted 

under the Double Jeopardy Clause. Evans v. Michigan, 568 U. S. 313, 

324. Under that rule, when a trial terminates with a fnding that the 

defendant's “criminal culpability had not been established,” retrial is 

prohibited. Burks v. United States, 437 U. S. 1, 10. Conversely, retrial 

is permissible when a trial terminates “on a basis unrelated to factual 

guilt or innocence of the offense of which [the defendant] is accused,” 

United States v. Scott, 437 U. S. 82, 99, e. g., juror deadlock, see Blueford 

v. Arkansas, 566 U. S. 599, 610. Similarly, the reversal of a conviction 

based on a violation of the Venue or Vicinage Clauses, even when styled 

as a “judgment of acquittal” under Rule 29, plainly does not resolve “the 

bottom-line question of `criminal culpability.' ” Evans, 568 U. S., at 324, 

n. 6. In this case, then, the Eleventh Circuit's decision that venue was 
Cite as: 599 U. S. 236 (2023) 239 

Opinion of the Court 

improper did not adjudicate Smith's culpability, and thus does not trigger the Double Jeopardy Clause. Pp. 252–254. 

22 F. 4th 1236, affrmed. 

Alito, J., delivered the opinion for a unanimous Court. 

Samir Deger-Sen argued the cause for petitioner. With 

him on the briefs were Peter Trombly, Margaret A. Upshaw, 

Brent T. Murphy, and Marissa Marandola. 

Sopan Joshi argued the cause for the United States. 

With him on the brief were Solicitor General Prelogar, Assistant Attorney General Polite, and Deputy Solicitor General Feigin.* 

Justice Alito delivered the opinion of the Court. 

When a conviction is reversed because of a trial error, this 

Court has long allowed retrial in nearly all circumstances. 

We consider in this case whether the Constitution requires 

a different outcome when a conviction is reversed because 

the prosecution occurred in the wrong venue and before a 

jury drawn from the wrong location. We hold that it does 

not. 

I 

Timothy Smith is a software engineer and avid angler 

from Mobile, Alabama, who spends much of his time fshing, 

sailing, and diving in the Gulf of Mexico. In 2018, he discovered StrikeLines, a company that uses sonar equipment to 

identify private, artifcial reefs that individuals construct to 

attract fsh. StrikeLines sells the geographic coordinates of 

those reefs to interested parties. This business model irri-

*Briefs of amici curiae urging reversal were fled for the National Association of Criminal Defense Lawyers by Jeffrey T. Green, Meredith R. 

Aska McBride, David Oscar Markus, and Xiao Wang; for The Rutherford 

Institute et al. by Michael Li-Ming Wong, Vladimir J. Semendyai, John 

W. Whitehead, Clark M. Neily III, Jay R. Schweikert, Emily Hughes, and 

H. Louis Sirkin; and for Drew L. Kershen et al. by Sally L. Pei, Kolya 

D. Glick, and Kirk Jenkins. 

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tated Smith, who believed that StrikeLines was unfairly 

profting from the work of private reef builders. 

Smith used a web application to obtain tranches of coordinates from the company's website surreptitiously. He then 

announced on a social-media website that he had StrikeLines' data and invited readers to message him and “ `see 

what ree[f]' ” coordinates StrikeLines had discovered. 22 F. 

4th 1236, 1239 (CA11 2022) (case below). When contacted 

by StrikeLines, Smith offered to remove his social-media 

posts and fx the company's security issues in exchange for 

“ `one thing' ”: the coordinates of certain “ `deep grouper 

spots' ” that he had apparently been unable to obtain from 

the website. Ibid. The ensuing negotiations over grouper 

coordinates eventually failed, leading StrikeLines to contact 

law-enforcement authorities. 

Smith was indicted in the Northern District of Florida for, 

among other charges, theft of trade secrets. See 18 U. S. C. 

§ 1832(a)(1). Before trial, he moved to dismiss the indictment for lack of venue, citing the Constitution's Venue 

Clause, Art. III, § 2, cl. 3, and its Vicinage Clause, Amdt. 6. 

He argued that trial in the Northern District of Florida was 

improper because he had accessed the data from Mobile (in 

the Southern District of Alabama) and the servers storing 

StrikeLines' coordinates were located in Orlando (in the Middle District of Florida). The District Court concluded that 

the jury needed to resolve factual disputes related to venue, 

and it therefore denied the motion to dismiss without prejudice. After the jury returned a verdict of guilty under 

§ 1832(a)(1), Smith moved for a judgment of acquittal based 

on improper venue. See Fed. Rule Crim. Proc. 29. The 

District Court denied the motion, reasoning that StrikeLines 

felt the effects of the crime at its headquarters in the Northern District of Florida. 

On appeal, the Eleventh Circuit held that venue was improper on the trade secrets charge, but it disagreed with 

Smith that this error barred reprosecution. It concluded 

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that the “remedy for improper venue is vacatur of the conviction, not acquittal or dismissal with prejudice,” and that the 

“Double Jeopardy [C]lause is not implicated by a retrial in a 

proper venue.” 22 F. 4th, at 1244. 

We granted certiorari to determine whether the Constitution permits the retrial of a defendant following a trial in an 

improper venue and before a jury drawn from the wrong 

district. 598 U. S. ––– (2022).1 

II 

A 

Except as prohibited by the Double Jeopardy Clause, it 

“has long been the rule that when a defendant obtains a reversal of a prior, unsatisfed conviction, he may be retried in 

the normal course of events.” United States v. Ewell, 383 

U. S. 116, 121 (1966); accord, Bravo-Fernandez v. United 

States, 580 U. S. 5, 18–19 (2016). Remedies for constitutional violations in criminal trials, we have explained, 

“should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on 

competing interests.” United States v. Morrison, 449 U. S. 

361, 364 (1981). When a conviction is obtained in a proceeding marred by harmful trial error, “the accused has a strong 

interest in obtaining a fair readjudication of his guilt,” and 

society “maintains a valid concern for insuring that the 

guilty are punished.” Burks v. United States, 437 U. S. 1, 

15 (1978). Therefore, the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the 

1 The Government did not cross-appeal the Eleventh Circuit's decision 

that venue for trade secrets theft was improper in the Northern District 

of Florida. We thus express no opinion on that issue. See, e. g., Burks 

v. United States, 437 U. S. 1, 5 (1978). We likewise do not resolve whether 

venue on that charge would be proper in the Middle District of Florida, a 

question that the Eleventh Circuit declined to address. See Cutter v. 

Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not 

of frst view”). 

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award of a retrial, not a judgment barring reprosecution. 

See, e. g., Morrison, 449 U. S., at 363, 365–367; United States 

v. Blue, 384 U. S. 251, 254–255 (1966).2 

We have recognized one exception to this general rule: violations of the Speedy Trial Clause, which we have described 

as “generically different” from “any” other criminal right in 

the Constitution, Barker v. Wingo, 407 U. S. 514, 519 (1972), 

preclude retrial. In all other circumstances, we have found 

that retrial is the strongest appropriate remedy, and we have 

applied this rule to every other Clause of the Sixth Amendment except for the Vicinage Clause (which we now address 

along with the Venue Clause).3 

B 

Against this backdrop, we are asked to consider whether 

violations of the Venue and Vicinage Clauses are exceptions 

to the retrial rule. Text and precedent provide no basis for 

that result. 

We start with the Venue Clause, which concerns the place 

where a trial must be held. That Clause mandates that the 

“Trial of all Crimes . . . shall be held in the State where the 

2 In some circumstances, a constitutional violation may not require retrial. See, e. g., Waller v. Georgia, 467 U. S. 39, 49–50 (1984). 3 See, e. g., Weaver v. Massachusetts, 582 U. S. 286, 305 (2017) (Counsel 

Clause); Waller, 467 U. S., at 49–50 (Public Trial Clause); Ramos v. Louisiana, 590 U. S. –––, ––– – ––– (2020) (Jury Clause); Idaho v. Wright, 497 

U. S. 805, 813, 827 (1990) (Confrontation Clause); Pennsylvania v. Ritchie, 

480 U. S. 39, 56, 58 (1987) (Compulsory Process Clause); Russell v. United 

States, 369 U. S. 749, 761, 764, 770 (1962) (Arraignment Clause); see also, 

e. g., Grunewald v. United States, 353 U. S. 391, 424 (1957) (Self-Incrimination Clause); Russell, 369 U. S., at 761, 769–770 (Grand Jury Clause); Kyles 

v. Whitley, 514 U. S. 419, 421–422 (1995) (Due Process Clause); Hill v. 

Texas, 316 U. S. 400, 406 (1942) (holding that a State may fle a new indictment following the postconviction dismissal of an indictment under the 

Equal Protection Clause); United States v. Morrison, 449 U. S. 361, 364– 

365 (1981) (collecting other decisions). 

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. . . Crimes shall have been committed.” Art. III, § 2, cl. 3.4 

Nothing about the language that frames this requirement 

suggests that a new trial in the proper venue is 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 insuffcient to justify a departure from the general 

retrial rule. Smith primarily argues that the Venue Clause 

aims to prevent the infiction 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 fawed 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 justifed 

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., Ar4 The Venue Clause also includes a necessary exception: the trial for 

crimes “not committed within any State . . . shall be at such Place or 

Places as the Congress may by Law have directed.” Art. III, § 2, cl. 3. 
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mour 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 York 

unless it somehow extended to the State. See, e. g., Travis 

v. United States, 364 U. S. 631, 634–637 (1961) (holding that 

prosecution was proper only in Washington, D. C., rather 

than in the defendant's residence in Colorado); United States 

v. Lombardo, 241 U. S. 73, 76–78 (1916) (holding the same for 

a defendant who resided in Washington State). If avoiding 

hardship to a defendant were a “core purpos[e]” of the Venue 

Clause, Brief for Petitioner 18, such results would be 

inexplicable. 

This disconnect between the State where trial would be 

least burdensome and the State where a crime was committed is exacerbated by the fact that many federal crimes 

occur in multiple States. We have held that a trial may be 

held “ `where any part' ” of a crime “ `can be proved to have 

been done.' ” United States v. Rodriguez-Moreno, 526 U. S. 

275, 281 (1999) (quoting Lombardo, 241 U. S., at 77). As a 

result, the Venue Clause permits a defendant charged with 

conspiracy to be tried in any State in which any coconspirator took any overt act in furtherance of the endeavor, Hyde v. United States, 225 U. S. 347, 365–367 (1912), 

and a defendant charged with illegally shipping goods may 

be tried in any State through which the goods were illegally 

transported, Armour Packing, 209 U. S., at 76–77. In these 

cases, as others, we have repeatedly rejected objections 

based on the “serious hardship in . . . prosecutions in places 

distant from the [defendant's] home.” Id., at 77. 

The Vicinage Clause provides no stronger textual support 

for petitioner's argument. That Clause guarantees “the 

right to . . . an impartial jury of the State and district 
Cite as: 599 U. S. 236 (2023) 245 

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wherein the crime shall have been committed.” Amdt. 6. 

The coverage of this Clause “reinforce[s]” the coverage of 

the Venue Clause because, in protecting the right to a jury 

drawn from the place where a crime occurred, it functionally 

prescribes the place where a trial must be held. RodriguezMoreno, 526 U. S., at 278; Travis, 364 U. S., at 634; see, e. g., 

Palliser, 136 U. S., at 265. But the Vicinage Clause differs 

from the Venue Clause in two ways: it concerns jury composition, not the place where a trial may be held, and it narrows the place where trial is permissible by specifying that 

a jury must be drawn from “the State and district wherein 

the crime shall have been committed.” Amdt. 6 (emphasis 

added). 

Nothing about these differences dictates a remedy that is 

broader than the one awarded when the Venue Clause is violated. The vicinage right is only one aspect of the jury-trial 

rights protected by the Sixth Amendment, and we have repeatedly acknowledged that retrials are the appropriate 

remedy for violations of other jury-trial rights. See, e. g., 

Ramos v. Louisiana, 590 U. S. –––, ––– – ––– (2020) (nonunanimous jury); Pena-Rodriguez v. Colorado, 580 U. S. 206, 

228 (2017) (racially biased jury); Sheppard v. Maxwell, 384 

U. S. 333, 362–363 (1966) (partial jury). Most analogous to 

the case before us, we have recognized that retrial is the 

appropriate remedy when a defendant is tried by a jury that 

does not refect a fair cross-section of the community. See, 

e. g., Glasser v. United States, 315 U. S. 60, 85–87 (1942). 

There is no reason to conclude that trial before a jury drawn 

from the wrong geographic area demands a different remedy 

than trial before a jury drawn inadequately from within the 

community. 

C 

Failing to demonstrate that he is entitled to an acquittal 

based on text or precedent, Smith appeals to the historical 

background of the Venue and Vicinage Clauses. The history 

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246 SMITH v. UNITED STATES 

Opinion of the Court 

underlying the Clauses cannot justify an exception to the 

retrial rule. 

1 

In examining this history, the relevant starting point, as 

both parties agree, is the common-law “vicinage” right, 

which presumptively entitled defendants to a jury of the 

“neighbourhood” where the crime was allegedly committed. 

4 W. Blackstone, Commentaries on the Laws of England 344 

(1769) (Blackstone). As a practical matter, this right imposed a venue requirement: trials needed to be held at the 

location where “the matter of fact issuable” allegedly occurred to allow the “Inhabitants whereof” to serve on the 

jury. 1 E. Coke, Institutes of the Laws of England § 193, at 

125 (1628) (Coke).5 

Both of these requirements were well settled by the founding. See, e. g., Rex v. Harris, 3 Burr. 1330, 1334, 97 Eng. 

Rep. 858, 860 (K. B. 1762) (Wilmot, J.) (opining that there 

was “no rule better established” than “ `that all causes shall 

be tried in the county, and by the neighbourhood of the place, 

where the fact is committed' ”). Smith contends, however, 

that the Constitution not only incorporated this right but 

“elevated” it “to an even higher stature in American law,” 

and that this enhanced right favors his preferred remedy. 

Brief for Petitioner 21. The historical record, however, does 

not support this argument. 

There is no question that the founding generation enthusiastically embraced the vicinage right and wielded it “as a 

political argument of the Revolution.” 6 Prior to the Revolution, Parliament enacted measures to circumvent local 

trials before colonial juries, most notably by authorizing 

5 See W. Blume, The Place of Trial in Criminal Cases, 43 Mich. L. Rev. 

59, 61 (1944) (Blume); D. Kershen, Vicinage, 29 Okla. L. Rev. 801, 811–812, 

830–831 (1976). 6 F. Heller, The Sixth Amendment to the Constitution of the United 

States 95 (1951) (Heller); see Blume 65–66; J. Reid, Constitutional History 

of the American Revolution: The Authority of Rights 53–55 (1986). 

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Opinion of the Court 

trials in England for both British soldiers charged with 

murdering colonists and colonists accused of treason.7 The 

Continental Congress and colonial legislatures forcefully objected to trials in England before loyalist juries, characterizing the practice as an affront to the existing “common law of 

England, and more especially to the great and inestimable 

privilege of being tried by . . . peers of the vicinage.” 8 The 

Declaration of Independence also denounced these laws, 

under which, it said, British soldiers were “protect[ed] . . . 

by a mock Trial” and colonists were “transport[ed] . . . beyond Seas to be tried for pretended offences.” 9 As States 

declared independence, most incorporated some form of a 

venue or vicinage clause in their governing documents, and 

none of these provisions specifed a particular remedy for 

violations.10 

7 See 14 Geo. 3, c. 39 (1774); Proceedings in Both Houses Respecting the 

Discontents in America, Feb. 8, 1769, in 16 Parliamentary History of England From the Earliest Period to the Year 1803, at 510–511 (T. Hansard 

ed. 1813) (approving the use of the Treason Act of 1543, 35 Hen. 8, c. 2). 8 Declaration and Resolves of the First Continental Congress, Oct. 14, 

1774, in 1 Journals of the Continental Congress, 1774–1789, at 69 (W. Ford. 

ed. 1904); accord, e. g., Virginia Resolves, May 16, 1769, Journals of the 

House of Burgesses of Virginia, 1766–1769, at 214 (J. Kennedy ed. 1906); 

Resolutions of July 7, 1769, in 45 Journals of the House of Representatives 

of Massachusetts 59–60 (1976); Resolutions of Aug. 27, 1774, in 9 Colonial 

Records of North Carolina 1045 (W. Saunders ed. 1890); see also J. Reid, 

Constitutional History of the American Revolution: The Authority To Legislate 281–286 (1991). 9 Declaration of Independence ¶¶17, 21; see E. Dumbauld, The Declaration of Independence 133–137 (1950). 10 See Del. Decl. of Rights § 13 (1776), in 1 B. Schwartz, The Bill of 

Rights: A Documentary History 278 (1971); Del. Const., Art. 30 (1776), in 

1 Federal and State Constitutions 568 (F. Thorpe ed. 1909) (Thorpe); Md. 

Const., Decl. of Rights, Art. XVIII (1776), in 3 id., at 1688; Pa. Const., 

Decl. of Rights, Art. IX (1776), in 5 id., at 3083; Va. Const., Bill of Rights 

§ 8 (1776), in 7 id., at 3813; S. C. Const., Art. XVIII (1776), in 6 id., at 3246; 

Ga. Const., Art. XXXIX (1777), in 2 id., at 783; Mass. Const., Decl. of 

Rights, Art. XIII (1780), in 3 id., at 1891; N. H. Const., Bill of Rights, Art. 

XVII (1784), in 4 id., at 2455–2456; N. Y. Bill of Rights ¶3 (1787), in The 
248 SMITH v. UNITED STATES 

Opinion of the Court 

The common-law vicinage right, both as a jury requirement and as a proxy for venue, remained prominent during 

debates over the ratifcation of the Constitution. As originally proposed, the Constitution contained only the Venue 

Clause, which, as noted, says nothing about jury composition. 

Appealing to “ancient common law,” Anti-Federalists objected to this omission.11 Federalists responded that Congress could secure the vicinage right by statute, analogizing 

to common law, where “the preservation of this right [was] 

in the hands of Parliament.” 12 

After the ratifcation of the Constitution, Congress yielded 

in part to the Anti-Federalists' argument and included a vicinage right in the Sixth Amendment. James Madison's initial draft of the Amendment required a jury “of the vicinage,” 1 Annals of Cong. 435 (1789), but Congress amended 

that language so that it guaranteed a jury from the State of 

the crime and from any smaller judicial districts that Congress chose to create.13 

This history tells us two important things about the way 

in which the Constitution dealt with the common-law vicinage right. First, the right was highly prized by the founding generation, and this right undoubtedly inspired the 

Venue and Vicinage Clauses. Second, although the Clauses 

Complete Bill of Rights 410 (N. Cogan ed. 1997); see also N. C. Const., 

Decl. of Rights, Art. IX (1776), in 5 Thorpe 2787 (preserving the jury right 

“as heretofore used”). 11 3 Debates on the Constitution 446–447 (J. Elliot ed. 1836) (Elliot's Debates) (P. Henry); see, e. g., 1 id., at 504 (R. Lee); 2 id., at 109–110 (A. 

Holmes); id., at 400 (T. Tredwell); 3 id., at 568–569 (W. Grayson); 4 id., at 

150, 211 (J. M'Dowall); Federal Farmer No. 4 (1787), in 2 The Complete 

Anti-Federalist 249 (H. Storing ed. 1981) (Storing); see also, e. g., 4 Elliot's 

Debates 154–155 (S. Spencer); Agrippa No. 5 (1787), in 4 Storing 78–79. 12 3 Elliot's Debates 558 (J. Marshall); see also, e. g., id., at 537 (J. Madison); id., at 451 (G. Nicholas); id., at 520–521 (E. Pendleton); 4 id., at 147– 

148 (J. Iredell); id., at 175–176 (A. Maclaine). 13 See Heller 93; E. Kaufman, Territoriality in American Criminal Law, 

121 Mich. L. Rev. 353, 366–367 (2022). 

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Opinion of the Court 

depart in some respects from the common law—most notably 

by providing new specifcations about the place where a 

crime may be tried—there is no meaningful evidence that 

the Constitution altered the remedy prescribed by common 

law for violations of the vicinage right. 

2 

With this background in mind, we examine the remedy at 

common law for an initial trial in the wrong venue or before 

a jury drawn from the wrong vicinage, and we fnd that this 

history does not demand a departure from the retrial rule. 

By the time of the founding, compelling evidence supported 

the conclusion that pleas of prior acquittal or conviction 

could not be grounded on a verdict issued in or returned by 

a jury from the wrong vicinage. 

The leading decision at common law was Arundel's Case, 

6 Co. Rep. 14a, 77 Eng. Rep. 273 (K. B. 1593), which concerned a vicinage challenge to a jury that had found the defendant guilty of murder. Id., at 14a–14b, 77 Eng. Rep., at 

274. The King's Bench arrested judgment on the conviction 

because the jury was insuffciently local, but it did not bar 

retrial. Ibid. Instead, “a new venire facias [was] awarded 

to try the issue again.” Ibid.; see also Vaux's Case, 4 Co. Rep. 

44a, 45a, 76 Eng. Rep. 992, 994 (K. B. 1591) (adopting a similar rationale for insuffcient indictments). Discussing Arundel's Case at length, Sir Edward Coke's 17th-century treatise 

agreed that juries lacked authority to convict outside of their 

vicinage and added that a verdict by an improperly constituted jury would cause a “mistryall.” 1 Coke § 193, at 125; 

see also 3 id., at 137 (1644); Rex v. Fenwicke, 1 Keble 546, 83 

Eng. Rep. 1104 (K. B. 1662) (recognizing the availability of 

retrial “for misawarding of venue”); Rex v. Talbot, Cro. Car. 

311, 312, 79 Eng. Rep. 871, 872 (K. B. 1633) (awarding a new 

jury venire to remedy a vicinage error). 

Arundel's remedy remained unchanged throughout the 

18th century. Because “indictments are local,” one promiPage Proof Pending Publication
250 SMITH v. UNITED STATES 

Opinion of the Court 

nent treatise explained, a prior acquittal on an indictment 

“laid in an improper county” would not “bar . . . a subsequent 

indictment in the proper county.” 2 W. Hawkins, Pleas of 

the Crown 526 (6th ed. 1788). Hale and Blackstone reached 

similar conclusions. See 2 M. Hale, History of the Pleas of 

the Crown 245 (1736) (concluding that a second prosecution 

was available for indictments in different counties because 

courts “can only inquire touching a felony” in their own 

county); 4 Blackstone 368–369 (explaining that a defendant 

“may be indicted again” when a judgment of conviction is 

arrested for failure to adequately identify “the place” of 

the crime in the indictment); see also, e. g., Rex v. Huggins, 

2 Ld. Raym. 1574, 1585, 92 Eng. Rep. 518, 525 (K. B. 1730) 

(approvingly citing the remedy in Arundel's Case). In sum, 

no common-law principle at the founding precluded retrial 

following a trial in an improper venue or before an improper jury. 

Early American practice provides further confrmation 

that violations of the Venue and Vicinage Clauses do not exempt defendants from retrial. Cf. Ramos, 590 U. S., at –––; 

District of Columbia v. Heller, 554 U. S. 570, 605 (2008); 

Crawford v. Washington, 541 U. S. 36, 49–50 (2004). Perhaps most relevant here, this Court embraced the retrial 

rule for a venue error in United States v. Jackalow, 1 Black 

484 (1862). In that case, the defendant had been convicted 

in New Jersey for a crime committed on a ship located off 

the coast of New York and Connecticut. Because the crime 

occurred outside of New Jersey, trial in that State was 

proper under the Venue and Vicinage Clauses only if the 

crime was committed outside the limits of any State. See 

supra, at 243, n. 4. And because the jury's special verdict 

on the issue of venue did not establish that fact, the Court 

directed the lower court “to set aside the special verdict, and 

grant a new trial.” Jackalow, 1 Black, at 488. 

This decision did not break new ground. Decades earlier, 

Justice Story had concluded that “there are cases where 

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there may be a new trial; as in cases of a mistrial by an 

improper jury,” United States v. Gibert, 25 F. Cas. 1287, 1302 

(No. 15,204) (CC Mass. 1834) (citing Arundel's Case), and Justice Iredell had found it “unnecessary” to consider a vicinage 

objection because a new trial was warranted on other 

grounds, United States v. Fries, 3 Dall. 515, 518 (CC Pa. 

1799). Other federal decisions ordered retrials for venue violations, see United States v. Plympton, 27 F. Cas. 578 (No. 

16,057) (CC DC 1833), or otherwise accepted that a retrial 

would be suffcient to cure such an error, see, e. g., United 

States v. Keen, 26 F. Cas. 686, 690 (No. 15,510) (CC Ind. 1839) 

(“It is laid down in all the authorities, that if the court have 

not jurisdiction . . . or the jury have not been legally summoned, the defendant, though tried, cannot be considered as 

having been in jeopardy”). State courts had likewise begun 

reaching similar conclusions, notwithstanding the existence 

of venue and vicinage clauses in their State Constitutions.14 

Given these developments, it is not surprising that American 

treatises from this period agreed with their English counterparts regarding the availability of retrial.15 

Far from justifying an exemption from the retrial rule, the 

historical background of the Venue and Vicinage Clauses 

supports the opposite inference. We have found—and 

Smith points to—no decision barring retrial based on a successful venue or vicinage objection in either the centuries of 

common law predating the founding or in the early years of 

practice following ratifcation. This absence alone is considerable evidence that the Clauses do not bar retrial of their 

14 See, e. g., Commonwealth v. Call, 38 Mass. 509, 514–515 (1839); State 

v. George, 8 La. 535, 539–540 (1844); Methard v. State, 19 Ohio St. 363, 

367 (1869). 15 See, e. g., F. Wharton, Criminal Law 139 (1846) (“An acquittal upon an 

indictment in a wrong county, cannot be pleaded to a subsequent indictment for the offence in another county”); 1 J. Chitty, Criminal Law 309 

(Am. ed. 1819) (similar); 1 W. Russell & C. Greaves, Crimes and Misdemeanors 835 (5th Am. ed. 1845) (similar); 2 M. Hale, The History of the 

Pleas of the Crown 255, n. 1 (1st Am. ed. 1847) (similar). 

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own force. See, e. g., Gamble v. United States, 587 U. S. 

–––, ––– (2019). Moreover, courts affrmatively allowed retrial following trials in an improper venue or before improperly constituted juries. All told, we have no reason to doubt 

that the retrial rule applies.16 

III 

Smith argues that even if the Venue and Vicinage Clauses 

do not bar retrial of their own force, they are “inseparably 

interwoven” with the Double Jeopardy Clause, which, he 

claims, precludes retrial here. Tr. of Oral Arg. 23; see Brief 

for Petitioner 38–39, 44. Smith starts from the premise that 

juries in criminal trials often resolve factual disputes related 

to venue and, thus, can acquit defendants if venue is absent. 

And because a jury's general verdict of acquittal categorically precludes retrial for the same offense under the Double 

Jeopardy Clause, Smith contends that a judicial ruling that 

venue was improper on a motion to acquit should have the 

same result. The Eleventh Circuit rejected this argument 

and held that the Double Jeopardy Clause “is not implicated 

by a retrial in a proper venue.” 22 F. 4th, at 1244. We 

agree. 

A judicial decision on venue is fundamentally different 

from a jury's general verdict of acquittal. When a jury returns a general verdict of not guilty, its decision “cannot be 

upset by speculation or inquiry into such matters” by courts. 

Dunn v. United States, 284 U. S. 390, 393–394 (1932); see 

United States v. Powell, 469 U. S. 57, 66–67 (1984). To conclude otherwise would impermissibly authorize judges to 

usurp the jury right. See ibid.; cf. United States v. Martin 

Linen Supply Co., 430 U. S. 564, 572–573 (1977). And because it is impossible for a court to be certain about the 

16 Because the evidence is uniformly consistent with the retrial rule, we 

need not determine the proper weight to give to this postratifcation history. See New York State Rife & Pistol Assn., Inc. v. Bruen, 597 U. S. 

–––, ––– – ––– (2022) (Barrett, J., concurring). 

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Opinion of the Court 

ground for the verdict without improperly delving into the 

jurors' deliberations, the jury holds an “ `unreviewable power 

. . . to return a verdict of not guilty' ” even “ `for impermissible reasons.' ” Powell, 469 U. S., at 63, 66–67; see Dunn, 284 

U. S., at 393–394. 

This rationale is consistent with the general rule that 

“[c]ulpability . . . is the touchstone” for determining whether 

retrial is permitted under the Double Jeopardy Clause. 

Evans v. Michigan, 568 U. S. 313, 324 (2013). When a trial 

terminates with a fnding that the defendant's “criminal culpability had not been established,” retrial is prohibited. 

Burks, 437 U. S., at 10. This typically occurs with “ `a resolution, correct or not, of some or all of the factual elements 

of the offense charged.' ” Smith v. Massachusetts, 543 U. S. 

462, 468 (2005); see, e. g., Martin Linen, 430 U. S., at 572. 

But it also extends to “essentially factual defense[s]” that 

negate culpability by “provid[ing] a legally adequate justifcation for otherwise criminal acts.” United States v. Scott, 

437 U. S. 82, 97–98 (1978); see Burks, 437 U. S., at 5, 10 (insanity defense). 

Conversely, retrial is permissible when a trial terminates 

“on a basis unrelated to factual guilt or innocence of the offense of which [the defendant] is accused.” Scott, 437 U. S., 

at 99. For example, the Double Jeopardy Clause is not triggered when a trial ends in juror deadlock, see Blueford v. 

Arkansas, 566 U. S. 599, 610 (2012), or with a judgment 

dismissing charges because of a procedural issue like preindictment delay, see Scott, 437 U. S., at 84. In these circumstances, the termination of proceedings is perfectly 

consistent with the possibility that the defendant is guilty of 

the charged offense. 

The reversal of a conviction based on a violation of the 

Venue or Vicinage Clauses, even when styled as a “judgment 

of acquittal” under Rule 29, plainly does not resolve “the 

bottom-line question of `criminal culpability.' ” Evans, 568 

U. S., at 324, n. 6; see also Martin Linen, 430 U. S., at 571 
254 SMITH v. UNITED STATES 

Opinion of the Court 

(“[W]hat constitutes an `acquittal' is not to be controlled by 

the form of the judge's action”). Instead, such a reversal 

is quintessentially a decision that “the Government's case 

against [the defendant] must fail even though it might satisfy 

the trier of fact that he was guilty beyond a reasonable 

doubt.” Scott, 437 U. S., at 96. In this case, then, the Eleventh Circuit's decision that venue in the Northern District 

of Florida was improper did not adjudicate Smith's culpability. It thus does not trigger the Double Jeopardy Clause. 

* * * 

For these reasons, the judgment of the Court of Appeals 

for the Eleventh Circuit is affrmed. 

It is so ordered. 

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Reporter’s Note 

The attached opinion has been revised to refect the usual publication 

and citation style of the United States Reports. The revised pagination 

makes available the offcial United States Reports citation in advance of 

publication. The syllabus has been prepared by the Reporter of Decisions 

for the convenience of the reader and constitutes no part of the opinion of 

the Court. A list of counsel who argued or fled briefs in this case, and 

who were members of the bar of this Court at the time this case was 

argued, has been inserted following the syllabus. Other revisions may 

include adjustments to formatting, captions, citation form, and any errant 

punctuation. The following additional edits were made: 

p. 247, line 11, “the” is deleted 

p. 247, line 14, “but” is changed to “and”