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On The Front Lines

Supreme Court Paves the Way for the Government to Circumvent Double Jeopardy Clause, Prosecute Individuals Twice for the Same Crime


Smith v. United States

WASHINGTON, D.C. — A unanimous Supreme Court has refused to rein in the government’s power to indiscriminately pick and choose the laws by which it will abide, especially as it relates to the rights of the accused in criminal cases.

In a ruling that defies the very safeguards put in place by America’s founders to guard against prosecutorial misconduct, the Court held in Smith v. United States that a defendant who faced trial in the wrong location can simply be prosecuted again in another location without triggering the Double Jeopardy Clause, which prohibits the government from prosecuting someone twice for the same crime. In weighing in before the Supreme Court, a legal coalition made up of The Rutherford Institute, Cato Institute, and the National Association for Public Defense had warned that failing to hold the government accountable for filing criminal charges in improper locations could give rise to a situation in which the government is effectively allowed to circumvent Double Jeopardy protections by perpetually retrying an accused in one unfair district after another.

“The Fifth and Sixth Amendments are supposed to serve as an antidote to the abuses of the American police state,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “People have a constitutional right to not be prosecuted twice for the same crime, and when and if they are accused of a crime, they have a right to know what they’re being charged with and are given the opportunity to have a fair, speedy and public trial, an impartial jury, the right to a lawyer, and the chance to confront and question their accusers.”

Although Timothy Smith was convicted for theft of trade secrets due to acts he committed while in Alabama involving computer servers located in the Middle District of Florida, he was charged and tried in the Northern District of Florida. Prior to trial, Smith moved to dismiss the charge for being brought in the wrong district in violation of the Constitution’s Venue Clause in Section 2 of Article III and the Sixth Amendment. Smith’s motion was denied and he was tried by a jury in the Northern District of Florida. After being found guilty, Smith appealed and the Eleventh Circuit Court of Appeals vacated Smith’s conviction because he had been tried in the wrong district, but held that Smith could be subjected to trial again for the same offense in the proper district without implicating the Double Jeopardy Clause.

On appeal to the Supreme Court, attorneys for The Rutherford Institute, Cato Institute, and the National Association for Public Defense argued that the Constitution requires a sufficient consequence to deter the government from selecting an unfair location and jury as the British Crown did by removing colonial defendants overseas to England for trial of charges like treason. While the Supreme Court acknowledged “there is no question that the founding generation enthusiastically embraced the vicinage right [to a jury from the district wherein the crime was committed] and wielded it as a political argument of the Revolution” by denouncing such violations in the Declaration of Independence, the Court nonetheless held that a defendant tried before a jury from the wrong geographic area can be prosecuted again for the same crime.

Michael Li-Ming Wong, Vladimir J. Semendyai, and Philip Hammersley of Gibson, Dunn & Crutcher LLP helped to advance the arguments in the Smith v. United States amicus briefs.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Case History

August 25, 2022 • Rutherford Institute Challenges Government Efforts To Undermine Sixth Amendment Rights 

November 23, 2022 • Supreme Court Allows Government to Disregard Right to Twelve-Person Jury Trial 

December 14, 2022 • Supreme Court Agrees to Hear Case Challenging Government Efforts to Undermine Sixth Amendment Rights


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