SCOTUS may not be the most sympathetic to violent criminals, but it has been vigilant in policing abuses by overly creative federal prosecutors.
The current Supreme Court may not be the most sympathetic to violent criminals, but it has been vigilant in policing abuses by overly creative federal prosecutors. Today’s unanimous decision in Abouammo v. United States, in a short opinion by Justice Elena Kagan, is a prime example, and one that could become quite important in politically charged prosecutions in the future.
The question in Abouammo was venue: where a particular crime can be prosecuted and tried. The Founders — who, as Kagan noted, complained in the Declaration of Independence about transporting offenders for trials in England — thought this an important enough topic that the Constitution covers it twice: Under Article III, the “Trial of all Crimes” shall “be held in the State where the said Crimes shall have been committed,” and under the Sixth Amendment, criminal defendants have a right to a jury “of the State and district wherein the crime shall have been committed.”
But where was a crime committed? In the age of the internet, that can often be a thorny issue. Ahmad Abouammo was a former Twitter employee under investigation for taking bribes from the Saudi government for giving them confidential information about Saudi dissidents on the platform. That investigation focused on Abouammo’s conduct while working at Twitter’s offices in San Francisco, and was conducted by the FBI’s San Francisco office. But Abouammo left the company and moved to Seattle. Interviewed there by FBI agents, he lied to them and followed up by emailing fake invoices to the FBI agents. The fake invoices were created in Seattle, sent from Seattle, and related to an interview in Seattle — but they were received in San Francisco and were aimed at misleading an investigation in San Francisco about underlying conduct in San Francisco. Abouammo was indicted in San Francisco. The Court today concluded, however, that his crime (assuming the facts as alleged) was committed in Seattle, not San Francisco.
Abouammo was charged under 18 U. S. C. §1519, the same obstruction statute used in the January 6 cases as well as many big white-collar business and political prosecutions (its reach in January 6 cases was limited by the Court in Fischer v. United States (2024)). That’s why this case could matter a lot in high-profile cases in the future, especially those where political figures would rather be tried in their home jurisdictions instead of where they are under investigation.
As the Court explained, the traditional rule is to look to “the location of the offense’s essential conduct elements,” i.e., “the conduct constituting the offense — the things a defendant must do to violate the statute at issue,” and locate where those “criminal acts” occurred. (Quotations and citations omitted.) In some cases, such as where conduct starts in one district and ends in another, prosecutors can choose among more than one possible venue. But their choices are not unlimited (and, as Kagan observed in a footnote, there are statutes that further restrict venue for particular types of crimes, a subject the Court didn’t address today).
The focus on the defendant’s acts that must be proven to a jury, rather than their consequences, made this an easy case:
As both Abouammo and the Government agree, the crime is complete upon falsification…that fact makes the venue inquiry straightforward. Because the only proscribed conduct is falsification, venue must be where falsification occurred. Here, that means venue must be in the district encompassing Seattle, where Abouammo created the false invoice. It could not be in the Northern District of California, hundreds of miles away. . . .
Section 1519 prohibits only one act: that of falsifying a document. Because the Government need show nothing else, a §1519 offense is relatively easy to prove. But with that ease comes one cost: Because the Government need show nothing else, its venue options are confined. The trial for falsifying a document must take place where the defendant falsified the document. [Citation omitted.]
The government argued that Abouammo’s criminal intent is an element, and he intended that the FBI be deceived in San Francisco. The Court didn’t buy it, noting that Abouammo still formed that intent in Seattle, and that the crime is complete whether or not the FBI is actually deceived. Kagan even reached back for precedent to a 1944 case under the Federal Denture Act, a statute that once criminalizing the mailing of dentures not made by a dentist (your taxpayer dollars at work during wartime!).
There are still other tricks in the prosecutor’s venue bag: In conspiracy cases, due in large part to the need to try the conspirators together, all the members of the conspiracy can be tried wherever an overt act furthering the conspiracy takes place. But as the Court noted, not every crime is a conspiracy, and this one isn’t.