USA v. Andrew Auernheimer

Filing 73

ECF FILER: Response filed by Appellant Andrew Auernheimer to Rule 28(j) letter. Certificate of Service dated 03/24/2014. This document will be SENT TO THE MERITS PANEL, if/when applicable. (OSK)

Law Office of Orin S. Kerr, Esq.
2000 H Street, NW
Washington DC 20052
[phone]
March 25, 2014
Marcia M. Waldron, Esq.
Clerk, United States Court Of Appeals For The Third Circuit
601 Market Street
Philadelphia, PA 19106-1790
Re:

United States v. Auernheimer, No. 13-1816
Oral argument held March 19, 2014, before Judges Chagares,
Greenaway and Vanaskie

Ms. Waldron:
Auernheimer hereby responds to the government’s Rule 28(j) letter:
Failure to establish venue is not subject to harmless error review. See Reply Brief
at 28; LaFave, Criminal Procedure 16.1(g) (3d ed. 2012); United States v. Passodelis, 615
F.2d 975, 979 (3d Cir. 1980) (“Reluctant as we are to overturn otherwise valid
convictions,” failure to prove venue “leave us no choice.”). The government cites no
authority that even hints to the contrary. And no wonder: Harmless error doctrine asks
whether an error affected the jury’s verdict, while venue is a constitutional right not to be
tried at all where venue is absent. Further, no one can know if prosecutors elsewhere
would have charged this case, how, with what result, and with what sentence.
The government’s failure to establish venue leaves the court two options: it may
order an acquittal or else vacate the convictions, “as may be just under the
circumstances.” 28 U.S.C. § 2106. See generally Burks v. United States, 437 U.S. 1, 1718 (1978). Acquittal is the routine post-verdict remedy for failure to prove venue. See
United States v. Strain, 407 F.3d 379, 380 (5th Cir. 2005) (per curiam). Acquittal is the
only just remedy here. Auernheimer is presently incarcerated and already has spent over
one year in prison for conduct that is not even a crime. It would be outrageous if another
prosecutor could try the same unwarranted charges elsewhere.
Indeed, if the court holds that venue is improper but that the just remedy is only to
vacate the convictions, the court must nonetheless enter rulings on all valid sufficiency
challenges to ensure that Auernheimer cannot be charged a second time based on
insufficient evidence. See United States v. McKee, 506 F.3d 225, 232 (3d. Cir. 2007)
(reaching the sufficiency issue after already granting a new trial “to avoid a violation of
the Double Jeopardy clause”); United States v. Resko, 3 F.3d 684, 686, 695 n.11 (3d Cir.

1993) (same). The court can avoid deciding the sufficiency of the evidence only by
exercising its discretion under 28 U.S.C. § 2106 to order acquittal for the venue error.
Respectfully submitted,
/s/ Orin S. Kerr
Orin S. Kerr
2000 H Street, N.W.
Washington, DC 20052
Hanni M. Fakhoury
ELECTRONIC FRONTIER
FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Marcia C. Hofmann
LAW OFFICE OF
MARCIA C. HOFMANN
25 Taylor Street
San Francisco, CA 94102
Tor B. Ekeland
Mark H. Jaffe
TOR EKELAND, P.C.
155 Water Street
Brooklyn, NY 11201
Attorneys for Appellant Andrew
Auernheimer