USA v. Andrew Auernheimer

Filing 75

ECF FILER: Letter dated 03/31/2014 , filed pursuant to Rule 28(j) from counsel for Appellee USA. This document will be SENT TO THE MERITS PANEL, if/when applicable. (GJM)

U.S. Department of Justice
United States Attorney
District of New Jersey
Appeals Division
____________________________________________________________________________________________________________________
Glenn J. Moramarco, AUSA
[e-mail]

401 Market Street, 4th Floor
Camden, New Jersey 08101

856-968-4863

March 31, 2014
Marcia M. Waldron, Esq.
Clerk, U.S. Court of Appeals
for the Third Circuit
601 Market Street, Room 21400
Philadelphia, Pa 19106-1790
Re:

United States v. Andrew Auernheimer, Dkt. No. 13-1816
Second Letter Pursuant to Fed.R.App.P. 28(j)
(Oral Argument held March 19, 2014)

Dear Ms. Waldron:
Dismissing an indictment with prejudice, which Auernheimer first sought in
his 28(j) letter, is not the proper remedy for venue error. See United States v.
Hernandez, 189 F.3d 785, 792-93 (9th Cir. 1999) (“We reject the contention by
Hernandez that a judgment of acquittal is the appropriate remedy in the case of
improper venue”); United States v. Brennan, 183 F.3d 139, 149-51 (2d Cir. 1999)
(post-conviction reversal for improper venue; indictment “dismissed without
prejudice” with guidance to consider before undertaking new prosecution “in a
district where venue could properly be laid”); Henry v. Burgess, 799 F.2d 661, 662
(11th Cir. 1986) (no double jeopardy violation to retry a defendant whose
conviction is reversed for improper venue).
Indeed, had the district court dismissed for improper venue during the trial,
the Government still could have retried Auernheimer. United States v. Kaytso, 868
F.2d 1020, 1021 (9th Cir. 1988); Wilkett v. United States, 655 F.2d 1007, 1011-12
(10th Cir. 1981); see United States v. Rosa, 17 F.3d 1531 (2d Cir. 1994) (if
evidence was insufficient on venue, double jeopardy would not prevent retrial
where jury was unable to reach a verdict). It is difficult to understand why, as
Auernheimer belatedly asserts, a conviction by the jury, which was not even asked

to decide venue, should leave him in a better position than would a midtrial judicial
dismissal on venue grounds.
As for venue supposedly not being subject to harmless error review,
Auernheimer continues to disregard the Supreme Court’s pronouncements that
only “‘a very limited class of errors’” can “trigger automatic reversal because they
undermine the fairness of a criminal proceeding as a whole.” United States v.
Davila, 133 S. Ct. 2139, 2149 (2013) (quoting United States v. Marcus, 130 S. Ct.
2159, 2164 (2010) (internal quotation marks omitted)). Improper venue, like the
Rule 11(c)(1) error in Davila, “does not belong in that highly exceptional
category.” 133 S. Ct. at 2149. See also 28 U.S.C. 28 U.S.C. § 2111 (appellate
courts shall disregard errors that do not affect substantial rights).
Respectfully submitted,
PAUL J. FISHMAN
United States Attorney

/s Glenn J. Moramarco
Glenn J. Moramarco
Assistant United States Attorney