The Supreme Court on Thursday ruled in Abouammo v. United States that federal prosecutors can try a defendant only in the district where his crime was committed, not where its “contemplated effects” were felt. Specifically, in a unanimous decision by Justice Elena Kagan, the justices rejected a federal appeals court’s conclusion that the intent requirement in 18 U.S.C. § 1519 – which criminalizes falsifying documents in a federal investigation – allows the government to prosecute the defendant where such an investigation is located.
Ahmad Abouammo was convicted of violating Section 1519 by creating a fake invoice on his computer in Seattle and emailing it to FBI agents. From 2013 to 2015, Abouammo worked at Twitter’s San Francisco headquarters, where his role gave him access to a tool that could pull users’ private, identifying data. Prosecutors said he used that access to find information about Saudi dissidents and pass it along to a high-level official in the Saudi royal court. In return, Abouammo received a luxury watch along with three wire transfers of $100,000 each as “consulting” income. A humanitarian worker for the Red Cross who tweeted satire “critical of the Saudi government” had his information disclosed and was apparently “detained in Saudi Arabia due to the Twitter account, held in solitary confinement, and tortured,” before disappearing.
Abouammo left Twitter in 2015 and moved to Seattle, working as a freelance social media consultant. Around the same time, the FBI’s San Francisco field office “opened an investigation into Twitter employees’ potential unauthorized accessing of Twitter information,” and two FBI agents subsequently flew from their Palo Alto satellite office to Seattle to interview Abouammo. After a few hours speaking to him, the agents asked Abouammo whether he had documentation showing the money he had received from his Saudi contacts was legitimate consulting income. Abouammo excused himself, went upstairs, and, according to later-recovered metadata, spent that time fabricating a backdated $100,000 invoice from his consulting company. He then emailed it to the agents sitting downstairs.
The government prosecuted Abouammo in San Francisco, where the FBI investigation was based, rather than in Seattle where he created the document. Abouammo attempted to dismiss the charge for improper venue, arguing Section 1519’s language made the crime complete when he finished falsifying the document, which occurred in Seattle.
In a unanimous nine-page opinion, Kagan agreed.
Kagan began by discussing the historical purpose of the venue clause. The Declaration of Independence, Kagan wrote, listed Parliament’s practice of “transporting us beyond Seas to be tried for pretended offences” among its grievances. Kagan noted that the Constitution protects the venue right two times over: Article III instructs that “Trial of all Crimes” shall “be held in the State where the said Crimes shall have been committed,” and the Sixth Amendment reinforces that guarantee, giving defendants the right to a jury “of the State and district wherein the crime shall have been committed.” To implement that constitutional rule, Kagan continued, courts generally determine the location of a crime’s “essential conduct elements,” or the things a defendant must actually do to violate the statute.
For Section 1519, the “essential conduct elements” occurred in Seattle, according to Kagan. Specifically, the statute imposes liability on a person who knowingly “falsifies” a “record [or] document” “with the intent to impede [or] obstruct” a federal investigation. “The only prohibited act in that statute is the falsification of a document,” Kagan wrote. “Once a person has committed that act (with the requisite intent), he need do nothing more to violate the law.” In other words, the defendant does not need to transmit the document to anyone nor use it in any particular way – because the only proscribed conduct is falsification, venue must be where falsification occurred.
Kagan then addressed the central holding from the U.S. Court of Appeals for the 9th Circuit, which had concluded that Section 1519’s intent requirement, or the demand that the falsification be done “with the intent” to obstruct, made the “contemplated effects” of the falsification part of the offense’s essential conduct, therefore permitting the trial to be held in San Francisco, where the targeted investigation was based. Kagan rejected that approach, writing that “[t]his Court has never looked to a statute’s mens rea [intent] elements in considering venue. Nor would it make much sense to do so.” Thus, a falsification done with intent to obstruct an investigation “occurs wherever the falsification does—which here was in Abouammo’s Seattle home.”
As Kagan summarized: “[W]hatever obstructive effects Abouammo’s false invoice may have had in northern California, they were not elements of his crime. And because that is so, those effects cannot figure in determining where Abouammo’s ‘crime [was] committed.’”
The government’s remaining theory, that Section 1519 should be treated as an “inchoate offense,” or as a step toward another crime, fared no better. Kagan responded to the government’s analogy to conspiracy charges, which can be brought “wherever an overt act furthering the conspiracy has taken place, even when only a criminal agreement—and not those overt acts—is required to prove the conspiracy charged,” meaning, on the government’s theory, Abouammo’s transmission of the fake invoice to San Francisco would then allow for venue there. “The fundamental problem with that theory,” Kagan wrote, “is that §1519 is an independent crime, not an inchoate offense.” As such, Section 1519 “spells out a standalone crime for falsifying (and otherwise tampering with) documents” and “venue for it must be based on the conduct that §1519 itself proscribes, not on the conduct another law does.”
The court described its holding as “‘discrete’ and narrow, as our venue decisions usually are.” “The trial for falsifying a document,” Kagan concluded, “must take place where the defendant falsified the document. Here that was in Seattle—meaning in venue terms, the Western District of Washington. The trial should not have occurred in the Northern District of California because no ‘conduct constituting the offense’ happened in that location.”
The case is the latest in a series of criminal law decisions favoring defendants over the last two terms. Although this may surprise some, it is not unusual when the court sees a statute’s text and history as on the defendant’s side.
