Does Double Jeopardy Forestall Auernheimer’s Retrial?

The news came out last week that Andrew “weev” Auernheimer’s CFAA and identity fraud convictions have been vacated by the U.S. Court of Appeals for the Third Circuit for improper venue.1

Auernheimer had been convicted in the U.S. District Court for the District of New Jersey, but the problem with this, according to the Third Circuit, is that none of the essential elements of the crimes had taken place in New Jersey. Auernheimer and his alleged co-conspirator operated out of Arkansas and California, respectively, and the servers they accessed were located in Texas and Georgia.

After hearing of the Third Circuit’s vacatur on procedural grounds, I immediately wondered whether the government would simply prosecute Auernheimer in the proper venue. Apparently, though, Auernheimer’s lawyers think this would amount to unconstitutional double jeopardy.

As reported by Ars Technica:

The defendant’s attorney, Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said in an e-mail that a “retrial is barred by double jeopardy.” If the authorities do seek a second trial, he said, “we will raise precisely that.”

Auernheimer even mentioned the double jeopardy argument in a tweet:

In case you can’t read it, it says: “I have already forbidden @TorEkelandPC from filing a double jeopardy motion. I will attack the CFAA again.” Tor Ekeland is the law firm that represents Auernheimer. The notion here is that he’d rather not win on a technicality—even though, of course, he’s out of jail and able to tweet because he won on a technicality.

The government has now consented to the dismissal of the indictment against Auernheimer in New Jersey, but the government makes clear that it believes that Auernheimer can still be prosecuted in another district where venue is proper:

Consenting to this dismissal does not preclude the Government from continuing this prosecution in another venue.

So who’s right? I’m certainly no expert on double jeopardy, but I think that the government is correct to assert that it can still prosecute Auernheimer in the proper venue.

As the Supreme Court stated in Burks:

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.2

In other words, if the government fails to produce adequate evidence to prove an element of the crime, then the defendant is acquitted and the government doesn’t get another bite at the apple. But this has nothing to do with a conviction being vacated because of a procedural error.

The Supreme Court in Burks continued:

The principle that [the Double Jeopardy Clause] does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. . . . In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.3

And this is the problem for Auernheimer. His conviction was vacated because the district court had committed “an error in the proceedings leading to conviction,” not because of any “evidentiary insufficiency.”

In fact, the U.S. Court of Appeals for the Eleventh Circuit has rejected the very claim that Auernheimer is making here:

This appeal raises the question of whether it violates the double jeopardy clause to retry a defendant whose criminal conviction was reversed because of improper venue. We hold that reversal because of improper venue is not the same as reversal for insufficient evidence to support a conviction, which would bar a retrial, and that retrial is permitted here. . . . [T]he proper approach to the application of Burks to this case is to determine whether proof of venue goes to the merits of the charge, or is more like the procedural rulings which do not involve double jeopardy.4

The Eleventh Circuit held that proof of venue is procedural in nature and does not go to the merits, thus making double jeopardy inapplicable when reversal is based on improper venue.

The U.S. Court of Appeals for the Tenth Circuit has endorsed a similar view:

Venue is, of course, unlike the substantive facts which bear on guilt or innocence in the case. Venue is wholly neutral; it is a question of procedure, more than anything else, and it does not either prove or disprove the guilt of the accused.5

The Tenth Circuit went on to note that “the Fifth Amendment protects against twice being prosecuted and punished for the same offense following an acquittal or conviction on the merits.”6

And this gets to the heart of why I think Auernheimer’s retrial would not be forestalled by double jeopardy. Retrials are often constitutionally permissible after procedural errors, such as improper jury instruction or improper admission of evidence.7 These retrials do not raise double jeopardy concerns because they do not arise after the defendant obtained an acquittal on the merits.

The problem for Auernheimer is that he was not acquitted; his conviction was vacated on a procedural technicality, i.e., on the sole ground that venue did not lie in New Jersey. But having his conviction vacated for improper venue is not an acquittal on the merits, so it seems to me that double jeopardy does not apply and the government is free to prosecute Auernheimer again in the proper venue.

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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

  1. See United States v. Auernheimer, No. 13-1816, 2014 WL 1395670 (3d Cir. Apr. 11, 2014). 
  2. Burks v. United States, 437 U.S. 1, 11 (1978) (internal citations and footnote omitted). 
  3. Id. at 14 (internal citations and quotations omitted) (brackets and italics in original). 
  4. Haney v. Burgess, 799 F.2d 661, 662-63 (11th Cir. 1986). 
  5. Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir. 1981); see also United States v. Miller, 111 F.3d 747, 749 (10th Cir. 1997) (“Although venue is a right of constitutional dimension, and has been characterized as an element of every crime, this court and others have consistently treated venue differently from other, substantive elements of a charged offense.”) (internal citations and quotations omitted). 
  6. Id. at 1013. 
  7. See 4 Constitutional Rights of the Accused 3d § 29:29 (“A successful appeal of a conviction on the ground of a procedural error committed during the course of the prosecution normally will not bar retrial on the same charges.”) (gathering cases).