A defendant has a right to be tried in a forum where the crime was committed. See Article III, Section 2, Constitution of the United States; Sixth Amendment,Constitution of the United States; Fed. R. Crim. P. 18. As discussed, infra, this "right" may be waived, but absent a waiver, the government's case fails for lack of proof of venue. See United States v. Branan, 457 F.2d 1062, 1065-66 (6th Cir. 1972). The necessity of proving venue, however, does not require it to be alleged in the indictment. Fed. R. Crim. P. 7(c)(1), does not require venue to be alleged in an indictment. United States v. Votteller, 544 F.2d 1355 (6th Cir. 1976). See this Manual at 229. To avoid the filing of a bill of particulars to discover where the offense was committed, the better practice is to include such information in the indictment. See Hemphill v. United States, 392 F.2d 45, 48 (8th Cir.), cert. denied, 393 U.S. 877 (1968).
Venue must be proved at trial by the government by a preponderance of the evidence, and proof may be by direct or circumstantial evidence. See United States v. Lewis, 797 F.2d 358, 366 (7th Cir. 1986), cert. denied, 479 U.S. 1093 (1987); United States v. McDonough, 603 F.2d 19 (7th Cir. 1979); United States v. Powell, 498 F.2d 890, 891 (9th Cir.), cert. denied, 419 U.S. 866 (1974); United States v. Luton, 486 F.2d 1021, 1023 (5th Cir. 1973), cert. denied, 417 U.S. 920 (1974). A division of a district, however, is not a unit of venue. See United States v. Burns, 662 F.2d 1378 (11th Cir. 1981). Any defect in venue apparent from the indictment will be waived if the defendant fails to object before pleading guilty or before trial. See United States v. Allen, 24 F.3d 1180, 1830 (10th Cir.), cert. denied, 115 S.Ct. 493 (1994); United States v. Semel, 347 F.2d 228, 229 (4th Cir.), cert. denied, 382 U.S. 840 (1965); United States v. Jones, 162 F.2d 72, 73 (2d Cir. 1947); Fed. R. Crim. P. 12(b)(2). A claim of insufficient evidence to support a finding of venue will be waived if not specifically raised in a motion for acquittal. See United States v. Menendez, 612 F.2d 51 (2d Cir. 1979). See also United States v. Roberts, 618 F.2d 530 (9th Cir.), appeal after remand, 640 F.2d 225, cert. denied, 452 U.S. 942 (1980).
A number of statutes regulate the venue of particular criminal proceedings in the district courts. See, e.g., 18 U.S.C. § 1073 (flight to avoid prosecution or giving testimony), 3236 (murder or manslaughter), 3237(a) (continuing offenses and offenses committed in more than one district), 3239 (threatening communications).
