Justices to Consider if Venue Whiff Nets Trade Secrets Acquittal

A fisherman whose conviction for trade secrets theft was vacated because he was tried in the wrong state will get to argue to the US Supreme Court that he should have been acquitted instead.

The US government was set to try Timothy S. Smith for stealing proprietary fishing information in Alabama after a court vacated his Florida conviction, per US Court of Appeals for the Eleventh Circuit precedent. Smith’s extortion conviction withstood the venue challenge, and the jury acquitted him of computer fraud.

The case carries substantial implications for when the government chooses to try a defendant for any offense in the wrong location. Criminal defendants have been required to be tried where they committed their crimes for centuries, though the nature of cybercrimes complicates the question.

Smith’s petition argued the high court should settle a circuit split where some circuits—including the Fifth and Eighth—mandate acquittal when the government tries a defendant in the wrong venue. The Sixth, Ninth, and Tenth circuits, like the Eleventh, allow the government to re-try the offense in another venue, the petition said.

The US government argued that the circuits allowing retrail had interpreted the US Constitution correctly, as venue is not an element that defines a crime and doesn’t implicate the prohibition on double jeopardy. It also denied a split exists, saying neither purported precedent in the Fifth and Eighth circuit actually mandated acquittal for cases tried in the wrong venue, and neither case has been cited to that end.

The government also said Smith’s counsel conceded dismissal without prejuice was the proper remedy during oral arugments at the Eleventh Circuit, and that it would be inappropriate for the Supreme Court to take the case before the Alabama trial concludes. Depending on sentencing for the extortion conviction, the government might not retry him on trade secrets, the response added, mooting the question for this case.

Smith, a software engineer who fishes “between 1,200 and 1,500 hours a year” allegedly hacked the website of StrikeLines, which identifies the locations of artificial fishing reefs and sells their coordinates to other fishermen, the petition said. After obtaining StrikeLines data, he offered in a Facebook post to give fishermen who’d placed the reefs at their own expense the chance to cross-check the data.

He also allegedly offered to StrikeLines to remove the posts in exchange for deep-water grouper coordinates, which led to the extortion charge. The Mobile, Alabama, resident challenged venue during and after trial, arguing none of the relevant conduct occurred in Florida, where StrikeLines is located.

The order granting the petition also granted a petition to file a friend-of-the-court brief by The Rutherford Institute, The Cato Institute, and The National Association for Public Defense in support of Smith.

Latham & Watkins LLP represents Smith.

The case is Timothy J. Smith, U.S., No. 21-1576, cert. granted 12/13/22.