United States v. Rudolph, 1:22-cr-00012

Defendant Lawrence Rudolph is charged in a Superseding Indictment with foreign murder (18 U.S.C. §§ 1119, 1111) and mail fraud; the alleged murder occurred on October 11, 2016 while on safari in Zambia.
A criminal complaint and arrest warrant for mail fraud issued December 16, 2021; Defendant then traveled to Mexico.
U.S. authorities notified Mexican officials, who deported/returned Defendant on a flight to Denver; a second arrest warrant charging foreign murder issued December 22, 2021 and Defendant was arrested at Denver International Airport that same day.
Defendant moved to dismiss Count 1 for lack of venue under 18 U.S.C. § 3238 and for failure to allege venue in the indictment.
The Court denied the motion without an evidentiary hearing, concluding Colorado is a proper venue under § 3238 and that the indictment need not plead venue to be sufficient.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether venue under 18 U.S.C. § 3238 is proper in the District of Colorado for the foreign-murder charge	Venue is proper in Colorado because Defendant was arrested there on Dec. 22, 2021 and/or was first brought into the District of Colorado in custody in connection with the murder	Venue is improper: Defendant was first brought into the U.S. in 2016 via Atlanta (Northern District of Georgia) and/or was first arrested in Mexico, so § 3238 requires prosecution in the Northern District of Georgia	Court: Venue is proper in Colorado—Defendant was arrested in Denver in connection with the murder; alternatively, “first brought” means first brought into the U.S. in custody for the offense, which occurred in Colorado; motion denied
Whether Count 1 is fatally defective for failing to allege venue in the indictment	Venue need not be alleged in an indictment under Rule 7(c)(1); the indictment states the essential elements and apprises Defendant of the charge	Count 1 omits any venue allegations and is therefore defective and demurrable	Court: Denied—indictment is sufficient; venue is not an essential element that must be pleaded and the allegation of elements is adequate

United States v. Wharton, 320 F.3d 526 (5th Cir. 2003) (arrest for a particular charge occurs where defendant is first arrested on that charge while in custody)
United States v. Ghanem, 993 F.3d 1113 (9th Cir. 2021) ("first brought" means the district into which a defendant first comes while in custody)
United States v. Erdos, 474 F.2d 157 (4th Cir. 1973) ("arrested" under § 3238 is the district where the offender is first restrained of liberty in connection with the charged offense)
United States v. Catino, 735 F.2d 718 (2d Cir. 1984) (venue proper where defendant was transferred and later charged in that district)
Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) (Rule 7(c) does not require venue to be pleaded; venue is waivable)
United States v. Slatten, 865 F.3d 767 (D.C. Cir. 2017) (§ 3238 permits the government a choice of venue and forecloses a manufactured-venue claim in that context)