“Physical-Presence Venue” in Cyberspace Exploitation Cases: The Emerging Martinez Rule

1. Introduction

United States v. Martinez, No. 23-7437, decided by the United States Court of Appeals for the Second Circuit on 9 May 2025, tackles the increasingly common problem of venue in prosecutions for on-line child-exploitation offences. Timothy Martinez was convicted in the Eastern District of New York (“EDNY”) for multiple counts of sexual exploitation of minors and child-pornography related charges arising from Internet chats with two teenage girls located in California and Illinois. On appeal he argued, inter alia, that the Government failed to establish venue in EDNY and that the jury instructions impermissibly broadened the indictment.

Although the Court ultimately affirmed most of the convictions, it vacated Count One for lack of venue and remanded for resentencing. The judgment—while a non-precedential “summary order”—articulates a detailed analytical framework that will likely guide future litigants and courts confronting the intersection of digital conduct, geographic venue, and indictment drafting.

2. Summary of the Judgment

Venue Holding. Venue was improper in EDNY on Count One (relating to “Jane Doe-1”) because the only completed exploitative act proved at trial occurred when Martinez was deployed in Romania. No evidence tied the essential conduct elements of the completed offence to EDNY.
Verdict-Form Trap. Although evidence could have supported an attempt theory (for which venue in EDNY would have been proper), the structure of the verdict sheet precluded the jury from making that finding once it marked “guilty” on the completed offence. Hence, the conviction could not be salvaged.
Count Two Survives. As to “Jane Doe-2,” the Court held that a preponderance of the evidence placed Martinez in EDNY during portions of the multi-year grooming and inducement period, satisfying venue.
Instructional Challenge Rejected. The Court found no constructive amendment: the jury instructions, read as a whole, tracked the statutory language and the “core criminality” charged by the grand jury.
Disposition. Conviction on Count One vacated; convictions on Counts Two, Three (attempted receipt), and Four (possession) affirmed; case remanded for resentencing.

3. Analysis

3.1 Precedents Cited and Their Role

The panel relied on and synthesized several Supreme Court and Second Circuit cases that shape federal venue doctrine:

United States v. Cabrales, 524 U.S. 1 (1998): Articulates that when a criminal statute is silent on venue, courts must locate the crime based on the “nature of the crime alleged and the location of the act or acts constituting it.” Provided the baseline for analysing § 2251(a) offences.
United States v. Rodriguez-Moreno, 526 U.S. 275 (1999): Introduced the distinction between “essential conduct elements” and “circumstance elements.” The Martinez panel applied this to identify the inducement/enticement acts as the critical conduct elements for venue purposes.
United States v. Lombardo, 241 U.S. 73 (1916): Classic proposition that crimes with “distinct parts” may be tried wherever any part occurred. The Government tried to invoke this principle to anchor venue in EDNY, but the panel found no qualifying conduct there for Count One.
United States v. Lange, 834 F.3d 58 (2d Cir. 2016) & United States v. Rosa, 17 F.3d 1531 (2d Cir. 1994): Set out the deferential standard for reviewing venue sufficiency post-trial: evidence is viewed in the light most favourable to the Government, and venue need only be shown by a preponderance.
United States v. Smith, 198 F.3d 377 (2d Cir. 1999): Confirmed that venue is not an element of the offence and thus carries a lower burden of proof.
United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003); Danielson, 199 F.3d 666 (2d Cir. 1999); Rigas, 490 F.3d 208 (2d Cir. 2007): Framework for analysing constructive amendments: whether proof or instructions altered an “essential element” so as to present a different crime to the jury than charged by the grand jury. These authorities undergirded the rejection of Martinez’s instructional challenge.

3.2 Court’s Legal Reasoning

a) Identifying the “Essential Conduct.” Section 2251(a) criminalises “employing, using, persuading, inducing, enticing, or coercing” a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction. The panel treated these verbs as the essential conduct elements. Location of subsequent data movement (transportation of images) is merely a circumstance.

b) Physical Presence Still Matters in Cyberspace. Even though the exploitation occurred on the Internet, the Court insisted on proof that the defendant was physically located in the charging district when he performed at least part of the inducement behaviour. For Count One the only proven inducement act (the 12 October 2016 Skype session) occurred overseas, defeating venue.

c) The Attempt “Escape Hatch” and the Verdict-Form Problem. The Government argued that post-October messages—sent when Martinez was home in Staten Island—constituted at least an attempt to violate § 2251(a). The panel agreed in principle. But the verdict form required the jury to cease deliberating on “attempt” once it checked “guilty” on the completed offence. Hence the appellate court could not assume the jury had also found attempt, rendering the venue defect fatal.

d) Count Two Distinguished by Broader Timeline. Count Two spanned four years. Evidence placed Martinez in EDNY during parts of that period and showed ongoing grooming/inducement. Because venue needs only one qualifying act, the conviction stood.

e) Constructive-Amendment Analysis. The instruction’s reference to transmission “purpose” was, at worst, an imprecise recital of the knowledge requirement, cured by subsequent correct language. The “core criminality”—inducing a minor to create explicit content—remained unchanged.

3.3 Potential Impact of the Decision

Venue Sensitivity in Digital Cases. Prosecutors must now marshal affirmative evidence placing a defendant physically in the chosen district during the inducement phase, or charge an “attempt” theory and structure the verdict form to permit a separate finding.
Verdict-Form Drafting. The opinion highlights how a well-intentioned bid for clarity can inadvertently foreclose alternative theories of guilt. Future pattern verdict sheets in multi-theory charges will likely instruct juries to answer each theory independently.
Guidance Despite Non-Precedential Label. Although summary orders lack precedential effect, district judges within the Second Circuit frequently consult them for persuasive value. Expect district courts to cite Martinez when ruling on motions to dismiss venue in Internet-based exploitation, fraud, or cyber-stalking cases.
Military Deployments as Venue Defence. The case underscores how defence counsel can leverage a defendant’s documented absence (e.g., overseas deployment) to undermine venue—particularly where the offence window overlaps multiple jurisdictions.

4. Complex Concepts Simplified

Venue: Geographic district where a criminal case may be tried. Constitutionally, it must be where the crime was “committed.”
Locus delicti: Latin for “place of the wrong.” Courts identify the situs of the essential acts constituting the offence.
Essential Conduct Elements: The physical acts the statute punishes (here: persuading or inducing a minor). Distinguished from “circumstance elements,” such as use of interstate commerce.
Attempt Liability: Punishes incomplete criminal conduct where the defendant intended the crime and took a substantial step. Venue lies wherever that step occurred.
Constructive Amendment: Occurs when trial evidence or jury instructions allow conviction for a different crime than charged by the grand jury, violating the Fifth Amendment.
Preponderance of the Evidence (for venue): More likely than not (>50%). A lower threshold than “beyond a reasonable doubt.”

5. Conclusion

United States v. Martinez offers a nuanced road-map for analysing venue in digital child-exploitation prosecutions. The Court’s insistence on tying inducement conduct to the charging district—even amid borderless Internet communications—creates what may become known as the “Physical-Presence Venue” rule for § 2251(a) cases. Simultaneously, the decision is a cautionary tale for prosecutors regarding verdict-form design and for defence counsel regarding the strategic use of documented absences. While technically non-precedential, the ruling is poised to influence charging decisions, venue litigation, and jury-instruction drafting throughout the Second Circuit and beyond.