United States v. Jones

43 F.R.D. 511, 1967 U.S. Dist. LEXIS 11760
CourtDistrict Court, District of Columbia
DecidedApril 11, 1967
DocketCr. No. 40-66
StatusPublished
Cited by12 cases

This text of 43 F.R.D. 511 (United States v. Jones) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jones, 43 F.R.D. 511, 1967 U.S. Dist. LEXIS 11760 (D.D.C. 1967).

Opinion

OPINION

GASCH, District Judge.

On January 5, 1966, the defendant Clifford Jones was indicted by a Federal Grand Jury sitting in the District of Columbia. The Grand Jury charged that the defendant had on three occasions committed perjury in his appearance before that body on March 17, 1965. At the request of counsel for the defense, the case was continued until after the trial in United States v. Baker, D.C., 266 F.Supp. 461. Now that the trial in the Baker case has been completed, counsel for the defendant has moved for a further continuance and in the alternative for a transfer.

The defendant’s motion for a continuance is predicated upon an alleged conflict between Count 9 of the Baker indictment and Count 1 of his own indictment. The defendant contends that these counts are conflicting in that they each charge the respective defendants with causing certain checks to be issued by the First Western Financial Corporation payable to Wayne L. Bromley. Apparently, the defendant is unwilling to accept the fact that a single act or series of acts may have a dual causation and feels that, in view of Baker’s conviction, Count 1 of this indictment should be dismissed.

The Court is not persuaded by the defendant’s argument and can see no useful purpose in further continuing this case which has already been in an inactive status for more than a year. Accordingly, the motion for a continuance will be denied.

The defendant also seeks a transfer from this district to a district in Nevada pursuant to Rule 21(b), F.R.Crim.P., contending that a district court in Neva[513]*513da will afford him a more convenient trial forum.

Amended Eule 21(b) became effective on July 1, 1966, and governs “all criminal proceedings thereafter commenced and so far as just and practical all proceedings then pending.” H.R.Doc.390, 89th Cong., 2d Sess., 11, 1966. There can be no question, therefore, that it is proper to apply the new rule to the present proceeding. Singleton v. Botkin, 5 F.R.D. 173 (D.C.D.C.1946).

Prior to amendment, Rule 21(b) permitted the Court on defendant’s motion to transfer a case to another district in the “interest of justice” only when venue existed in both districts; that is, where the offense charged was alleged to have been committed in more than one district and venue would have initially been proper in either. However, as amended, Rule 21(b) is no longer tied to a “crime committed” formula and now provides:

“For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding * * * to another district.”

Thus, the amendment now permits a court to transfer any case on motion of the defendant upon “a showing that it would be for the convenience of parties and witnesses, and in the interest of justice.”

Counsel have suggested that the instant case is one of first impression involving the interpretation and application of this new rule. It should be pointed out, however, that, although the multivenue test has been eliminated as a prerequisite to transfer, the “interest of justice” standard which is incorporated in both the old and the new rule has not been changed. Therefore, the proper application of Rule 21 must be determined from the language of the rule, the considerations which led to its amendment, and most importantly, from the previous judicial interpretations of the “interest of justice” standard.

Rule 21(b) was amended in an effort to alleviate some of the difficulties created by the strict constructionist approach adhered to by most courts when applying the rule prior to its amendment. See, e. g., Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956); Platt v. Minnesota Min. & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1963); United States v. Choate, 276 F.2d 724 (5th Cir. 1960); and Advisory Committee’s Notes, F.R.Crim.P., H.R.Doc.No.390, 89th Cong., 2d Sess., 11, 1966. It is apparent from the above-cited cases, and the Advisory Committee’s Notes reflect, that the ills sought to be cured by amendment all had resulted from the multi-venue requirement of the old rule. Thus, in this case, the ill was cured by simply eliminating the requirement. However, the Court has previously noted, and it should be emphasized, that the standards for determining when the “interest of justice” warrants a transfer remain unchanged.

In determining whether a prosecution should be transferred in the “interest of justice,” the Court may consider:

“ * * * the rights of the Government, the accused, and the public; curtailment of unnecessary expense; relative cost to the parties involved; their possible embarrassment by reason of absence from their place of business for extended periods of time; length of time of the trial and the comparative condition of the dockets of both courts; and also the relative cost and hardship because of the removal of records into another jurisdiction.” 1

[514]*514 However, before applying these factors to the present case, we must take as our starting point the preliminary proposition that sound judicial administration and the need for efficient handling of the prosecuting attorney’s work load suggest that only rarely and for good cause should a prosecution be withdrawn by a judicial act from the court in which it was brought and probably from the direction and management of counsel who have prepared it. United States v. Luros, 243 F.Supp. 160 (W.D.Iowa 1965); United States v. United States Steel Corp., 233 F.Supp. 154 (S.D.N.Y.1964); and United States v. White, 95 F.Supp. 544 (D.Neb.1951). This is especially true where, as in this case, government counsel has carried it before the Grand Jury. Accordingly, to warrant a transfer the defendant must demonstrate and the Court must be satisfied that the prosecution in the district where the indictment was properly returned will result in a substantial balance of inconvenience to himself. United States v. Cohen, 35 F.R.D. 227 (S.D.Calif.1964); United States v. Luros, supra, and United States v. United States Steel Corp., supra. As Judge Carter said in United States v. Cohen, 35 F.R.D. at 232:

“In weighing and balancing the respective conveniences of the parties the Court should not grant the motion unless the factors involved indicate a balance of inconvenience of some substance to the defendant.”

With these observations in mind, we now turn to the defendant’s contentions in the present case.

The Court does not feel that the defendant has demonstrated a sufficient balance of inconvenience to himself to warrant the removal of this case to a district court in Nevada. It is true that the defendant is a resident of Las Vegas, Nevada. However, although the defendant’s residence is a factor to be considered, it is not the controlling factor. As the Supreme Court said in Platt v. Minnesota Min. & Mfg. Co., supra, 376 U.S. at 245, 84 S.Ct. at 772:

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Bluebook (online)
43 F.R.D. 511, 1967 U.S. Dist. LEXIS 11760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jones-dcd-1967.