US v. Mamadou

2005 DNH 072

• Court: District Court, D. New Hampshire
• Decided: April 27, 2005
• Docket: 04-CR-225-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America,

v. Case N o . 04-cr-225-1-SM Opinion N o . 2005 DNH 072 Mama-Tidjani Mamadou,

O R D E R

Defendant moves to transfer venue in this criminal case to

the United States District Court for the Southern District of New

York, where he lives and works, pursuant to Fed. R. Crim. P.

21(b).

Like United States v . Muratoski, N o . 04-cr-179-SM, Opinion

N o . 2005 DNH 0 6 1 , this is one of a number of prosecutions brought

in the District of New Hampshire for either passport fraud (18

U.S.C. § 1542) o r , more recently, false statements made in

connection with a passport application (18 U.S.C. § 1001). As

noted in Muratoski, the recent trend away from charging passport

fraud, in favor of charging § 1001 violations instead for

substantially the same conduct, is explained by the First

Circuit’s decision in United States v . Salinas, 373 F.3d 161 (1st Cir. 2004). In Salinas the court held venue to be improper in

this district in passport fraud cases involving an application

mailed from out-of-state to the National Passport Center located

in Portsmouth, New Hampshire. In that same opinion, however, the

court suggested that venue would be proper here if the criminal

conduct were charged as a false statement offense under § 1001 -

the distinction being that passport fraud is a completed offense

“at the moment an applicant makes a knowingly false statement in

an application with a view toward procuring a passport,” Salinas,

373 F.3d at 165 (citing United States v . O’Bryant, 775 F.2d 1528,

1535 (11th Cir. 1985)), while § 1001 offenses are generally

considered continuing offenses, with the material

misrepresentations “continuing into the district in which the

effects of the false statement are felt.” Salinas, 373 F.3d at

167 (citations omitted).

S o , basically, the government is avoiding the venue problem

in passport fraud cases by indicting (or sometimes reindicting)

the underlying passport fraud conduct as a § 1001 violation. The

government has its reasons for doing s o . Not coincidentally,

many such violations are discovered here, given the location of a

2 National Passport Center in this district. The relevant

documents (applications, supporting statements, etc.) wind up

here, and potential witnesses from the passport center are also

found in this district. In addition, prosecutors may feel that

the commitment to prosecuting these cases may not be as strong in

other districts as it is here.

As discussed in Muratoski, supra, venue transfer motions in

these cases ought to be considered individually, given the unique

circumstances faced by each defendant. Although it is tempting

to fashion a systemic rule, the sui generis nature of each

defendant’s circumstances counsels an individualized, case-by-

case approach.

Because passport applications and renewal applications can

literally come to New Hampshire from all over the country,

defendants indicted here in connection with those applications

often live hundreds of miles, and several states, away, with no

personal connections to New Hampshire at all. They are often

poor, or just getting by, and usually face some form of

deportation action as well as prosecution.

3 While venue is proper in New Hampshire if the underlying

conduct is charged as a § 1001 violation, transfer of the case to

another district may, nevertheless, be appropriate “for the

convenience of the parties and witnesses and in the interest of

justice.” Fed. R. Crim. P. 21(b). In exercising the discretion

to transfer criminal cases, courts consider a number of factors

identified by the Supreme Court in Platt v . Minnesota Min. & Mfg.

Co., 376 U.S. 240 (1964).

Applying the Platt factors here, I find that defendant has

met his burden of persuading the court that a transfer is

warranted. Defendant lives and works in the Bronx, New York

City. His family, including his wife and two small children, is

there, as is his marginal small business. Defendant appears to

be economically disadvantaged (he is represented by an Assistant

Federal Defender), and, of course, he would suffer not only a

financial burden, but an emotional and physical hardship as well,

if defendant were required to travel to New Hampshire to meet

with counsel, attend pretrial hearings and face trial. Defendant

would be required to cover expenses for travel, lodging and

subsistence on each occasion, and would not be able to work.

4 While such expenses are, to many, comparatively modest, they are

not modest to one of modest means.

The location of witnesses also favors transfer. Government

witnesses from the passport center can easily travel to New York

at no expense to them. But defense witnesses (at trial or

sentencing) are likely to be from New York and their attendance

here in New Hampshire will not be as easily or conveniently

obtained (even assuming the government will pay for

transportation and lodging). Witnesses also lose time from work

when they are required to travel long distances from home, and

their lives are disrupted by travel in many other ways. All in

all, the balance falls in favor of having government employees

travel involuntarily, rather than private citizens, other factors

being equal.

Documents and exhibits can easily be transported from New

Hampshire to New York. See, e.g., United States v . Posner, 594

(F.Supp. 475, 478 (S.D.N.Y. 1982) (“The location of documents and

records is not a major concern in these days of easy and rapid

transportation.”)

5 Defendant’s likely economic loss also counsels in favor of

transfer. See United States v . Russell, 582 F.Supp. 6 6 0 , 663

(S.D.N.Y. 1984). Defendant operates a marginal “99-cent store”

in the Bronx, and “barely takes a salary.” He apparently

qualified for appointed counsel. Travel to New Hampshire would

involve far more time away from wage-earning work than trial in

New York.

Defense counsel can just as easily be appointed for

defendant in New York as here, and defendant will have much

easier, convenient, and effective access to counsel where he

lives. No doubt the government will be as ably represented in

New York as it is in this district.

As the Court of Appeals for the Second Circuit aptly

observed:

Recognizing “the unfairness and hardship to which trial in an environment alien to the accused exposes him,” and the important policies underlying the venue provisions the Constitution and Bill of Rights, the Supreme Court has declared that venue statutes should, whenever possible, be construed so to permit trial at the residence of the defendant.

6 United States v . Cashin, 281 F.2d 669, 675 (2d Cir. 1960) (citing

United States v . Johnson, 323 U.S. 273, 275 (1944).

Conclusion

Having considered the Platt factors, the court is persuaded

that, like Muratoski, defendant’s case ought to be transferred to

the Southern District of New York for the convenience of the

defendant and witnesses, and in the interest of justice.

Defendant’s Motion to Transfer Venue (document n o . 8 ) is hereby

granted.

SO ORDERED.

Steven J./McAuliffe hief Judge

April 2 7 , 2005

cc: Mark A . Irish, Esq. Jonathan R. Saxe, Esq. U.S. Probation U.S. Marshal