Summary
holding that "within the Platt analysis defendant's residence deserves real weight."
Summary of this case from U.S. v. ChitolieOpinion
Criminal Action No. 08-501 (WHW).
December 15, 2008
Robert L. Frazier, Office of the US Attorney, Newark, NJ.
Brooke E. Carey, Office of the US Attorney, Newark, NJ, Attorneys for Plaintiff.
Michael Gogal, McCusker Anselmi Rosen Carvelli Walsh, Chatham, NJ, Attorney for Defendant.
ORDER
Defendant has moved, pursuant to Fed.R.Civ.P. 21(b), for transfer of venue to the District of Puerto Rico. The Court has considered the moving and opposition papers. For the reasons given in the accompanying opinion:
It is on this 15th day of December, 2008,
ORDERED that defendant's motion to transfer is GRANTED; and it is further
ORDERED that the Clerk shall TRANSFER this case to the United States District Court for the District of Puerto Rico.
OPINION
Defendant, a resident of Puerto Rico, has been charged in this District with conspiracy to commit money laundering. Defendant moves for venue transfer to the District of Puerto Rico pursuant to Federal Rule of Civil Procedure 21(b).
FACTS AND PROCEDURAL BACKGROUND
Defendant has been indicted in the District of New Jersey for conspiring to commit money laundering. (Indictment; See 18 U.S.C. § 1956(h).) The government alleges the following. In February 2006, a co-conspirator of defendant (hereinafter "Co-conspirator") sought the assistance of a confidential informant in laundering certain narcotics proceeds. (Crim. Compl., Attach. B ¶ 2.) On March 29, 2006, in furtherance of this conspiracy, defendant placed a telephone call to a second confidential informant in New Jersey. (Crim. Compl., Attach. B ¶ 3.) On April 4, 2006, in Puerto Rico, under the direction of Co-conspirator, defendant transferred $248,526 to a third confidential informant, who was acting as an associate of the first confidential informant. (Crim. Compl., Attach. B ¶ 4.)
Defendant claims he cannot afford to pay the expense associated with travel to New Jersey for his prosecution and requests that this Court transfer his prosecution to the District of Puerto Rico. (Certification of Miguel Correa Negron ¶ 3.) Defendant is sixty-one years old, has been on disability for 15 years and receives income only from Social Security. (Negron Certification ¶¶ 3-4.) Defendant borrowed money, using his disability payments as security, to pay for the cost of attending his initial appearance. (Negron Certification ¶ 5.) Defendant has lived in Puerto Rico for the last 30 years and has neither family nor friends in New Jersey. (Negron Certification ¶¶ 6.)
Defendant argues in addition that transfer is appropriate because defendant will suffer great prejudice if tried in this district. (Def.'s Supp. 8.) Because transfer is appropriate under Rule 21(b), the Court does not address this argument.
LEGAL STANDARD
Upon motion by defendant, a "court may transfer the proceeding, or one or more counts, against the defendant to another district for the convenience of the parties and witnesses and in the interest of justice." Fed.R.Crim.P. 21(b). Motions under Rule 21(b) are addressed to the court's discretion. United States v. Coffee, 113 F.Supp. 2d 751, 753 (2000). The burden is on the defendant to show that transfer would serve the purpose of the rule but the defendant need not show "truly compelling circumstances." Id.
The Supreme Court has endorsed ten factors courts should consider in deciding a Rule 21(b) motion: (1) location of the defendant; (2) location of potential witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) potential disruption of defendant's business unless case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division; and (10) any other special elements. Platt v. Minnesota Mining Manufacturing Co., 376 U.S. 240, 243-244. A defendant must support its motion with some facts that tend to support thePlatt factors. In re: United States of America, 273 F.3d 380, 386 (2001) (citing Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-57 (3d Cir. 1973));
Although the Supreme Court's endorsement of these factors was implicit and announced in the corporate context, they apply to individual defendants. Haley, 504 F.Supp. at 1124 (citing United States v. Aronoff, 463 F. Supp. 454, 457 (S.D.N.Y. 1978)).
"It is unlikely that any of these factors will be present by itself in a particular case. Ordinarily the various factors appear in combination, with some pointing in favor of transfer and others against transfer. It is incumbent on the court in such a case to strike a balance and decide which factors seem to be of greatest importance in that case." Coffee, 113 F.Supp. 2d at 754 (citing 2 Federal Practice Procedure § 344 at 275).
DISCUSSION
Several of the Platt factors are not at issue in this case. The location of documents is not of concern as neither party argues that this will be a document heavy case. There is no potential for disruption of defendant's business because defendant is unemployed. As the government asserts, comparison of docket conditions indicates that time from filing to disposition is the same in Puerto Rico as in New Jersey. U.S. District Court Judicial Caseload Profile available at, http://www.uscourts.gov/cgi-bin/cmsd2007.pdf. Both Newark and Puerto Rico are geographically accessible. Finally, neither party has asserted any additional special circumstances.
As an initial matter, the government asserts that there is a general rule that criminal prosecutions should be retained in the district in which they were brought. As noted above, the burden is on the defendant to show that transfer is appropriate. Coffee, 113 F.Supp.2d at 753. There is some disagreement among courts as to whether this burden acts as a general rule that criminal prosecutions should remain in the district in which they are initiated. Coffee, 113 F.Supp.2d at 753 (citing United States v. Hays, 1997 U.S. Dist. LEXIS 748, No. 96-51, 1997 WL 35666 at *3 (E.D. Pa. Jan. 29, 1997)) (rejecting the general rule as inconsistent with the purposes of Rule 21(b); Hays at *3 (adopting the general rule in denying motion to transfer); United States v. Wecker, 620 F. Supp. 1002 (1985) (adopting general rule)).
The Court adopts the view adopted by the Coffee court, and echoed by Wright Miller, that there is no such general rule because it would not serve the purposes of Rule 21(b). See Charles Alan Wright, Federal Practice Procedure § 344 at 266 (2d ed. 1982 Supp. 2000)). In contrast to Rule 21(a), which guarantees the defendants right to a fair trial, Rule 21(b) addresses the convenience of trial. Id. Because convenience is the goal a court must look at all the circumstances, id., this Court will examine each of the remaining Platt factors: location of the defendant, location of possible witnesses, location of events, expenses of the parties and location of counsel.
Defendant argues that each of the five factors favor transfer, focusing primarily on the location of the Mr. Negron. (Def.'s Supp. 4.) In response, the government argues that the location of defendant is not dispositive and that defendant has not sustained his burden of showing that possible witnesses would be unavailable to testify. (Gov't's Opp. 3-6.) Additionally, the government further asserts that the location of events, expense to the parties and location of counsel are neutral at best. At the Court's request, defendant submitted affidavits containing details about the residency and the ability to testify of each potential defense witness. (Letter of Michael S. Gogal to the Court, dated as of Nov. 25, 2008 (the "Gogal Letter").)
1. Location of the Defendant
With regard to the location of the defendant, the government argues that although the defendant is indisputably located in Puerto Rico, the location of defendant is not dispositive and inconvenience to the government of a transfer to Puerto Rico would outweigh any inconvenience to the defendant.
Although a defendant does not have right to be tried in his or her home district, In re United States, 273 F.3d 380, 388 (3d Cir. 2001) (citing Platt, 376 U.S. at 245-46), within the Platt analysis defendant's residence deserves "real weight." Haley, 504 F.Supp at 1126. While the Court acknowledges that defendant is not entitled to a trial in his home district, the defendant also has no connection to New Jersey. Defendant bears similarity to the defendant in Coffee where the court held that this factor favored transfer because defendants had no connection to the forum other than their defense counsel. See Coffee, 113 F.Supp. 2d at 754. Defendant has lived in Puerto Rico for 30 years. He has no family or friends in New Jersey. Defendant's only connection to New Jersey appears to be one phone call to a confidential informant in New Jersey. Significantly, in contrast to the Coffee defendant, defendant's counsel is court-appointed and can be substituted if the prosecution were transferred to Puerto Rico. Under these circumstances, the Court is convinced this factor favors transfer.
2. Potential Witnesses
In its brief, defendant asserts that "all possible defense witnesses live in Puerto Rico." (Def.'s Supp. 7.) In order to assess this factor, courts must have "concrete demonstrations" of the proposed testimony. Haley, 504 F.Supp at 1127-28. Defendant submitted affidavits from five potential character witnesses and one potential fact witness. (Gogal Letter.) Each certifies that they reside in Puerto Rico and would be unable to testify at a trial held in the District of New Jersey. The government argues that this factor does not favor transfer because defendant is unlikely to be permitted to introduce such cumulative character testimony and the testimony of the fact witness is unlikely to be admitted. In Haley, on the basis of affidavits that demonstrated that proposed defense witnesses were available to testify in the Northern District of Georgia but not in the Eastern District of Pennsylvania, the court determined this factor favored transfer.Id. at 1125. Here, as in Haley, defendant's state of mind will be at issue at trial. While not all of the character witnesses may ultimately be allowed to testify at trial, the trial court may elect to admit character evidence. See id. at 1127-28. It follows that the defendant has sufficiently demonstrated that there will be an inconvenience to potential defense witnesses associated with trial in this District.
Such affidavits, as in Haley, have been impounded in order to "protect defendant's theories of defense." Haley, 504 F.Supp at 1126 n. 23.
The government asserts these arguments in an unsolicited letter to the Court dated as of December 5, 2008. Defendant argues that the Court should not entertain such letter because it not permitted under the Court rules or this Court's Order of November 18, 2008. See Letter from Michael E. Gogal to the Court, dated as of December 8, 2008. Because this matter can be decided solely on the basis of the affidavits, the Court need not address defendant's arguments.
The Court must also consider the potential inconvenience to the government of transfer. The Haley court held this factor favored transfer in part because government witnesses would not be inconvenienced. See id. at 1128. Undoubtedly, moving prosecution to Puerto Rico would involve some inconvenience to the government. This inconvenience is not likely to be significant because all of defendant's actions took place in Puerto Rico. Presumably, any eyewitnesses either reside in Puerto Rico or are able to travel there. In contrast, defendant has proposed six defense witnesses who would be unable to testify in the District of New Jersey. Under these circumstances the Court is confident that the inconvenience to an indigent defendant outweighs the inconvenience to the government.
3. Location of Events
Defendant argues that the location of events favors transfer because that is where the defendant allegedly carried the bag of money from one location to another in Puerto Rico. The government argues that the "nerve center" of the conspiracy was in New Jersey.
Where a defendant's actions occurred is relevant to this factor. Coffee, 113 F.Supp. 2d at 755-56; Haley, 504 F.Supp at 1128 (granting motion to transfer where many of defendants overt acts occurred in the proposed district). There the court held this factor weighed in favor of transfer where defendants had never been in district and their only contact with the district was by telephone calls, faxes and packages. See id.
Here, the government does not allege that defendant engaged in any act in New Jersey. Defendant's sole connection to New Jersey is via a phone call placed by his co-conspirator. Where the only connection to a venue is this type of communication, this factor favors transfer. See id. Although the government asserts that the "nerve center" for purposes of this factor was in New Jersey, the primary consideration focuses on the actions of the defendant.See id. at 755-56; Haley, 504 F.Supp at 1128. Even if defendant may have conceived that the actual laundering of the funds would occur in New Jersey, that would not place the "nerve center" in New Jersey. To the contrary, the conspiracy was conceived and agreed upon outside of New Jersey. According to the government, the overt act that defendant took, the delivery of the money, indisputably occurred in Puerto Rico. This factor favors transfer.
4. Expenses
The government argues that, even if the court accepts that defendant is indigent, the defendant can submit for reimbursement of many of his expenses and expenses for witnesses can be reimbursed. Even if reimbursement were unavailable, the government asserts that the government expenses will be substantial enough to outweigh potential expense to defendant.
It is relevant if the government has offered to reimburse costs of the defendants. See, e.g., Haley, 504 F.Supp at 1129. However, courts in this district have viewed with skepticism government assertions that defendant's expenses will be reimbursed. Coffee, 113 F.Supp. 2d at 757. In any event, the appropriate inquiry is not into the extent of the costs but rather how much the defendant can bear. Haley, 504 F.Supp at 1129 n. 32 (citingUnited States v. Culoso, 461 F. Supp. 128, 136 n. 12 (S.D.N.Y. 1978)). Even if the government's costs exceeded the defendant's costs, where the defendant is indigent "the public fisc must take second place to the fundamental due process rights of impecunious defendants." Coffee, 113 F.Supp. 2d at 757-58.
Like other courts in this district, this Court is skeptical of the success that Mr. Negron may find in seeking reimbursement. This skepticism aside, reimbursement is irrelevant because the proper inquiry is whether defendant can bear the expense of trial in New Jersey. He cannot. His only income is social security payments. Defendant already relied upon these payments as security for a loan to allow him to make his initial appearance. The government's asserted costs associated with a transfer are insufficient to overcome Mr. Negron's due process rights. See id.
5. Location of Counsel
The government argues that location of counsel cuts against transfer because all counsel is in New Jersey. Where defendants are represented by appointed counsel, the location of counsel, even if in the current district, does not disfavor transfer because counsel may be substituted. Haley, 504 F.Supp at 1128. Because defendant's counsel can be substituted if the case is transferred to Puerto Rico, that his current counsel is located in New Jersey is irrelevant. The same cannot be said of the government. Transfer will impose inconvenience on the government by requiring travel by government prosecutors to Puerto Rico for several weeks but trial will always present inconvenience. Under Rule 21(b) the court must attempt to balance this inconvenience against the potential conveniences of the other forum. An analysis of the Pratt factors convinces the Court that this case is better off transferred to Puerto Rico.
CONCLUSION
Of the five factors at issue, four Platt factors favor defendant: the defendant is located in Puerto Rico, all of defendant's alleged acts occurred in Puerto Rico, defendant's witnesses would be unable to testify in the District of New Jersey and the defendant is unable to bear the expense of trial in New Jersey. The only remaining Platt factor at issue, location of counsel, is at best neutral. Accordingly, defendant's motion is granted and the Court will transfer this matter to the District of Puerto Rico.