Opinion
06 Cr. 365 (DLC).
August 9, 2006
Stephen A. Miller Assistant United States Attorney New York, New York, for United States of America.
Dierdre D. Von Dornum Robert M. Baum Federal Defenders of New York, Inc. New York, New York, for Andrew Huang.
MEMORANDUM OPINION AND ORDER
One of two defendants in a criminal case has moved to transfer the single charge brought against him to the District of Connecticut, where he resides. His motion is denied.
Background
On April 26, 2006, Andrew Huang ("Huang") and Joseph Thomas ("Thomas") were indicted in the Southern District of New York for conspiring to violate the International Emergency Economic Powers Act by working to supply Chinese telecommunications equipment to the Government of Iraq without obtaining the required licenses from the United States Government, in violation of 18 U.S.C. § 371 and 50 U.S.C. § 1705(b). Thomas was charged in a second count with making a false statement to the Federal Bureau of Investigation, in violation of 18 U.S.C. § 1001. The Government represents that its evidence will show that Huang was the primary contact with the organ of the Chinese government that was selling the equipment to Iraq, and in that connection traveled to China and communicated with China from his office in Middletown, Connecticut. It explains that Thomas worked from his office in Tuckahoe, New York to assist in the submission of bids to Iraq, working with the Chinese Mission to the United Nations on the effort to secure approval of the contract under the United Nations Oil for Food Program. The Government represents that the evidence at trial will show that the goods were delivered despite the fact that China never received approval from the United Nations or the United States. Trial is expected to last about two weeks.
Huang has also been indicted in federal court in Connecticut in connection with this same scheme. He was indicted on April 12, 2006 in a two count indictment with conspiring to act as an agent of a foreign government without prior notification to the Attorney General. The focus of the Connecticut trial is apparently Huang's relationship with the organ of the Chinese government that supplied the telecommunications equipment. That trial is scheduled to take place in September 2006. Although the parties do not address the issue, it would appear that the Connecticut trial does not involve the interceptions pursuant to the Foreign Intelligence Surveillance Act ("FISA") that the Government is offering in the Southern District trial. Here, the parties anticipate that challenges to the admissibility of that evidence will require substantial briefing, and the delay of the trial in this district until 2007.
Huang has moved for a transfer of his trial to the District of Connecticut, where he resides. He is 60 years old, suffers from gout and sleep apnea, and lives with his wife and sixteen-year-old child in Cromwell, Connecticut, which is about two to three hours from the Southern District courthouse. Although he argues that he may call witnesses from Connecticut at his trial, including character witnesses, he has not identified any such witnesses, representing that it is premature for him to do so.
In his reply brief, Huang identifies for the first time one possible character witness. Arguments made for the first time in reply will be ignored.
Huang principally seeks to avoid two trials. Although he does not indicate that he has any agreement with either the United States Attorney's Office for the District of Connecticut or with the United States District Judge for the District of Connecticut that his September trial would be adjourned to allow the FISA litigation that adheres to the Southern District charges to be resolved before his trial began, such an adjournment would be necessary if he were to achieve his goal of standing trial just once. Discussion
Rule 21(b), Fed.R.Crim.P., 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 as to that defendant or any one or more of the counts thereof to another district." Fed.R.Crim.P. 21(b). "Disposition of a Rule 21(b) motion is vested in the sound discretion of the district court." United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990). In deciding whether transfer is appropriate under Rule 21(b), the Court considers and balances the non-exclusive list of factors set forth in Platt v. Minnesota Mining Mfg. Co., 376 U.S. 240 (1964). Maldonado-Rivera, 922 F.2d at 966. These factors include: (1) the location of the defendants; (2) the location of possible witnesses; (3) the location of events likely to be at issue; (4) the location of relevant documents; (5) the potential for disruption of the defendant's business if transfer is denied; (6) expenses to be incurred by the parties if transfer is denied; (7) the location of counsel; (8) the relative accessibility of the place of trial; (9) docket conditions in each district; and (10) any other special circumstances that might bear on the desirability of transfer. Platt, 376 U.S. at 243-44; United States v. Wilson, Dkt. No. 01 Cr. 53 (DLC), 2001 WL 798018, at *1 (S.D.N.Y. July 13, 2001). "No one of these considerations is dispositive, and `[i]t remains for the court to try to strike a balance and determine which factors are of greatest importance.'" Maldonado-Rivera, 922 F.2d at 966 (citation omitted). As a general rule, however, "a criminal prosecution should be retained in the original district in which it was filed." United States v. Valdes, Dkt. No. 05 Cr. 156 (KMK), 2006 WL 738403, at*3 (S.D.N.Y. Mch. 21, 2006) (citation omitted). The defendant bears the burden of justifying a transfer under Rule 21(b). Id. (collecting cases).
It is a well established presumption that defendants who are properly joined in an indictment should be tried together. Zafir v. United States, 506 U.S. 534, 537 (1993). Consequently, when a motion to transfer is made by fewer than all defendants, it is appropriate to consider the implications of that motion for the principles that govern the joinder and severance of defendants in a single charging instrument, as described in the precedent that arises under Rules 8 and 14, Fed.R.Crim.P., and the constitutional principles inherent in the application of those rules. As a general matter, "severing the trial of properly joined defendants without good reason is contrary to the interest of justice," and therefore properly considered in the Rule 21 inquiry under the analysis of special circumstances that must be considered along with all of the other factors identified inPlatt. Zaldes, 2006 WL 738403, at *10.
Although the parties discuss each of the Platt factors, very few of them actually merit any review here. The crimes for which the defendants have been indicted in this district center on the effort to obtain United Nations approval for the Chinese contract. The two defendants are properly joined together and properly charged in this district with that criminal endeavor. Huang has not identified any factors that weigh strongly in favor of a transfer under the traditional Rule 21 factors. The District of Connecticut is contiguous with the Southern District of New York, and there is a well-developed transportation network that joins the communities where Huang works and lives with this courthouse. Huang travels internationally, and a relatively short trial in this district will not injure his health. To the extent that he can show that he is without funds to attend trial in New York, that matter can be addressed through measures other than a transfer. Huang has not carried his burden of showing that a transfer is appropriate when each of the Platt factors is weighed before any consideration is given to the interests embodied in Rules 8 and 14. When the interests of justice concerns implicated by a motion that impliedly seeks a severance as well as a transfer are considered, Huang has utterly failed to carry his burden.
Although Huang has retained counsel in the Connecticut action, he is represented by appointed counsel in this district.
Huang's principal focus is his understandable desire to be tried once, and not in two separate trials in Connecticut and New York. It would be in the interest of not just Huang, but also the judicial system to have one trial and not two emerge from this investigation and prosecution. It would also appear to be in the Government's interest since it would conserve its resources. Indeed, it is not readily apparent why the Government has charged Huang in two indictments in two districts for crimes associated with the same scheme. In particular, while it is easy to understand why Huang was indicted in New York, it is less easy to understand why he was also indicted in Connecticut. For example, it is not clear that venue would lie in Connecticut for the charges brought against Thomas, particularly the Section 1001 charge, and the Government was certainly entitled to join Huang in the indictment it filed against Thomas. The solution, however, is not to sever Huang from Thomas and transfer the charges against him to Connecticut.
Because Thomas has not moved for a transfer, and in all likelihood has a right to insist on being charged in the Southern District of New York, a transfer of the New York charges against Huang will not result in any savings of judicial or governmental resources, and may not (for the reasons already explained in connection with the FISA evidence) even result in Huang standing trial just once. Such a transfer will still require two trials, and may result in three trials. If Huang's motion is truly motivated by a desire to have a single trial, then the solution is for Huang to bring a motion to transfer the Connecticut charges to New York, where they can be consolidated with the Southern District charges if it is appropriate to try the charges together. In any event, considering each of the Rule 21(b) factors identified in Platt, as well as the fact that Huang's motion would require a severance, Huang has not carried his burden of showing that a transfer is appropriate in this case.
Conclusion
Andrew Huang's motion to transfer is denied.
SO ORDERED.