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531

Factors Determining Rule 21 Transfer

Only the defendant can initiate a motion for transfer to another district. Jones v. Gasch, 404 F.2d 1231 (D.C.Cir. 1967), cert. denied, 390 U.S. 1028 (1968); United States v. Clark, 360 F. Supp. 936 (S.D.N.Y. 1973). If there has been no waiver by the defendant and venue lies elsewhere, the proper course is dismissal. United States v. Hinton, 268 F. Supp. 728 (E.D.La. 1967). See also, United States v. Griesa, 481 F.2d 276, 285 (2d Cir. 1973)(dissenting opinion).

The cases are clear that, once made, defendant's motion for transfer to another district is directed to the sound discretion of the court, United States v. Garza, 664 F.2d 135 (7th Cir.), cert. denied, 455 U.S. 993 (1982); Jones v. Gasch, 404 F.2d 1231, including the selection of the district to which the transfer is made, United States v. Holder, 399 F. Supp. 220 (D.S.D. 1975) (holding also that a superseding indictment is a new case and transfer of venue is not controlled by a previous order in the original but dismissed indictment); United States v. Hinton, 268 F. Supp. 728.

In a multi-defendant and multi-count criminal action, it is well established that one or more of the defendants may have all or part of the case transferred "as to him," United States v. Choate, 276 F.2d 724 (5th Cir. 1960), 86 ALR 2d 1353 but non-moving defendants cannot be transferred, United States v. Clark, 360 F. Supp. 936. Such a transfer cannot be denied based upon a codefendant's opposition to the transfer Yeloushan v. United States, 339 F.2d 533 (5th Cir. 1964).

Rules 21(a) and 21(b) are to be considered separately, and local prejudice insufficient for transfer under Rule 21(a) is not to be weighed in evaluating the "in the interest of justice" standard under Rule 21(b), Jones v. Gasch, 404 F.2d 1231; nor are factors bearing on the ability to get a fair and impartial trial to be considered in determining "the interest of justice," Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240 (1964).

Initial choice of venue is up to the prosecution, United States v. Skarloff, 323 F. Supp. 296, (S.D.Fla. 1971); United States v. Luros, 243 F. Supp. 160, 174 (N.D.Iowa 1965), rev'd on other grounds, 389 F.2d 200 (8th Cir. 1968). A defendant must demonstrate substantial inconvenience to nullify this prosecutive prerogative, though venue may be influenced by congressional interest shown by statute. United States v. Cores, 356 U.S. 405 (1958); United States v. National City Lines, Inc., 334 U.S. 573 (1948); United States v. Johnson, 323 U.S. 273 (1944); United States v. Reed, 773 F.2d 477 (2d Cir. 1985); United States v. Luros, 243 F. Supp. 160.