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.
936 (S.D.N.Y. 1973). If there has been no waiver by the defendant and venue
elsewhere, the proper course is dismissal. United States v. Hinton,
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
to another district is directed to the sound discretion of the court,
States v. Garza, 664 F.2d 135 (7th Cir.), cert. denied, 455 U.S.
(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
Supp. 220 (D.S.D. 1975) (holding also that a superseding indictment is a new
and transfer of venue is not controlled by a previous order in the original
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
transferred "as to him," United States v. Choate, 276 F.2d 724 (5th
1960), 86 ALR 2d 1353 but non-moving defendants cannot be transferred,
States v. Clark, 360 F. Supp. 936. Such a transfer cannot be denied
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),
v. Gasch, 404 F.2d 1231; nor are factors bearing on the ability to get a
and impartial trial to be considered in determining "the interest of
Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240 (1964).
Initial choice of venue is up to the prosecution, United States
Skarloff, 323 F. Supp. 296, (S.D.Fla. 1971); United States v.
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
may be influenced by congressional interest shown by statute. United
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.