Transfer in Other Cases
As amended in 1966, Rule 21(b) allows the transfer of a criminal
to any district without being limited to a transfer to a district in which
would lie as required under the original rule, Jones v. Gasch, 404
1231 (D.C. Cir. 1967), cert. denied, 390 U.S. 1028 (1968).|
The court's determination as to whether to grant the motion to
rests in the court's sound discretion, unlike transfer under Rule 21(a)
mandatory after the court is satisfied that prejudice makes transfer
See United States v. Griesa, 481 F.2d 276, 284 (2nd Cir. 1973)
(dissenting opinion). The trial court's discretion will not be overturned
clearly abused, Jones v. Gasch, 404 F.2d 1231; United States v.
Jessup, 38 F.R.D. 42 (M.D.Tenn. 1965); thus defendant carries the burden
showing substantial balance of inconvenience to warrant finding that a
would be in the interest of justice. United States v. Benjamin, 623
Supp. 623 (D.D.C. 1985); United States v. Oster, 580 F. Supp. 599
(S.D.W.Va. 1984); United States v. Baltimore and O.R.R., 538 F. Supp.
(D.D.C. 1982); United States v. Jones, 43 F.R.D. 511 (D.D.C. 1967),
affirmed, 404 F.2d 1231 (D.D.C. 1967), cert. denied, 390 U.S.
An appellate court cannot substitute its judgment for that of the
court by exercising de novo examination of the motion to transfer, Platt
Minnesota Mining & Manufacturing Co., 376 U.S. 240 (1964). A mandamus
by the government to vacate a transfer order, being an extraordinary action
reserved for extraordinary causes, will not prevail except upon a clear
that the trial court has acted in excess of its authority or clearly abused
discretion. United States v. Clark, 360 F. Supp. 936 (S.D.N.Y.
Compare Auerbach v. United States, 347 F.2d 742 (5th Cir.),
cert. denied, 382 U.S. 958 (1965) (the defendant had no relief from
court's order transferring back the case on its own motion, when the
appealed the retransfer order and it was held the order was not final and
not appealable). See also United States v. Harris, 707
653 (2nd Cir. 1983); United States v. Angiulo, 497 F.2d 440 (1st Cir.
1974), cert. denied, 419 U.S. 896; United States v. Garber,
F.2d 284 (2nd Cir. 1969); Holdsworth v. United States, 179 F.2d 933
Cir. 1950) (dismissing defendant's appeal of retransfer order and holding
transferee court cannot review transfer order).