In re United States

• Decision Date: 21 November 2001
• Docket Number: No. 01-2562,01-2562
• Citation: 273 F.3d 380
• Parties: (3rd Cir. 2001) IN RE: UNITED STATES OF AMERICA, PETITIONER
• Court: U.S. Court of Appeals — Third Circuit

Page 380

273 F.3d 380 (3rd Cir. 2001)

IN RE: UNITED STATES OF AMERICA, PETITIONER

No. 01-2562

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued November 2, 2001

November 21, 2001

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 00-cr-00477-2) District Judge: Hon. Berle M. Schiller

Michael L. Levy, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Chief of Appeals, Richard J. Zack, (argued) Assistant United States Attorney, Philadelphia, PA 19106-4476, for Petitioner.

Lynanne B. Wescott, (argued) Saul Ewing Llp, Philadelphia, PA 19102, for Respondent.

Before: Sloviter, Nygaard, and CUDAHY,^* Circuit Judges

OPINION OF THE COURT

Sloviter, Circuit Judge.

This case is before us on a petition by the United States for a writ of mandamus directing a District Judge of the Eastern District of Pennsylvania to vacate his order transferring this criminal action against defendant Ruth Streeval to Tennessee and to refrain from transferring the case unless the showing and findings required by Fed. R. Crim. P. 21(b) have been made. At issue before us is not the discretionary decision to transfer vel non but the procedure to be followed before such a transfer order is entered.

I. BACKGROUND

On August 17, 2000, Ruth Streeval and Lollie Binkley, Streeval's sister, were charged by a grand jury sitting in the Eastern District of Pennsylvania in a nine-count indictment with mail fraud, wire fraud, conspiracy to commit mail fraud, wire fraud, and money laundering, and aiding and abetting. Binkley was also charged with money laundering and criminal forfeiture. Streeval was, by agreement, arraigned near her residence in the Middle District of Tennessee due to her alleged poor health. She subsequently filed a motion for severance and transfer. The judge then presiding denied the motion on February 9, 2001.

Binkley pled guilty to all counts charged, and was sentenced to twenty-seven months imprisonment, supervised release, and payment of restitution. On May 7, 2001, Streeval, who pled not guilty, renewed her motion for severance and transfer to Tennessee. On May 8, 2001, the District Judge who now presided granted the renewed motion. On May 16, 2001, after a six-day stay, the District Court denied the government's request for reconsideration of the motion to transfer. On June 18, 2001, the government sought a writ of mandamus to compel the District Court to reconsider its order transferring this case to Tennessee.

In the interim, on May 29, 2001, in accordance with Fed. R. Crim. P. 21(c), the Middle District of Tennessee received from the Eastern District of Pennsylvania a copy of the order severing and transferring the case, the original record of this case, and Streeval's indictment, which in turn was filed in Tennessee. The case was docketed as 01-CR-84 and assigned to Judge Todd Campbell, who scheduled the case for prompt trial. After Judge Campbell was advised of the challenge to the transfer and this court's decision to hear argument on the matter, he rescheduled the trial date to February 26, 2001.¹

II. DISCUSSION

A. Jurisdiction

The most hotly contested issue, and the one that gives us the most pause, is that of our remaining jurisdiction. Of course, the District Court originally had jurisdiction over the criminal case pursuant to 18 U.S.C. S 3231. This court has jurisdiction over a petition for a writ of mandamus pursuant to 28 U.S.C. S1651(a). Streeval and the District Court² argue that courts of this circuit no longer retain jurisdiction in this case because it has been transferred to Tennessee.

Fed. R. Crim. P. 21(b), the rule that Streeval invoked in seeking transfer, provides that "[f]or 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." We have interpreted the comparable civil rule to mean that when a transfer of a case has been completed, " `the transferor court--and the appellate court that has jurisdiction over it--lose all jurisdiction over the case.' " White v. ABCO Eng'g Corp., 199 F.3d 140, 143 n.4 (3d Cir. 1999) (quoting 15 Charles Wright, et al., Federal Practice and Procedure S 3846 at 357 (2d ed. 1986)). Typically, the transferor court loses jurisdiction when the physical record is transferred. Hudson United Bank v. Chase Manhattan Bank, 43 F.3d 843, 845-46 n.4 (3d Cir. 1994); Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 250 (4th Cir. 1991) (citing Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516-17 (10th Cir. 1991)). Nonetheless, in language particularly apt here, we have noted that "shifting papers cannot validate an otherwise invalid transfer." White, 199 F.3d at 143 n.4; see also Warrick v. General Elec. Co. (In re Warrick), 70 F.3d 736, 739-40 (2d Cir. 1995). Although White involved a civil case rather than a criminal case, and thus transfer was pursuant to 28 U.S.C. S1404(a) rather than Fed. R. Crim. P. 21(b), the language of Rule 21(b) was taken from S1404(a) and "decisions construing that statute... provide helpful analogies" for understanding Rule 21(b). 2 Wright, Federal Practice and Procedure S 344 (3d ed. 2000); see also United States v. McManus, 535 F. 2d 460, 463 (8th Cir. 1976); Jones v. Gasch, 404 F.2d 1231, 1236-37 (D.C. Cir. 1967).

The government argues that this court retains jurisdiction because "the only document of legal significance, the indictment, remains in [the Eastern District of Pennsylvania]." Br. of Government at 7. Although a copy of the indictment was sent to the Middle District of Tennessee, the indictment was retained because Streeval's co-defendant had pled guilty and her sentencing had not been concluded at that time. App. at 12-13. We need not evaluate this argument in light of far more compelling considerations.³

The government argues, and we agree, that this court retains jurisdiction for purpose of evaluating the legitimacy of the transfer. In White, a magistrate judge in the Southern District of New York attempted to transfer a case to the District of New Jersey under 28 U.S.C. S 1404(a) by writing "so ordered" under a stipulation signed by the judge and the parties. This court determined that such an "inter-district transfer by stipulation" was invalid. White, 199 F.3d at 143 (emphasis omitted). We ordered the appeal transferred to the Court of Appeals for the Second Circuit pursuant to 28 U.S.C. S1631, which allows for transfer from an appellate court that does not have jurisdiction to one that does. Id. at 145-46. Although we did not spell out in White general criteria for deciding when a transfer is valid, the fact that we exercised jurisdiction over the case when one of the parties challenged the validity of the transfer demonstrates that we implicitly acknowledged our jurisdiction to make a determination concerning the validity of a transfer.

The justification for this rule is clear. A district court cannot divest an appellate court of jurisdiction by the mere expedient of ordering a transfer of the file documents to any other district court without following procedures established for such a transfer. The proposition is not a new one. Indeed, we have asserted in numerous cases our retention of jurisdiction for purposes of evaluating the legitimacy of a transfer. See, e.g., Solomon v. Cont'l Am. Life Ins. Co., 472 F.2d 1043, 1045 (3d Cir. 1972) (noting "when the district court has acted without following appropriate procedural safeguards, we will... confine it in exercising that discretion"); Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970); Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267, 274-75 (3d Cir. 1962).⁴

This is not to say that an appellate court indefinitely maintains jurisdiction for purposes of evaluating the effectiveness of a transfer. Obviously, once the transferee court proceeds with the transferred case, the decision as to the propriety of transfer is to be made in the transferee court. However, it is preferable that there be a process that allows for prompt review of the transfer by the court of appeals of the transferor circuit. To accomplish that, some courts have adopted a standard procedure of automatically granting a stay of a transfer for a specified period of time. For example, the Eastern District of Pennsylvania, following a suggestion of this court in Swindell-Dressler, 308 F.2d at 274 n.11, promulgated a local rule whereby a transfer order is automatically stayed for twenty days, absent expedition. See E.D. Pa. R. 3.2.⁵ Unfortunately, that rule does not extend to criminal cases. If it did, the current situation would have been avoided. Even in the absence of such an applicable local rule, and without delineating the specific length of time needed to allow the party resisting transfer to seek review by an appropriate means, the government acted with sufficient dispatch here that we have jurisdiction to consider its petition for mandamus.

B. Suitability of Mandamus

We turn to consider whether mandamus is an appropriate means to review the transfer in this case. In general, an order transferring a case is not a final order and, hence, not appealable. See, e.g., Nascone v. Spudnuts, Inc., 735 F.2d 763, 764 (3d Cir. 1984).⁶ While 28 U.S.C. S1651(a) grants federal courts the general power to issue writs, it is widely accepted that mandamus is extraordinary relief that is rarely invoked. See, e.g., In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000); In re Balsimo, 68 F.3d 185, 186 (7th Cir. 1995); Solomon, 472 F.2d at 1045-46; 16 Wright, et al., Federal Practice and Procedure, S 2936.2, at 667 (2d ed. 1996). In Will v. United States, 389 U.S. 90 (1967), the Supreme Court discussed the exceptional nature of the remedy of mandamus and, in addition, expressed "an awareness of additional considerations which flow from the...