U.S. v. McManus, 75-1868

• Decision Date: 02 June 1976
• Docket Number: No. 75-1868,75-1868
• Parties: UNITED STATES of America, Petitioner, v. Honorable Edward J. McMANUS, Chief Judge, United States District Court,Northern District of Iowa, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 460

535 F.2d 460

UNITED STATES of America, Petitioner, v. Honorable Edward J. McMANUS, Chief Judge, United States

District Court,Northern District of Iowa, Respondent.

No. 75-1868.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 9, 1976.

Decided May 13, 1976.

Rehearing and Rehearing En Banc Denied June 2, 1976.

Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for petitioner.

Evan L. Hultman, U. S. Atty., and Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, and Lorna A. Gilbert, Legal Intern, University of South Dakota, College of Law, Vermillion, S. D., for petitioner.

Roger Jon Diamond, Pacific Palisades, Cal., for respondent.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

PER CURIAM.

The government petitions this Court for a writ of mandamus asserting that the District Court erred in granting a motion for a change of venue in United States of America v. Robert Elkins, et al., No. CR 75-4022 (N.D.Ia. October 1, 1975). We find that the trial court did not abuse its discretion and grant the writ. The record of this case, previously transferred to the Central District of California, shall be recalled and the case shall be tried in the Northern District of Iowa.

On July 11, 1974, a fourteen-count indictment was returned against six defendants, charging them with violating and with conspiracy to violate two postal obscenity statutes, 18 U.S.C. §§ 1461 and 1462, for the mailing from California of allegedly obscene advertisements and movies to Iowa. The defendants filed a motion for change of venue pursuant to Federal Rule of Criminal Procedure 21(b). ¹ Chief Judge Edward J. McManus of the Northern District of Iowa granted the motion, and the case was transferred to the Central District of California. United States of America v. Robert Elkins, et al., No. CR 74-4015 (N.D.Ia. December 6, 1974).

Prior to trial in the Central District of California, the government moved for an evidentiary ruling as to whether the contemporary community standards of the Northern District of Iowa or the Central District of California would apply at trial. The District Court, Judge E. Avery Crary presiding, held that the contemporary community standards of the Northern District of Iowa were applicable under the guidelines established in Hamling v. United States, 418 U.S. 87, 102, 94 S.Ct. 2887, 2899-2900, 41 L.Ed.2d 590, 611-12 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 2641-42, 37 L.Ed.2d 446, 464 (1973); and Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419, 430-31 (1973). It also held that these Iowa community standards could not be proven solely by the means of expert testimony. United States v. Elkins, 396 F.Supp. 314 (C.D.Cal. 1975).

On May 22, 1975, the California District Court, sua sponte, dismissed the indictment. The court concluded that:

a jury selected from the residents of this District could not determine the contemporary community standards of the Northern District of Iowa by reason of its members not possessing the knowledge of a juror in Iowa of the community standards in which the Iowa juror resides, necessary in deciding what conclusion the average person, applying the contemporary standards of Iowa, would reach based on the facts adduced in the instant case.

United States v. Elkins, supra at 396 F.Supp. 318.

This dismissal was consistent with the action taken in five other obscenity cases transferred to the Central District of California since the Supreme Court's decision in Hamling v. United States, supra, and Miller v. California, supra.

The government chose not to appeal this dismissal to the Ninth Circuit Court of Appeals. Instead, five of the six defendants were reindicted in the Northern District of Iowa on June 19, 1975, on essentially the same charges as in the July 11, 1974, indictment. The defendants again moved for and were granted a change of venue by Judge McManus. United States of America v. Robert Elkins, et al., No. CR 75-4022 (N.D.Ia. October 1, 1975).

In this order, Judge McManus found that: (1) all the defendants and their attorneys live in California; (2) most of the witnesses would come from California, especially in light of the defendants' willingness to stipulate to the testimony of any Iowa witnesses, including those who would testify that the material mailed was obscene; (3) the location of most of the documents, records and events likely to be at issue is in California in light of defendants' stipulation; (4) the defendants' businesses would be severely disrupted if trial was held in Iowa; and (5) one of the defendants has a heart condition which would make travel unwise. Judge McManus concluded that despite the preference given to the prosecution's initial choice of forum and despite the fact that the District Court in California had dismissed the prior indictment, a transfer was necessary in the interest of justice and convenience.

The government argues on appeal that the normal rules affecting transfers under Rule 21(b) do not apply in obscenity cases. It argues that under the contemporary community standard set forth in Hamling v. United States, supra ; United States v. 12 200-ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); and Miller v. California, supra, the only appropriate finder of fact is a jury selected from the community in which the offense took place. Since the government chose to bring this indictment in Iowa, only an Iowa jury applying Iowa contemporary community standards can determine whether this material is obscene. ²

We would ordinarily be reluctant to disturb the District Court's decision either to grant or refuse a request to transfer. However, the present situation requires a careful examination of conflicting policies. Initially, we recognize that the government's choice of forum is ordinarily to be respected. However, the convenience of the defendants to be tried in the district where they live and work, where their attorneys reside and where the majority of the witnesses live may overcome that presumption.

Criminal defendants have no constitutional right to a trial in their home districts, nor does the location of a defendant's home have "independent significance in determining whether transfer to that district would be 'in the interest of justice.' " Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 245-246, 84 S.Ct. 769, 772, 11 L.Ed.2d 674, 679 (1964). The only applicable constitutional provisions are Article III, § 2, and the Sixth Amendment which require the trial to be held in the state where the alleged crime has been committed. The prosecution has a choice of venue only in cases involving crimes occurring in more than one judicial district.

Rule 21(b) interjects into criminal law an analogue to the civil doctrine of forum non conveniens. Cf. 28 U.S.C. § 1404(a). The Supreme Court has held that Congress may, by a special venue statute, deprive courts of their discretionary power to transfer cases arising under that statute. For example, in United States v. National City Lines, Inc., 334 U.S. 573, 68 S.Ct. 1169, 92 L.Ed. 1584 (1948), the Court held that the legislative history of § 12 of the Clayton Act showed such a Congressional intent, and that a plaintiff's choice among several proper venues cannot be overridden. The plaintiff's choice was final even when it was the United States that brought the case.

In the instant case, there is ample legislative history indicating Congress' concern to allow the...