United States v. Barrientos, Crim. No. 79-180.
Decision Date | 23 January 1980 |
Docket Number | Crim. No. 79-180. |
Citation | 485 F. Supp. 789 |
Parties | UNITED STATES of America v. Ramon BARRIENTOS and Michael Karasik. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Roberto Rivera-Soto, Philadelphia, Pa., W. Cecil Jones, Asst. U. S. Atty., for plaintiff.
William A. Clay, Miami, Fla., for Mr. Barrientos.
Carl H. Lide, Miami, Fla., for Mr. Karasik.
On July 31, 1979, an indictment was returned by a federal grand jury in the Eastern District of Pennsylvania. The indictment charged that Ramon Barrientos, Cesar Sandino Grullon, Virgilio Armando Mejia, and Michael Karasik had conspired in violation of 18 U.S.C. § 371 to violate 22 U.S.C. § 2778 which makes it a crime to export certain categories of weapons without a license from the federal government. The indictment alleged the commission of overt acts in furtherance of the conspiracy both in the Eastern District of Pennsylvania and in the Southern District of Florida. The geographic diversity of the indictment paralleled the geographic diversity of the four defendants: Grullon worked in the Eastern District of Pennsylvania and resided in nearby New Jersey. Mejia worked and resided in the Eastern District of Pennsylvania. Barrientos and Karasik both resided and worked in the Southern District of Florida.1
On October 5, 1979, I granted the Government's motion to sever the trial of defendants Barrientos and Karasik from the trial of defendants Grullon and Mejia. Thereafter, defendants Grullon and Mejia were tried without a jury. At the close of the Government's case, I denied motions for directed verdicts of acquittal predicated on the strict scienter standard articulated by the Court of Appeals for the Fifth Circuit in United States v. Wieschenberg, 604 F.2d 326 (1979). I held that in this Circuit the proper construction of 22 U.S.C. § 2778 ( ) invokes the less demanding scienter standard reflected in Judge Broderick's jury instructions in United States v. Byrne, 422 F.Supp. 147, 168 n.20 (E.D.Pa.1976), in part affirmed and in part reversed on other grounds, sub nom. United States v. Cahalane, 560 F.2d 601 (3d Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978). At the close of the case, I found defendants Grullon and Mejia guilty. In explaining my verdict, as announced from the bench on December 4, 1979, I stated that the Government's case fully met the Byrne standard (sustained in Cahalane) although not, in my view, the Wieschenberg standard as I understood it.
The trial of defendants Barrientos and Karasik was scheduled to follow shortly after the conclusion of the trial of Grullon and Mejia. On December 12, 1979, Barrientos and Karasik moved to transfer the trial to the Southern District of Florida. On December 14 the Government filed its memorandum opposing the transfer, and on that day I held a hearing on the motion. Following the hearing I granted the motion to transfer, announcing my decision from the bench.2 My decision involved an examination of the several relevant factors identified, and apparently approved, in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 244, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964). After examining the various factors, I concluded with the following exposition of the elements which seemed to me to be controlling:
The Government has now moved for reconsideration of the order of transfer. The reason assigned is that I did not give weight to the likelihood that the trial of Messrs. Barrientos and Karasik, if it is to take place in the Southern District of Florida rather than here, will be governed by the standard of scienter prevailing in the Fifth Circuit — namely, the strict Wieschenberg standard which I declined to follow in the trial of Messrs. Grullon and Mejia. According to the Government:
The contention is not one of Government pressed in its papers opposing the motions to transfer, or in the hearing on the motions. Nonetheless, I will consider the Government's contention on its merits: no purpose would be served in persisting in the order of transfer if it was an abuse of discretion or erroneous as a matter of law.
I find unpersuasive the Government's submission that Platt v. Minnesota Mining and Manufacturing Co. "sub silentio" requires that I include, among the factors to be considered as bearing on the appropriateness of transfer, the likelihood that a change of venue will carry with it a change of applicable law. To the extent that Platt speaks to the matter at all, I think it counsels a judge not to take a consideration of this sort into account. In that case, a district judge sitting in Illinois declined to transfer a criminal case to Minnesota for the reason, inter alia, that in the judge's view it would be hard to select in Minnesota a jury not biased in favor of the defendant, a large Minnesota-based corporation. The Court of Appeals for the Seventh Circuit held that it was inappropriate for a judge, in weighing the elements going into a discretionary determination...
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