United States v. Haley, Crim. No. 80-00071.

• Citation: 504 F. Supp. 1124
• Decision Date: 07 January 1981
• Docket Number: Crim. No. 80-00071.
• Parties: UNITED STATES of America v. Millard Clifford HALEY, Francis William Hewes, II, Andrew J. Delosky, Howard E. Caldwell, Ted Michael Ferrell, a/k/a Franklin K. Harris, Robert Lee Nations, Craig A. Cloninger, William T. Brooks, Gene M. Simpson, Thomas Glenn Chester, James F. Brannon, Jr., Luther Eugene Hickey, Carl S. DeMarchi, Frank Pytryga, William L. Warner, Walter Langford, John Carroll Craver, Roger Boone, Charles Franklin Caldwell, Gerrold H. Pettus, Michael Dalessandro.
• Court: U.S. District Court — Eastern District of Pennsylvania

504 F. Supp. 1124

UNITED STATES of America v. Millard Clifford HALEY, Francis William Hewes, II, Andrew J. Delosky, Howard E. Caldwell, Ted Michael Ferrell, a/k/a Franklin K. Harris, Robert Lee Nations, Craig A. Cloninger, William T. Brooks, Gene M. Simpson, Thomas Glenn Chester, James F. Brannon, Jr., Luther Eugene Hickey, Carl S. DeMarchi, Frank Pytryga, William L. Warner, Walter Langford, John Carroll Craver, Roger Boone, Charles Franklin Caldwell, Gerrold H. Pettus, Michael Dalessandro.

Crim. No. 80-00071.

United States District Court, E. D. Pennsylvania.

January 7, 1981.

Alfred A. Gollatz, Curtis E. A. Karnow, Elizabeth K. Ainslie, Asst. U. S. Attys., Philadelphia, Pa., for the U. S.

Michael A. Seidman, Philadelphia, Pa., for Clifford Haley.

Timothy P. Booker, Philadelphia, Pa., for F. W. Hewes, II.

David R. Eshelman, Reading, Pa., for Howard E. Caldwell.

Raul LeRow, Atlanta, Ga., for W. T. Brooks.

Paul M. Yatron, Shillington, Pa., for Gene M. Simpson.

Michael vonMoschzisker, Philadelphia, Pa., for Walter Langford.

Margaret M. Boyce, Philadelphia, Pa., for C. F. Caldwell.

MEMORANDUM AND ORDER

TROUTMAN, District Judge.

American colonists, incensed by King George III's disregard of their historic rights as Englishmen, justified the American Revolution by submitting "the Facts to a candid world" in the Declaration of Independence, in which they listed and decried "repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny". One particularly offensive and universally detested practice included transportation "beyond the Seas to be tried for pretended offenses". To protect citizens of the new nation from a similar abuse, the framers of the American Constitution inserted a provision requiring that trial be held in the state where the crime was committed,¹ Essentially a venue requirement, Article III's mandate safeguards against the "unfairness and hardship" accompanying a prosecution brought in a remote place.² To prevent encroachment upon this right, the early amendments to the Constitution further conferred upon an accused not only the rights to a speedy and public trial but also to "an impartial jury of the state and district wherein the crime shall have been committed".³ Embodying these constitutional precepts, Fed. R.Crim.P. 18 provides in relevant part that "the prosecution shall be had in a district in which the offense was committed". Given this historic commitment, when an accused challenges the propriety of venue in a criminal case, the matter deserves plenary consideration.

Where the Government alleges a multi-district conspiracy venue is proper in any district in which a co-conspirator has committed overt acts.⁴ However, the mere fact of proper venue in the district where the Government brings the prosecution does not require that trial be held therein. Fed. R.Crim.P. 21(b) provides in relevant part that "for the convenience of the parties and witnesses, and in the interests of justice, the court upon motion of the defendant may transfer the proceeding as to him ... to another district". Interpreting this rule in Platt v. Minnesota Mining & Manufacturing Co.,⁵ the Supreme Court delineated ten relevant factors, which include location of defendants, possible witnesses, counsel, events likely to be in issue and documents and records likely to be involved. In addition, the disruptive impact upon a defendant's business unless the court transfers the case, expense to the parties, the relative geographic accessibility of the place of trial, docket conditions in the involved districts or divisions, and any other "special factors" possibly affecting transfer⁶ should be considered. Exercising broad discretion in deciding transfer motions,⁷ courts will upset the Government's choice of forum only upon a showing by defendants of "substantial inconvenience".⁸

In the case at bar, the Government, in a complex fifty-two count indictment, originally charged twenty-one defendants with various violations of the Racketeering Influenced and Corrupt Organizations Act (RICO),⁹ conspiracy to violate the Act,¹⁰ mail fraud,¹¹ wire fraud,¹² interstate transportation of stolen property,¹³ and receipt of stolen goods.¹⁴ Entries of guilty and nolo contendere pleas have reduced the number of defendants to seven.¹⁵

Specifically, the Government accused defendants of operating a network of "bustout" corporations through which individual defendants fraudulently obtained favorable credit ratings for their businesses with the help of co-defendants and then purchased wholesale goods on credit which they sold for cash at prices below wholesale. To placate victim manufacturers who demanded payment for goods, defendants "lulled" them by promising that funds would be forthcoming. The indictment further charged that defendants "took down" the corporations by formally filing for bankruptcy or simply disappearing. Defendants, all indigent with court-appointed counsel and residing in the Northern District of Georgia, assert generally that the "interests of justice" will be better served by trial in their home district and therefore move for transfer pursuant to Fed.R.Crim.P. 21(b). Essentially defendants argue that they cannot afford the cost of travel to and living in the Eastern District of Pennsylvania for the duration of a lengthy trial. Defendants further contend that witnesses cannot afford to appear on their behalf in such a distant forum and that forcing them to trial in this district contravenes the purpose of Rule 21(b) by denying them a fair trial.¹⁶

Examination of the Platt factors¹⁷ compels the conclusion that trial in the Northern District of Georgia comports with the purpose of the Rule and conduces to affording defendants a truly fair trial. First, all remaining defendants reside in the Northern District of Georgia; all have moved for transfer to their home district. Although this particular fact has no "independent significance",¹⁸ it nevertheless deserves "real weight".¹⁹

Second, the location of possible witnesses strongly militates in favor of transfer. Generally, a naked allegation that witnesses will be inconvenienced by trial in a distant forum will not suffice for transfer. In order to exercise sound discretion in deciding the motion, courts must be well informed. Hence, transfer motions must identify inconvenienced witnesses whom defendants propose to call²⁰ and contain a "showing" of the proposed witnesses' testimony.²¹ Defendants must offer specific examples of witnesses' testimony and their inability to testify because of the location of trial.²² In short, in order to make an informed decision regarding the necessity of those defense witnesses who would be inconvenienced or unable to attend trial absent transfer, the court must rely on "concrete demonstrations" of the proposed testimony.²³

In the case at bar, defendant Haley avers by affidavit that he proposes to call at trial an attorney, a medical doctor, a businessman, friend, various consumers and a prison guard who would be willing to testify on his behalf in Atlanta but are either too poor or too busy to travel to the Eastern District of Pennsylvania.

Defendant Hewes currently proposes to call thirty witnesses from North Carolina, thirteen from Georgia, six from South Carolina and one each from Tennessee and Alabama. All of these witnesses would willingly travel the comparatively short distance to testify in Atlanta while purportedly being unwilling to travel to this district for like purposes. These proposed witnesses include representatives from credit agencies, salesmen for nationally prominent firms who had business dealings with defendant, bank officers who verified defendant's financial statements, a printer who will state that false information was given to the FBI, a company president to whom the FBI made misrepresentations as well as various other factual and character witnesses.

Defendant Howard Caldwell, currently incarcerated at the federal correctional institute in Lexington, Kentucky, asserts that his two "fact" witnesses and six "character" witnesses all are unable or unwilling to invest the time and money to travel to this district and testify on his behalf. However, each of these witnesses, as with other defendants, would be available to testify at a trial held near their homes in the Northern District of Georgia. His proposed witnesses include members of the business community, former employers and employees, an attorney and a former Justice Department employee.

Defendant Brooks asserts that twenty-six witnesses, including numerous attorneys, judges, a police chief and former employees of "Rekcus", one of the corporations allegedly formed for the purpose of bankruptcy,²⁴ would be willing to testify on his behalf if trial were held in Atlanta. Business commitments preclude these witnesses' testimony if trial were held in this district.²⁵

Defendant Simpson plans to call nine witnesses, including a medical doctor, a law enforcement official, a banker, former employee and friends. He complains that occupational commitments make attending trial in this district a "serious inconvenience" for them, although they could and would attend trial in the Northern District of Georgia.

Defendant Charles Caldwell proposes to call five fact witnesses, including bankers, accountants and four character witnesses. None of them will be able to testify unless the pending motion is granted.²⁶

These affidavits uniformly reveal that proposed defense witnesses are available, willing and able to testify in the Northern District of Georgia while being unavailable, unwilling and unable to testify in the Eastern District of Pennsylvania. Even allowing for some overstatement of defense counsels' case and the number of possible defense witnesses, their background and proposed testimony demonstrate the unfairness and injustice of requiring trial in this district. Although it is unlikely that all ...