United States v. Oster, Crim. No. 83-A0006-01.
| Decision Date | 15 February 1984 |
| Docket Number | Crim. No. 83-A0006-01. |
| Citation | 580 F. Supp. 599 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | UNITED STATES of America, Plaintiff, v. Marvin OSTER, Defendant. |
S. Benjamin Bryant, Asst. U.S. Atty., Huntington, W.V., for plaintiff.
Charles Kincaid, Huntington, W.V., Arnold D. Levine, Tampa, Fla., for defendant.
On December 9, 1983, a grand jury returned the within four-count indictment against the Defendant, Marvin Oster, wherein Count One alleges that during approximately the first part of May, 1981, in the Southern District of West Virginia and elsewhere, the Defendant, Marvin Oster, did knowingly and unlawfully conspire with others to commit those offenses against the United States which are alleged in Counts Two through Four of the within indictment, in violation of 18 U.S.C. § 371. Counts Two through Four allege that on or about May 3, 1981, Oster violated, and aided and abetted and caused others to violate, 18 U.S.C. §§ 659,1 23142 and 2315,3 respectively, as well as 18 U.S.C. § 2, within the Southern District of West Virginia. Currently pending before the Court are the Defendant's motions (1) to dismiss the indictment for improper venue or, alternatively, to transfer this action to the Middle District of Florida, pursuant to Rule 21(b), Federal Rules of Criminal Procedure, and, in the further alternative, (2) to transfer this action from the Parkersburg Division to the Huntington Division of this Court. For the reasons set out below, the Court hereby denies the aforementioned motions.
Oster asserts that he may not be prosecuted in this district, inasmuch as his joinder in the alleged conspiracy and substantive violations occurred, if at all, after the venue-setting acts transpired or were engaged in by his co-conspirators. In support of this proposition, the Defendant relies upon U.S. v. Peraino, 645 F.2d 548 (6th Cir.1981) cert. denied, 454 U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 (1982). In Peraino, the Sixth Circuit reversed the convictions of two defendants on charges of conspiring to violate the federal obscenity laws and of transporting an obscene film in interstate commerce where "there was no evidence linking ... them with any of the co-conspirators or with the film itself until at least eight months after the" venue-setting act. Id. at 549. In the case at bar, however, the Government contends that its "evidence will prove ... that Oster's role in the alleged conspiracy and substantive violations consistent of agreeing to purchase the stolen aluminum ingots prior to their transportation from the Southern District of West Virginia, and possibly prior to the actual theft of the ingots from interstate shipment." The Court finds, therefore, that Oster's reliance on Peraino is misplaced.
At this stage of the proceedings, therefore, the Court concludes that venue would appear to be proper in the Southern District of West Virginia over both the conspiracy5 and substantive6 charges contained against Oster in the within indictment. Accordingly, the Court hereby denies Oster's motion to dismiss the within indictment for improper venue.
Oster further moves the Court to transfer the within indictment to the Middle District of Florida, pursuant to Rule 21(b), Federal Rules of Criminal Procedure, which provides that:
"For the convenience of the parties and witnesses, and in the interest of justice, the Court upon motion of the defendant may transfer the proceedings as to him or any one of the counts thereof to another district."
In ruling on the Defendant's motion, the Court must weigh the following factors:
Platt v. Minnesota Mining and Manufacturing Co., 376 U.S. 240, 243-44, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964). "To warrant a transfer the defendant must demonstrate and the Court must be satisfied that the prosecution in the district where the indictment was properly7 returned will result in a substantial balance of inconvenience to ... the Defendant." U.S. v. Baltimore and Ohio Railroad Co., 538 F.Supp. 200, 205 (D.D.C.1982), quoting U.S. v. Jones, 43 F.R.D. 511, 514 (D.D.C. 1967).
The Defendant, Marvin Oster, resides within the Middle District of Florida—a factor favoring transfer to that district. See e.g., U.S. v. Atwood, 538 F.Supp. 1206, 1207 (E.D.Pa.1982).
In support of his motion for a transfer, Oster maintains that practically all of the witnesses which he will call to testify at the trial of this action reside in the Middle District of Florida. Included among these defense witnesses are: various employees of Oster's employer, Sol Walker & Company, Inc., which is the corporate entity which purchased the aluminum ingots from one of Oster's unindicted co-conspirators, William Smith; various bank employees who will testify as to bank records pertaining to both payments which Sol Walker & Company, Inc. made to Smith for the ingots and other transactions between them; as well as several good character witnesses. The Government has indicated, however, that a majority of its witnesses either reside in this district, or far closer to this district than they do to the Middle District of Florida. The Court finds, therefore, that this factor neither militates for, nor against the transfer of this action.8
The Government maintains that its evidence will establish that the aluminum ingots, which were in transit from Ravenswood, West Virginia, to Scottsboro, Alabama, were stolen in Mason County, West Virginia, and were taken initially to Proctorville, Ohio, from which they were subsequently transported through the Southern District of West Virginia en route to Tampa, Florida, where they were sold to Oster, who was acting on behalf of Sol Walker & Company, Inc. On the basis of this proffer, the Court finds that this factor is neutral with respect to the Defendant's Rule 21(b) motion.
The majority of documents which the Defendant intends to introduce into evidence for the jury's consideration are located outside of this district. The Government, on the other hand, has indicated that it will be introducing into evidence documents which are in the custody of the Kaiser Aluminum Company at Ravenswood, West Virginia. Given the modern means of rapid transportation which are available to both the Government and the Defendant, the Court finds that this factor is of little concern. See U.S. v. Posner, 549 F.Supp. 475, 478 (S.D.N.Y.1982); U.S. v. Clark, 360 F.Supp. 936, 943-44 (S.D.N.Y.) mandamus denied sub nom. U.S. v. Griesa, 481 F.2d 276 (2d Cir.1973).
The Defendant has not alleged that he owns an interest in Sol Walker & Company, Inc. Rather, the Defendant has only alleged that he is an employee of that company. Inasmuch as the Defendant will be unavailable to his employer during working trial hours and presumably will be assisting counsel during the evening hours, regardless of where the trial of this action occurs, the Court finds that this factor is neutral with respect to the Defendant's Rule 21(b) motion.9
Inasmuch as neither the Government, nor the Defendant has addressed this factor in anything other than speculative and conclusory terms, the Court has assigned no weight to this factor. Cf., U.S. v. Posner, 549 F.Supp. 475, 478-79 (S.D.N.Y. 1982).
The Defendant has retained the services of a Tampa, Florida, attorney. The Assistant United States Attorney who is representing the Government in this action, and who would likely represent the Government even if this action were transferred to the Middle District of Florida, resides in Huntington, West Virginia. Accordingly, the Court finds that this factor is neutral with respect to the Defendant's Rule 21(b) motion.
Mindful of the location of the witnesses and counsel, Part II B and G, supra, the Court finds that this factor is neutral with respect to the Defendant's Rule 21(b) motion. In doing so, the Court would note that Parkersburg has adequate flight service to accommodate that portion of the witnesses who would have to travel by air regardless of whether the trial of this action takes place in Parkersburg or Tampa.
Since the enactment of the Speedy Trial Act, 18 U.S.C. § 3161, et seq., the Court perceives that this is no longer an appropriate factor for consideration in a Rule 21(b) analysis. See U.S. v. Bein, 539 F.Supp. 72, 75-76 (N.D.Ill.1982).
Neither the Defendant, nor the Government have raised any "other special elements" which merit discussion.
After having weighed all of the factors enumerated above, the Court finds that the Defendant has not demonstrated that the further prosecution of the within indictment in this district would "result in a substantial balance of inconvenience" to the Defendant. Accordingly, the Court hereby denies the Defendant's motion for a transfer of this action to the Middle District of Florida, pursuant to Rule 21(b), Federal Rules of Criminal Procedure.
In considering the Defendant's motion that the Court transfer this action from the Parkersburg Division to the Huntington Division, the Court is mindful that under Rule 18, Federal Rules of...
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