United States v. United States District Court, 12107.
| Decision Date | 25 January 1954 |
| Docket Number | No. 12107.,12107. |
| Citation | 209 F.2d 575 |
| Parties | UNITED STATES v. UNITED STATES DISTRICT COURT FOR EASTERN DISTRICT OF TENNESSEE et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
H. Brian Holland, Asst. Atty. Gen., David L. Luce, Fred G. Folsom, Sp. Asst. to Atty. Gen., for United States.
Robt. L. Taylor, Knoxville, Tenn., for respondents.
Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.
The defendant, Edgar L. Grubb, was indicted in two counts in the United States District Court for the Middle District of Tennessee, for alleged violation of the Internal Revenue Code in wilfully and knowingly attempting to defeat and evade a large part of his proper federal income taxes by filing and causing to be filed with the Collector of Internal Revenue, Collection District of Tennessee, at Nashville, false and fraudulent returns for the calendar years 1944 and 1945.
On motion of the defendant, the District Court for Middle Tennessee transferred the case to the Eastern District of Tennessee, Northern Division, for disposition upon the ground that it appeared from the indictment and the bill of particulars See Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 that the offenses charged were committed in both the Eastern and Middle Districts of Tennessee and that the interest of justice required that the case be transferred as requested.
Subsequently, the United States District Judge for the Northern Division of the Eastern District of Tennessee, on motion of the United States Attorney for his district, ordered the case to be retransferred to the Middle District of Tennessee, pursuant to like action previously taken by the Judge for the Southern Division of the Eastern District of Tennessee who had stated his reasons in a carefully considered opinion.
When the case was returned to the Middle Tennessee District, the judge of that court, on motion of the defendant, held that the case had been lawfully and properly transferred by him to the Eastern District under authority of Rule 21 (b) of Federal Rules of Criminal Procedure, 18 U.S.C.A.; and that the judge of the last-mentioned district court possessed no right or authority to review and nullify his order. He refused to accept the retransfer of the case and ordered it stricken from the docket of his court.
The United States, through an Assistant Attorney General, has moved this appellate court to issue a mandatory order directing the United States District Court for the Eastern District of Tennessee, Northern Division, to vacate and expunge its order of August 10, 1953, refusing to accept the transfer of this criminal case. An order to show cause why this motion of the United States should not be granted was issued by this court and the same has been duly answered by the district judge to whom it was addressed. He adheres to his original position upon reasoned grounds which brings about a "judicial stalemate"; wherefore, it becomes the duty of this court to resolve the conflict of opinion among trial judges in the same state in this procedural matter which is of practical importance now and perhaps in future cases. Mandamus or a proceeding in the nature of mandamus is the appropriate procedure by which to decide the issue presented. See United States v. United States District Court, 334 U.S. 258, 263, 68 S.Ct. 1035, 92 L.Ed. 1351; Ex parte United States, 287 U.S. 241, 247, 53 S.Ct. 129, 77 L.Ed. 283; McClellan v. Carland, 217 U.S. 268, 280, 30 S.Ct. 501, 54 L.Ed. 762; State of Tennessee, by Wolfenbarger, etc., v. Taylor, 6 Cir., 169 F.2d 626, 637, which rather comprehensively reviews the subject of mandamus.
Rule 21(b) of the Federal Rules of Criminal Procedure provides: "The court upon motion of the defendant shall transfer the proceeding as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged." Emphasis supplied.
The Bill of Particulars, filed by the United States Attorney in response to defendant's motion, averred that the defendant resides in Knoxville, Tennessee, which is in the Eastern District, Northern Division of Tennessee; that only one witness resides in Nashville while forty-eight witnesses live...
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