CHANGE OF VENUE
Sixth Amendment to the Constitution of the United States
Rule 18, F.R.CR.P.
Rule 20, F.R.CR.P.
Rule 21, F.R.CR.P.
Rule 22, F.R.CR.P.
CONSTITUTIONAL PROVISIONS:
Art. Ill, Sec. 2, Paragraph 3, of the United States Constitution provides that “trial shall be held in the state where the said crimes shall have been committed, but when not committed within any state, the trial shall be at such place or places as congress may by laws have directed.” The Sixth Amendment also provides that trial shall be held in the “District wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
PLACE OF TRIAL WITHIN DISTRICT:
Rule 18 of the Federal Rules of Criminal Procedure provides that unless otherwise permitted by statute or the criminal rules, “the prosecution shall be had in a district in which the offense was committed.” The Rule further provides that the Court shall determine “the place of trial within the district with due regard to the convenience of the defendant and the witnesses.”
This Rule serves to implement the Sixth Amendment requirement that a criminal defendant have the right to trial” …by an impartial jury” in the “District wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
There is no constitutional right insuring that a defendant may be tried within a given division of a district. US v. Anderson, 328 US 699, 704-705 (1946); US v. James, 528 F.2d 999 (5th Cir.), cert. denied, 429 US 959 (1976); Lafoon v. US, 250 F.2d 958 (5th Cir. 1958); US v. Burns, 662 F.2d 1378 (11th Cir. 1981).
But where the government has apparently chosen a division with demographics having substantially fewer persons of an identifiable class than the members of this class in the defendant’s home division, counsel should move to transfer venue on equal protection ground sand under Batson v. Kentucky.
“The defendant [has] the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” Batson v. Kentucky 476 U.S. 79, 90 L Ed. 2d 69, 80 (1986). Selecting the jury members in a way that systematically excludes Hispanics from the jury violates the Equal Protection Clause and fundamental principles of fairness and a “fair cross section” of his community as guaranteed by the Sixth Amendment. J.E.B. v. Alabama ex rel. T.B., 511 U.S. –, 128 L.Ed. 2d. 89, 107, n. 19 (1994), citing Thiel v. Southern Pacific Co., 328 U.S. 217, 90 L.Ed. 1181 (1946).
“The Equal Protection Clause guarantees the defendant that [the Government] will not exclude members of his race from the jury venire…” Batson v. Kentucky, 90 L.#.d.2d. at 80, citing Strauder
- West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880).
The effect of selecting a situs for trial at this distant location also offends the purpose of the Jury Selection and Service Act of 1968 [Title 28 U.S.C. §1861 et.seq.] which is to obtain jury lists “that represent a cross section of the relevant community” and to “establish an effective bulwark against impermissible forms of discrimination and arbitrariness.” 1968 U.S. CodeCong&Adm.News, pp. 1792, 1794.
“[Excluding] identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” Taylor v. Louisiana, 419 U.S. 422, 42 L.Ed.2d. 690, 698 (1975). Courts have taken into account just such considerations as the effect the selection of a particular situs will have upon the “fair cross-section” requirements of the Jury Selection and Service Act, holding same impermissible. U.S. v. Fernandez, 480 F.2d 726, 734 (2nd Cir. 1973); Alvorado v. State, 486 P.2d 891 (S.C. Ala. 1971); Mallett v. Missouri, 494 U.S. 1009 (1990), Marshall, J., dissenting from denial of cert. [“I would grant the petition to consider whether a trial court’s decision to transfer a capital trial of an Afro-American defendant to a country with no residents of the defendant’s race violate the Equal Protection
Clause or the Sixth Amendment’s fair cross section requirement….”].
“In particular, it seems to us that the …holding of certain trials in Westbury rather than Brooklyn may well lead to departures from the prescriptions of the Jury Selection and Service Act.” U.S. v. Fernandez, 480 F.2d 726, 734 (2nd Cir. 1973)
COURT MUST GIVE DUE REGARD TO THE CONVENIENCE OF DEFENDANT AND WITNESSES:
In selecting the division, the court must give “due regard to the convenience of the defendant and the witnesses.” Rule 18, F.R.CR.P.. See also: Dupoint v. US, 388 F.2d 39 (5th Cir. 1967); US v. Burns, 662 F.2d 1378 (11th Cir. 1981); US v. Balistrieri, 778 F.2d 1226 (7th Cir. 1985); US v. Fernandez, 480 F.2d 726 (2nd Cir. 1973).
In Dupoint v. US, 388 F.2d 39 (5th Cir. 1967), where the trial court had overruled a defendant’s objection to trial in a division 42 miles from the one in which the offense was committed based on the convenience of the prosecutor, the Fifth Circuit held that the trial court is “mandatorily directed to exercise due regard for the convenience of the defendant and the witnesses…” Dupoint v. US, Supra, at p.43.
The Court further stated that:
“That a defendant should be tried in the division in which the offense was committed, especially when he resides there, is not lightly to be evaded. The real effect of Rule 18 is that it is not to be done except with due regard for the defendant’s convenience and that of the evidenced by the Constitutional requirement that none shall be prosecuted outside the district in which the offense is committed, it is the public policy of the Country that one must not arbitrarily be sent, without his consent, into a strange locality to defend himself against the powerful prosecutorial resources of the Government.” Dupoint v. US, Supra at p. 44.
Similarly, in US v. Fernandez, 480 F.2d 726 (2nd Cir. 1973), where the case had been assigned to a judge in Westbury, a division 26 miles from the one in which the crime had occurred, the defendant moved to reassign the case to the division in which the crime had occurred for the convenience of his witnesses. US v. Fernandez, Supra, at p. 730. The trial court denied the motion and on appeal the Second Circuit, in noting that “the only person convenienced by trial at Westbury was the judge,” Supra, at p. 730, held that denying the motion violated Rule 18 of the Federal Rules of Criminal Procedure, and if the defendant had shown prejudice it “might well have reversed on that ground alone.” US v. Fernandez, Supra, at p. 730.
It is also clear that the place of trial cannot be determined based on a “general policy” within a district to schedule criminal trials efficiently. US v. Burns, 662 F.2d 1378 (11th Cir. 1981). In Burns, where defendant’s trial was moved from Huntsville, Alabama to Birmingham (one hundred miles away), the trial court denied defendant’s motion to transfer the case to the division in which the crime occurred, based on a district policy to try all criminal cases there. The Eleventh Circuit rejected this per se rule holding that the failure of the trial court to exercise its discretion “within the ambit of Rule 18” was reversible error. US v. Burns, Supra, at p. 1383.
“The reasoning which would support an exercise of discretion in this manner, however, is necessarily circular: all criminal cases are scheduled for trial in Birmingham, none are scheduled for trial in Huntsville; therefore, trial can be scheduled more promptly in Birmingham. More than incantation of the words ‘speedy trial’ is required to distinguish the order in this case from an application of the per se rule about which defendants complain. Application of such a rule in this case was reversible error.”
We think that a district judge’s exercise of discretion resulting in a trial in an environment alien to the accused over a proper objection must be supported by a demonstration in the record that the judge gave due regard to the factors now incorporated in Rule 18. The record in this case does not contain such a demonstration. Obviously trial in Birmingham was inconvenient to objecting defendants. Obviously trial in Birmingham was inconvenient to virtually all of the many witnesses. For speedy trial considerations to outweigh such factors they should be set forth in findings that are sufficiently detailed to allow review. The record before us does not furnish any hint of a reason why a trial could not be held in the Northwestern Division within a reasonable time except for the policy of the court not to do so. The requirements of Rule 18 compel that this be held insufficient.” US v. Burns, Supra, at p. 1383.
VENUE WHERE OFFENSES CHARGED WERE COMMITTED IN MORE THAN ONE DISTRICT:
When you are dealing with crimes that were committed in more than one district or offenses which are continuing in nature, venue must be determined pursuant to the provisions of Title 18, U.S.C., §3237(a) that an offense “…begun in one district and completed in another, or committed in more than one district, may be …prosecuted in any district in which such offense was begun, continued, or completed.” The danger inherent in such a “continuing offense doctrine” is that it vests in the Government broad discretion, US v. Johnson, 323 US 273, 275 (1944); US v. Provo, 215 F.2d 53 (2nd Cir. 1954); US v. Parr, 17 F.R.D. 512 (S.D. Tex. 1955), subject only to the seldom granted provisions of Rule 21(a) and (b), F.R.CR.P., which allows transfer to another district where “prejudice” can be shown or “the convenience of parties and witnesses” or “the interest of justice” would require. In US v. Cabrales, 524 US 1, 118 S.Ct. 1792, 141 L.ED.2d 1 (1998) The Supreme Court held that venue for money laundering was proper in the place where the money was laundered, not where the illegal drug activity which generated the money occurred. Even though the drug deals occurred in Missouri, the money laundering offenses were being conducted and completed in Florida.
Rule 18 of the Federal Rules of Criminal Procedure expressly provides that “the court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses.”
“Rule 18. Place of Prosecution and Trial
…The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.” (emphasis supplied) Rule 18, F.R.CR.P.
The 5th Circuit has held that the Trial Judge is to consider the convenience of “the defendant and his witnesses” [emphasis added] United States v. James 528 F.2d 999, 1021 (1976), not that of the government.
“The real effect of Rule 18 is that it is not to be done except with due regard for the defendant’s convenience and that of the witnesses. The convenience of the government is not a factor.” Dupoint v. United States 388 F.2d 39, 44 (5th Cir. 1967)
The Advisory Committee notes to Rule 18 as well reflect that the discretion given to the trial court for fixing the place of trial must take into account “due regard to the convenience of the defendant and his witnesses.” [emphasis added] Adv. Comm. Notes to Rule 18, F.R.CR.P. (August 1, 1989).
The paramount consideration for fixing a place within the District for trial under Rule 18 are the convenience to the defendant and witnesses and the prompt administration of justice- – “the court is not authorized to fix the place on trial on the basis of other considerations to the exclusion of these.” United States v. Burns, 662 F.2d 1378, 1383 (11th Cir. 1981).
VENUE WHERE OFFENSE CHARGED IS ONE OF OMISSION:
To compound the hardship upon the defendant, the Supreme Court has found single district venue [when the offense charged was a “failure” to perform an act required by law] to lie only in the district where the required act was not performed. In Johnson v. US, 351 US 215, 220 (1956), for example, the Court held that venue in a selective service case for refusal to report for civilian work lay only in the district to which the defendant had been ordered to report, even though the defendant had never been present in that district and “no act of any kind was committed in that distant district.” Johnson v. US, 351 US 215, 223 (1956) (dissenting opinion). See also: Travis v. US, 364 US 631 (1961) [holding that venue for a prosecution for false statements lies only in Washington where an affidavit was mailed to the National Labor Relations Board, not in Colorado, where the defendant resided and the affidavit had been prepared, signed and mailed]. For Opinions finding multiple venue in similar situations: US v. Williams, 424 F.2d 344 (5th Cir. 1970), rev’d on other grounds, [en blanc], 447 F.2d 1285 (5th Cir. 1971), cert. denied, 405 F.2d 954 (1972); DeRosier v. US, 218 F.2d 420 (5th Cir.) 349 US 921 (1955); US v. Harbolt, 426 F.2d 1346 (5th Cir. 1970); Imperial Meat Co. v. US, 316 F.2d 435 (10th Cir.) 365 US 820 (1963); Henslee v. US, 262 F.2d 40 (5th Cir.), cert. denied, 359 US 984 (1959).
VENUE IN CONSPIRACY CASES:
In a conspiracy case, venue lies in any district in which the conspiracy was entered into or where any act in furtherance of the conspiracy took place. Hyde v. US, 225 US 347, 363 (1912); Downing v. US, 384 F.2d 594 (5th Cir.), cert. denied, 382 US 901 (1965); Ladner v. US, 168 F.2d 771 (5th Cir.), cert. denied, 335 US 827 (1948); US v. Brandon, 320 F.Supp 520 (W.D. Mo. 1970); US v. Peters, 297 F.Supp 1124 (D. Min. 1969); US v. Hinton, 268 F.Supp 728 (S.D. La. 1967).
VENUE WHERE OFFENSE CHARGED IS AIDING AND ABETTING:
Where one is charged with “aiding and abetting” in the commission of an offense, venue lies both in the district where the principal offense was committed and in the district where the acts alleged to constitute aiding and abetting took place. Moore’s Federal Practice-Criminal Rules, §18.03[1]. See also: 18 U.S.C. §2; US v. Kilpatrick, 458 F.2d 864, 867-888 (7th Cir. 1972); US v. Bozza, 365 F.2d 206, 221 (2nd Cir. 1966).
With respect to offenses involving the use of the mails or transportation in interstate or foreign commerce, 18 U.S.C. §3237 provides that venue will lie “…in any district from, through or into which such commerce or mail-matter moves.” However, such venue statute embraces only those crimes in which the use of the mails or interstate transportation is a specific element of the offense and would not include offenses where the mails are merely incidentally used in the commission of the offense (i.e. delivery of false statements, 18 U.S.C. 1001). This broad venue for offenses in which the use of the mails is an element [in “any district from, through, or into which such …mail matter moves”] has been held not to exhaust the possible choices of venue, and that accordingly venue may also be established in any district where the applicable substantive statute so provides or where the offense was “committed” [e.g., where a fraudulent scheme was formulated in a securities-fraud case involving the use of the mails, US v. Cashin, 281 F.2d 669, 674 (2nd Cir. 1960)], thereby affording the government an even broader choice of forums.
Where the defendant, on his own motion, seeks a transfer of his case to a non-venue district, the defendant waives his right to trial within the district where the offense was committed which is guaranteed by the Sixth Amendment to the Constitution and Rule 18, F.R.CR.P.. Such waiver of district venue occurs when a defendant moves for transfer from the district for trial under Rule 21(a) or (b), or transfer from the district for plea and sentence under Rule 20, F.R.CR.P..
TWO DEFENDANTS, TWO JURIES:
An alternative to severance, where some of the government’s evidence is inadmissible against a codefendant is to hold a joint trial before two juries and remove one or the other jury from the courtroom during the presentation of such evidence. US v. Hayes, 676 F.2d 1359 (11th Cir. 1982); US v. Rimar, 558 F.2d 1271 (8th Cir. 1977); US v. Sidman, 470 F.2d 1158 (9th Cir. 1972).
TRANSFER FROM DISTRICT FOR TRIAL:
RULE 21, F.R.CR.P.:
Where a defendant seeks to transfer his case from a proper venue district for trial, such must be accomplished through the discretionary provision of Rule 21 of the Federal Rules of Criminal Procedure.
RULE 21(a), TRANSFER DUE TO PREJUDICE:
Pursuant to Rule 21(a) a defendant may move for a change of venue on grounds of prejudice in the district where the prosecution is brought.
The provision of Rule 21(a) requires that a defendant demonstrate that he cannot obtain a fair trial at “any place” fixed by law. This standard is extremely “difficult to meet” and the determination of whether such prejudice exists is left to the sound discretion of the trial court and will not be overturned only upon a clear showing of an abuse of that discretion. US v. Williams, 523 F.2d 1203 (5th Cir. 1975). One commentator has lamented that “[t]he burden of showing abuse of discretion in denying a motion under Rule 21(a) is a virtually impossible one; indeed, there does not seem to be a federal case where the burden has been met.” Moore’s Federal Practice-Criminal Rules, §21.03[3].
In light of the fact that the “ultimate question” in determining whether prejudice exists is “whether it is possible to select a fair and impartial jury” it has been held that “’the proper occasion for such a determination is upon the voir dire” of the jury. Blumenfeld v. US, 284 F.2d 46, 50 (8th Cir. 1960), cert. denied, 365 US 812 (1961); Estes v. US, 335 F.2d 609 (5th Cir. 1964). As a consequence, to preserve error for appeal, the defendant may have to request and obtain responses regarding prejudicial pretrial publicity, etc., at voir dire and exercise all of his or her peremptory challenges in order to demonstrate to an appellate court that the jurors were prejudiced. US v. Moran, 236 F.2d 361 (2nd Cir.), cert. denied, 352 US 909 (1956).
In order to protect your record, defense counsel should attach to his or her motion, and move into the record, affidavits and examples of unfavorable newspaper publicity, TV and radio programming logs and the like. Live witnesses may be utilized to demonstrate for the record on appeal the saturation of such publicity and its unfavorable nature.
In light of the extreme reluctance on the part of courts to grant transfers for “prejudice” under Rule 21(a), other means of avoiding prejudicial publicity should also be explored. These may include: (1) a motion for continuance of trial until such prejudicial publicity has “blown over”; (2) waiver of a jury trial where it is felt that the judge is less likely to be affected by prejudicial publicity than the average juror; (3) motion to have the judge recuse himself, where you are not so fortunate; (4) request for specific interrogation or an instruction to prospective jurors and panel members with regard to such publicity; and (5) motion seeking judicial regulation of the conduct of the parties or counsel or news media. The latter may be especially helpful where, in light of the publicity surrounding the case, the prosecutor’s office sets up a “P.R. Department” to keep the media abreast of current developments. A motion for transfer within the district for trial pursuant to Rule 18, F.R.CR.P., may be looked on with greater favor by the trial court, and in districts with large geographical boundaries relief from prejudicial publicity may be thereby obtained.
RULE 21(b), TRANSFER ON THE GROUNDS OF “CONVENIENCE”:
Where the Government has the choice of several districts in which to bring an indictment (a “multi-venue” case), Rule 21 (b) [transfer for “convenience of the parties and witness”] provides such broad discretion in the trial court as to afford a criminal defendant very little protection from the Government’s shopping spree to obtain a venue favorable to the prosecution.
Rule 21(b) of the Federal Rules of Criminal Procedure provides for transfer of a case for trial, upon motion of the defendant, “for the convenience of the parties and witnesses, and in the interest of justice.”
It is interesting to note that such transfers under both sections (a) and (b) of Rule 21 are obtainable only upon motion of the defendant.
It has been noted that while Rule 21(a) is designed to protect a defendant’s right to a fair trial without “prejudice”, Rule 21 (b) is designed to provide the defendant with a “convenient trial.” Wright, Federal Practice and Procedure: Criminal, §344. That is, Rule 21(b) is designed to prevent the Government from choosing from a forum, which places undue inconvenience or hardship upon a defendant. The Rule thereby “implements the policy that venue should be chosen to minimize the inconvenience to the defense.” Wright, Federal Practice and Procedure: Criminal, §343; Jones v. Gasch, 404 F.2d 1231, 1236 (D.C. Cir.), cert. denied, 390 US 1029 (1968).
Again, however, the question of determining when “convenience” and the “interest of justice” require a transfer is left to the discretion of the trial court and will be overturned only upon a showing of an abuse of that discretion. Estes v. US, 335 F.2d 609 (5th Cir.), cert. denied, 379 US 964 (1965); US v. Phillips, 433 F.2d 1364 (8th Cir.), cert. denied, 401 US 917 (1971).
Factors which have been considered in exercising discretion to grant a transfer for “convenience” or in the “interest of justice” under Rule 21(b), F.R.CR.P., are: the residence of a defendant, US v. Jessup, 38 F.R.D. 42 (D. Tenn. 1965); US v. Amador Casanas, 233 F.Supp 1001 (D.D.C. 1964); US v. Herold, 309 F.Supp 997 (D.Wis. 1970); US v. Rossiter, 25 F.R.D. 258 (D. Puerto Rico, 1960); the corporate offices of a corporate defendant; US v. General Motors Corp., 194 F.Supp 745, 756 (D.N.Y. 1961); US v. National City Lines, 7 F.R.D. 393, 402 (D. Cal. 1947); the locale of the events at issue in the particular case; US v. Van Allen, 28 F.R.D. 329, 340 (S.D. N.Y. 1961); US v. Aronson, 319 F.2d 48, 52 (2nd Cir.), cert. denied, 375 US 920 (1963); US v. Jones, 43 F.R.D. 511, 515-516 (D.D.C. 1967); the location of possible witnesses;
US v. Jessup, 38 F.F.D. 42 (D. Ten. 1965); US v. Foster, 33 F.R.D. 506 (D. Md. 1963); Jones v. Gash, 404 F.2d 1231, 1240-1241 (D.C. Cir.), cert. denied, 390 US 1029 (1967); the location of records involved in a particular case; US v. Jessup, 38 F.R.D. 42 (D. Tenn. 1965); US v. General Motors Corp., 194 F.Supp 754 (S.D.N.Y. 1961); US v. Erie Basin Metal Products Co., 79 F.Supp 880 (D. Md. 1948); the disruption of the defendant’s business; US v. Olen, 183 F.Fupp 212 (S.D.N.Y. 1960); US v. Rossiter, 25 F.R.D. 258 (D. Puerto Rico, 1960); US v. White, 95 F.Supp 544, 551 (D. Neb. 1951); US v. National City Lines, 7 F.F.D. 393, 402 (D. Cal. 1947); the accessibility of the district of trial, or the crowded docket condition of the district where the charges are brought, US v. Amador Casanan, 223 F.Supp 1001 (D.D.C. 1964); where the defendant has numerous proceedings ongoing in another district; US v. Ray, 234 F. Supp. 371 (D.D.C. 1964); or, where the defendant resided and the great majority of events and transactions in question occurred; US v. Clark, 360 F.Supp 936 (S.D.N.Y.), mandamus denied, 481 F.2d 276 (2nd Cir. 1974).
TRANSFER WITHIN A DISTRICT:
RULE 18, F.R.CR.P.:
Transfers within a district were formerly governed by Rule 19, F.F.Cr.P., which was abrogated in 1966, with the amendments of that same year. The 1966 amendment to Rule 18 of the Federal Rules of Criminal Procedure provides for the fixing of the place of trial by the court in a division within the district” …with due regard to the convenience of the defendant and the witnesses.” Rule 18, F.R.CR.P.; Dupoint v. US, 388 F.2d 39 (5th Cir. 1967). Thus, Rule 18, F.R.CR.P., specifically provides for intra-district transfers upon motion of the defendant where the “convenience of the defendant” and the “witnesses” would require the same. Moore’s, Federal Practice-Criminal Rules, §18.02[3]; Wright, Federal Practice and Procedure: Criminal,
- §305 and 311; Dupoint v. US, 388 F.2d 39 (5th Cir. 1967); US v. Fernandez, 480 F.2d 726 (2nd Cir. 1973).
Furthermore, while the language of amended Rule 18 does not clearly specify that the court shall take “prejudice” into account in fixing the place of trial within the district, the 1966 Committee Notes to both Rule 18 and Rule 21(a) of the Federal Rules of Criminal Procedure indicate that this is the intent of the amendment. Moore’s, Federal Practice and Procedure: Criminal, §305; US v. Tijerina, 407 F.2d 349, 354 (10th Cir.) cert. denied, 396 US 843 (1969); Gwane v. US, 409 F.2d 1399 (9th Cir. 1969).
As mentioned before, courts are often less reluctant to transfer a case to another division within a district pursuant to Rule 18, F.R.CR.P., than to transfer a case for trial to another district pursuant to Rule 21, F.R.CR.P. Where, in a large district, the harm of prejudicial publicity may be obviated by transferring the case to a distant division, a request for transfer within the district under Rule 18 may be a practical alternative to the rarely granted intra-district transfer for “prejudice” under Rule 21(a), F.R.CR.P. However, requests for transfer within the district are within the trial court’s discretionary power, as well, and will not be overturned short of showing of abuse in that discretion. Houston v. US, 419 F.2d 30 (5th Cir. 1969).
Abuse of discretion will only be found if the facts compel, not merely support venue transfer, US v. Hunter, 672 F.2d 815 (10th Cir. 1982). See also US v. Raineri, 670 F.2d 702 (7th Cir. 1982). Lack of court facilities at the alternatives sites requested in defendant’s motion to transfer was ample basis for judge’s discretion to deny motion.
However, a blanket denial of all motions to transfer as court policy is an abuse of discretion. US v. Burns, 662 F.2d 1378 (11th Cir. 1981).
TRANSFER FROM DISTRICT FOR PLEA AND SENTENCE:
TRANSFER FOR PLEA:
Rule 20 of the Federal Rules of Criminal Procedure provides a method by which a defendant who “wishes to plead guilty or “nolo contendere” and desires “to waive trial” may have his case transferred from the district in which an indictment or arrest warrant is pending to a district where defendant is present or resides, which may be more convenient or more favorable for sentencing purposes.
The request for such transfer under Rule 20 by the defendant must be in writing and is “subject to the approval of the United States Attorney for each district.”
Rule 20, F.R.CR.P., allows such transfer for plea and sentence to a district in which the defendant is “present” or resides. In effect, Rule 20, F.R.CR.P., gives a criminal defendant who swishes to plead guilty an opportunity to secure disposition of the case and sentence in a more favorable forum. Often, a defendant is arrested and charges are brought in a distant district where the defendant’s reputation, family and community ties, and other local mitigating factors are unknown. Where the defendant desires to plead guilty, and such factors are in his favor, a transfer for plea and sentence to the district of his residence where he was either arrested, is being held, or is present while on bond may prove very beneficial. Remember, however, that such transfer may be obtained only upon the written consent of the prosecutor in both the district where the prosecution or arrest warrant are pending and the prosecutor in the district to which transfer is sought.
Another consideration is whether or not to seek a Rule 20 transfer for plea and sentence is the relative sympathies of the courts involved, as well as their track record regarding similarly situated defendants and offenses. Consequently, some investigation into these matters should be done before such transfer is sought.
Rule 20(c), F.R.CR.P., specifically provides that in the event the defendant should plead “not guilty” after the proceeding has been transferred then “the clerk shall return the papers to the court in which the prosecution was commenced and the proceedings shall be restored to the docket of that court.” Subsection (c) of Rule 20 further provides that the defendant’s previous statement that he wished to plead guilty or nolo contendere may not thereafter be used against him. The application of Harris v. New York, 401 US 222 (1971), allowing the use of a defendant’s statements obtained in violation of Miranda for impeachment purpose after the defendant testified in his own behalf at trial, should be considered in such a situation.
