U.S. v. OHRAN, (S.D.N.Y. 2000)

JOHN S. MARTIN, Jr., District Judge:

In 1983 Paul Ohran was appointed as trustee of a trust established pursuant to a reorganization plan of Brentano's Inc. filed in the Bankruptcy Court in this district. In 1988 Mr. Ohran moved to Sarasota, Florida and transferred the bank account of the trust to the Barnett Bank in Sarasota. At various times between 1991 and 1995, Ohran, who was living in Florida, drew checks on the Barnett Bank account, which he allegedly used for his own purposes, including the purchase of a book store in Florida called Charlie's News. In 1999, Ohran was indicted in this district on a charge of embezzling these funds from the trust. He now moves pursuant to Rule 18 of the Federal Rules of Criminal Procedure to dismiss the indictment for lack of venue and, alternatively, under Rule 21(b) to transfer this action to the Middle District of Florida.

DISCUSSION

In the modern age of interstate commerce and travel, it is not unusual to find a defendant in a criminal case compelled to defend himself in a district far from his residence. Indeed, the courts have often been reluctant to disturb the prosecutor's choice of the place for trial. See, e.g., United States v. United States Steel Corp., 233 F. Supp. 154 (S.D.N.Y. 1964). It is well to remember, however, that our forefathers included venue provisions in the Constitution in both Article III and the Sixth Amendment to ensure that citizens would not be dragged to distant places to stand trial. As Justice Frankfurter wrote:

Aware of the unfairness and hardship to which trial in an environment alien to the accused exposes him, the Framers wrote into the Constitution that "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed. . . ." Article III, § 2, cl. 3. As though to underscore the importance of this safeguard, it was reinforced by the provision of the Bill of Rights requiring trial "by an impartial jury of the State and district wherein the crime shall have been committed." Sixth Amendment. By utilizing the doctrine of a continuing offense, Congress may, to be sure, provide that the locality of a crime shall extend over the whole area through which force propelled by an offender operates. Thus, an illegal use of the mails or of other instruments of commerce may subject the user to prosecution in the district where he sent the goods, or in the district of their arrival, or in any intervening district. Plainly enough, such leeway not only opens the door to needless hardship to an accused by prosecution remote from home and from appropriate facilities for defense. It also leads to the appearance of abuses, if not to abuses, in the selection of what may be deemed a tribunal favorable to the prosecution.

These are matters that touch closely the fair administration of criminal justice and public confidence in it, on which it ultimately rests. These are important factors in any consideration of the effective enforcement of the criminal law. They have been adverted to, from time to time, by eminent judges; and Congress has not been unmindful of them. Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure. They raise deep issues of public policy. . . .

United States v. Johnson, 323 U.S. 273, 275-76, 65 S.Ct. 249, 250-51 (1944).

As the above quotation suggests, and as this case demonstrates, the issue of venue of a criminal prosecution raises two separate questions: 1) Where may the prosecution be brought?; and 2) Where, in fairness, should the trial take place? Here, the defendant's motion to dismiss pursuant to Rule 18 raises the first issue and his Rule 21(b) motion to transfer raises the second. For the reasons set forth below, the Rule 18 motion is denied, but the motion to transfer is granted.

I. The Motion To Dismiss

While the question of whether venue is proper in this district is not free from doubt, the leading case in the Second Circuit, United States v. Reed, 773 F.2d 477 (2d Cir. 1985), supports the Government's position that venue lies in this district. In Reed the court held that a witness who had been deposed in California in connection with a civil suit pending in this district could be prosecuted for perjury in this district because it was the locus of the effect of the criminal activity.

In this case, the trust that is the victim of the defendant's alleged fraud was created in this district, it was created for the benefit of the creditors in a bankruptcy proceeding in this district, and the defendant was appointed trustee in this district. Thus, there is a sufficient nexus between the defendant's offense and this district to satisfy the venue test set forth in Reed.

II. The Motion To Transfer

Although venue lies in this district, the interest of justice supports transferring this case to the Middle District of Florida where the defendant resides and where he performed all of the acts for which he is indicted. Rule 21(b) of the Federal Rules of Criminal Procedure provides: "For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district."

In addressing motions to transfer under Rule 21(b), the courts have weighed the following factors mentioned in the opinion of the Supreme Court in Platt v. Minnesota Mining Mfg. Co.:

(1) location of [the] defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant's business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer.

376 U.S. 240, 243-44, 84 S.Ct. 769, 771 (1964); see, e.g., United States v. Prescott, No. 90 Cr. 70, 1990 WL 127577, at *1 (E.D.N.Y. Aug. 28, 1990); United States v. Posner, 549 F. Supp. 475, 477 (S.D.N.Y. 1982); United States v. Clark, 360 F. Supp. 936, 941 (S.D.N.Y. 1973).

Before considering how each of these factors applies in the present case, it is important to note that the Supreme Court in Platt did not decide that these were the only factors to be considered in determining whether the "interest of justice" did or did not support a decision to transfer; nor did the Court hold that each of the factors should be given equal weight. All that the Supreme Court actually decided in Platt was that the decision whether or not to transfer a case rests in the sound discretion of the District Court and that it was error for the Circuit Court to overrule the District Court's denial of a motion to transfer and to order the case transferred.

In an attempt to denigrate the significance of the defendant's place of residence in determining where a criminal trial should take place, the Government notes that in Platt the Supreme Court stated:

The fact that Minnesota is the main office or "home" of the respondent has no independent significance in determining whether transfer to that district would be "in the interest of justice," although it may be considered with reference to such factors as the convenience of records, officers, personnel and counsel.

376 U.S. at 245-46, 84 S.Ct. 772.

However, the fact that the Supreme Court determined that the home office of a multinational corporation charged with a nationwide conspiracy to fix prices would not be determinative in deciding the place of trial should not be read as a rejection by the Court of Justice Frankfurter's analysis in Johnson of the constitutional significance of an individual citizen's interest in being tried in the place of his residence. Thus, the Supreme Court's opinion in Platt is not inconsistent with the decisions in the district courts that have given greater weight to the defendant's interest in being tried in the district of his residence than to any other factor. See United States v. Russell, 582 F. Supp. 660, 662 (S.D.N.Y. 1984) (citing United States v. Aronoff, 462 F. Supp. 454, 457 (S.D.N.Y. 1978), and United States v. Cashin, 281 F.2d 669, 675 (2d Cir. 1960)).

In the present case, the defendant's residence in Florida, the fact that all his allegedly criminal acts took place there, and the location of his business there — Platt factors 1, 3, and 5 — strongly support the requested transfer, and none of the other factors strongly support retaining the case in this district.

While the Government has indicated that some of its witnesses reside in the New York area, other of its witnesses live at some distance from both New York and Florida and requiring them to travel to Florida will not involve a substantially greater inconvenience for them. On the other hand, the defendant has identified a number of Florida residents who will testify as character witnesses for him and argues persuasively that the impact of their testimony on a jury would be greater in Florida where they live and work than it would be on a jury in New York. Thus, this factor does not weigh in either party's favor. Nor does the location of documents, since there are relevant documents in both places that can easily be transported to the place of trial.

While a trial in Florida might cause greater expense to the Government than it would to Mr. Ohran, the Government is clearly in a better position to bear that expense.

Since both the Government and the defendant are currently represented by lawyers from New York that factor supports keeping the case here. But, it will no doubt be less expensive for Mr. Ohran to retain new counsel in Florida for a trial there than it would be for him to have his present counsel travel to Florida to interview potential witnesses and others with knowledge of the events in Florida that give rise to this prosecution.

The final factor, the relative docket conditions in the two districts, may favor retaining the case in this district, but it cannot outweigh the other factors that persuasively demonstrate that the "interest of justice" requires the transfer of this case to the Middle District of Florida.

In sum, the constitutional underpinnings of the rules governing venue strongly support the trial of this case in the district in which the defendant resides and where he committed the acts that are the basis for the charge against him.

CONCLUSION

For the foregoing reasons, the motion to dismiss the indictment is denied and the case is transferred to the Middle District of Florida.

SO ORDERED.

Dated: New York, New York May ___, 2000