United States v. Muratoski 04-CR-179-SM 04/08/05 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 04-cr-179-SM Opinion No.

Adil Muratoski

O R D E R

Defendant moves to transfer venue in this criminal case to

the Northern District of Illinois (Chicago ) , where he lives and

works. For the reasons set forth below, that motion is granted.

Standard of Review

A district court has broad discretionary power to transfer a

criminal prosecution to another district "for the convenience of

the parties and witnesses and in the interest of justice."

Fed. R. Crim. P. 21(b). In exercising that discretion, courts

generally consider a number of factors identified by the Supreme

Court in Platt v. Minnesota Mining & Mfg. Co.,

(1964). Those factors include: (1) the location of the

defendant; (2) the location of possible witnesses; (3) the

location of events likely to be in issue; (4) the location of documents and records likely to be involved; (5) the disruption

of defendant's business if the case is not transferred; (6) the

expense to the parties; (7) the location of counsel; (8) the

relative accessibility of the place of trial; (9) the docket

condition of each district or division involved; and (10) any

other special considerations relevant to transfer. I d . at 243-

44. No one factor is likely to be dispositive, but all should be

considered under the circumstances:

It is unlikely that any one of these factors will be present by itself in a particular case. Ordinarily the various factors appear in combination, with some pointing in favor of transfer and others against transfer. It is incumbent on the court in such a case to strike a balance and decide which factors seem to be of greatest importance in that case.

2 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 344 at 275.

Background

This is one of a number of prosecutions brought in the

District of New Hampshire for either passport fraud (

) or, more recently, false statements made in connection

with a passport application (

). The trend away

2 from charging passport fraud and toward charging § 1001

violations for substantially the same conduct is traceable to the

court of appeals' decision in United States v. Salinas,

(1st Cir. 2004). In Salinas the court held venue is improper

in this district in passport fraud cases which involve an

application that was mailed from out of state to the National

Passport Center in Portsmouth, New Hampshire. But, the court

also expressed the view that venue would be proper here if the

conduct were charged as a false statement offense under § 1001 -

the distinction being that passport fraud is a completed offense

"at the moment an applicant makes a knowingly false statement in

an application with a view toward procuring a passport," Salinas,

(citing United States v. O'Bryant,

(11th Cir. 1985)), while § 1001 offenses are generally

considered continuing offenses, with the material

misrepresentation "continuing into the district in which the

effects of the false statement are felt." Salinas,

(citations omitted).

So, basically, the government avoids the venue problem

associated with passport fraud prosecutions by simply reindicting

3 the underlying conduct as a § 1001 violation or, post-Salinas,

initially indicting conduct that would be chargeable as passport

fraud as a § 1001 violation instead.

Creative charging no doubt serves legitimate purposes, and

there are some practical reasons for bringing these cases in New

Hampshire. For one, the Passport Center's location here

necessarily means that many violations are routinely identified

in this district. Relevant documents are generally found here

(applications, supporting statements, etc.), as are potential

government witnesses. And, local prosecutors entertain a

legitimate pragmatic concern that prosecutors in other districts

may not be so willing to pursue these cases, given the disparity

in caseloads and available resources.

On the other hand, it has become clear to this court that

the defendants indicted on these charges often live hundreds of

miles away, have no personal contacts at all with this district,

are poor or just getting by economically, are supporting

families, and must pay substantial sums to travel to and stay in

New Hampshire on multiple occasions (e.g., to meet with counsel

4 and to attend arraignment, bail hearings, motions hearings, plea

hearings or trial, and possibly a sentencing hearing).

Additionally, if witnesses are to be called by a defendant,

whether at trial or sentencing, they are more likely to be

located near the defendant's home than here, making their

appearances in this district difficult and burdensome.

Discussion

Venue in this district is plainly proper, given the

continuing nature of the § 1001 offense charged. See

2 3 7 (a). See also Salinas,

. Nevertheless,

defendant has met his burden of persuading the court that a

transfer is warranted.

Considering the Platt factors, it is of course a physical,

emotional, and economic hardship for this defendant to face trial

in New Hampshire, far from his home in Illinois. See United

States v. Aronoff,

(S.D.N.Y. 1978).

Defendants, ordinarily, should be tried where they reside.

United States v. Russell,

(S.D.N.Y. 1984).

Besides, it is more than a mere inconvenience for this defendant

5 to face trial in this district, given his financial circumstances

(he has been unable to pay his initially retained counsel and is

now represented by the Federal Defender). Travel from Illinois

is expensive and generally reguires overnight accommodations.

Defendant also has parenting responsibilities in Illinois, where

his two minor sons live.

The location of witnesses also favors transfer. To be sure,

some of the witnesses the government is likely to call are

employed at the Passport Center, but those witnesses can easily

travel at no expense to them. Defendant's witnesses, whether at

trial or, egually importantly, at sentencing in the event of a

conviction or plea, will likely be from the Chicago area and

their attendance in New Hampshire will not be as easily or as

inexpensively obtained, even assuming the government will provide

transportation and lodging. Certainly, conducting defendant's

criminal trial in this district would place a substantial burden

on any witnesses he chose to call. See generally Aronoff,

.

6 The location of events likely to be at issue also militates

in favor of transfer. Defendant lives in the Chicago area, no

doubt prepared the passport application at issue in Illinois,

made the alleged misrepresentations there, and submitted the

application there. This is not a paramount factor in this case,

of course. But, on balance, the government's discovery of the

alleged false statement in this district is not so critical as to

warrant trial here. Similarly, that documents likely to be used

at trial are located in New Hampshire is of little moment, given

the ease with which they may be transmitted to Illinois. See,

e.g.. United States v. Posner,

(S.D.N.Y.

1982) ("The location of documents and records is not a major

concern in these days of easy and rapid transportation.").

Defendant's likely loss of income and/or employment if he

were tried in this district is another factor that counsels in

favor of transfer. See Russe11,

; Aronoff,

. Defendant works at a diner and the burden

associated with traveling to attend proceedings in New Hampshire

necessarily interferes with his ability to earn wages necessary

to support himself and his family. The amount at issue may be

7 modest, but it is, no doubt, critical to the defendant,

particularly given his indigence.

[T]he disruptive impact upon defendants' businesses by trial in this district, also favors transfer. Each of the defendants, although gualifying for CJA counsel, [is] either marginally employed or own and operate struggling businesses. . . . Defending criminal charges should not include the penalty of financial ruin where the trial might be conducted properly and legally in a forum near defendants' homes and businesses.

United States v. Haley,

(E.D. Pa. 1981).

Similarly, the expense to defendant of trial in New

Hampshire militates in favor of transfer. If his trial were to

proceed in this district, he would be reguired to pay for travel,

lodging, and subsistence while in New Hampshire. He does not

have family or friends here with whom he could reside. It is, of

course, true (as the government argues) that defendant could

easily waive his appearance at various stages of the proceedings.

But, he ought not be forced to make that choice due to the

geographic distance between his home and the place of indictment

and the costs associated with traveling here. Defendant is currently represented by a New Hampshire

Assistant Federal Defender, at public expense, while the

government is represented by an Assistant United States Attorney.

Without a doubt, appointed counsel can just as easily be provided

to defendant in Chicago as here and, importantly, defendant will

have much easier and more effective access to counsel where he

lives. Similarly, the government will be as ably represented in

Chicago as it is here, and it probably will prove more convenient

to the government, as well, to have the defendant close by. In

any event, the government's inconvenience is "a factor given

little weight when other considerations of convenience suggest

transfer." United States v. Gruberg,

(S.D.N.Y. 1979).

On balance, then, the court is persuaded that the Platt

factors counsel in favor of transferring this criminal proceeding

to a venue closer to defendant's home in Illinois. As the Court

of Appeals for the Second Circuit has observed:

Recognizing the unfairness and hardship to which trial in an environment alien to the accused exposes him, and the important policies underlying the venue provisions of the Constitution and Bill of Rights, the Supreme Court has declared that venue statutes should, whenever possible, be construed so to permit trial at the residence of the defendant.

United States v. Cashin,

(2d Cir. 1960) (citing

United States v. Johnson,

(1944)).

Conclusion

These cases will likely raise venue transfer issues somewhat

routinely. Nevertheless, a systemic approach to resolving those

issues is probably not appropriate, given the unigue

circumstances of each individual defendant. Government counsel,

however, can readily identify those cases that ought to be

brought where the defendant lives, and indict here only those

cases in which transfer is not likely to be ordered.

In this particular case, having considered the Platt

factors, the court is persuaded that defendant's case ought to be

transferred to the Northen District of Illinois both for the

convenience of the defendant and witnesses, and in the interest

of justice. Defendant's motion to transfer venue (document no.

12) is, therefore, granted.

10 SO ORDERED.

McAuliffe 'hief Judge

April 8, 2005

cc: Mark S. Zuckerman, Esq. Jeffrey S. Levin, Esq. U.S. Marshal U.S. Probation

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