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Keywords

defendantjurisdictionstatutetrialmotioncriminal procedurerespondentgrand jury

defendantstatutetrialmotionwrit of prohibitiongrand jurypiracy

Related Cases

United States v. Choate, 276 F.2d 724, 86 A.L.R.2d 1337

Facts

A federal grand jury for the Southern District of Florida returned a forty-four-count indictment against seven defendants, with various counts charging violations of federal statutes. Four defendants filed a motion to transfer the entire proceeding to the Northern District of Alabama, which was granted by the district court. The government then petitioned for mandamus to require the trial of all defendants in Florida and to prohibit any trial in Alabama.

A federal grand jury for the Southern District of Florida returned a forty-four-count indictment against seven defendants. Fifteen counts charge violations of the mail fraud statute, 18 U.S.C.A. § 1341; one count charges a violation of the wire fraud statute, 18 U.S.C.A. § 1343; one count charges a conspiracy in violation of 18 U.S.C.A. § 371; and twenty-seven counts charge violations of the Securities Act of 1933, 15 U.S.C.A.§ 77q(a)(1), 77e(a)(1) and 77e(a)(2).

Issue

Whether the court has the authority to transfer an entire proceeding under a multi-count indictment when not all counts are chargeable in the transferee district.

Rule

Rule 21(b) of the Federal Rules of Criminal Procedure allows for the transfer of proceedings to another district if the offense was committed in more than one district, but does not permit the transfer of all counts based solely on the majority being chargeable in the transferee district.

Rule 21(b) reads as follows: ‘(b) Offense Committed in Two or More Districts or Divisions. 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.’

Analysis

The court analyzed the application of Rule 21(b) and concluded that it permits the transfer of proceedings based on the motion of any defendant, but does not allow for the transfer of all counts of an indictment if some counts are not chargeable in the transferee district. The court emphasized that jurisdiction cannot be conferred by waiver or consent and that the necessary predicate motion for the transfer of any count was lacking.

We hold, therefore, that there has been no effective transfer of the proceeding as to any defendant or as to any count.

Conclusion

The court denied the government's petition for writs of mandamus and prohibition, concluding that there was no effective transfer of the proceedings as to any defendant or count.

The writs prayed for are Denied.

Who won?

The prevailing party was the respondents (the district judges), as the court denied the government's petition for writs.

The Government is not, however, entitled to mandamus, as prayed, to require the trial of all counts against all defendants in the Southern District of Florida; nor is any writ of prohibition needed to prevent a trial in the Northern District of Alabama.

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Keywords

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People v. Bodjack, 210 Mich. 443, 178 N.W. 228

People v. Barraza, 23 Cal.3d 675, 591 P.2d 947, 153 Cal.Rptr. 459

Covington & C. Bridge Co. v. Commonwealth of Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962

U.S. v. Fraidin, 63 F.Supp. 271

Cunningham v. District Court of Tulsa County, 432 P.2d 992, 1967 OK CR 183