Rule 20 Versus Contested Transfer

Rule 20 Versus Contested Transfer

Two different mechanisms can move a federal prosecution out of the district where it began, and the shared word transfer invites students to blur them. The plea route taught in this chapter runs on agreement: the defendant's own statement opens it, and the United States attorneys in both districts must approve the transfer in writing.¹ A contested motion to move a trial runs on judgment. A party asks the court to hold the trial elsewhere for the convenience of the parties and witnesses and in the interest of justice, and the trial judge decides whether to grant the request, ordinarily over an objection.² The first mechanism is controlled by the people who consent to it, and the second is controlled by the judge who rules on it.

The difference in who decides follows from what is in dispute. A judge's discretion exists to settle a disagreement about where a trial should be held, and weighing witnesses, records, expense, and similar facts is how the judge settles it. On the plea route no such disagreement exists. The defendant has waived trial in the charging district, only the plea and the sentence move, and both prosecuting offices have approved in writing, so nothing is left for a judge to balance and the outcome depends on agreement among the defendant and the two offices. The route also serves interests that all three can recognize: the defendant obtains a speedy disposition without the hardship of being transported back to the charging district, the government is spared the cost of transporting and escorting the defendant, and a defendant charged in several places can negotiate a package resolution that one judge sentences in light of every charge.³

Discretionary Transfer Standard

A contested transfer rests on the trial court's discretion. Rule 21(b) allows a court to transfer a proceeding to another district for the convenience of the parties and witnesses and in the interest of justice.⁴ The judge who receives the motion makes that call, and the judge of the receiving district has no veto over it. In a Sixth Circuit decision, United States v. United States District Court, a prosecution over returns the defendant had filed in Nashville was transferred to the district where the defendant lived, where forty-eight witnesses lived, and where most of the records were kept, and the judge of the receiving district refused to accept the case. The court of appeals directed that judge to take it, because a transfer between two districts that both have jurisdiction is addressed to the discretion of the transferring judge and is not reviewable by the judge of the other district.⁵ That allocation differs sharply from the plea route, where the receiving district's United States attorney must approve in writing before the case can move.⁶

The considerations a judge weighs are practical ones, and Platt v. Minnesota Mining & Manufacturing Co. shows them in use. A corporate defendant asked to move its criminal trial to its home district of Minnesota, the trial judge refused, and the Supreme Court noted that both sides agreed the first nine factors the trial judge had listed were appropriate.⁷ The considerations the Court assumed to be valid include the location of the corporate defendant, the witnesses, the events, and the records, disruption of the defendant's business, expense, the location of counsel, the accessibility of the place of trial, and the condition of each district's docket.⁸ Platt concerns this discretionary standard for contested motions. It is not a Rule 20 case, and nothing in it addresses the consent-based plea route.

Seeking a contested transfer also carries a price and a limit. The right to be tried where the crime was committed is a personal privilege that the accused may waive, and in United States v. Marcello the court held that once a defendant's motion for a change of venue was granted, the waiver took effect, and the defendant could not escape it by objecting to the district chosen, because after the 1966 amendment the court may select the transferee district.⁹ Courts approach such requests warily, since a change of venue costs money, inconveniences others, and can be sought as a delay tactic, and the movant must make a prima facie showing that the opposing party may then controvert.¹⁰ On the contested route the destination is the court's choice, while on the plea route the case moves only when the defendant and both offices have agreed.¹¹

Limits on Appellate Control

The trial judge's discretion carries a corollary for appellate review. In Platt the Court of Appeals concluded that the trial judge had leaned on an improper factor, the difficulty of seating a fair and impartial jury in Minnesota, reexamined the record itself, and ordered the transfer by mandamus, an extraordinary writ that confines a lower court to its lawful authority or compels it to act when it has a duty to act. The Supreme Court reversed. The trial court's use of an inappropriate factor did not empower the Court of Appeals to order the transfer, because the appellate court's function was to determine the appropriate criteria and leave their application to the trial judge on remand, and the writ could not be used to control the trial court's decision.¹³ The Court sent the motion back for reconsideration without reference to the government's ability to obtain a fair trial in Minnesota.¹⁴

Two reasons support leaving the weighing with the trial judge. The judge has the record, the witness lists, and the docket in view, and the weight a given factor carried in the judge's own thinking is a matter the Court regarded as peculiarly within that judge's knowledge. If a court of appeals could substitute its own balance whenever it disagreed with the result, every denial would become a fresh appeal on the merits of the motion, and the discretion the rule commits to the trial judge would belong in practice to whichever court reviewed last. The government had not challenged the use of mandamus in Platt, so the Court assumed without deciding that the writ was an available means of review, which means the decision limits what the writ can accomplish without settling every question about its use.¹⁵ In United States v. Cashin, the Second Circuit saw no reason why its power under the All Writs Act to review an erroneous transfer ruling should differ in a criminal prosecution from a civil case.¹⁶

Home District and Venue

The Court of Appeals in Platt also held that criminal defendants have a constitutional right to trial in their home districts, and the Supreme Court called that holding erroneous. The constitutional venue provisions, Article III, section 2 and the Sixth Amendment, look to where the crime was committed, and they guard against the unfairness and hardship of being prosecuted in a remote place. The fact that Minnesota was the respondent's main office, or home, had no independent significance in deciding whether transfer would serve the interest of justice, although it could matter through the convenience of records, officers, personnel, and counsel.¹⁸ The guarantee follows the crime rather than the defendant's address, and a home address that counted by itself would let every defendant claim a transfer by pointing to where the defendant lives, collapsing the discretionary balance into a rule of residence. Students lose points on this issue when they treat a defendant's home district as carrying a right to be tried there.

The contrast with concrete convenience facts is the useful one. A corporation that names only its home office has given the judge an address. A defendant who shows that most witnesses and records sit in another district has given the judge facts to weigh, as the facts pleaded in the Sixth Circuit case illustrate.¹⁹ The plea route connects to the same venue right from the other side. The Supreme Court in Singer v. United States observed that a defendant may waive venue protections in some circumstances but cannot in every case compel a transfer, and that Rule 20 is among the reasonable procedures that regulate a waiver of trial in a particular district.²⁰ That is why the written approvals of the two offices can condition the plea route without taking anything the defendant could demand as of right.

Sorting Transfer Problems

Several other procedures share the vocabulary of transfer or place of trial and should be kept apart from both routes above. The Interstate Agreement on Detainers governs where a prisoner serving a sentence in one jurisdiction is held while untried charges elsewhere go forward: the officer where the untried indictment is pending asks in writing for temporary custody, and the court there must have approved the request, so the Agreement moves the prisoner's custody and leaves the prosecution where it is pending.²² Rule 18 directs the court to fix the place of trial within the district with regard to the convenience of the defendant and the witnesses, which divides trial locations inside one district and moves nothing between districts.²³ Civil Rule 21 shares a number with the criminal transfer rule but concerns adding parties to a civil action, a subject the next section takes up alongside the civil Rule 20.²⁴

The usual error on an exam is to treat written approval from both prosecutors as enough to open the plea route when the defendant plans to contest the charges. The approvals are one condition of that route, and the defendant's own statement of a wish to plead is the other. Without a plea, the request is a contested motion that stays in the trial judge's hands, and no writing from the prosecutors changes its character.