Opinion
Case No. 02-CV-40021-RDR
September 5, 2002
MEMORANDUM AND ORDER
This matter is presently before the court upon certain pretrial motions filed by the defendant. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
The defendant, along with her husband, is charged with conspiracy to possess with intent to distribute approximately 150 pounds of marijuana in violation of 21 U.S.C. § 846 and 841(a)(1). The charge arises from a traffic stop that was attempted in western Kansas. The defendant is a quadriplegic. The defendant has filed the following motions: (1) motion to disclose expert testimony, and (2) motion for change of venue. The defendant has also filed a notice of demand.
MOTION TO DISCLOSE EXPERT TESTIMONY
The defendant seeks an order requiring the government to disclose whether it intends to rely on expert testimony at trial and, if so, to identify and disclose the bases of any such testimony as required by Fed.R.Crim.P. 16(a)(1)(E). She requests that this information be disclosed thirty days prior to trial. The government has indicated that it has no objection to this motion. Accordingly, this motion shall be granted. The government shall provide this information at least thirty days prior to trial.
NOTICE OF DEMAND
The defendant requests that the government notify her of any intent to use evidence under Fed.R.Evid. 404(b) and 807. The government has indicated that it does not intend to offer any evidence under Rule 807 at this time. The government has further provided notice of the evidence that it intends to use under Rule 404(b). The court believes that the responses of the government are adequate.
MOTION FOR CHANGE OF VENUE
The defendant seeks to have this case transferred to the United States District Court for the District of Arizona pursuant to Fed.R.Crim.P. 21(b). She makes this request based on her physical disabilities. She notes that she is completely dependent upon others, particularly her husband, for all of her activities of daily living. She asserts that venue is proper in Arizona and that transfer is necessary to allow her to fully participate in her defense. She notes that the present situation makes it difficult for her to confer with counsel. She states that she lives in Tucson, Arizona while her court-appointed counsel lives in Topeka. Any attempted privileged communication is difficult because someone must hold the telephone to her ear and someone must open her mail. This means that either her counsel or she must travel to engage in privileged communications.
The government objects to the transfer of this case to Arizona. The government contends that transfer would mean that the burden would be shifted to the government and its witnesses. The government also notes that the United States Attorney's Office in the District of Arizona has been contacted and has indicated a reluctance to handle this case because of other more important investigations and cases. The government suggests that the defense could hire a law student or a paraprofessional to assist the defendant in any communications with her counsel.
The proper venue for criminal actions is normally "in [the] district in which the offense was committed." Fed.R.Crim.P. 18. Venue is proper in conspiracy prosecutions in any district where the conspiracy was formed or in any district where an overt act in furtherance of the conspiracy was performed. United States v. Miller, 111 F.3d 747, 753 n. 8 (10th Cir. 1997). A court may transfer a proceeding to another district, upon motion, "[f]or the convenience of parties and witnesses, and in the interest of justice." Fed.R.Crim.P. 21(b). The Supreme Court has suggested that the following factors are appropriately considered when determining whether a criminal case should be transferred: (1) location of . . . defendants; (2) location of possible witnesses; (3) location of events likely to be an issue; (4) location of documents and records likely to be involved; (5) disruption of defendant's business unless case is transferred; (6) expense of 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. Platt v. Minnesota Mining Co., 376 U.S. 240, 243-44 (1964). The burden is on the defendant to justify a transfer under Rule 21(b). In re United States, 273 F.3d 380, 388 (3rd Cir. 2001). "[C]hange of venue in a criminal case is discretionary, and a trial judge's decision on the matter is entitled to deference." United States v. Williams, 897 F.2d 1034, 1036 (10th Cir. 1990) (quoting United States v. Hunter, 672 F.2d 815, 816 (10th Cir. 1982)).
The allegations of this case as represented by the defendant, and not disputed by the government, show that this conspiracy began in Arizona. Michael Forste met with the defendant and her husband in Tucson to coordinate the delivery of approximately 150 pounds of marijuana. Forste then began driving the marijuana through Colorado and into Kansas. The defendant and her husband were following in another vehicle, but they lost contact with Forste. Kansas Highway Patrol Trooper Doug Rule attempted to stop Forste's vehicle in western Kansas, but Forste refused to stop. He temporarily evaded law enforcement officers. He subsequently stopped and set his truck on fire. He then hid in an old barn. The fire was extinguished and law enforcement officers seized the marijuana from the vehicle. Forste was later caught and eventually implicated the defendant as the person who hired him to drive the truck.
The government does not deny that venue would be proper in Arizona. Rather, the government contends that Kansas is the appropriate place for trial based upon the convenience of the parties, their counsel and the witnesses.
The circumstances of this case present an interesting problem for the court. The parties have not cited a decision where the issue of transfer in a criminal case based on the disability of a defendant was considered. The court has discovered several cases where transfer was sought based upon the disability or ill health of the defendant.
In United States v. West Coast News Co., 216 F. Supp. 911 (W.D.Mich. 1963), a defendant who was located in California and had been charged in Michigan with the delivery of obscene books sought a transfer to the Southern District of California because he had suffered a "heart occlusion" during pretrial proceedings. He argued that his recovery had been slow and that any unusual exertion would endanger his life. 216 F. Supp. at 923. The court denied the motion, finding that the defendant's health did not require a transfer. Id.
In United States v. Ashland Oil, Inc., 457 F. Supp. 661 (W.D.Ky. 1978), a defendant from Minnesota who had been charged in Kentucky with a violation of the Sherman Act sought a transfer to the District of Minnesota because he was suffering from hypertension. He presented evidence from a doctor that travel to Kentucky would be detrimental to his health. 457 F. Supp. at 662-63. The court denied the motion, finding that the defendant's health was not so severely impaired that he could not stand trial in Kentucky. Id.
The aforementioned cases demonstrate a general reluctance by the courts to transfer venue in criminal cases based upon the ill health of a defendant. However, a recent unpublished decision from the Northern District of Illinois provides some support for the position taken by the defendant here. In United States v. Liska, 1995 WL 704775 (N.D.Ill. 1995), the defendant lived in Houston, Texas and was completely disabled. He had been charged in Illinois with thirteen other individuals with conspiracy to impair, impede or obstruct the Internal Revenue Service. He sought a transfer to the Southern District of Texas based upon his disability. The district court carefully considered Rule 21(b) and the factors mentioned previously from Platt. 1995 WL 704775 at *3. After review of these factors and noting that the case was "highly unique," the court concluded that the charges against the defendant should be transferred to Texas. Id. at *7. The court stated:
Th[e] factor of defendant's physical impairment when considered alone strongly favors transfer. Unlike the facts in United States v. Ashland Oil, 457 F. Supp. 661 (W.D.Ky. 1978), where a defendant named Klobe claimed a health impairment, defendant Liska is so incapacitated that he cannot carry out work responsibilities. 457 F. Supp. at 663. Indeed, no case generating a published opinion has dealt with facts like the facts in this case.
Id. at *6.
In applying the various factors noted in Platt to the circumstances of this case, we must agree with the decision in Liska that a transfer is appropriate. The overriding factor here, as was the situation in Liska, is the disability of the defendant. This disability makes venue here extremely difficult for the defendant. The issue of travel coupled with the problems of coping with being away from home strongly favor transfer.
The other factors that are applicable in this case — the location of the witnesses, the location of the evidence, and the location of counsel — do not overwhelmingly command denial of the defendant's motion. The witnesses for this case do not appear to be located in the Topeka area. Rather, they will come from western Kansas, Utah and Arizona. Given these various locations, we do not believe that venue in Topeka is strongly favored. Moreover, the evidence in this case appears easily transportable. The court notes that local counsel has been appointed to represent the defendant. The court believes that new counsel can be appointed in Arizona to represent her. The court further believes that counsel for the government can easily travel to Arizona to handle this case, or he can allow someone from the United States Attorney's Office in Tucson, Arizona to prosecute it.
Finally, the court finds it necessary to address one additional issue — the docket conditions of this court and the court in Arizona. The defendant has not touched on this factor. The government has suggested that the United States Attorney's Office is either too busy or unwilling to litigate this case. The court can infer from this contention that the courts in Arizona must also be very busy.
In the annual report of the Administrative Office of the United States Courts on federal court judicial business for the year 2000, the District of Arizona is shown to be much busier than the District of Kansas in the handling of criminal cases. Judicial Business of the United States Courts: 2000 Annual Report of the Director Leonidas Ralph Mecham at 187. In 2000, the District of Arizona terminated 3,090 criminal cases while the District of Kansas terminated 456. Id. Nevertheless, the court notes that the median time from filing to disposition of criminal cases is much lower in Arizona. Id. at 230. The average time for the disposition of criminal cases in Arizona for 2000 was 3.6 months while the average time in Kansas was 6.2 months. Id. These statistics do not demonstrate that the Arizona court is overwhelmed by its criminal docket. Thus, we do not believe that this factor precludes transfer.
The court understands that this decision places some burdens on the government. The government may be forced to try this case twice. Counsel for the government and government witnesses may also be forced to travel. Nevertheless, even considering these burdens, the court believes that consideration of all of the aforementioned factors favors transfer to Arizona as requested by the defendant.
In sum, the court believes that the unusual circumstances existing here require transfer of this case to the District of Arizona. Accordingly, the court shall grant the defendant's motion and transfer the charges against her to the District of Arizona.
IT IS THEREFORE ORDERED that defendant's motion to disclose expert testimony (Doc. #32) be hereby granted. The government shall provide this information at least thirty days prior to trial. IT IS FURTHER ORDERED that defendant's motion for change of venue (Doc. #31) be hereby granted. Pursuant to Fed.R.Crim.P. 21(b), the case against defendant Francisca Mercedes Lopez is hereby transferred to the United States District Court for the District of Arizona (the Tucson division) for all further proceedings.
IT IS SO ORDERED.