The opinion of the court was delivered by: CONNER
Defendant seeks an order, pursuant to Rule 21(b), F.R.Crim.P., transferring this action to the United States District Court for the District of Connecticut. It is defendant's position that such transfer would be "in the interest of justice" within the intent of Rule 21(b).
In order to understand the nature of defendant's application, it will be necessary to set forth, in some detail, the factual background of the case.
In March 1975, a Federal Grand Jury in Hartford, Connecticut returned a two-count indictment against defendant, charging possession with intent to distribute and conspiracy to distribute cocaine hydrochloride (cocaine). On April 18, 1975, defendant pleaded guilty to the conspiracy count. Because his age at that time (25) permitted "Young Adult Offender" treatment, defendant was committed to the Federal Youth Correction Center for study, findings and recommendations as to his final sentence and treatment. He is awaiting final sentencing.
On April 3, 1975, defendant was again indicted, this time by a Federal Grand Jury in the Southern District of New York. The New York indictment charges that defendant possessed with intent to distribute and distributed cocaine. Defendant has pleaded not guilty to both counts. Defendant's present age of 26 does not allow for "Young Adult Offender" treatment under the New York indictment.
Defendant, although conceding that the two indictments allege separate and distinct offenses, argues that the acts which resulted in the New York indictment are part and parcel of the course of conduct encompassed by the Connecticut indictment's conspiracy charge, with both indictments resulting from a continuing investigation which commenced in July 1974 in New York and culminated with defendant's arrest in Hartford on November 4, 1974. Defendant's principal contention on this motion is that, by reason of his prior indictment in Connecticut, the interest of justice and the policy of fundamental fairness could be served only by the transfer of the New York indictment to Connecticut.
In arguing that the two cases are not in fact related, the United States Attorney points out that, with respect to the deliveries of cocaine charged in the New York indictment, defendant had no known co-conspirator; that the Government is not relying upon any possible connection between the wholly New York-based transactions which led to the New York indictment and those encompassed by the Connecticut indictment; that there is no evidence that the narcotics involved in the New York indictment came from a Connecticut source or that defendant was ever in Connecticut in connection with the offenses charged in the New York indictment; and that the mere fact that defendant was arrested in Connecticut with a large quantity of cocaine and also charged with possession of cocaine in New York does not necessarily link the prosecution of these two concededly separate criminal actions.
Rule 21(b), F.R.Crim.P., upon which defendant relies, provides in pertinent part:
"For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding * * * to another district."
A motion to transfer pursuant to Rule 21(b) is essentially one directed to the broad discretion of the court. 2 C. Wright, Federal Practice and Procedure § 344, at 637 (1969); see United States v. McGregor, 503 F.2d 1167, 1169-70 (8th Cir. 1974), cert. denied, 420 U.S. 926, 43 L. Ed. 2d 395, 95 S. Ct. 1122 (1975); United States v. Polizzi, 500 F.2d 856, 899 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S. Ct. 802, 42 L. Ed. 2d 820 (1975); United States v. Phillips, 433 F.2d 1364, 1368 (8th Cir. 1970), cert. denied, 401 U.S. 917, 27 L. Ed. 2d 819, 91 S. Ct. 900 (1971); Jones v. Gasch, 131 U.S. App. D.C. 254, 404 F.2d 1231, 1242 (1967), cert. denied, 390 U.S. 1029, 20 L. Ed. 2d 286, 88 S. Ct. 1414 (1968); United States v. Green, 373 F. Supp. 149, 153-54 (E.D.Pa.), aff'd, 505 F.2d 731 (3d Cir. 1974), cert. denied, 420 U.S. 978, 95 S. Ct. 1405, 43 L. Ed. 2d 659 (1975); United States v. Jessup, 38 F.R.D. 42, 45 (M.D.Tenn. 1965). Moreover, both the 1966 Advisory Committee Notes and the observations of commentators make it clear that transfer pursuant to Rule 21(b) may be ordered even to a district in which no part of the offense was committed. See, e.g., Moores, Federal Practice P 21.02 at 4, 21.04 at 12-12.1 (2d ed. 1974).
In what has been regarded as the leading case on Rule 21(b), Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44, 11 L. Ed. 2d 674, 84 S. Ct. 769 (1963), the Supreme Court listed ten factors which the district court had considered in its determination of whether transfer would be in the interest of justice. Although the Supreme Court did not specifically approve the list -- noting merely that both parties and the Court of Appeals had agreed that the first nine factors enumerated were appropriate -- and based its decision on other grounds, many courts, as well as commentators, have construed Platt as having at least tacitly adopted the list, and, citing Platt, have applied the listed factors in deciding particular Rule 21(b) motions. See, e.g., United States v. McGregor, supra at 1170; ...