The opinion of the court was delivered by: SAND
Defendants Victor Posner and William Scharrer have moved jointly for a transfer of this case to the Southern District of Florida pursuant to F.R.Cr.P. 21(b). For the reasons set forth herein, the motion is granted.
The defendants are charged in a 12 count indictment with inter alia conspiring to falsify defendant Posner's personal income tax returns and to evade over $1,200,000 in federal taxes between 1976 and 1979.
The indictment charges that Mr. Posner made two charitable contributions of land located in Miami, Florida, to a Florida tax exempt charitable organization, the Miami Christian College,
Mr. Scharrer is said to be the President and the majority shareholder of a Miami real estate brokerage firm and the indictment alleges that Mr. Scharrer twice provided an overstated appraisal of the fair market value of the lands donated by Mr. Posner to the college, and that Mr. Posner utilized these appraisals in claiming deductions on his individual tax returns for 1975 and 1978. With respect to the first transaction which allegedly took place in 1975, a 16 acre parcel was donated, claimed to have a total value of $2,000,000, when in fact, the indictment alleges, the defendants knew the land had a maximum value of only $640,000. Three years later, the indictment alleges, this procedure was repeated with respect to another parcel of six acres, also owned by Posner, and also donated to Miami Christian College, which Scharrer appraised at $1,050,000. Posner claimed a charitable deduction in that amount, although allegedly both defendants knew the six acres had a fair market value of not more than $360,000.
The sole nexus with New York and the jurisdictional predicate for the return of the indictment in this district, is that in each year, the allegedly false tax returns were prepared by Posner's accountant in New York City.
APPLICABLE LEGAL PRINCIPLES
F.R.Cr.P. 21(b) provides that:
"For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district."
Judge Weinfeld has observed, in language often cited with approval (see, e.g., United States v. Griesa, 481 F.2d 276, 286 (2d Cir. 1973) (Timbers, J., concurring in part and dissenting in part)), that:
"As a general rule a criminal prosecution should be retained in the original district. To warrant a transfer from the district where an indictment was properly returned it should appear that a trial there would be so unduly burdensome that fairness requires the transfer to another district of proper venue where a trial would be less burdensome...." United States v. United States Steel Corporation, 233 F. Supp. 154, 157 (S.D.N.Y. 1964).
But, although transfer motions are not favored, as Judge Weinfeld's decision granting transfer in United States v. Alter, 81 F.R.D. 524 (S.D.N.Y. 1979) indicates, and as the Rule itself dictates, there are circumstances where transfer is appropriate. The determination of whether a particular case calls for transfer depends upon the peculiar facts and circumstances of that case. Accordingly, we can consider seriatim the factors enumerated by the Supreme Court in Platt v. Minnesota Mining Co., 376 U.S. 240, 11 L. Ed. 2d 674, 84 S. Ct. 769 (1964) relevant to this determination: 1. the location of the defendants, 2. the location of possible witnesses, 3. the location of events in issue, 4. the location of documents and records, 5. the disruption of defendant's business, 6. ...