the individual defendants were from San Antonio. However, in the interim, Tracy Ford's San Antonio lawyer has been replaced by a CJA attorney from New York because of a potential conflict of interest with Ford's prior counsel. Ronald Kimball's San Antonio lawyer has advised the Court that if the trial is not transferred to San Antonio, local counsel in New York will assume the role of lead counsel in the case. In a letter to the Court dated December 20, 1996, Mr. Kimball's attorney underscored that in the event the transfer is denied, this substitution of counsel would not occasion delay nor prejudice Mr. Kimball. (Letter from Goldstein to Court of 12/20/96 at 1-2 (assuring the Court that local counsel for Mr. Kimball "is a very able, New York practicing attorney, who has served as local counsel in this cause from the outset, performed many of the local discovery and jury selection duties on behalf of all Defendants in this cause and is sufficiently familiar with the facts and issues in this case that his substitution as lead counsel would occasion no delay in this cause.")). The Spy Factory corporation's attorney has at all times been a New York lawyer, and, obviously, the two assistant United States attorneys are both from this district. Therefore, given that there is only one counsel who currently resides in San Antonio, the location of counsel factor no longer weighs in favor of a transfer of venue.
8. Relative Accessibility of Place of Trial
Although the Government asserts that "the relative accessibility of the place of trial weighs heavily in favor of denying the motion to transfer this case" (Govt Mem. at 42) because "New York has superior access to three airports, numerous train lines and an abundance of hotel accommodations," (Govt Mem. at 43), the Government has not pointed to any problems of accessibility in the alternate forum. Accordingly, this factor does not weigh toward either conclusion. See, e.g., United States v. United States Steel Corp., 233 F. Supp. 154, 158 (S.D.N.Y. 1964) ("The efficiency of modern air transportation renders rather sterile any argument" that one forum is more accessible than the other.).
9. Docket Condition of Each District
Exhibit 10 to Defendants' Reply Memorandum is a letter from Chief Judge Harry Lee Hudspeth of the Western District of Texas which provides Judge Hudspeth's personal "assurance" that a judge in that district "would be available to try this case if it were transferred to [their] district." (Defs.' Reply Ex. 10). This Court, however, is prepared to try this case immediately. Moreover, a transfer to San Antonio will inevitably necessitate a delay in the impending trial date, if for no other reason than that the local assistant United States attorneys as well as the local judge would have to prepare themselves for the trial of this case. In light of this almost certain delay, I find that this factor does not weigh in favor of either party.
The Court notes that the existence of a potential conflict of interest and the resulting appointment of new counsel for defendant Tracy Ford has necessitated a postponement of the original January 14, 1997 trial date to February 18, 1997. The interest of justice is not served, however, by requiring an assistant United States attorney and a judge in the Western District of Texas to immerse themselves in the case in the manner in which Ford's new lawyer has agreed to do in order to meet the imminent trial date. In fact, given that this Court had to canvass a wide array of CJA counsel in order to locate one attorney whose schedule would allow him to devote himself exclusively to this matter -- and without significant interruption over the holidays and weekends -- the Court finds it unlikely that any assistant United States attorney or judge in the Western District of Texas would be in a position to devote such exclusive attention to this matter.
Furthermore, although a delay of the trial has already been occasioned by the substitution of Ford's attorney, the Court does not consider this factor to weigh in favor of a change of venue given that it was the failure of all the defendants to inform the Court earlier of the potential conflict that has caused this delay. If defense counsel had raised the potential conflict of interest at the beginning of the case, when they were initially retained with Spy Factory funds -- instead of waiting for the Government to advise the Court of the conflict after the motion papers were filed -- this adjournment would not have been necessary and the original trial date of January 14, 1997 would have been kept.
10. Other Special Elements
It is true that in change of venue cases, as the Government explains, "one of the factors to which the Second Circuit has paid special attention is a defendant's delay in moving to transfer the case. (Govt Mem. at 35 (citing United States v. Keuylian 602 F.2d 1033, 1038 (2d Cir. 1979); United States v. Maldonado-Rivera, 922 F.2d at 966)). In the instant case, there is no question that the defendants were woefully late not only in filing their motion to change venue, but also in apprising the Court of their intention to file such a motion. By the lead defense counsel's own admission, such neglect was inexcusable. (See, e.g., 12/13/96 Tr. at 72 ("MR. GOLDSTEIN: Your Honor, you are correct. I was the major spokesman at each of those hearings with respect to the defense, and I take full responsibility, and the Court is right, and I tried to say that each time, one, that we did not say anything to the Court about it and did not apprise the Court either in writing or at the numerous hearings we had, and we did have full opportunity to do so.")).
As the Government argues, "at each of the conferences before this Court, the defendants gave every indication that they intended to proceed with the trial in the Southern District of New York." (Govt Mem. at 36). The original indictment in this case was returned in August of 1995. The Court held an initial status conference on September 28, 1995. At that conference, both sides spoke of the enormous amount of discovery that was to take place; however, the defendants did not mention the possibility that they might file a motion to change venue, even though "the Government offered and the Court directed the Government to get all of the discovery centralized in New York" (Govt Mem. at 37) -- a laborious and expensive process that might have been avoided if the Court had been informed earlier of the defendants' intent to file a motion to change venue. In addition, at that same conference, the defendants "involved this Court in the discovery process by having this Court review all of the allegedly attorney-client privileged documents." (Govt Mem. at 37 (citing transcripts)). Finally, before the parties left the conference, the Court instructed defense counsel to "tell me or  be prepared to discuss with me the nature of the motion [sic] that you are thinking of making" at the next conference. (Govt Sur-Reply on Venue at 5 (quoting 9/28/85 Tr. at 16)).
The parties returned to the Court on January 17, 1996, for another conference where discovery and privilege issues were discussed, but, again, the defendants did not mention a potential change of venue motion, even though the Court did inquire of the timing of motions in general. (See Govt Sur-Reply on Venue at 5). Two months later, on March 15, 1996, the parties again appeared before the Court to resolve privilege issues and to discuss possible motions, but defense counsel again did not mention the venue motion. Then at the May 6, 1996 conference, a motion
and trial schedule was set. Despite the fact that a January 1997 trial date was set, and that several possible pretrial motions were named, the defendants still failed to mention the fact that a change of venue might be among the defense motions. Mr. Goldstein, lead counsel for the defense, only mentioned the following:
There are at least two motions that I would like to ask for leave -- I will do that in writing and submit [sic] the Court with reasons. But obviously the question of the [constitutionality of] the statute, it is a question, at least with respect to this statute, that is going to be one of first impression.... The other one deals with motions to suppress, particularly if we consolidate them into one mowing [sic].
(Govt Sur-Reply on Venue at 6 (quoting 5/6/96 Tr. at 5)).
Even though Spy Factory had stopped paying their legal fees months earlier and defendant Ford had left Spy Factory's employment and defendant Richardson was imminently to leave to start a family business, at the August 26, 1996 conference, held more than two months after the defendants had been arraigned on the Superseding Indictment -- and well after the financial impact of the ex parte order was patently clear -- "the defendants raised several issues with this Court, all of which indicated that they planned to go to trial in the Southern District of New York." (Govt Mem. at 38). "For instance, attorneys for Ronald Kimball, on behalf of all defendants, agreed to meet with the Government and the Southern District of New York's jury clerk to discuss a process for jury selection.... Counsel also inquired about this Court's requirements for the presence of local counsel during a trial in the Southern District of New York." (Id.). Despite the fact that the Court emphasized to defense counsel that the January trial date would not be moved "barring an act of God," (Govt Mem. at 38 (citing 8/26/96 Tr. at 27)),) defense counsel still failed to raise the issue of the venue motion, even though they had to have known that such a motion would have a significant impact on the timing of the trial.
In the face of this inexcusable delay, it is of little significance that defendants point out that both of the cases relied upon by the Government involved situations in which the defendant(s) filed their motions "virtually on the eve of trial" and, more importantly, after the filing of pre trial motions. (Defs.' Venue Reply at 6-7). In fact, defendants' contention is misleading upon a close reading of the cases relied upon by the Government. While it is true that in both United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991) and United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir. 1979), the change of venue motions were submitted after the filing of pretrial motions, in neither case was the delay between the indictment and the filing of the venue motion as great as it is in the instant case.
For example, in United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991), the defendants filed their motion "some nine months after commencement of the prosecution, after discovery was nearly complete, after substantive motions had been filed, and on the eve of the court's setting a date for trial." Here, of course, defendants filed their motion over one year after the "commencement of the prosecution;" after the "discovery was nearly complete," and not just "on the eve of the court's setting a date for trial," but actually on the eve of the trial itself. Similarly, in United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir. 1979), the Second Circuit upheld a denial of change of venue where the motion was filed only four months after the indictment. Therefore, even though the defendants in the instant case filed their venue motion together with the rest of the pretrial motions, and even though the complexity of the case and the extent of discovery might explain to some extent why the defendants waited so long to file their venue motion, there is no explanation nor excuse for why defense counsel failed earlier to bring to the Court's attention the possibility that such a motion was being contemplated.
In short, defense counsel should have brought to the Court's attention the fact that they would seek a change of venue so the Court could require defendants to file such a motion much earlier in the court proceedings, before the Court ruled on numerous discovery questions, privilege issues, and other pretrial matters that have consumed over one year of this Court's calendar. (12/13/96 Tr. at 61, 63, 72-74). Because of defendants' delay, a transfer of the action to the Western District of Texas at this late stage would necessitate not only that the new judge be bound by important decisions already made by this Court, but also that the Western District of Texas judge duplicate the efforts made by this Court to become familiar with the case. Such a prospect does not comport with the efficient or fair administration of justice and this Court will not condone the delay occasioned by the defendants' conduct. Therefore, the defendants' delay not only in filing the motion to change venue, but also their delay in informing the Court of their intent to file the motion, weighs qualitatively and heavily in favor of retaining the trial in the Southern District
In sum, then, having considered with great care each of the above factors, the Court concludes that the defendants have not shown that the interests of justice require a transfer of this case. I find that most of the factors, such as the location of witnesses, events, counsel, documents and records, as well as the relative accessibility of the respective venues, weigh in favor of neither party. The factors weighing most strongly in the favor of the Government are the docket conditions of each district -- to the extent that a transfer would inevitably necessitate some delay in the trial date -- and the defendants' delay in bringing the motion to change venue. Also, because all counsel except one now resides in New York, this factor now weighs more in the Government's favor than in the defendants'.
On the other hand, the factors weighing in favor of transferring venue are the location of the defendants, the potential for disruption of the defendants' businesses and employment, and the defendants' expenses in trying the case in New York. Because the strongest of these factors -- namely the tremendous expense the defendants would be forced to undertake in trying the case in New York -- has been largely eviscerated by appointment of CJA counsel and the Government's offer to pay for other expenses, I find that a change of venue is unnecessary and not in the interests of justice. Although there is still a potential for disruption of the defendants' businesses and personal life, I find that this factor, standing alone, does not outweigh the countervailing considerations for keeping the case here: defendants' delay in bringing this matter to my attention and the further delay such a transfer would occasion. See e.g., United States v. United States Steel Corp., 233 F. Supp. 154, 156 (S.D.N.Y. 1964) (providing that "mere inconvenience, interference with one's routine occupational and personal activities, and other incidental burdens which normally follow when one is called upon to resist a serious charge do not ipso facto make the necessary showing that a transfer is required in the interest of justice. As a general rule a criminal prosecution should remain in the original district."); cf. United States v. Stephenson, 895 F.2d 867, 875 (2d Cir. 1990) (reviewing district court's decision for abuse of discretion and holding that "although [the defendant] points to several considerations favoring the [alternate forum] as a more convenient forum, the residences of a number of Government witnesses and the location of the prosecutor and the documents and tape recordings relevant to the case against [the defendant] favored holding the trial in the Southern District.").
Furthermore, to the extent that there is a "policy" favoring the trial of defendants where they reside, this "policy" is in tension with the more general presumption that "a criminal prosecution should be retained in the original district." United States v. Posner, 549 F. Supp. 475, 477 (S.D.N.Y. 1982) (citing cases). Hence, because "the burden is on the moving defendant to justify a transfer under Rule 21(b)," United States v. Aronoff, 463 F. Supp. 454, 460 (S.D.N.Y. 1978), and defendants here have not persuasively proven why the interests of justice require a transfer, I decline to change venue in this case. Instead I will follow the practice of Judge Lasker in United States v. Wheaton, 463 F. Supp. 1073, 1078 (S.D.N.Y.), aff'd sub nom., United States v. Williams, 614 F.2d 1293 (1979), and condition the denial of the transfer motion on the Government's "representation to make available to the defendant, upon a good faith showing of need, reasonable funds for transportation to New York City and for subsistence for the defendant and witnesses residing in the [alternate venue] whom he may reasonably call in his defense." See also United States v. Haley, 504 F. Supp. 1124, 1129 (E.D. Pa. 1981) (providing that "to lessen this impact and the concomitant prejudice which inures to indigent defendants, the Government may offer to pay travel and subsistence expenses for defendants and their witnesses. Indeed the Government has done so in other instances where it opposed a motion to transfer.") (citing Wheaton).
II. DEFENDANTS' MOTION TO DISMISS FOR VAGUENESS
A. STANDARD FOR VAGUENESS
It is has been called the "first essential of due process of law," Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926), that statutes, particularly statutes whose violation carries criminal consequences, provide notice to citizens that their conduct is potentially unlawful. The rationale for this long-tested principle of due process has been articulated by the Supreme Court and is frequently reiterated:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.