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UNITED STATES v. ELSON

June 16, 1997

UNITED STATES OF AMERICA
v.
MONYA ELSON, Defendant.



The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, DISTRICT JUDGE :

 In March, 1995, a Grand Jury in the Southern District of New York returned a three count Indictment against the defendant, Monya Elson. The first two counts of the Indictment charge Elson with conducting and participating in, and conspiring to conduct and participate in, the conduct of an enterprise through a pattern of racketeering activity, in violation of Title 18 of the United States Code, Sections 1962(c) and (d) ("RICO"). The pattern of racketeering activity alleged in the Indictment included three murders and two attempted murders. The third count of the Indictment charges Elson with participating in a Hobbs Act extortion, in violation of Title 18, United States Code, Sections 1951 and 2.

 Elson has now made an omnibus motion in regard to this Indictment. Elson first seeks to transfer his prosecution to the Eastern District of New York, or, alternatively, to transfer only the homicide allegations to that district. Elson also moves to dismiss the racketeering counts in the Indictment, alleging that those charges are legally insufficient. Elson's motion also seeks to suppress the fruits of various court-authorized wiretaps. Finally, Elson seeks to strike from the Indictment allegedly unnecessary, superfluous and inherently prejudicial verbiage. *fn1"

 II.

 Elson moves to transfer this case, or at least those portions of the case containing the homicide allegations, to the Eastern District of New York. *fn2" "For the convenience of parties and witnesses, and in the interests of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district." Fed.R.Crim.P. 21(b). "The burden of setting forth facts sufficient to warrant transfer is, of course, on the moving party." United States v. Persico, 621 F. Supp. 842, 858 (S.D.N.Y. 1985).

 In deciding whether transfer is appropriate under Rule 21(b), courts generally consider the factors set forth in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 11 L. Ed. 2d 674, 84 S. Ct. 769 (1964). These factors include the location of the defendant, the location of possible witnesses, where the events at issue occurred, the location of relevant documents, the location of defense counsel, the relative accessibility of the place of trial, the expenses to be incurred by the parties if the transfer is denied, the docket condition of each district, and any other special factors. See United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991); United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir. 1979); United States v. Spy Factory Inc., 951 F. Supp. 450, 455-56 (S.D.N.Y. 1997). A Court should weigh all of these factors and determine whether the interests of justice would be better served by changing the trial venue. See Maldonado-Rivera, 922 F.2d at 966.

 Elson argues that the Eastern District of New York is a more convenient forum than the Southern District of New York because all of the actual murders and one of the attempted murders occurred in the Eastern District, the investigation of those crimes was conducted by detectives from a precinct in the Eastern District, and the defendant, the alleged victims, and the civilian witnesses all reside in the Eastern District. In response, the Government argues that the defendant is currently incarcerated in this district and that most of the relevant documents are already in the Government's possession, and are stored in this district. The Government also argues that the Eastern District cannot be considered more convenient than the Southern District because the two districts are adjacent, and the courthouses are located only a few miles apart.

 The Government is correct that given the proximity of the two courthouses, the defendant has failed to show that the factors bearing on convenience indicate that the interests of justice would be served by transfer. As the court stated in United States v. Persico, 621 F. Supp. 842 (S.D.N.Y. 1985)

 
When a racketeering case is properly venued in either of two adjacent districts . . .it is difficult to imagine convenience interests that would compel transfer of the case. As between the two districts the situs of prosecution is generally a decision more properly within the province of the Attorney General than a federal district judge.
 
Since the prosecution has already been brought here, the grand jury which heard evidence is located here, the government's attorneys are located here, and a large number of documents and other evidence accumulated by the government to support its charges are located here, it would be imprudent to transfer the case to [The Eastern District]. Id. at 858-59.

 Given the proximity of the two courthouses, the defendant has failed to carry his burden of showing that the Eastern District would be a more convenient forum for this litigation. The defendant has also failed to show that the transfer is necessary to serve the interests of justice. All such a transfer would do is unnecessarily delay the trial, which has already been scheduled. See id. at 858.

 II.

 Elson also moves to dismiss the first two counts of the Indictment as legally insufficient. Both counts allege that Elson "together with others known and unknown were members of a group known as 'Monya's Brigada' and constituted an 'enterprise' as that term is defined in Title 18, United States Code, Section 1961(4), that is, a group of individuals associated in fact, which was engaged in, and the activities of which affected, interstate and foreign commerce. Monya's Brigada was an organized criminal group that operated in the Southern District of New York and elsewhere."

 Count One further charges that Elson "and others known and unknown, being persons employed by and associated with the racketeering enterprise described above, which enterprise was engaged in, and the activities of which affected, interstate and foreign commerce, unlawfully, willfully and knowingly combined, conspired, confederated and agreed together and with each other to conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity . . .. It was part of the conspiracy that the defendant agreed to participate in the conduct of ...


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