United States District Court, S.D. New York
May 2, 2005.
UNITED STATES OF AMERICA,
FREDRIC BLAIR LAYNE, and MICHAEL SCARPON, Defendants.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
Defendants jointly move to change the venue of this action from
the Southern District of New York to the Southern District of
Florida in accordance with Fed.R.Crim.P. 21. For the foregoing
reasons, Defendants' motion is hereby GRANTED.
On January 21, 2005, the Government filed a two count
indictment against Defendants Frederic Blair Layne ("Layne") and
Michael Scarpon ("Scarpon") and charged them with wire fraud
(Count One) and conspiracy to commit wire fraud (Count Two).
(Indictment at ¶¶ 2-3; 6) (Dckt. 25.) According to the Complaint,
from February 2001 until the present, Williams & Associates
International Corporation ("Williams"), a Florida based company
owned and operated by Layne and Scarpon, was engaged in an
"advance fee scheme" whereby the perpetrators offered to provide
certain services including, but not limited to, financial
guarantees, loans, and letters of credit, in return for the
advance payment of fees for those services. (Compl. II at ¶¶
15-23) (Dckt. 1.) Upon receipt of payment, the perpetrators
allegedly failed to perform these services and never had the
ability or intention to perform them. (Compl. II at ¶¶ 15-23.)
On November 22, 2004, Defendant Scarpon was appointed counsel.
(Dckt. 16.) On January 31, 2005, Scarpon and Layne pled not
guilty and, on February 4, 2005, at the first pretrial
conference, a counsel of record was appointed to Layne. (Dckt.
31; 34.) A second conference was held on March 10, 2005. (Dckt.
33.) During the second conference, the Government was ordered to
produce a list of alleged victims to the Defendants by March 21,
On March 25, 2005, Defendants filed the instant action which
was sub judice on April 15, 2005. (Dckt. 31-35.) Oral argument was held on April 27,
A. Standard of Law
Federal Rule of Criminal Procedure 21(b) provides:
For Convenience. Upon the defendant's motion, the
court may transfer the proceeding, or one or more
counts, against that defendant to another district
for the convenience of the parties and witnesses and
in the interest of justice.
Fed.R.Crim.P. 21(b). The timing of a transfer motion is
governed by Federal Rules of Criminal Procedure 21(d) which
states that "[a] motion to transfer may be made at or before
arraignment or at any other time the court or these rules
prescribe." Fed.R.Crim.P. 21(d).
Motions to transfer venue are analyzed in accordance with the
Supreme Court's decision in Platt v. Minnesota Mining & Mfg.
Co., 376 U.S. 240 (1964) ("Platt"). To determine whether a
transfer is warranted, the Supreme Court detailed ten factors
courts should consider:
(1) Location of the Defendants; (2) Location of the
Witnesses; (3) Location of the Events in Issue; (4)
Location of Documents and Records; (5) Disruption of
the Defendants' Business(es); (6) Expense to the
Parties; (7) Location of Counsel; (8) Relative
Accessibility of the Place of Trial (9) Docket
Condition of Each District; and (10) Other Special
Platt, 376 U.S. at 243-44; see United States v.
Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990) (same);
United States v. Guastella, 90 F.Supp.2d 335, 338 (S.D.N.Y.
2000) (same). No one factor is dispositive; rather, "a Court
should look to all of the factors and determine whether the
interests of justice would be better served by changing the trial
venue." United States v. Spy Factory, Inc., 951 F.Supp. 450,
456 (S.D.N.Y. 1997); see Maldonado-Rivera, 922 F.2d at 966
("No one of these considerations is dispositive, and it remains
for the court to try to strike a balance and determine which
factors are of greatest importance.") (citation omitted). "As a
general rule," however, "a criminal prosecution should be
retained in the original district" in which it was filed,
Guastella, 90 F.Supp.2d at 338, and the decision whether to
transfer to another district, or not, is vested to the sound
discretion of the trial court. See, e.g., United States v.
Stephenson, 895 F.2d 867
, 875 (2d Cir. 1990); United States v.
Keuylian, 602 F.2d 1033
, 1038 (2d Cir. 1979). B. Platt Factors
1. Location of the Defendants
In accordance with the Second Circuit's decision in
Maldonado, courts in this district have afforded "greater
weight to the defendant's interest in being tried in the district
of his residence than to any other factor." United States v.
Martino, No. 00 Cr. 389, 2000 WL 1843233, at *6 (S.D.N.Y. Dec.
14, 2000) (citing to United States v. Ohran, No. 99 Cr.
142, 2000 WL 620217, at *3 (S.D.N.Y. May 12, 2000)); see also
United States v. Russell, 582 F.Supp. 660, 662 (S.D.N.Y. 1984)
("wherever possible, defendants should be tried where they
Here, it is undisputed that both Layne and Scarpon reside in
Florida.*fn1 Scarpon has resided in Richey, Florida for
approximately eleven years (Declaration of Steven M. Statsinger,
dated March 25, 2005 ("Statsinger Decl.") at ¶ 8) and Layne has
resided in the Miami area for more than thirty-two years.
(Declaration of Martine M. Beamon, dated March 25, 2005 ("Beamon
Decl.") at ¶ 7.) It is also undisputed that since the year 2000,
Layne has served as the legally designated primary medical
decision maker and medical proxy of his incapacitated mother, who
also lives in the Miami area. (Declaration of Kevin C. Wallace,
dated April 14, 2005 ("Wallace Decl.") at ¶ 4.)
In opposition to the Defendants' motion, the Government
concedes Layne's significant responsibilities with regard to his
mother and that Defendants' residence "weighs in favor of a
transfer," but argues that these factors do not outweigh the
Government's interest in trying the case in the Southern District
of New York. (Gov't Opp. at 10.)
In United States v. Hanley, No. 94 Cr. 394, 1995 WL 60019
(S.D.N.Y. Feb. 10, 1995), a defendant filed a motion to transfer
so as to be closer to his wife and three-year-old child in
California. Id., 1995 WL 60019, at *2. In addition, the
defendant had certain responsibilities with regard to his elderly
mother; in particular, the defendant visited his mother four
times per week. Id., 1995 WL 60019, at *2. In large measure, it
was these facts that the Court in Hanley relied upon when it
granted the motion to transfer. Id., 1995 WL 60019, at *2
("While these facts alone are not sufficient to warrant transfer,
defendant's residence and family concerns clearly favor transferring these proceedings to
While a defendant would always like to be close to his loved
ones, this desire alone is insufficient to warrant a transfer.
However, there are certain situations, such as those discussed in
Hanley and here, where the defendant's familial obligations
strongly suggest a trial close to where a defendant resides.
Here, Layne's responsibilities include regular consultations with
his mother's physicians about the course of treatment and care,
the mother's reliance on Layne as her primary decision maker, and
Layne's role in his mother's psychological and physical
recuperation and treatment. (Wallace Decl. at ¶¶ 5, 6, 10.) In
such certain circumstances, the first Platt factor, the
location of the defendants, weighs in favor of transfer to the
Southern District of Florida.
2. Location of the Witnesses
Defendants have the burden (as they have in general on such a
motion) that the location of witnesses compels a transfer to the
Southern District of Florida. See e.g., Guastella,
90 F.Supp.2d at 339; see Spy Factory, Inc., 951 F.Supp. at 457.
According to the Defendants, the essence of the allegations on
this score dictate that the primary witnesses reside in Florida
and not New York. For instance, Williams' associates, attorneys,
and employees are primarily located in Florida. As such, the
"nerve center" of the fraud was in Florida and, therefore, the
bulk, if not all, the fact witnesses are in Florida. In addition,
according to the Defendants, a significant number of other
witnesses, specifically character witnesses, are located in
The Government does not disagree and concedes that at least two
of its own witnesses reside in Florida.*fn2 While a trial
"will be an inconvenience to some witnesses, no matter where the
trial is held," United States v. Coriaty, No. 99 Cr. 1251, 2000
WL 1099920, at *2 (S.D.N.Y. Aug. 7, 2000), both the Government
and the Defendants acknowledge that a significant number of
witnesses are located in Florida.
Indeed, it appears that fewer witnesses will be inconvenienced
by a Florida trial. In addition, the potential inconvenience to witnesses located
outside of Florida must be weighed against the effect a New York
trial may have on the various Florida based character witnesses.
"As courts have recognized, the impact of character witnesses is
generally greater in the district where such witnesses live and
work." United States v. Martino, No. 00 Cr. 389, 2000 WL
1843233, at *5 (S.D.N.Y. Dec. 14, 2000) (citing to Ohran,
No. 99 Cr. 142, 2000 WL 620217, at *3; United States v.
Aronoff, 463 F.Supp. 454, 458 (S.D.N.Y. 1978) (location of
character witnesses is "significant")). This makes good sense
since the character witnesses will come from the same
neighborhood as the jury. Accordingly, given the impact of
character witnesses and the number of Government and Defense
witnesses that reside in Florida, the second Platt factor, the
location of witnesses, weighs in favor of transfer to the
Southern District of Florida.
3. Location of the Events in Issue
In Guastella, a defendant was indicted on wire fraud and
other charges in connection with an alleged investment scheme.
90 F.Supp.2d at 335. The defendant maintained that the "nexus of
events complained of by the government" was Las Vegas and,
therefore, the case should be transferred from New York to Las
Vegas. Id. In opposition, the Government argued that, even
though the defendant marketed the scheme from Las Vegas, the
victims were international in scope. Id. The court agreed, in
part, with the Government and determined that "because the
criminal activity that was alleged to have occurred in this case
was national and even international in scope, and had ties to
both New York and Las Vegas, the location of the events at issue
favors neither side." Id. at 339.
Similarly, here, while the Defendants argue that the alleged
"nerve center" of the alleged fraud was in Florida, the
Government responds that only about 100 of the 500 victims
currently reside in Florida. Therefore, as in Guastella,
"because the criminal activity that was alleged to have occurred
in this case was national . . . in scope," and had ties to both
Florida and New York, "the location of the events at issue favors
neither side." Id. at 339; Spy Factory, Inc.,
951 F.Supp. at 457. 4. Location of Documents and Records
It is well settled that "given the conveniences of modern
transportation and communication," United States v. Martino,
No. 00 Cr. 389, 2000 WL 1843233, at *5 (S.D.N.Y. Dec. 14, 2000),
"location of relevant documents is of little consequence one way
or the other." Coriaty, No. 99 Cr. 1251, 2000 WL 1099920, at
*3. As such, courts in this district have recognized that the
fourth Platt factor is not as influential today as in the past.
See, e.g., Spy Factory, 951 F.Supp. at 458 ("Even where the
Government has five file drawers of documents, the location of
documents and records is not a major concern in these days of
easy and rapid transportation.").
Here, the majority of documents are currently located in the
Southern District of New York, but over a third of those
documents are in electronic form and easily transferable at
little cost. In addition, the easy transferability of the other
documents renders this factor innocuous. Accordingly, the fourth
Platt factor does not favor either retaining or transferring
5. Disruption of the Defendants' Business(es)
While "loss of business is a factor favoring transfer,"
Coriaty, No. 99 Cr. 1251, 2000 WL 1099920, at *3,
"inconvenience to the defendant or his business is not, by
itself, a sufficient basis for transfer of venue." Guastella,
90 F.Supp.2d at 341 (citing to United States v. Antia, No.
97 Cr. 733, 1999 WL 294788, at *2 (E.D.N.Y. Mar. 22, 1999)).
Here, Layne and his fiancée are the sole proprietors of two
new businesses in the Miami area, a corporate fashion and
etiquette consulting service and a real estate investment
company. (Beamon Decl. at ¶ 28.) Layne's responsibilities in the
new corporate fashion and etiquette business include
"coordinating client correspondence, overseeing client filings,
setting up and expanding marketing opportunities, including
advertising and expanding new product lines, and managing
bookkeeping and payment system responsibilities." (Beamon Decl.
at ¶ 29.) The nature of the consulting business involves a
substantial amount of client contact. As for the real estate
investment company, Layne's responsibilities include visits to
"dozens of sites each week." (Beamon Decl. at ¶ 30.) While the Government persuasively argues that Layne's ability
to conduct business would be substantially curtailed whether the
trial was conducted in lower Manhattan or in Miami, the extent of
the curtailment would be substantially less if the case was
adjudicated in Miami. As the court in Spy Factor recognized,
"[t]o a failing business that depends so much on personal
involvement, even a few hours each weekday plus weekends could
make a substantial difference." Spy Factory, Inc.,
951 F.Supp. at 459 (citing to Aronoff, 463 F.Supp. at 458). While a
trial inevitably demands a large portion of a defendant's time
and energy, nonetheless, any time and effort that a defendant can
offer to his company may be valuable to the company's long-term
viability. See United States v. Russell, 582 F.Supp. 660, 663
(S.D.N.Y. 1984) ("Although a substantial amount of the
[defendants'] time will be occupied by the trial wherever it is
held, it will still be possible for them to carry on their
business at least to a limited extent if they are tried in [the
Southern District of Florida]. Such a potential reduction in
business interruption is an additional factor in favor of
transfer."); see also United States v. Olen,
183 F.Supp. 212, 219 (S.D.N.Y. 1960).
6. Expense to the Parties
According to the Defendants, the expense of proceeding in the
Southern District of New York poses a significant financial
burden. In particular, the prospects of a two month long trial,
away from home and business, imposes a substantial financial
strain on the Defendants and militate towards a transfer to
Florida. The Government argues that "this sixth Platt factor
weighs only slightly in favor of transfer" and submitted a
proposal to defray the costs:
[The Government] would propose that it pay for two
round trip tickets at a government rate for each
defendant for travel for trial preparation and for
trial[,] . . . the Government would propose that it
defray the costs of defendants' lodging, at a
government rate, for both trial preparation and trial
. . . [and] the Defendants would be provided a per
diem of $51.00 a day for each day of the defendants'
stay in New York.
(Gov't Op. 25).
However, the Government's offer fails to adequately address the
substantial cost a two-month long criminal trial conducted in
Manhattan would impose on the Defendants. Defendants would not
only be required to absorb significant out-of-pocket costs for
family and friends to travel and stay in New York for a
significant period of time, but Defendants would also be required to pay for any additional trips to Florida
outside the two trips paid for by the Government. Moreover, the
Defendants would also be required to absorb the expense of moving
to New York for a significant period of time.
Indeed, such a trial would impose a substantially larger
financial burden on the Defendants than would a trial in the
Southern District of Florida and, therefore, the sixth Platt
factor weighs, if only slightly, in favor of transfer.
7. Location of Counsel
As opposed to Guastella, where four of the six defendants had
New York based counsel that were substantively involved in the
defense, Guastella, 90 F.Supp.2d at 341, and Spy Factory,
where the company's attorneys were from New York and only one
defendant had counsel from outside of New York, Spy Factory,
Inc., 951 F.Supp. at 460, here, both defense counsel are New
Yorkers and made it clear in their papers that Florida counsel
would provide more qualified representation to the Defendants
because of their keen knowledge of Florida substantive law.
The Government's arguments about the simplicity of the case and
the inconvenience of a transfer fail to outweigh the Defendants'
argument that they would obtain more knowledgeable representation
in Florida and be better able to participate in the preparation
of their own defense if their counsel was within driving
distance. As such, the seventh Platt factor weighs in
8. Relative Accessibility of the Place of Trial
As in Spy Factory, neither the Government nor the Defendants
have demonstrated "any problems of accessibility in the alternate
forum." Spy Factory, Inc., 951 F.Supp. at 460. As such, the
eighth Platt factor does not weigh toward either conclusion.
9. Docket Condition of Each District
Defendants went to great lengths to demonstrate that the docket
of the Southern District of Florida is not under the same burdens
as this Court's docket. According to the Administrative Office of
the United States Courts, as of September 30, 2004, the Southern
District of New York had "28 active judges with 3,686 criminal
cases pending more than 131 pending criminal cases per judge."
(Beamon Decl. at ¶ 32.) As a result, the "median time for a
criminal action to reach its conclusion in the Southern District
of New York is 11.6 months and the median time to a jury trial is
17.2 months." (Beamon Decl. at ¶ 32.) Conversely, as of September 30, 2004, the Southern District of
Florida had "18 active judges with 1,057 criminal cases just
over 58 pending criminal cases per judge." (Beamon Decl. at ¶
34.) The effect of the lighter case load is that the "median time
for a criminal action to reach its conclusion in the Southern
District of Florida is 6 months [and] the median time to a jury
trial is 10.5 months." (Beamon Decl. at ¶ 34.)
The Court is not persuaded by the apparent disparity in docket
conditions. This court is not too busy to adjudicate this matter.
See Martino, 2000 WL 1843233, at *5; see also Coriaty,
2000 WL 1099920, at *4 ("docket conditions . . . do not favor
either party."); Guastella, 90 F.Supp.2d at 341 (there "is no
evidence before the Court to suggest that the docket conditions
of either forum compel transfer"); Spy Factory,
951 F.Supp. at 460 ("I find that this factor does not weigh in favor of either
party"). As such, the ninth Platt factor does not weigh toward
10. Other Special Elements
Under the "other special elements" factor, Defendants again
emphasize Layne's role in his mother's healthcare. Layne's mother
currently resides in a nursing him in Boca Raton, Florida which
is approximately fifty miles from Miami. (Beamon Decl. at ¶ 38.)
Defendants contend that Layne's role as the primary health care
surrogate for his mother, his responsibility as her designee to
authorize medical treatment should she be unable to do so, and
his responsibility, shared with his brother, of durable power of
attorney over his mother's financial affairs militate towards the
Court granting Defendants' motion to transfer. (Beamon Decl. at
¶¶ 39, 40.)
C. Weighing of Platt Factors
Upon careful consideration of each factor, the Court finds,
that, on balance, Defendants have satisfied their burden. Six of
the Platt factors weigh in favor of transfer. They include (1)
location of the Defendants, (2) witnesses, (3) counsel, the (4)
disruption to the Defendants' businesses, (5) expense to the
parties and, most persuasively, (6) Layne's involvement in the
care of his mother. Four of the Platt factors were neutral. The
(1) relative accessibility of the place of trial, the (2) docket
conditions, the (3) location of the events in issue, and (4) the
location of the documents and records, do not weigh against a
transfer. issue, and (4) the location of the documents and records, do not
weigh against a transfer.
For the aforementioned reasons, Defendants' motion to transfer
prosecution to the Southern District of Florida is GRANTED.
The case of United States v. Fredric Blair Layne and Michael
Scarpon, 05 Cr.87, is ORDERED transferred to the United States
District Court for the Southern District of Florida and the Clerk
of the Court is so instructed.
The Clerk of the Court is instructed to close this motion and
all other open motions and remove this case from my docket.
IT IS SO ORDERED.