The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
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,
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 ...