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U.S. v. LAYNE

May 2, 2005.

UNITED STATES OF AMERICA,
v.
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.

I. BACKGROUND

  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, 2005.

  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, 2005.

  II. DISCUSSION

  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 Elements.
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 reside").

  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 ...


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