United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE
Michael Pastore ("Defendant" or "Mr.
Pastore") is charged with one count of wire fraud, in
violation of 18 U.S.C. §§ 1343 and 2. Presently
before the Court is Defendant's motion for a transfer of
venue to the Southern District of Florida for trial, which
Defendant argues is the natural and proper venue for this
case. In the event that this Court refuses to transfer this
action, Defendant alternatively moves to require early notice
of any Rule 404(b) evidence of other crimes, wrongs, or bad
acts allegedly committed by the accused that the Government
intends to introduce at trial.
following reasons, Defendant's motions for a transfer of
venue to the Southern District of Florida and early
disclosure of Rule 404(b) evidence are DENIED.
of 2017, a grand jury sitting in the Southern District of New
York returned an indictment charging Defendant Michael
Pastore with one count of wire fraud, in violation of 18
U.S.C. §§ 1343 and 2. (ECF No. 10.) The indictment
alleges, in relevant part:
From in or about January 2016 to in or about March 2016, in
the Southern District of New York and elsewhere, Michael
Pastore . . . engaged in a scheme to defraud Bank of America,
TD Bank, and an individual with initials E.C.C. and caused
interstate and foreign wire communications to further the
scheme by withdrawing the fraudulent proceeds from his bank
(Indictment at 1, ECF No. 10.) The Complaint more
specifically alleges that in December of 2015, a commercial
real estate corporation mailed a check to Mr. Pastore's
address in the amount of $52, 506.53. (Compl. at 2, ECF No.
1.) Mr. Pastore, however, was not the check's intended
recipient. Rather, the check was made payable to an
individual with the initials E.C.C. (“E.C.C.”).
(Id.) Unbeknownst to the check's
sender-E.C.C.'s cousin-E.C.C. no longer resided at the
West Palm Beach, Florida residence, which had since been
rented to Mr. Pastore. (Id.) In January of 2016,
E.C.C.'s cousin realized his mistake and attempted to
stop payment on the check, but learned that it had already
been negotiated. (Id.)
Government alleges that Mr. Pastore received the check in
question via mail and deposited it into a TD bank account
using an automated teller machine (“ATM”) in West
Palm Beach, Florida on January 29, 2016. (Id. at 3.)
On February 3, 2016, the Government further alleges, Mr.
Pastore withdrew $9, 500 from this same TD bank account in
Mt. Kisco, New York. (Id.)
Pastore was arrested and eventually entered a plea of not
guilty on June 12, 2017 before the Honorable Paul E. Davison
in this District. He was released on bail and remains at
liberty in Florida, where he currently resides.
filed the instant motion to transfer this action to the
Southern District of Florida on November 17, 2017.
(Def.'s Mot. and Mem. of Law to Change Venue
(“Def.'s Venue Mot.”) at 1, ECF No. 13.) In
the alternative, Defendant requests that this Court require
that the Government provide notice of its intention to
introduce Rule 404(b) evidence of other crimes, wrongs, or
bad acts allegedly committed by the accused at least sixty
before trial. (Def.'s Mot. and Mem. of Law to Require
Early Disclosure of Rule 404(b) Evidence (“Def.'s
Rule 404(b) Mot.”) at 4.) The Court now considers each
motion in turn.
21(b) of the Federal Rules of Criminal Procedure provides
that “[u]pon the defendant's motion, the court may
transfer the proceeding . . . to another district for the
convenience of the parties, any victim, and the witnesses,
and in the interest in justice.” Fed. R. Crim. P.
21(b). The general rule, however, is that “a criminal
prosecution should be retained in the original
district.” United States v. Parrilla, No.
13-CR-360 (AJN), 2014 WL 2200403, at *1 (S.D.N.Y. May 22,
2014) (internal quotation marks omitted) (citing United
States v. United States Steel Corp., 233 F.Supp. 154,
157 (S.D.N.Y. 1964)). A criminal defendant, therefore,
“bears the burden of justifying a transfer.”
United States v. Canale, No. 14-CR-713 (KBF), 2015
WL 3767147, at *3 (S.D.N.Y. June 17, 2015) (citing United
States v. Riley, 296 F.R.D. 272, 275 (S.D.N.Y. 2014));
see also United States v. Datta, 797 F.Supp.2d 448,
450 (S.D.N.Y. 2011) (citing United States v. Valdes,
No. 05-CR-156 (KMK), 2006 WL 738403, at *3 (S.D.N.Y. Mar. 21,
deciding whether to transfer a criminal action pursuant to
Rule 21(b), a district court may consider the non-exhaustive
list of factors enumerated by the Supreme Court in Platt
v. Minn. Mining & Mfg. Co., 376 U.S. 240, 243-44
(a) location of the defendants; (b) location of the possible
witnesses; (c) location of the events likely to be at issue;
(d) location of relevant documents and records; (e) potential
for disruption of the defendant's businesses if transfer
is denied; (f) expenses to be incurred by the parties if
transfer is denied; (g) location of defense counsel; (h)
relative accessibility of the place of trial; (i) docket
conditions of each potential district; and (j) any other
special circumstances that might bear on the desirability of
United States v. Maldonado-Rivera¸ 922 F.2d
934, 966 (2d Cir. 1990). “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
the greatest importance.” Id. (internal
quotation marks omitted) (citing United States v.
Stephenson, 895 F.2d 867, 875 (2d Cir. 1990)).
present case, neither party contends that venue is improper
in the Southern District of New York. Rather, Defendant
argues that “[a]llowing this case to be tried in New
York ignores the situs of much of the relevant alleged
conduct, the emotional and financial hardships that would be
imposed on Mr. Pastore, and the orderly and efficient
administration of justice.” (Def.'s Venue Mot. at
1.) Specifically, Defendant contends that conducting trial in
the Southern District of Florida would be preferable because
both he and key witnesses reside in Florida, and the bulk of
the alleged criminal activity occurred in Florida. The
Government counters that Defendant has not met his burden of
showing that this action should not be prosecuted in the
district in which it was brought-the Southern District of New
York. (Govt.'s Mem of Law in Opp. to Def.'s Pretrial
Mot. “Govt.'s Opp.” at 4, ECF No. 15).
review of the relevant Platt factors, as outlined below, this
Court agrees with the Government and finds that transfer of
this action to the ...