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United States v. Pastore

United States District Court, S.D. New York

January 11, 2018

United States of America,
v.
Michael Pastore, Defendant.

          OPINION & ORDER

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE

         Defendant 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.

         For the 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.

         FACTS

         In June 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 account.

(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.)

         The 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.)

         Mr. 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.

         Defendant 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 days[1] 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.

         I. Transfer

         A. Legal Standard

         Rule 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, 2006).

         In 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 (1964), including:

(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 transfer.

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)).

         B. Discussion

         In the 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).

         After a review of the relevant Platt factors, as outlined below, this Court agrees with the Government and finds that transfer of this action to the ...


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