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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES OF AMERICA,

Plaintiff,

v.

KEVIN TUBBS, JOSEPH DIBEE,

JOSEPHINE S. OVERAKER, JUSTIN

SOLONDZ, and BRIANA WATERS,

Defendants.

Case No. CR05-5828FDB

ORDER DENYING MOTION TO

REASSIGN CASE TO SEATTLE

COURTHOUSE

Defendant Waters moves to have this Court reassign this case to Seattle arguing that the

arson charged against Waters occurred at the University of Washington in Seattle, that Waters will

be the only defendant going to trial, and that Seattle is more convenient for the parties and the

witnesses. Additionally Waters argues that the Government has engaged in forum shopping

analogous to that in United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000), and that such conduct

violates Waters’ due process rights under the 5th Amendment to the United States Constitution. 

Defendant also moves that the Court defer consideration of other motions until it rules on this

motion to reassign, and the Government states that it has no objection to deciding this motion first. 

The parties basically agree with the indictment history in this case, which began with the

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26 ORDER - 2

November 23, 2005 indictment against Kevin Tubbs wherein the 1998 Olympia arson was charged.

Subsequent indictments of William Rodgers and Josephine S. Overaker also charged involvement in

the Olympia arson. Defendant Waters was charged in a separate indictment regarding the 2001

arson at the Center for Urban Horticulture at the University of Washington in Seattle. 

The 2nd Superseding Indictment was filed alleging conspiracy involving all the arsons that had

occurred between 1996 and 2001 and included the Olympia and Seattle arsons. Having to select a

case in which to add the conspiracy charge, the Government contends that it followed its established

procedures and brought this additional charge in the first-filed case, which was that filed against

Defendant Tubbs (CR05-5828FDB). The Court finds nothing nefarious nor procedurally

problematic with the Government’s conduct in bringing the indictments leading to the 3rd

Superseding Indictment of September 28, 2006, which added Defendant Dibee. 

The conspiracy allegations assert that the conspiracy was centered in Olympia; Defendant

Rogers (deceased), described as the leader of the conspiracy, lived in Olympia; Waters lived in

Olympia; and Rogers, Waters, and others actively conspired in Olympia where planning meetings

were held. While it is alleged that Waters and her co-defendants drove to Seattle to commit the

arson at the Horticulture Center, the Court agrees that the “center of gravity” of the charges against

Waters are in Olympia. 

The Court also takes note of the fact that Defendants Overaker, Solondz, and Dibee are

fugitives charged with crimes in Olympia (Overaker); Eastern District of Washington, Oregon, and

California (Solondz); and activity in Washington related to a California arson (Dibee). Consideration

of the allegations against these defendants does not mandate a transfer to Seattle. 

The Pearson case, cited by Waters, acknowledges that “most federal courts that have

addressed the issue of prosecutorial involvement in judicial assignments have not found due process

violations.” 203 F.3d 1243. Moreover, in order to show a due process violation, a defendant must

show actual prejudice. See, E.G. United States v. Gallo, 763 F.2d 1504, 1532 (6th Cir. 1985). The

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26 ORDER - 3

procedural history of this case does not mandate that this case be transferred to Seattle. On the

contrary, the case was appropriately filed in Tacoma. Defendant Waters’ argument that judges are

not “fungible”; that “choosing” one judge over another, or one jury pool over another, is an abuse of

the judicial system that undermines public confidence, and threatens the judiciary’s independence

seems more likely to indicate a desire by Waters to have a forum she perceives as more tactically

advantageous to her. The Court is persuaded that neither concepts of fairness nor due process

require that this case be transferred to Seattle. 

ACCORDINGLY, IT IS ORDERED: 

(1) Defendant Waters’ Amended Motion To Defer Consideration of Other Motions [Dkt. #

79] is GRANTED as unopposed;

(2) Defendant Waters’ Motion To Reassign Case To Seattle Courthouse [Dkt. # 76] is

DENIED. 

DATED this 7th day of March, 2007.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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