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. e du/thir dc ir c uit_2001/276Filed November 21, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2562

IN RE: UNITED STATES OF AMERICA,
Petitioner

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 00-cr-00477-2) District Judge: Hon. Berle M. Schiller

Argued November 2, 2001

Before: SLOVITER, NYGAARD, and CUDAHY,* Circuit Judges

(Filed: November 21, 2001)

___________________________________________________ ______________ * Hon. Richard D. Cudahy, United States Court of Ap peals for the Seventh Circuit, sitting by designation.Michael L. Levy

United States Attorney

Robert A. Zauzmer Assistant United States Attorney Chief of Appeals Richard J. Zack (ARGUED) Assistant United States Attorney Philadelphia, PA 19106-4476

Attorneys for Petitioner

Lynanne B. Wescott (ARGUED) Saul Ewing LLP Philadelphia, PA 19102

Attorney for Respondent

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This case is before us on a petition by the United States for a writ of mandamus directing a District Judge o f the Eastern District of Pennsylvania to vacate his orde r transferring this criminal action against defendant Ruth
Streeval to Tennessee and to refrain from transferr ing the case unless the showing and findings required by Fe d. R. Crim. P. 21(b) have been made. At issue before us i s not the discretionary decision to transfer vel non but the procedure to be followed before such a transfer ord er is

entered.

I.

BACKGROUND

On August 17, 2000, Ruth Streeval and Lollie Binkle y, Streeval's sister, were charged by a grand jury sit ting in the Eastern District of Pennsylvania in a nine-count in dictment with mail fraud, wire fraud, conspiracy to commit m ail fraud, wire fraud, and money laundering, and aiding and abetting. Binkley was also charged with money laund ering

2and criminal forfeiture. Streeval was, by agreement
,

arraigned near her residence in the Middle District of Tennessee due to her alleged poor health. She subse quently filed a motion for severance and transfer. The judg e then presiding denied the motion on February 9, 2001.

Binkley pled guilty to all counts charged, and was sentenced to twenty-seven months imprisonment, supervised release, and payment of restitution. On May 7, 2001, Streeval, who pled not guilty, renewed her mo tion for severance and transfer to Tennessee. On May 8, 2001 , the District Judge who now presided granted the renewed motion. On May 16, 2001, after a six-day stay, the District Court denied the government's request for reconside ration of the motion to transfer. On June 18, 2001, the government sought a writ of mandamus to compel the District Court to reconsider its order transferring this case

to Tennessee.

In the interim, on May 29, 2001, in accordance with Fed. R. Crim. P. 21(c), the Middle District of Tennessee received from the Eastern District of Pennsylvania a copy of the order severing and transferring the case, the origi nal record of this case, and Streeval's indictment, which in t urn was filed in Tennessee. The case was docketed as 01-CR- 84 and assigned to Judge Todd Campbell, who scheduled the case for prompt trial. After Judge Campbell was advised of the challenge to the transfer and this court's decision to hear argument on the matter, he rescheduled the trial da te to February 26, 2001.1

II.

DISCUSSION

A. Jurisdiction

The most hotly contested issue, and the one that gi ves us

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1. We are most appreciative of Judge Campbell's acc ommodation, which enabled this court to consider the matter and preve nted an unseemly tension between federal jurisdictions. We undertook to rule on the appeal as promptly as possible.

3the most pause, is that of our remaining jurisdicti on. Of

course, the District Court originally had jurisdict ion over the criminal case pursuant to 18 U.S.C. S 3231. Thi s court has jurisdiction over a petition for a writ of mand amus pursuant to 28 U.S.C. S1651(a). Streeval and the Di strict Court2 argue that courts of this circuit no longer retain jurisdiction in this case because it has been trans ferred to

Tennessee.

Fed. R. Crim. P. 21(b), the rule that Streeval invo ked in seeking transfer, provides that "[f]or the convenie nce of parties and witnesses, and in the interest of justi ce, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district." We have interp reted the comparable civil rule to mean that when a transfer of a case has been completed, " `the transferor court--a nd the appellate court that has jurisdiction over it--lose all jurisdiction over the case.' " White v. ABCO Eng'g Corp., 199 F.3d 140, 143 n.4 (3d Cir. 1999) (quoting 15 Charle s Wright, et al., Federal Practice and Procedure S 38 46 at 357 (2d ed. 1986)). Typically, the transferor court los es jurisdiction when the physical record is transferre d. Hudson United Bank v. Chase Manhattan Bank, 43 F.3d 843, 845-46 n.4 (3d Cir. 1994); Wilson-Cook Med., I nc. v. Wilson, 942 F.2d 247, 250 (4th Cir. 1991) (citing C hrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 15 09, 1516- 17 (10th Cir. 1991)). Nonetheless, in language part icularly apt here, we have noted that "shifting papers canno t validate an otherwise invalid transfer." White, 199 F.3d at 143 n.4; see also Warrick v. General Elec. Co. (In re Warrick), 70 F.3d 736, 739-40 (2d Cir. 1995). Altho ugh
White involved a civil case rather than a criminal case, and thus transfer was pursuant to 28 U.S.C. S1404(a) ra ther than Fed. R. Crim. P. 21(b), the language of Rule 2 1(b) was

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2. The District Court, exercising the option accord ed to it by 3rd Cir. R. 3.1 (2001), which allows a district judge to file a n opinion or memorandum to explain an order or decision after an appeal is taken, filed a memorandum that, in addition to summarizing the reasons for transfer, includes arguments why this court should not grant mandamus, more akin to an adversarial brief of a pa rty than a "written amplification" of a prior order for which the Rule is designed.

4taken from S1404(a) and "decisions construing that statute

. . . provide helpful analogies" for understanding Rule 21(b). 2 Wright, Federal Practice and Procedure S 344 (3d ed. 2000); see also United States v. McManus, 535 F. 2d 460, 463 (8th Cir. 1976); Jones v. Gasch, 404 F.2d 1231, 1236- 37 (D.C. Cir. 1967).

The government argues that this court retains jurisdiction because "the only document of legal significance, the indictment, remains in [the Easte rn District of Pennsylvania]." Br. of Government at 7. Although a copy of the indictment was sent to the Middle Dis trict of Tennessee, the indictment was retained because Stre eval's co-defendant had pled guilty and her sentencing had not been concluded at that time. App. at 12-13. We need not evaluate this argument in light of far more compell ing
considerations.3

The government argues, and we agree, that this cour t retains jurisdiction for purpose of evaluating the legitimacy of the transfer. In White, a magistrate judge in th e Southern District of New York attempted to transfer a case to the District of New Jersey under 28 U.S.C. S 140 4(a) by writing "so ordered" under a stipulation signed by the judge and the parties. This court determined that such an "interdistrict transfer by stipulation" was invalid. Whit e, 199 F.3d at 143 (emphasis omitted). We ordered the appeal transferred to the Court of Appeals for the Second Circuit pursuant to 28 U.S.C. S1631, which allows for trans fer from an appellate court that does not have jurisdic tion to one that does. Id. at 145-46. Although we did not s pell out in White general criteria for deciding when a trans fer is

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3. The government also argues that the transfer was invalid because the
District Court's order transferred the case to the" non-existent `District of Tennessee.' " Br. of Government at 14. Although the District Court did not specify to which of the three judicial district s in Tennessee the case was being transferred, it was clear from the contex t of this case and the fact that Streeval was arraigned in the Middle Dist rict of Tennessee that
the Middle District was the intended transferee dis trict; indeed, the

court clerk did send the relevant papers to that district . The government does not cite any case that suggests that a transfer wil l be invalidated on such a minor technical point and we are not persuad ed by this aspect of the government's argument.

5valid, the fact that we exercised jurisdiction over the case

when one of the parties challenged the validity of the transfer demonstrates that we implicitly acknowledg ed our jurisdiction to make a determination concerning the validity

of a transfer.

The justification for this rule is clear. A distric t court cannot divest an appellate court of jurisdiction by the mere expedient of ordering a transfer of the file docume nts to any other district court without following procedures established for such a transfer. The proposition is not a new one. Indeed, we have asserted in numerous cases our retention of jurisdiction for purposes of evaluatin g the legitimacy of a transfer. See, e.g., Solomon v. Con t'l Am. Life Ins. Co., 472 F.2d 1043, 1045 (3d Cir. 1972) (notin g "when the district court has acted without following appr opriate procedural safeguards, we will . . . confine it in exercising that discretion"); Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970); Swindell-Dressler Corp. v. Dumba uld, 308 F.2d 267, 274-75 (3d Cir. 1962).4

This is not to say that an appellate court indefini tely maintains jurisdiction for purposes of evaluating t he effectiveness of a transfer. Obviously, once the tr ansferee court proceeds with the transferred case, the decis ion as to the propriety of transfer is to be made in the tran sferee court. However, it is preferable that there be a pr ocess that allows for prompt review of the transfer by the cou rt of appeals of the transferor circuit. To accomplish th at, some courts have adopted a standard procedure of automat ically granting a stay of a transfer for a specified perio d of time. For example, the Eastern District of Pennsylvania, following a suggestion of this court in Swindell-Dressler , 3 08 F.2d at 274 n.11, promulgated a local rule whereby a transf er order is automatically stayed for twenty days, absent exp edition. See E.D. Pa. R. 3.2.5 Unfortunately, that rule does not

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4. While all these cases are civil cases and thus i nvolved transfer under 28 U.S.C. S 1404(a), as noted above, the language i n rule 21(b) is analogous to S 1404(a).

5. See, e.g., D. Conn. R. Civ. P. 18 (directing the court clerk to wait
until the eleventh day following the order of transfer to mail the papers). S.D. & E.D.N.Y.R. Civ. P. 83.1 (requiring the court cler k to wait five days

6extend to criminal cases. If it did, the current si tuation

would have been avoided. Even in the absence of suc h an applicable local rule, and without delineating the specific length of time needed to allow the party resisting transfer to seek review by an appropriate means, the government acted with sufficient dispatch here that we have jurisdic tion to consider its petition for mandamus.

B. Suitability of Mandamus

We turn to consider whether mandamus is an appropriate means to review the transfer in this ca se. In general, an order transferring a case is not a fina l order and, hence, not appealable. See, e.g., Nascone v. S pudnuts, Inc., 735 F.2d 763, 764 (3d Cir. 1984).6 While 28 U .S.C. S1651(a) grants federal courts the general power to issue writs, it is widely accepted that mandamus is extra ordinary relief that is rarely invoked. See, e.g., In re Pat enaude, 210 F.3d 135, 140 (3d Cir. 2000); In re Balsimo, 68 F.3 d 185, 186 (7th Cir. 1995); Solomon, 472 F.2d at 1045-46; 16 Wright, et al., Federal Practice and Procedure,S 29 36.2, at 667 (2d ed. 1996). In Will v. United States, 389 U. S. 90 (1967), the Supreme Court discussed the exceptional nature of the remedy of mandamus and, in addition, expressed "an awareness of additional consideration s which flow from the fact that the underlying proceeding i s a criminal prosecution." Id. at 96. Nonetheless, the Court recognized that "mandamus may . . . be used [in cer tain

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before transferring a case to another district); se e also Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 6 89 F.2d 982, 988-89 n.10 (11th Cir. 1982); Semro v. Halstead Enters., I nc., 619 F. Supp. 682, 683 (N.D. Ill. 1985) (noting that "the [c]lerk in t his district has a general policy of holding transfer papers for at least thir ty days" before transferring to afford non-moving party an opportun ity to seek mandamus review); 15 Wright, et al., Federal Practi ce and Procedure S 3846, at 357 (2d ed. 1986) (endorsing the practic e of granting a stay of transfer in the civil context for a sufficient peri od to allow for an opportunity to file for appellate review).

6. See also United States v. French, 787 F.2d 1381, 1384 (9th Cir. 1986); United States v. Nat'l City Lines, 334 U.S. 573, 57 4 (1948) ("[I]t is . .

. doubtful whether the government ha[s] a right to ap peal from [an] order of transfer in [a] criminal case.").

7circumstances] to review procedural orders in crimi nal

cases." Id. at 97. The Court did "not decide under what circumstances, if any, such a use of mandamus would be appropriate," id. at 98, but suggested as relevant to that decision "the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twi ce in jeopardy for the same offense." Id.

This court has held that a writ of mandamus may iss ue to compel a district court to vacate an order trans ferring a case to another district. Plum Tree, Inc. v. Stockm ent, 488 F.2d 754, 756 (3d Cir. 1973); see also Swindell-Dre ssler, 308 F.2d at 271. More recently, the Court of Appeal s for the Seventh Circuit held that the same rule applies in the criminal context. See Balsimo, 68 F.3d at 186. Alth ough we have stated that mandamus relief will "rarely if ev er" be granted directed to transfer orders, as this court has aptly put it, "rarely if ever d[oes] not mean never." Sol omon, 472 F.2d at 1045. Therefore, as "[m]andamus is . . . th e appropriate mechanism for reviewing an allegedly im proper transfer order," Sunbelt Corp. v. Noble, Denton & A ssoc., 5 F.3d 28, 30 (3d Cir. 1994), it is appropriate for u s to consider whether we should grant the government's p etition

for mandamus.

C. The Motion to Transfer

In deciding whether a writ of mandamus should issue with respect to an order to transfer, we must take into consideration that, other than mandamus, the petiti oner has no means of adequate relief, Mallard v. United States Dist. Court, 490 U.S. 296, 309 (1989) (setting out the showing required for issuance of mandamus), and tha t the transfer, if erroneous, may cause irreparable injur y. United States v. Wexler, 31 F.2d 117, 128 (3d Cir. 1994). As we noted at the outset, the government does not attemp t to make its arguments against the motion to transfer b efore this court. Rather, it asks us to use our mandamus power to require the District Court to reconsider its ord er transferring the case and, in so doing, to follow c ertain procedures. Specifically, the government requests t hat this court order the District Court to (1) require Stree val to meet the burden of establishing the appropriateness of t ransfer by specific evidence, (2) give the government adequ ate

8opportunity to respond to Streeval's arguments and

evidence in support of transfer, and (3) make findi ngs and give reasons for its decision with respect to the t ransfer
motion.

In support of its petition, the government focuses on three cases decided by this court: Swindell-Dressle r, Solomon and Plum Tree. In Swindell-Dressler, a dist rict judge "of his own volition and without any motion o r petition by one or any of the parties, and without hearing, and without giving Swindell notice or opportunity t o be heard, . . . transferred [the case] to the United S tates
District Court for the Northern District of West Vi rginia." Swindell-Dressler, 308 F.2d at 271. We disapproved the procedure followed by the district court, holding t hat by "denying Swindell any hearing or opportunity for he aring the court below denied it procedural due process of law guaranteed to it by the Fifth Amendment." Id. at 2 73-74.
We issued a writ of mandamus. Id. at 275.

In Solomon, we were again presented with a petition for mandamus as to an order by the district judge trans ferring a case seeking recovery on various insurance polici es to the Middle District of North Carolina, which was the si tus of the accident that was the subject of the suit. This court interpreted Swindell-Dressler as holding that "when the district court has acted without following appropri ate procedural safeguards, we will by the writ [of mand amus] confine it in exercising that discretion to the nar row path of due process." Solomon, 472 F.2d at 1045. We held, however, that the facts presented in Solomon were distinguishable from Swindell-Dressler because "the district court proceeded after appropriate notice, and the petitioners opposing transfer had the opportunity t o file opposing affidavits." Id. at 1046. Further, we stat ed that although a writ of mandamus might appropriately iss ue when a case was transferred where "nothing in the r ecord
indicates that the transferee district will be conv enient to anyone," id., the Solomon case was not of that sort , and we thus denied the petition for mandamus.

In Plum Tree, the district court granted defendants '
motion for a transfer to the United States District Court for the Southern District of Texas, even though defenda nts did

9not file any supporting documents to show that a tr ansfer

would be appropriate. Plaintiffs, who strongly oppo sed the transfer, filed a petition for a writ of mandamus. We agreed with plaintiffs, commenting that "there was no evid ence before the district court upon which it could base a finding that a transfer order was justified." 488 F.2d at 7 56. In particular, defendants failed to "support their mot ion to transfer with any affidavits, depositions, stipulat ions, or other documents containing facts that would tend to establish the necessary elements for a transfer," i d. at 756- 57, such as:

names and addresses of witnesses whom the mo ving party plans to call, . . . affidavits showin g the materiality of the matter to which these wit nesses will testify, statements by the moving part[y] of the business difficulties or personal hardships that might result from . . . having to defend against t he suit in the district court where it was originally broug ht, affidavits concerning the relative ease of access to so urces of documentary evidence, and other materials wh ere appropriate.

Id. at 757 n.2. Because the district court did not have before it adequate grounds for ordering a transfer, we ordered that it vacate the order "without prejudice to the right of defendants on remand to renew in the distr ict court their motion for transfer, with appropriate support ing

documents." Id. at 757.

Of the cases decided by this court, Plum Tree is m ost similar to the present case. Streeval, the party re questing transfer, did not present "affidavits, depositions, [or] stipulations," id. at 756, and the District Court d id not hold a hearing concerning the motion to transfer at whic h Streeval had the burden to establish the appropriat eness of transfer and the government had the opportunity to respond to Streeval's arguments for transfer.

Streeval argues that in contrast to Plum Tree , the re was evidence in the present case to support the transfe r order. She refers in particular to the fact that the gover nment did not oppose her motion to be arraigned in Tennessee, noting that the FBI had observed that she appeared at her

10arraignment in a wheelchair, and that not only is s he

herself handicapped but that she is the caretaker f or her ill husband. She points out that the government's list of witnesses filed in the Eastern District of Pennsylv ania included only some witnesses from the Philadelphia area but also some from Tennessee and others that are geographically dispersed. She also asserts, but wit hout specificity, that any evidence for the defense woul d be located in Tennessee, and notes that none of the of fenses is alleged to have been committed in Pennsylvania. App . at
29-30.

Because the government abjures arguing the merits o f the transfer, its focus is on the procedure followe d by the
District Court before it ordered the transfer. Whet her to transfer a case is generally committed to the discr etion of the district courts. See Piper Aircraft Co. v. Reyn o, 454 U.S. 235, 257 (1981). We have been reluctant to put spec ific requirements on the process by which the district c ourts decide motions to transfer, see, e.g., Solomon, 472 F.2d at 1047-48; Plum Tree, 488 F.2d at 756; White, 199 F.3 d at 144, undoubtedly because of concern that imposition of stringent procedural hurdles might interfere unduly with
the exercise of the courts' discretion.

On the other hand, the case law suggests that there are certain minimum procedures that should be followed before ruling on a motion to transfer. It would appear evi dent that the party objecting to transfer must be given an op portunity to rebut the arguments and the evidence, if any, of fered by the movant in favor of transfer. Also, it is helpfu l when the district court provides a statement of reasons for granting the motion to transfer so that the appellate court has a
basis to determine whether the district court sound ly exercised its discretion and considered the appropr iate factors. See generally United States v. Criden , 64 8 F. 2d 814, 819 (3d Cir. 1981). It is not necessary that t he transfer order be accompanied by a lengthy statemen t-- such as the eight-page opinion in United States v. Coffee, 113 F. Supp. 2d 751 (E.D. Pa. 2000), describing the court's reasons for transferring a case -- as long as there is a sufficient explanation of the factors considered, t he weight accorded them, and the balancing performed.

11Most important is that the district court's explana tion for

the transfer demonstrate that the court recognized the nature of the showing that must be made to support a transfer and the parties' respective burdens. In Pl att v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964), a criminal antitrust case, the Supreme Court enumerat ed ten factors that should be considered by a court in dec iding whether to transfer a case. They are:

(1) location of [the] . . . defendant; (2) l ocation of possible witnesses; (3) location of events l ikely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant's b usiness unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relati ve accessibility of [the] place of trial; (9) docket conditio n of each district . . . involved; and (10) any other special elements which might affect the transfer.

Id. at 243-44 (quotation omitted). Although Platt i nvolved a corporate defendant, the ten Platt factors are used in cases involving individual defendants as well. A balance should be struck among the most important factors in the particular case to determine whether transfer is appropriate. See, e.g., United States v. Stephenson , 895 F.2d 867, 875 (2d Cir. 1990).

As to the burdens of proof, this court has stated i n 28 U.S.C. S 1404(a) cases that "[t]he burden is on the moving party to establish that a balancing of proper inter ests weigh
in favor of the transfer." Shutte v. Armco Steel Co rp., 431 F.2d 22, 25 (3d Cir. 1970); see also Jumara v. Stat e Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995); Elbeco I nc. v. Estrella de Plato, Corp. 989 F. Supp. 669, 679 (E.D . Pa. 1997); 15 Wright et al., Federal Practice and Proce dure S 3848, at 383 (2d ed. 1986). While the burden is o n the defendant, the defendant is not required to show"tr uly compelling circumstances for . . . change . . . .[o f venue, but rather that] all relevant things considered, th e case would be better off transferred to another district ." Balsimo,

68 F.3d at 187.

It is not surprising given the similarity between t he language of S 1404(a) providing the standard govern ing

12transfer of civil cases ("[f]or the convenience of parties and

witnesses, in the interest of justice") and that of Rule 21(b) governing transfer of criminal cases ("[f]or the co nvenience of parties and witnesses, and in the interest of ju stice"),
that the courts have held that the criminal defenda nt has the burden of making the case for transfer. See, e. g., United States v. Spy Factory, Inc., 951 F. Supp. 450, 464 (S.D.N.Y 1997) (" `[T]he burden is on the moving defendant t o justify a transfer under Rule 21(b).' ") (quoting United St ates v. Aronoff, 463 F. Supp. 454, 461 (S.D.N.Y. 1978)); Un ited States v. Washington, 813 F. Supp. 269, 275 (D. Vt. 1993); United States v. Long, 697 F. Supp. 651, 656 (S.D.N .Y. 1988), rev'd on other grounds 917 F.2d. 691 (2d Cir . 1990); United States v. Wheaton, 463 F. Supp. 1073 (S.D.N. Y. 1979); Aronoff, 463 F. Supp. at 461; United States v. Ashland Oil, Inc., 457 F. Supp. 661, 665 (D. Ky. 19 78) (denying defendant's request to transfer case to th e district of his residence in light of his ill health because his health was not so severely impaired, he was not bedridden, and he had not been hospitalized); see also 2 Wright, Fede ral Practice and Procedure S 344, at 403 (3d ed. 2000) ("[I]t is proper to require the defendant, as the moving part y, to carry the burden of showing why a transfer would se rve the purposes specified in [Rule 21(b)]"); 25 James Wm. Moore et al., Moore's Federal Practice S 621.04[2], at 621 1 9 (3d ed. 2001) ("To obtain a `convenience' transfer pursuant to Rule 21(b), the defendant must show that litigating the trial in the district from which transfer is sought . . . ei ther burdens the defense or creates undue prejudice agai nst the defendant.").

It is important not to overlook the Supreme Court's
statement in Platt that a defendant is not entitled to defend his case in his or her home district. See Platt , 3 76 U.S. at 245-46. That proposition has been frequently relied on as one of the bases for denying transfer in criminal c ases, see, e.g., United States v. Bittner, 728 F.2d 1038, 1041 (8th Cir. 1984); United States v. Kopituk, 690 F.2d 1289, 132 2 (11th Cir. 1982); United States v. Espinoza, 641 F.2d 153 , 162 (4th Cir. 1981).

In this case, the government complains that the Dis trict Court granted Streeval's motion for a transfer, eve n before

13the government received a copy of the motion, witho ut

waiting for the government's response, and that the court acted by filing a one-line order that gave no reaso ns for the transfer. While the government's frustration is understandable, these omissions would not in themse lveswarrant mandamus. Under the procedure in SwindellDressler, the government had an opportunity to put forth its argument in opposition to the transfer in its m otion for reconsideration. Admittedly, it may be more difficu lt to persuade a judge that a decision already made to tr ansfer
the case should be vacated than it would have been to persuade the judge not to transfer in the first ins tance, but nothing in the record suggests that the District Co urt did not consider the government's arguments on
reconsideration.

Similarly, while the initial transfer order dated M ay 8, 2001 was devoid of explanation for the decision, an d the second order dated May 16, 2001 merely denied the m otion to reconsider the transfer order, again without exp lanation,
the District Court did use the vehicle of our Local Rule 3.1 to file an explanatory Memorandum dated June 19, 20 01. Once again, the sparseness of the prior orders does not warrant mandamus in light of the subsequent attempt to fill the vacuum. Mandamus is only appropriate when the
district court has committed a clear abuse of discr etion or

clear error of law.

On the other hand, it is the government's complaint that
the District Court ordered the case transferred wit hout requiring Streeval to bear the burden of establishi ng that transfer was appropriate that causes us concern. Al though the District Court referred to many of the relevant factors,
if in fact the court was unaware that the burden to show reasons for the transfer was on the defendant, then the misconception would be serious enough to warrant mandamus. The burden of proof is often the determin ative factor in a discretionary decision, particularly in one where the factors may be closely balanced. It is importan t that an appellate court performing its review function be s atisfied that the District Court recognized where the burden lay. Here, Streeval has not pointed to anything in the r ecord or
in the District Court's memorandum that indicates t hat the

14District Court placed the burden on Streeval. The

government complains, for example, that Streeval ha s neither identified nor produced documents that alle gedly show relevant activities took place in Tennessee; t hat she
has not identified witnesses in Tennessee whereas i t has, such as Wentworth, one of the principal victims of the fraud, who is in or near the Eastern District of Pennsylvania; and that she has not produced adequat e evidence that it would be physically burdensome for her to be tried in Philadelphia.

We recognize that the District Court may indeed hav e placed the burden on Streeval and have balanced the
factors to reach its decision to transfer the case to the Middle District of Tennessee, but we have no basis to so
hold on the record before us. Under the circumstanc es, we will remand this matter to the District Court for reconsideration, requiring Streeval to bear the bur den of showing why transfer is appropriate. We express no opinion as to the merits of a transfer. At argument the gov ernment
conceded that once the District Court evaluated the factors in light of the appropriate burden, there would be no basis for it to file another mandamus petition.

In light of the scheduled trial date in Tennessee a nd our desire to be reciprocally accommodating to the Dist rict Court in Tennessee, we will direct the District Cou rt on remand to require the parties promptly to present t heir arguments and supporting data, and to rule no later than the end of the calendar year.7

___________________________________________________ ______________

7. At oral argument, Streeval's counsel informed th e court that her client was in the hospital and would be unable to attend a n evidentiary hearing in Philadelphia. While regrettable, we do n ot regard this as a basis for delay. It is not necessary that the Distr ict Court hold an evidentiary hearing before ruling. Streeval may see k to meet her burden as to the transfer by submission of affidavits atte sting to her medical condition and her inability to travel to a criminal trial in Philadelphia.

15III.

CONCLUSION

Because we cannot be sure that the District Court followed appropriate procedure before transferring this case to Tennessee, we will issue a writ of mandamus orde ring the District Judge to reconsider Streeval's motion to transfer in accordance with the procedure set out i n this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

16