2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-2001

In Re: USA

Precedential or Non-Precedential:

Docket 01-2562

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Recommended Citation

"In Re: USA" (2001). 2001 Decisions. Paper 276.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/276
Filed 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 Appeals 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 of the 

Eastern District of Pennsylvania to vacate his order 

transferring this criminal action against defendant Ruth 

Streeval to Tennessee and to refrain from transferring the 

case unless the showing and findings required by Fed. R. 

Crim. P. 21(b) have been made. At issue before us is not 

the discretionary decision to transfer vel non but the 

procedure to be followed before such a transfer order is 

entered. 

I. 

BACKGROUND 

On August 17, 2000, Ruth Streeval and Lollie Binkley, 

Streeval's sister, were charged by a grand jury sitting in the 

Eastern District of Pennsylvania in a nine-count indictment 

with mail fraud, wire fraud, conspiracy to commit mail 

fraud, wire fraud, and money laundering, and aiding and 

abetting. Binkley was also charged with money laundering 

 2 
and criminal forfeiture. Streeval was, by agreement, 

arraigned near her residence in the Middle District of 

Tennessee due to her alleged poor health. She subsequently 

filed a motion for severance and transfer. The judge 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 motion 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 reconsideration 

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 original record 

of this case, and Streeval's indictment, which in turn 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 date to 

February 26, 2001.1 

II. 

DISCUSSION 

A. Jurisdiction 

The most hotly contested issue, and the one that gives us 

_________________________________________________________________ 

1. We are most appreciative of Judge Campbell's accommodation, which 

enabled this court to consider the matter and prevented an unseemly 

tension between federal jurisdictions. We undertook to rule on the 

appeal as promptly as possible. 

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

course, the District Court originally had jurisdiction over 

the criminal case pursuant to 18 U.S.C. S 3231. This court 

has jurisdiction over a petition for a writ of mandamus 

pursuant to 28 U.S.C. S1651(a). Streeval and the District 

Court2 argue that courts of this circuit no longer retain 

jurisdiction in this case because it has been transferred to 

Tennessee. 

Fed. R. Crim. P. 21(b), the rule that Streeval invoked in 

seeking transfer, provides that "[f]or the convenience of 

parties and witnesses, and in the interest of justice, 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 interpreted the 

comparable civil rule to mean that when a transfer of a 

case has been completed, " `the transferor court--and 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 Charles 

Wright, et al., Federal Practice and Procedure S 3846 at 357 

(2d ed. 1986)). Typically, the transferor court loses 

jurisdiction when the physical record is transferred. 

Hudson United Bank v. Chase Manhattan Bank, 43 F.3d

843, 845-46 n.4 (3d Cir. 1994); Wilson-Cook Med., Inc. v. 

Wilson, 942 F.2d 247, 250 (4th Cir. 1991) (citing Chrysler 

Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516- 

17 (10th Cir. 1991)). Nonetheless, in language particularly 

apt here, we have noted that "shifting papers cannot 

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). Although 

White involved a civil case rather than a criminal case, and 

thus transfer was pursuant to 28 U.S.C. S1404(a) rather 

than Fed. R. Crim. P. 21(b), the language of Rule 21(b) was 

_________________________________________________________________ 

2. The District Court, exercising the option accorded to it by 3rd Cir. R. 

3.1 (2001), which allows a district judge to file an 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 party than a "written 

amplification" of a prior order for which the Rule is designed. 

 4 
taken 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 Eastern 

District of Pennsylvania]." Br. of Government at 7. Although 

a copy of the indictment was sent to the Middle District of 

Tennessee, the indictment was retained because Streeval'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 compelling 

considerations.3 

The government argues, and we agree, that this court 

retains jurisdiction for purpose of evaluating the legitimacy 

of the transfer. In White, a magistrate judge in the 

Southern District of New York attempted to transfer a case 

to the District of New Jersey under 28 U.S.C. S 1404(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. White, 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 transfer 

from an appellate court that does not have jurisdiction to 

one that does. Id. at 145-46. Although we did not spell out 

in White general criteria for deciding when a transfer is 

_________________________________________________________________ 

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 districts in Tennessee the case 

was being transferred, it was clear from the context of this case and the 

fact that Streeval was arraigned in the Middle District of Tennessee that 

the Middle District was the intended transferee district; indeed, the 

court 

clerk did send the relevant papers to that district. The government does 

not cite any case that suggests that a transfer will be invalidated on 

such a minor technical point and we are not persuaded by this aspect 

of the government's argument. 

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

when one of the parties challenged the validity of the 

transfer demonstrates that we implicitly acknowledged our 

jurisdiction to make a determination concerning the validity 

of a transfer. 

The justification for this rule is clear. A district court 

cannot divest an appellate court of jurisdiction by the mere 

expedient of ordering a transfer of the file documents 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 evaluating the 

legitimacy of a transfer. See, e.g., Solomon v. Cont'l Am. Life 

Ins. Co., 472 F.2d 1043, 1045 (3d Cir. 1972) (noting "when 

the district court has acted without following appropriate 

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. Dumbauld, 308 

F.2d 267, 274-75 (3d Cir. 1962).4 

This is not to say that an appellate court indefinitely 

maintains jurisdiction for purposes of evaluating the 

effectiveness of a transfer. Obviously, once the transferee 

court proceeds with the transferred case, the decision as to 

the propriety of transfer is to be made in the transferee 

court. However, it is preferable that there be a process that 

allows for prompt review of the transfer by the court of 

appeals of the transferor circuit. To accomplish that, some 

courts have adopted a standard procedure of automatically 

granting a stay of a transfer for a specified period of time. 

For example, the Eastern District of Pennsylvania, following 

a suggestion of this court in Swindell-Dressler , 308 F.2d at 

274 n.11, promulgated a local rule whereby a transfer order 

is automatically stayed for twenty days, absent expedition. 

See E.D. Pa. R. 3.2.5 Unfortunately, that rule does not 

_________________________________________________________________ 

4. While all these cases are civil cases and thus involved transfer under 

28 U.S.C. S 1404(a), as noted above, the language in 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 clerk to wait five days 

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

would have been avoided. Even in the absence of such 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 jurisdiction 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 case. In 

general, an order transferring a case is not a final order 

and, hence, not appealable. See, e.g., Nascone v. Spudnuts, 

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 extraordinary 

relief that is rarely invoked. See, e.g., In re Patenaude, 210 

F.3d 135, 140 (3d Cir. 2000); In re Balsimo, 68 F.3d 185, 

186 (7th Cir. 1995); Solomon, 472 F.2d at 1045-46; 16 

Wright, et al., Federal Practice and Procedure,S 2936.2, 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 considerations which 

flow from the fact that the underlying proceeding is a 

criminal prosecution." Id. at 96. Nonetheless, the Court 

recognized that "mandamus may . . . be used [in certain 

_________________________________________________________________ 

before transferring a case to another district); see also Roofing & Sheet 

Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 988-89 

n.10 (11th Cir. 1982); Semro v. Halstead Enters., Inc., 619 F. Supp. 682, 

683 (N.D. Ill. 1985) (noting that "the [c]lerk in this district has a 

general 

policy of holding transfer papers for at least thirty days" before 

transferring to afford non-moving party an opportunity to seek 

mandamus review); 15 Wright, et al., Federal Practice and Procedure 

S 3846, at 357 (2d ed. 1986) (endorsing the practice of granting a stay of 

transfer in the civil context for a sufficient period 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, 574 (1948) ("[I]t is . . 

. 

doubtful whether the government ha[s] a right to appeal from [an] order 

of transfer in [a] criminal case."). 

 7 
circumstances] to review procedural orders in criminal 

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 twice in 

jeopardy for the same offense." Id. 

This court has held that a writ of mandamus may issue 

to compel a district court to vacate an order transferring a 

case to another district. Plum Tree, Inc. v. Stockment, 488 

F.2d 754, 756 (3d Cir. 1973); see also Swindell-Dressler, 

308 F.2d at 271. More recently, the Court of Appeals for the 

Seventh Circuit held that the same rule applies in the 

criminal context. See Balsimo, 68 F.3d at 186. Although we 

have stated that mandamus relief will "rarely if ever" be 

granted directed to transfer orders, as this court has aptly 

put it, "rarely if ever d[oes] not mean never." Solomon, 472 

F.2d at 1045. Therefore, as "[m]andamus is . . . the 

appropriate mechanism for reviewing an allegedly improper 

transfer order," Sunbelt Corp. v. Noble, Denton & Assoc., 5 

F.3d 28, 30 (3d Cir. 1994), it is appropriate for us to 

consider whether we should grant the government's petition 

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 petitioner 

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 that the 

transfer, if erroneous, may cause irreparable injury. United 

States v. Wexler, 31 F.2d 117, 128 (3d Cir. 1994). As we 

noted at the outset, the government does not attempt to 

make its arguments against the motion to transfer before 

this court. Rather, it asks us to use our mandamus power 

to require the District Court to reconsider its order 

transferring the case and, in so doing, to follow certain 

procedures. Specifically, the government requests that this 

court order the District Court to (1) require Streeval to meet 

the burden of establishing the appropriateness of transfer 

by specific evidence, (2) give the government adequate 

 8 
opportunity to respond to Streeval's arguments and 

evidence in support of transfer, and (3) make findings and 

give reasons for its decision with respect to the transfer 

motion. 

In support of its petition, the government focuses on 

three cases decided by this court: Swindell-Dressler, 

Solomon and Plum Tree. In Swindell-Dressler, a district 

judge "of his own volition and without any motion or 

petition by one or any of the parties, and without hearing, 

and without giving Swindell notice or opportunity to be 

heard, . . . transferred [the case] to the United States 

District Court for the Northern District of West Virginia." 

Swindell-Dressler, 308 F.2d at 271. We disapproved the 

procedure followed by the district court, holding that by 

"denying Swindell any hearing or opportunity for hearing 

the court below denied it procedural due process of law 

guaranteed to it by the Fifth Amendment." Id. at 273-74. 

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 transferring 

a case seeking recovery on various insurance policies to the 

Middle District of North Carolina, which was the situs 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 appropriate 

procedural safeguards, we will by the writ [of mandamus] 

confine it in exercising that discretion to the narrow 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 to file 

opposing affidavits." Id. at 1046. Further, we stated that 

although a writ of mandamus might appropriately issue 

when a case was transferred where "nothing in the record 

indicates that the transferee district will be convenient 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 defendants did 

 9 
not file any supporting documents to show that a transfer 

would be appropriate. Plaintiffs, who strongly opposed the 

transfer, filed a petition for a writ of mandamus. We agreed 

with plaintiffs, commenting that "there was no evidence 

before the district court upon which it could base a finding 

that a transfer order was justified." 488 F.2d at 756. In 

particular, defendants failed to "support their motion to 

transfer with any affidavits, depositions, stipulations, or 

other documents containing facts that would tend to

establish the necessary elements for a transfer," id. at 756- 

57, such as: 

 names and addresses of witnesses whom the moving 

 party plans to call, . . . affidavits showing the 

 materiality of the matter to which these witnesses will 

 testify, statements by the moving part[y] of the 

 business difficulties or personal hardships that might 

 result from . . . having to defend against the suit in the 

 district court where it was originally brought, affidavits 

 concerning the relative ease of access to sources of 

 documentary evidence, and other materials where 

 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 district court 

their motion for transfer, with appropriate supporting 

documents." Id. at 757. 

Of the cases decided by this court, Plum Tree is most 

similar to the present case. Streeval, the party requesting 

transfer, did not present "affidavits, depositions, [or] 

stipulations," id. at 756, and the District Court did not hold 

a hearing concerning the motion to transfer at which 

Streeval had the burden to establish the appropriateness of 

transfer and the government had the opportunity to 

respond to Streeval's arguments for transfer. 

Streeval argues that in contrast to Plum Tree , there was 

evidence in the present case to support the transfer order. 

She refers in particular to the fact that the government did 

not oppose her motion to be arraigned in Tennessee, noting 

that the FBI had observed that she appeared at her 

 10 
arraignment in a wheelchair, and that not only is she 

herself handicapped but that she is the caretaker for her ill 

husband. She points out that the government's list of 

witnesses filed in the Eastern District of Pennsylvania 

included only some witnesses from the Philadelphia area 

but also some from Tennessee and others that are 

geographically dispersed. She also asserts, but without 

specificity, that any evidence for the defense would be 

located in Tennessee, and notes that none of the offenses is 

alleged to have been committed in Pennsylvania. App. at 

29-30. 

Because the government abjures arguing the merits of 

the transfer, its focus is on the procedure followed by the 

District Court before it ordered the transfer. Whether to 

transfer a case is generally committed to the discretion of 

the district courts. See Piper Aircraft Co. v. Reyno, 454 U.S. 

235, 257 (1981). We have been reluctant to put specific 

requirements on the process by which the district courts 

decide motions to transfer, see, e.g., Solomon, 472 F.2d at 

1047-48; Plum Tree, 488 F.2d at 756; White, 199 F.3d 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 evident that 

the party objecting to transfer must be given an opportunity 

to rebut the arguments and the evidence, if any, offered by 

the movant in favor of transfer. Also, it is helpful 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 soundly 

exercised its discretion and considered the appropriate 

factors. See generally United States v. Criden , 648 F. 2d 

814, 819 (3d Cir. 1981). It is not necessary that the 

transfer order be accompanied by a lengthy statement-- 

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, the weight 

accorded them, and the balancing performed. 

 11 
Most important is that the district court's explanation 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 Platt v. 

Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964), a

criminal antitrust case, the Supreme Court enumerated ten 

factors that should be considered by a court in deciding 

whether to transfer a case. They are: 

 (1) location of [the] . . . defendant; (2) location of 

 possible witnesses; (3) location of events likely to be in 

 issue; (4) location of documents and records likely to 

 be involved; (5) disruption of defendant's business 

 unless the case is transferred; (6) expense to the 

 parties; (7) location of counsel; (8) relative accessibility 

 of [the] place of trial; (9) docket condition of each 

 district . . . involved; and (10) any other special 

 elements which might affect the transfer. 

Id. at 243-44 (quotation omitted). Although Platt involved 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 in 28 

U.S.C. S 1404(a) cases that "[t]he burden is on the moving 

party to establish that a balancing of proper interests weigh 

in favor of the transfer." Shutte v. Armco Steel Corp., 431 

F.2d 22, 25 (3d Cir. 1970); see also Jumara v. State Farm 

Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995); Elbeco Inc. v. 

Estrella de Plato, Corp. 989 F. Supp. 669, 679 (E.D. Pa. 

1997); 15 Wright et al., Federal Practice and Procedure 

S 3848, at 383 (2d ed. 1986). While the burden is on the 

defendant, the defendant is not required to show"truly 

compelling circumstances for . . . change . . . .[of venue, 

but rather that] all relevant things considered, the case 

would be better off transferred to another district." Balsimo, 

68 F.3d at 187. 

It is not surprising given the similarity between the 

language of S 1404(a) providing the standard governing 

 12 
transfer 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 convenience 

of parties and witnesses, and in the interest of justice"), 

that the courts have held that the criminal defendant 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 to justify 

a transfer under Rule 21(b).' ") (quoting United States v. 

Aronoff, 463 F. Supp. 454, 461 (S.D.N.Y. 1978)); United 

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. 1978) 

(denying defendant's request to transfer case to the 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, Federal 

Practice and Procedure S 344, at 403 (3d ed. 2000) ("[I]t is 

proper to require the defendant, as the moving party, to 

carry the burden of showing why a transfer would serve the 

purposes specified in [Rule 21(b)]"); 25 James Wm. Moore et 

al., Moore's Federal Practice S 621.04[2], at 621 19 (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 . . . either 

burdens the defense or creates undue prejudice against 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 , 376 U.S. at 

245-46. That proposition has been frequently relied on as 

one of the bases for denying transfer in criminal cases, see, 

e.g., United States v. Bittner, 728 F.2d 1038, 1041 (8th Cir. 

1984); United States v. Kopituk, 690 F.2d 1289, 1322 (11th 

Cir. 1982); United States v. Espinoza, 641 F.2d 153, 162 

(4th Cir. 1981). 

In this case, the government complains that the District 

Court granted Streeval's motion for a transfer, even before 

 13 
the government received a copy of the motion, without 

waiting for the government's response, and that the court 

acted by filing a one-line order that gave no reasons for the 

transfer. While the government's frustration is 

understandable, these omissions would not in themselves 

warrant mandamus. Under the procedure in SwindellDressler, the government had an opportunity to put forth 

its argument in opposition to the transfer in its motion for 

reconsideration. Admittedly, it may be more difficult to 

persuade a judge that a decision already made to transfer 

the case should be vacated than it would have been to 

persuade the judge not to transfer in the first instance, but 

nothing in the record suggests that the District Court did 

not consider the government's arguments on 

reconsideration. 

Similarly, while the initial transfer order dated May 8, 

2001 was devoid of explanation for the decision, and the 

second order dated May 16, 2001 merely denied the motion 

to reconsider the transfer order, again without explanation, 

the District Court did use the vehicle of our Local Rule 3.1 

to file an explanatory Memorandum dated June 19, 2001. 

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 discretion or 

clear error of law. 

On the other hand, it is the government's complaint that 

the District Court ordered the case transferred without 

requiring Streeval to bear the burden of establishing that 

transfer was appropriate that causes us concern. Although 

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 determinative 

factor in a discretionary decision, particularly in one where 

the factors may be closely balanced. It is important that an 

appellate court performing its review function be satisfied 

that the District Court recognized where the burden lay. 

Here, Streeval has not pointed to anything in the record or 

in the District Court's memorandum that indicates that the 

 14 
District Court placed the burden on Streeval. The 

government complains, for example, that Streeval has 

neither identified nor produced documents that allegedly 

show relevant activities took place in Tennessee; that she 

has not identified witnesses in Tennessee whereas it 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 adequate 

evidence that it would be physically burdensome for her to 

be tried in Philadelphia. 

We recognize that the District Court may indeed have 

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 circumstances, we 

will remand this matter to the District Court for 

reconsideration, requiring Streeval to bear the burden of 

showing why transfer is appropriate. We express no opinion 

as to the merits of a transfer. At argument the government 

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 and our 

desire to be reciprocally accommodating to the District 

Court in Tennessee, we will direct the District Court on 

remand to require the parties promptly to present their 

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 the court that her client 

was in the hospital and would be unable to attend an evidentiary 

hearing in Philadelphia. While regrettable, we do not regard this as a 

basis for delay. It is not necessary that the District Court hold an 

evidentiary hearing before ruling. Streeval may seek to meet her burden 

as to the transfer by submission of affidavits attesting to her medical 

condition and her inability to travel to a criminal trial in Philadelphia. 

 15 
III. 

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 ordering 

the District Judge to reconsider Streeval's motion to 

transfer in accordance with the procedure set out in this 

opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16