No: 02-2180 IN RE: UNITED STATES OF AMERICA v. Minnesota Mining & Mfg. Co., 376 U.S. 240 1964 . See App. at 03-08. Namely, the…

D-85-E
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 02-2180
_______________
IN RE: UNITED STATES OF AMERICA,
Petitioner
On Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to District of N.J. Crim. No. 01-140)
Submitted Under Third Circuit LAR 34.1(a)
on May 1, 2002
Before: NYGAARD, ROTH
and BARRY, Circuit Judges
(Opinion filed August 23, 2002 )
________________
OPINION
________________
ROTH, Circuit Judge:
Petitioner United States of America asks us to issue a writ of mandamus ordering the
Honorable William H. Walls of the United States District Court for the District of New
Jersey to vacate an order transferring a criminal prosecution to another district and conduct
further proceedings in the case. Because the District Court’s transfer did not amount to a
clear error of law, however, we will not issue the writ.
For the last four years, the District Court has handled nearly 100 civil and criminal
actions involving claims that principals of Cendant Corporation - a publicly-held, Fortune
500 company - engaged in securities fraud. This petition arises out of the United States’
related securities fraud prosecution of Walter A. Forbes and E. Kirk Shelton, who are two
such principals of Cendant.
On March 18, 2002, the District Court granted Shelton and Forbes’ pre-trial motion
to have the prosecution transferred to the District of Connecticut for the convenience of the
parties. See Fed. R. Crim. P. 21(b). During a motions hearing, the District Court explained
that the decision was based on a consideration of the ten factors articulated in Platt v.
Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964). See App. at 03-08. Namely, the
District Court considered:
(1) location of corporate 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 place of trial; (9) docket condition of each district or division
involved; and (10) any other special elements which might affect the transfer.
376 U.S. at 243-44. In the category of "other special elements," the District Court

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expressly considered its familiarity with related Cendant securities fraud proceedings
gained over the previous four years. See App. at 07. With respect to its assessment of each
factor, the District Court gave a brief statement of its reasoning and referenced evidence in
the record. See App. at 03-08.
During the hearing, the District Court correctly noted that Shelton and Forbes - as
the moving parties - bore the burden of proving that "all [relevant] things considered, the
case would be better off transferred to another district." App. at 03 (quoting In re: Balsimo
68 F.3d 185, 187 (7th Cir. 1995)). Evidently, the District Court was faithful in its
application of this burden, noting expressly that Shelton and Forbes failed to meet the
burden with respect to certain of the Platt factors. See, e.g., App. at 04.
We have the power to issue the writ that the United States requests pursuant to 28
U.S.C. section 1651(a), and "mandamus 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). However, "it is widely accepted that mandamus is extraordinary relief
that is rarely invoked." In re: United States of America, 273 F.3d 380, 385 (3d Cir. 2001).
Moreover, "[a] party seeking the writ has the burden of demonstrating that its right to the
writ is ’clear and indisputable.’" Delgrosso v. Spang and Co., 903 F.2d 234, 237 (3d Cir.
1990). Accordingly, we will issue a writ of mandamus only if, in our discretion, we find
that the party seeking the writ has no other adequate means to attain the desired relief and
the court below "committed a clear error of law [that approaches] the magnitude of . . . a
failure to use [judicial] power. . . ." In re: Sharon Steel Corp., 918 F.2d 434, 436 (3d Cir.
1990) (quoting Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988)) (alterations in
original).
The United States asserts that the District Court’s balance of the Platt factors
constitutes such a clear error of law. Specifically, it argues that the District Court did no
afford sufficient weight to the court’s familiarity with related actions, the relative costs t
the parties and the potential for delay - all of which, the United States contends, militate
against the transfer. However, the United States essentially invites us to balance the Platt
factors de novo - an exercise that Platt, itself, admonishes is beyond the scope of our
authority. See Platt, 376 U.S. at 245 ("Here . . . the Court of Appeals undertook a de novo
examination of the record and itself exercised the discretionary function which the rule
commits to the trial judge. This the court should not have done since the writ cannot be
used ’to actually control the decision of the trial court.’") (quoting Bankers Life & Casualty
Co. v. Holland, 346 U.S. 379, 383 (1953)). Heeding this warning, we decline the United
States’ invitation.
Had the District Court made some procedural flaw in rendering the transfer order,
we might have had a basis on which to issue the requested writ. However, "[w]e have
been reluctant to put specific requirements on the process by which the district courts
decide motions to transfer," In re: United States, 273 F.3d at 387, and we find no such
deficiency in the instant case. The District Court not only identified and considered the
factors germane to its decision to transfer the case, but also articulated a sufficient
statement of its reasoning.
For the foregoing reasons, the United States’ petition for a writ of mandamus is
DENIED.
________________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Jane R. Roth _______
Circuit Judge

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In re: United States of America
No. 02-2180, D-85E
Barry, Circuit Judge, dissenting sur denial of writ of mandamus.
It is, of course, well-settled that the writ of mandamus is an extraordinary remedy
that should rarely be granted. Indeed, we may grant mandamus relief only where a district
court "has committed a clear abuse of discretion or clear error of law." In re: United States
of America, 273 F.3d 380, 389 (3d Cir. 2001). "Rarely," however, does not mean "never,"
id. at 385, and the transfer of this major securities fraud prosecution against the former
Chairman and Vice-Chairman of the Board of the Cendant Corporation to the District of
Connecticut presents precisely the type of extraordinary circumstances for which
mandamus was designed. Accordingly, I dissent from the denial of the government’s
petition.
A district court may transfer a prosecution to another district "[f]or the convenience
of parties and witnesses, and in the interest of justice." Fed. R. Crim. P. 21(b) (emphasis
added). Here, the interest of justice was cast aside by the District Court; indeed, its opini
does not even mention "interest of justice." Instead, the District Court opted to send a $14
billion, 44 witness stock fraud case to the unsuspecting "District Court of Connecticut"
because the two defendants live somewhat closer to one of the three district courthouses in
Connecticut and more on that in a moment and because much of the alleged criminal
misconduct took place in or was directed from Connecticut, although it surely was not
limited to that state.
A criminal defendant, however, is not entitled to defend his case in his home district,
but instead bears the burden of proving that, given all the relevant circumstances, a transfer
is in the interest of justice, i.e., all things being equal, a case should stay put. In re:
States of America, 273 F.3d at 388. In this regard, it was not enough for the two
defendants to show that they would be better off in Connecticut and, as will become
evident, even that is far from clear. Instead, they had to demonstrate that the case would be
better off in a new locale.
Under this standard, the defendants’ showing that New Haven, Connecticut, was
slightly closer to their homes than Newark, New Jersey, where the case was to be tried, and
that much of the alleged fraud took place in Connecticut was, as a matter of law, woefully
deficient for several reasons. First, the parties and the District Court apparently believed
that this case would ultimately be transferred to New Haven (or perhaps Bridgeport), which
is only slightly closer to the defendants’ respective estates in Darien and New Canaan,
Connecticut, than to Newark. The District Court’s order, however, transferred the case
only to the "District of Connecticut," perhaps because the Court belatedly recognized that it
is up to the District Court of Connecticut to decide where within that District to send this
massive criminal prosecution. Significantly, New Haven has but one active district court
judge and Bridgeport only two. In contrast, Hartford, Connecticut, which is approximately
15 to 20 miles further from New Canaan and Darien than Newark, has the remaining five
active judges. Accordingly, it seems far more likely that this case will end up even further
from defendants’ homes than where it started, thereby eviscerating the principal stated
reason for the District Court’s transfer. The District Court failed to even consider this
likelihood.
The only other reason given by the District Court for its extraordinary act of transfer
was the large number of fraudulent acts, particularly early-on acts, which occurred in
Connecticut. But this is not a case in which it might be helpful for jurors to view a crime
scene or where local authorities and local witnesses might be burdened by traveling out of
state to testify. This is a white collar crime case where the government’s proof will likely
be document-driven a paper case and where the defendants did not even allege, much
less show and it was their burden that any witness government or defense even
preferred much less would be inconvenienced by trial in Newark. Accordingly, the fact
that more acts took place in Connecticut than in New Jersey is irrelevant. And, of course, it
bears mention that substantial injury is alleged to have occurred in New Jersey.
And these reasons are all that were claimed and found in support of transfer,
reasons meager in the extreme even as stated and devastated when examined. Indeed, these

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reasons cut against transfer, not for it. So, too, do a host of other reasons ignored or
demeaned by the District Court which together cry out for mandamus relief.
The indictment in this case was returned on February 28, 2001 just over a year and
one-half ago and the District Court has been managing the pretrial proceedings since that
time with an eye toward the long-scheduled trial date of October 1, 2002. It should be
noted that in the course of those proceedings, the District Court has taken the guilty pleas o
three of defendants’ alleged co-conspirators whom it will sentence after they testify,
pursuant to their cooperating plea agreements, at a trial at which it will not have presided.
These facts, of course, without more, would not warrant mandamus relief.
But there is more, much more. Trial in Connecticut will most assuredly not
commence any time near the October 1 date but, rather, will be significantly delayed. The
new judge, after all, will be required to get up to speed on all that has gone before; will la
any familiarity with the extensive Cendant Corporation litigation approximately 99
criminal and civil cases which has been almost exclusively handled by the transferring
judge; and will have his or her own docket and trial calendar which, if displaced because of
this case, will result in the denial to other litigants of their long awaited day in court.
Importantly, delay in the trial of this case will have a ripple effect on yet other cases, giv
that discovery has been largely stayed in pending Cendant civil actions awaiting the
disposition of this prosecution. Even more importantly, this case comes at a time when, in
the wake of the Enron-type events to which the public is daily being subjected, public
confidence in the integrity of corporate America has been shaken and public interest and
governmental interest in timely prosecuting those types of fraud is extraordinarily high.
None of this was even mentioned by the District Court.
And given short shrift, if any shrift at all, is the fact, and fact it be, that transferr
what the District Court itself described as a "complicated . . . significant case" again, on
to appease the preferences, unlikely to prevail, of the two defendants to face their charges
somewhat closer to home will cost the taxpayers at least an additional $150,000.
Moreover, transfer will disaccommodate the entire government team of attorneys, agents,
and support staff by forcing them to leave their families and relocate or commute to
someplace in Connecticut for the period of this lengthy trial; rent and furnish office space
which they otherwise would not have to do; and move their 150 boxes of documents. The
District Court gave this the back of its hand, finding only that "there may be a burden on
the government’s legal staff" but concluding that that burden was outweighed by the two
paltry reasons given for the transfer.
Because the "interest of justice" cannot possibly be served by sending this case to
Connecticut, the District Court, in my view, committed "a clear abuse of discretion or clear
error of law" by doing so. I respectfully dissent.

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