The opinion of the court was delivered by: POLLAK
On October 5, 1979, I granted the Government's motion to sever the trial of defendants Barrientos and Karasik from the trial of defendants Grullon and Mejia. Thereafter, defendants Grullon and Mejia were tried without a jury. At the close of the Government's case, I denied motions for directed verdicts of acquittal predicated on the strict scienter standard articulated by the Court of Appeals for the Fifth Circuit in United States v. Wieschenberg, 604 F.2d 326 (1979). I held that in this Circuit the proper construction of 22 U.S.C. § 2778 (and hence of an indictment charging a conspiracy to violate 22 U.S.C. § 2778) invokes the less demanding scienter standard reflected in Judge Broderick's jury instructions in United States v. Byrne, 422 F. Supp. 147, 168 n.20 (E.D.Pa.1976), in part affirmed and in part reversed on other grounds, sub nom. United States v. Cahalane, 560 F.2d 601 (3d Cir. 1977), cert. denied, 434 U.S. 1045, 98 S. Ct. 890, 54 L. Ed. 2d 796 (1978). At the close of the case, I found defendants Grullon and Mejia guilty. In explaining my verdict, as announced from the bench on December 4, 1979, I stated that the Government's case fully met the Byrne standard (sustained in Cahalane ) although not, in my view, the Wieschenberg standard as I understood it.
The trial of defendants Barrientos and Karasik was scheduled to follow shortly after the conclusion of the trial of Grullon and Mejia. On December 12, 1979, Barrientos and Karasik moved to transfer the trial to the Southern District of Florida. On December 14 the Government filed its memorandum opposing the transfer, and on that day I held a hearing on the motion. Following the hearing I granted the motion to transfer, announcing my decision from the bench.
My decision involved an examination of the several relevant factors identified, and apparently approved, in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 244, 84 S. Ct. 769, 771, 11 L. Ed. 2d 674 (1964). After examining the various factors, I concluded with the following exposition of the elements which seemed to me to be controlling:
My conclusion is that this case should be transferred and I come to that conclusion because, with balances reasonably close on several of the items, the items that seem to me dispositive are those that go to, I think, the very, very extraordinary financial burden that would be imposed on the defendants and their attorneys if this case were retained here and I don't put at a low level the Government's inconvenience in continuing its prosecution here where its attorneys are located, where the really indispensible member of this whole case, Agent Fleisher, is located, but he too is mobile, I guess. I don't put the Government's interests at naught but it's only a matter, if I may say so, of inconvenience, not of fundamental disadvantage, and to the extent that one is talking about balances of convenience as between the Government and the defendants, I conclude that on the question of transfer where the matter is in equilibrium the Government's interest must be subordinated, but having offered that dictum I do want to add that I do not regard this as a situation in which the matter is in equilibrium. I do think that the comparative financial burdens weigh very heavily in favor of permitting the defendants and their lawyers to try the case on their home grounds and, apart from the dollar cost, I think the factor of homeness is a factor which deserves real weight when there is no compulsion that points in another direction.
I think it perfectly clear that if we were now to look back and say "Where would this indictment have been laid and this prosecution brought had there not been a Mr. Grullon and a Mr. Mejia charged in the same indictment?" the case would have been brought in Miami against Mr. Barrientos and Mr. Karasik and I think that is the status quo ante which would have been which should now be reconstructed by an order transferring this case to the Southern District of Miami.
The Government has now moved for reconsideration of the order of transfer. The reason assigned is that I did not give weight to the likelihood that the trial of Messrs. Barrientos and Karasik, if it is to take place in the Southern District of Florida rather than here, will be governed by the standard of scienter prevailing in the Fifth Circuit namely, the strict Wieschenberg standard which I declined to follow in the trial of Messrs. Grullon and Mejia. According to the Government:
11. In its December 14, 1979 oral findings, the Court did not specifically address the fact that, upon a forum non conveniens transfer, the law of the transferee district would apply.
12. In its December 14, 1979 oral findings, the Court did not take note of the conflict of law between the Fifth Circuit and all other Circuits as a "special element which might affect a transfer" (N.T. 87); this is one of the factors adopted sub silentio in Platt v. Minnesota Mining Co., 376 U.S. 240, 244 (84 S. Ct. 769, 771, 11 L. Ed. 2d 674) (1964), as relevant in considering a forum non conveniens motion.
13. Because of the conflict of law between the Circuits, which conflict arose after the filing of Bill of Indictment 79-180, it is not in the interest of justice to transfer the instant cause to the Southern District of Florida for trial.
14. It is not in the interest of justice that the defendants Ramon Barrientos and Michael Karasik be tried under a stricter standard of proof than the one used for the defendants Cesar Sandino Grullon and Virgilio Armando Mejia, ...