In the case at bar, defendant Haley avers by affidavit that he proposes to call at trial an attorney, a medical doctor, a businessman, friend, various consumers and a prison guard who would be willing to testify on his behalf in Atlanta but are either too poor or too busy to travel to the Eastern District of Pennsylvania.
Defendant Hewes currently proposes to call thirty witnesses from North Carolina, thirteen from Georgia, six from South Carolina and one each from Tennessee and Alabama. All of these witnesses would willingly travel the comparatively short distance to testify in Atlanta while purportedly being unwilling to travel to this district for like purposes. These proposed witnesses include representatives from credit agencies, salesmen for nationally prominent firms who had business dealings with defendant, bank officers who verified defendant's financial statements, a printer who will state that false information was given to the FBI, a company president to whom the FBI made misrepresentations as well as various other factual and character witnesses.
Defendant Howard Caldwell, currently incarcerated at the federal correctional institute in Lexington, Kentucky, asserts that his two "fact" witnesses and six "character" witnesses all are unable or unwilling to invest the time and money to travel to this district and testify on his behalf. However, each of these witnesses, as with other defendants, would be available to testify at a trial held near their homes in the Northern District of Georgia. His proposed witnesses include members of the business community, former employers and employees, an attorney and a former Justice Department employee.
Defendant Brooks asserts that twenty-six witnesses, including numerous attorneys, judges, a police chief and former employees of "Rekcus", one of the corporations allegedly formed for the purpose of bankruptcy,
would be willing to testify on his behalf if trial were held in Atlanta. Business commitments preclude these witnesses' testimony if trial were held in this district.
Defendant Simpson plans to call nine witnesses, including a medical doctor, a law enforcement official, a banker, former employee and friends. He complains that occupational commitments make attending trial in this district a "serious inconvenience" for them, although they could and would attend trial in the Northern District of Georgia.
Defendant Charles Caldwell proposes to call five fact witnesses, including bankers, accountants and four character witnesses. None of them will be able to testify unless the pending motion is granted.
These affidavits uniformly reveal that proposed defense witnesses are available, willing and able to testify in the Northern District of Georgia while being unavailable, unwilling and unable to testify in the Eastern District of Pennsylvania. Even allowing for some overstatement of defense counsels' case and the number of possible defense witnesses, their background and proposed testimony demonstrate the unfairness and injustice of requiring trial in this district. Although it is unlikely that all proposed character witnesses would be necessary or permitted to testify,
the court trying this case may elect not to exclude all such "cumulative" evidence since defendant's mens rea, or the lack thereof, is central to the Government's case. Accordingly, the admission of character evidence, normally limited due to its cumulative nature, may well be properly admitted with greater latitude.
Moreover, inconvenience to Government witnesses seems minimal. Some "victim" witnesses, scattered throughout the country, will be inconvenienced to some extent by any choice of forum and the FBI agent in charge of this investigation, formerly stationed in Pennsylvania, has been transferred recently to Louisiana. He would, no doubt, find trial in Pennsylvania no less inconvenient than in Georgia.
The third Platt factor, the location of events likely to be in issue, also favors transfer. Many of the overt acts described in the indictment purportedly occurred in Georgia or surrounding states. Importantly, Georgia, the state from which defendants hail, appears to be the "nerve center" of the alleged illicit operations.
The location of documents, another Platt factor, is neutral, neither favoring nor opposing transfer. The Government's documents are currently located in Allentown, Pennsylvania, many of them having been moved there from Georgia. Defendants' documents, however, remain located in their custody in the South. The task of returning the Government's documents to Georgia is not so burdensome as to warrant denial of transfer and to order indigent defendants to trial in a distant forum and require that they bring all possible relevant documents for immediate use at trial would impose an additional and unreasonable burden which they assert they are unable to meet.
Similarly, the fifth factor location of counsel neither impels nor resists transfer. Six of the seven remaining defendants have Philadelphia counsel appointed under the Criminal Justice Act (CJA).
The seventh defendant's CJA attorney is located in Atlanta. In the event of transfer, the Georgia court may consider appointing local counsel. If so, presently retained attorneys will no doubt acquaint substitute counsel with the case. In fact, Philadelphia counsel have stressed their willingness to inform newly-appointed Southern counsel with the status and background of the prosecution.
Sixth, the disruptive impact upon defendants' businesses by trial in this district, also favors transfer. Each of the defendants, although qualifying for CJA counsel, are either marginally employed or own and operate struggling businesses.
One defendant proposes to continue pumping gas at night during the trial in order to support himself; another states that trial in Pennsylvania would be "financially devastating"; a third contends that, if the transfer motion is denied, he would be "unable to earn any livelihood whatsoever". Finally, one defendant would be forced to "shut down" his business in order to attend trial in Pennsylvania. Courts recognize that "personal involvement, even a few hours each weekday plus weekends could make a substantial difference" to the success of a struggling business.
Defending criminal charges should not include the penalty of financial ruin where the trial might be conducted properly and legally in a forum near defendants' homes and businesses.
Continuing, Platt also suggests consideration of the expense to the parties. Although transfer would possibly entail some additional trial costs for the Government, the Government has not demonstrated that trial in Georgia would be significantly more expensive than in Pennsylvania. On the other hand, one defendant has calculated that simply calling his witnesses to Pennsylvania will cost over nine thousand dollars and that the additional costs associated with housing them will be a further burden which he is simply unable to bear.
Regrettably and importantly, the modicum of economic relief afforded indigent defendants under federal law fails to remedy the "fundamental disadvantage" created by the "comparative financial burdens" placed upon defendants if forced to trial in this district.
Under 18 U.S.C. § 4285 the court may order "noncustodial transportation" of indigent defendants to trial by the United States Marshal and further allows the court to direct the Marshal to furnish defendant "an amount of money for subsistence expenses to his destination".
However, the statute does not authorize subsistence funding for defendants once they arrive at the place of trial and during trial, which could be extended. Neither does the statute provide funds for transportation and support of defendants' witnesses to, during and throughout the trial.
However, defendants may move the court, pursuant to Fed.R.Crim.P. 17(b), to order payment of fees for defense witnesses where "the presence of the witness is necessary to an adequate defense".
Unfortunately, the ameliorative effect of these procedures fails to offset the economic hardship accruing to defendants by virtue of attending a lengthy trial far from home. To lessen this impact and the concomitant prejudice which inures to indigent defendants, the Government may offer to pay travel and subsistence expenses for defendants and their witnesses. Indeed, the Government has done so in other instances where it opposed a motion to transfer.
Significantly, no such offer has been forthcoming in this case and, upon inquiry, counsel for the Government has adamantly refused to make such funds available to these indigent defendants.
The next two Platt factors, the relative geographic accessibility of the place of trial and docket conditions in each district, are also neutral since the Eastern District of Pennsylvania is as accessible as the Northern District of Georgia. The Speedy Trial Act
has negated, in reality, any real concern for docket conditions.
Finally, two "special factors" favor transfer. One defendant recently underwent two emergency abdominal operations and requires close medical supervision, which would necessarily be diminished by trial in a distant forum; the wife of another defendant is seriously ill and requires his care.39Additionally, of the original twenty-one defendants, only two were from Pennsylvania, and they have entered guilty pleas. If these two Pennsylvania defendants had not been indicted with this host of Southern defendants, the prosecution would likely have been brought in a southern district.
Careful weighing of these ten Platt factors impels the conclusion that the convenience of the parties and the interests of justice do, indeed, require transfer under these circumstances. Accordingly, defendants' motions to transfer will be granted.