The expense to the parties has been discussed in connection with the location of witnesses. While the Assistant United States Attorney in charge of this case and a case agent with the Defense Criminal Investigative Service will have to travel to Virginia upon transfer, defendant and his attorney would otherwise have to travel to Philadelphia. The government argues that defendant's attorney maintains offices in Washington and therefore his expenses in travelling to Philadelphia from there will be less than theirs in travelling from Philadelphia to Roanoke. This may be true as to travel expenses alone but that does not take into account expenses for lodging and meals during the course of the trial. Also, these comparative attorney expenses are insignificant compared to the expenses defendant will incur in bringing witnesses to Philadelphia.
Location of counsel neither mandates nor precludes transfer. It will be as inconvenient and costly for defendant's counsel
to appear for trial in Pennsylvania as for the Assistant United States Attorney in Philadelphia to appear for trial in Virginia.
Relative accessibility of place of trial would suggest denying transfer if considering accessibility to counsel but granting transfer if considering accessibility to witnesses. Philadelphia is a major urban center more accessible to Washington and Atlanta than is Roanoke or Abingdon. But Roanoke and Abingdon are as accessible to Philadelphia as Philadelphia is to Roanoke and Abingdon. So the accessibility argument really depends on who should bear the expense and burden of travel. This has been discussed in regard to the location of defendant, location of documents and convenience of parties above.
Comparison of the docket in Virginia with that in the Eastern District of Pennsylvania suggests no problem with transfer. The 1981 Annual Report of the Director, Administrative Office of United States Courts states that as of June 30, 1981 there were 257 criminal cases pending in the Eastern District of Pennsylvania but only 56 in the Western District of Virginia. While the number of criminal cases pending per judgeship in the Eastern District of Pennsylvania was 13.5,
the number of cases filed per judgeship, weighted by degree of complexity, shows a higher criminal case-load per judge in the Eastern District of Pennsylvania (29) than in the Western District of Virginia (24). The median time interval in months from filing to disposition is greater in the Eastern District of Pennsylvania (4.4: all cases; 7.8: jury trial) than in the Western District of Virginia (2.8: all cases; 4.3: jury trial).
One "special factor" deserves the court's attention. Defendant has filed a motion to dismiss the indictment or to suppress evidence because of alleged prosecutorial misconduct. He contends that the Assistant United States Attorney assigned to this matter improperly negotiated leniency for an unindicted co-conspirator in return for his testimony against the accused; he also alleges unethical conduct by the attorney then representing them both and thereby a violation of his attorney-client privilege. Defendant has requested decision on this motion prior to transfer so that this court could rule on the conduct of attorneys in this district. But whether or not local disciplinary proceedings are necessary or proper, attorney conduct affecting the trial must be ruled on by the judge presiding at trial. If the case is transferred, defendant may incur additional expense in pressing his motion, but this is unlikely because the alleged misconduct was on the part of persons present for the trial anyway. Since there will be no additional burden on the government, it will not be considered as a factor militating against transfer.
Defendant has also suggested in correspondence to the court after hearing on this motion that related criminal charges of income tax evasion are pending against defendant in Virginia and that this should be considered by the court. However, this information has not been made a matter of record in an appropriate manner and therefore is not a factor.
To summarize, the residence of the defendant, location of possible witnesses and the cost of witnesses traveling to Philadelphia compared with the expense of the government witnesses traveling to Virginia, and the location of events in issue all favor transfer. The location of documents likely to be involved and the relative docket conditions are additional factors somewhat favoring transfer. Against this only the relative accessibility of place of trial favors denial of the motion, and that is plainly insufficient in this context.
AND NOW, this 20th day of May, 1982, for the reasons set forth in the foregoing Memorandum, it is ORDERED that:
1. Defendant's motion to transfer is GRANTED; this matter shall be transferred to the United States District Court for the Western District of Virginia.
2. Defendant's motion to dismiss indictments, or in the alternative to suppress evidence, because of violation of his right to effective assistance of counsel and due process of law is DENIED without prejudice in view of the transfer.