In Re: USA ( 2001 )


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  •                                                                                                                            Opinions of the United
    2001 Decisions                                                                                                             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    Precedential or Non-Precedential: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
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    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"inter-
    district 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 Swindell-
    Dressler, 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