Opinion
Case No. 3:10-0091.
July 27, 2010
MEMORANDUM AND ORDER
Pending before the court is a Motion for Change of Venue (and supplement) filed by the defendant Ashlee Bunn (Docket Nos. 22 and 28), to which the government has responded (Docket No. 25). For the reasons discussed herein, the defendant's motion will be denied.
In her initial motion, Bunn primarily focused on a "double jeopardy" argument that appeared somewhat ill suited to a motion to change venue. ( See Docket No. 22.) Consistent with the Government's response, Bunn's supplement (Docket No. 28) argues the traditional factors analyzed in a motion to change venue in a criminal matter.
FACTUAL AND PROCEDURAL BACKGROUND
On April 22, 2010, the defendant, Ashlee Bunn, along with co-defendant Don Montrail Bradford, was indicted by a federal grand jury in this District on three counts, that is, (1) conspiracy to possess with intent to distribute more than 100 kilograms of marijuana, (2) attempting to possess with intent to distribute more than 100 kilograms of marijuana, and (3) using a telephone to facilitate the commission of a felony. (Docket No. 14 at 1-2.) The latter two counts were based on conduct that occurred on or about March 24, 2010, and the conspiracy charge was based upon conduct that occurred between March 19 and March 24, 2010. ( Id. at 1-2.)
On May 25, 2010, in the Eastern District of Virginia, Bunn pled guilty to a conspiracy to distribute marijuana charge, and, pursuant to her plea agreement, Bunn also admitted to a Statement of Facts that is relevant to the proceedings here. (Docket No. 25 Ex. 3.) That Statement of Facts revealed that, in March 2010, Virginia Beach police received an anonymous tip that Bunn was transporting large quantities of marijuana from Tennessee to Virginia and then distributing the drug in the Virginia Beach area. ( Id. at 1.) In response to this tip, from March 19, 2010 to March 24, 2010, Bunn was under surveillance by Virginia Beach police and was observed engaging in conduct (transporting large duffel bags to various residences in the Virginia Beach area) consistent with the tip. ( Id. at 2-3.) On March 23, 2010, Bunn was arrested driving an SUV rented from an Enterprise Car Rental in Tennessee, that, in plain view, contained "bales of marijuana," later determined to be 227 pounds of the drug. ( Id. at 3.)
A subsequent search of Bunn's property in Virginia revealed a FedEx receipt that listed an address of 6828 Pennywell Drive, Nashville, Tennessee, which, the investigation revealed, was Bunn's residence. ( Id. at 4.) On March 24, 2010, Virginia Beach police conducted telephone surveillance on Bunn, during which she instructed an individual with a Nashville cell phone number to go to a location in Nashville to remove a series of boxes. ( Id.) Virginia Beach detectives shared this information with the Nashville DEA and Metro Police.
Also in the record in this case is an affidavit from DEA Special Agent Matthew Chance. (Docket No. 1.) In that affidavit, Chance states that, on March 24, 2010, Nashville DEA agents and Metro Police set up surveillance on the 6828 Pennywell Drive address and conducted a traffic stop on a vehicle that had driven through the area several times. After a Metro Police drug detection canine alerted officers to the presence of drugs in the vehicle, the driver, Don Montrail Bradford, admitted that "marijuana was smoked in the vehicle," and that a woman named Jessica Barkley contacted him that day and told him to go to the 6828 Pennywell Drive address to "see what was going on." ( Id. at 2-3.) Chance also states that Jessica Barkley rented the SUV in which Bunn was arrested. ( Id. at 2.) Later on March 24, officers executed a search warrant on the 6828 Pennywell Drive address and "discovered numerous wrapped bundles containing a green substance believed to be marijuana." The total weight of these bundles was more than 400 pounds. ( Id. at 3.)
Again, on April 22, 2010, Bunn was indicted in this District on the conspiracy, attempt, and telephone facilitation charges discussed above. After the indictment in this District, Bunn retained Nashville counsel, James H. Todd. (Docket No. 19.) The defendant then filed the pending Motion for Change of Venue on June 24, 2010 and Supplement on July 20, 2010. On July 13, 2010, Don Montrail Bradford, the co-defendant in this case, filed a Notice asserting that he did not join in the motion to transfer this case to the Eastern District of Virginia. ( Id.)
ANALYSIS
I. Motion to Change Venue
A motion for change of venue based upon convenience and the "interests of justice," as the motion here, is brought under Fed.R.Crim.P. 21(b). That rule states that, on the defendant's motion, "the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties and witnesses and in the interest of justice."While the district court has broad discretion in this context, the court should consider the convenience of both parties and the well-established Platt factors, which are: (1) the location of the defendant; (2) the location of possible witnesses; (3) the location of the relevant events; (4) the location of the relevant documents and records; (5) the potential disruption of the defendant's business unless the case is transferred; (6) the expense to the parties; (7) the location of counsel; (8) the relative accessibility of the place of trial; (9) the docket condition of each district or division involved; and (10) any other special elements that might affect the transfer. See U.S. v. Jamal, 246 Fed. Appx. 351, 369 (6th Cir. 2007); Platt v. Minnesota Mining Mfg., 376 U.S. 240, 243-44 (1964); U.S. v. Micciche, 165 Fed. Appx. 379, 385-86 (6th Cir. 2006). No one factor is dispositive, and a case may very well not raise all the factors; therefore, the court should consider those factors relevant to the particular matter in determining whether a transfer is in the interests of justice.
Here, the defendant argues that this case should be transferred to Virginia. The defendant points out that she is currently located in Virginia and that some of the possible government witnesses, namely the Virginia Beach detectives who conducted the March 24 telephone surveillance, reside there. (Docket No. 28 at 2.) Further, the defendant argues that some of the events that gave rise to this proceeding took place in Virginia, including the monitoring and arrest of the defendant and the search of the defendant's Virginia residence. ( Id.) The defendant also asserts that, because the "investigation here was clearly initiated in Virginia," the relevant documents and records "would just as, if not more than, likely be found in Virginia." ( Id.) The defendant contends that the cost of transfer would be low, as the U.S. Attorney's office in the Eastern District of Virginia has notified the U.S. Attorney's office in the Middle District of Tennessee that its counsel is "willing to remain on the case and settle the pending Tennessee [i]ndictment." ( Id. at 2-3.) The defendant also adds that Mr. Todd was retained only for the purpose of filing the present motion, and her preferred counsel is in Virginia. ( Id.)
The Government asserts that the case should remain in this District as the key witnesses, including Barkley, Bradford, and the officers who conducted the search of Bunn's home, are located in this District. (Docket No. 25 at 6.) The Government argues that it "would incur enormous expenses" in transporting all of its witnesses to the Eastern District of Virginia and that the defendant would "arguably" not incur any such expenses because she has already admitted the underlying facts pursuant to her prior plea agreement. ( Id. at 7; Docket No. 25, Ex. 3.) Further, the Government contends that the "events giving rise" to these charges stem from this District, such as Bradford's arrival in the defendant's Nashville neighborhood and the traffic stop by Metro Police that resulted in Bradford's arrest. (Docket No. 25 at 7.) Therefore, the Government asserts, this District is the "suitable district for accurate fact-finding and any motions practice associated with this case." ( Id.)
Of course, should the defendant wish to plead guilty to the charges in this district, a Rule 20, Fed.R.Crim.P., transfer of the charges against her to the Eastern District of Virginia for plea and sentencing would certainly be a viable option.
In addition, the Government contends that the defendant will soon be serving a federal sentence as the result of her plea in Virginia. ( Id.) Therefore, since the defendant will be in federal custody, she will not incur any disruption to her business or employment as a result of her trial in this District. ( Id.) Finally, the Government asserts that both the defendant's retained counsel, James H. Todd, and the Government's counsel are located in this District. ( Id.)
The defendant has not carried her burden to show that transfer is warranted. U.S. v. Crutchfield, 379 F. Supp.2d 913, 923 (W.D. Tenn. 2005) (noting that, under Sixth Circuit law, it is the defendant's burden to show that transfer serves the purposes of the rules). As noted above, the charges in the indictment in this District stem from Bunn's efforts to obtain the marijuana that was located at her home in this District. Therefore, the key events (the police stake-out and search of Bunn's home) occurred in this District. Consistent with this, and as the Government argues, the key witnesses (the Metro police and DEA, Barkley, Bradford) are therefore located in this District, and, the defendant's speculation aside, there is no reason to believe the relevant documents and materials related to this crime are not located in this District.
Moreover, every indication is that, at the time of her trial in this District, the defendant will be in Government custody. Therefore, the defendant would presumably not bear the expense of appearing in this District, would have limited control over her location, and would not have business endeavors interrupted by a trial here. While the defendant's preferred counsel resides in Virginia, it is clear that she is able to obtain local counsel, and this factor alone does not necessitate transfer. See U.S. v. Estrada-Elias, 2007 WL 496661, *5 (E.D. Ky. Feb. 8, 2007) (finding that the presence of local counsel for the defendant mitigated against a Rule 21(b) transfer)).
Plainly, the vast majority of considered Platt factors weigh in favor of keeping the case in this District. Additionally, another "special factor" weighs against transfer of venue to Virginia. Given that the co-defendant Bradford is located in this District and does not seek to be tried in Virginia, a transfer would not benefit judicial economy, as the defendants would be tried separately. See U.S. v. Morrison, 946 F.2d 484, 489 (7th Cir. 1991) (transfer of some but not all co-defendants "give[s] rise to a `multiplication of litigation' resulting in great inconvenience to the witnesses involved as well as considerable expense to the government.")). ( See id.)
For the reasons expressed herein, the defendant's Motion for Change of Venue (and supplement) (Docket Nos. 22 and 28) is DENIED.
It is so ordered.