stating that “where an indictment is transferred under Rule 20, the transferor court loses jurisdiction and the transferee court acquires exclusive jurisdiction of the indictment proceeding” and citing cases
How later courts described this case
- stating that “where an indictment is transferred under Rule 20, the transferor court loses jurisdiction and the transferee court acquires exclusive jurisdiction of the indictment proceeding” and citing cases
- explaining that vouching occurs where the prosecution indicates that information not presented to the jury supports the witnesses' testimony
- finding improper vouching of credibility of witness when prosecutor referred to evidence not in record by stating police officer was monitoring witness's testimony for truthfulness
- prosecutor improperly stated during closing argument that officer who had been present throughout the trial was monitoring the witness’s testimony to ensure that the witness kept his agreement to provide truthful testimony
Written by the judges who cited it.
Later courts went against this
Declined to follow by State v. Ish, 208 P.3d 1281 (2009)
¶ 29 We decline to follow Green or the dicta in Roberts.
The opinion
J. BLAINE ANDERSON, Circuit Judge,
specially concurring:
I concur in Judge Wright’s opinion reversing the convictions. I write a special concurrence merely to comment on the question concerning the transfer of these cases between the two districts.
In reviewing these cases, we noted the possibility of irregularities in the transfer of these cases between the districts and in the taking of the appeal. We thus requested counsel to supplement their briefs to consider this matter, as it had not been raised by either party.
After considering the record and the briefs of counsel, I believe that the defects and irregularities in the proceedings below did not affect any substantial rights of the defendants, and reversal of their convictions is not required on that ground. F.R. Crim.Pr.Rule 52(a). Defendants do not contend, and on this record could not seriously contend, that any substantial right of theirs had been affected in any degree by the procedural irregularities.
Under the 6th amendment, a criminal defendant has the right to be tried in the *538 jurisdiction where the crime was committed. That right is a venue provision and, though it is a constitutional right, it may be waived. U. S. v. Jercha, 458 F.2d 1340 (9th Cir. 1972); see also Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938).
Under F.Crim.Pr.Rule 21, a formal procedure for waiving “constitutional venue” has been promulgated. Rule 21 allows a change of venue under two circumstances:
a) where the court is satisfied that prejudice is so great that the defendant could not obtain a fair and impartial trial in that district;
b) where, for the convenience of the parties and in the interest of justice, the court believes that the case should be transferred.
In both instances, transfer to another district will be considered by the transferor court only upon a motion by the defendant for a change of venue. It is a defendant’s waiver of the “constitutional venue” right that allows a change of venue.
Rule 21(c) sets out the procedures for transfer of cases. It provides that:
“When a transfer is ordered the clerk shall transmit to the clerk of the court to which the proceeding is transferred all papers in the proceeding or duplicates thereof and any bail taken, and the prosecution shall continue in that district.”
The transfer of a case from one district to another is a venue question, but jurisdiction is also involved. A change of venue results in both jurisdiction and venue being given over to the transferee court.
In the present cases, the transmittal of all the papers was not accomplished as required by Rule 21(c). However, I agree with Judge Wyatt that “[the] failure [of] the Clerk in Phoenix to transmit the papers to the Clerk in San Diego did not prevent the transfer of jurisdiction over this indictment to the District Court for the Southern District of California.” (Judge Wyatt’s dissent at p. 546) Further, the judges from the District of Arizona secured designations to sit in the Southern District of California. “Thus when the trials were held in San Diego the trial was by and before the United States District Court for the Southern District of California.”
Judge Wyatt also states, and I agree, that although certain trial papers were captioned and filed in the District of Arizona and were not captioned and filed in the Southern District of California, that “these errors do not affect the realty: the trial was before a court having jurisdiction of the indictment, before a judge properly designated to hold that court, before a jury properly summoned and selected, at a place within the district of the district court conducting the trial.”
The errors in failing to transmit and in filing and captioning the papers in the wrong court were errors under Rule 52(a) which did not affect substantial rights of the defendants and which therefore do not require reversal.
Judge Wyatt states that the cases should be reversed, however, because of problems in the proceedings following the jury verdict in San Diego. He states, on page 547 of his dissent, that:
“Had the further proceedings after verdict been conducted in Arizona by the District Judges for the District of Arizona acting under their designations as representatives of the District Court for the Southern District of California, and had judgment of conviction been entered by the Clerk of that Court, a different problem would be presented at this stage of the matter. But that was not the course of events.
“Once the jury verdict was received, the indictment proceeding was treated as if the transfer of jurisdiction to the Southern District of California had never been made. The prosecution continued exclusively in the District Court for the District of Arizona.
“The sentences were imposed by, and the judgments of conviction were entered in, the District Court for the District of Arizona. The conclusion is inescapable for me that the District Court for the District of Arizona had no jurisdiction to impose the sentences or to enter the judg *539 ments from which these appeals are taken."
I respectfully disagree with the conclusions reached by Judge Wyatt. I believe the proceedings after the verdict can be viewed in two different ways, either of which would not require reversal.
Once the jury verdict was received, the purpose of the transfer to the Southern District of California had been accomplished: the defendants had been given the opportunity to be tried in a district other than where the prejudice was so great that they could not have received a fair trial. After the receipt of the jury verdict, the parties agreed to return to Arizona for sentencing. It was freely and voluntarily done for the convenience of all concerned.
If jurisdiction is deemed to have remained in the District Court for the Southern District of California, I would view the District Judges for the District of Arizona to have acted under their continued designations as representatives of the District Court for the Southern District of California. The defendants agreed to return to the District of Arizona for sentencing, and, therefore, waived any right to be sentenced in San Diego.
We may also view the defendants’ agreement to return to the District of Arizona as a waiver of venue. This waiver, though not made pursuant to any procedural rule, now prevents the defendants from asserting that they should have been sentenced in the District Court for the Southern District of California. The waiver, for the convenience of all concerned, effectively transferred the venue of the case back to the District Court for the District of Arizona which then had “jurisdiction” (venue) to sentence the defendants.
Under either view, any irregularities concerning the filing of papers or the transferring of the sentencing back to Arizona without mere formal motions and orders, I would view were harmless as the procedural irregularities did not affect any substantial rights of the defendants.