United States v. Neal T. Roberts and James Albert Robison

WYATT, District Judge

(dissenting):

With regret and with great respect for the views of the majority, I must dissent from the decision expressed in Judge Wright’s opinion. My disagreement is due to a belief that the District Court which entered the judgments of conviction had no jurisdiction to do so and that “we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit”. United States v. Corrick, 298 U.S. 435, 440 , 56 S.Ct. 829, 832 , 80 L.Ed. 1263 (1936) (emphasis supplied). To the same effect is a criminal case in this Court, Russell v. United States, 306 F.2d 402, 405 (9th Cir. 1962) I would reverse for want of jurisdiction of the District Court. Therefore, I do not reach the merits and am unable to join in the majority opinion reversing on the merits.

1.

The appeals to this Court are from judgments of conviction entered on July 24, 1978, in the United States District Court for the District of Arizona, after sentences imposed at Phoenix by that Court. Jurisdiction over the indictment, however, had on May 2, 1977, been transferred to the United States District Court for the Southern District of California under Rule 21 of the Federal Rules of Criminal Procedure. The indictment has been pending under the jurisdiction of the District Court for the Southern District of California since May 2, 1977, and is pending there now. The trial was held in the Southern District of California. Sentence should have been imposed in that District by the District Court for that District. Instead, through a series of what seem to me serious errors everything except the trial took place in the District Court for the District of Arizona, which, having transferred the indictment to another District, was without any jurisdiction over its prosecution.

2.

The indictment against the two appellants was returned by a grand jury at Phoenix in the District of Arizona on March 2, 1977. Roberts and Robison are named in *540 the first four counts; Robison alone is named in the fifth count. The indictment was assigned to Judge Copple.

On April 18, 1977, defendant Robison filed a motion for a transfer from the District of Arizona “for purposes of conducting a trial.” The motion was said to be made under Fed.R.Crim.P. 21. An accompanying memorandum explained that Robison was charged in two criminal cases in the Arizona state court; that one of these was then on trial; and that the other was awaiting trial. It appeared that one of the state cases charged the murder of Don Bolles, an investigative reporter for a Phoenix newspaper, which was a nationally sensational news story, in and after June 1976. Robison relied on Rule 21(a) which provides for transfer of the proceedings where prejudice is so great that the defendant “cannot obtain a fair and impartial trial at any place fixed by law for holding court” in the district where the indictment was returned. Robison urged that he could not obtain a fair trial in the District of Arizona because of “massive publicity in the newspapers and on the television and radio stations of this district”.

On April 21, 1977, the Government filed its response to the motion for a transfer. The Government stated it was “well aware of the publicity” and took no position as to whether “venue in this matter should be changed” (R. 136).

Nothing was filed for defendant Roberts on the motion to transfer.

The motion for a transfer was heard by Judge Copple on April 25, 1977. Counsel for movant Robison emphasized that prejudicial publicity had increased since the motion was made. Counsel for Roberts stated that he “strenuously objects to any change of venue in this matter”. At the end of the hearing, Judge Copple orally decided that the “motion for change of venue solely on behalf of Robison is denied at this time”.

On Friday, April 29, 1977, defendant Robison submitted a “Motion Re-Urging Defendant Robison's Previous Motion for Continuance and Change of Venue”. This was apparently hand carried to Judge Copple, to counsel for Roberts, and to the Government. This second motion asked “for transfer from the District of Arizona”. The motion contained this paragraph (R. 138; “R” references are to pages of the Record on Appeal; emphasis supplied):

“Counsel for Co-Defendant Roberts has furthermore withdrawn opposition to this counsel’s previous motion to transfer this prosecution outside of the District of Arizona.”

Something must have been submitted at this time by Roberts because the docket shows that on Monday, May 2, 1977, there was filed “Joinder in motions for change of venue and for continuance by deft. Roberts”. This must have been submitted to Judge Copple on Friday, April 29; the document is not part of the Record.

On April 29,1977, Judge Copple signed an order which, in relevant part, is as follows:

“Pursuant to Rule 21(a) and (b) Fed.R. Cr.P. this case is transferred for trial to the Southern District of California at San Diego, California.”

This order was filed on May 2, 1977.

There is nothing in the Record to show that either appellant ever made a motion under Rule 21(b), which relates to “the convenience of parties and witnesses”. Since a motion by defendant is essential for the grant of an order of transfer under Rule 21 (because a defendant has a constitutional right to a trial in the district where the offense was committed) (United States v. Angiulo, 497 F.2d 440, 441 (1st Cir.), cert. denied, 419 U.S. 896 , 95 S.Ct. 175 , 42 L.Ed.2d 140 (1974); Original Committee Note to Fed.R.Crim.P. 21(a) and (b), Par. No. 3), there is nothing in writing in this record which would authorize a transfer under Rule 21(b). The only motion in the written record is under Rule 21(a), a transfer for prejudice, not for convenience. Moreover, as to convenience, Phoenix would clearly have been more convenient than San Diego.

The order of transfer states that “this case is transferred for trial”. This wording does not conform to the provisions of Rule *541 21(a), which directs that the Court “shall transfer the proceeding" (emphasis supplied) and does not conform to the provisions of Rule 21(b) which provides that the Court “may transfer the proceeding” (emphasis supplied). On the other hand, the wording does conform to the title of Rule 21, which is “Transfer from the District for Trial”.

3.

The full text of Rule 21 is as follows:

RULE 21. Transfer from the District for Trial

(a) For Prejudice in the District. The court upon motion of the defendant shall transfer the proceeding as to him to another district whether or not such district is specified in the defendant’s motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.

(b) Transfer in Other Cases. For 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 him or any one or more of the counts thereof to another district.

(c) Proceedings on Transfer. 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 proceedings or duplicates thereof and any bail taken, and the prosecution shall continue in that district.

Rule 21(c) states the procedure to be followed after a transfer has been ordered. The clerk of the transferor court must transmit to the clerk of the transferee court “all papers in the proceeding” and “any bail taken”. A further direction is explicit: “the prosecution shall continue in that district”, namely, the transferee district. Rule 21(e) thus contemplates that after an order of transfer the transferor court is to have nothing further to do with the proceeding, that the transferor court is without jurisdiction over it, and that everything to final judgment will take place in the transferee court, which has exclusive jurisdiction over the proceeding. Of course, a judge of the transferor court, if properly designated under 28 U.S.C. § 292 , can conduct any and all steps in the indictment proceeding, including the trial. Should this be done, however, the judge acts as a representative of the transferee court and his authority so to act derives from his designation under the statute cited.

Rule 21 provides only one kind of transfer, a transfer of the entire “proceeding”, and, as seen, it directs that after transfer “the prosecution shall continue” in the transferee court. There is no authority in Rule 21 for a transfer solely of the trial, with the transferor court retaining jurisdiction over the proceeding and with the indictment to remain pending in the transfer- or court. The majority, however, emphasizes that the indictment was by the terms of the order transferred to the Southern District of California “for trial”. The majority then accepts the notion that under Rule 21 an indictment can be transferred to another district “for trial” only and can remain pending for all other purposes in the district in which the indictment was returned. This is dead against the plain language of Rule 21 and thus against the command of Congress, the authority of which is the underpinning of all the Criminal Rules ( 18 U.S.C. §§ 3771 , 3772).

In view of the clear directions in Rule 21, it is not surprising that, according to my research, every reported case involving a transfer under Rule 21 shows continuance of the prosecution after transfer in the transferee court, sentence in the transferee court after conviction, entry of judgment in the transferee court, and appeal from the judgment of the transferee court. Examples of this procedure prescribed by Rule 21 are United States v. Crow Dog, 532 F.2d 1182 (8th Cir. 1976), cert. denied, 430 U.S. 929 , 97 S.Ct. 1547 , 51 L.Ed.2d 772 (1977); United States v. Angiulo, 497 F.2d 440 (1st Cir.), cert. denied, 419 U.S. 896 , 95 S.Ct. 175 , 42 L.Ed.2d 140 (1974); United States v. Wilson, 436 F.2d 122 (3d Cir.), cert. denied, 402 U.S. 912 , 91 S.Ct. 1393 , 28 L.Ed.2d 654 *542 (1971); United States v. Marcello, 423 F.2d 993 (5th Cir.), cert. denied, 398 U.S. 959 , 90 S.Ct. 2172 , 26 L.Ed.2d 543 , rehearing denied, 399 U.S. 938 , 90 S.Ct. 2240 , 26 L.Ed.2d 809 (1970); Ashe v. United States, 288 F.2d 725, 731 (6th Cir. 1961); United States v. DeMarco, 407 F.Supp. 107 (C.D.Cal.1975).

It thus seems clear that when a transfer of an indictment proceeding under Rule. 21(a) or (b) is made, the transferor court loses jurisdiction of the proceeding and the transferee court obtains jurisdiction over that proceeding. The examples cited under Rule 21 illustrate this.

There is another provision under the Criminal Rules for transfer from the district of an indictment.

Rule 20(a) of the Federal Rules of Criminal Procedure provides for a transfer of an indictment where a defendant, “arrested, held or present” in another district, wishes to plead guilty in that district where he has been arrested or is held or is present. Rule 20(a) does not state that an order of transfer must be made but otherwise it contains language very similar to Rule 21(c), namely, that “the clerk of the court [for the district] in which the indictment ... is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the district in which the defendant is arrested, held, or present, and the prosecution shall continue in that district.” Rule 20(c) then provides for the situation where an indictment has been transferred under Rule 20(a) so that a defendant may plead guilty but where for some reason the defendant pleads not guilty. In that situation, Rule 20(c) directs that “the clerk shall return the papers to the court in which the prosecution commenced, and the proceeding shall be restored to the docket of that court.”

The reported decisions hold or recognize 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. Examples are Warren v. Richardson, 333 F.2d 781, 783 (9th Cir. 1964); Perry v. United States, 432 F.Supp. 645, 648-49 (M.D.Fla.1977); United States v. Binion, 107 F.Supp. 680 (D.Nev.1952).

The case at bar is the first and only instance (so far as I can find) where, after transfer of an indictment to another district, the transferor court continued to exercise jurisdiction over the proceeding.

4.

Having on May 2, 1977, ordered the proceeding transferred under Rule 21 to the Southern District of California, the District Court for the District of Arizona then disregarded completely the instructions contained in Rule 21(c). The Clerk in Phoenix did not transfer “all papers” and “any bail taken” to the Clerk in San Diego, as Rule 21(c) directs. The “prosecution” did not “continue” in the Southern District of California, as Rule 21(c) directs. The papers remained in Arizona, docket entries continued to be made in Arizona, all documents continued to be captioned in the District of Arizona and to be filed there, and all hearings took place in Arizona. So far as appears, the District Court for the Southern District of California was never advised that the indictment at bar had been transferred to its jurisdiction.

5.

The first trial began on February 7,1978, in San Diego before Judge Copple and a jury; apparently the jury had been summoned by the District Court for the Southern District of California. Arrangements must have been made to use the physical facilities in San Diego of the District Court for the Southern District of California, and its jury summoning mechanism. The courtroom staff — deputy clerk, reporter and marshals — were from the District of Arizona. Judge Copple had been properly designated by Chief Judge Browning to hold a district court in the Southern District of California ( 28 U.S.C. § 292 (b)).

The first trial took place on February 7, 8, 9, 10 (Friday), 13 (Monday), 14, 15, 16, 17 (Friday), 21 (Tuesday); February 20 was a holiday (Washington’s Birthday). The case was submitted to the jury on Wednesday, February 15. The jury was given typed *543 and printed forms for the return of written and signed verdicts a separate form for each defendant; that for Roberts was captioned in the “United States District Court for the Southern District of California”; that for Robison was captioned in the “United States District Court for the Southern District of Arizona”. After deliberating during the days until the morning of Friday, February 17, 1978, the jury then returned written and signed verdicts of guilty on all counts as to the two defendants. When the jury was polled, however, the Foreman declined to agree to the verdict as to Roberts. The jury was instructed to resume its deliberations and did so until Tuesday morning, February 21, when the jury reported that it was unable to reach a unanimous verdict. A mistrial was then declared as to both defendants on the agreement of all counsel.

The second trial began in San Diego on May 2, 1978, before Judge Copple and a jury. The trial continued on May 3 and on May 4. On Monday, May 8, Judge Copple met with counsel and, under Rule 25(a), stated in substance that he was unable to proceed with the trial and that Judge Craig (also of the District of Arizona) would proceed with and finish the trial. Counsel for Roberts and for the Government made no objection and agreed to this change, but counsel for Robison moved for a mistrial so that there could be “another trial”, before “another jury”, and before “another judge . so the matter may be fully heard by a judge who has had an opportunity fully to examine the record and make himself aware of all the circumstances involved in this trial”. The motion for a mistrial was denied by Judge Copple.

The second trial resumed on May 9 before Judge Craig who made a statement on the record which satisfied the requirement of Rule 25(a) of “certifying that he has familiarized himself with the record of the trial”. Judge Craig was properly designated by Chief Judge Browning to hold a district court in the Southern District of California ( 28 U.S.C. § 292 (b)).

The trial continued before Judge Craig on May 9, 10, 11, 12, and 15. On Monday, May 15, the trial at San Diego was adjourned to Tuesday morning, May 23, because of a Judicial Conference in Phoenix the rest of that week. The trial resumed on May 23 and final arguments of counsel were heard. On the morning of Wednesday, May 24, the Court charged the jury. The jury was requested to return its verdict as to each defendant on a written form given to the jury captioned in the “United States District Court for the District of Arizona”. The jury retired to deliberate at 10:35 a. m. At 3:05 p. m. on the same day the jury returned its written verdicts finding each defendant guilty on each count naming him.

After the verdict was accepted by Judge Craig, he set June 26, 1978, in Courtroom No. 1 at Phoenix, Arizona at 2:00 p. m. as the time and place of sentence. Nothing is said, according to. the transcript, as to the judge who would impose sentence. The docket entry states that sentence will be “before Hon. W. E. Craig at Phx.”.

Between verdict and sentencing, both Judge Craig and Judge Copple made rulings and orders in the case.

On June 7, 1978, an order was filed by Judge Copple denying a request of Robison to address interrogatories to the trial jurors. It is recited that the order is made “with the concurrence of Judge Craig who presided over a portion of the case.”

The docket contains an entry that on June 9 Judge Copple filed an order adjourning the sentences from June 26, to July 17.

On June 12 counsel for Roberts filed two motions, one for a new trial and one for judgment of acquittal. Both motions contained in the caption this statement: “Assigned to the Honorable Walter E. Craig for Post-Trial Hearing”. By whom the assignment was made does not appear.

On June 15 Robison filed a motion for a new trial.

The docket contains an entry that on July 6 an order was filed adjourning the sentences from July 17 to July 24. This is said *544 to be because the post-trial motions will be heard by Judge Craig on July 17 and must be ruled on before sentencing. The judge making the order is not given, but presumably it was Judge Copple.

There is a transcript of a hearing in Prescott, Arizona, on July 17 of motions by defendants for new trials, etc. While it is not expressly stated, this was evidently before Judge Craig who, at the end of the hearing, denied the motions.

The sentences were imposed at Phoenix by Judge Copple on July 24, 1978.

The judgments of conviction, signed by Judge Copple were filed on the same date in the office of the Clerk of the District Court for the District of Arizona.

Notices of appeal were timely filed with the Clerk of the District of Arizona.

Thus the matter reaches this Court on appeals from judgments of the District Court for the District of Arizona. That court, by order filed May 2,1977, had transferred the proceeding to the District Court for the Southern District of California, which thereafter, in my view, had exclusive jurisdiction over the proceedings. The District Court for the District of Arizona had no jurisdiction to make the judgments from which these appeals are taken.

6.

It might at least be questioned whether the failure of the Clerk at Phoenix to transmit all papers to the Clerk at San Diego prevented the transfer of jurisdiction to the District Court at San Diego.

The direction in Rule 21(c) to the Clerk to transmit all papers to the transferee court seems purely administrative in nature, designed to make it practicable for the prosecution to continue in the transferee district. There is nothing to suggest that failure of transmittal would deprive the transferee court of jurisdiction. That neglect or refusal by the Clerk should nullify an' order of transfer would be to place form over substance.

No reported decision has been found in which this point is discussed. This is doubtless because the case at bar seems to be the first instance where the instructions of Rule 21(c) have not been followed.

There is a provision for the transfer of civil actions which is somewhat comparable to Rule 21. The provision is 28 U.S.C. § 1404 (a), authorizing discretionary transfer of a civil action for “the convenience of parties and witnesses, in the interest of justice”. That provision contains nothing, however, about any transmittal of papers to the transferee district. It seems to be assumed that, if transfer is ordered, transmittal will follow.

There are, of course, many more civil actions than criminal cases and many more orders transferring civil actions to other districts. In consequence, there have been many attempts to secure Court of Appeals review of orders transferring civil actions.

It has long been recognized that if the filing of an order of transfer ends the jurisdiction of the transferor court over a civil action, then it is difficult to secure review of that order in the Circuit of the transferor court. Evidently with the design to remedy that difficulty and to permit review of orders transferring civil actions, Judge Learned Hand treated transmittal of the papers in civil actions as the symbolic act of transfer and if this were delayed by the transferor court a petition for mandamus might be filed or an appeal taken (which, being interlocutory, could not survive, but might be treated as a petition for mandamus). This was the situation in Magnetic Eng. & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866 (2d Cir. 1950). The District Court had filed an order transferring an action from the Southern District of New York to the Eastern District of Wisconsin. The Clerk did not at once transmit the papers but, at the direction of the judge, delayed transmittal. Plaintiff appealed from the order granting the motion to transfer. Thereafter the Clerk transmitted the papers to the Eastern District of Wisconsin. Judge Learned Hand stated ( 178 F.2d at 868 ):

The order did not affect automatically to transfer the cause; the transmittal of the papers was to be the symbolic act of *545 transfer; and the case was still in the district court, when the appeal was taken. Since the appeal removed it, nothing taking place later in the district court could affect the jurisdiction once acquired.

The court then decided that since it was interlocutory the order of transfer was not appealable, but that if the appeal were dismissed it would be too late for plaintiff to petition for mandamus since the district court had lost jurisdiction by transmittal of the papers to the Eastern District of Wisconsin. Judge Hand continued ( 178 F.2d at 869 ):

. if we dismiss the appeal and remand the case to the district court it will be too late to grant a mandamus, for the cause has already been transferred. Nevertheless, if we should have had jurisdiction to issue the writ, had the plaintiff applied for it at the time when it appealed, we think that we ought to grant it now, ignoring what is at best only a matter of form; and for that reason we hold that we are free to treat the appeal as a petition for mandamus.

A motion for reargument was made in a transferor district court after an order of transfer had been filed and after the papers had been transmitted. There was then a petition for mandamus to review the order of transfer. The Second Circuit Court of Appeals declared: “Thus, when that motion [for reargument] came on to be heard the District Court for the Southern District of New York had already lost all jurisdiction over the action because the transfer was then complete.” Drabik v. Murphy, 246 F.2d 408, 409 (2d Cir. 1957; L. Hand, C. J.).

The Supreme Court, however, has cast considerable doubt on the significance of transmittal to, or receipt by, the transferee court of papers when determining the effective time of a transfer of jurisdiction over a civil action. In Koehring Co. v. Hyde Construction Co., 382 U.S. 362 , 86 S.Ct. 522 , 15 L.Ed.2d 416 (1966), the Supreme Court decided that the transferee court acquires jurisdiction, at least in some instances, before receipt of papers from the transferor Court. On March 10, 1964, the Fifth Circuit Court of Appeals ordered an action transferred to a District in Oklahoma. The order provided that “pending the entry of the order of transfer by the District Judge and the physical filing of the record in Oklahoma, this order shall constitute a transfer to enable the parties to present the matter to the District Court of Oklahoma.” On March 11, 1964 — before the papers had been transmitted from Mississippi — the District Court in Oklahoma issued a restraining order in the action and later issued an injunction, and entered a judgment of civil contempt. The Tenth Circuit Court of Appeals reversed the injunction and the contempt judgment on the ground that the District Court in Oklahoma had not acquired jurisdiction on March 11, 1964 when it issued its order. 348 F.2d 643 at 648 . The Tenth Circuit, relying in part on Drabik v. Murphy, above cited, held that the transferee court lacked jurisdiction “since the transfer of the papers, etc. to the transferee court is considered essential to that Court’s acquiring jurisdiction.” ( 348 F.2d at 648 .) The Supreme Court summarily reversed, saying ( 382 U.S. at 364-5 , 86 S.Ct. at 524 ):

“In the special circumstances of this case, we conclude that the District Court in Oklahoma had acquired jurisdiction on March 11 in accordance with the Fifth Circuit’s order for instanter transfer and that the Tenth Circuit erred in vacating the District Court’s orders on the stated jurisdictional ground.”

Footnote 4 to the Supreme Court’s per curiam opinion read as follows:

“Drabik v. Murphy, 246 F.2d 408 (C.A.2d Cir.), is not authority for the proposition that the transferee court fails to acquire jurisdiction until papers are received from the transferor court. On the contrary, Drabik suggests that the transferor court may lose jurisdiction before that event.”

Professor Wright, in Law of Federal Courts (3d ed.) 187, says with reference to the transfer of a civil action:

“Once the motion has been granted and the papers lodged with the transferee *546 Court, the transferor Court loses all jurisdiction over the case.”

This same sentence was in the first edition of the treatise in 1963 and, of course, does not explicitly preclude loss by the transfer- or court of jurisdiction over a civil action at some earlier time. Moreover, the third edition (in 1976) has this footnote to the sentence, citing as authority the Supreme Court decision in Koehring (emphasis supplied):

“But the transferee court may acquire jurisdiction before the papers have physically reached it.”

It is concluded that failure by the Clerk in Phoenix to transmit the papers to the Clerk in San Diego did not prevent transfer of jurisdiction over this indictment to the District Court for the Southern District of California. Evidently, the judges in the District of Arizona believed that the transfer of jurisdiction had been completed, else they would not have secured designations to sit in San Diego and would not have conducted the trials there.

The situation after an order of transfer is summed up by American Jurisprudence 2d, under “Criminal Law” and under “Transfer of Causes in Federal Courts”, in the following statement (21 Am.Jur.2d, 440):

On transferring a cause, the court in which the action was originally commenced loses jurisdiction, and the court to which the proceeding is transferred has and exercises over the matter the same jurisdiction as if it had been originally commenced in the district.

7.

The authority and justification for holding the trial in San Diego is entirely that the proceeding had been transferred from the jurisdiction of the District Court for the District of Arizona to the jurisdiction of the District Court for the Southern District of California.

The District Court for the District of Arizona cannot hold court and conduct trials in San Diego but only within the District of Arizona at four places therein. The command of Congress is explicit: “Arizona constitutes one judicial district. Court shall be held at Globe, Phoenix, Prescott and Tucson”. ( 28 U.S.C. § 82 ). In creating the district courts, Congress provided ( 28 U.S.C. § 132 ): “There shall be in each judicial district a district court . . . ” and “the judicial power of a district court . may be exercised by a single judge . . ”. This last provision should be noticed; it is fundamental that a district judge has no judicial power individually; his judicial power is exercised as the representative of a court. “[Jjurisdiction is lodged in a court, not in a person. The judge, exercising the jurisdiction, acts for the court”. In re Brown, 346 F.2d 903, 910 (5th Cir. 1965), quoted with approval in United States v. Teresi, 484 F.2d 894, 898 (7th Cir. 1973). That district courts may act only within their respective districts seems self-evident and has been assumed since the Judiciary Act of 1789. Congress, however, has not hesitated to make it emphatic. For example, Congress has provided for the times of regular sessions of the district court “for transacting judicial business at the places fixed by this chapter” ( 28 U.S.C. § 139 ) (emphasis supplied), for adjournment of any regular session “by order made anywhere within its district" ( 28 U.S.C. § 140 ) (emphasis supplied), and for special sessions of the court “at such places in the district as the nature of the business may require” ( 28 U.S.C. § 141 ) (emphasis supplied). The Supreme Court has said: “District Courts are solely the creation of statute, and the place in which a judge thereof may exercise jurisdiction is subject absolutely to the control of Congress”. McDowell v. United States, 159 U.S. 596, 598-9 , 16 S.Ct. 111, 111-112 , 40 L.Ed. 271 (1895)

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 Copple and Judge Craig were acting as representatives of that Court and their authority so to act derived from their designation by Chief. Judge Browning under 28 U.S.C. § 292 (b) to hold “a district court in the Southern District of California”. It seems self-evident *547 that the court they held in San Diego, and the only court they could have held there, was the United States District Court for the Southern District of California. It was not, and could not have been, the United States District Court for the District of Arizona. It is true that the stenographic transcript of the second trial is captioned in the District of Arizona, that the jury verdict forms are similarly so captioned, and that all other papers incident to the trial are so captioned. They were all filed in the District Court for the District of Arizona; nothing was filed in the District Court for the Southern District of California. These were all' errors, in my view, and as the Government now seems to concede (Supplemental Brief, p. 9). But these errors do not affect the reality: the trial was in the District Court for the Southern District of California, such court had jurisdiction of the indictment, before a judge properly designated to act as representative of that court, before a jury properly summoned and selected in that court, and at a place within the district of that court. The Government recognizes this reality (Supplemental Brief, p. 9): “The verdicts in the second case were received in the District Court for the Southern District of California . . .

8.

The trial in the Southern District of California was not concluded by the return of the jury verdict. “A criminal trial is concluded by the judgment of sentence entered upon a plea or a verdict of guilt”. Frad v. Kelly, 302 U.S. 312, 317 , 58 S.Ct. 188, 191 , 82 L.Ed. 282 (1937). The appropriate course of the proceedings, after receipt of the jury verdict, would have been (as I see it) for Judge Craig to have finished the trial to judgment in the Southern District of California. Having been substituted for Judge Copple under Rule 25(a), it would be expected that the substitute judge would “finish the trial”, to use the words of Rule 25(a). According to Rule 25(b), there could be a further substitution after verdict if there was some “disability” on the part of Judge Craig, but no such “disability” is made to appear.

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 the judgments of conviction been in the name of the District Court for the Southern District of California and filed with and entered by the Clerk of that Court, a different problem would be presented at this stage of the matter. But that was not to be 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 judgments from which these appeals are taken.

9.

The majority treats the problem here as entirely one of venue and invokes the established principle (fully accepted by me) that a venue defect in a criminal proceeding (as in a civil action) may be waived by a defendant. The problem at bar, however, is not whether a proceeding, pending in a court where the venue was wrong, could nevertheless properly proceed to judgment in that court on the basis of a waiver by defendants of their right to object to the improper venue. The problem at bar is whether, after May 2, 1977, the District Court for the District of Arizona had any authority over the specific indictment against Roberts and Robison. That specific indictment, having been transferred to the Southern District of California, was no longer pending in the District of Arizona at the time of sentence. The judgments on appeal were null and void because the indictment on which they were based was not *548 pending in the court which made the judgments. There certainly must be an indictment pending in the Court before the Court is authorized to act on it. Such is not only clear on the face of things but is spelled out by the plain provision in Rule 7(a) of the Criminal Rules that the offenses charged against Roberts and Robison, as with all felony offenses, “shall be prosecuted by indictment.”

The difference between the problem as seen by the majority and the problem as I see it may be illustrated by contrasting United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974), with United States v. Macklin, 523 F.2d 193 (2d Cir. 1975).

Powell was indicted in the Southern District of California for transporting illegal aliens in violation of 8 U.S.C. § 1324 (a)(2). The Sixth Amendment and Criminal Rule 18 require that prosecution of an offense be in the district where the offense was committed. No objection to venue was raised by Powell until after the jury’s verdict of guilty. Then on appeal he urged that venue in the Southern District of California had not been established, pointing out that his vehicle had been stopped and the illegal aliens discovered in the Central District of California. This Court affirmed the conviction, stating, among other things: “We note at the outset that venue, since it may be waived, is not an essential fact constituting the offense charged.” ( 498 F.2d at 891 .) I agree entirely with the statement and with the decision. The point of significance in Powell for our purpose is that a valid indictment against Powell was returned in, and at all relevant times was pending in, the District Court for the Southern District of California.

Macklin was indicted in the Eastern District of New York for numerous false federally insured mortgage applications ( 18 U.S.C. § 1010 ). As part of a plea bargain, Macklin entered a plea of guilty to two counts. Thereafter, it was determined that the term of the grand jury which returned the indictment had been improperly extended and that Macklin had been indicted by the grand jury after its term had expired. Macklin then moved to withdraw his guilty plea and to dismiss the indictment. The motions were granted. The Government appealed. . The order was affirmed. The Second Circuit first recognized that it was “surely anomalous that a man who has admitted his guilt should be permitted to challenge the indictment to which he has pleaded guilty” ( 523 F.2d at 195 ). The result was required, however, because the indictment was a “nullity” and “that the indictment is a nullity necessarily implies that the court was without jurisdiction to hear the case” ( 523 F.2d at 196 ). The Second Circuit concluded ( 523 F.2d at 196 ): “The absence of an indictment is a jurisdictional defect which deprives the court of its power to act. Such a jurisdictional defect cannot be waived by a defendant, even by a plea of guilty”. The point of significance in Macklin for our purpose is that no valid indictment of Macklin was at any time pending in the Eastern District of New York and the District Court was thereby deprived of its power to act.

At the time of sentence and judgment in the case at bar, no proceeding was pending in the District of Arizona against the defendants and thus there was no proceeding in that Court in which the defendants could waive any of their rights, venue or otherwise. There was nothing over which the District Court for the District of Arizona could exercise the jurisdiction admittedly conferred by Congress on all District Courts.

The Supreme Court many years ago, in Ex parte Bain, 121 U.S. 1 , 7 S.Ct. 781 , 30 L.Ed. 849 (1887), used language peculiarly apt for the case at bar. Bain was indicted for a federal offense by a grand jury in the then Circuit Court for the Eastern District of Virginia. Thereafter, on motion of the Government, the Court amended the indictment by striking six words from it. Bain was tried, convicted and sentenced. An original petition for habeas corpus was made to the Supreme Court. Whether the petition could be granted depended entirely on whether the Circuit Court “had no jurisdiction to render the judgment which it *549 gave” ( 121 U.S. at 3 , 7 S.Ct. at 782 ). The Supreme Court first considered the power of the Circuit Court to amend the indictment and found that there was none. The Supreme Court determined that amendment of the indictment “deprived the court of the power of proceeding to try the petitioner and sentence him . . . ” because “the indictment on which he was tried was no indictment of a grand jury”. ( 121 U.S. at 13 , 7 S.Ct. at 787 .) The Supreme Court then explained why this determination was required in words which to me seem equally to fit the case at bar. The indictment as returned in Bain was no longer pending in the court of its return because it had been changed by amendment and was “no longer the indictment of the grand jury who presented it” ( 121 U.S. at 13 , 7 S.Ct. at 787 ). The indictment in the case at bar was no longer pending in the court of its return because it had been transferred to the Southern District of California. The Supreme Court said ( 121 U.S. at 13-14 , 7 S.Ct. at 788 ):

It is of no avail, under such circumstances, to say that the court still has jurisdiction of the person and of the crime; for, though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, in the language of the Constitution, can be “held to answer,” he is then entitled to be discharged so far as the offense originally presented to the court by the indictment is concerned. The power of the court to proceed to try the prisoner is as much arrested as if the indictment had been dismissed or a nolle prosequi had been entered. There was nothing before the court on which it could hear evidence or pronounce sentence.

10.

I realize full well that (with the minor exception noted in the case of Robison) the defendants did not object to anything that was done. Nor can they show prejudice to them by anything that was done. But neither failure of the defendants to object, nor their consent, nor absence of prejudice to them is relevant on the issue of jurisdiction. This settled principle was well put in an old and unanimous opinion of the Supreme Court (Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 , 4 S.Ct. 510, 511 , 28 L.Ed. 462 (1884)):

It is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it; and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. This rule was adopted in Capron v. Van Noorden, 2 Cranch, 126 , [ 2 L.Ed. 229 ,] decided in 1804, where a judgment was reversed, on the application of the party against whom it had been rendered in the Circuit Court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which he had invoked.

11.

The defendants have been tried and convicted in a court having jurisdiction of the proceeding against them. I can see no rea *550 son why they cannot be properly sentenced by that Court, the District Court for the Southern District of California, why appeals could not be taken to this Court from the judgments of conviction entered in the District Court for the Southern District of California, and why this Court could not then, on those appeals, reach the merits. It is fair to assume that the District Court for the District of Arizona, if advised that this Court believed it should be done, would cause all papers to be transmitted promptly to the District Court for the Southern District of California; otherwise, of course, a writ of mandamus could issue.

It may be objected that the result reached by my analysis is unnecessary and time consuming. I believe that it is necessary, although, admittedly, it does consume some time. But even if it were not essential to proceed as I would have this Court do, I believe it better that the Rules of Criminal Procedure be followed than that a precedent be established which may create confusion, uncertainty, and delay in the administration of federal criminal law.

I would reverse for want of jurisdiction the judgments of conviction of the United States District Court for the District of Arizona, and would issue a writ of mandamus under 28 U.S.C. § 1651 directing the United States District Court for the District of Arizona to vacate the judgments of conviction and to cause its Clerk forthwith to transmit all papers in the proceeding (or duplicates thereof) to the Clerk of the United States District Court for the Southern District of California, all without prejudice to the resentencing of the appellants in the United States District Court for the Southern District of California and to appeals to this Court from the judgments to be entered thereon.