Memorandum — Winters v. Bohanon

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Iu the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-673

LEO WINTERS, PETITIONER

Vv.

LUTHER BOHANON, JUDGE, UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF OKLAHOMA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

The principal issue presented by this petition is

whether a district court judge can vacate an oral

order transferring venue, before there has been any

action by the parties thereon, in order to hear argument

and reconsider the necessity for such change of venue.

Petitioner and others are defendants in two cases

pending in the United States District Court for the

Western District of Oklahoma. In one of those cases,

petitioner and three co-defendants are accused of con-

spiring to violate 18 U.S.C. 1341 (mail fraud) and

18 U.S.C. 1951 (Hobbs Anti-Racketeering Act). In the

other case, petitioner and eleven co-defendants are

accused of conspiring to violate 18 U.S.C. 656 (mis-

application of bank funds).

(1)

2

On Friday, June 8, 1973, petitioner and fourteen

co-defendants were arraigned on the two cases. At that

time counsel for petitioner orally moved for a change

of venue due to pretrial publicity (Arraignment tran-

script 19-22).! The United States Attorney requested

five days’ time to respond to petitioner’s motion and

pointed out that the local rules of procedure required

such a motion to be in writing and supported by a

brief. Judge Bohanon “waived” the requirement for

filing a brief and immediately granted the motion.?

He indicated that he was transferring both cases and

all defendants to the Eastern District of Oklahoma,

that he would file an order to that effect the following

week, and that any and all motions should be filed in

the Eastern District of Oklahoma (Arraignment tran-

script 21-22).

The following Monday (June 11, 1973), Judge Boha-

non entered a written order in which he stated (Pet.

App. C.):

Upon reconsideration, the Court is of the opinion

that its oral Order of June 8, 1973, should be

vacated ** * and that the defendants should be

granted until June 18, 1973, in which to file a

written Motion as to venue, together with brief;

'None of petitioner’s co-defendants had moved for a change of

venue, nor did any of them at that time join in the motion

for change of venue.

*In waiving the requirement for filing a brief, Judge Bohanon

stated:

The Court is familiar with all of the newspaper stories. The

Court is familiar with all of the complications in this case,

and I am convinced that the Defendant cannot get a fair

and impartial trial in this District. [Arraignment transcript

21.)

3

the plaintiff is allowed until June 25, in which to

file written response and brief. The Court will

thereafter set the matter for hearing and dis-

position * * *.,

On June 13, 1973, petitioner, without objecting to

Judge Bohanon’s order of June 11, filed a written

‘ motion for change of venue in compliance with said

order. Subsequently, two other co-defendants also

filed motions for change of venue (docket sheet).

On July 2, Judge Brown of the United States District

Court for Kansas was assigned to the Western District

of Oklahoma. Judge Bohanon then transferred the

two cases here involved to him (Petitioner’s Exhibits

5 and 6 in record on appeal).

On July 19, 1973, Judge Brown set all pending

motions for hearing on July 26, 1973. On July 24,

petitioner asked the Court of Appeals for the Tenth

Circuit to rule that the oral order of June 8, 1973, had

divested the Western District of Oklahoma of juris-

diction and cast venue in the Eastern District. The

court of appeals dismissed petitioner’s claim as

“wholly without merit” (Pet. App. A1).3 Moreover,

“[iJn the alternative,” the court of appeals held that

if, in fact, the district court had lost jurisdiction to

vacate its order, it was exercising its supervisory powers

to reassign and transfer the case back to the Western

Distirct of Oklahoma. The court of appeals further

held (Pet. App. A2):

The denial of relief herein is without prejudice

to the right of the trial court to whom the cases

‘A hearing on the merits was held on October 24, 1973. At

that time Judge Brown denied the motion for a change of

venue, with leave to renew after voir dire.

a

4

are assigned to consider the motions for a change

of venue or any further motions for change of

venue which may be filed together with any and all

motions filed on behalf of the Defendants consistent

with the dispositions of the motions for change of

venue.

Petitioner contends that the trial court, having orally

granted a change of venue motion, cannot vacate that

order the next court day. Petitioner is, in effect,

asking this Court to hold that a trial judge, having

decided that a ruling he made was incorrect, cannot

vacate that ruling even though there has been no

detrimental reliance thereon—that, in the context of this

case, once the oral order was made, venue was

immediately and irrevocably taken from the Western

District of Oklahoma and deposited with the Eastern

District. There is no merit to this claim.

Judge Bohanon’s original ruling was clearly incorrect

for several reasons. First, it would have deprived peti-

tioner’s co-defendants of their constitutional right to a

trial in the “district wherein the crime [was] com-

mitted” (Amendment VI, U.S. Constitution). By ordering

a transfer as to the non-moving defendants, it also

would have violated Rule 21(a) of the Federal Rules of

Criminal Procedure, which states that <{t]he court

upon motion of the defendant shall transfer the pro-

ceeding as to him to another district * * *” (em-

phasis added). Finally, the ruling was clearly contrary

to local Rule 13(e), which specifies that a motion

pursuant to Fed. R. Crim. P. 21 shall be in writing and

supported by a brief.4

*Rule 13(e) of the Rules of the United States District Court for

the Western District of Oklahoma provides:

(e) Motions in Criminal Cases. Motions in criminal cases,

and particularly motions made pursuant to Rule 7(f), 12, 16,

5

Having realized his error, Judge Bohanon certainly had

the right to correct it, acting as he did before he had

even entered a formal order and before any party had

time to rely detrimentally thereon and before the case

was actually transferred to the Eastern District of

Oklahoma. As Judge Learned Hand stated in an analogous

situation: “The order [to transfer the action to

another district as the more convenient forum] did not

affect automatically to transfer the cause; the trans-

mittal of the papers was to be the symbolic act of

transfer; and the case was still in the district

court * * *” Magnetic Engineering and Mfg. Co. v.

Dings Mfg. Co., 178 F. 2d 866, 868 (C.A. 2). See also

In re Southwestern Mobile Homes, Inc., 317 F. 2d 65

(C.A. 5); Fischer v. United Airlines, Inc., 218 F.

Supp. 223 (S.D.N.Y.)°

21 and 41(e), Federal Rules of Criminal Procedure, shall be

in writing and state with particularity the grounds therefor

and the relief or order sought. All such motions shall be

filed with the Clerk within ten days after arraignment, and a

copy served upon the United States Attorney unless a different

time is fixed by statute or the Federal Rules of Criminal

Procedure. All motions must be accompanied by a concise

brief citing all authorities upon which the movant relies.

The Court may, however, in its discretion, allow such motions

to be made at a time later than that fixed by this Rule.

SThere is no merit to petitioner’s claim (Pet. 7) that there is

a conflict among the courts of appeals. The case upon which peti-

tioner relies, United States v. Marcello, 280 F. Supp. 510 (E.D.La.),

affirmed, 423 F. 2d 993 (C.A. 5), certiorari denied, 398 U.S. 959,

is inapposite. That case does not hold, as petitioner intimates,

that a district court cannot vacate an order transferring venue

once a finding of prejudice is made. On the contrary, the district

court held that a request by the defendant to vacate an order

granting a change of venue (which he had requested) is a matter

within the court’s discretion. In affirming, the Court of Appeals

for the Fifth Circuit reiterated that the trial court “clearly has the

power to vacate at Defendant’s request an order granting a

change of venue. Whether or not he should do so is left to

his sound discretion” (423 F. 2d at 1005).

6

Although authority on this rather obscure point is

slight, it is clear that a court generally has the

authority to correct an erroneous ruling before any

party has been prejudiced thereby. Cf. Bozza v.

United States, 330 U.S. 160. Here, petitioner has not

been prejudiced in any way by the judge’s action in

vacating his order on the next working day following

its issuance.

Moreover, even if the district court lacked the power

to vacate its original order, h¢re the court of appeals

expressly ordered in the alternative (to its denial of

the application for a writ of mandamus) that the case

be reassigned and transferred to the Western District

of Oklahoma, albeit without prejudice to consideration

of petitioner’s motion for a change of venue in the

orderly manner prescribed by the applicable procedural

rules. Such action was clearly within the supervisory

powers of the court of appeals (United States v.

Dooling, 406 F. 2d 192 (C.A. 2), certiorari denied

sub nom. Persico v. United States, 395 U.S. 911),

and petitioner does not argue to the contrary. His

argument is that it was improper for the court of

appeals to do so here in the face of the so-called

“finding” of the district court that petitioner could

not get a fair trial in the Western District of

Oklahoma. This claim ignores the facts (1) that there

is nothing in the record to support such a “finding”

and (2) that neither the district court (in vacating

the original order) nor the court of appeals purported

to rule on the merits of petitioner’s claim. The

holding of both courts was simply that the motion be

presented and decided in an orderly manner.

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

RoBerT H. Bork,

Solicitor General.

JANUARY 1974.