Petition for Writ of Certiorari — MacDonald v. United States

Supreme Court brief1975

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TABLE OF CONTENTS

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Quaetsom PRRSBWTED ....600cccccccccceccccesccces 2

Statutory Provisions INVOLVED ..........2eeeeeeees 2

ConsTITUTIONAL Provisions INVOLVED ........-...++- 3

POI GE IE MH Sacvcncccataccvsivescuncenaces 3

HisToRY OF THE PROCREDINGS ........0cecccescccess 7

A. Evidence Presented to the District Court ..... 8

B. Opinion of the District Court ................. 11

Reasons For GRANTING THE WRIT ..............0005: 17

I. An Order Denying a Motion for Change of

Venue, in the Face of Uncontroverted Evidence

that Such a Denial Will Utterly Bankrupt the

Petitioner and Deprive Him of Effective Assist-

ance of Counsel, Should be Reviewable by Man-

damus Under 28 U.S.C. § 1651 ................ 17

II. An Order Denying a Motion For a Change of

Venue, Ignoring the Uncontroverted Evidence

that Such a Denial Will Utterly Bankrupt the

Petitioner and Deprive Him of Effective Assist-

ance of Counsel, Is an Abuse of Discretion Re-

quiring the Issuance of the Extraordinary Writ

ie, SEN s R5N'6 O46 Van ON KS 404006 Gipene bas 31

CE: nn kiniancenckiskie aakcdhvwoececdks es 50

APPENDICES:

Appendix A

Order of the Fourth Cireuit Court .............. la

Appendix B

Order on Motion to Transfer ................. - 8a

Table of Contents Continued

Page

Appendix C

Financial Statement of Petitioner .............. lla

Appendix D

Comparative Cost of Trial Statement of Peti-

GE ca ca vis ieee reenssscesasccsincccnececsce 13a

Appendix E

Affidavit of Petitioner Sur Costs Incurred in Con-

nection With Hearings on Pre-Trial Motions .... 15a

TABLE OF CITATIONS

Cases:

A. Olnick @ Sons v. Dempster Bros., Inc., 365 F.2d 439

Rl EE hada c on eneun ede bhabus etncicdos ae 25

Commissioner v. Tellier, 383 U.S. 687 (1966) ........ 35...

Gulf Oil v. Gilbert, 330 U.S. 501 (1947) .............. 45

Hartley Penn Co. v. United States District Court, 287

ee CIS MOPED neki dc cccsbesttecececass 29

Hyde v Shine, 199 U.S. 62 (1905) .................. 26

Johnston v. United States, 351 U.S. 215 (1956) ...... 27

Kerr v. United States District Court, 511 F.2d 192 (9th

SS Me sic bo kaa CaN a es Ui hak Sew aus va ci eves 29

Miller v. Connally, 354 F.2d 206 (5th Cir. 1965) ...... 25

Minnesota Mining and Manufacturing v. Platt, 314 F.2d

ee Se ED kk} Wane bicawi sacs sasekeas 25, 35

Minnesota Mining and Manufacturing v. Platt, 345 F.2d

yo 8 Se) SR coer ee 25, 32

Munoz v. Hauk, 439 F.2d 1176 (9th Cir. 1971) ........ 13

Platt v. Minnesota Mining and Manufacturing, 376 U.S.

PEE scan wba veed cd resdiaeands 21, 22, 25, 30, 31

Platt v. Minnesota Mining and Manufacturing, 382 U.S.

MP RUEED i Sb cildubcdukac cbs kaw caddesseipeiees

United Sates v. Cores, 356 U.S. 405 (1958) .......... 27

United States v. Foster, 296 F.2d 249 (4th Cir. 1961) .. 25

United States v. Garber, 413 F.2d 234 (2nd Cir.

BEE. eanbatad buekanbeuben cc keudh ca snsmhuaves

Table of Citations Continued iii

Page

United States v. Luros, 243 F.Supp. 160 (D.C. Iowa ~

ee Me EE eI ee

United States v. Marion, 404 U.S. 307 > Se 18

United States v. United States Steel Corp., 233 F.Supp.

I I I fe

United States v. Wolfson, 269 F.Supp. 621 (S.D.N.Y.

og Oe ONOesER65600cbccesnctncces 21

STaTuTEs AND FeperaLt Rvuues or

Crrminau Procepure:

Oy ET Shad iD cu ehike 4044 <<hcaoe cccecgnn 3, 24

Me NEE MEN OGKS es Gnd vos Exe uac oc deknei ks 2

LE aba e i hers h Poet noua ba cheeen decks 23

Fed. Rules Cr. Proc. Rule | RE PET, eWse 24

Fed. Rules Cr. Proc. Rule MEE 4a wakarkee 20, 21, 23, 27, 28

AUTHORITIES:

Administrative Office of the United States Courts, An-

nual Report to the Director, 1974, pp. A-56, 57; LX-

108: amended portion, pp. A-56, 57; TX-108 ...... 40

Comment, Multi-Venue and the Obscenity Statutes,

115 U.Pa.L.R. 899 (1967) 2.0... cece ceccccccne, 20

Federal Aviation Agency Statistical Handbook of Avi-

ation Calendar Year 1974 ...........00.00.5.... 42

Wright, Federal Practice and Procedure (Criminal)

RO REMOOD Wena ea Catekaiaecucuitereina 4s.

Pek ee EY et a Cate Y

IN THE

Supreme Court of the United States

OcrToBER TERM, 1975

No. 75-

In Re Jerrrey R. MacDonap, Petitioner

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner, Dr. Jeffrey R. MacDonald, re-

spectfully prays that a Writ of Certiorari issue to the

United States Court of Appeals for the Fourth Circuit

to review the denial of Petitioner’s Petition for a Writ

to compel the District Court for the Eastern District of

North Carolina to Transfer his case to the Central

District of California under Federal Rule of Criminal

Procedure 21(b).

The Order denying the motion to transfer was made

and entered on May 30, 1975. The Petition for Writ

of Mandamus was filed on July 10, 1975. The Fourth

Circuit Court of Appeals denied the petition on July

15, 1975.

OPINION BELOW

The Order of the Fourth Circuit Court of Appeals

appears as Appendix A hereto. The Order on Motion

to Transfer, made and entered by Judge Franklin T.

Dupree, Jr., in the District Court for the Eastern Dis-

trict of North Carolina, appears as Appendix B.

JURISDICTION

The denial of Petitioner’s Mandamus petition was

entered on July 15, 1975. This petition has been filed

within 30 days thereof. This Court’s jurisdiction is in-

voked pursuant to 28 U.S.C. § 1254.

QUESTION PRESENTED

Is the Writ of M.‘xmus an available remedy to a

defendant in a criminal case whose motion for a change

of venue because of hardship has been denied by a Dis-

trict Court which failed to apply the criteria approved

by this Court and the result of which will be Peti-

tioner’s bankruptcy and other substantial prejudices

from which there is no post-trial relief?

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1651:

(a) The Suprenie Court and all courts estab-

lished by Act of Congress may issue all writs neces-

sary or appropriate in aid of their respective juris-

dictions and agreeable to the usages and principles of

law.

(b) An alternative writ or rule nisi may be

issued by a justice of a court which has jurisdiction.

Federal Rule of Criminal Procedure 21(b):

(a) Transfer in other cases. For the conveni-

ence of parties and witnesses, and in the interest of

justice, the court upon motion of the Defendant may

transfer the proceedings as to him or any one or more

of the counts thereof to another district.

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision involved is the Fifth

Amendment, providing in part that ‘“No person shall

. .. be deprived of life, liberty or property without due

process of law... .’’

HISTORY OF THE CASE

In 1970, the Petitioner, Dr. J effrey R. MacDonald,

a medical doctor, was serving in the United States

Army, attached to a Green Beret unit at Fort Bragg,

North Carolina. On February 17, 1970, a group of

intruders broke into the MacDonald home, stabbed

and beat the Petitioner into unconsciousness, and

murdered his wife, Colette, and his two daughters,

Kristen (age 3) and Kimberly (age 6). Petitioner re-

ceived a life-threatening wound and was hospitalized

for his injuries.

Failing to locate any viable suspects for the crime,

Army investigators caused the Petitioner to be ar-

rested and charged on May 1, 1970. Since the nature

of the charges required trial by general court-martial,

Petitioner’s commanding officer ordered the conven-

ing of formal proceedings under Article 32 of the

Uniform Code of Military Justice (10 U.S.C. § 832).

The Article 32 officer, an infantry colonel with thirty

years service and substantial court-martial experience,

conducted the Article 32 judicial proceedings over a

period of five months, including four full weeks of

court proceedings.

EEE

The Petitioner and the Government were repre-

sented throughout by counsel. Chief counsel for the

Petitioner throughout the military proceedings was

Bernard L. Segal, Esq., who was at that time a partner

in the Philadelphia law firm of Segal, Appel and

Natali.

During the Article 32 proceedings, the Government

was directed to and did in fact present all the evidence

known to it. The Petitioner presented a full defense

on the charges and himself testified under oath at

length and was subjected to cross-examination. During

the course of the proceedings substantial evidence was

presented which was gathered by psychiatric experts

both for the Government and for the Petitioner. Ex-

perts for both sides agreed that the Petitioner was

‘‘not hiding any evidence’’ regarding the night his

family was murdered. There was also psychiatric tes-

timony that Petitioner was ‘‘incapable’’ of commit-

ting the crimes with which he was charged.

Following the conclusion of these judicial proceed-

ings, the Article 32 officer, Colonel Warren Rock, sub-

mitted a 90-page report in which he recommended

the dismissal of the charges against the Petitioner

because they were ‘“‘not true’, and further recom-

mended the investigation of a particular woman, who

was identified at the Article 32 investigation because

of her possible complicity in the murders. Acting on

the recommendation of the Article 32 judicial officer,

the officer who had convened those proceedings, Major

General Edward Flanagan, dismissed the charges

against the Petitioner on October 28, 1970. In Decem-

ber, 1970, the Petitioner was honorably discharged

from the Army on hardship grounds and began to re-

build his life after the dual tragedy of the brutal loss

of his family and the false accusation of complicity

in their deaths.

Approximately six months after his discharge from

the Army, the Petitioner moved to Los Angeles Cali-

fornia, where he established his permanent residence.

Petitioner is still living in the Los Angeles area where

he is Director of Emergency Medicine at a major

hospital there.

In 1972, Petitioner’s chief counsel, Bernard L.

Segal, retired from the active practice of law and

joined the faculty of Golden Gate University School

of Law in San Francisco, California. Concurrently,

Professor Segal moved his family and took up per-

manent residence in the San Francisco Bay area.

From January, 1971, to J anuary, 1972, the Criminal

Investigation Division (CID) of the United States

Army conducted what it has represented was a com-

plete, extensive and thorough reinvestigation of the

murders of the MacDonald family.

In early 1972, the CID requested the United States

Department of Justice to seek an indictment of the

Petitioner for the murders of his family.

The Department of Justice refused to do so and

took no other substantive action on the requests for

the indictment of the Petitioner because no evidence

existed to support such a charge.

Sometime after June 1972, however, Alfred Kas-

sab, the step-father of Petitioner’s deceased wife, who

had been a staunch supporter of Petitioner at the

Article 32 proceedings, and who testified in his behalf

in the strongest possible terms in 1970, inexplicably

PRIA TREO LIAS hye ae ART ig GN sal eg fn Pag LL Git era Scr tec ae en

turned against the Petitioner. Kassab began demand-

ing that the Department of Justice prosecute Peti-

tioner. He held press conferences concerning his de-

mands and stated publicly that both the Army and

the Justice Department had been incompetent in their

investigation and prosecution of Petitioner. Kassab

repeatedly and persistently threatened the Depart-

ment of Justice with adverse publicity, Congressional

intervention and legal action, should it fail to prose-

cute Petitioner.

In an attempt to forestall Kassab’s criticisms of

the Department of Justice, Carl Belcher, Chief of the

General Crimes Section of the Department wrote

Kassab on January 10, 1974 and stated:

‘* .. the evidence currently available in this case

is insufficient to warrant prosecution against Dr.

MacDonald at this time.’’

On March 10, 1974, the New York Times reported

that the Department of Justice was still of the posi-

tion that there was no basis to prosecute the Petitioner.

Having been informed of the Department’s de-

cision not to present evidence against Petitioner to a

grand jury, Kassab then undertook to foree the De-

partment to reconsider its decision. He did this by

publicly accusing the Department of a ‘‘cover-up’’,

and by signing ‘‘charges’’ of murder against the Pe-

titioner. These ‘‘charges’’ were delivered personally

by Kassab to the Chief Judge, United States District

Court for the Eastern District of North Carolina in

April, 1974. All of this was accompanied by news-

paper publicity generated by Kassab. In response to

Kassab’s ‘‘charges’’, Chief Judge Butler addressed a

letter to the Justice Department requesting comments

and asking what action the Department would take on

the ‘‘charges’’.

Shortly after Judge Butler forwarded the

‘charges’? which contained no new evidence against

the Petitioner, the Department of Justice determined

that a special grand jury would be convened with a

view to prosecuting the Petitioner. While the Grand

Jury was styled an investigative grand jury, the Peti-

tioner was the only person who was presented to it as

a suspect.

This decision of the Department of Justice to con-

vene a special grand jury for the purpose of indicting

the Petitioner represented a reversal of the position

the Department had held for three years. It was re-

versed after the filing of the Kassab “‘charges’’, al-

though they contained no new evidence.

The Department of Justice officials would not stand

by their decision that prosecution of Petitioner was

unwarranted, because of their bureaucratic fear that

charges of ‘‘cover-up”’ would be made against them.

They further feared that, in the post-Watergate era,

such accusations would jeopardize their personal job

security.

HISTORY OF THE PROCEEDINGS

On January 24, 1975, the Grand J ury returned an

indictment against the Petitioner. Petitioner filed a

number of pretrial motions, including a motion for

transfer under Federal Rule of Criminal Procedure

21(b) on the grounds of convenience and in the in-

terest of justice. That motion sought to have the trial

of Petitioner’s case transferred from the Eastern

District of North Carolina, where the indictment was

brought, to his home district, the Central District of

California.

A. Evidence Presented to the District Court

Lengthy evidentiary hearings were conducted on the

motion to transfer. The only evidence presented, how-

ever, was by the Petitioner. The Government only

offered written argument. The facts which were estab-

lished, without rebuttal, are as follows:

1. That Petitioner is a young doctor, a middle-

class proféssional person, without any income other

than what he earns as the Director of Emergency

Medicine in a hospital in the Los Angeles area. The

record also shows that he does not have unusual

assets."

2. That Petitioner’s defense will cost him no less

than $150,000 and as much as $300,000’ if trial is held

in California.

3. If the trial of the Petitioner’s case is not trans-

ferred and instead remains in the Eastern District of

North Carolina, the cost of Petitioner’s defense will

be doubled, amounting to between $300,000 and

$600,000.*

1The Petitioner’s financial statement, submitted under oath as

an exhibit to the District Court, is appended as Appendix C hereto.

?The Petitioner’s defense in the military proceedings, which .

were considerably shorter and less complicated than will be his

defense to the present indictment, cost the Petitioner, his family

and friends, $50,000. At that time he also received considerable

free assistance at the Army’s expense, which is not available to him

now. An anticipated budget for Petitioner’s defense was submitted,

under oath, to the District Court and is appended hereto as

Appendix D. This appendix represents the proposed costs for one

month of pre-trial preparation and one month of trial.

8 See Appendix D for comparative figures.

4. The Petitioner has been offered an extraordi-

nary range of free services, legal and secretarial help,

office space and supplies by friends and supporters in

the Los Angeles area. Evidence of the above was sub-

mitted by affidavit to the District Court. Petitioner

has no friends or supporters in North Carolina and

would have to pay for all of these services there.

5. The effect of doubling the cost of the Peti-

tioner’s defense will be to render him bankrupt.

6. The Petitioner will lose his only source of in-

come if he is compelled to stand trial in the Eastern

District of North Carolina. If the trial is held in Los

Angeles, the record in the District Court is undis-

puted that he will be able to continue to perform cer-

tain of his administrative duties and to earn a sig-

nificent portion of his income with which to maintain

his defense.‘

7. The refusal to transfer Petitioner’s case to

California will result in the loss to him of the prin-

cipal defense counsel who has continuously represented

him since the military proceedings were instituted in

1970. Professor Bernard L. Segal, Esq., has repre-

sented the Petitioner throughout his five-year effort

to be vindicated of these charges.

In 1972 Segal moved to California to become a Pro-

fessor of Law in San Francisco. Professor Segal will

be unable to represent the Petitioner if the trial, last-

ing three (3) months, is in the Eastern District of

North Carolina. However, Professor Segal will be able

to remain as Petitioner’s counsel if the trial is held

in California.

*These facts were supported by affidavit and testimony. Also

see the findings of fact by the District Court, set forth infra.

8. The loss of Professor Segal as counsel for the

Petitioner will result in an extraordinary delay of the

trial of the case. Petitioner will be required to retain

new counsel. The Government has represented to the

District Court that if one of its assistant counsel were

not able to remain in the case, it would take nine

(9) months for another assistant counsel to become

familiar with the case.

9. The trial of the case in California will not

represent a substantially greater inconvenience to the

witnesses than will trial in North Carolina. The Peti-

tioner intends to call 110 witnesses, exclusive of char-

acter witnesses who may number an additional 25

persons. The Government intends to call as many as

108 witnesses. Of the 218 fact witnesses for both sides,

only a small number now reside in the Eastern Dis-

trict of North Carolina. The great bulk of witnesses

in the case are Army personnel who have been trans-

ferred and have moved throughout the United States

and to seven foreign countries since 1970.

10. The trial of Petitioner’s case, if it remains in

the Eastern District of North Carolina, will be held

in Raleigh. The overwhelming majority of the wit-

nesses will have to be flown to the trial. Raleigh, North

Carolina, has grossly inadequate and inconvenient air-

line service. This is to be contrasted to the facts in

the record showing that Los Angeles, California, is one

of the most accessible cities in the United States.

11. The transfer of the case to the Central Dis-

trict of California will not delay the trial of the case.

All pretrial motions in the case are being heard and

decided by the District Court of the Eastern District

of North Carolina. The dockets in both the Eastern

District of North Carolina and the Central District

of California show that criminal cases in both districts

are being brought to trial in approximately 314 months

from arraignment. This is better than the national

average for all U.S. District Courts. As of July 1, 1975,

the Eastern District of North Carolina has only two

regular District Judges.

Though the evidence presented by Petitioner, as

described above, was uncontroverted on each of these

points, and despite the serious constitutional policies

involved, the District Judge denied the Petitioner’s

request for transfer. There was no evidence presented

by the Government that the transfer would cause any

substantial impediment to the prosecution of its case,

contrary to the extraordinary hardship it would place

on Petitioner.

B. Opinion of the District Court

In his opinion (Appendix B) the District Court

Judge made the following findings of fact which were

based upon the evidence presented to the court:

1. That the Petitioner moved tc the area of Los

Angeles, California, approximately six months after

his discharge from the Army and has resided there

for the past three and one half years.

2. That the Petitioner is employed as the Director

of Emergency Medical Services at Saint Mary’s Hos-

pital in Long Beach, California, which is also the Pe-

titioner’s place of residence. His residence and employ-

ment are both located in the Central District of Cali-

fornia.

3. That the Petitioner’s annual income is $60,000.

4. That the Petitioner could continue to perform

at least some of the duties incident to his present em-

ployment if the trial were held in the Central District

of California and, thereby, continue earning income.

5. That trial in the Eastern District of North

Carolina would be more expensive to the defendant in

lost income and personal expenses if held in the East-

ern District of North Carolina.

6. That a number of defendant’s character wit-

nesses (25) reside in the Central District of California.

7. That the murders occurred in the Eastern Dis-

trict of North Carolina.

8. That the documents and records likely to be

involved in the case are located in Raleigh, North Caro-

lina or Washington, D.C.

9. That Professor Bernard L. Segal, Esq., has been

Chief Counsel for the Petitioner for the entire pro-

ceedings in this case and Professor Segal now resides

in San Francisco, California, where he teaches law at

Golden Gate University School of Law.

The District Court judge made the following state-

ments in his opinion which either directly contradicted

the unrebutted evidence presented to the court or were

based upon facts and data not in evidence:

1. That a substantial number of possible witnesses

for the Government and the Petitioner are located in

the Eastern District of North Carolina. In fact, the

Government has alleged that only 38 of the 218 pros-

pective fact witnesses in the case reside in the Eastern

District of North Carolina. In addition to the 218

prospective fact witnesses for each side, the defense

anticipates calling 25 character witnesses, all of whom

reside in the Central District of California.

2. That Professor Segal would be unable to repre-

sent the Petitioner if the trial were held in the Central

District of California because of Local Rule 1.3. In

fact the District Court was presented with unrebutted

evidence from attorneys, in Professor Segal’s posi-

tion, who have been allowed to appear despite Local

Rule 1.3. Further, the attention of the District Court

was directed to the case of Munoz v. Hauk, 439 F.2d

1176 (9th Cir., 1971), cert.den.sub nom. Curtis v.

Munoz, 404 U.S. 1059 (1972), wherein Professor

Michael Tigar, Esq., a faculty member at a California

law school, admitted to practice in another state, was

denied the right to represent a defendant in a Federal

criminal case because of Local Rule 1.3. The rule was

held inapplicable in that case by the Ninth Circuit

Court of Appeals.

3. That it would be more convenient for Michael

J. Malley, Esq., associate counsel to Professor Segal,

to handle the trial of Petitioner in Raleigh than Los

Angeles. This conclusion totally ignores the evidence

that Malley, because of his inexperience in criminal

law and his close personal relationship with the Peti-

tioner cannot and will not assume the role of Chief

Counsel to replace Professor Segal. The statement

further ignores the plain evidence presented to the

court that, though more expensive, it is more conve-

nient to fly from Washington, D.C. to Los Angeles,

California than it is to fiy from Washington, D.C. to

Raleigh, North Carolina.°

5 The relative accessibility of Raleigh and Los Angeles to Wash-

ington, D.C. is discussed at length in footnote 41, infra.

4. That Raleigh, North Carolina is more acces-

sible than Los Angeles, California. The District Court

Judge made a finding that the air transportation fa-

cilities in Raleigh, North Carolina were compara-

ble to those of Los Angeles, which is one of the

most significant air terminals in the world. This find-

ing totally contradicts the facts. In a supplemental

memorandum filed with the District Court, Petitioner

established that official airline schedules show four

(4) pages of scheduled flights to Raleigh-Durham air-

port. It also shows thirty (30) pages of flights to the

airports for the Los Angeles metropolitan area.

5. That the per-judge caseload of the Central

District of California (221) is ‘‘considerably higher”’

than that of the Eastern District of North Carolina

(154). This conclusion was based upon 1974 when there

were three (3) District Court judges in the Eastern

District of North Carolina. However, on July 1, 1975,

Chief Judge Butler retired without replacement, re-

ducing the Eastern District of North Carolina to two

(2) judges. And, these two judges now have a per-judge

caseload of 231 cases, considerably higher than that

of the Central District of California.°

* By comparison, the Central District of California has 17 judge-

ships. This fact points up another factor ignored by the District

judge in his consideration of relative docket conditions: The in-

volvement of one of the two judges in the Eastern District of

North Carolina in the extended trial of this complex case will un-

necessarily and seriously disrupt the conduct of judicial business

in that district. The trial of this case in the Central District of

California will have little or no effect on the conduct of judicial

business in that district.

‘

6. That Petitioner’s estimate for the length of trial

is unrealistic.’ The Court may judge for itself the ap-

proximate length of a trial, where there has been

substantial pre-trial publicity spanning five years and

there will be at least 218 fact witnesses and 25 char-

acter witnesses called to testify at trial. The Article

32 proceedings in the Army consumed over four full

weeks of proceedings to hear slightly over 60 witnesses.

And, it should be noted that the military judicial pro-

ceedings were in session a full eight hours each day.

7. That Petitioner had not retained local counsel.

To the contrary, Mrs. Durant Williams Escott, Esq.,

of Charlotte, North Carolina, was retained by Peti-

tioner, and appeared at the evidentiary hearings on

this motion and additional pre-trial matters.®

Finally, the District Court judge gave grossly in-

adequate or no consideration whatsoever to these sig-

nificant aspects of the uncontroverted evidence in this

case:

1. Though the District Judge did consider ex-

pense to the Petitioner, he gave no weight whatsoever

to the uncontroverted showing that trial in the Eastern

District of North Carolina would result in Petitioner’s

personal bankruptcy.

* Though treated lightly by the District Court, the question of

the length of the trial is of critical importance to a proper evalua-

tion of Petitioner’s arguments. The difference between a one month

trial and a three month trial is vast for a person of Petitioner’s

means. He wil be deprived of all income throughout the trial and

must engage counsel for a lengthy trial. It is interesting to note

that the Government has consistently revised upward its estimate

of the length of trial of this case.

* Mrs. Escott was admitted by the District Court judge himself

for the purpose of serving as local counsel to the Petitioner.

2. The District Court judge not only erroneously

concluded that Professor Segal would not be able to

represent the Petitioner in the Central District of

California but also completely ignored the unrebutted

evidence that, under present conditions, Professor

Segal would be required to withdraw from the case if

trial were held in the Eastern District of North

Carolina.

3. The Petitioner has been offered free housing,

feeding and transportation for witnesses and substan-

tial free legal, secretarial and clerical services in the

Central District of California. He will have to pay for

all these services and facilities in the Eastern District

of California. The court’s comment that the facilities

of local counsel would be made available totally ig-

nores the fact that such services and costs would have

to be bought and paid for while they are (including

the services of local counsel) available for free to Peti-

tioner in Los Angeles,

4. This is the second time which defendant has

been required to vindicate himself of these charges.

In 1970, it cost the Petitioner $50,000 to defend him-

self. This was in addition to the numerous services

which were provided free by the Department of the

Army. This important and unique factor received no

consideration whatsoever from the district Court.

The Petitioner filed a Notice of Appeal from the

above order to the United States Court of Appeals for

the Fourth Circuit on June 2, 1975. On motion by the

Government the Court of Appeals dismissed the ap-

peal on July 1, 1975, as having been taken from a non-

appealable order. Petitioner has sought review of that

dismissal by Petition for a Writ of Certiorari to this

—

Court which was filed on July 31, 1975. (No. 75-173).

On July 10, 1975, Petitioner filed a Petition for a Writ

of Mandamus with the Court of Appeals for the

Fourth Circuit. The petition was denied on July 15,

1975 after summary consideration. Petitioner now

seeks review by this Court of the denial of his Petition

for a Writ of Mandamus by way of this Petition for

Writ of Certiorari, in order (1) to prevent denial of

Petitioner’s due process rights; and, (2) to assure

that, if Petitioner is required to go to trial on these

very serious charges, that it will take place without

needlessly forcing him into bankruptcy and with the

full assistance of and representation by his Chief -

Counsel of five years standing.

REASONS FOR GRANTING THE WRIT

I. AN ORDER DENYING A MOTION FOR CHANGE OF VENUE,

IN THE FACE OF UNCONTROVERTED EVIDENCE THAT

SUCH A DENIAL WILL UTTERLY BANKRUPT THE PETI-

TIONER AND DEPRIVE HIM OF EFFECTIVE ASSISTANCE OF

COUNSEL, SHOULD BE REVEWABLE BY MANDAMUS

UNDER 28 U.S.C. § 1651

The issue presented by the instant petition is one

of paramount importance to defendants in federal

criminal cases all over the nation. That issue is whether

a defendant, charged with a serious offense, which

will require a protracted trial in a District Court

distant from his home and job, and having only lim-

ited financial means with which to defend himself,

can obtain meaningful relief from the denial-of his

motion for a change of venue by a District Court

which refused to apply the applicable criteria in a

motion based upon hardship to such an extreme degree

as to amount to a denial of due process.

The facts of the instant case are illustrative of the

problem. Dr. Jeffrey MacDonald, the Petitioner,

moved for a transfer of his case from the Eastern

District of North Carolina to the Central District of

California, the district of his residence. Despite un-

rebutted proof that denial of the transfer motion

would cause the defendant extreme hardship, the Dis-

trict Court denied the motion. Seeking review of this

denial, the Petitioner appealed to the United States

Court of Appeals for the Fourth Circuit. When the

Court of Appeals dismissed the appeal as being from

a non-appealable order, Dr. MacDonald petitioned for

a writ of mandamus. The petition was filed on July

10, 1975 and was denied without hearing or argument

on July 15, 1975 upon summary consideration.

The present case dramatically illuminates the di-

lemma of an increasing number of defendants in

Federal criminal proceedings. The Government has

the dual advantage of choosing, within certain broad

guidelines of the statute of limitations and the various

venue statutes, both the time’ and the place of the

prosecution. The broad discretion invested in the

Federal prosecutor, on one hand, is not balanced by

any protection to the Federal defendant from an op-

pressive choice of venue beyond the largely unre-

viewed discretion of a District Court judge.

Such a state of affairs is unacceptable when con-

sidered in light of the fact that this dilemma will affect

increasingly larger numbers of Federal defendants.

The increasing mobility of our society is a matter of

common knowledge. Americans not only move their

*It has repeatedly been held that there is no right to a speedy

indictment by the government. United States v. Marion, 404 U.S.

307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

, eee

residences” today more than ever before, but they

move about the country on business and pleasure more

than any nation at any time in history." The migra-

tion means an ever increasing number of persons who

will be charged with crimes which were committed in

districts other than those where they reside or will,

by the time an indictment is returned, have moved

their residence out of the district.”

In each situation of this sort, the defendant will be

required to defend his prosecution in a forum distant

from his home, family and friends. The extreme hard-

ship which may result even troubled the drafters of

the Constitution. They were vexed by a similar prac-

tice employed by the English” and, as a result, con-

stitutionally guaranteed defendants a trial in the

vicinage of the crime.

This guarantee, conceived in 1789, was meant to

protect defendants from being tried in places distant

from their homes. In the modern context, however,

the defendant’s residence and the vicinage of the crime

will sometimes be different. It is clear that what the au-

thors of the Constitution considered paramount was

*° Official Bureau of Census statistics show that, during the years

1970-1973, 26.2% of the population changed homes.

™ According to statistics provided by the Environmental Pro-

tection Agency, the increase in total mileage of passenger car travel

has tripled from 249,600,000,000 miles in 1940 to 954,600,000,000

miles in 1971.

* Any one of the millions of tourists who visited our notional

parks in the last year could find themselves in a parallel situation

merely because they chose to spend their vacation on a Federal

reservation.

** The Declaration of Independence complains that colonists were

as by the Crown ‘‘beyond Seas to be tried for pretended

offenses.”’

RIE anen vole

trial near the place of the accused’s residence so that

he would have the support of friends and family and

so that he could continue with his employment to pay

for his defense.“

A. Inadequacy of Existing Judicial Remedies Other Than the

Extraordinary Writ of Mandamus

Ideally, of course, prosecutorial abuses of power in

the selection of venue should be correctable by the Dis-

trict Court upon a proper motion for transfer. This

was doubtless the intent of this Court when it approved

the 1966 amendment to Federal Rule of Criminal

Procedure 21(b) which authorizes transfer to any dis-

trict upon motion of the defendant in the interest of

justice. Such is not the case, however. This inability of

defendants to obtain relief in the District Court is

due largely to the fact that administration of the trans-

fer rule relies upon antiquated principles.

It appears to be the rule of thumb in District Courts

that change of venus should be more, rather than less,

difficult to obtain in criminal cases than in civil cases.

Put more precisely, a general rule which has been

invoked by District Courts in denying transfer mo-

™% Commentators have long supported this view of the Sixth

Amendment guarantee: ‘‘the dangers the framers sought to guard

against were clearly perceived. It must not be forgotten that the

sixth amendment was adopted in the wake of a recent history of

forced deportations to distant places for trial. In the colonial

period the trial by a local jury was emotionally and outspokenly

defended as a right bestowed by Magna Charta and as a free man’s

best protection against despotic government and the economic and

physical hardship occasioned by trial far from home. Early provi-

sions which required trial where the crime was committed would

also, in an age of restricted travel and mobility, in effect decree

trial at the defendant’s home . . .”” Comment, Multi-Venue and the

Obscenity Statutes, 115 U.Pa.L.R. 399, at 413 (1967).

tions is that, ‘‘a criminal prosecution should be re-

tained in the original district.’ United States v. Wolf-

son, (S.D.N.Y., 1967) 269 F.Supp. 621, 624; United

States v. United States Steel Corp., (S.D.N.Y., 1964)

233 F.Supp. 154, 157.

The problem appears to be that the District Courts,

are preoccupied with the outdated notion that venue

must remain in a place where the offense was com-

mitted.” Yet, it is clear that the opposite was intended

by the 1966 amendment to Rule 21(b). It was intended

to do away with the “strait jacket”? imposed by this

concept which has now been outmoded by modern life.

Just as there is no independent significance attached

to the mere fact that a corporate defendant’s home

office is located elsewhere,”® in fact, no valid reason

exists any longer to give independent significance to

the mere fact that the crime occurred in one place"

(once the defendant has waived his constitutional right

to trial there).

The District Courts have been hampered, however,

by the lack of real guidance available to them on the

change of venue issue. United States v. Luros, 243

F.Supp. 160 (D.C. Iowa 1965) cert. den. 382 U.S.

956 (1966), is a case in point. There an obscenity

**In the words of the District Court in United States v. Olen

(D.C.N.Y. 1960) 183 F.Supp. 212: ‘‘Had the bulk of the charged

criminal acts taken place in this district, I would not hestitate in

refusing a transfer.’’

**See Platt v. Minnesota Mining and Manufacturing, 376 US.

240, at 245-246 (1964).

Interestingly, the government urged in this case that the

District Court weigh, in balance against the Petitioner’s impend-

ing bankruptcy and loss of counsel: ‘‘The robbing of a district’s

rightful jurisdiction of a case.’’ (Response to Motion to Transfer,

p. 11.)

prosecution against a California corporation was com-

menced in District Court in Iowa. The District Court

was required to weigh the substantial burdens to the

defendants of transporting materials, counsel, parties

and expert witnesses to Lowa, of engaging office and

housing for the duration of the trial. And, the court

was also to consider the burden to the defendant cor-

poration of losing its officers for the duration of the

trial. Against these interests were some equally sub-

stantial interests of the government, of unknown ju-

dicial weight. Yet, in its duty to balance these sub-

stantial interests, the only guidance available from

this Court is the bare approval by way of dictum, of

a list of ten factors in the case of Minnesota Mining

and Manufacturing v. Platt, supra, 376 U.S. at 243-

244 (1964).

The absence of any definitive statements by this

Court of the important and substantial policies un-

derlying the changing of venue in criminal cases has

left the District Courts floundering upon this issue.

The District Court in the instant case was in just such

a dilemma. Since the only ‘‘significant’’ connection

with the Eastern District of North Carolina is that

the crime occurred there, it must be concluded that it

was the District Court’s apparent fixation upon this

single factor which caused it to ignore, among other

things, Petitioner’s uncontroverted showing that de-

nial of transfer would render him bankrupt and de-

prive him of the assistance of his chief counsel of five

years standing. If such a result is possible, there can

be no question that guidance from this Court is neces-

sary to clarify these standards, and their adminis-

tration.”

Whatever the situation in the District Courts, it is

apparent that guidance will not come through direct

appeal to the Courts of Appeals. The several Courts

of Appeals have consistently held that orders deny-

ing transfers in criminal cases are not final orders

within the meaning of 28 U.S.C.§ 1291 and, therefore,

not appealable.

Defendants must, therefore, wait until after trial

to challenge a District Judge’s exercise of discretion

in denying a motion to transfer under 21(b). The

futility of this remedy is well illustrated by Professor

Charles Wright, who states in his treatise on Federal

procedure and practice:

‘‘A refusal to transfer is reviewable on appeal

from a judgment of conviction, but the stated

standard is that the decision of the trial court

will stand unless the refusal to transfer was a

clear abuse of discretion. In no case has a final

judgment been reversed on this ground.” 1

Wright, Federal Practice and Procedure (Crim-

inal) §347 (1969). (Emphasis added.)

Further, requiring a defendant to wait until after

trial ignores two critical ramifications of an improper

denial of a motion for transfer under Rule 21(b):

(1) By the time his conviction has become final

the defendant has already irreparably suffered the

18 Of crucial importance is the need for an interpretation of the

1966 amendment to Rule 21(b) adopted by this Court. So far as

Petitioner can determine there have been no decisions giving effect

to this new, far-reaching change in the rules governing criminal

venue which calls for transfer ‘‘in the interests of justice.”’

severe economic and/or personal loss which can be

wreaked by such an improper denial; and,

(2) The defendant who is ultimately acquitted

finds his victory a Pyrrhic one in view of the irrepar-

able cost he has borne to prove his innocence.

The instant case, in truth possibly sui generis in

American law, combines both of these factors. There

is a high likelihood that the defendant will be ulti-

mately acquitted upon trial by jury. (After four weeks

of formal judicial proceedings under Article 32 of the

Uniform Code of Military Justice (10 U.S.C. § 832),

for the same charges Petitioner now faces, the Army

investigating officer found the charges to be ‘‘not

true.’’) Further, the Petitioner has presented uncon-

troverted evidence to the District Court that trial in

the Eastern District of North Carolina will render

him bankrupt, deprive him of his Chief Counsel of

five years standing and substantially impede the con-

duct of his defense. Thus Petitioner, facing trial on

an indictment for a triple homicide, begins the ordeal

with the knowledge that he will lose his Chief Counsel

and will be rendered bankrupt in proving his inno-

cence a second time. Yet, in the face of this adversity,

the Petitioner is told that our system of jurisprudence

ean provide him no relief whatsoever.”

3. In the absence of a decision by this Honorable

Court clarifying its use, the extraordinary remedy of

Mandamus is currently unavailable or inadequate to

provide a remedy for the Petitioner.

1° Interestingly, Petitioner only faces this burden because he

asserts his innocence of the charges. If he desired to plead guilty,

transfer to do so in his home district would be granted as a matter

of course under Federal Rule of Criminal Procedure 20(b).

It is apparently the rule in the Second,” Fourth,”

Fifth” and Sixth® Circuits that mandamus will not

lie to review the denial of a motion to transfer in a

criminal case. The Seventh Circuit has granted a man-

damus reversing a denial of a motion to transfer by a

District Court.“ But, the decision in that case was

twice vacated by this Court.” Though this Court has

reviewed issues closely related to availability of man-

damus, it has specifically declined to answer that

question.”

The reluctance of the Courts of Appeals to exercise

their mandamus power on transfer issues, is a matter

of record. Judge Friendly’s concurring opinion in A.

Olnick and Sons v. Dempster Brothers, Inc., 365 F.2d

439 (2d Cir. 1966), sums up the attitude well:

‘“‘In the fifteen years since this court first an-

nounced willingness to consider such applications,

Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir.

1950), we have never granted one. But even so

dismal a record naturally does not prevent coun-

sel from accepting our invitation .. .”? 365 F.2d

at 446 (1966).

20 United States v. Garber, (2nd Cir. 1969) 413 F.2d 234.

21 U8. v. Foster, (4th Cir. 1961) 296 F.2d 249.

22 Miller v. Connally, (5th Cir. 1965) 354 F.2d 206.

23 Rathke v. Picard, (6th Cir. 1960) 283 F.2d 945, cert. den. 375

U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147.

24 Minnesota Mining and Manufacturing v. Platt, (7th Cir. 1963)

314 F.2d 369; Minnesota Mining and Manufacturing v. Platt, (7th

Cir. 1965) 345 F.2d 621.

25 Platt v. Minnesota Mining and Manufacturing, supra, 376 U.S.

at 240. Platt v. Minnesota Mining and Manufacturing, 382 U.S.

456, 86 S.Ct. 643, 15 L.Ed.2d 522 (1966).

26 Platt v. Minnesota Mining and Manufacturing, supra, 376 U.S.

at 244.

It is apparent that a Petition for Writ of Mandamus

to a Court of Appeals for a criminal defendant, no

matter how erroneous the District Court’s denial, is

presently an exercise in futility.

4. There should be established a new standard for

mandamus review of transfer issues where the order

of the District Court amounts to a denial of Due

Process.

It cannot be doubted that this Court has long recog-

nized the need to guard the rights of Federal defend-

ants to fair decisions in regard to the issue of venue.

As early as 1905, this Court spoke out strongly against

the laying of venue in a distant and inconvenient

forum in the case of Hyde v. Shine, 199 U.S. 62, 25

S.Ct. 760, 50 L.Ed. 90 (1905). Though unable to order

the transfer of that case, the Court spoke in unmis-

takable language regarding its feelings on the issue

of venue:

But we do not wish to be understood as approv-

ing the practice of indicting citizens of distant

states in the courts of this District, where an in-

dictment will lie in the state of the domicil of such

person, ... To require a citizen to undertake a

long journey across the continent to face his ac-

cusers, and to incur the expense of taking his wit-

nesses and of employing counsel in a distant city,

involves a serious hardship, to which he ought not

to be subjected if the case can be tried in a court

of his own jurisdiction. Id., 199 U. S. at p. 78.

(Emphasis added.)

The viability and fundamental importance of the

concepts underlying the laying of venue in criminal

cases was reaffirmed in United States v. Johnson, 323

U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236 (1944), in which

Justice Felix Frankfurter, writing for the majority,

stated :

[Venue matters] touch closely the fair admin-

istration of criminal justice and the public con-

fidence in it, on which it ultimately rests...

Questions of venue in criminal cases, therefore,

are not merely matters of formal legal procedure.

They raise deep issues of public policy in light

of which legislation must be construed. 323 U.S.

at 276 (Emphasis added).

These cases and two subsequent decisions, Johnston

v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed.

1097 (1956) and United States v. Cores, 356 U.S. 405,

78 S.Ct. 875 2 L.Ed. 873 (1958), reflect the efforts of

this Court, prior to the enactment of the 1966 amend-

ment to Rule 21(b), to reconcile the concepts of fair-

ness and due process within the cramped confines of

traditional venue statutes and the literal language of

the Constitutional guarantee of the Sixth Amendment.

Mr. Justice Douglas’ strenuous dissent in Johnston

v. United States, supra, graphically points out the is-

sues raised by such an approach:

. . . the boys in the present case suffer com-

parably [with the colonists sent abroad for trial].

For their defiance of their local boards they are

sent to distant places for trial where they have

no friends, where they are unknown, and to which

all the witnesses must be transported. Congress

would have the power to fix venue there. But it

has not done so unambigously. . . . I would read

the statute with an eye to history and try the

offenders at home where our forefathers thought

that normally men would receive the fairest trial.

Id., 351 U.S. at p. 224 (Douglas, J., dissenting).

It is apparent that this Court determined to cure

this situation by the adoption of the 1966 amendment

to Rule 21(b), which allows the laying of venue in any

district in accordance with convenience and the inter-

est of justice. It would be ironic indeed if, after this

Court has taken such major steps in order to protect

Federal defendants from oppressive venue conditions,

that the very liberality which it has sought to promote

was allowed to be defeated by the utilization of anti-

quated standards and concepts by the District Courts.

There is a compelling need for this Court to once

again assert its interest in this important area and to

vitalize the protection which it has attempted to afford

defendants from oppression through venue. It is ap-

propriate at this time for this Court to openly recog-

nize that venue questions can, under appropriate cir-

cumstances, affect a defendant’s right to fundamental

due process. Where the burden of defense in the dis-

tant forum is so great or will have such disastrous

consequences on the defendant’s actual ability to de-

fend himself, there can be no question that the policies

underlying the due process guarantee are strongly

implicated.

Further, in order for such a pronouncement to be

meaningful to the Federal defendant, it is necessary

for this Court to clarify the remedy available for re-

view of the improper denial of a transfer motion. The

extraordinary remedy of mandamus can, with clarifi-

cation of its role, be just such a remedy.

The evolution of the use of the extraordinary writ

in the Ninth Cireuit Court of Appeals provides a

possible guideline for such a clarification. Taking to-

gether two prominent mandamus cases from the past

two decades,” it appears that the test which has

evolved in that Circuit for the use of mandamus is a

three-fold one:

(1) the degree to which the decision of the Dis-

trict Court can be questioned ;

(2) the presence of exceptional or extraordinary

circumstances which will result in a grave miscarriage

of justice to the petitioner;

(3) the degree to which, if at all, the impending

miscarriage can be corrected by post-trial appeal or

other ordinary remedies.

Placed in the context of the instant issues this will

mean that a petitioner seeking to gain review of the

denial of a 21(b) motion for transfer must:

(1) show palpable error in the District Court de-

cision; that is, error on the face of the decision such

as refusal to consider one of the Platt factors, ete. ;

(2) show that the wrongful denial will cause the

petitioner an injury amounting to a denial of due

process, a grave miscarriage of justice;

(3) show that the injury caused petitioner is of a

nature that it cannot be remedied after trial. (Peti-

tioned has already established to this Court that there

are no alternative pretrial remedies on transfer issues. )

Only through an unequivocal decision of this Court

establishing that, under certain circumstances, a de-

fendant is entitled to transfer under Rule 21(b), and

the firm establishment of an appellate remedy pro-

27 Kerr v. United States District Court, 511 F.2d 192 (9th Cir.

1975) ; Hartley Pen Co. v. United States District Court, 287 F.2d

324 (9th Cir. 1961).

viding meaningful pretrial review, can the rights

which this Court has sought to firmly establish in its

approval of the 1966 amendment to Rule 21(b) be

guaranteed.

It must further be noted that this case is a particu-

larly appropriate one for the decision of the instant

issues. The facts of this case are clearly and unequivo-

eally established at the District Court level. Many of

them are supported by specific findings by the District

Court judge. The issues presented were fully briefed

and argued below. The utter failure of the District

Court judge, in the face ef uncontroverted evidence,

to fully consider the two most important factors pre-

sented by the defendant constitutes gross error and

abuse of discretion. Finally, the issues raised below

do not even present a close question. With the sole

exception of the place of the crime, there was no evi-

dence before the District Court which in any way

showed that any Platt factor favored trial in the East-

ern District of North Carolina. For this reason, this

ease also presents this Court with the opportunity to

finally clarify that the place of the offense should no

longer be considered as having independent weight

but should be evaluated as it affects the weight of

convenience.”

There can be no question that the issues presented

herein deal with rights which cannot be otherwise

guaranteed to those who need them most. The wealthy

and the indigent have their own or the government’s

resources at their disposal for their defense in a distant

forum. It is only the middle class defendant who,

28 Platt v. Minnesota Mining and Manufacturing, supra, 376 U.S.

at 245-246.

though presumed innocent, may be rendered bankrupt

in defending a wrongful prosecution in a distant dis-

trict far from home, job, friends and family. The

tragedy is one which will continue to occur to Federal

defendants, as it has the Petitioner, until this Court

clarifies the proper application of its own rule.

I. AN ORDER DENYING A MOTION FOR A CHANGE OF

VENUE, IGNORING THE UNCONTROVERTED EVIDENCE

THAT SUCH A DENIAL WILL UTTERLY BANKRUPT THE

PETITIONER AND DEPRIVE HIM OF EFFECTIVE ASSIST-

ANCE OF COUNSEL, IS AN ABUSE OF DISCRETION

REQUIRING THE ISSUANCE OF THE EXTRAORDINARY

WRIT OF MANDAMUS.

The standards for the exercise of a District Court’s

discretion on a motion to transfer were established in

the case of Platt v. Minnesota Mining & Manufactur-

ing Co., supra, 376 U.S. at 243-244, where this Court

approved an enumeration of ten factors which should

be weighed in balancing the inconvenience and deter-

mining the interests of justice:

location of the Petitioner

disruption of Petitioner’s affairs

. expense to the parties

. location of counsel

. relative docket conditions

. relative accessibility of alternative forums

locations of possible witnesses

location of documents and records likely to be

involved

9. location of the events in issue

10. other special elements or circumstances

WIR Te wr

Petitioner has made an overwhelming showing un-

der these factors. Further, careful examination reveals

that there are no significant ones which weigh against

transfer. The overwhelming balance lies in Petitioner’s

favor.

1. Location of Petitioner; Disruption of Petitioner’s

Affairs; Expense to the Parties:

Failure to Transfer This Case Will Bankrupt the Petitioner

After the military proceedings in 1970 against the

Petitioner were dismissed because the charges were

“‘not true’’, he moved to Los Angeles, in the Central

District of California. He has resided there now for

more than three and one-half years. He is the Director

of Emergency Medicine in a major hospital there;

owns a home in that District ; and, his widowed mother

also lives there.

In the final Seventh Circuit decision in Platt v. Min-

nesota Mining & Manufacturing Co., 345 F.2d 621 (7th

Cir. 1965), the court pointed out that the proper

weight to be given to the residency of the defendant

is determined in light of its effect upon the conve-

nience in handling the case. Platt, supra, at 682. Here,

the impact of the Petitioner’s residence, which is 3000

miles from the forum in which the trial is scheduled,

is enormous and cannot be lightly dismissed.

The trial of this case cannot be other than lengthy.

Estimates in the District Court varied from six weeks

(the Government’s latest upward estimate) to three

months (Petitioner’s estimate) for the trial of this

ease.” Petitioner will be required to be absent from

2° By way of comparison, the Article 32 proceeding, where the

evidence and the issues were considerably simpler, consumed four

full weeks of in-court sessions. (In the finest military tradition, the

Article 32 was convened at 8 a.m. and recessed at 5 p.m.) The

his home and professional duties for a twelve week

period. If the trial were to be held in Los Angeles, the

Petitioner would be able to continue in his adminis-

trative capacity at St. Mary’s Hospital and thus con-

tinue earning income throughout the trial. The direc-

tors of the hospital have confirmed the viability of

this arrangement. Further, this point was supported

by a specific finding of fact to that effect by the Dis-

trict judge.

If, however, the trial is held in the Eastern District

of North Carolina, the result is the opposite. As found

by the District Court, Petitioner will be unable to

continue his employment at all. During the period of

heaviest expenditure for his defense, he will be utterly

without income. It is this combination of complete loss

of income and dramatic increase of cost, discussed

infra, which will cause Petitioner’s bankruptcy if the

trial of this case is held in North Carolina.

Not only disruption of Petitioner’s affairs and total

loss of income are involved here. Trial of this case in

the Eastern District of North Carolina will double the

cost of Petitioner’s defense. Current planning of the

Petitioner’s defense indicates that the defense team

will include, throughout the trial of this case, a full-

time staff of eight to ten persons. During a trial of

this case in Raleigh, North Carolina, the Petitioner

will be required to house, feed and provide office space

j and equipment for these persons.

Government and the Petitioner have indicated that they will call

3 over 100 fact witnesses each. Petitioner also desires to call at least

25 character witnesses. It is not unreasonable to expect that the

voir dire will be extensive as well since there has been substantial

pre-trial publicity in this case. An estimate of less than 3 months

under the circumstances is incredible.

On the other hand, if the trial is held in the Central

District of California, the record shows Petitioner will

receive outstanding amounts of assistance, including

free legal assistance, lodging, meals, office space and

secretarial help for the conduct of his defense there.”

The result is that, if the trial is held in North Caro-

lina, the cost of Petitioner’s defense, estimated at

$150,000 to $300,000“ wherever the trial is held, will

be catapulted to the astronomical and bankrupting

sum of $300,000 to $600,000.

These figures and the 2 to 1 ratio of costs between

the forums, is not based upon the mere speculative

assessment of costs by counsel for the Petitioner. At

the close of three days of pre-trial hearings in May,

1975, a detailed statement of expenditures was sub-

mitted to the District Court by affidavit, with a com-

parison for a projected equivalent period in Los An-

geles. The figures speak for themselves; the three days

in Raleigh cost $5,380.00, the same three days in Los

Angeles would have cost the Petitioner $2,660.00."

Of course, the demonstration of tremendous addi-

tional expenses may not, of itself, be sufficient to

establish that a trial in the distant forum of the East-

ern District of North Carolina will deprive the Peti-

tioner of his right to due process of the law. When the

°° See pp. 7-8, supra. (History of Proceedings)

51 See Appendix D which provides the estimated costs for Peti-

tioner’s defense for only one month of trial preparation and one

month of trial. Here, again, a reliable estimate of the length of the

trial is essential to a proper evaluation of Petitioner’s claims.

* The Petitioner’s affidavit was submitted in evidence to the

District Court. It should be noted that these expenses included

only those for presence of counsel and one law clerk.

additional burden is considered in light of the Peti-

tioner’s personal financial situation, however, the

denial of due process and the abuse of discretion by

the District judge becomes readily apparent.

In Platt v. Minnesota Mining and Manufacturing,

314 F.2d 369, (7th Cir. 1963) n.3, the Seventh Circuit

held that the added expenditure of $100,000 for a multi-

million dollar corporation was sufficiently large that a

transfer was compelled. Significantly, there is no in-

formation given as to what percentage of 3M’s defense

this $100,000 cost would have constituted.

Dr. MacDonald, Petitioner herein, is not a multi-

million dollar corporation, however. He does not even

possess any unusual] assets. Dr. MacDonald is a middle-

class professional person with an automobile, a boat, a

home and a mortgage on all three. The three and one-

half years since his discharge from the Army did not

result in the accumulation of a vast personal fortune.

It is not difficult to see how the burden of trial in Los

Angeles alone, costing between $150,000 and $300,000,

will be overwhelming for a person with a net worth

of only $36,000.

The comparison borders on the ludicrous when the

tax aspects of these expenses are considered. For the

corporate giant, 3M, its $100,000 expenditure in de-

fending the anti-trust prosecution would have been

wholly tax deductible. Commissioner v. Tellier, 383

U.S. 687, 86 S.Ct. 1118, 16 L.Ed 2d 185 (1966). This

deduction would, therefore, reduce the next expendi-

ture by 50 percent. For Dr. MacDonald, no part of his

legal expenditures will be tax deductible. For a wid-

owed person in Dr. MacDonald’s personal income

bracket, this will mean that, for every dollar neces-

sary to defend himself, he will be required to earn

two dollars of gross income. Put more bluntly, trial

of this case in the Eastern District of North Carolina

will require the Petitioner, though wholly deprived in-

come, to earn $600,000 to $1,200,000 to pay for his de-

fense. Can there be any doubt that such a tremendous

burden will bankrupt the Petitioner?

Yet, these factors received no consideration from

the District Court. Though he concedes that the Pe-

tioner’s personal expenses will be greater if the case

is tried in the Easter. District of North Carolina, the

District Court did not even consider the 2.1 ratio of

costs or the impending personal bankruptcy of the

Petitioner. It is important that the full impact of this

action be clear to this Court. There was no finding

contrary to Petitioner’s uncontroverted evidence here.

Apparently the District Court did not even consider

it worthy of mention that his decision would result in

a doubling of the cost of Petitioner’s defense which

would utterly bankrupt him.

2. Location of Counsel:

Failure to Transfer This Case Will Result in the Denial of the

Petitioner of Effective Assistance of Counsel

The evidence presented to the District Court showed

that, at the present time, it will be impossible for the

Petitioner’s Chief Counsel, Professor Bernard L. Se-

gal, Esq., to continue as his counsel through an ex-

tended trial in the Eastern District of North Carolina.

Professor Segal has served as Chief Counsel to the

Petitioner at every stage of this case over the past five

years: from the commencement of the Army proceed-

ings in 1970, through the three and one-half years of

—

efforts to obtain a final resolution of the matter from

the Department of Justice, and throughout the cur-

rent proceedings. Since his permanent move to Cali-

fornia in 1972, Professor Segal has undertaken sub-

stantial professional commitments. Though these com-

mitments will certainly be curtailed during the lengthy

trial of this serious criminal case, they cannot be

wholly abandoned. Trial in the Central District of

California will mean that Professor Segal will be

within easy commute distance of his offices, University

and family in San Francisco."

By comparison, if the case is tried in North Caro-

lina, Professor Segal will be unable to maintain direct

eontact with his commitments, over a 3000 mile dis-

tance. Round-trip travel from Raleigh to San Fran-

cisco requires two days.”

This second abuse of discretion by the District Court

is such that it may even rival his complete failure to

consider Petitioner’s impending bankruptey. Here

faced with the unrebutted representation by Petition-

er’s Chief Counsel, made under oath, that, under pres-

ent conditions, he would be unable to continue as Chief

Counsel if the case were tried in the Eastern District

of North Carolina, the District Court again has con-

sidered this factor unworthy of mention. Instead of

** Among the exhibits introduced before the District Court were

a complete set of airline schedules for the alternate forums. The

schedules for Los Angeles reflect that there are almost semi-hourly,

round the clock, flights between Los Angeles and San Francisco.

The round trip air fare is approximately $45.00.

**The airline schedules in evidence before the District Court

reflect the fact that there are no direct non-stop flights from

Raleigh to San Francisco, and that travel between the two cities is

a bothersome, time consuming process. The round trip air fare

between the two cities is approximately $380.00.

confronting the denial of the Petitioner’s right to

counsel which will be the undeniable effect of his de-

cision, the District Court judge chose to engage in the

fiction * that a local court rule of the Central District

of California would prevent Petitioner from being

represented by his Chief Counsel of five years if the

case were tried there. The effect of the loss of Profes-

sor Segal upon the Petitioner’s defense is made even

sharper when considered in light of the situation of his

only associate counsel who has a continuing familiar-

ity with the case, Michael J. Malley, Esquire. Malley

testified at length during the hearing on this matter

regarding his personal availability in the case. He is

currently employed by a law firm in Washington, D.C.,

where his practice involves government contract repre-

sentation of corporate clients. Aside from brief experi-

ence under the military justice system five years ago,

he has never practiced criminal law. While he has as-

sisted in the case since its beginning as associate coun-

sel, Malley cannot and will not accept the responsibil-

ity of Chief Counsel. His reasons for this are of the

highest order and are entitled to be respected. He is a

long-time personal friend of the Petitioner.” His per-

sonal feelings are very strongly involved in the case to

an extent that he could not and should not function as

Chief Counsel. Further, he has no significant experi-

ence in the trial of criminal cases, let alone a case in-

volving a charge of triple homicide.

Yet, Petitioner did not rely on the loss of his Chief

Counsel for five years as the sole basis for his allega-

85 The assertions of the District Court are incorrect both factu-

ally and legally. See pp. 11-12, supra (History of the Proceedings).

86 Malley and Dr. MacDonald were roommates at Princeton

University. Malley knew the deceased wife of Dr. MacDonald.

tion that he will be denied the effective assistance of

counsel by the denial of his motion for transfer. The

added expenditure of trial in the distant forum will

undoubtedly inhibit the conduct of Petitioner’s de-

fense no matter who his counsel may be.

As Petitioner has shown by unrebutted evidence be-

fore the lower court, he has substantial offers of free

legal assistance, clerical and secretarial help, and office

space in the Central District of California, not to men-

tion offers of free housing, feeding, and transporting

witnesses. All of these services are essential elements

in the conduct of the defense of a protracted, serious

criminal case. They are more than mere conveniences ;

rather, they are essential elements in the preparation

for and conduct of any important case. None of these

services will be available to the Petitioner in the East-

ern District of North Carolina without substantial ad-

ditional expenditures. It is tragic indeed to contem-

plate the financial ruin and the short-changing of the

defense of an accused who has already once proven that

he has been wrongfully and falsely charged.

The consideration given this aspect of the Petition-

er’s motion by the District Court was largely illusory.

Though the District judge briefly mentioned the costs

of such items as office supplies and equipment in the

Eastern District of North Carolina, he gave no men-

tion or apparent consideration to the unrebutted evi-

dence that the Petitioner may obtain these same serv-

ices free in his home District. Of course, the services

such as those discussed may be available in the offices

of local counsel but evidentiary hearings were not re-

quired to determine that point. The District judge’s

discussion completely ignores that point. The District

judge’s discussion completely ignores that these serv-

ices will have to be bought and paid for in North Ca-

rolina,” at substantial added expenditure to Petitioner.

Ill. RELATIVE DOCKET CONDITIONS OF THE TWO FORUMS

The relative docket condition of the districts in-

volved in a proposed change of venue is a factor which

has been examined by appellate courts in cases involv-

ing writs to compel or halt interdistrict transfers. In

the Platt case the Seventh Circuit pointed out that,

for a valid comparison, a proper analysis must be

made of the available statistics [345 F.2d 681, at 685-

686 (1965)]. The court there, for example, criticized

Judge Platt for using partial statistics as the basis for

his decision to refuse transfer.

In the present case, the District Judge ignored the

proper criteria, which had been included in the mem-

oranda presented by the Petitioner, and evaluated this

factor solely upon the ‘‘per-judge’’ caseload between

the two districts involved. Uncontroverted evidence

presented by Petitioner showed that the more accurate

criterion by which to compare the two districts is the

capacity of each district to handle its current criminal

caseload. The statistic which offers the most accurate

evaluation of this capacity is the length of time which

the respective districts require to move a case from

initiation to trial. In the latest report of the Admin-

istrative Office of the United States Courts,* the com-

8? Petitioner does not consider the District Court’s offer of a

tiny, barren conference room in the federal courthouse as substitute

for adequate office and secretarial space. Additionally, the utiliza-

tion of this space would require Petitioner to conduct the prepara-

tion of his defense under the constant surveillance of government

personnel.

88 Administrative Office of the United States Courts, Annual

Report to the Director, 1974, pp. A-56, 57; I[X-108: amended

portion, pp. A-56, 37; [X-108.

parative disposition time for criminal cases is: Central

District of California: 4.3 months; Eastern District of

North Carolina: 5.0 months (filing to disposition). The

report further indicates that as a result of a 2.9% in-

crease in filings during the last year, the disposition

time in the Eastern District of North Carolina has in-

creased by .7 months, or more than 8%. In contrast,

filings in the Central District of California have

dropped since 1973 by 2.6%.

An even more crucial criterion, however, is the com-

parison of judicial manpower in the two districts. The

Central District of California has seventeen (17)

judgeships and the Eastern District of North Caro-

lina has only two (2). The effect of an extended crim-

inal trial on the docket conditions in a two (2) judge

district would be devastating. On the contrary, the Cen-

tral District of California can readily adjust its case-

load, even for the protracted three-month trial of this

case. The District Court judge not only ignored these

more reliable criteria, but also relied upon figures

which were prepared at a time when there were three

(3) judges in the Eastern District of North Carolina,

neither mentioning nor giving any consideration to the

fact that one of his colleagues, Chief Judge Butler,

was to retire on July 1, 1975, without replacement. Once

this information is considered in the balance, it is ob-

vious that the Petitioner’s trial will wreak havoe on

the trial calendar of the Eastern District of North

Carolina.”

8° In footnote 2 of his memorandum opinion, the District Judge

explains that ‘‘as a matter of courtesy’? he communicated with

Judge Hill, one of the judges of the Central District of California.

The District Judge thereby received ex parte evidence out of the

presence of the Petitioner and his counsel. This ‘‘evidence’’, which

IV. ACCESSBILITY OF PLACE OF TRIAL: LOCATION OF

DOCUMENTS, RECORDS AND WITNESSSES

The facts and evidence demonstrating the relative

inaccessibility of the Raleigh area when compared with

the Los Angeles metropolitan area are a matter of

record “ and were uncontroverted in the District Court.

Since it is wholly unsupported by the evidence and de-

livered without discussion, Petitioner is unable to de-

termine the basis, if any, for the conclusion of the Dis-

trict Judge that Raleigh is more accessible to the par-

ties and witnesses than Los Angeles.

The record reveals that within the immediate Los

Angeles metropolitan area, there are four major air-

ports. The combined traffic of these four airports is

ten times that of the Raleigh-Durham airport.“ The

difference in accessibility of the two districts by air

transportation was further demonstrated to the Dis-

trict Judge by the introduction of the official airline

service schedule for each area. In quantity alone, there

were only four pages of scheduled flights for the Ra-

leigh-Durham area had no less than thirty pages of

scheduled flights into the Los Angeles metropolitan

area.

was apparently given heavy weight by the District Judge, was not

taken under oath, not subject to cross-examination, was self-serving

and contradicted the clear weight of the evidence presented in

Court by Petitioner. Petitioner strenuously objects to such an

egregious violation of his constitutional rights.

*° According to the figures provided by the Federal Aviation

Agency Statistical Handbook of Aviation, Calendar Year 1974,

there are more than 15 times as many passenger arrivals into

Los Angeles as into the Raleigh-Durham airport. Table 4.7 of the

Handbook also shows that the number of airplane departures for

Los Angeles was approximately ten times that for Raleigh-Durham.

* Tbid.

’

In considering the convenience of the parties in this

case, it must be noted that the primary Government

attorneys are assigned to the Department of Justice

in Washington, D.C. and will be attending the trial

from Washington, D.C. There is also one assistant

United States attorney who is assigned to the case

from the office of the United States Attorney for the

Eastern District of North Carolina, James Stroud,

Esquire. Stroud, and Petitioner’s local counsel, Durant

Williams Escott, Esquire, are the only attorneys in-

volved in this case who reside in North Carolina.

The inconvenience which will be incurred by the

Petitioner if the trial of this case is held in North

Carolina is discussed at length above. Likewise, there

is discussion in an earlier section of the extreme in-

convenience which trial in North Carolina will cause

to Professor Segal, Petitioer’s Chief Counsel.

Even the conclusion of the District Judge that trial

in Raleigh would be more convenient to Mr. Malley

in Washington, D.C. than trial in Los Angeles, is not

supported by the facts in the record. Malley testified,

without contradiction, and the record was supple-

mented by tables of airline schedules, that because of

the infrequency of airline service, especially non-stop

flights, between Washington, D.C. and Raleigh, that

in fact it was more convenient for an attorney to fly

from Washington, D.C. to Los Angeles.“* The one to

** Examination of the airline schedules submitted into evidence

reveals the following: From Washington to Raleigh there are only

five direct, daily flights, each approximately an hour in length.

The earliest daily flight to arrive in Raleigh lands at 9:35 a.m.

The latest to leave Washington departs at 6:30 p.m. One of these

five flights leaves not from Washington but from Baltimore, nearly

forty miles from the capital.

two hours flying time to Raleigh at inconvenient and

infrequent times made the frequent five-hour non-stop

flights to Los Angeles more convenient in general and

in particular to him.

If Los Angeles is, as the evidence shows, the more

accessible forum, the factors regarding the location of

witnesses, documents and records are easily placed into

perspective. Only a very small percentage of the known

witnesses in the case are still residing within the East-

ern District of North Carolina. Most of the innum-

erable fact witnesses connected to this case were in the

Army at the time the murders were committed, and are

now scattered all over the United States and in seven

foreign countries. Essential character witnesses whom

the Petitioner intends to call reside in the Los Angeles

area.

Regarding the former Army personnel who have

been transferred or discharged, the Los Angeles area is

a highly accessible forum from all foreign countries

and all parts of the United States. The Southern Cali-

fornia area is the home of several major military air-

On the other hand, flying from Washington to Los Angeles

there are 12 daily direct, non-stop flights departing Washington

from all Washington area airports at all hours of the day and

night. It is substantially easier for a busy attorney to schedule an

appearance in Los Angeles following a full business day in Wash-

ington than it is for him to make the one available afternoon flight

to Raleigh. The conclusion is inescapable that Raleigh is less

accessible, even to a near neighbor such as the nation’s capital,

than is Los Angeles.

Additionally, insofar as the District Court weighed the relative

accessibility of the Raleigh forum as an important factor in this

action, he ignored Mr. Malley’s testimony that he is required to

do a substantial amount of travel in connection with his practice

and will very likely be coming from an area such as Phoenix for

the trial.

ports * to which military witnesses could be flown with

relative ease for the Government. Raleigh, on the other

hand, apparently has no scheduled direct flights from

anywhere outside the continental United States, and

only one nearby military airport, Pope Air Force

Base. In a case such as this one, ease of scheduling

is critical in minimizing the expense of transporting

and lodging witnesses.

Of particular importance here are several of the

proposed 25 character witnesses whom the Petitioner

anticipates calling from the Los Angeles area. These

witnesses are all professional persons with heavy sched-

uling commitments, who may be unable to testify if the

trial is held in a distant forum requiring two or three

days for their brief appearance. Yet the testimony of

these witnesses is vital to the defense of the charges

lodged against the Petitioner. To require such impor-

tant character evidence in a serious case to be handled

by deposition, as suggested by the District J udge,

amounts to a callous disregard for Petitioner’s right

to a fair trial.“

Regarding the documentary evidence in the case, the

government has conceded that its documentary files

occupy only two and one-half filing cabinet drawers.

(See Affidavit of Kevin T. Maroney, dated April 22,

1975, Deputy Assistant General of the Criminal Di-

** Norton Air Force Base and North Island Naval Air Station

both regularly receive large numbers of overseas flights from all

parts of the world.

“In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91

L.Ed. 1055 (1947) stated: ‘‘Certainly to fix the place of trial at a

point where litigants cannot compel personal attendance and may

be forced to try their cases on deposition, is to create a condition

not satisfactory to court, jury or most litigants. 330 U.S. at 511.

(Emphasis added.)

vision, Department of Justice, at p. 1.) However, the

relevance of the location of the government’s docu-

ments and records is dubious since the government has

conceded, ‘‘(t)he government does not anticipate that

documentary evidence will play any significant role in

the proposed trial of this case.’’ (United States’ Re-

sponse to Motion for Transfer, p. 10.) To whatever

extent the location of government documents not to be

used at trial may be relevant, Petitioner has volumin-

ous files and documents in Long Beach, California and

at the offices of his Chief Counsel in San Francisco,

California. Petitioner further anticipates that requests

will be made for documents located at such far-flung

places as the Federal Records Center in St. Louis, Mo.

V. SPECIAL CIRCUMSTANCES REQUIRING CONSIDERATION

A. Effect of The Proceedings

As was set forth in the statement of the case earlier

in this petition, the Petitioner has previously endured

the emotional and financial, if not the legal, equiva-

lent of a full trial on these charges. The Petitioner

was formally charged with the murders of his wife and

daughters and underwent a formal pretrial investiga-

tion under Article 32 of the Uniform Code of Military

Justice (10 U.S.C. § 832). The Article 32 proceeding

against the Petitioner was the longest in the 27-year

history of the Uniform Code. Approximately 60 wit-

nesses, including the Petitioner, testified in over 4

weeks of hearings. The expense to the Petitioner, de-

spite the fact that he was provided with free office

space, telephones, and other facilities, and some free

legal assistance, was over $50,000. The Petitioner was

confined a period of nearly five months.

At the conclusion of the Article 32 hearing, the

charges against the Petitioner were determined by the

| 47

investigating officer to be ‘‘not true’’ and were finally

dismissed in October of 1970. Because of the substan-

tial calamities which he had suffered, the Petitioner

was promptly granted an early release from the Army

on hardship grounds. He received an Honorable Dis-

charge.

As though one trial were not enough, however, the

Department of Justice, five years later, has recom-

mended the prosecution of the case. Although, follow-

ing the dismissal of charges against him pursuant to

the Article 32 proceeding, the Petitioner has con-

tinually sought, through personal visits and corre-

spondence to obtain a final disposition of the matter,

the Government failed to so act. The delay throughout

that period had been solely attributable to inaction by

the Government.

Despite the fact that high Justice Department offi-

cials had twice stated in 1974 that there were no evi-

dence to warrant further prosecution, the Petitioner

was indicted January 24, 1975, a few weeks before the

statute of limitations expired this year. The indictment

was brought solely to avoid threatened accusations of

““cover-up”’ against the Department of Justice by Mr.

Alfred Kassab, the step-father of the Petitioner’s de-

ceased wife, who, though he previously testified as a

character witness for the Petitioner at the Article 32

investigation, had conceived an irrational hatred for

the Petitioner. Motivated by this hatred, he filed

“‘charges’’ with the Chief Judge of the Eastern Dis-

trict of North Carolina.

Though these ‘‘charges”’ contained no new evidence,"

the Justice Department suddenly reversed its previous

i “In fact, no new evidence has been produced since 1971.

position and convened a grand jury. The Department

of Justice officials involved in the disposition of this

case determined that their personal job security might

be jeopardized by the Kassab accusations. It should

be noted that at least one of the officials involved in

the Justice Department’s decision was also a key figure

who testified at length before the Senate Watergate

Committee. It is not difficult to understand the tre-

mendous potential for political pressure which could

be generated by someone such as Mr. Kassab in a ease

which has received highly sensational widespread press

coverage for five years.

The burden imposed by the Government’s needless

and negligent delay in this case is too heavy for any

court to ask Petitioner to bear. The defense of these

charges will substantially impair the financial status

of the Petitioner wherever the trial is held. But, trial

in the distant and inconvenient forum of the Eastern

District of North Carolina will bankrupt the Peti-

tioner. Without question, this additional burden to

Petitioner has been occasioned by the Government’s

continued failure to act in this case. It is too much to

ask the Petitioner to bear the cost of defending him-

self twice against charges of first degree murder and

also to force upon him the additional burdens which

are solely attributable to the unconscionable Govern-

ment delay in proceeding with this case. Yet, as is seen_

from a reading of the District Court decision, no con-

sideration or weight whatsoever, was given to these

very special elements of this case.

B. Effect of The Denial Upon Petitioner's Due Process Rights

A full examination of the merits of this motion will

demonstrate that the nature and scope of the questions

involved herein are of critical importance.

The rule that motions for transfer, in both civil

and criminal cases, should normally be left within the

discretion of the trial court is a long-standing one. Ex-

perience bears out the wisdom of this rule under normal

circumstances. The interests at stake are normally in-

sufficient to warrant special attention by the appellate

courts. In our increasingly complex and highly mobile

society, however, there will be an increasing number

of prosecutions brought by the Federal Government,

for reasons of convenience or otherwise, in a forum

distant from the defendant’s home, residence or head-

quarters of operations.

There are strong constitutional undercurrents of

most fundamental nature which are unsettled by the

procedure which allows the United States, the largest

and most powerful Federal litigant, to defeat the mo-

tion for transfer by a defendant of ordinary means on

trial for his life 3000 miles from home and the offices

of his counsel, without the slightest showing of incon-

venience. Put in terms of this case, the United States

of America, with its innumerable resources, is able to

compel Dr. Jeffrey R. MacDonald, a middle class Cali-

fornia physician with a net worth of $36,000, to defend

a charge of triple homicide in a forum on the opposite

end of the country from his home where the extraordi-

nary hardships of financial ruin and loss of chief coun-

sel cannot help but occur. To force Petitioner to de-

fend himself against these serious charges under these

circumstances can be considered nothing less than a

denial of due process of the law as guaranteed by the

Fifth Amendment.

CONCLUSION

For all of the foregoing reasons the Petition for

Writ of Certiorari should be granted.

Respectfully submitted,

BERNARD L. SEGAL

Suite 220

536 Mission Street

San Francisco, Calif. 94105

MicHaAkEL J. MALLEY

1250 Connecticut Avenue

Washington, D.C. 20036

Attorneys for Petitioner

Of Counsel:

DvuRANT WILLIAMS EscorttT

412 Law Building

Charlotte, North Carolina

Dated: August 14, 1975.

APPENDIX

APPENDIX A

Unrrep States Court oF APPEALS

For THE FourtnH Circuit

75-1681

In re:

Jerrrey R. MacDona.p, Petitioner...

Order

(Filed July 15, 1975)

On consideration of the petition for a writ of mandamus

in the above captioned matter,

Ir Is Orverep that the petition be and is hereby denied.

For the Court—by Direction

/s/ Wiiuiam K. Stare, IT

William K. Slate, I1

Clerk

APPENDIX B

Order on Motion to Transfer

[Filed May 30, 1975]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

FAYETTEVILLE DIVISION

No. 75-26-CR-3

Unirtep States or America, Plaintiff

Jerrrey R. MacDona.p, Defendant

ORDER ON MOTION FOR TRANSFER

The defendant, Jeffrey R. MacDonald, indicted in this

court on three counts of first-degree murder, has filed ten

pre-trial motions under Rule 12, F.R.Crim.P. The motions

have been extensively briefed and argued before the court

over a period of five days, and now ready for ruling is

defendant’s primary motion under F.R.Crim.P., Rule 21,

for transfer of the case to the Central District of Cali-

fornia for trial. The motion will be denied.

TransFER Pursuant To Rute 21(b) or THE Feperat Rvuves

or CRIMINAL PROCEDURE

Defendant first moves that the case be transferred to the

Central District of California for the convenience of the

parties and witnesses in the interest of justice under the

provisions of Rule 21(b), F.R. Crim.P., which reads as

follows:

‘‘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 dis-

trict.’’

The factors to be considered by the court in exercising

its discretion on a motion to transfer under F.R. Crim.P.

21(b) have been listed in Platt v. Minnesota Mining & Man-

ufacturing Company, 376 U.S. 240, 243-244 (1964), as fol-

lows:

1. Location of defendant.

2. Location of witnesses.

3. Location of events likely to be in issue.

4. Location of documents and records likely to be in-

volved.

5. Disruption of defendant’s business unless the case

is transferred.

6. Expense to the parties.

7. Location of counsel.

8. Relative accessibility of place of trial.

9. Docket condition of each district or division in-

volved; and

10. Any other special elements which might affect the

transfer.

The murders with which defendant is charged occurred

on February 17, 1970, at Fort Bragg, North Carolina, which

is in this judicial district. At that time the defendant was

serving in the Army as a medical doctor and was stationed

at Fort Bragg. His permanent home was on the east coast,

but about six months after his discharge from the Army in

December of 1970 he moved to California, and for the last

three and one-half years has maintained his residence at

Huntingdon Beach, California. He is employed at St.

Mary’s Hospital in Long Beach, California, as Director of

the Department of Emergency Medical Services. In this

position he performs certain administrative duties which

account for just over half of his annual income of $60,000,

the remainder of his income being for professional medi-

cal services personally rendered by him.

The defendant has alleged that if the cause is removed

to the Central District of California, ‘‘he will be able to

work continuously at his present position, including eve-

nings and weekends when made necessary by in-court pro-

ceedings during the daytime,’’ and the court is satisfied

that the defendant could in fact continue to perform some

of the services incident to his present employment, par-

ticularly in connection with his administrative duties. It is

difficult to see how the defendant could practice medicine

to any appreciable extent while engaged in the trial of the

very serious charges which have been brought against him.

The court has therefore concluded that a trial in this dis-

trict would be more expensive to defendant in terms of lost

income than would be the case if the trial were to be held

in Los Angeles. It may also be assumed that the defend-

ant’s personal expenses in attending a trial in this district

will be much greater than would be the case if the trial

were were held near his home in California.

A consideration of the factors other than the personal

financial hardship of the defendant has led the court to

conclude, however, that the convenience of the parties and

witnesses and the ends of justice do not require that the

motion be allowed. A substantial number of the possible

witnesses for the government and the defendant are lo-

cated in the Eastern District of North Carolina, and there

has been no showing that non-resident fact witnesses for

either party live in or nearer to California than to North

Carolina. The defendant proposes to call a number of char-

acter witnesses who reside in California and who have

known defendant since he moved to that state some three

and one-half years ago, but it would seem that defendant’s

character witnesses in position to offer more pertinent tes-

timony would be those who reside on the east coast and

who knew the defendant prior to the date of the crime. The

government has indicated it will consider stipulating the

testimony of defendant’s California character witnesses,

and perhaps the matter can be handled by deposition.

The murders occurred at Fort Bragg which is in this

district, and it is the court’s understanding that the docu-

ments and records likely to be involved in the case are

located in the office of the United States Attorney at Ra-

leigh or in the Department of Justice at Washington, Di-

trict of Columbia. The defendant has made no showing

with respect to the location of any documents and records

likely to be involved in the defense of the case.

Chief counsel for the defendant since the first charges

were brought against him in 1970 by the military has been

Bernard L. Segal, Esq., who at the time of the crime was

a resident of Pennsylvania and a member of the bar of

that state but who now resides in San Francisco, California,

where he teaches in the School of Law at Golden Gate Uni-

versity. Although he apparently practices law in San Fran-

cisco, Mr. Segal is not a member of the California bar, and

for this reason he would be precluded by Local Rule 1.3

of the District Court for the Central District of California

from appearing as counsel for the defendant if the case

should be removed to that court for trial.

The rule provides for pro hac vice representation in a case by

an attorney not otherwise eligible for admission who is a member

in good standing of the bar of another state, but ‘‘unless author-

ized by the constitution or an act of Congress, an attorney is not

eligible to practice pursuant to this paragraph if any one or more

of the following apply to him: (i) he resides in California; or

(ii) he is regularly employed in California; or (iii) he is regularly

engaged in business, professional or other activities in California.’’

Each of these condtions appears to apply to Mr. Segal.

~—

Defendant’s other retained counsel at this time is Michael

J. Malley, Esq., who is a member of a Washington, District

of Columbia, law firm. Obviously it will be more convenient

for Mr. Malley to attend court in Raleigh which is not more

than an hour away from Washington by air than it would

be for him to attend court in Los Angeles.

While this is a Fayetteville Division case, the trial will

be held at Raleigh which is connected by all forms of trans-

portation with all of the principal cites in the United States

including direct air connections to Los Angeles. It thus

appears probable that Raleigh is more accessible to the

parties and witnesses in the case than would be Los An-

geles.

The condition of the docket of this court at this time is

reasonably current, and the trial of this case can be com-

menced here within the next sixty days. Figures provided

by the Administrative Office of the United States Courts

indicate that the per-judge caseload in the Central District

of California is considerably higher than the present per-

judge caseload in this district.’

The court has considered several ‘‘other special ele-

ments’’ advanced by defendant as reasons for the proposed

transfer, but these have not been deemed of sufficient merit

to outweigh the reasons the government has advanced for

retaining the case in this district. For instance, counsel for

defendant predicts that the trial of the action may last

from four to six months. In view of the fact that a full-

blown hearing under Article 32 of the Uniform Code of

Military Justice involving witnesses for the government

2 As a matter of courtesy the court communicated with Judge

Irving Hill of the Central District of California to ascertain the

present status of the docket there. He described it as ‘‘deplorable,’’

and stated that if the case were transferred to that district and

were not because of exigent circumstances accorded some unusual

priority, it would be many months if not a year or more before it

could be reached for trial.

and defendant required only four weeks of testimony, the

court is of opinion that defendant’s estimate of the trial

time is not realistic. Defendant further contends that he

will retain certain expert witnesses, ‘‘eriminologists,’’ to

testify on his behalf and that such witnesses are more

readily available on the west coast than in this area. It

does not appear that he has retained any such witnesses,

however, and there has been no showing that such experts,

if needed by defendant, are not available in this area. De-

fendant alleges that it will be necessary for him and his

attorneys to rent office space and furniture, purchase office

supplies and equipment, lease telephones and have the

assistance of perhaps as many as eight lawyers and law

researchers, several investigators and several stenogra-

phers. Defendant has not yet retained local counsel to ap-

pear with his out-of-state attorneys, as it will be necessary

under the Local Rules for him to do, but the court perceives

no reason why the facilities of such local counsel when re-

tained will not suffice for defendant’s purposes.’

Il.

TransFER Pursuant To Rui& 21(a) oF THE Feperat Ruies

oF CRIMINAL PROCEDURE

As a second ground for his motion to transfer it is

alleged ‘‘that the defendant would suffer prejudice in the

Eastern District of North Carolina in that a fair and im-

partial trial could not be obtained.’’? This motion is made

pursuant to Rule 21(a) which reads as follows:

‘‘The court upon motion of the defendant shall trans-

fer the proceeding as to him to another district whether

or not such district is specified in the defendant’s mo-

tion if the court is satisfied that there exists in the dis-

’ This court routinely makes available to counsel in protracted

eases ample space in the courthouse for conferences and, if needed,

secretarial space. A telephone may be installed at the party’s

expense, and the court’s library, of course, is available to counsel.

trict where the prosecution is pending so great a prej-

udice against the defendant that he cannot obtain a

fair and impartial trial at any place fixed by law for

holding court in that district.’’

The basis for defendant’s motion is alleged preju-

dicial pre-trial publicity. The defendant has introduced

clippings of numerous newspaper stories which appeared

following the crime in February of 1970 and particularly

during the course of the Article 32 proceedings which fol-

lowed in the spring and summer of that year. The court

has reviewed this material, and while it must be conceded

that the crime was of a sensational character, the news

stories for the most part appear to have been factual in

nature and not designed to incite prejudice against the

defendant. A substantial part of the publicity appears to

have emanated from defendant himself and his attorney

in numerous interviews granted by them to the news media.

While the court has not seen or read all of this material,

it seems safe to assume that it did not include inculpatory

disclosures.‘

More recently the publicity in this district has been the

result of the grand jury proceedings which began in August

of 1974. The defendant came here voluntarily and testified

before the grand jury on two occasions, and on each occa-

sion he submitted to interviews with the press and he and

his attorney were regularly seen on newscasts over the

‘The court is informed that on at least one occasion the defend-

ant appeared on a national television program, and on the day

before the hearings on defendant’s motions began in this court

there appeared in the Los Angeles Times 2 feature article of fifty-

six column inches in length together with a large picture of the

defendant. The material for this article was obviously furnished

by the defendant, and in connection with the extensive news

coverage of the bail reduction proceedings which were held in

Los Angeles in February of 1975 it would seem that the publicity

the case is receiving in California approaches that which it is

receiving in this district.

. ~ 10a

local television stations. Following the court’s admonition

to counsel for the government and the defendant the press

interviews appear to have diminished if not ceased alto-

gether since the hearings on defendant’s motions got under-

way, and while these hearings have been regularly reported

in all of the news media, the reports of which the court is

aware have consisted only of factual reporting of proceed-

ings which occurred in open court, and it is not perceived

that the news stories growing out of the grand jury pro-

ceedings or the hearings in this court have prejudiced the

defendant’s right to a fair and impartial trial in this

district.

In sum, the court is not satisfied that there exists in the

district so great a prejudice against the defendant that he

cannot obtain a fair and impartial trial, and in any event,

it would be inappropriate to grant defendant’s motion for

transfer prior to the selection of a jury for the trial of the

ease. United States v. Abbott Laboratories, 505 F.2d 565

(4th Cir. 1974); Wansley v. Slayton, 487 F.2d 90 (4th Cir.

Cir. 1973).

Accordingly, it is now

ORDERED:

1. That the motions of the defendant for transfer of the

case to the United States District Court for the Central

District of California for trial are denied;

2. That this case be transferred from the Fayetteville

Division of this court to the Raleigh Division for trial; and

3. That subject to the rulings of the court to be made in

the near future on defendant’s remaining motions the case

in set for trial in Courtroom No. 1, Seventh Floor, Federal

Building, 310 New Bern Avenue, Raleigh, North Carolina,

at 10:00 a.m. on Monday, July 14, 1975.

| /s/ F. T. Dupree, Jr.

F. T. Dupree, Jr.

May 30, 1975. United States District Judge

lla

APPENDIX C

Financial Statement of Petitioner

JEFFREY R. MacDONALD

BALANCE SHEET

Apri 30, 1975

ASSETS

NE ei te ce Pd tee OO CR

Automobile .....

Bile

Residence

Furniture and Personal Property.

Pension Profit Sharing Plan

Listed Stocks ........ See

OS GE SEY Per Pe

ToTaL ASSETS

LIABILITIES

Accounts Payable .

Note Payable, Bank of America, Secured by Boat

Note Payable, American City Bank, Secured by

Automobile ....

Note Payable, California Federal Savings,

Secured by Residence

Note Payable, Raymond Baker, See ‘ured by Residence ;

Note Payable, Northwestern Medical School .

Loan Payable, Diana Miller Decorator, Inc.

Legal Fees (Various) ...

ToraL LIABILITIES ......

Excess or ASSETS OVER LIABILITIES ye Eee

JEFFREY R. MacDONALD

PERSONAL INCOME & EXPENSES

$132,300. 00

$ 10,000.00

8,000.00

18,000.00

75,000.00

10,000.00

7,000.00

3,300.00

$ 2,500.00

17,800.00

1,200.00

28,000.00

10,000.00

6,500.00

2,000.00

18,300.00

_$ 86,300.00

$ 36,000.00

January 1, 1974 THRoveH DecemBer 31, [974

INCOME

$60,000.00

12a

EXPENDITURES

House Payment

(Includes Taxes & Insurance) .......... $ 5,300.00

I a Seri ne San aco 3,400.00

Pe ee Loree ee ye 1,200.00

Income Taxes Reet Matinee pine biota bis 10,800.00

Loan to Northwestern University ......... 900.00

SE at > er arene ee ear 700.00

Non Reimbursed Business Expenses ....... 5,000.00

ESR ee ea a eo rere er 200.00

Ns SGN os none hte 5.» Sess ab 25,000.00

Normal Legal & Accounting ............. $ 4,000.00 $56,500.00

Sracstcs Ver eer er eten Gaepees

13a

APPENDIX D

Comparative Costs of Trial Statement of Petitioner

Jeffrey R. MacDonald

Comparative Costs oF TRIAL

(one month of trial and one month for pre-trial services/expenses )

Los ANGELES vs. NORTH (‘AROLINA

1975

North Los Savings in

Carolina Angeles Los Angeles

Income Loss to Defendant $10,000 -- $10,000

Fees

Legal 40,000 35,000 5,000

Private Investigators (2) 4,000 4,000 —

Ten Expert Witnesses 3,000 3,000 —

Local Counsel 8,000 —_— 8,000

Typist and Clerk 1,500 — 1,500

Law Clerks (2) 2,000 — 2,000

Travel Costs

Defendant 800 — 800

Mother of Defendant 1,200 — 1,200

Attorneys—Segal 2,400 300 2,100

—Malley 400 400 —

—2 Law Clerks 1,600 100 1,500

Private Investigators (2) 2,000 2,000 2,000

Expert Witnesses (10) 4,000 200 3,800

Character Witnesses 6,000 1,200 4,800

Fact Witnesses (60) 24,000 29,000 (5,000)

Living Expenses (Additional)

Defendant 4,000 — 4,000

Mother of Defendant 4,000 — 4,000

Attorney—Segal 3,900 3,500 —

Attorney—Malley 3,000 300 3,000

l4a

Comparative Costs or Triau

(one month of trial and one month for pre-trial services/expenses)

Los ANGELES vs. NortH CAROLINA

1975

North Los Savings in

Carolina Angeles Los Angeles

Law Clerks (2) 6,000 2,000 4,000 |

Private Investigators (2) 3,500 3,500 — |

Expert Witnesses 1,200 300 900

Character Witnesses 1,500 300 1,200

Fact Witnesses 6,000 4,000 2,000

Office Expenses and Miscellaneous

Rental of Furnished Offices 1,500 — 1,500

Auto Rental (2) 2,500 -= 2,500

Telephone 500 500 --

Paper, Xerox and Office Supplies 2,000 1,000 1,000

Court Reporter 4,000 4,000 —

$154,000 $94,800 $59,800

15a

APPENDIX E

Affidavit of Petitioner Sur Costs Incurred in Connection With

Hearings on Pre-Trial Motions

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

FAYETTEVILLE DIVISION

No. 75-26-CR. 3

Unirep States oF AMERICA

vs.

Jerrrey R. MacDona.p

AFFIDAVIT SUR COSTS INCURRED BY THE

DEFENDANT IN CONNECTION WITH HEARINGS

ON PRE-TRIAL MOTIONS IN SUPPORT

OF DEFENDANT’S MOTION FOR TRANSFER

Pursuant To Ruue 21(b) Fev R. Crm. Proc.

Cost or: 4 (four) dayS ........eeeee secre DEFENDANT

4 (four) dayS ......-..eeeeeeeeeeees Mr. Segal

2 (two) GayS ......eeeeeeeeeeeeres Mr. Malley

5 (five) days ......-.eeeeeeeeees Ms. Simmons

3 (three) days ......--+++eeeeeeees Mrs. Escott

I. FuicHts:

$ 380.00 ........ceceeeceeveceees Defendant

$ 380.00 ........02e cece eececeees Mr. Segal

$ BBO.00 ....ccccccscccccccnes Ms. Simmons

$ 40.00 .......cceecceccvveces Mrs. Escott

Torax: $1,255.00

III. Rooms anp TELEPHONE ...... All of the above persons

ToraL:$ 325.00

a ee eee All of the above persons

ToraL:$ 100.00

V. Lecau Fees:

$1,500.00 ... Mr. Segal, Chief Defense Counsel

$ 500.00 ...... Mr. Malley, Assistant Counsel

ff see Mrs. Escott, Local Counsel

Tozar: $2,500.00

VI. Income Lost By DEFENDANT:

Tora: $1,000.00

TOTALS

In Nortu Caro.ina Ir Hewtp 1n Los ANGELES

I. $1,255.00 I. $ 435.00

II. 200.00 Il. 200.00

ITI. 325.00 IIT. 25.00

IV. 100.00 IV. —

V. 2,500.00 V. 2,000.00

V. 1,000.00 VI. —

$5,380.00 $2,660.00

DirFERENCEs IN:

Expenses/Services ror Less ToHan One Weex—$2,750.00

(This Figure Does Not Include the Cost of Preparation)

I declare under penalty of perjury that the above is true

and correct.

Dated: 5/7/75

At: Federal Court House Bldg., Raleigh, N.C.

/s/ Jerrrey R. MacDonatp

Jeffrey R. MacDonald, Defendant

Crim. Case No. 75-26-Cr. 3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.