                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-2001

In Re: USA
Precedential or Non-Precedential:

Docket 01-2562




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"In Re: USA" (2001). 2001 Decisions. Paper 276.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/276


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed November 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2562

IN RE: UNITED STATES OF AMERICA,
       Petitioner

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 00-cr-00477-2)
District Judge: Hon. Berle M. Schiller

Argued November 2, 2001

Before: SLOVITER, NYGAARD, and CUDAHY,*
Circuit Judges

(Filed: November 21, 2001)



_________________________________________________________________
* Hon. Richard D. Cudahy, United States Court of Appeals for the
Seventh Circuit, sitting by designation.
       Michael L. Levy
        United States Attorney
       Robert A. Zauzmer
        Assistant United States Attorney
        Chief of Appeals
       Richard J. Zack (ARGUED)
        Assistant United States Attorney
       Philadelphia, PA 19106-4476

        Attorneys for Petitioner

       Lynanne B. Wescott (ARGUED)
       Saul Ewing LLP
       Philadelphia, PA 19102

        Attorney for Respondent

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This case is before us on a petition by the United States
for a writ of mandamus directing a District Judge of the
Eastern District of Pennsylvania to vacate his order
transferring this criminal action against defendant Ruth
Streeval to Tennessee and to refrain from transferring the
case unless the showing and findings required by Fed. R.
Crim. P. 21(b) have been made. At issue before us is not
the discretionary decision to transfer vel non but the
procedure to be followed before such a transfer order is
entered.

I.

BACKGROUND

On August 17, 2000, Ruth Streeval and Lollie Binkley,
Streeval's sister, were charged by a grand jury sitting in the
Eastern District of Pennsylvania in a nine-count indictment
with mail fraud, wire fraud, conspiracy to commit mail
fraud, wire fraud, and money laundering, and aiding and
abetting. Binkley was also charged with money laundering

                                  2
and criminal forfeiture. Streeval was, by agreement,
arraigned near her residence in the Middle District of
Tennessee due to her alleged poor health. She subsequently
filed a motion for severance and transfer. The judge then
presiding denied the motion on February 9, 2001.

Binkley pled guilty to all counts charged, and was
sentenced to twenty-seven months imprisonment,
supervised release, and payment of restitution. On May 7,
2001, Streeval, who pled not guilty, renewed her motion for
severance and transfer to Tennessee. On May 8, 2001, the
District Judge who now presided granted the renewed
motion. On May 16, 2001, after a six-day stay, the District
Court denied the government's request for reconsideration
of the motion to transfer. On June 18, 2001, the
government sought a writ of mandamus to compel the
District Court to reconsider its order transferring this case
to Tennessee.

In the interim, on May 29, 2001, in accordance with Fed.
R. Crim. P. 21(c), the Middle District of Tennessee received
from the Eastern District of Pennsylvania a copy of the
order severing and transferring the case, the original record
of this case, and Streeval's indictment, which in turn was
filed in Tennessee. The case was docketed as 01-CR-84 and
assigned to Judge Todd Campbell, who scheduled the case
for prompt trial. After Judge Campbell was advised of the
challenge to the transfer and this court's decision to hear
argument on the matter, he rescheduled the trial date to
February 26, 2001.1

II.

DISCUSSION

A. Jurisdiction

The most hotly contested issue, and the one that gives us
_________________________________________________________________

1. We are most appreciative of Judge Campbell's accommodation, which
enabled this court to consider the matter and prevented an unseemly
tension between federal jurisdictions. We undertook to rule on the
appeal as promptly as possible.

                                3
the most pause, is that of our remaining jurisdiction. Of
course, the District Court originally had jurisdiction over
the criminal case pursuant to 18 U.S.C. S 3231. This court
has jurisdiction over a petition for a writ of mandamus
pursuant to 28 U.S.C. S1651(a). Streeval and the District
Court2 argue that courts of this circuit no longer retain
jurisdiction in this case because it has been transferred to
Tennessee.

Fed. R. Crim. P. 21(b), the rule that Streeval invoked in
seeking transfer, provides that "[f]or 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 that defendant or any one or more of the
counts thereof to another district." We have interpreted the
comparable civil rule to mean that when a transfer of a
case has been completed, " `the transferor court--and the
appellate court that has jurisdiction over it--lose all
jurisdiction over the case.' " White v. ABCO Eng'g Corp., 199
F.3d 140, 143 n.4 (3d Cir. 1999) (quoting 15 Charles
Wright, et al., Federal Practice and Procedure S 3846 at 357
(2d ed. 1986)). Typically, the transferor court loses
jurisdiction when the physical record is transferred.
Hudson United Bank v. Chase Manhattan Bank, 43 F.3d
843, 845-46 n.4 (3d Cir. 1994); Wilson-Cook Med., Inc. v.
Wilson, 942 F.2d 247, 250 (4th Cir. 1991) (citing Chrysler
Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516-
17 (10th Cir. 1991)). Nonetheless, in language particularly
apt here, we have noted that "shifting papers cannot
validate an otherwise invalid transfer." White, 199 F.3d at
143 n.4; see also Warrick v. General Elec. Co. (In re
Warrick), 70 F.3d 736, 739-40 (2d Cir. 1995). Although
White involved a civil case rather than a criminal case, and
thus transfer was pursuant to 28 U.S.C. S1404(a) rather
than Fed. R. Crim. P. 21(b), the language of Rule 21(b) was
_________________________________________________________________

2. The District Court, exercising the option accorded to it by 3rd Cir. R.
3.1 (2001), which allows a district judge to file an opinion or
memorandum to explain an order or decision after an appeal is taken,
filed a memorandum that, in addition to summarizing the reasons for
transfer, includes arguments why this court should not grant
mandamus, more akin to an adversarial brief of a party than a "written
amplification" of a prior order for which the Rule is designed.

                               4
taken from S1404(a) and "decisions construing that statute
. . . provide helpful analogies" for understanding Rule 21(b).
2 Wright, Federal Practice and Procedure S 344 (3d ed.
2000); see also United States v. McManus, 535 F. 2d 460,
463 (8th Cir. 1976); Jones v. Gasch, 404 F.2d 1231, 1236-
37 (D.C. Cir. 1967).

The government argues that this court retains
jurisdiction because "the only document of legal
significance, the indictment, remains in [the Eastern
District of Pennsylvania]." Br. of Government at 7. Although
a copy of the indictment was sent to the Middle District of
Tennessee, the indictment was retained because Streeval's
co-defendant had pled guilty and her sentencing had not
been concluded at that time. App. at 12-13. We need not
evaluate this argument in light of far more compelling
considerations.3

The government argues, and we agree, that this court
retains jurisdiction for purpose of evaluating the legitimacy
of the transfer. In White, a magistrate judge in the
Southern District of New York attempted to transfer a case
to the District of New Jersey under 28 U.S.C. S 1404(a) by
writing "so ordered" under a stipulation signed by the judge
and the parties. This court determined that such an"inter-
district transfer by stipulation" was invalid. White, 199 F.3d
at 143 (emphasis omitted). We ordered the appeal
transferred to the Court of Appeals for the Second Circuit
pursuant to 28 U.S.C. S1631, which allows for transfer
from an appellate court that does not have jurisdiction to
one that does. Id. at 145-46. Although we did not spell out
in White general criteria for deciding when a transfer is
_________________________________________________________________

3. The government also argues that the transfer was invalid because the
District Court's order transferred the case to the"non-existent `District
of Tennessee.' " Br. of Government at 14. Although the District Court did
not specify to which of the three judicial districts in Tennessee the case
was being transferred, it was clear from the context of this case and the
fact that Streeval was arraigned in the Middle District of Tennessee that
the Middle District was the intended transferee district; indeed, the
court
clerk did send the relevant papers to that district. The government does
not cite any case that suggests that a transfer will be invalidated on
such a minor technical point and we are not persuaded by this aspect
of the government's argument.

                               5
valid, the fact that we exercised jurisdiction over the case
when one of the parties challenged the validity of the
transfer demonstrates that we implicitly acknowledged our
jurisdiction to make a determination concerning the validity
of a transfer.

The justification for this rule is clear. A district court
cannot divest an appellate court of jurisdiction by the mere
expedient of ordering a transfer of the file documents to any
other district court without following procedures
established for such a transfer. The proposition is not a
new one. Indeed, we have asserted in numerous cases our
retention of jurisdiction for purposes of evaluating the
legitimacy of a transfer. See, e.g., Solomon v. Cont'l Am. Life
Ins. Co., 472 F.2d 1043, 1045 (3d Cir. 1972) (noting "when
the district court has acted without following appropriate
procedural safeguards, we will . . . confine it in exercising
that discretion"); Shutte v. Armco Steel Corp., 431 F.2d 22,
25 (3d Cir. 1970); Swindell-Dressler Corp. v. Dumbauld, 308
F.2d 267, 274-75 (3d Cir. 1962).4

This is not to say that an appellate court indefinitely
maintains jurisdiction for purposes of evaluating the
effectiveness of a transfer. Obviously, once the transferee
court proceeds with the transferred case, the decision as to
the propriety of transfer is to be made in the transferee
court. However, it is preferable that there be a process that
allows for prompt review of the transfer by the court of
appeals of the transferor circuit. To accomplish that, some
courts have adopted a standard procedure of automatically
granting a stay of a transfer for a specified period of time.
For example, the Eastern District of Pennsylvania, following
a suggestion of this court in Swindell-Dressler , 308 F.2d at
274 n.11, promulgated a local rule whereby a transfer order
is automatically stayed for twenty days, absent expedition.
See E.D. Pa. R. 3.2.5 Unfortunately, that rule does not
_________________________________________________________________

4. While all these cases are civil cases and thus involved transfer under
28 U.S.C. S 1404(a), as noted above, the language in rule 21(b) is
analogous to S 1404(a).

5. See, e.g., D. Conn. R. Civ. P. 18 (directing the court clerk to wait
until
the eleventh day following the order of transfer to mail the papers). S.D.
& E.D.N.Y.R. Civ. P. 83.1 (requiring the court clerk to wait five days

                               6
extend to criminal cases. If it did, the current situation
would have been avoided. Even in the absence of such an
applicable local rule, and without delineating the specific
length of time needed to allow the party resisting transfer to
seek review by an appropriate means, the government acted
with sufficient dispatch here that we have jurisdiction to
consider its petition for mandamus.

B. Suitability of Mandamus

We turn to consider whether mandamus is an
appropriate means to review the transfer in this case. In
general, an order transferring a case is not a final order
and, hence, not appealable. See, e.g., Nascone v. Spudnuts,
Inc., 735 F.2d 763, 764 (3d Cir. 1984).6 While 28 U.S.C.
S1651(a) grants federal courts the general power to issue
writs, it is widely accepted that mandamus is extraordinary
relief that is rarely invoked. See, e.g., In re Patenaude, 210
F.3d 135, 140 (3d Cir. 2000); In re Balsimo, 68 F.3d 185,
186 (7th Cir. 1995); Solomon, 472 F.2d at 1045-46; 16
Wright, et al., Federal Practice and Procedure,S 2936.2, at
667 (2d ed. 1996). In Will v. United States, 389 U.S. 90
(1967), the Supreme Court discussed the exceptional
nature of the remedy of mandamus and, in addition,
expressed "an awareness of additional considerations which
flow from the fact that the underlying proceeding is a
criminal prosecution." Id. at 96. Nonetheless, the Court
recognized that "mandamus may . . . be used [in certain
_________________________________________________________________

before transferring a case to another district); see also Roofing & Sheet
Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 988-89
n.10 (11th Cir. 1982); Semro v. Halstead Enters., Inc., 619 F. Supp. 682,
683 (N.D. Ill. 1985) (noting that "the [c]lerk in this district has a
general
policy of holding transfer papers for at least thirty days" before
transferring to afford non-moving party an opportunity to seek
mandamus review); 15 Wright, et al., Federal Practice and Procedure
S 3846, at 357 (2d ed. 1986) (endorsing the practice of granting a stay of
transfer in the civil context for a sufficient period to allow for an
opportunity to file for appellate review).

6. See also United States v. French, 787 F.2d 1381, 1384 (9th Cir. 1986);
United States v. Nat'l City Lines, 334 U.S. 573, 574 (1948) ("[I]t is . .
.
doubtful whether the government ha[s] a right to appeal from [an] order
of transfer in [a] criminal case.").

                               7
circumstances] to review procedural orders in criminal
cases." Id. at 97. The Court did "not decide under what
circumstances, if any, such a use of mandamus would be
appropriate," id. at 98, but suggested as relevant to that
decision "the constitutional precepts that a man is entitled
to a speedy trial and that he may not be placed twice in
jeopardy for the same offense." Id.

This court has held that a writ of mandamus may issue
to compel a district court to vacate an order transferring a
case to another district. Plum Tree, Inc. v. Stockment, 488
F.2d 754, 756 (3d Cir. 1973); see also Swindell-Dressler,
308 F.2d at 271. More recently, the Court of Appeals for the
Seventh Circuit held that the same rule applies in the
criminal context. See Balsimo, 68 F.3d at 186. Although we
have stated that mandamus relief will "rarely if ever" be
granted directed to transfer orders, as this court has aptly
put it, "rarely if ever d[oes] not mean never." Solomon, 472
F.2d at 1045. Therefore, as "[m]andamus is . . . the
appropriate mechanism for reviewing an allegedly improper
transfer order," Sunbelt Corp. v. Noble, Denton & Assoc., 5
F.3d 28, 30 (3d Cir. 1994), it is appropriate for us to
consider whether we should grant the government's petition
for mandamus.

C. The Motion to Transfer

In deciding whether a writ of mandamus should issue
with respect to an order to transfer, we must take into
consideration that, other than mandamus, the petitioner
has no means of adequate relief, Mallard v. United States
Dist. Court, 490 U.S. 296, 309 (1989) (setting out the
showing required for issuance of mandamus), and that the
transfer, if erroneous, may cause irreparable injury. United
States v. Wexler, 31 F.2d 117, 128 (3d Cir. 1994). As we
noted at the outset, the government does not attempt to
make its arguments against the motion to transfer before
this court. Rather, it asks us to use our mandamus power
to require the District Court to reconsider its order
transferring the case and, in so doing, to follow certain
procedures. Specifically, the government requests that this
court order the District Court to (1) require Streeval to meet
the burden of establishing the appropriateness of transfer
by specific evidence, (2) give the government adequate

                               8
opportunity to respond to Streeval's arguments and
evidence in support of transfer, and (3) make findings and
give reasons for its decision with respect to the transfer
motion.

In support of its petition, the government focuses on
three cases decided by this court: Swindell-Dressler,
Solomon and Plum Tree. In Swindell-Dressler, a district
judge "of his own volition and without any motion or
petition by one or any of the parties, and without hearing,
and without giving Swindell notice or opportunity to be
heard, . . . transferred [the case] to the United States
District Court for the Northern District of West Virginia."
Swindell-Dressler, 308 F.2d at 271. We disapproved the
procedure followed by the district court, holding that by
"denying Swindell any hearing or opportunity for hearing
the court below denied it procedural due process of law
guaranteed to it by the Fifth Amendment." Id. at 273-74.
We issued a writ of mandamus. Id. at 275.

In Solomon, we were again presented with a petition for
mandamus as to an order by the district judge transferring
a case seeking recovery on various insurance policies to the
Middle District of North Carolina, which was the situs of
the accident that was the subject of the suit. This court
interpreted Swindell-Dressler as holding that "when the
district court has acted without following appropriate
procedural safeguards, we will by the writ [of mandamus]
confine it in exercising that discretion to the narrow path of
due process." Solomon, 472 F.2d at 1045. We held,
however, that the facts presented in Solomon were
distinguishable from Swindell-Dressler because "the district
court proceeded after appropriate notice, and the
petitioners opposing transfer had the opportunity to file
opposing affidavits." Id. at 1046. Further, we stated that
although a writ of mandamus might appropriately issue
when a case was transferred where "nothing in the record
indicates that the transferee district will be convenient to
anyone," id., the Solomon case was not of that sort, and we
thus denied the petition for mandamus.

In Plum Tree, the district court granted defendants'
motion for a transfer to the United States District Court for
the Southern District of Texas, even though defendants did

                                9
not file any supporting documents to show that a transfer
would be appropriate. Plaintiffs, who strongly opposed the
transfer, filed a petition for a writ of mandamus. We agreed
with plaintiffs, commenting that "there was no evidence
before the district court upon which it could base a finding
that a transfer order was justified." 488 F.2d at 756. In
particular, defendants failed to "support their motion to
transfer with any affidavits, depositions, stipulations, or
other documents containing facts that would tend to
establish the necessary elements for a transfer," id. at 756-
57, such as:

       names and addresses of witnesses whom the moving
       party plans to call, . . . affidavits showing the
       materiality of the matter to which these witnesses will
       testify, statements by the moving part[y] of the
       business difficulties or personal hardships that might
       result from . . . having to defend against the suit in the
       district court where it was originally brought, affidavits
       concerning the relative ease of access to sources of
       documentary evidence, and other materials where
       appropriate.

Id. at 757 n.2. Because the district court did not have
before it adequate grounds for ordering a transfer, we
ordered that it vacate the order "without prejudice to the
right of defendants on remand to renew in the district court
their motion for transfer, with appropriate supporting
documents." Id. at 757.

Of the cases decided by this court, Plum Tree is most
similar to the present case. Streeval, the party requesting
transfer, did not present "affidavits, depositions, [or]
stipulations," id. at 756, and the District Court did not hold
a hearing concerning the motion to transfer at which
Streeval had the burden to establish the appropriateness of
transfer and the government had the opportunity to
respond to Streeval's arguments for transfer.

Streeval argues that in contrast to Plum Tree , there was
evidence in the present case to support the transfer order.
She refers in particular to the fact that the government did
not oppose her motion to be arraigned in Tennessee, noting
that the FBI had observed that she appeared at her

                               10
arraignment in a wheelchair, and that not only is she
herself handicapped but that she is the caretaker for her ill
husband. She points out that the government's list of
witnesses filed in the Eastern District of Pennsylvania
included only some witnesses from the Philadelphia area
but also some from Tennessee and others that are
geographically dispersed. She also asserts, but without
specificity, that any evidence for the defense would be
located in Tennessee, and notes that none of the offenses is
alleged to have been committed in Pennsylvania. App. at
29-30.

Because the government abjures arguing the merits of
the transfer, its focus is on the procedure followed by the
District Court before it ordered the transfer. Whether to
transfer a case is generally committed to the discretion of
the district courts. See Piper Aircraft Co. v. Reyno, 454 U.S.
235, 257 (1981). We have been reluctant to put specific
requirements on the process by which the district courts
decide motions to transfer, see, e.g., Solomon, 472 F.2d at
1047-48; Plum Tree, 488 F.2d at 756; White, 199 F.3d at
144, undoubtedly because of concern that imposition of
stringent procedural hurdles might interfere unduly with
the exercise of the courts' discretion.

On the other hand, the case law suggests that there are
certain minimum procedures that should be followed before
ruling on a motion to transfer. It would appear evident that
the party objecting to transfer must be given an opportunity
to rebut the arguments and the evidence, if any, offered by
the movant in favor of transfer. Also, it is helpful when the
district court provides a statement of reasons for granting
the motion to transfer so that the appellate court has a
basis to determine whether the district court soundly
exercised its discretion and considered the appropriate
factors. See generally United States v. Criden , 648 F. 2d
814, 819 (3d Cir. 1981). It is not necessary that the
transfer order be accompanied by a lengthy statement--
such as the eight-page opinion in United States v. Coffee,
113 F. Supp. 2d 751 (E.D. Pa. 2000), describing the court's
reasons for transferring a case -- as long as there is a
sufficient explanation of the factors considered, the weight
accorded them, and the balancing performed.

                               11
Most important is that the district court's explanation for
the transfer demonstrate that the court recognized the
nature of the showing that must be made to support a
transfer and the parties' respective burdens. In Platt v.
Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964), a
criminal antitrust case, the Supreme Court enumerated ten
factors that should be considered by a court in deciding
whether to transfer a case. They are:

       (1) location of [the] . . . defendant; (2) location of
       possible witnesses; (3) location of events likely to be in
       issue; (4) location of documents and records likely to
       be involved; (5) disruption of defendant's business
       unless the case is transferred; (6) expense to the
       parties; (7) location of counsel; (8) relative accessibility
       of [the] place of trial; (9) docket condition of each
       district . . . involved; and (10) any other special
       elements which might affect the transfer.

Id. at 243-44 (quotation omitted). Although Platt involved a
corporate defendant, the ten Platt factors are used in cases
involving individual defendants as well. A balance should
be struck among the most important factors in the
particular case to determine whether transfer is
appropriate. See, e.g., United States v. Stephenson, 895
F.2d 867, 875 (2d Cir. 1990).

As to the burdens of proof, this court has stated in 28
U.S.C. S 1404(a) cases that "[t]he burden is on the moving
party to establish that a balancing of proper interests weigh
in favor of the transfer." Shutte v. Armco Steel Corp., 431
F.2d 22, 25 (3d Cir. 1970); see also Jumara v. State Farm
Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995); Elbeco Inc. v.
Estrella de Plato, Corp. 989 F. Supp. 669, 679 (E.D. Pa.
1997); 15 Wright et al., Federal Practice and Procedure
S 3848, at 383 (2d ed. 1986). While the burden is on the
defendant, the defendant is not required to show"truly
compelling circumstances for . . . change . . . .[of venue,
but rather that] all relevant things considered, the case
would be better off transferred to another district." Balsimo,
68 F.3d at 187.

It is not surprising given the similarity between the
language of S 1404(a) providing the standard governing

                               12
transfer of civil cases ("[f]or the convenience of parties and
witnesses, in the interest of justice") and that of Rule 21(b)
governing transfer of criminal cases ("[f]or the convenience
of parties and witnesses, and in the interest of justice"),
that the courts have held that the criminal defendant has
the burden of making the case for transfer. See, e.g., United
States v. Spy Factory, Inc., 951 F. Supp. 450, 464 (S.D.N.Y
1997) (" `[T]he burden is on the moving defendant to justify
a transfer under Rule 21(b).' ") (quoting United States v.
Aronoff, 463 F. Supp. 454, 461 (S.D.N.Y. 1978)); United
States v. Washington, 813 F. Supp. 269, 275 (D. Vt. 1993);
United States v. Long, 697 F. Supp. 651, 656 (S.D.N.Y.
1988), rev'd on other grounds 917 F.2d. 691 (2d Cir. 1990);
United States v. Wheaton, 463 F. Supp. 1073 (S.D.N.Y.
1979); Aronoff, 463 F. Supp. at 461; United States v.
Ashland Oil, Inc., 457 F. Supp. 661, 665 (D. Ky. 1978)
(denying defendant's request to transfer case to the district
of his residence in light of his ill health because his health
was not so severely impaired, he was not bedridden, and he
had not been hospitalized); see also 2 Wright, Federal
Practice and Procedure S 344, at 403 (3d ed. 2000) ("[I]t is
proper to require the defendant, as the moving party, to
carry the burden of showing why a transfer would serve the
purposes specified in [Rule 21(b)]"); 25 James Wm. Moore et
al., Moore's Federal Practice S 621.04[2], at 621 19 (3d ed.
2001) ("To obtain a `convenience' transfer pursuant to Rule
21(b), the defendant must show that litigating the trial in
the district from which transfer is sought . . . either
burdens the defense or creates undue prejudice against the
defendant.").

It is important not to overlook the Supreme Court's
statement in Platt that a defendant is not entitled to defend
his case in his or her home district. See Platt , 376 U.S. at
245-46. That proposition has been frequently relied on as
one of the bases for denying transfer in criminal cases, see,
e.g., United States v. Bittner, 728 F.2d 1038, 1041 (8th Cir.
1984); United States v. Kopituk, 690 F.2d 1289, 1322 (11th
Cir. 1982); United States v. Espinoza, 641 F.2d 153, 162
(4th Cir. 1981).

In this case, the government complains that the District
Court granted Streeval's motion for a transfer, even before

                               13
the government received a copy of the motion, without
waiting for the government's response, and that the court
acted by filing a one-line order that gave no reasons for the
transfer. While the government's frustration is
understandable, these omissions would not in themselves
warrant mandamus. Under the procedure in Swindell-
Dressler, the government had an opportunity to put forth
its argument in opposition to the transfer in its motion for
reconsideration. Admittedly, it may be more difficult to
persuade a judge that a decision already made to transfer
the case should be vacated than it would have been to
persuade the judge not to transfer in the first instance, but
nothing in the record suggests that the District Court did
not consider the government's arguments on
reconsideration.

Similarly, while the initial transfer order dated May 8,
2001 was devoid of explanation for the decision, and the
second order dated May 16, 2001 merely denied the motion
to reconsider the transfer order, again without explanation,
the District Court did use the vehicle of our Local Rule 3.1
to file an explanatory Memorandum dated June 19, 2001.
Once again, the sparseness of the prior orders does not
warrant mandamus in light of the subsequent attempt to
fill the vacuum. Mandamus is only appropriate when the
district court has committed a clear abuse of discretion or
clear error of law.

On the other hand, it is the government's complaint that
the District Court ordered the case transferred without
requiring Streeval to bear the burden of establishing that
transfer was appropriate that causes us concern. Although
the District Court referred to many of the relevant factors,
if in fact the court was unaware that the burden to show
reasons for the transfer was on the defendant, then the
misconception would be serious enough to warrant
mandamus. The burden of proof is often the determinative
factor in a discretionary decision, particularly in one where
the factors may be closely balanced. It is important that an
appellate court performing its review function be satisfied
that the District Court recognized where the burden lay.
Here, Streeval has not pointed to anything in the record or
in the District Court's memorandum that indicates that the

                               14
District Court placed the burden on Streeval. The
government complains, for example, that Streeval has
neither identified nor produced documents that allegedly
show relevant activities took place in Tennessee; that she
has not identified witnesses in Tennessee whereas it has,
such as Wentworth, one of the principal victims of the
fraud, who is in or near the Eastern District of
Pennsylvania; and that she has not produced adequate
evidence that it would be physically burdensome for her to
be tried in Philadelphia.

We recognize that the District Court may indeed have
placed the burden on Streeval and have balanced the
factors to reach its decision to transfer the case to the
Middle District of Tennessee, but we have no basis to so
hold on the record before us. Under the circumstances, we
will remand this matter to the District Court for
reconsideration, requiring Streeval to bear the burden of
showing why transfer is appropriate. We express no opinion
as to the merits of a transfer. At argument the government
conceded that once the District Court evaluated the factors
in light of the appropriate burden, there would be no basis
for it to file another mandamus petition.

In light of the scheduled trial date in Tennessee and our
desire to be reciprocally accommodating to the District
Court in Tennessee, we will direct the District Court on
remand to require the parties promptly to present their
arguments and supporting data, and to rule no later than
the end of the calendar year.7
_________________________________________________________________

7. At oral argument, Streeval's counsel informed the court that her client
was in the hospital and would be unable to attend an evidentiary
hearing in Philadelphia. While regrettable, we do not regard this as a
basis for delay. It is not necessary that the District Court hold an
evidentiary hearing before ruling. Streeval may seek to meet her burden
as to the transfer by submission of affidavits attesting to her medical
condition and her inability to travel to a criminal trial in Philadelphia.

                                15
III.

CONCLUSION

Because we cannot be sure that the District Court
followed appropriate procedure before transferring this case
to Tennessee, we will issue a writ of mandamus ordering
the District Judge to reconsider Streeval's motion to
transfer in accordance with the procedure set out in this
opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               16
