in the service of the government of the United States or of the District of Columbia * * * shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service * * * .' D.C. Code, Sec. 11-1420, 1952 Ed.
United States v. Wood, 299 U.S. 123, 57 S. Ct. 177, 81 L. Ed. 78; Frazier v. United States, supra; Dennis v. United States, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734; May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994. The court does not feel itself in a position to overrule what the United States Supreme Court has determined to be the local controlling law on three separate occasions. Accordingly, the court sees no valid reason to exercise its discretionary power of discharging the grand jury.
The principal argument submitted by the movants centers around their request that the present grand jury investigation be transferred to the Southern District of New York. They cite Rule 21(b), Federal Rules of Criminal Procedure, as being the means under which the court may act. Rule 21(b) provides:
'The court upon motion of the defendant shall transfer the proceedings as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district of division in which the commission of the offense is charged.'
Counsel for the movants point out their principal offices and files are outside the District of Columbia and that there will be inconvenience and expense in transporting all the necessary books and records to this jurisdiction. They further state that all available data indicates that few, if any, of the alleged events to be investigated occurred in the District of Columbia, instead a substantial number of such alleged events occurred in the Southern District of New York. These, and other representations, have had great weight with the court. Indeed, one cannot help but be impressed with the apparent hardship that may come upon these movants. But the concern for the calamity indicated must stop at the stages of sympathy.
The court agrees with counsel that its power to transfer a proceeding to another jurisdiction is governed by the above-quoted Rule 21(b). In passing, it is worth noting that the United States Supreme Court expressly reserved its opinion on whether Rule 21(b) covers anti-trust prosecutions at all. United States v. National City Lines, Inc., 334 U.S. 573, 594, Ft.N. 43, 68 S. Ct. 1169, 92 L. Ed. 1584. This court will also reserve its view on that particular point.
For the movants to be entitled to the benefit of this Rule they would have to be identified as a 'defendant'. Counsel for a number of the movants state they are, for all purposes of the rule, 'defendants'. The court does not find any support for their conclusion. Until there has been an indictment against the movants, they are not 'defendants' within he meaning of Rule 21(b). Furthermore, there is no 'indictment, information or bill of particular' in the record, as required by the rule, showing the specific offenses under investigation. At this stage of the proceedings the issue of jurisdiction cannot yet be determined. Nor should a forecast of the probable results of the grand jury investigation be made to determine whether removal is warranted. Until the precise nature of the offense is known a court should not exercise its discretionary power. Only after the particular charge is ascertained, and since the rule uses the conjunction 'and', can a trial court determine whether 'in the interest of justice' the proceeding should be transferred to another district.
From the research made, Rule 22 appears to implement Rule 21(b) and under the former Rule, a motion to transfer may be made 'at or before arraignment or at such other time as the court or these rules may prescribe'. The expression 'or at such other time as the court or these rules may prescribe' can not be taken from context to give the court the authority to transfer a proceeding prior to the return or ignoring of an indictment.
Counsel for the oil companies have relied heavily on United States v. National City Lines, D.C., 7 F.R.D. 393. It is to be observed, an indictment had been returned in the cited case and the California District Court, through Judge Yankwich, was fully aware at the time he expressed his views of the formal charges laid against the defendants therein.
The motion to transfer the proceedings to another jurisdiction, having been prematurely brought, is hereby denied.
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