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UNITED STATES v. BRISCOE

November 29, 1993

UNITED STATES OF AMERICA
v.
LEONARD BRISCOE and LOY GUNTER


Harris


The opinion of the court was delivered by: STANLEY S. HARRIS

Before the Court is defendant Briscoe's motion to dismiss the indictment on speedy trial grounds. Upon careful consideration of the entire record, the Court concludes that it must grant the motion.

 The Background

 Defendants were indicted on July 19, 1991, in the Southern District of Florida, based upon information presented to a grand jury by the United States Attorney's Office in that district. The case was then, is now, and always has been a case involving alleged conduct that occurred solely in the Southern District of Florida. The indictment contains sixteen counts, and basically charges conspiracy and making false, fictitious, and fraudulent statements regarding a matter within the jurisdiction of the United States Department of Housing and Urban Development (HUD). At issue was illegal conduct (including kickbacks) alleged to have been committed in connection with what was known as the Wedgewood Project in the City of Riviera Beach, Palm Beach County, Florida. See United States v. Briscoe, 792 F. Supp. 1, 2 (D.D.C. 1992).

 At the same time, a second indictment was returned in the Southern District of Florida, charging Leonard Briscoe, one of the two defendants herein, and M. David Steier. Thereafter, while the two United States Attorney's Office's indictments were pending in the Southern District of Florida, the Independent Counsel who had been appointed to investigate possible HUD illegalities obtained an indictment here in the District of Columbia against the same Leonard Briscoe and still another codefendant, Lance W. Wilson. That indictment, filed and designated as Criminal Case No. 91-399, randomly was assigned to the undersigned.

 On October 18, 1991, defendant Briscoe filed in the Southern District of Florida a motion to transfer this case to the District of Columbia. (A similar motion was filed seeking a transfer here of the other Southern District of Florida case.) The United States Attorney for the Southern District of Florida opposed the motion for transfer. In its opposition pleading, the United States Attorney noted:

 
A defendant seeking transfer must demonstrate specific facts from which the district court can conclude that transfer is required under Rule 21(b). See United States v. Noland, 495 F.2d 529, 534 (5th Cir.), cert. denied, 419 U.S. 966, 42 L. Ed. 2d 181, 95 S. Ct. 228 (1974). Briscoe has made no such showing, and, in fact, has not even attempted to show that the District of Columbia would be a more convenient forum for the parties and the witnesses.

 Gov't's Opp. to Mot. to Transfer at 2.

 
The United States Attorney for the Southern District of Florida further stated:
 
Such maneuvering evinces Briscoe's desire to take his first shot in what he apparently believes will be a more favorable environment -- the District of Columbia. Briscoe's request to move the Florida case to D.C. is an obvious effort at forum-shopping and an attempt to find a more sympathetic jury. In such circumstances, the "interests of justice" demand that the South Florida cases be tried in South Florida.
 
Briscoe further alleges that the Independent Counsel deliberately orchestrated the three separate indictments so as to tax Briscoe's resources to the fullest. This contention is incorrect. Contrary to Briscoe's claims, and as Briscoe is aware, the Florida investigations were initiated well before the Independent Counsel's mandate was expanded to cover Briscoe's conduct and, indeed, before the Independent Counsel was even approved. The two Florida prosecutions are the product of lengthy investigation by a federal grand jury in West Palm Beach, in conjunction with the FBI and the Public Integrity Section, the Northern Major Crimes Division and the Major Frauds Unit of the U.S. Attorney's Office. Venue is proper in this judicial district. There is a substantial federal interest in trying these cases in Palm Beach County, the location of the HUD housing project which is named in the indictment. Briscoe has made no showing that the government chose this venue abusively, i.e., in order to gain an advantage by inconveniencing him. (Citation omitted.)

 Id. at 5-6.

 It appears that in the Southern District of Florida, a district unquestionably overburdened, criminal cases routinely are referred to Magistrate Judges for pretrial matters. See, e.g., United States v. Briscoe, 91-8065-Cr-Roettger (S.D. Fla. Feb. 3, 1992) (Order on Various Motions). In any event, by Order dated January 30, 1992, this case -- as well as the other South Florida case -- was transferred here. In its transfer order, that court stated in part: "This cause arises from the same factual circumstances as one brought in the United States District Court for the District of Columbia." Id. at 1. That, unfortunately, was quite inaccurate, and illustrates how improvident the transfer was.


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