The opinion of the court was delivered by: JOHN BATES, District Judge
On April 28, 2005, a federal grand jury in the District of
Columbia handed up a six-count indictment charging Robert E.
Quinn and Michael H. Holland ("defendants"), both of Lexington,
Kentucky as well as a third individual, Mohammed A. Sharbaf of
Iran with violating laws restricting the export of goods and
technology from the United States to Iran. Trial of defendants is
scheduled to begin on November 7, 2005. The parties have filed
more than a dozen pre-trial motions, and the Court has received
briefing on those motions and heard oral argument from counsel.
For the reasons stated herein, the Court will (1) deny
defendants' motion to transfer the case to the Eastern District
of Kentucky; (2) grant the government's motion to strike portions
of the indictment; (3) grant defendants' motion to dismiss Count
One of the indictment for failing to properly charge the offense
of conspiracy; (4) grant in part and deny in part defendants'
motions to strike from the indictment alleged surplusage; (5)
deny defendants' as-applied due process challenge to the laws
underlying the offenses alleged; (6) deny defendants' motion to
dismiss Counts Two through Six for failure to state an offense;
(7) deny defendants' motion to dismiss the indictment as duplicitous; (8) defer ruling on the pending
evidentiary motions; and (9) deny defendants' motion for a
supplemental jury questionnaire.
Defendants were, at all relevant times, employees of Clark
Material Handling Company ("CMHC"), a Kentucky-based manufacturer
and distributor of lift trucks and lift-truck parts, or its
affiliate company, Clark Material Handling International
("CMHI"), based in Seoul, South Korea. See Indict. at 1-2.
Defendant Quinn was CMHC's vice president for global parts
marketing and later became CMHI's executive vice president for
global business. Id. at 2. Defendant Holland was employed by
CMHC as a parts sales representative for its government/national
accounts. Id. Mohammed Sharbaf, presently indicted but outside
U.S. jurisdiction, was the president and managing director of
Sepahan Lifter Company ("Sepahan"), based in Esfahan, Iran. Id.
Alleged co-conspirator Khalid Mahmood "did business as Sharp Line
Trading," based out of Dubai, United Arab Emirates. Id.
The origin of the laws that defendants are accused of violating
can be traced back nearly 100 years to the Trading With the Enemy
Act of 1917 ("TWEA"), considered to be the predecessor to the
present-day International Emergency Economic Powers Act
("IEEPA"), 50 U.S.C. §§ 1701-06 (2005). See United States v.
Arch Trading, 987 F.2d 1087, 1093 (4th Cir. 1993) (describing
IEEPA as an "extension to" the TWEA). IEEPA provides that the
President may upon declaration of a national emergency
"regulate . . . prevent or prohibit, any . . . transfer . . . or
exportation of, or dealing in, . . . or transactions involving,
any property in which any foreign country or a national thereof
has any interest," 50 U.S.C. § 1702(a)(1)(B). In effect, it gives
the President sweeping authorization to impose economic sanctions
on foreign countries to "deal with an unusual and extraordinary threat [that] has its
source in whole or substantial part outside the United States,"
50 U.S.C. § 1701(a). To ensure the effectiveness of those
sanctions, IEEPA creates criminal penalties for violations of
regulations issued under it. See 50 U.S.C. § 1705(b) ("Whoever
willfully violates, or willfully attempts to violate, any
license, order, or regulation issued under this chapter shall,
upon conviction, be fined not more than $50,000, or, if a natural
person, may be imprisoned for not more than ten years, or both;
and any officer, director, or agent of any corporation who
knowingly participates in such violation may be punished by a
like fine, imprisonment, or both.")
Pursuant to the regulatory authority that IEEPA vests in the
Executive Branch, see 50 U.S.C. § 1704 ("The President may
issue such regulations, including regulations prescribing
definitions, as may be necessary for the exercise of the
authorities granted by this chapter."), and a series of executive
orders invoking that authority and proclaiming emergencies based
on threats to national security, the Department of Treasury has
promulgated a series of rules governing trade with Iran.
Collectively known as the Iranian Transaction Regulations
("ITR"), these rules are codified as Part 560 of Title 31 of the
Code of Federal Regulations, and they form the basis for the bulk
of the charges defendants face. The Treasury Department's Office
of Foreign Assets Control ("OFAC") is responsible for
administering these regulations and for granting licenses that
authorize transactions with Iran otherwise prohibited by the ITR.
See Indict. at 5.
Also relevant to the current charges is the Export
Administration Act ("EAA"), which was originally passed in 1969,
comprehensively rewritten in 1979, and subsequently amended.
See 50 U.S.C. App. §§ 2101-2420. That statute empowers the
President and the Secretary of Commerce to issue regulations,
see § 2414(b), prohibiting or curtailing the export of any
goods or technology for purposes of protecting national security, see
§ 2404, furthering foreign policy, see § 2405, or addressing
supply shortages, see § 2406. The Commerce Department has
promulgated a set of rules, known as the Export Administration
Regulations ("EAR") to enforce the EAA, and those regulations are
codified at Parts 730-774 of Title 15 of the Code of Federal
Regulations. From its inception, the EAA has had "sunset"
provisions, under which it would expire on a specified date
unless Congress affirmatively acted to reauthorize the law. Such
a lapse occurred on August 20, 2001.
In anticipation of the EAA's sunset, President George W. Bush
issued Executive Order 13,222, which, in relevant part, declared
that "[a]ll rules and regulations issued or continued in effect
by the Secretary of Commerce under the authority of the Export
Administration Act of 1979 . . . and all orders, regulations,
licenses, and other forms of administrative action issued, taken,
or continued in effect pursuant thereto, shall . . . remain in
full force and effect as if issued or taken pursuant to this
order. . . ." Exec. Order No. 13,222 § 2, 66 Fed. Reg. 44,025
(August 17, 2001). The order purported to be an exercise of
executive authority pursuant to IEEPA. Id.
All of the events at issue in this case took place between
February 2003 and December 2004, a period during which the EAA
was in lapse. According to the indictment, defendants Quinn,
Holland, and Sharbaf collaborated to export CMHC lift-truck parts
from the United States to Iran, via Dubai. See Indict. at 6-8.
The indictment alleges that Sharbaf and an unidentified
co-conspirator would send requests to Quinn and Holland for price
quotations on CMHC parts, sometimes using Mahmood as an
intermediary. Id. at 7-8. Quinn and Holland, the indictment
states, would provide the quotes and, if Sharbaf and his employer
approved of the prices, Quinn and Holland would arrange to ship
the parts to Mahmood in Dubai, knowing that Mahmood was simply a middleman and that the parts were destined for Iran.
Id. at 8. All of this, the indictment asserts, was done without
obtaining (or seeking) OFAC approval of the transactions. Id.
Count One of the indictment alleges the crime of "Conspiracy to
Violate the United States Iranian Trade Embargo," and is based on
a series of alleged overt acts in furtherance of that conspiracy,
including a number of e-mail communications among the alleged
conspirators. Id. at 6-16. Counts Two through Six allege
"Violation of the United States Iranian Embargo," as well as the
crime of "aiding and abetting" an offense against the
United States, with each count addressing a separate export transaction.
Id. at 17-20.
I. Motion for Transfer of Venue under Rule 21(b)
Defendants have filed a motion to transfer this case to the
Eastern District of Kentucky, pursuant to Rule 21(b) of the
Federal Rules of Criminal Procedure, "for the convenience of the
parties and witnesses and in the interest of justice." In Platt
v. Minn. Mining & Mfg. Co., 376 U.S. 240 (1964), the Supreme
Court provided federal courts with guidance on how to balance the
conflicting interests of parties with regard to transfer-of-venue
motions in criminal cases. The parties here agree that Platt
states the relevant considerations. The ten so-called "Platt
factors" 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 place of trial; (9) docket
condition of each district or division involved; and (10) any
other special elements which might affect the transfer. See
id. at 243-44.
The defendant, as the only possible moving party under Rule
21(b), bears the burden of proving that "all things considered, the case would be better off
transferred to another district." See In re Balsimo,
68 F.3d 185, 187 (7th Cir. 1995). The fact-intensive and discretionary
nature of the Platt inquiry makes it difficult to generalize
about how courts decide which of two districts is more
appropriate when, as here, either venue would be proper. "No one
of [the Platt] considerations is dispositive, and `[i]t remains
for the court to try to strike a balance and determine which
factors are of greatest importance.'" United States v.
Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990) (quoting
United States v. Stephenson, 895 F.2d 867, 875 (2d Cir. 1990)).
Nevertheless, some patterns are discernable. For instance,
several judges have interpreted Rule 21(b) as favoring the
government's choice of forum, so long as venue is proper. See,
e.g., United States v. The Spy Factory, Inc., 951 F.Supp. 450,
464 (S.D.N.Y. 1997) (recognizing a "general presumption that `a
criminal prosecution should be retained in the original
district'") (citation omitted); In re United States of America,
46 Fed. Appx. 133, 136 (3d Cir. 2002) (Barry, J., dissenting from
denial of mandamus petition) ("all things being equal, a case
should stay put"). In other words, if consideration of the
Platt factors leaves the Court in equipoise, the Court should
err on the side of denying the motion to transfer.
Such a view of Rule 21(b) is consistent with the trend in
recent years away from granting transfers to mitigate the
financial, emotional, or practical burdens of trial in a distant
locale. A leading treatise on federal criminal procedure collects
"illustrative" cases in which courts have either granted or
denied transfer for reasons of trial convenience, and with the
exception of an unusual 1990 case in which the considerations
supporting transfer to the Western District of Washington included the possibility of a volcanic eruption in
Alaska*fn1 the most recent cited opinion in which a
district court granted transfer under Rule 21(b) was in 1984.
See 2 C. Wright, Federal Practice & Procedure: Criminal § 344
at n. 29 (3d ed. 2005) (citing United States v. Daewoo Indus.
Co., Ltd., 591 F.Supp. 157 (D. Ore. 1984)). The list of cases in
which transfer was denied, on the other hand, includes numerous
decisions from the 1990s. See id. at n. 30. The collection of
cases is not comprehensive,*fn2 but the Court's own research
supports the observation that transfer under Rule 21(b), although
not unheard of, has been rare in recent years. This is hardly
surprising when one considers the massive expansion of technology
and the relative decline in costs for long-distance travel over
the past few decades.
The 1997 Spy Factory ruling out of the Southern District of
New York a case involving criminal charges against a
Texas-based company and its employees for allegedly conspiring to
import and sell in the United States illegal wiretapping devices
is reflective of the modern approach to Rule 21(b) motions.
Then-District Judge Sotomayor conducted a thorough Platt
analysis on defendants' motion to transfer to the Western
District of Texas and concluded that "most of the factors" (i.e.,
location of witnesses, events, counsel, documents and records,
and the relative accessibility of the respective venues)
"weigh[ed] in favor of neither party." See Spy Factory,
951 F.Supp. at 463 (emphasis added). Weighing in favor of
defendants' motion for transfer were "the location of the
defendants, the potential for disruption of the defendants' businesses and employment, and the defendants' expenses in trying
the case in New York." Id. The only factors clearly supporting
denial of the motion were "the docket conditions of each district
to the extent that a transfer would inevitably necessitate some
delay in the trial date and the defendants' delay in bringing
the motion to change venue." Id. On these facts, the court
found that a change of venue was "unnecessary and not in the
interests of justice." See id. The denial of the motion to
transfer was, however, conditioned on the government's
"representation to make available to the defendant, upon a good
faith showing of need, reasonable funds for transportation to New
York City and for subsistence for the defendant and witnesses
residing in the [alternate venue] whom he may reasonably call in
his defense." Id. at 464 (quoting United States v. Wheaton,
463 F.Supp. 1073, 1078 (S.D.N.Y. 1979)).
A review of the Platt factors in the present case reveals
many similarities to the circumstances in Spy Factory and
compels a similar conclusion:
(1) Location of defendants. All parties agree that this
factor favors transfer to Kentucky, but it is only a minor
consideration. Indeed, the D.C. Circuit has indicated that,
although the defendant's residence is "a factor to be
considered," it is "not the controlling factor," and indeed its
significance derives "solely from its relationship to the
convenience of witnesses, records, and counsel." See Jones v.
Gasch, 404 F.2d 1231, 1240 (D.C. Cir. 1967). Likewise, other
courts have observed that "the location of the defendant's home
[lacks] `independent significance in determining whether transfer
to that district would be in the interest of justice.'" United
States v. McManus, 535 F.2d 460, 463 (8th Cir. 1976) (quoting
Platt, 376 U.S. at 245-46). Nor does a defendant's home have
any constitutional significance. Quite the contrary, the
constitutional provisions addressing venue speak only in terms of
the public's interest in trying criminals in the vicinity where the criminal acts or omissions occurred (i.e.,
where the effects of the crime were felt). See U.S. Const.
art. III, § 2, cl. 3 & amend. VI.
(2) Location of possible witnesses. Representations by the
parties indicate that this factor provides a slight edge to
defendants on their motion to transfer, in that more potential
witnesses reside in Kentucky than reside near Washington, D.C.
But there also are numerous witnesses who live in neither
location such as the investigating agents, who are based in
Chicago, and other prosecution witnesses who reside overseas
and they will be required to travel to either Kentucky or
Washington for a trial. Moreover, the Court declines to assign
much weight to the residences of possible character witnesses for
the accused (considering the ease with which the number of such
witnesses can be inflated pre-trial) and rejects defendants'
suggestion that it ought to take account of the relative
"effectiveness [of character witnesses] before a distant jury."
See Defs.' Reply Mem. in Supp. of Mot. to Trans. at 4. Thus,
this factor provides only minimal support for a transfer to the
Eastern District of Kentucky.
(3) Location of events likely to be in issue. Defendants make
much of the fact that no "acts" related to these charges occurred
in Washington, D.C., for purposes of the Platt analysis, but
they do not dispute that venue is proper here because of the
alleged omissions that are part of the crimes charged (namely the
failure to secure licenses for exports to Iran from OFAC). In
fact, the events comprising the offenses charged occurred in
Kentucky, Washington, and overseas. To the extent that Platt
calls for a consideration of the "location of events," however,
that factor appears to contemplate a case where jurors might
benefit from a visit to a crime scene or might require some
understanding of local geography. See In re United States of
America, 46 Fed. Appx. at 136 (Barry, J. dissenting). This is
not such a case. Therefore, this factor neither supports transfer nor weighs against it.
(4) Location of documents and records likely to be involved.
In light of the availability of electronic storage and transfer
of the documents relevant to this matter, which the parties
acknowledge, this factor is of no significance to the analysis.
(5) Disruption of defendant's business unless the case is
transferred. Defendants Quinn and Holland report that they are
on administrative leave from their respective positions at CMHC.
Nevertheless, they attempt to spin this factor in favor of
transfer by asserting that the business activities of CMHC (a
non-defendant) would be disrupted by a trial in Washington
because Kentucky-based CMHC employees will be called to testify.
On its face, this fact is irrelevant under the
business-disruption prong of the Platt analysis.
(6) Expense to the parties. On the question of party
expenses, defendants contend that they, their families, and their
witnesses will incur significantly greater travel and lodging
expenses for a trial in Washington, D.C., than they would if the
trial were in Lexington, Kentucky. As in the Spy Factory case,
where the government's pledge to pay many of defendants' costs
was significant for the Rule 21(b) analysis, this Court considers
the fact that CMHC "has established a budget for [defendants']
attorneys fees and trial expenses," Defs.' Reply Mem. Supp. Mot.
to Trans. at 7, to be an important consideration. Although it
cannot be disputed that costs for defendants and their
witnesses during the trial period (estimated to be two weeks)
will be marginally higher if the trial is held in Washington
rather than Kentucky, there would be at least a partially
offsetting increase in prosecution expenses associated with a
trial in Kentucky because the government would have to transfer a
cooperating witness, Khalid Mahmood, from the Washington, D.C.,
prison facility where he is currently incarcerated to a Kentucky prison, and because government counsel, who are based in
Washington, would incur greater travel expenses. Furthermore, the
inevitable delay in trial that would result from a transfer could
produce incalculable costs for both parties that otherwise
would not be incurred. In any event, on the facts now before the
Court, there is no way to readily assess whether the total cost
of trial would be greater or lesser if a transfer were granted at
this point in time. Moreover, the parties conceded at the motions
hearing that the record does not permit an assessment of whether
the incremental increase in expense to defendants from a trial in
Washington are greater than the corresponding increase in expense
to the government from a transfer to Kentucky.
Even if the Court is willing to assume that defendants will
likely incur some added overall expense if the case remains in
Washington, the showing that defendants have made with respect to
these costs does not demonstrate a "considerably greater" burden.
See United States v. Jessup, 38 F.R.D. 42, 47 (M.D. Tenn.
1965). Given that defendants' attorneys fees and trial expenses
will, at least in part, be paid by CMHC wherever the trial is
held, the Court is unable to conclude that defendants themselves
will incur significant additional expenses if the case remains
here. And, although the Court does not conclude that the
"financial strength of a defendant," standing alone, "is a reason
for rejecting [a defendant's] argument that proof of added
expense calls for transfer," see Daewoo, 591 F.Supp. at 164
(emphasis omitted), it takes note of the holdings of other courts
that "it is not the fact or size of any expense the defendant may
incur as a result of trial in this District but rather his
ability to bear the expense that concerns the Court" in
conducting a Platt analysis, see, e.g., United States v.
Culoso, 461 F.Supp. 128, 136 n. 12 (S.D.N.Y. 1978). Since
Platt explicitly calls for courts to consider the "expense to
the parties," 376 U.S. at 244 (emphasis added), rather than the "expense to the
defendant," it is not inappropriate to focus on defendants'
financial means when there is no clear evidence that transfer
will result in lower total litigation costs for the parties.
Here, defendants have not shown that they will be unable to bear
any additional expense resulting from trial in Washington. On
that point, it is significant that neither Quinn nor Holland has
made a motion under Rule 17(b) for a court order compelling the
government to pay the expenses of essential defense witnesses,
see Fed.R.Crim.P. 17(b) ("Upon a defendant's ex parte
application, the court must order that a subpoena be issued for a
named witness if the defendant shows an inability to pay the
witness's fees and the necessity of the witness's presence for an
adequate defense."), and that they have access to the
CMHC-financed defense fund. In the final analysis, the alleged
increase in party expenses does little to tip the Platt scales
in favor of defendants' motion for transfer, and instead must be
considered a neutral factor.
(7) Location of counsel. Although defendant Holland's primary
counsel resides in Lexington, Kentucky, defendant Quinn's lead
counsel resides in Indiana (about a three-hour drive to
Lexington)*fn3 and, as already noted, the prosecuting
attorneys reside in or around Washington, ...