Before HASTINGS, Chief Judge, DUFFY and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge: Petitioner, Minnesota Mining and Manufacturing Company, a Delaware corporation, having filed in this court its petition for the issuance of a writ of mandamus directed to Honorable Casper Platt, Chief Judge of the United States District Court for the Eastern District of Illinois, respondent, commanding him to vacate an order which he entered on August 31, 1962, denying petitioner's motion under 18 U.S.C.A. Rule 21(b) of the Federal Rules of Criminal Procedure, to transfer Criminal Action No. 61-73-D then pending in said district court, to the district court in the District of Minnesota, described as the home district of petitioner, the sole defendant in that proceeding, and also commanding him to transfer the action to the said District of Minnesota, we ordered respondent to show cause why the writ should not issue as prayed.
In his answer respondent informed us that he held hearings and that, after examining all the relevant factors, he was not satisfied the petitioner had established that the "interest of justice" would be promoted by the transfer.
In a memorandum accompanying his order, respondent discussed the term "in the interest of justice" and completed an analysis of the facts produced before him, by stating:
"There is one other item which cannot be overlooked in passing upon this motion. For more than 50 years 3M has had many employees and stockholders in the St. Paul area. 3M has grown from a small corporation to an industrial giant while located in the St. Paul area. Its officers and employees have been active in civic affairs. They hold official positions in over thirty-three financial, civic, and educational institutions. All of these activities are to the credit of 3M, but at the same time when one considers the number of contacts that its employees and stockholders have made over the area, and the pride that the community in that area would have, and should have, in 3M, there might exist a very severe influence on any citizen in the area called for jury service. It also must be noted that the charge in the indictment is a misdemeanor, and that the Government and the defendant each have but three peremptory challenges. Rule 24(b), Federal Rules of Criminal Procedure, 18 U.S.C.A. Counsel for the defendant, in his argument, has made the suggestion that the jury might be drawn from outside the counties of Ramsey and Hennepin where there isn't the concentration of officers, employees, and stockholders of 3M. The influence of 3M and its personnel would probably make itself felt among the citizens in the counties adjacent to Ramsey County where St. Paul is located and to Hennepin County where Minneapolis is located. These facts are material in determining where the cause should be tried. See United States v. Hoffa, D.C.S.D. Fla., 1962, 205 F.Supp. 710, 722. It would be more difficult to get a fair and impartial jury in the Minnesota District than in the Eastern District of Illinois.
"This Court has carefully reviewed the facts and circumstances relating to the transfer of this case 'in the interest of justice.' Some facts mentioned by counsel have not been noted in order not to lengthen this memorandum. The Court has concluded that 'in the interest of justice' the cause should be tried in the Eastern District of Illinois."
In his answer, respondent asserts that his
"* * * conclusion that it would be more difficult for the Government to obtain an impartial jury in the District of Minnesota * * * was but one of a number of factors, * * * which led respondent to this conclusion. * * *"*fn1
1. Rule 21(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides:
"* * * The court upon motion of the defendant shall transfer the proceeding 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 or division in which the commission of the offense is charged."
It was stipulated that venue for the offense charged in the indictment lay in both the Eastern District of Illinois and the District of Minnesota. Therefore, it was the duty of the court to transfer the case to the District of Minnesota if it was satisfied that in the "interest of justice" the proceedings should be transferred.No question of venue is before us. The sole question for respondent was whether the transfer to the District of Minnesota would be in the "interest of justice".
While we would not be justified in overriding a denial of transfer based upon a valid exercise by the court of its discretion, it is nevertheless true that we may set aside its action if there is an abuse of discretion, such as its reliance upon an improper factor in determining how the "interest of justice" would be affected by the proposed transfer. Chicago, R.I. & P.R. Co. v. Igoe, 212 F.2d 378; 220 F.2d 299.
The courts have repeatedly recognized the considerations of historic experience and policy which underlie those safeguards in the Constitution against opening the door to needless hardship to an accused by prosecution remote from home and from appropriate facilities for defense. It has been pointed out that such leeway leads to the appearance of abuses if not to abuses, in the selection of what may be deemed a tribunal favorable to the prosecution, United States v. Johnson, 323 U.S. 273, 275. At 276, the court said:
"These are matters that touch closely the fair administration of criminal justice and public confidence in it, on which it ultimately rests. These are important factors in any consideration of the effective enforcement of the criminal law. They have been adverted to, from time to time, by eminent judges; and Congress has not been unmindful of them. Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed. If an enactment of Congress equally permits the underlying spirit of the constitutional concern for trial in the vicinage to be respected rather than to be disrespected, construction should go in the direction of constitutional policy even though not commanded by it."
At 277, the court distinguished a provision of the Elkins Act relied on in Armour Packing Co. v. United States, 209 U.S. 56, which made a venue provision dependent upon transportation of goods, not their sending or bringing, pointing out that transportation is a continuing phenomenon. Transportation is not a critical element in the case at bar.
In Travis v. United States, 364 U.S. 631, 634 (1961), the court explicitly admitted awareness that the venue provisions in acts of Congress should not be so freely construed as to give the Government the choice of "a tribunal favorable" to it.
In 1958, the Supreme Court, in determining the proper venue in a criminal case, United States v. Cores, 356 U.S. 405, said, at 407:
"* * * In ascertaining this locality we are mindful that questions of venue 'raise deep issues of public policy in the light of which legislation must be construed.' United States v. Johnson, * * *"
2. At the hearing on petitioner's motion for transfer, the facts related in the italized portion of respondent's memorandum, ante 2, were established either by affidavits, a letter of petitioner's attorney addressed to respondent, or an answer by petitioner's attorney to a question put in open court. Furthermore, we believe that the statement that its officers and employees have been active in civic affairs is a reasonable inference. However, aside from a mere unsworn statement by government counsel, there is no evidentiary basis for the statement that they held official positions in over 33 financial, civic and educational institutions.We do infer and believe that it would be probable that they would be active in such manner to some degree. We draw from these facts, for the purpose of argument, every reasonable inference to support the denial of transfer to the District of Minnesota, and yet we arrive at the conclusion that petitioner has been an exemplary citizen of that district. We cannot agree that, for that reason, it is not entitled to be tried in the vicinage of its home office. Otherwise we would be arbitrarily denying to it a right first established in 1215 when the Magna Charta was wrung from the hands of King John at Runnymede.
3. In this case, we are also confronted with the question as to whether a district court, created for and sitting in the State of Illinois, may assume the function of deciding whether, in the criminal case at bar, it would be difficult to get a fair and impartial jury if the case were transferred, as prayed by petitioner in reliance on rule 21 (b), to a Minnesota district, where petitioner has from a small beginning grown to be a large corporation with many employees and stockholders living in the area. Briefly stated, when venue exists in both the Illinois and Minnesota districts, is it permissible for a district court in Illinois to make a determination in the "interest of justice" under rule 21(b) to the effect that it would be difficult for the government to procure a fair trial in the District of Minnesota? We have been cited to no federal case so holding.
The underlying spirit of the constitutional concern for trial in the vicinage of the defendant, rooted in centuries of Anglo-Saxon jurisprudence and universally recognized by the federal courts, is not to be ignored. Instead, the lack of such a case is emphasized by the ineffectual efforts of respondent's counsel to justify his action in this case. Thus he cites United States v. Hoffa, 205 F.Supp. 710, 722 (S.D. Fla. 1962), where a district court transferred a criminal case for the purpose of trial to another division of the Southern District of Florida under rule 21(a). However, the ground for transfer was the court's opinion that the facts presented naturally tended to create an atmosphere which might present some difficulty in selecting an impartial and unbiased jury in the transferror court. In so doing, it was passing upon conditions in the district of the court which was making the transfer. It did not assume to pass upon whether a court in another judicial subdivision would or might be able to procure a fair jury or grant a fair trial.
While the opinion of the district court in the case at bar does not explicitly state that a fair and impartial jury could not be obtained in the Minnesota District, and merely says that it would be more difficult to do so than in the Eastern District of Illinois, the only meaningful purpose which can be attributed to the language used is that the court believed that there was a likelihood of the government not receiving a fair jury trial in Minnesota. However, a belief of a difficulty which might be encountered in procuring unprejudiced veniremen would not justify a refusal to make a transfer otherwise proper under rule 21(b), because no court is ...