10. Special Elements
DeAngelis notes that he is subject to a related criminal
indictment in the New York state courts.
Bein submits a doctor's letter describing a medical
condition that imposes severe dietary restrictions. It would
be much more difficult for Bein to subsist on restaurant food
for a long period of time than if he were able to live at
One of the government's strongest points is that granting
the motion to transfer will split this trial. Judicial economy
would be disserved, and it will certainly be far more
inconvenient for witnesses forced to testify twice. That did
not preclude the partial transfer in United States v. Aronoff,
463 F. Supp. 454 (S.D.N.Y. 1978), but the government urges "that
such a result should not be repeated."
This Court has considerable empathy for the government's
concerns, but they are after all the product of the
government's decision to bring the indictments here in the
first place. Had the natural center of gravity — New York —
been chosen, none of the defendants who now disavow the
transfer motions could have moved for transfer away from the
Southern District of New York (all are themselves New Yorkers).
There would have been no prospect of a split trial.
Alter is the case closest to this one, and it decided on
transfer to the home base of the fraudulent boiler shop
operation. Other cases illustrating the balancing of factors
and ordering transfer are Aronoff (resulting, as already
observed, in a split trial); United States v. Haley,
504 F. Supp. 1124 (E.D.Pa. 1981); United States v. Gruberg,
493 F. Supp. 234 (S.D.N.Y. 1979).
Were it not for the splitting of the proceeding, transfer
would unequivocally be indicated. And even on that score each
defendant has rights that cannot fairly be subordinated to the
decision of his co-defendants to resist transfer (or put
another way, to the government's choice of a less appropriate
forum in the first instance).
Accordingly this proceeding is transferred to the United
States District Court for the Southern District of New York as
to each of defendants Bein, DeAngelis and Vitti. Bein's and
DeAngelis' other motions remain to be considered by the