March 06, 2017 Articles

Lemons and Lemonade: Making the Most of Grounds for Transferring Venue

It appears that Rule 21(b) motions are regularly successful, whereas Rule 21(a) motions are virtually never granted.

By Thad A. Davis and Kelsey J. Helland – March 6, 2017

A federal criminal defendant may want to change venue if the defendant risks facing a potentially tainted jury pool or if the original district is inconvenient. These two grounds for transfer are governed, respectively, by subdivisions (a) and (b) of Federal Rule of Criminal Procedure 21.

Sometimes, a defendant can plausibly argue for both grounds, such as when the defendant has been subject to negative pretrial publicity in the district of prosecution and the defendant and witnesses reside outside of that district. In considering whether to bring a motion to transfer, defense counsel should evaluate whether the motion would be strengthened by seeking relief under both of Rule 21’s available grounds. Indeed, a review of recent cases suggests that a defendant may be able to get the case moved by seeking relief under Rule 21(b) even though the pretrial prejudice alone would not be sufficient to transfer the case under Rule 21(a).

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