United States v. Harshbarger
5:12-cr-40119
D. Kan.Jan 16, 2013Background
- Defendant Robert Harshbarger is charged in Kansas with misbranding, mail fraud, and multiple counts of health care fraud for a scheme alleged to defraud Kansas Dialysis Services from 2004–2009.
- AIMS, a Tennessee pharmacy owned by Harshbarger, allegedly supplied KDS with iron sucrose misrepresented as Venofer but actually non-branded iron sucrose.
- Invoices from AIMS to KDS allegedly stated Venofer while knowing the product was not Venofer.
- Defendant allegedly misinformed KDS about the source of the iron sucrose via calls and a voice message from Tennessee.
- The government seeks to transfer venue to the Eastern District of Tennessee; the court denies the transfer, finding Kansas proper and not unduly prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue transfer was proper under Rule 21. | Venue should be in Kansas where offenses occurred and victims are located. | Transfer to Tennessee better serves convenience and justice. | No; overall balance favors Kansas. |
| How the Platt factors weigh for transfer. | Factors favor Tennessee due to defendant's location and event nexus. | Factors favor Kansas due to witnesses, documents, and trial logistics. | First factor favors transfer; remaining factors neutral or favor Kansas; denial of transfer. |
| Impact of location of witnesses and events on transfer decision. | Most witnesses and events tied to Kansas. | Defense reliance on Tennessee events and witnesses. | Factor weighs in favor of Kansas, given proximity of witnesses and evidence. |
| Effect of documents/records location on transfer decision. | Documents accessible in both states; not voluminous. | Possibility of jury visit to defendant's business. | Neutral on transfer. |
| Disruption to defendant's business and counsel availability. | Transfer would not significantly impair business; local counsel available. | Family business disruption. | Neutral; minimal disruption. |
Key Cases Cited
- Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964) (venue transfers guided by factors, not single factor)
- In re United States, 273 F.3d 380 (3d Cir. 2001) (relevance of multiple transfer factors; not dispositive)
- Old Chief v. United States, 519 U.S. 172 (1997) (evidence and burden related considerations in transfer/venue context)
- Jones v. Gasch, 404 F.2d 1231 (D.C. Cir. 1967) (first-factor significance in transfer decisions)
- United States v. Bowdoin, 770 F. Supp. 2d 133 (D.D.C. 2011) (transfer analysis and balance of factors)
- United States v. Hunter, 672 F.2d 815 (10th Cir. 1982) (procedural transfer standards in appellate review)
- In re United States, 273 F.3d 380 (3d Cir. 2001) ((duplicate entry; see above))
- Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240 (1964) ((duplicate entry; see above))