*3 closing argument, it in and his ex- use of ANDERSON, Cir Before WRIGHT and presence at ploitation of Detective Sellers’ WYATT, Judges, cuit Senior trial. Judge.** revers- prosecutor We hold the committed WRIGHT, Judge. using presence Circuit to ar- ible error Sellers’ gue credibility. for Adamson’s argue and Robison Appellants Roberts CLOSING ARGUMENT (1) prosecutor improperly bolstered credibility chief witness with his of its prosecutor’s closing argument, In his (2) agreement testify truthfully plea plea agreement, theme was that the first a state implied closing argument made Ad- coupled supervision, with Sellers’ testi- policeman corroborated that witness’s He declared: amson a credible witness. mony. Throughout argument, ladies and which I argu- gentlemen, points there are two improper closing We reverse I would like you would like to consider. ment. ** New York. Of the Southern points you, two I submit to think about these ladies you to [PROSECUTOR]: arguments ... throughout the gentlemen, [of that he was here to listen Harvey Adam- all Either John counsel]: testimony to that and make sure that— two, two and a half when he testified son Object on the [DEFENSE COUNSEL]: stand, either he lied days he was on the grounds. same It’s the same. It’s not in gave testimony his or the de- when he evidence. gave Neal Roberts lied when he fendant lied, If Adamson ladies [PROSECUTOR]: testimony open testimony. his gentlemen, plea agreement They to Roberts and Mr. Adamson. are called off. ly- of them has to be inconsistent. One ing. We must examine the prosecutor’s com- you yourselves must ask who would So (1) ments to determine whether error was anything gain by lying either committed, (2) preserved whether it was anything ly- who would have to lose (3) appeal and whether the error was harm- ing. suggest you, gentle- I ladies and *4 less. men, Harvey that John Adamson had PROSECUTORIAL MISCONDUCT everything by lying. you to lose I want plea agreement to is read We need not belabor the well-established you Government’s Exhibit No. 1. I want principle prosecutor special that the has a page to read it from the first to the last obligation “improper to avoid suggestions, page. you you I want until to read it insinuations, and especially assertions of it. understand personal knowledge.” Berger v. United plea agreement agreed In that he has to States, 295 55 U.S. S.Ct. 79 testify agreed in four matters. He to (1935). L.Ed. 1314 testify truthfully in all four of these mat- caught lying ters. If he was as to mate- improper It is matters, any rial facts in one of these to vouch for the credibility government of a plea agreement then his would be called Vouching may ways: witness. occur in two charges off. The first-degree murder prosecution may place prestige reinstated, would be and he would stand government may behind the witness or very good going gas likelihoodof to the presented indicate that information not to chamber. If he bargain- would lose the jury supports testimony. the witness’s ing power has, that he he has to serve a States, 339, Lawn v. United 355 359-60 U.S. years minimum of 20 and two months 15, 311, n. 78 S.Ct. 323 n. 2 L.Ed.2d 321 going gas instead chamber. (1958); Lamerson, United States v. 457 F.2d This is what he stands to lose if he comes (5th 1972). 371 Cir. into this court or other court that he agreed has to testify to and lie. type vouching per- first involves pointed Detective Sellers has been out veracity sonal assurances of a witness’s throughout the trial sitting in the is not at issue here. during testimony, particu- courtroom type vouching The second involves larly of John Harvey Adamson. I would prosecutorial remarks that bolster a wit suggest you to that Detective is Sellers credibility by ness’s reference to matters not here on vacation. He had a mission outside the record. See United v. to serve and that mission was to sit and Garza, (5th 1979). 608 F.2d 664 Cir. It listen to the testimony Harvey of John may subtly occur more personal than vouch Adamson. ing, susceptible and is also more to abuse. If the Court [DEFENSE COUNSEL]: This court has prosecuto declared that such please, this, there is no evidence of and I rial remarks be fatal if: don’t know if Mr. Sellers is here on vaca- tion or not. remarks, construed, fairly Yes, THE were on the stay Attorney’s COURT: based let’s with the record. personal knowledge apart from the evi-

534 true, judge, objec- jury might The trial it is sustained case that the

dence questions, to some insinua- them. tions have so understood misstatements, and instructed tions States, v. United F.2d 749 Orebo 293 them. But the situ- jury disregard 1961). (9th Cir. was one which called stern re- ation case prosecutor in this referred repressive per- measures buke and by declaring the record to evidence successful, for the haps, if these were not monitoring was Ad that Detective Sellers impossible granting of a mistrial. It testimony.1 could natu amson’s upon say that evil influence personal had rally believe Sellers acts was removed of these of misconduct knowledge of relevant facts and satis judicial mild action as was taken. by such accurately facts stated that these were fied States, 78, 84-85, Berger v. United 295 U.S. effect, prosecutor In by Adamson. 629, 632-633, (1934). 1314 79 L.Ed. 55 S.Ct. jury that witness could telling the another Adamson’s tes support have been called are not judges Trial court mere States v. timony. This was error. States, v. United Johnson 333 referees. Morris, 1978) (improp (5th F.2d 396 Cir. (1948), 92 L.Ed. supports the imply witness not called er v. El United States (dissenting opinion); prosecution), Reichert United drid, They 588 F.2d Cir. (D.C. 1966) (improper refer role, keeping the run play an active trial witness’s not introduced into statements ning efficiently with a minimum error. evidence). closing argument Their control over *5 Sawyer, 443 broad. United States v. F.2d AP- THE ERROR FOR PRESERVING (D.C. 1971) Cir. 712 PEAL to judge A trial should be alert devi preserved appeal. The error for De- argument. Because proper ations objected pros- to the properly fense counsel potential such comments have the clear for ecutor’s reference evidence outside the affecting adversely right the defendant’s objection The was sustained but record. trial, judge prompt a fair should take prosecutor persisted argument. with his appropriate corrective action as each helpful It would had de have been States, case. See v. United Viereck 318 give fense counsel asked the trial court 63 87 L.Ed. 734 U.S. S.Ct. instruction, jury a curative but such a (1943). the error request necessary is not when is Vouching government witness in a brought attention and cura court’s held closing argument often been to be has United clearly In tive action called for. error, though plain even no reviewable ob- Berger, v. 78, 629, States 295 55 U.S. S.Ct. See, g., e. United States jection was raised. (1934), L.Ed. 1314 79 Justice Sutherland Ludwig, 508 (10th 1974). v. 140 Cir. F.2d declared: Carleo, also United v. See States 576 F.2d prosecuting That the United States attor- objection (10th 1978) (court raised 846 Cir. overstepped pro- ney the bounds of that sponte). sua priety and should charac- fairness which ERROR HARMLESS the conduct officer terize of such an may The error not be a criminal offense is here dismissed by prosecutor did not clearly shown the record. harmless. limit him- reject prosecutor’s argument receiving 1. We contention that that criminals favors from his responded government exchange testimony made for their summation to comments during untrustworthy. suggest might that he defense counsel Adamson’s cross-exam- are We only proper appropriately necessity explain ination and that it involved infer- pres- using unsavory United ences from evidence Detective Sellers’ witnesses. States v. 785, Armedo-Sarmiento, (2nd introduced then. were F.2d 794 ence His comments nei- 545 Cir. 917, 1330, 1976), denied, responsive prosecutor appropriate. 97 ther nor A cert. 430 U.S. S.Ct. may naturally (1977). compelled respond to 51 595 feel L.Ed.2d

535 Goodman, 870, self to comments on the evidence. Under (5th 605 1979); 880 Cir. Antone, prejudice the standard of on the as a record United States v. (5th 603 F.2d 566 whole, say prosecutor’s we com cannot It, 1979). Cir. like other evi circumstantial government ments were harmless. did dence, may be rebutted evidence of ex Compare, United planation. strong a case. not have plea agreement may por Giese, v. (9th 597 F.2d Cir. trayed fully placed in context so 1979) (overwhelming guilt). evidence of jury is not impor misled about its terms or Adamson was its chief witness and the Rosson, tance. United States v. 441 F.2d prosecutor acknowledged govern denied, cert. (5th 1971), Cir. depended ment’s case on his credibility. (1971). 92 S.Ct. 30 L.Ed.2d 78 persuaded We are not admissible, Evidence is not how would have convicted the defendants had it ever, simply because it is contained in or is exposed not been improper argument. plea agreement. Ref explain offered to circumstances, In similar Supreme matters, prejudicial erences to irrelevant “prejudice Court concluded to the cause of See, g., e. example, excluded. are often highly probable the accused is so that we Arroyo-Angulo, States v. 580 F.2d justified assuming are not its nonexis- 1978) (2nd (fact that wit Cir. Berger v. United tence.” 295 U.S. family custody). Rep protective ness’s is in at prosecutor’s of a assurance etition INTRODUCTION OF A PLEA AGREE- co-conspirator’s guilty plea wisely ne MENT CONTAINING A PROMISE OF gotiated light overwhelming evi TRUTHFULNESS guilt similarly dence of inadmissible. retrial, In the event of a the district court Cochran, United States F.2d 380 guidance benefit from some concern- ing the remaining two issues: introduction in evidence of the plea agreement entire TREATMENT OF IN OTHER CIR- ISSUE prosecutorial use of the promise to tes- CUITS tify truthfully. ques- Three circuits have addressed the *6 plea agreement Adamson’s provided: plea agreement testify tion whether a to agreed by It is parties all that the de truthfully is admissible. fendant shall testify truthfully and com admitting The First Circuit has held that times, pletely at all whether under oath promise plain a was not truthfulness not, or to the crimes mentioned in this v.Miceli, error. States F.2d 256 agreement. This shall include all inter The Miceli (1st 1971). opinion implies Cir. views, depositions, hearings and trials. promise the should not have been ad- Should the testify defendant refuse to proper objection, mitted over a but the should testify he time untruthfully scope holding is unclear. or if any material fact in the defendant’s

transcribed The given ques- statements to Seventh Circuit has held that the State prior false, to agreement this tioning concerning plea then this the witness a bar- agreement entire is null and void and the gain promise of truthfulness was not vouch- original charges will be automatically re ing credibility for the witness’s because it instated. knowledge did imply not of facts outside Creamer, the record. United States v. The issue here is not agree- whether the (7th 1977). The F.2d 617-618 Cir. ment is admissible but whether Adamson’s Creamer say impossi- it is court seemed to promise to testify truthfully should have improper ble promise carry been the to an excised before the exhibit was presented suggestion. jury. plea

Evidence that a The has held that a testify witness is Second Circuit ing pursuant plea agreement agreement testify to a usually containing promise is a to admissible to show bias. United States v. exami- truthfully on re-direct is admissible IN ARGUMENT USING THE PROMISE a witness. United to rehabilitate

nation Koss, 506 F.2d v. we consider addressing In the third issue declared 1974). The Koss court (2nd Cir. may make aof prosecutor the use which a credibility be- bore on the evidence plea once a testify truthfully promise to agree- plea would lose his the witness cause admitted. agreement has been perjury, committed immunity if he ment may not tell the prosecutor authority. no but cited a has confirmed jury government that the ADMISSIBILITY TEST FOR THE using credibility before him. witness’s court has discretion to The trial He Gradsky supra. should v. United weigh must of bias. It exclude evidence govern to indicate that the be no more able against the evidence probative the value the steps compel to witness ment has taken possi prejudicial impact against its arguments Both of these to be truthful. improp use the evidence bility will they in vouching involve because improper Diecidue, 603 erly. United States government’s rely vite the on the has been This test testifying is assessment that witness relevancy performed test with the equated truthfully. Rules of of the Federal under declared, prose Judge Friendly As ap this test We conclude Evidence. Id. govern that the implying cutorial remarks to rehabili equally to evidence offered plies testify motivating the witness ment is impeached for a who has been tate witness truthfully: bias. prosecutorial are overkill. strong excluding be made for A case can impres- They inevitably give jurors truthfulness. agreement promise of plea carefully prosecutor is moni- sion that the witness, would seem who otherwise testimony cooperating toring may appear to been untrustworthy, the latter is witness make sure that compelled by prosecutor’s threats and something the stretching the facts— forward and be truthful. promises come do; unable usually quite is prosecutor suggestion prosecutor is had proper objection If forcing the from his witness truth summation, judge should made prosecutor unspoken message is that it; had gone if matters have sustained assuring knows what the truth is and is its the remarks striking far too to make revelation. cure, should have judge an effective cooper- promise instructed that Conveying message explicitly adds little to truth- agreement ation improper vouching. Lawn v. United oath; telling imposed by obligation *7 States, 339, 15, 78 355 359-60 n. way no of prosecutor often has the 311, 15, (1958),Gradsky 323 n. L.Ed.2d 2 321 telling whether the witness knowing States, 706, (5th F.2d 710 v. United 373 Cir. not; books are the truth or that the not 1972) (improper imply government to of perjury indictments filled with using witness). credibility checks for before gone have be- witnesses who Government by implica it conveying We conclude that facts; acquittal an yond equally improper. tion is a matter of mean that as would not seek would such course the Government A alert to trial court should be to make its or even fail an indictment admitting vouching problem a leniency. If promised recommendation containing agreement promise a tes plea know instructions prosecutors that such tify truthfully. The court should consider tempted they hardly will given, will be phrasing promise and content of here. committed excesses implications its and decide wheth ascertain Arroyo-Angulo, 580 F.2d dispel States v. er an instruction to the would United (concurring (2nd 1978) opin- improper suggestions. 1150 Cir.

537 ion). agree. prosecution rights, We not ue can be waived. States v. United guarantor Powell, truthful- portray itself as (9th 1974). 498 F.2d Cir. ness. speak Occasionally jur- courts terms other circuits have held Several they isdiction when mean venue. See 15 improper vouching is whether the test Wright, Cooper, Miller & Federal Practice reasonably pros could believe that Procedure, (discussing civil ven- § indicating a belief personal ecutor was in ue). imprecision unfortunately This causes credibility. g., the witness’s See e. United confusion, but does it not convert venue Bess, (6th v. F.2d 756-57 problems involving subject problems into Ellis, 1979), States v. 547 F.2d Cir. jurisdiction. matter (5th 1977). This court ex Cir. Assuming Judge Wyatt is correct that pressed the idea in same Orebo United the transferor cannot transfer authority impose trial and retain sen- JURISDICTION tence, the appellants should have been sen- Judge Wyatt argues that we cannot tenced in the transferee court. Neither the appeal of this reach merits because the prosecution objected, appellants nor the appellants validly sentenced. however, rights. so waived they their venue disagree. We This court must reach the merits of This case was transferred from Dis- case because we have no basis hold trict Arizona to Southern District of imposed that the sentence was void. judges presid- California for trial. Arizona REVERSED. ed over the trial in Southern California but

sentenced the defendants in an Arizona

courtroom, using ANDERSON, forms headed The District Judge, J. BLAINE Circuit of Arizona. concurring: specially (1) dissent would establish that Judge Wright’s I concur in opinion re- Procedure, Federal Rules Criminal re- versing a special the convictions. I write quires transfer of the entire merely concurrence to comment (2) subject jurisdiction matter is trans- question concerning the transfer these ferred to the new court. propositions Both cases between two districts. are essential to the conclusion that the sen- cases, In reviewing these we noted the tence of the transferor court is void because possibility of irregularities in the transfer relinquished subject it had jurisdic- matter of these cases between the districts and in entirely. tion taking appeal. request- of the We thus Subject jurisdiction, matter also called supplement ed counsel to their briefs to jurisdiction matter, the subject over refers matter, consider this as it had not been the types cases court is authorized to party. raised either hear. It is not transferable. considering After and the record Every jurisdic- federal district court has counsel, briefs of believe I that the defects subject tion over the matter of this case: irregularities proceedings below The district courts the United States did not affect any rights substantial shall have original defendants, and reversal of their convic- *8 against of all offenses the laws of the required ground. tions is not on that F.R. United States. 52(a). not Crim.Pr.Rule Defendants do con- tend, seriously and on this record could not 18 U.S.C. 3231. § contend, right that of theirs any substantial provides change Rule 21 for of ven any degree by been in the had affected ue. A criminal defendant has a constitu procedural irregularities. right tional jurisdiction to be tried in the amendment, the where crime was committed. This the a criminal Under 6th right, right “constitutional venue” other ven- in the like defendant has the to be tried for the ed States District Court Southern jurisdiction where the crime was commit- provision right That is venue District of California.” a ted. right, it it be

though is a constitutional states, agree, and I Judge Wyatt also Jercha, 458 F.2d 1340 waived. U. S. cap- although papers trial were that certain Zerbst, 1972); see also Johnson v. of Arizona and in the District tioned filed (1938). 82 L.Ed. 1461 58 S.Ct. the captioned not and filed and were proce- a formal Under F.Crim.Pr.Rule California, “these that Southern waiving venue” has for “constitutional dure realty: the trial do not affect the errors change a promulgated. Rule allows been jurisdiction of having was a court before venue under two circumstances: of indictment, properly a des- judge the before a) preju- that where the court is satisfied jury ignated that before a to hold great dice so that the defendant is selected, place at a properly summoned and impartial fair could not obtain a and con- the of the district court within district district; trial that ducting the trial.” where, par- the b) the of convenience failing transmit and The errors in to justice, ties in the interest of the and the papers in filing captioning and the court the should be believes that case 52(a) under Rule wrong court were errors transferred. rights not which did affect substantial instances, In both transfer another dis- not which therefore do the defendants and by trict will be considered the transferor require reversal. only by upon a motion the defendant the cases should Wyatt states that change for a of venue. It is a defendant’s reversed, however, of problems because right waiver of the “constitutional venue” ver- following proceedings change that allows of venue. states, page He Diego. dict in San 21(c) procedures Rule sets out dissent, that: 547 of his provides cases. transfer of It that: proceedings after “Had further “When a transfer is the clerk ordered by the been in Arizona verdict conducted shall transmit to the clerk of the court to District of Arizo- Judges for the District proceeding which the is transferred all rep- designations their as acting na under proceeding duplicates papers in the the District Court resentatives of taken, prose- thereof and bail California, had Southern District cution continue in district.” shall that conviction been judgment The transfer of case from one district to Court, a by the Clerk of entered question, jurisdiction another a venue but presented at problem would be different change is also involved. A of venue results But was stage the matter. jurisdiction being given in both venue of events. not course over the transferee court. received, was “Once verdict present cases, In the the transmittal of was as the indictment treated papers accomplished all the re- jurisdiction if the transfer However, 21(c). agree I quired never Southern District of California had Judge Wyatt with failure “[the] [of] made. The continued the Clerk in Phoenix to transmit exclusively in the District Court for Diego prevent did not Clerk San District of Arizona. jurisdiction the transfer of over this indict- by, and imposed “The sentences were ment to the District for the Southern judgments conviction were entered (Judge Wyatt’s dis- California.” in, the District Court for 546) Further, p. judges sent inescapable Arizona. The conclusion designations secured the District of Arizona District Court for for me that sit in the District of California. District of Arizona had no the trials were held San “Thus when judg or to enter the Diego impose the Unit- sentences trial *9 WYATT, Judge (dissenting): are tak District appeals ments which these en." With regret great respect and with for majority, the views of the I dissent must the conclu- respectfully disagree I with expressed from the decision in I believe by Judge Wyatt. sions reached Wright’s opinion. My disagreement is due after the can be proceedings verdict to a belief that the District which Court ways, different either of viewed two judgments of had entered conviction no require which would not reversal. jurisdiction to do so and that “we have received, Once the verdict was jurisdiction appeal, on not of the merits but purpose of the transfer to the Southern merely correcting for the of purpose District of California had been accom- court in entertaining error of lower plished: given the defendants had been Corrick, United v. suit”. States opportunity tried in a district other L.Ed. than prejudice great where the was so (1936) (emphasis supplied). To the same they could not have a fair trial. received Court, is a case in effect criminal Rus verdict, receipt After the 306 F.2d sell United parties agreed to 1962) return to Arizona for sen- juris I reverse for want of would tencing. Therefore, freely It was voluntarily done diction of the District Court. I for the not convenience of all do reach the merits and am unable concerned. join majority opinion reversing in the on If is deemed to have re- the merits. mained in the District Court for the South- 1. California, ern District of I would view the appeals judg- District for this Court are from Judges District Arizona July ments of conviction entered on under desig- acted their continued 1978,in the District United States Court representatives nations as of the District Arizona, im- the District of after sentences Court for the Southern District of Califor- Jurisdic- posed at Phoenix that Court. nia. The agreed defendants to return to indictment, however, over the had on tion District of Arizona for sentencing, May transferred to therefore, any waived right to be sentenced Dis- District for the Southern Court Diego. San under Rule 21 of the trict California We may view agree- also the defendants’ Federal Rules Procedure. The of Criminal ment to return the District of Arizona as pending jur- indictment has been under waiver, waiver of though venue. This District isdiction of the Court made pursuant rule, to any procedural now 2,May District California since Southern prevents the asserting defendants from there trial pending and is now. The that they should have been sentenced in the held in the District of Califor- Southern District Court for the District imposed have been nia. Sentence should waiver, California. The for the conve- District for that that District concerned, nience of all effectively transfer- Instead, through District. a series what red the venue of the case back to the Dis- everything except to me errors seem serious trict Court for the District of Arizona which place the trial took the District Court then “jurisdiction” had (venue) to sentence Arizona, which, having the defendants. Dis- transferred the indictment another trict, jurisdiction over any was without its view, Under either irregularities con- prosecution. cerning filing or the transfer- ring of the sentencing back to Arizona without orders, mere formal motions and I against appel- indictment two would view procedural were harmless as the by grand jury Phoe- lants returned

irregularities did not affect any substantial of Arizona March nix rights of the defendants. 1977. Roberts Robison are named *10 Roberts, counts; is counsel for to the Robison alone and Govern- four first The indictment This asked “for trans- in the fifth count. ment. second motion

named Judge Copple. assigned to was fer from the District of Arizona”. 138; (R. paragraph this motion contained Robison April defendant On Record pages “R” references are to Dis- a transfer from the filed a motion for Appeal; emphasis supplied): on conducting purposes “for trict of Arizona has “Counsel for Co-Defendant Roberts said to be made a trial.” motion was opposition to this accompanying 21. An furthermore withdrawn Fed.R.Crim.P. under was explained previous that Robison to transfer this memorandum counsel’s motion in Arizo- charged in two criminal cases District of Ari- prosecution outside of the court; these was then na state that one of zona.” trial; awaiting on was that the other submitted at Something must have been appeared trial. It that one of the state the docket by this time Roberts because Bolles, an charged the murder of Don cases 2, 1977, Monday, May there that shows on news- investigative reporter for a Phoenix change for was filed “Joinder motions paper, nationally which was a sensational by Rob- continuance deft. venue for story, 1976. Robi- news in and after June This submitted erts”. must have been 21(a) provides for son on Rule which relied 29; Friday, April the docu- Judge Copple on prejudice where proceedings transfer of the part is not of the Record. ment ob- great is so that the defendant “cannot an April 29,1977, Copple signed On impartial any place at tain a fair and trial which, part, relevant is as follows: order by holding law in the dis- fixed for court” 21(a) (b) to Rule Fed.R. “Pursuant was returned. trict where the indictment is for trial urged he not a Cr.P. this case transferred Robison could obtain California at San fair trial in the District of Arizona because the Southern District of publicity newspapers Diego, of “massive California.” this on the television and radio stations of 2,May order filed on This was district”. is to show nothing There the Record April filed On Government made motion appellant that either ever a its response to the motion for transfer. 21(b), Rule to “the con- under which relates aware The Government stated it “well parties venience of and witnesses”. Since publicity” position and took no as to essential for motion defendant is whether “venue in this matter should be Rule 21 grant of an of transfer under order (R. changed” (because a a constitutional defendant has Nothing was filed for defendant Roberts right to a in the district where trial on motion to transfer. committed) (United offense was (1st Cir.), cert. Angiulo, 497 F.2d The motion for a transfer was heard denied, 95 S.Ct. Judge Copple April on 1977. Counsel (1974); Original Committee L.Ed.2d 140 emphasized preju- for movant Robison (b), Par. 21(a) and Note to Fed.R.Crim.P. since mo- publicity dicial had increased 3), writing in this nothing No. there tion was made. Counsel for Roberts stated a transfer which would authorize record objects any change “strenuously he 21(b). only motion in under of venue in this matter”. At end of the 21(a), a trans- is under Rule written record orally decided that hearing, Judge Copple convenience. prejudice, for fer change solely of venue the “motion for Moreover, convenience, Phoenix would as to time”. behalf of Robison denied more than San clearly have been convenient Friday, defendant Ro- April On Diego. Re-Urging De- bison submitted a “Motion “this states that The order of transfer fendant Robison's Previous Motion for Con- wording This is transferred trial”. Change of Venue”. This case tinuance and of Rule provisions Judge Copple, to not conform apparently hand carried to does which 21(a), that the “shall has exclusive over which directs *11 (emphasis sup- course, proceeding" proceeding. judge transfer Of a of the provi- court, not conform to the plied) and does properly designated transferor if un- 21(b) provides which that the 292, sions of Rule any der 28 U.S.C. can conduct and all § (em- “may proceeding” transfer the steps proceeding, in the indictment includ- hand, the other phasis supplied). On done, ing however, the trial. Should this be wording does conform to the title of Rule judge a representative acts as of the 21, the District for which is “Transfer from authority transferee court and his so to act Trial”. designation derives from his under the stat- ute cited.

3. provides only Rule 21 one text Rule 21 is as follows: kind trans- The full fer, “proceeding”, a transfer of the entire 21. from the District RULE Transfer seen, it directs that after transfer Trial prosecution “the shall continue” in the (a) Prejudice For in the District. The authority transferee court. There is no upon court of the defendant shall motion solely trial, Rule 21 for a transfer of the proceeding transfer the as to him to an- jurisdic- court retaining with the transferor other whether or not such district district proceeding tion over the and with the in- specified in the defendant’s motion if pending dictment to remain in the transfer- the court is satisfied that there exists in however, majority, empha- or court. The prosecution the district where the sizes that the indictment was the terms pending great prejudice against so of the transferred to the order defendant that he cannot obtain a fair District of California “for trial”. The ma- impartial any place and trial at fixed jority accepts then the notion that under holding law for court in that district. Rule 21 an indictment can be transferred to (b) Transfer in For the Other Cases. another district “for only trial” and can witnesses, parties convenience of and pending remain for all purposes other in the justice, upon in the interest of the court district in which the indictment was re- motion of the defendant transfer the turned. against This is dead the plain lan- proceeding any as to him or one or more guage of Rule 21 and against thus the com- of the counts thereof to another district. mand Congress, the authority of which is (c) When Proceedings on Transfer. underpinning of all the Criminal Rules transfer is ordered the clerk shall trans- (18 3771, 3772). U.S.C. §§ mit to the which clerk of court to papers in is transferred all In 21, view of the clear directions in Rule proceedings duplicates thereof and that, it is not surprising according my taken, prosecution bail shall con- research, every reported case involving a tinue in that district. transfer under Rule 21 shows continuance prosecution after transfer in the 21(c) procedure Rule states to be fol- court, transferee sentence in the transferee lowed after a transfer has been ordered. conviction, court after entry judgment clerk of the transferor court must the transferee appeal transmit to the clerk of the transferee judgment of the proceeding” “all transferee court. Exam- “any bail ples of procedure A explicit: prescribed by taken”. further direction is Rule 21 are “the shall United Dog, continue in that States v. Crow 532 F.2d dis- trict”, (8th namely, 1976), denied, 1182 transferee district. cert. 430 U.S. 929, 21(e) 1547, contemplates thus 97 (1977); that after an S.Ct. 51 L.Ed.2d 772 order of transfer the Angiulo, (1st transferor court is to have States v. 497 F.2d 440 nothing Cir.), denied, 175, further to do 896, with the cert. 419 95 proceeding, S.Ct. that the jurisdic- (1974); transferor court is without 42 L.Ed.2d 140 v. United States it, tion over Wilson, and that everything (3d Cir.), denied, to final 436 F.2d 122 cert. judgment place will take in the transferee 402 U.S. 91 28 L.Ed.2d 654 S.Ct.

542 Binion, v. Marcello, (M.D.Fla.1977); United States v. (1971); United States (D.Nev.1952). denied, F.Supp. 90 107 398 U.S. Cir.), cert. 543, rehearing de 2172, 26 L.Ed.2d only the first and The case at bar is 26 L.Ed.2d nied, 90 S.Ct. 399 U.S. where, find) after (so I can far as instance States, 288 F.2d (1970); Ashe v. United dis- to another of an indictment transfer 1961); United States (6th Cir. ex- continued to trict, transferor court (C.D.Cal.1975). DeMarco, F.Supp. 107 proceeding. jurisdiction over ercise transfer that when a clear It thus seems *12 under an indictment Rule. 2, 1977, pro- May ordered Having on made, the transferor 21(a) (b) is or Rule 21 to the under ceeding transferred proceeding and jurisdiction of the loses California, the District District Southern jurisdiction over obtains transferee court then disre- the District of Arizona Court for under examples The cited proceeding. that con- the instructions garded completely 21 illustrate this. Rule 21(c). in Phoenix in Rule The Clerk tained provision under There is another “any and bail papers” “all did not transfer the dis- for transfer from Rules Criminal Diego, as Rule in San taken” to the Clerk trict of an indictment. did not 21(c) “prosecution” The directs. the Federal Rules of Crimi- 20(a) Rule District of Cali- in the “continue” Southern a transfer of an provides nal Procedure 21(c) papers fornia, directs. The as Rule “arrested, defendant, where a indictment Arizona, docket entries contin- remained in district, another wishes present” or held Arizona, all documents to be made ued where he has guilty in that district plead the District of captioned to be continued present. held or is Rule arrested or is there, all hear- and to be filed Arizona 20(a) an order of trans- does not state that ap- far as place in Arizona. So ings took it contains made but otherwise fer must be for the Southern pears, the District Court 21(c),namely, language very similar to Rule advised was never California that “the clerk of the court [for district] bar been trans- that the indictment at had pend- ... in which the indictment jurisdiction. its ferred to papers pro- ing shall transmit 5. thereof ceeding copies or certified 7,1978, began February The first trial on in which the court for the district clerk of Copple and a Diego Judge San held, arrested, present, or the defendant jury; jury been sum- apparently had shall continue in that prosecution and the moned the District Court for the South- 20(c) provides then for the district.” Rule Arrangements ern District California. an indictment has been situation where physical must have been made to use the 20(a) Rule so that a de- transferred under Diego facilities in of the District Court San guilty but where for plead fendant California, Southern pleads reason the defendant some jury summoning its mechanism. The court- situation, 20(c) directs guilty. In clerk, reporter and deputy room return the that “the clerk shall staff — Arizo- marshals—were from the District of com- the court in which desig- Judge Copple properly had been na. menced, proceeding shall re- and the Browning hold a Judge nated Chief to the docket of that court.” stored District of district court in the Southern recognize reported The decisions hold (28 292(b)). California U.S.C. § where an indictment is transferred un- 7, place February The took on first trial juris- der Rule the transferor court loses 14, 15, 16, 17 (Friday), (Monday), 13 acquires the transferee court diction and February 20 was a (Friday), (Tuesday); pro- exclusive of the indictment case Birthday). The holiday (Washington’s Examples are Warren v. Richard ceeding. Wednesday, jury on son, 1964); Perry was submitted to the given typed jury was F.Supp. February 648-49 v. United return written continued before Craig forms for the trial printed 9, 10, 11, 12, May Monday, on and 15. On signed separate verdicts a form for Diego May the trial at San was ad- defendant; cap- Roberts was each that for journed Tuesday morning, May be- District Court tioned “United States cause of a Judicial Conference in Phoenix California”; District of for the Southern week. The trial the rest of that resumed on captioned in for Robison was May arguments 23 and final of counsel District Court “United States morning were heard. On the of Wednes- After District of Arizona”. delib- day, May charged the Court the jury. during days morning until the erating jury requested was to return its verdict February jury then Friday, to each on a written defendant form signed verdicts of returned written and given jury captioned to the in the “United guilty all as to the two defend- counts States District Court for however, jury polled, When the ants. jury Arizona”. The retired to deliberate at ver- agree the Foreman declined to p. 10:35 a. m. At 3:05 m. on the same day dict as to Roberts. The instructed returned its written verdicts find- until to resume its deliberations and did so *13 ing guilty each on each defendant count Tuesday morning, February when the naming him. jury reported that it was unable to reach a After the accepted by Judge verdict was unanimous verdict. A mistrial was then Craig, 26, 1978, he set June in Courtroom as to declared both defendants on the Phoenix, No. 1 p. at Arizona m. as at 2:00 agreement of all counsel. time place Nothing of sentence. began The second trial Diego San on said, according to. the transcript, as to the May Judge before Copple and a judge impose who would sentence. The jury. The trial May continued on 3 and on docket entry states that sentence will be May Monday, May Judge 4. On Copple “before Hon. E. Craig W. at Phx.”. met with 25(a), counsel under Rule Between verdict and sentencing, both stated in substance that he was unable to Judge Craig Judge Copple rulings made proceed with the trial Judge and that Craig and orders in the case. (also Arizona) of the District of pro- would On June by an order was filed ceed with and finish the trial. Counsel for Judge Copple denying request of Robison Roberts and for the Government made no interrogatories jur- address to the trial objection agreed to this change, but ors. It is recited that the order is made counsel Robison moved for a mistrial so “with the concurrence of Craig who that there trial”, could be “another before presided portion over a of the case.” jury”, “another and before judge “another The entry docket contains an that on so the matter fully be heard June 9 Judge Copple adjourn- filed an order by judge who has had an opportunity ing the sentences from June July 17. fully to examine the record and make him- self aware of all the circumstances involved On June 12 counsel for Roberts filed two in this trial”. The motion motions, for a mistrial one for a new trial and one for by Judge was denied Copple. judgment of acquittal. Both con- motions tained in the caption this statement: “As- The second trial May resumed on 9 before signed Craig to the Honorable Walter E. Judge Craig who made a statement on the Hearing”. By assign- Post-Trial whom the requirement record which satisfied the appear. ment was not made does 25(a) “certifying Rule that he has famil- On June 15 Robison filed a motion for a iarized himself with the record of the trial”. new trial. Judge Craig was properly designated by Judge Browning Chief to hold a district entry July docket contains an that on court in the Southern District of California adjourning 6 an order was filed the sen- (28 292(b)). U.S.C. July § July tences from 17 to 24. This is said first where the instructions of Rule will be instance post-trial motions be because July Judge Craig 21(c) on 17 and must followed. by have not been

heard judge sentencing. be on ruled provision There is a transfer of given, presuma- is not making the order but comparable civil which is somewhat actions bly Judge Copple. it was provision is 28 21. The U.S.C. transcript hearing of a in Pres- is a There 1404(a),authorizing discretionary transfer § Arizona, cott, July 17 of motions on a civil “the action for convenience of trials, it is for new etc. While defendants witnesses, in the parties interest of stated, evidently this was be- expressly justice”. contains provision nothing, That who, at Judge Craig the end fore however, transmittal of about hearing, denied the motions. It seems to as- transferee district. imposed Phoenix The sentences were ordered, that, sumed transmit- if transfer July by Judge Copple on tal will follow. conviction, judgments signed by course, are, many There more civil were filed on the same date Judge Copple and many actions criminal cases more than in the office of the Clerk of the transferring civil actions other orders the District of Arizona. Court for there consequence, districts. In have been appeal timely were filed with Notices of many attempts Appeals to secure Court of the District Arizona. Clerk transferring civil review of orders actions. the matter reaches this Court Thus long recognized It has if the appeals judgments of filing juris- of transfer ends the an order the District of That Court for Arizona. diction of transferor court over a civil May 2,1977, filed had trans- order *14 action, to secure review then it is difficult to the the District Court ferred of that of the transferor order in the Circuit California, for the Southern design court. to Evidently remedy with the view, thereafter, my in had exclusive which difficulty permit and to review of or- jurisdiction Dis- proceedings. over the actions, Judge ders civil transferring for the District of Arizona had trict Court Learned Hand treated transmittal of the jurisdiction no make the from judgments to papers symbolic as the civil actions act are appeals which these taken. delayed by transfer and if this were the petition transferor for court a mandamus might questioned It at least be whether might appeal (which, an taken filed or the at trans- failure of the Clerk Phoenix to survive, being interlocutory, could not but Diego mit papers all to the Clerk at San might petition for be treated as a manda- jurisdiction prevented the transfer of to the mus). in Magnetic This was the situation Diego. at District Court San Co., Eng. Mfg. Dings Mfg. & F.2d Co. (2d The District Court had 21(c) The direction in Rule to the Clerk to transferring filed an an action order from the court papers transmit all to transferee nature, of New Southern District York to purely seems administrative in de- Eastern signed practicable prose- it District of Wisconsin. The Clerk to make but, papers not at cution to continue in transferee district. did once transmit the at nothing suggest judge, delayed to that failure of There direction of the trans- deprive transmittal would the transferee mittal. from the appealed Plaintiff order jurisdiction. That neglect court of or refus- granting the motion to transfer. Thereaft- byal should an' order of nullify papers Clerk er the Clerk transmitted place sub- transfer would be form over Judge Eastern Wisconsin. stance. (178 868): Learned stated at Hand automatically affect order did not reported decision has been found in

No cause; the transfer the transmittal of point which this is discussed. This is doubt- symbolic papers less at bar be the was to be the act because the case seems to transfer; Appeals Fifth Court of ordered an the case was still Circuit to a District in Oklaho- appeal was taken. action transferred when the district “pending the it, provided ma. The order nothing tak- appeal removed Since transfer the Dis- entry could of the order of in the district court ing place later filing physical trict and the acquired. once jurisdiction affect the Oklahoma, this order shall consti- record in it was that since then decided The court parties tute a transfer to enable transfer was not interlocutory the order of present the matter to the District Court were dis- appeal that if the appealable, but March 1964—before Oklahoma.” On plaintiff late for it would be too missed had been transmitted Mis- papers mandamus since the district petition for is- sissippi District Court Oklahoma —the jurisdiction by lost transmittal court had in the action and restraining sued a order District of Wis- papers to the Eastern injunction, and entered a later issued an (178 continued F.2d at Judge Hand consin. contempt. civil The Tenth judgment of 869): in- Appeals reversed the Circuit Court of appeal we if dismiss contempt judgment on junction and to the district court it remand the case District Court Oklahoma ground that the mandamus, grant a will be too late to jurisdiction on March acquired had already the cause has been transferred. its order. 348 F.2d 643 1964 when it issued Nevertheless, juris- we have had if should Circuit, relying part The Tenth at 648. writ, plaintiff diction to issue the had the cited, above held that Murphy, on Drabik v. applied appeal- for it at the time when it jurisdiction lacked the transferee ed, ought grant we think that we it papers, etc. to the “since the transfer of the now, ignoring only what is at best essential is considered transferee court form; matter of and for we that reason (348 jurisdiction.” acquiring that Court’s appeal hold we are free to treat 648.) Supreme Court summari- F.2d at petition as a for mandamus. 364-5, reversed, (382 at ly saying reargument A motion for in a was made 524): transferor district court after an order of of this special “In the circumstances transfer had been filed and after the case, that the we conclude had been transmitted. There was then a acquired had Oklahoma petition for mandamus to review the order with the Fifth accordance March 11 in *15 of transfer. The Second Circuit Court of instanter transfer order for Circuit’s “Thus, Appeals declared: when that motion vacating erred the Tenth Circuit reargument] came on to be heard the [for orders on the stated Court’s the District District Court for the Southern District of jurisdictional ground.” already jurisdiction New York had lost all Supreme per Court’s Footnote 4 to the over the action because the transfer was follows: opinion curiam read as complete.” then Murphy, Drabik v. 246 Murphy, 246 F.2d 408 “Drabik v. (2d 1957; Hand, J.). F.2d 409 Cir. L. C. authority Cir.), (C.A.2d is not Court, however, Supreme has cast court fails the transferee proposition that considerable doubt on significance the papers until are acquire jurisdiction to, receipt by, transmittal the transferee transferor court. On from the received papers determining court of when the ef- suggests that contrary, Drabik jurisdiction fective time of a transfer jurisdiction be- may lose transferor court over a civil action. In Koehring Co. v. fore that event.” Co., Hyde Construction 382 U.S. of Federal Wright, in Law Professor (1966), 15 L.Ed.2d 416 the Su- (3d ed.) reference to says Courts with preme Court decided that the transferee action: the transfer of a civil acquires jurisdiction, court at least in some in- stances, receipt papers granted from the the motion has been “Once transferor Court. On March with the transferee papers lodged judicial Court, juris- one Court shall loses all constitutes district. the transferor Court Globe, Phoenix, over the case.” held at Prescott and diction be (28 82). creating In Tucson”. U.S.C. § first edition sentence was in the This same courts, Congress (28 provided district U.S.C. course, does of the treatise judicial 132): “There in each shall be § preclude by loss the transfer- explicitly not ” “the district a district court . . . and jurisdiction a civil action at or court of over Moreover, judicial power of a court . time. the third edi- district some earlier (in 1976) by single judge has to the sen- exercised . ”. may tion this footnote tence, noticed; citing authority Supreme as provision it is This last should be Koehring (emphasis sup- decision judge that a has no fundamental district plied): judicial power individually; judicial his may acquire

“But representative transferee court is exercised power as the jurisdiction papers physi- before the “[Jjurisdiction lodged in a a court. reached it.” cally person. judge, exercising not in a In re jurisdiction, acts for the court”. It is concluded that failure Clerk Brown, (5th 1965), 346 F.2d Cir. in Phoenix to to the transmit approval quoted with in United States Diego prevent Clerk in San transfer did Teresi, jurisdiction over indictment this only within may That district courts act District Court for the respective their self-evident Evidently, judges districts seems California. Judiciary District of Arizona that the trans- has believed been assumed since jurisdiction completed, fer of else Congress, however, had been Act of 1789. has not they designations would not have secured make it For emphatic. hesitated to exam Diego sit in San and would not have con- Congress provided ple, has for the times of the trials ducted there. regular sessions of district court “for transacting judicial places business The situation after an order of transfer is chapter” (28 139) fixed U.S.C. § 2d, up by Jurisprudence summed American (emphasis supplied), adjournment under “Criminal Law” and under “Transfer regular “by anywhere session order made Courts”, of Causes in the follow- Federal 140) (em (28 within its district" (21 Am.Jur.2d, U.S.C. ing 440): § statement phasis supplied), special sessions of cause, transferring On places the court “at such in the district originally which the com- action was (28 may require” the nature of business jurisdiction, menced loses and the court to 141) (emphasis supplied). U.S.C. The Su § which the is transferred has preme Court has Courts are said: “District and exercises the same over the matter statute, place solely creation of and the originally as if it had been judge juris in which a exercise thereof commenced in the district. subject absolutely diction is to the control Congress”. McDowell v. United *16 596, 598-9, 111, 111-112, 159 U.S. 16 S.Ct. authority The justification for hold- (1895) 40 L.Ed. 271 ing the trial in Diego entirely San is that proceeding had been transferred from Thus, when the were held in San trials jurisdiction of the District Court for the Diego, the trial was the Unit- by and before jurisdiction District of Arizona to the of the ed District for the Southern States Court District Court for District of the Southern Copple and Judge District of California. California. Judge Craig representatives were acting as act authority that Court and so to The District their Court for the District of designation by derived from their Chief. Arizona cannot conduct tri- hold court and 292(b) to Diego Judge Browning only als in San but within the Dis- under 28 U.S.C. § Dis- places trict of Arizona at therein. The hold “a district four court in Southern Congress explicit: command of is “Arizona trict of California”. It seems self-evident proceedings Had the further after verdict Diego, and they court held San that the by the District there, conducted in Arizona could have held only they acting Arizona Judges the District of for for District Court States was the United representatives as designations their under It was of California. the Southern Dis- Court for the Southern of the District been, the not, and could not California, judgments had the trict of the District of for District Court of the Dis- been in the name of conviction stenographic true that the Arizona. It is District of trict for the Court Southern captioned is the second trial transcript of by the filed with and entered California and Arizona, jury ver- the District of Court, problem a different Clerk of similarly captioned, and are so dict forms stage at this presented would be to the trial all incident other be the course that was not to matter. But all filed in the captioned. They so were are of events. Arizona; for the District District Court Court for in the District nothing was filed received, the jury verdict was Once the These District of California. the Southern treated as if the proceeding indictment view, errors, and as the my were all' jurisdiction to the Southern Dis- transfer of (Supple- to concede now seems Government never been made. trict of California had Brief, 9). But these errors do not p. mental exclusively continued The reality: the trial was in the affect District of Arizo- the District Court for the District of District Court for na. California, jurisdiction of court had such imposed by, were The sentences indictment, judge properly des- in, were entered judgments of conviction representative of that

ignated to act as for the District of Arizo- Court court, jury properly summoned and before a inescapable for me na. The conclusion is place within in that and at a selected the District of that the District Court for the district of that court. Government impose the Arizona had no Brief, reality (Supplemental recognizes this judgments enter the sentences or to 9): in the second case were p. “The verdicts appeals which these are taken. received in the District Court South- 9. . . ern District of California majority problem treats the here invokes the estab- entirely one of venue and District of Cali The trial in the Southern me) that principle (fully accepted by lished by the return of fornia was not concluded (as a venue in a criminal defect verdict. “A criminal trial con action) by a de- in a civil be waived judgment cluded of sentence entered bar, however, problem at fendant. The upon plea guilt”. a verdict of Frad v. pending in a proceeding, not whether a 312,317, Kelly, 302 U.S. 58 S.Ct. wrong, the venue was could court where (1937). course of appropriate L.Ed. 282 properly proceed judgment nevertheless proceedings, receipt after a waiver in that court on basis of verdict, (as it) would have been I see object right defendants of their Judge Craig to have finished the trial to at bar is improper problem venue. The judgment whether, District of May in the Southern Cali the District after Having fornia. been substituted for the District of Arizona had 25(a), it would be ex Copple authority specific under Rule over indictment judge against specific “fin Robison. That pected that the substitute would Roberts and trial”, indictment, having been transferred ish the to use the words of California, no 25(b), 25(a). According to Rule there could Southern *17 District of Arizona at longer pending after verdict if be a further substitution on judgments time sentence. The “disability” part on the of of there was some because the in- Judge Craig, “disability” appeal is were null and void but no such they which were based was not appear. dictment on made to guilty his judg- Macklin then moved to withdraw which made pending in an indict- the indictment. The certainly plea There must be dismiss ments. granted. the Court The Government in the were pending Court motions ment is not affirmed. The only appealed. act The order was authorized to on it. Such is spelled recognized is out that it things face of but Circuit first was clear on the Second 7(a) of provision in Rule who has ad- by plain “surely anomalous that a man charged that the offenses to chal- guilt permitted Rules his should be Criminal mitted Robison, as with all plead- has against Roberts and which he lenge the indictment to by offenses, prosecuted in- felony “shall be The result (523 195). guilty” ed F.2d at however, dictment.” required, because the indict- was “nullity” was and “that indict- ment a problem difference between The implies nullity necessarily is a that ment problem as by and the I majority seen was the court without hear by contrasting may it be illustrated see (523 196). The case” at Second Powell, 498 F.2d United States 196): (523 F.2d at “The Circuit concluded 1974), v. Mack- Cir. with United States jurisdictional a of an indictment is absence (2d 1975). lin, 523 F.2d power deprives court of its defect which was indicted in the Dis- Powell jurisdictional defect to act. Such a cannot illegal transporting trict of California for defendant, by plea by a even be waived 1324(a)(2). in violation § aliens of 8 U.S.C. point significance in guilty”. The Mack- Amendment and Criminal Sixth purpose our that no valid indict- lin for of an offense require be any pending of Macklin was at time ment was in the district where the offense com- York in the Eastern District of New objection No to venue was raised mitted. thereby deprived of the District Court was verdict by jury’s Powell until after power its to act. guilty. appeal urged Then on he that ven- judgment At the time sentence and of California ue in Southern District bar, pending was established, proceeding out the case no pointing had not been against the the District of de- illegal Arizona stopped his vehicle had been and the fendants and thus there was no aliens discovered the Central could in that Court which defendants California. This affirmed the convic- Court rights, venue or other- tion, stating, things: “We waive their among other which venue, nothing There was over the outset since it wise. note at waived, District Court for the Arizona is not an essential fact constitut- be jurisdiction admittedly exercise the (498 891.) F.2d at could ing charged.” the offense all by Congress conferred on agree entirely statement and I with the Courts. point significance with the decision. that a purpose in Powell for our valid Supreme many years ago, in Court against in, returned

indictment Powell was Bain, 781, 30 parte Ex 7 S.Ct. in, pending and at all relevant times was (1887), peculiarly language L.Ed. 849 used Court the District for the Southern District the case Bain was indicted apt for at bar. of California. grand jury a federal offense was the Eastern then Circuit Court for the Eastern District Macklin indicted in Dis- Thereafter, Virginia. motion of the trict of New York numerous false feder- of on (18 Government, the amended the ally mortgage applications insured indict- it. bargain, by striking As words from Bain part plea of a ment six § U.S.C. tried, guilty entered a convicted and sentenced. An plea Macklin two Thereafter, corpus original petition for habeas counts. it was determined that Supreme grand jury which made to the Court. Whether the the term of returned depended entirely improperly petition granted the indictment had extend- could juris- no whether the “had ed and that Macklin had been indicted Circuit Court judgment which it grand jury expired. term had diction render the after its *18 549 782). object (121 anything at 7 at defendants did not to gave” U.S. S.Ct. power first considered the Supreme they prejudice Court was done. Nor can show to indict- to amend the by anything of the Circuit Court them that was But done. nei- that there was none. The ment and found object, failure the defendants to ther nor determined that amend- Supreme Court consent, prejudice nor absence of their to “deprived ment of indictment jurisdiction. them is relevant on the issue of try peti- to power of the principle put This settled was well in an old ” him . . because tioner and sentence opinion Supreme of the unanimous which he was tried was “the indictment on (Mansfield, Ry. & L. M. Court C. Co. v. jury”. (121 grand no indictment of a U.S. Swan, 4 U.S. S.Ct. 787.) Supreme at at S.Ct. (1884)): L.Ed. 462 explained why then this determination was below, plaintiffs It is true that required equally which me seem words against objection whose the error was to fit the case at bar. The indictment as committed, complain being prej- do not longer pending in Bain was no returned it; udiced it and seems to be an anom- the court of its return because it had been aly and a hardship party at changed by longer amendment and was “no whose instance it was committed should grand jury the indictment of the who permitted advantage to derive an (121 presented it” at at U.S. S.Ct. it; rule, springing but the from the na- in the case at bar was no The indictment judicial power ture and limits of the longer pending in the court of its return States, is inflexible United and with- it transferred to the because had been exception, court, out which requires this District of California. Su- motion, juris- deny of its own its own 13-14, preme (121 at Court said diction, appel- in the exercise of its 788): power, late that of all other courts of the avail, It is of no under such circumstanc- in all cases where such es, say jurisdic- has that the court still jurisdiction affirmatively appear does not crime; for, person tion of the and of the which, in the record on in the exercise of though possession person, it has of the power, every it is called to act. On crime, jurisdiction of the and would appeal, writ of error or the first and properly presented by if it were indict- jurisdic- question fundamental is that of ment, jurisdiction of the offense is tion, first, and then gone, right pro- and the court has no court from which the record This comes. progress ceed further in the of the question the court is to ask and bound case for want of an indictment. If there itself, answer for even when not other- nothing before the court which the suggested, respect wise and without language prisoner, in the of the Constitu- parties the relation of the to it. This rule tion, answer,” can be “held to he is then Noorden, adopted Capron v. Van discharged entitled to be so far as the Cranch, 126, 229,] L.Ed. decided in [2 originally presented offense to the court reversed, judgment where a by the indictment is concerned. The application party against of the power proceed try of the court to whom it in the Circuit had rendered prisoner is as much arrested as if the Court, allegation for want his indictment had been dismissed or a nolle ought citizenship, own which he to have prosequi had been entered. There was made to establish the which nothing it court on which he had invoked. pronounce could hear evidence or sen- tence.

11. The defendants have been tried and con- (with having jurisdiction

I realize full well that victed in a court minor Robison) exception proceeding against noted in the case of them. I can see no rea- *19 sentenced why they properly cannot be son Court, Court for the the District America, Appellee, UNITED STATES California, why appeals District of Southern this from the could not be taken to Court KING, Appellant. Eddie Lee the Dis-

judgments of conviction entered No. 79-1645. for the Southern District trict Court California, why this Court could not Appeals, United States Court then, appeals, reach the merits. It on those Ninth Circuit. that the District Court for is fair to assume 8,May Arizona, if advised that this the District of done, would believed it should be Court promptly papers

cause all to be transmitted Dis- to the District Court for Southern course, California; otherwise, of trict of could issue. writ of mandamus objected result may It by my unnecessary and analysis reached consuming. time I believe that it is neces- sary, although, admittedly, it does consume it

some time. But even if were not essen- proceed as I would have this Court tial do, I believe it better that the Rules of than that a

Criminal Procedure be followed which create precedent be established confusion, uncertainty, delay in the ad-

ministration of federal criminal law.

I would reverse for want of judgments of conviction of the United for the District of States Court Arizona, and would issue a writ of manda- directing

mus under 28 U.S.C. § United District Court for the District States judgments of Arizona to of con- vacate viction and to cause its Clerk forthwith to proceeding (or in the transmit all thereof) duplicates to the Clerk of the Unit- ed States California, prejudice all without resentencing appellants District Court for the South- appeals ern District of and to California judgments to be en- Court from tered thereon.