RESPONDENT: United States
DOCKET NO.: 320
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
ARGUED: Mar 28, 1956
DECIDED: Jun 11, 1956
Facts of the case
Media for Parr v. United StatesAudio Transcription for Oral Argument - March 28, 1956 (Part 1) in Parr v. United States
Audio Transcription for Oral Argument - March 28, 1956 (Part 2) in Parr v. United States
Mr. Fortas, you may proceed.
If Your Honors please, may I direct your attention to page 3 of our main brief, which is in the white cover.
You will note Rule 21 is set out there, 21 (a) under which this case arises provides for transfer upon motion of the defendant in a case where so great a prejudice exist against the defendant that he can't obtain a fair trial.
21 (b) also provides for transfer upon motion of the defendant.
21 (c) provides that when a case is transferred, the prosecution shall continue in the district or division to which the case was transferred.
Your Honors will note that this rule does not give the Government the privilege of applying for the transfer of a case.
Prior to the adoption of the rules, of course, there was no right of transfer in the defendant whatsoever.
This rule gave the defendant that privilege for the first time but it did not give to the Government the privilege of applying for a transfer of the case.
I suppose they couldn't.
The reason for that is --
I suppose they couldn't.
I beg your pardon?
Suppose they couldn't.
Do you mean because it's constitutional?
It could give the Government a right to transfer from one division to another of the same district.
The same -- in the same district.
Yes, but it gave the Government no right to apply for transfer, whatever.
For several districts, several divisions in one district is relatively an easy figure.
Yes, but in any event, there is no such right in the Government.
Now, the basic reason that justifies that is that the Government has an initial choice of venue where you have multiple venues as frequently happens.
The Government can choose the venue in which it is to file its case.
And presumably, at least, we all hope that the Government's initial choice of the venue in which to bring the case will be based upon considerations of proof and considerations of fairness which should always appeal to the Government.
Now, let us follow this through if we may -- if I may and direct your attention to Rule 48 at the bottom of page 3, which governs dismissals.
Rule 48 was also announced venue principal.
Rule 48 provides that the Attorney General may, by leave of court, file a dismissal of an indictment.
Prior to this rule, the Attorney General could, at any time prior to trial, dismiss an indictment without leave of court.
This rule, the provision in this rule, requiring leave of court or the dismissal of an indictment was inserted by this Court, the Advisory Committee's recommendation left that out.
In other words, the dismissal was to be solely the prerogative of the United States Attorney.