3:16-cr-30061-SEM-TSH # 11 Page 1 of 10 E-FILED Monday, 28 November, 2016 03:36:13 PM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. AARON J. SCHOCK, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 16-cr-30061 DEFENDANT’S MOTION FOR AN INTRA-DISTRICT TRANSFER TO THE PEORIA DIVISION PURSUANT TO FED. R. CRIM. P. 18 COMES NOW Defendant Aaron J. Shock, by and through counsel, and respectfully moves this Honorable Court, pursuant to Federal Rule of Criminal Procedure 18, for an intra-district transfer to the Peoria Division of the United States District Court for the Central District of Illinois. INTRODUCTION On November 10, 2016, a federal grand jury returned a 24-count indictment (“the Indictment”) against Mr. Schock, the former U.S. Representative of the 18th Congressional District of Illinois. The U.S. Attorney’s Office (“USAO”) caused the charges to be filed in this Court’s Springfield Division. This case has virtually no connection to Springfield, however, and Peoria is the more convenient and more appropriate division. Not only has Peoria been Mr. Schock’s home for more than 25 years, including the entire period covered by the Indictment and his three-plus terms in office, but he maintained both his principal district office and his campaign headquarters there. Unsurprisingly then, to the extent that the events alleged in the Indictment took place in Illinois, they occurred overwhelmingly in Peoria, and virtually all expected witnesses who live in Illinois reside in or around the city. By contrast, none of the alleged misconduct occurred in Springfield, and no significant witness, if any witness, lives in Springfield. Yet the USAO chose to file this 1 3:16-cr-30061-SEM-TSH # 11 Page 2 of 10 case not in Peoria—where the USAO maintains an office mere blocks from the federal courthouse—but in Springfield. The only basis for doing so appears to be the prosecutor’s convenience.1 Federal Rule of Criminal Procedure 18 directs this Court to set the place of trial after balancing several enumerated factors and weighing any considerations unique to this case. That task compels a clear conclusion here. Because the case lacks any significant connection to Springfield, and has Illinois connections rooted firmly in Peoria, it should be transferred to the Peoria Division for trial.2 DISCUSSION Rule 18 does more than require “the government [to] prosecute an offense in a district where the offense was committed;” it expressly directs “[t]he court [to] set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.” Fed. R. Crim. P. 18 (emphases added). A trial court thus enjoys “broad discretion in deciding where to fix the location of the trial . . . as long as [it] gives due consideration to the factors listed in Rule 18.” United States v. Balistrieri, 778 F.2d 1226, 1229 (7th Cir. 1985) (quotation omitted). And “[a]lthough the text of Rule 18 refers only to convenience and prompt administration, the district court may consider other factors” raised by the case before it. United States v. Lipscomb, 299 F.3d 303, 340 (5th Cir. 2002); see also 2 Charles 1 Before filing this Motion, Mr. Schock requested that the Government agree to bring the matter in Peoria. The Government declined. When Mr. Schock asked the Government to explain the basis for bringing it in Springfield, it provided no substantive response. 2 Mr. Schock does not concede that venue is appropriate under Rule 18 for any particular count in the Indictment. See Fed. R. Crim. P. 18 (providing that “the government must prosecute an offense in a district where the offense was committed”) (emphases added). Accordingly, Mr. Schock reserves the right to challenge the Indictment for lack of venue at an appropriate point in these proceedings. 2 3:16-cr-30061-SEM-TSH # 11 Page 3 of 10 Alan Wright et al., Federal Practice & Procedure § 305 (4th ed. 2013) (“Wright & Miller”) (“There is substantial authority for the proposition that the court, in exercising its discretion about fixing the place of trial, may take into account numerous factors appearing in the particular case in addition to those listed in Rule 18.”). Moreover, “in evaluating motions for intradistrict transfer,” courts may also “rely on the principles found in Fed. R. Crim. P. 21,” governing transfers between districts. United States v. Miller, No. 06-40068, 2009 WL 4827060, at *5 (D. Kan. Dec. 11, 2009); see also United States v. Bartelt, No. 96-50034, 1997 WL 436229, at *2 (N.D. Ill. July 7, 1997) (“Apart from the fact that Rule 18, and not Rule 21, governs here, the analysis is essentially the same.”). These principles provide that a court should fix the location of a criminal trial based on the following factors: (1) location of corporate defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer. Platt v. Minnesota Min. & Mfg. Co., 376 U.S. 240, 243-44 (1964) (citing Fed. R. Crim. P. 21). Looking to these factors, as well as those made explicit by Rule 18, several reasons counsel in favor of setting Mr. Schock’s trial in Peoria, rather than in Springfield. First, the vast majority of Illinois witnesses likely to testify reside in Peoria. Second, the events occurring in the Central District of Illinois took place in Peoria, which was home not only to Mr. Schock but also to his principal district office and campaign committees. And third, no factors properly weigh in support of a trial in Springfield; Rule 18 simply does not empower a U.S. Attorney’s Office to dictate the place of trial either based on its convenience or for any other reason. First, virtually every anticipated witness who lives in Illinois resides in Peoria. Indeed, witnesses in four crucial categories—Mr. Schock’s close friends and family, his major donors, 3 3:16-cr-30061-SEM-TSH # 11 Page 4 of 10 staff members of Schock for Congress, and members of Mr. Schock’s district staff— overwhelmingly call Peoria home. Based on the USAO’s grand jury investigation, Mr. Schock presently expects that the vast majority of principal witnesses live in or near Peoria or Washington, DC, and that none live in Springfield. “[D]ue regard for the convenience of [these] witnesses,” Fed. R. Crim. P. 18, thus compels transfer to Peoria; see also Platt, 376 U.S. at 243-44 (listing “location of possible witnesses” among factors to consider when assessing a transfer motion). Were trial to go forward in Springfield, a large number of witnesses would be forced to travel more than two hours round trip to testify—many, in all likelihood, on multiple days. This travel time will only compound significant interruptions to the daily lives of these witnesses, and will trigger further costs associated with taking the necessary time off work, arranging for child care, and other consequences. To be sure, the burden of a trial on its witnesses is to some extent unavoidable. But with a more convenient and indeed more appropriate forum available in Peoria itself, this Court may easily and substantially ease the burden for many of those likely to be called here. See, e.g., United States v. Burns, 662 F.2d 1378, 1382 (11th Cir. 1981) (holding district court erred in setting trial “almost 100 miles from . . . the home of defendants and twenty-two of the twenty-four [in-state] witnesses”); United States v. Torres-Rodriguez, No. 08-30126, 2009 WL 458562, at *1 (S.D. Ill. Feb. 24, 2009) (granting motion for intradistrict transfer where the “majority of the government’s witnesses” resided in one division, and “[t]he defendant has not named any witnesses for whom . . . a trial [in that division] would be more convenient”); United States v. Cole, 816 F. Supp. 2d 1202, 1203 (S.D. Ala. 2011) (granting defendant’s intradistrict transfer motion where “most or all of the witnesses likely to testify at trial reside in” the destination division). The burden on Mr. Schock is even more patent. The Government’s choice of a division 4 3:16-cr-30061-SEM-TSH # 11 Page 5 of 10 away from Mr. Schock’s home in Peoria will require him to live in Springfield throughout the trial, causing significant but entirely avoidable expense and inconvenience. Second, the location of the potential witnesses confirms what is otherwise evident from the Indictment: to the extent this is an Illinois case, it is a Peoria case. Peoria is where certain principal events took place, where Mr. Schock lived and worked, where he maintained his principal district office, housed district records, and employed district staff, and where Schock for Congress and related political committees, their staff, and documents were based. See Indictment at 9-11; see also Platt, 376 U.S. at 243-44 (listing “location of . . . defendant,” “location of events likely to be in issue,” and “location of documents and records likely to be involved” among factors to consider when assessing a transfer motion). To be sure, the Government alleges misconduct by Mr. Schock in a number of other locations—in Chicago, for instance, and Washington, DC. Such variation is unavoidable given Mr. Schock’s schedule and the myriad responsibilities he took on during his terms in Congress. But to the extent the alleged conduct occurred, as alleged by the Indictment, “in the Central District of Illinois,” it took place in Peoria. See Indictment at 32, see also id. at 3640, 42-52. Indeed, the Government’s theory of criminal liability centers on such conduct. See, e.g., id. at 16 (“Defendant Schock caused this invoice to be sent via an interstate email communication from the staff member in Peoria to Defendant Schock.”); id. at 18 (“Defendant Schock caused SFC . . . to purchase a 2014 Ford Fusion . . . for his District Chief of Staff in Peoria.”); id. at 22 (“Defendant Schock . . . caused SVC to pay for such tickets by an electronic payment from SVC’s bank account in Peoria . . . .”); id. at 27 (“Defendant Schock hired an Illinois decorator/designer to redecorate . . . his Peoria apartment . . . .”); id. at 32-33 (alleging several wire transfers to “Schock’s CEFCU account in Peoria”); id. at 35 (“[Schock] directed that a check for $11,000 be mailed to him at his residence in Peoria.”); id. at 37 (“[Schock] knowingly caused to 5 3:16-cr-30061-SEM-TSH # 11 Page 6 of 10 be delivered . . . a shipment/mailing . . . to Defendant Schock’s Congressional Office in Peoria, Illinois.”). In contrast, nothing is alleged to have been done in Springfield. Courts routinely fix trial within the division where the misconduct occurred absent a compelling reason not to. As one court that granted a motion to transfer the case to a different division within the same district put it: “Rule 18 presumes that a case should be tried where the offenses at issue were committed.” United States v. Montemayor, No. 13-0039, 2013 WL 4459056, at *3 (S.D. Tex. Aug. 16, 2013); see also United States v. Stanko, 641 F. Supp. 2d 866, 873 (D. Neb. 2009) (“When the court determines what venue is most applicable, it must look at such factors as . . . where the event occurred.”). Unless other appropriate factors direct otherwise then, a defendant should ordinarily be tried in the division where his alleged misconduct occurred. See, e.g., Lipscomb, 299 F.3d at 340 (transfer from Dallas to Amarillo error, in part because “[n]ot a single relevant event occurred outside Dallas”); United States v. Herbert, 698 F.2d 981, 984 (9th Cir. 1983) (no transfer from Phoenix warranted where “the incidents alleged in the indictment occurred within the Phoenix Division”); Burns, 662 F.2d at 1382 (“We must remember in applying Rule 18 that Huntsville is almost 100 miles from Birmingham. . . . and the site of the alleged offenses . . . .”); Montemayor, 2013 WL 4459056, at *3 (transferring case from Houston to Laredo “because the case has no apparent ties to Houston”). In simple terms, this case lacks a Springfield nexus. The following chart illustrates the point in summary fashion. For each of the Indictment’s twenty-four counts, no principal conduct—indeed, no conduct at all—is alleged to have taken place in Springfield, and none of the expected principal witnesses call Springfield home: 6 3:16-cr-30061-SEM-TSH # 11 Page 7 of 10 Count Description of alleged conduct 1 2 3 4 5 6 Wire Fraud re mileage: $1,292.85 Wire Fraud re mileage: $1,428.00 Wire Fraud re mileage: $1,925.00 Wire Fraud re mileage: $1,313.76 Wire Fraud re mileage: $1,218.00 Wire Fraud re AMEX November 2014 Chicago expenses Wire Fraud re AMEX 2014 Super Bowl tickets Wire Fraud re decorator: $15,000 Wire Fraud re fly-in: $11,000 Mail Fraud re camera equipment Theft of Government Funds False Statement to House re camera equipment False Statement to House re decorator expenses False FEC Filing re SVC expense for NFL event / JFC airfare False FEC Filing re GenY expense for PAC Legal Fees False FEC Filing re SFC $4,192.50 transportation expense False FEC Filing re SFC expense for transportation expense and mileage reimbursement False FEC Filing re GenY $8,921.36 mileage reimbursement False Tax Return for 2010 False Tax Return for 2011 False Tax Return for 2012 False Tax Return for 2013 False Tax Return for 2014 False Tax Return for 2015 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Principal location of alleged conduct Any alleged conduct in Springfield? Principal witnesses in Springfield? Peoria / WDC3 Peoria / WDC Peoria / WDC Peoria / WDC Peoria / WDC Peoria / WDC / Chicago Peoria / WDC No No No No No No No No No No No No No No Peoria / WDC Peoria Peoria / WDC ? WDC No No No ? No No No No ? No WDC No No Peoria / WDC / Georgia WDC / Georgia WDC / Georgia WDC / Georgia No No No No No No No No WDC / Georgia Peoria Peoria Peoria Peoria Peoria Peoria No No No No No No No No No No No No No No Third, no countervailing factors suggest that the Springfield Division is the appropriate division for this case. In certain cases, identifiable concerns of a practical nature may prompt a 3 Washington, DC. 7 3:16-cr-30061-SEM-TSH # 11 Page 8 of 10 district court to select one division over another. See Fed. R. Crim. P. 18 (“The court must set the place of trial within the district with due regard for . . . the prompt administration of justice.”); see also Lipscomb, 299 F.3d at 342-43 (considering not only “prompt administration,” but also “docket management, courthouse space and security, and . . . pretrial publicity”); Platt, 376 U.S. at 243-44 (listing “relative accessibility of place of trial” and “docket condition of each district or division involved” among factors to consider when assessing a transfer motion). No such factors are at play here. Mr. Schock is unaware of either docket or facility conditions in Peoria that would significantly impede his right to a speedy, open, and fair trial. Indeed, the only ostensible connection between this case and Springfield is that it happens to be where the lead prosecutor works. But as courts have widely made clear, “convenience of the prosecution . . . is not a factor to consider in changing venue.” Lipscomb, 299 F.3d at 340 (quotations omitted); see also United States v. Mathis, No. 14-0016, 2015 WL 5012159, at *3 (W.D. Va. Aug. 21, 2015) (same); cf. also Burns, 662 F.2d at 1383 (reversing where “[t]he record” failed to “furnish any hint of a reason why a trial could not be held in the Northeastern Division within a reasonable time except for the policy of the court not to do so”). In any event, the USAO maintains an office in Peoria as well, thereby limiting any inconvenience it might suffer. In sum, Rule 18 calls upon a district court to “balance the competing interests and decide the place of trial” accordingly. Torres-Rodriguez, 2009 WL 458562, at *1. Here, that balance is clear. The Government’s case will rest on the testimony of up to two dozen Peoria witnesses, covering actions that took place largely in Peoria, by a man who both lived and worked in Peoria during the period at issue. Both common sense and the plain text of Rule 18 dictate that the case should be tried in Peoria. 8 3:16-cr-30061-SEM-TSH # 11 Page 9 of 10 CONCLUSION For the reasons stated above, Aaron J. Schock respectfully requests that the Court enter an order transferring this case to the Peoria Division for trial. Dated: November 28, 2016 Respectfully submitted, /s/ Robert J. Bittman _____________________________ Robert J. Bittman George J. Terwilliger III Nicholas B. Lewis MCGUIREWOODS LLP 2001 K Street N.W., Suite 400 Washington, D.C. 20006-1040 Tel: 202.857.2473 Fax: 202.828.2965 Email: gterwilliger@mcguirewoods.com /s/ Christina M. Egan _____________________________ Christina M. Egan MCGUIREWOODS LLP 77 West Wacker Drive Suite 4100 Chicago, IL 60601-1818 Tel: 312.750.8644 Fax: 312.698.4502 Email: cegan@mcguirewoods.com /s/ Jeffrey B. Lang ___________________________ Jeffrey B. Lang LANE & WATERMAN LLP 220 N. Main Street, Suite 600 Davenport, Iowa 52801-1987 Tel: 563.333.6647 Fax: 563.324.1616 Email: jlang@L-WLaw.com Counsel for Aaron J. Schock 9 3:16-cr-30061-SEM-TSH # 11 Page 10 of 10 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing instrument was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to counsel of record at their respective email addresses disclosed on the pleadings on this 28th day of November, 2016. /s/ Robert J. Bittman _____________________ Robert J. Bittman 10