NOTICE IS HEREBY GIVEN that the Court will hold a hearing on Julie Hiatt Steele’s Motion to Dismiss Indictment, Or in the Alternative, For Transfer of Cause To the District of Columbia on Friday, February 12, 1999 at 9:00 a.m.

DATED: February 8, 1999

Julie Hiatt Steele, through undersigned counsel, respectfully requests that the Court dismiss the indictment in the above-captioned matter or, in the alternative, transfer this cause from this Court to the United States District Court for the District of Columbia.

Dismissal of the indictment is appropriate because the conduct of the Office of Independent Counsel ("OIC") to prosecute Ms. Steele in this District violates Ms. Steele's constitutional rights and abuses the federal court system. In the alternative, and at a minimum, the Court should transfer this cause to the United States District Court for the District of Columbia, as it has in other cases where prosecutors have attempted to manipulate venue to appear in this jurisdiction. In support of her motion, Ms. Steele relies on the accompanying Memorandum of Law.

WHEREFORE, for the reasons set forth in the attached memorandum of law, Ms. Steele respectfully requests the Court to dismiss the indictment or, in the alternative, transfer the above-captioned cause to the United States Court for the District of Columbia.

DATED: February 8, 1999

United States v. Johnson, 323 U.S. 273, 276 (1944).

This case raises serious and significant venue questions which are of paramount importance not only to Ms. Steele, but to this Court, future litigants, and the criminal justice system as a whole. The Office of Independent Counsel ("OIC") has manipulated multiple grand juries in two jurisdictions, made material and substantial misrepresentations to Ms. Steele and her counsel, improperly coerced the testimony of Ms. Steele before a grand jury impaneled by this Court, and otherwise improperly maneuvered to avoid prosecuting Ms. Steele in the jurisdiction in which its investigation began and is properly terminated, the District of Columbia.

The OIC's premeditated manipulation of venue warrants dismissal of the indictment because it violates Ms. Steele's constitutional rights and misuses the federal court system. In the alternative, and at a minimum, this Court must do what courts in this District have not hesitated to do when prosecutors have abused the rules and the law governing venue; it should transfer the cause to the jurisdiction where it is properly brought and should have been brought, the District of Columbia.

A. The OIC's Investigation re: Jones v. Clinton

In May 1994, Paula Jones filed a lawsuit in Arkansas against President William Jefferson Clinton alleging that he made sexual advances against her while he was Governor of Arkansas. Indictment at ¶¶ 1 and 2. As part of this lawsuit, Jones sought the testimony and evidence of other women who alleged sexual misconduct by the President in the context of their government employment. Id. at ¶¶ 3-4.

One of the women whose testimony was sought was Monica Lewinsky, a former White House intern. In January 1998, the OIC was presented with allegations that the President, Ms. Lewinsky, and others had engaged in conduct to disguise Ms. Lewinsky's relationship with the President to avoid revealing it in the Jones v. Clinton lawsuit. The OIC submitted this evidence to the Attorney General who expanded his jurisdiction to include an investigation as to "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . .in dealing with potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton."

January 16, 1998 Order of the Special Division (attached to Notice of Prosecutorial Jurisdiction).

The OIC began an investigation into potential obstruction of justice and related charges connected to the Jones v. Clinton case in January 1998 in the District of Columbia.

B. Kathleen Willey's Allegations

According to the indictment, Willey, a former White House volunteer, alleges that in November 1993, President Clinton made unwanted sexual advances toward her in the White House. Id. at ¶¶ 6, 7. Specifically, Willey alleged that the President "groped" or "fondled" her. Id. Although she did not make this allegation public until the spring of 1997, the indictment alleges that Willey claims to have contemporaneously told several of her friends and acquaintances, including Julie Hiatt Steele, about the alleged "grope" by the President. Id. at 8.

In July 1997 Willey was subpoenaed to testify in Jones v. Clinton. In her affidavit and two depositions filed in that litigation, and in statements later made public, Willey provided confused and often conflicting versions of the alleged assault, including a blanket denial of any misconduct at all by the President. See Willey Materials (Filed under seal at the designation of the OIC). Early in 1998, in the District of Columbia, the OIC began investigating whether any crime took place in connection with Willey's testimony in Jones v. Clinton.

Ms. Steele is a 52 year-old single mother of a nine-year old adopted child who resides in Midlothian, Virginia, a town just outside of Richmond. She has not been active in politics, has absolutely no prior criminal record, and no connection to President Clinton, Paula Jones or the Jones v. Clinton case. In fact, Ms. Steele's connection to the OIC's investigation, and the allegations set forth in her indictment, stem entirely from her relationship with Kathleen Willey.

In early 1997, Willey called Ms. Steele and asked her to talk to a reporter for Newsweek, who was interviewing Willey in her attorney's office at the time. Ms. Steele had no idea why she was supposed to talk to the reporter and asked that Willey call her back and explain it to her. When Willey called, she told Ms. Steele to tell the reporter that she (Willey) had gone to Ms. Steele's on the very night of an incident at the White House, to tell Ms. Steele that the President had "groped" her, and that she (Willey) appeared "upset" and "humiliated." Willey apparently does not dispute that she asked Ms. Steele to talk to the reporter, but she allegedly did not ask Ms. Steele to lie to him. Indictment at ¶¶ 8-9.

Although Ms. Steele initially conveyed Willey's lie to the reporter off the record, when she later learned that he intended to publish the story, Ms. Steele informed him of her deception. Nevertheless, he published Willey's story and Ms. Steele's recantation in an August 1997 Newsweek article. Indictment at ¶ 12.

It is this "lie" which is at the heart of the OIC's indictment: they believe that Willey told the truth about what she told Ms. Steele about an alleged "grope", and that Ms. Steele is not lying about this alleged "conversation." See, e.g. Indictment at ¶ 36 ("In truth and in fact. . .Kathleen Willey told. . . Steele about the alleged sexual advances. . . .").

D. The OIC's Investigation

The grand jury in the District of Columbia investigating potential obstruction in Jones v. Clinton apparently began focusing on potential obstruction connected to Willey in March 1998. On March 10, 1998, two FBI agents acting on behalf of that grand jury, Indictment at ¶ 25, interviewed Ms. Steele at her attorney's office in Richmond. Id. Ms. Steele provided information to the agents consistent with what had appeared in the August 1997 Newsweek article, Indictment at ¶ 12, and in a February 13, 1998 affidavit executed by Ms. Steele concerning the Newsweek article. Indictment at ¶ 18. On that same day, March 10, Willey testified before a grand jury in the District of Columbia. Indictment at ¶ 24. A number of other witnesses testified before this grand jury, apparently impaneled exclusively for the purpose of assisting in the OIC's multiple investigations of the President. See Susan Glasser, A Parade of Witnesses, WASHINGTON POST Special Report (August 2, 1998) (Attached at Exhibit "3")(setting forth the multitude of witnesses appearing before the District of Columbia grand jury in connection with the OIC's investigation into Jones v. Clinton).

On May 19, 1998, Ms. Steele was served with a subpoena to present documents and appear before the grand jury in the District of Columbia. See 5/19/98 Letter and Subpoena (Attached at Exhibit "4"). Ms. Steele was specifically informed by the OIC that she was "not a target or a subject of this grand jury investigation," and that she was viewed as "a witness with potentially relevant information to provide to the grand jury." See 6/1/98 Letter (Attached at Exhibit "5"). The OIC made this representation with full knowledge of Ms. Steele's statement in Newsweek and her February 13, 1998 affidavit, and with full knowledge of Willey's conflicting statements in her depositions in Jones v. Clinton, her grand jury testimony, and her appearance on the television news magazine 60 Minutes on March 15, 1998.

On June 11, 1998, Ms. Steele testified before Grand Jury No. 97-2 in the District of Columbia. See Transcript of D.C. Grand Jury Appearance ("D.C. Transcript")(Attached at Exhibit "4"). Ms. Steele testified for a full day, claiming no privilege and answering every question fully and truthfully to the best of her knowledge, and consistent with her previous statements regarding this matter. See generally D.C. Transcript.

The OIC was fully aware of any and all discrepancies between Ms. Steele's testimony and that of Willey. It had been made aware of those conflicts by the Newsweek article, by Ms. Steele's unfiled affidavit, by the interview conducted by agents acting on behalf of the District of Columbia grand jury, and by Ms. Steele's and Willey's sworn testimony before the District of Columbia grand jury. Indeed, of the factual allegations contained in the indictment against Ms. Steele, none of them (apart from a discrete number of conversations with witnesses and Ms. Steele's Larry King Live appearance) were unknown to the OIC prior to its movement to this District. See Chart (Attached at Exhibit "7").

E. Rulings in the District of Columbia

On July 1, 1998, less than twenty days after Ms. Steele's testimony in the District of Columbia, United States District Court Judge James Robertson issued a ruling in United States v. Hubbell, Crim. No. 98-0151, a criminal prosecution brought by the OIC against former Deputy Attorney General Webster Hubbell. See United States v. Hubbell, 11 F.Supp.2d 25 (D.D.C. 1998), rev'd and remanded, --- F.3d ---, 1999 WL 26878 (D.C.Cir. Jan. 26, 1999). One of the OIC's lead prosecutors in the Hubbell case was David G. Barger, the same lead prosecutor in this matter. See Hubbell, 11 F.Supp.2d at 26.

Judge Robertson's decision in Hubbell resoundingly dismissed the OIC's case against Mr. Hubbell. Id. At the June 26, 1998 hearing leading to his decision, Judge Robertson described some of the arguments and tactics proffered by the OIC as "really scary." See Bill Miller, Hubbell Tax Case Challenged By Judge, WASHINGTON POST, June 27, 1998, Page A3 (Attached at Exhibit "8"). Commentators on the OIC's efforts viewed Judge Robertson's decision as a crippling blow to the OIC's various investigations:

See Ruth Marcus, Judge Dismisses Hubbell Tax Case, WASHINGTON POST, July 2, 1998, Page A1 (Attached at Exhibit "9") (quoting John Q. Barrett, a St. John's University law professor).

The ruling dismissed the indictment based on two fatal flaws: the OIC's lack of jurisdiction over the matter, and the use of information acquired from Mr. Hubbell pursuant to an immunity agreement. Both issues are at stake in this case, and both will be addressed in motions to be filed by Ms. Steele on February 16, 1999.

F. The OIC's Activity in This District

Approximately three weeks after Judge Robertson's ruling in Hubbell, on July 24, 1998, the OIC served Ms. Steele with a subpoena to present documents to Grand Jury 97-3 in the Eastern District of Virginia. See 7/24/98 Letter and Subpoena (attached at Exhibit "10"). Prior to receipt of this subpoena, neither Ms. Steele nor her counsel were aware that a grand jury in the Eastern District of Virginia was investigating obstruction of justice in Jones v. Clinton. Through her counsel, Ms. Steele questioned the OIC's use of a Virginia grand jury. Mr. Barger represented that his use of a grand jury in the Eastern District of Virginia, as opposed to the District of Columbia where Ms. Steele previously had testified (and where the investigation of potential obstruction in Jones v. Clinton was centered), was necessary because of the "lack of availability" of the District of Columbia grand jury. See 8/3/98 Letter (Attached at Exhibit "11"). At no time did the OIC ever advise Ms. Steele or her counsel that the grand jury in this district was separately investigating obstruction of justice in connection with the Jones v. Clinton case.

Through counsel and before producing documents, Ms. Steele inquired as to whether she was still a "witness." The OIC informed Ms. Steele that although he had previously described her as a "witness", she had actually been a "subject" at the time of her grand jury appearance in the District of Columbia, and he asked whether Ms. Steele intended to invoke her Fifth Amendment rights if summoned before a grand jury in the Eastern District of Virginia. Id.

Ms. Steele asserted her Fifth Amendment privilege not to produce the requested documents absent a grant of immunity from the Court. See 8/5/98 Letter (Attached at Exhibit "12"). The Court ordered immunity pursuant to 18 U.S.C. §§ 6002 and 60003. See 8/14/98 Order of Immunity (Attached at Exhibit "13").

On August 7, 1998, Ms. Steele appeared with her counsel in the lawsuit against Newsweek on the Larry King Live television show in the District of Columbia. In describing her lawsuit she made statements consistent with those made previously in the Newsweek article, her affidavit, and her testimony before the District of Columbia grand jury. See Indictment at ¶ 28.

On August 11, 1998, Ms. Steele was served with a subpoena to appear before Grand Jury 98-1, yet another grand jury sitting in the Eastern District of Virginia. See 8/11/98 Letter and Subpoena (attached at Exhibit "14"). On August 18, 1998, Ms. Steele appeared before Grand Jury No. 98-1 in the Eastern District of Virginia. See Transcript of Va. Grand Jury Appearance ("Va. Transcript")(Attached at Exhibit "15"). She produced the materials she was required to produce to the grand jury pursuant to the subpoena and the immunity order issued by the Court. See Va. Transcript at 2.

On the advice of her counsel, Ms. Steele immediately thereafter invoked her Fifth Amendment right not to answer questions. See, e.g. Va. Transcript at p. 3, line 20; p. 4, line 17; p. 5, line 2, p. 6, line 1. Despite Ms. Steele's continuing invocation of the Fifth Amendment, Mr. Barger repeatedly attempted to question her, including a question Ms. Steele, understandably, felt compelled to answer: "Q: If you, if you did answer it [a question asked in her testimony before the grand jury in the District of Columbia], was it true when you answered it? A: Yes." See generally Va. Transcript.

On November 4, 1998, Ms. Steele's counsel sent a letter complaining of the conduct of certain OIC prosecutors to Kenneth Starr, the Independent Counsel. See 11/4/98 Starr Letter (Attached at Exhibit "16"). On the same day, only hours after the delivery of that letter, the OIC responded, informing Ms. Steele that she was then a "target" of the OIC's investigation. See 11/4/98 Letter (Attached at Exhibit "17").

On January 7, 1999, Ms. Steele was indicted by Grand Jury 98-2, yet another grand jury impaneled in the Eastern District of Virginia on July 7, 1998. To Ms. Steele's knowledge, this was at least the fourth grand jury in two jurisdictions used by the OIC in this matter. Although the entire indictment rests upon a credibility determination between Ms. Steele and Willey - the proverbial "she said"/"she said" - the only grand jury to have heard the live and complete testimony of both is Grand Jury No. 97-2, impaneled and sitting in the District of Columbia.

Ms. Steele does not contest that venue for some of the allegations in the indictment could lie not only in the District of Columbia, but in the Eastern District of Virginia as well. See 18 U.S.C. 1512(h). However, the OIC is obligated to separately establish venue for each count of the indictment. United States v. Walden, 464 F.2d 1015, 1020-1 (4^th Cir. 1972). Ms. Steele is charged in Count Two with obstruction of a grand jury in the Eastern District of Virginia based predominantly on testimony given in the District of Columbia and First Amendment protected speech that was aired around the world on Larry King Live. The OIC has used the District of Columbia grand jury testimony to fabricate an alleged offense in the Eastern District of Virginia.

The OIC's purposeful presentation of information it believed to be "false" to a grand jury in this district to establish venue here, as opposed to the District of Columbia where the investigation was initiated and is centered, was so improper as to warrant dismissal of this indictment on that basis alone. This is not a case where the government chose among a number of appropriate venues, rather, it examined the venue it was in, did not like it; then went to the adjoining district and created crimes there in order to prosecute in that district. This unconstitutional manipulation of the judicial system runs afoul of the Fifth Amendment's guarantee of due process and mandates dismissal of the indictment.

In the alternative, and at a minimum, this Court should transfer this case back to the District of Columbia in the interests of justice pursuant to Fed. R. Crim. P. 21(b). Failure to apply either of these remedies will serve only to encourage future independent counsel and other prosecutors to manipulate venue and bring cases in this district that are properly brought elsewhere, and to reward conduct that ought not be tolerated.

1. Prosecutorial Forum Shopping in General

The location of a criminal trial in the federal system is constitutionally mandated. All trials must be held "in the State where the said Crimes shall have been committed." U.S. CONST., art. III. The Sixth Amendment further guarantees that a trial will be held before a "jury of the State and district wherein the crime shall have been committed."

Because of its constitutional implications, venue concerns often raise the specter of due process and other constitutional violations. The Tenth Circuit has described the importance of venue in criminal prosecutions:

United States v. Miller, 111 F.3d 747, 749 (10^th Cir. 1997) (citations omitted)(emphasis added).

The Federal Rules of Criminal Procedure themselves make clear the intent of the criminal justice system to remove prosecutorial discretion in connection with venue. Under the rules, the government may not ask for a change of venue in a criminal case, and its consent is not required for a court to transfer a cause. See Fed. R. Crim. Pro. 21(b); In re Application to Take Testimony in Criminal Case Outside District, 102 F.R.D. 521, 525 (E.D.N.Y. 1984).

That prosecutorial "forum-shopping" is inappropriate is beyond dispute. In dismissing a case, one court discussed the impropriety of forum shopping as violative of due process even when done in "good-faith" by the government:

United States v. Provoo, 17 F.R.D. 183, 201-2 (D.Md. 1955). See also United States v. Thomas, 527 F.Supp. 261 (D.D.C. 1981) (dismissing indictment where government forum-shopping resulted in delay in prosecution). While it cannot be said that delay motivated the government here, the OIC's conduct certainly establishes bad faith.

2. Forum Shopping By the OIC

This case exemplifies unprecedented prosecutorial forum shopping, about which the Supreme Court and courts across the country have continually expressed fears. Because this investigation began and is centered in the District of Columbia, Ms. Steele and Willey were both called to testify before a grand jury in that district. Before the OIC chose the grand jury which would investigate obstruction of justice in Jones v. Clinton, it well knew of the discrepancies between Willey's account and Ms. Steele's because of Newsweek. Moreover, Willey had testified in the District of Columbia, had given her performance on 60 Minutes, and had publicly questioned Ms. Steele's credibility prior to the date of Ms. Steele's grand jury testimony. Ms. Steele had given a statement to FBI agents acting on behalf of the District of Columbia grand jury and had provided them with her affidavit prior to that time. Ms. Steele testified under oath before that grand jury. At that point, the proper venue for the most of the counts and allegations in the indictment was the District of Columbia. There was one investigation, in the District of Columbia, and the alleged obstruction of that investigation should have been prosecuted there.

But the OIC did not want to prosecute Ms. Steele in the District of Columbia for a number of reasons. First and foremost, the OIC had received a contemporaneous, stinging rebuke from United States District Court Judge James Robertson that dealt its investigations a serious blow. Indeed, Judge Robertson described the tactics and arguments of the OIC, and the lead prosecutor in this case, as "scary." In dismissing all counts of the Hubbell indictment, Judge Robertson made clear that both the legal arguments and prosecutorial tactics of the OIC were unwelcome in his court. Moreover, both of the legal issues addressed by Judge Robertson - the OIC's jurisdiction and its unconstitutional use of documents procured from Mr. Hubbell by grand jury subpoena - are at issue in Ms. Steele's indictment.

Second, the District of Columbia provides a very poor venue for the OIC's prosecution of such a novel and politically-charged case. The OIC is attempting to strengthen his allegations against the President of the United States by eliminating Ms. Steele as a potential impeachment witness against Willey. Democrats have stereotypically supported President Clinton and other targets of the OIC's investigation; Republicans have stereotypically supported the OIC's investigation and prosecution of the President and his cabinet. The District of Columbia may be the most predominantly Democratic jurisdiction in the United States, with registered Democrats outnumbering Republicans on a more than 10 to 1 ratio. It is certainly conceivable that the grand jury, having heard from both Ms. Steele and Willey, would not have returned the indictment against Ms. Steele.

The OIC had a powerful incentive to create crimes in the Eastern District of Virginia. This District's population is far less prevalently Democratic than is the District of Columbia. The political and racial demographics in the Eastern District of Virginia are more likely to form a jury pool that will be sympathetic to attacks by the OIC against a President who is widely popular with Democratic and minority voters.

In essence, as set forth in Section I above, the OIC not only created crimes, but created venue for those crimes in this District through a series of carefully orchestrated actions and misrepresentations which make a mockery of due process. And the OIC's efforts to create venue are as disturbing as they are well-documented. He created an Alexandria office; forced Ms. Steele to affirm her testimony and submit documents to a grand jury in this District despite her repeated assertion of the Fifth Amendment; summoned numerous people related to Ms. Steele before grand juries in this District; and made misrepresentations to Ms. Steele time and time again regarding its investigation. These actions were taken for the sole purpose of creating alleged crimes in the Eastern District of Virginia based upon information that was in the possession of the OIC long before July 1, 1998, in the District of Columbia.

Prior to her forced appearance before a grand jury in this District, the OIC was aware of nine of the eleven factual allegations in the indictment. Chart, Exhibit "7". There simply was no reason to force Ms. Steele's testimony in this District.

These actions constitute blatant forum shopping. Not content to prosecute Ms. Steele with what it believed to be a crime in the District of Columbia, the OIC dragged Ms. Steele and her family and friends into the Eastern District of Virginia for the sole purpose of coming before this Court to prosecute her for conduct which it itself had created.

3. Dismissal of the Indictment Is Necessary

The appropriate remedy for this unconstitutional manipulation of venue is dismissal. Although the OIC's maneuvering in this case is unprecedented, courts have so found in situations where there has been far less prosecutorial abuse.

For example, in United States v. Peraino, 645 F.2d 548 (6^th Cir. 1981), the government sought to establish venue for a prosecution under federal obscenity statutes in a district in which certain defendants had not sought to sell allegedly pornographic materials. The Sixth Circuit dismissed the indictment as to those defendants, one basis being that the government improperly "forum shopped" by prosecuting in a jurisdiction with far stricter community standards than that in which the defendants transacted business. Id. at 552-3.

Even more telling may be the result in United States v. Blucher, 581 F.2d 244 (10^th Cir. 1978). In that case, a clearly reluctant Tenth Circuit affirmed a successful obscenity prosecution in Wyoming, which had been prosecuted in that venue solely because of blatant prosecutorial forum shopping. Id. at 245. The prosecutors in Blucher had attempted the same artifice as the prosecutors in Peraino - indictment under the federal obscenity statutes in a forum which was more likely to find materials obscene based on its community standards. Id. The case was brought before the Supreme Court, and was summarily dismissed upon motion by the Solicitor General when it was discovered that forum shopping in such cases had specifically been barred by the Department of Justice's own policies. See Blucher v. United States, 439 U.S. 1061 (1979).

While Blucher and Peraino are not factually identical to the case at bar, the thrust of their findings are instructive in connection with this indictment. Where the government manipulates venue in a criminal matter to obtain a more favorable forum, dismissal of the indictment is the appropriate remedy. Anything less would encourage the government to forum shop in every criminal prosecution, a result which the Supreme Court has stated is not only undesirable, but unconstitutional.

To support its machinations, the OIC will undoubtedly look to United States v. Al-Talib, 55 F.3d 923 (4^th Cir. 1995), which addresses, in part, the concept of "manufactured venue." In that case, the U.S. Drug Enforcement Administration ("DEA") conducted a sting operation targeting a conspiracy to distribute marijuana transported from Nebraska to the District of Columbia. Id. at 926-7. One of the conspirators assisted the DEA in setting up the operation in the Eastern District of Virginia, a location which the defendants alleged they would not have entered but for the DEA enticing them there through their co-conspirator. Id. at 929.

The Fourth Circuit held that the DEA's actions were not inappropriate, and that the concept of "manufactured venue" by law enforcement agencies was not a viable concept. Al-Talib, 55 F.3d at 929. Most significantly the court found venue in the Eastern District of Virginia appropriate even apart from the conduct of the DEA, in that the conspirators had committed many acts in furtherance of the conspiracy in that District, including the distribution of drugs there. The court relied heavily on the inherent dangers of restricting venue in connection with far-flung drug conspiracies, and on the strong policy reasons to allow government agents the flexibility to conduct operations against violent crime in the most secure and effective places available. Id.

This case bears little resemblance to Al-Talib. This is not a conspiracy, but alleged obstruction of justice which allegedly impeded a civil case in Arkansas and an investigation in the District of Columbia. Nor is it a situation where law enforcement officers, placing their life on the line, selected a safe location to arrest potentially violent drug conspirators. Here, OIC attorneys, with full knowledge of the rules and law governing criminal procedure and venue in the federal courts, deliberately manipulated the system to avoid what it perceived to be a potentially hostile panel in the District of Columbia.

Further, venue for most of this case would not have existed in the Eastern District of Virginia but for the OIC's conduct. The crux of the indictment is the conflict between Willey and Ms. Steele - repeated under oath before a grand jury in the District of Columbia. This is not a case of law enforcement "manufactured venue" as in Al-Talib; this is a case where sophisticated OIC attorneys deliberately trampled on concepts of venue and due process to avoid the jurisdiction which had been affected - or not - by this so-called obstruction, to maneuver Ms. Steele into a locale they believed would be more favorable to their prosecution.

The indictment must be dismissed because venue in a criminal prosecution is not a toy which the OIC may manipulate to prosecute a defendant in any place it deems favorable. This case is far worse than any case where the government chooses from a number of appropriate venues; the OIC in this case created venue out of whole cloth by violating Ms. Steele's right to due process and creating crimes to prosecute in this District. If the Court condones these tactics, the government in any similar case, could create venue in any district simply by presenting testimony given in another district to a grand jury impaneled in the district of choice. This conduct would render the constitutional protections afforded by venue meaningless. Because the OIC's abuse of the venue process in this case violated Ms. Steele's right to due process, dismissal of the indictment is the appropriate remedy.

Federal Rule of Criminal Procedure ("Rule") 21(b) provides for the transfer of a case from one district to another "in the interest of justice." Rule 21(b) was created to

Fed. R. Crim. Pro. 21(b), Advisory Committee Note 2, 1944 Adoption. In short, Rule 21(b) ensures that the government will not be in control of where cases are tried; it is the judicial branch's responsibility to police venue in criminal cases with the interests of justice in mind.

Transfer under Rule 21(b) is "committed to the sound discretion of the district court." United States v. Heaps, 39 F.3d 479, 483 (4^th Cir. 1994). Courts are given a wide range of latitude in deciding whether transfer is appropriate, and transfer can only be reversed with abuse of discretion. Scott v. United States, 255 F.2d 18, 20 (4^th Cir. 1958).

As one court described it, the functional question under Rule 21(b) is "whether the government has sought, or will gain, an unfair advantage by prosecuting [the] case in [the] district." United States v. Long, 697 F.Supp. 651, 656 (S.D.N.Y. 1988). As discussed above, the OIC sought an unfair advantage by prosecuting the case in the Eastern District of Virginia; in fact, it geared its entire pattern of conduct to remove this case from the District of Columbia to gain just such an advantage.

It is in the interest of justice to transfer this case to the District of Columbia. First, failure to do so will reward the manipulative and duplicitous conduct of the OIC. This is the exact result which the Supreme Court warned against when emphasizing that criminal venue was not a mere technicality, but a constitutional right that must be strictly policed and guarded by courts. See United States v. Johnson, 323 U.S. 273, 276 (1944). As a matter of fundamental fairness, the OIC should not be permitted to skirt constitutional and statutory venue protections to try Ms. Steele in this District.

Second, transfer of this matter is in the interest of justice because it would deter future such activity by other independent counsel. Because of their proximity, vastly different population and court administration, prosecutors are undoubtedly tempted daily to bring criminal actions properly tried in the District of Columbia into this jurisdiction. In fact, as discussed below, they have attempted to do so (unsuccessfully) in the past. Such manipulation is not only legally undesirable, but as a logistical matter would clog this Court's docket with District of Columbia cases and place an overwhelming burden on this Court's resources. The petit jurors in this case are entitled to question why they are being asked to decide a matter relating to an alleged "grope" in the District of Columbia, which was allegedly relevant to a proceeding in Arkansas, about which an investigation was conducted in the District of Columbia.

It is important to note that neither the OIC or any witness would suffer any prejudice with the transfer of this case back to the District of Columbia. The OIC's main (and until July, 1998 only) office is in the District of Columbia. The OIC's investigation was, and is, centered in the District of Columbia, and the OIC has numerous lawyers in its office familiar with District of Columbia practice and conduct, including Mr. Barger who is Mr. Hubbell's prosecutor. Indeed, the OIC is involved in numerous proceedings in the courts of the District of Columbia. Nor would witnesses or any other involved party be inconvenienced by transfer. The courthouses of the two districts are located less than fifteen miles from one another, and travel to the District of Columbia in lieu of this Court would impose no undue burden.

This Court faced a similar situation in United States v. Ruffin, et al., Crim. No. 92-39-A. In that matter, prosecutors brought an eighteen-count indictment in this Court against a drug conspiracy centered in the District of Columbia. See Ruffin Indictment (Attached at Exhibit "15"). Of the 153 charged acts in the Ruffin Indictment, 40 of them occurred either wholly or partially in the Eastern District of Virginia, and 123 of them occurred either wholly or partially in the District of Columbia. See "Motion to Transfer Pursuant to Rule 21(b)"("Transfer Motion")(Attached at Exhibit "16"). Venue for the indictment properly lay in either the District of Columbia or the Eastern District of Virginia because it was alleged that acts in furtherance of the conspiracy took place in both Districts.

Defendants moved to transfer the cause from the Eastern District of Virginia to the District of Columbia in the interests of justice pursuant to Fed. R. Crim. Pro. 21(b). See Transfer Motion. Defendants asserted that although venue existed in the Eastern District, the action was more properly brought in the District of Columbia because the drug conspiracy was centered in that jurisdiction. Id. Defendants asserted that the prosecution had manipulated venue to prosecute a District of Columbia drug gang in Virginia before a more favorable jury venire. Id.

This Court, Judge Albert V. Bryan, Jr., transferred the matter to the District of Columbia. See Order (Attached at Exhibit "17"). Although the Order does not provide the specific rationale for its finding that transfer was necessary in the interests of justice, the Court's reasons are self-evident. The prosecution was well aware that it was a District of Columbia drug gang, but brought the case in this District in the hope of obtaining a more favorable jury venire and result. Judge Bryan saw through the prosecutors' motives and sent the case back to the District of Columbia, where it was properly brought.

This case is far more compelling a case for transfer in the interest of justice than was the Ruffin case. As in that case, the conduct here occurred in both the Eastern District of Virginia and in the District of Columbia, however, in Ruffin, the defendants' conduct in the Eastern District of Virginia had taken place without any manipulation by the government. The government was prosecuting a conspiracy which existed in the District of Columbia, but which spilled over into this district.

Venue for this indictment, on the other hand, is not based on pre-existing alleged conduct by Ms. Steele; it is premised on conduct created by the government for the sole purpose of creating venue in this jurisdiction. This makes the need for transfer much more compelling than in Ruffin, where the government sought only to take advantage of the defendants' conduct in another jurisdiction, not to create their alleged conduct. It is in the interests of justice for the Court to address the OIC's conduct in at least the same manner as it did in Ruffin; by transferring the case back to where it belonged.

WHEREFORE, for the foregoing reasons, the Court must dismiss the indictment in the above-captioned matter, or in the alternative, transfer the above-captioned cause to the United States Court for the District of Columbia.

DATED: February 8, 1999

I hereby certify that a true and correct copy of the foregoing Notice of Hearing, Motion to Dismiss Indictment, Or in the Alternative, For Transfer of Cause To the District of Columbia, and Memorandum of Law in Support thereof was served, via hand-delivery, on this 8th day of February, 1999, on the following:

Andrew L. Hurst

Upon consideration of Ms. Steele's Motion to Dismiss Indictment, Or in the Alternative, For Transfer of Cause To the District of Columbia, it is this _______ day of _____________, 1999, hereby

ORDERED that Ms. Steele's Motion is hereby GRANTED, and it is further

ORDERED that the indictment in this matter is dismissed.

____________________________

Hon.

United States District Court

Judge