United States v. Aprahamian

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UNITED STATES OF AMERICA v. ARA APRAHAMIAN

CRIMINAL ACTION No. 20-64

United States District Court, E.D. Pennsylvania

January 25, 2022

MEMORANDUM

R BARCLAY SURRICK, J.

Presently before the Court is Defendant Ara Aprahamian's Motion To Transfer Or, In The Alternative, To Dismiss Count Three (ECF No. 33). Defendant, a former pharmaceutical executive, is charged with conspiring to rig bids, stabilize, maintain, and fix prices of generic drugs, as well as making a materially false statement about his conduct to investigators. He lives and works in the Southern District of New York, but his co-conspirators lived and worked in the Eastern District of Pennsylvania. Defendant requests that we transfer all of the charges against him to the Southern District of New York for his convenience, or in the alternative, that we dismiss the charge of making materially false, fictitious, or fraudulent statements in connection with an investigation for lack of venue. For the following reasons, Defendant's Motion To Transfer Or, In The Alternative, To Dismiss Count Three will be denied.

I. BACKGROUND

In order to decide Defendant's Motion, we must assess the conduct, locations, and effects of the alleged crimes, as well as examine the personal circumstances of Defendant, his family, and the Government's witnesses.

Defendant is a former Vice President of Rx Marketing and a former Vice President of Sales and Marketing of Taro Pharmaceuticals U.S.A. (“Taro”). (Indictment ¶ 10, ECF No 1); (see Def.'s Mot. to Transfer or Dismiss, 9) (identifying Company A as Taro Pharmaceuticals U.S.A.) The Government alleges that Defendant colluded with Companies B and C to rig bids, stabilize, maintain, and fix prices of generic drugs. (Id. at ¶ 20-31, 37-43.) Even though Defendant lives in New York, three co-conspirators resided in this District; Company C was headquartered in this District; and the co-conspirators acted in furtherance of the conspiracy in this District by communicating with competitors about non-public drug prices, selling drugs to at least one major company headquartered in this District, and submitting bids and offers to at least one major company headquartered here. (Id. at ¶ 20-28, 33, 37-42); (Gov't Resp. in Opp'n to Def.'s Mot. to Transfer or Dismiss Count Three, 3, ECF No. 36.) During a search of Taro's offices in the Southern District of New York, Defendant allegedly made false statements to law enforcement officers, who were conducting an investigation of this conduct in the Eastern District of Pennsylvania. (Id. at ¶ 46.) As a result, he is charged with two counts of conspiracy to restrain trade under the Sherman Act, 15 U.S.C. § 1, and one count of making materially false, fictitious, or fraudulent statements in connection with an investigation under 18 U.S.C. § 1001(a)(2) (“Section 1001”). The investigation has resulted in charges against three individual defendants and four corporate defendants. All of these matters were filed in this Court.

Defendant is a former executive of Taro, a pharmaceutical company headquartered in the Southern District of New York. (Def.'s Mot., 4.) He is a resident of the Southern District of New York's Rockland County and lives there with his wife, high school age daughter, and college age daughter. (Id.) He also cares for his elderly mother, who lives a short drive from him. (Id. at 5.) He visits her weekly and does various tasks for her, such as grocery shopping and home maintenance. (Id. at 5-6.)

Defendant lives close to his two proposed venues for trial within his District: the White Plains courthouse (15 miles from his home) and the Manhattan courthouse (34 miles from his home). (Gov't Resp., 5.) Defendant proposes that he be tried in one of those courthouses, although he would prefer to be tried at the White Plains courthouse. (Def.'s Mot., 7.) He lives 118 miles from the Philadelphia courthouse. (Gov't Resp., 5.) The Philadelphia courthouse is close to a major airport and train station; the White Plains courthouse has no Amtrak station and is close to a small airport. (Id. at 12-13.)

II. LEGAL STANDARD

A defendant may move to transfer the proceedings “for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.” Fed. R. Crim. P. 21(b). The United States Supreme Court has held that courts should consider the following ten (10) factors in determining whether discretionary transfer is appropriate:

(1) location of 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 Mining & Mfg. Co., 376 U.S. 240 (1964). The defendant need not show “truly compelling circumstances” for transfer, just that “all relevant things considered, the case would be better off transferred to another district.” In re U.S., 273 F.3d 380, 388 (3d Cir. 2001) (internal citations omitted). It is the defendant's burden to prove that the court should transfer the matter. Id.

In the alternative, Defendant requests that we dismiss the Section 1001 charge. If a defendant believes the venue is improper, he or she may move to dismiss an indictment on that basis. F. R. Crim. P. 12(b)(3)(A)(i). Generally, “the government must prosecute an offense in a district where the offense was committed.” Fed. R. Crim. P. 18. However, the offense may be prosecuted in one or any of the districts in which the crucial elements are performed if the statute permits multi-district prosecution. United States v. Perez, 280 F.3d 318, 329 (3d Cir. 2002). Additionally, if the crime is a “continuing offense, ” meaning it was “begun in one district and completed in another, ” it may be “prosecuted in any district in which [the] offense was begun, continued, or completed.” 18 U.S.C. § 3237(a).

In analyzing a motion to dismiss for improper venue, a court may only consider the indictment and must take all allegations as true. United States v. Menendez, 137 F.Supp.3d 688, 692 (D.N.J. 2015). At the pretrial stage, a motion to dismiss should not be used to address the sufficiency of the Government's evidence on venue; however, at subsequent stages, a defendant may argue that the Government has not met its burden to show venue was proper by a preponderance of the evidence. United States v. Menendez, 831 F.3d 155, 176 n.3 (3d Cir. 2016).

III. DISCUSSION

Defendant requests that we transfer this matter from the Eastern District of Pennsylvania to the Southern District of New York. However, after analyzing the ten-factor test, we conclude the bulk of the factors relevant to discretionary transfer do not weigh in Defendant's favor. In the alternative, Defendant requests that we dismiss the Section 1001 charge for making a materially false statement to authorities because he made the statement in New York. We reject this request because, like a majority of Circuits, we hold that Section 1001's requirement that the false statements be material permits prosecution in the district where it was rendered material. Moreover, his violation of Section 1001 was a continuing offense that began in New York but continued here. For these reasons, we will deny his Motion to Transfer and Motion to Dismiss. The Motion to Dismiss will be denied without prejudice.^[1]

A. Transfer of Venue

Defendant asserts that, because he lives, works, and is alleged to have operated his price fixing scheme out of New York, we should exercise our discretion and transfer his case to the Southern District of New York, even though he only lives two hours from Philadelphia and many of his co-conspirators operated here. A defendant may move to transfer a proceeding “for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.” Fed. R. Crim. P. 21(b). To determine whether transfer is appropriate, courts must analyze the ten factors set forth in Platt v. Minnesota Mining & Mfg. Co. We will now address those factors.

1. Location of Defendant

“[A] defendant is not entitled to defend his case in his or her home district.” In re U.S., 273 F.3d 380, 388 (3d Cir. 2001). However, courts consider the hardship that a defendant's location places on his or her ability to attend trial. United States v. Coffee, 113 F.Supp.2d 751, 754 (E.D. Pa. 2000) (finding transfer appropriate where defendants had to drive 545 miles to attend a hearing and slept in their car because they could not afford lodging); United States v. Negron, No. 08-501, 2008 WL 5272056, at *3 (D.N.J. Dec. 16, 2008) (finding transfer from New Jersey appropriate where defendant lived in Puerto Rico for thirty years and had no friends or family in New Jersey).

Defendant asserts that a two-hour commute to trial would substantially inconvenience him and his elderly mother, whom he cares for on a weekly basis by doing grocery shopping and home maintenance. (Def.'s Mot. 5-6.) We disagree. A two-hour trip each way is not so burdensome that Defendant could not stay at his home for the duration of trial and be able to tend to his mother's occasional needs. Moreover, Defendant has not shown that he would have difficulty affording lodging in Philadelphia. We find that this commute is not unreasonable in the absence of a showing of substantial financial or personal hardship. While trial would certainly be closer to Defendant's home were it held in White Plains, we do not find that his living in New York weighs in favor of transferring the case there.

2. Location...