The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court
ORDER GRANTING MOTION TO VACATE DEFENDANT'S RULE 20 TRANSFER
Before the Court is the Government's "Motion for an Order Vacating Defendant's Rule 20 Transfer to the District of North Dakota and Re-Transferring Case to the Western District of Kentucy," filed on September 30, 2009. See Docket No. 21. The Defendant's attorney, Assistant Federal Public Defender William D. Schmidt, filed a response on October 9, 2009, in which he states that he does not oppose the Government's motion. See Docket No. 22.
On February 28, 2008, the defendant, Tyrone Roper, was arrested in the District of North Dakota on a 2004 arrest warrant issued by the United States District Court in the Western District of Kentucky pursuant to an Information charging him with criminal trespass and assault, both of which are misdemeanors. On February 29, 2008, Roper made an initial appearance from Minot, North Dakota by video before Magistrate Judge Charles S. Miller, Jr. at which time he was appointed counsel and released on his own recognizance with instructions to appear on April 3, 2008, before Magistrate Judge W. David King in Fort Campbell, Kentucky. Judge Miller warned Roper to keep the Court and his attorney advised of his whereabouts. Roper provided the Court with a mailing address of P.O. Box 123, Lestock, Manitoba, Canada SOA2G0.
On April 11, 2008, Roper made a request to transfer the matter from the Western District of Kentucky to the District of North Dakota for a change of plea and imposition of sentence pursuant to Rule 20 of the Federal Rules of Criminal Procedure. See Docket No. 8. In Roper's request for a Rule 20 transfer, he stated,
Defendant states that it is his intent to plead guilty to the charges set forth in the Indictment and waive his right to a trial in the Western District of Kentucky where the Indictment is pending and further consents to the disposition of his case in the District Court for North Dakota.
On April 20, 2008, Roper signed a "Consent to Institute a Presentence Investigation and Disclose the Report before Conviction or Plea of Guilty." See Docket No. 12. As a condition of his release, Roper was required to keep in contact with his attorney, Assistant Federal Public Defender William D. Schmidt, keep the Court advised of his whereabouts, and attend all future court proceedings in the case. In response to Roper's request for a Rule 20 transfer, a change of plea and sentencing hearing was scheduled for September 22, 2008 in Minot, North Dakota, but Roper failed to appear. The change of plea and sentencing was rescheduled for October 27, 2008, but Roper again failed to appear.
Assistant Federal Public Defender William D. Schmidt, in his response to the Government's motion, has notified the Court that prior to Roper's change of plea and sentencing hearing scheduled for October 27, 2008, he sent Roper a letter reminding him of the time, date, and place of the hearing. An investigator from the Federal Public Defender's office spoke with Roper on October 15, 2008, to remind him of the hearing and Roper assured the investigator that he would be in attendance of the October 27, 2008 hearing. Following Roper's failure to appear for the October 27, 2008 hearing, Mr. Schmidt made numerous attempts by letter and telephone to contact Roper without success.
Accordingly, Assistant Federal Public Defender William D. Schmidt does not object to the Government's motion to vacate the Rule 20 transfer. Mr. Schmidt states, "Although Mr. Roper, at all times when he was communicating with the undersigned, indicated his desire to resolve the matter in North Dakota, the undersigned no longer has information to determine whether or not that is still Mr. Roper's position." See Docket No. 22.
Rule 20 of the Federal Rules of Criminal Procedure allows a prosecution to be transferred from the district where the indictment or information is pending to the district where the defendant is arrested, held, or present if:
(1) the defendant states in writing a wish to plead guilty or nolo contendere and to waive trial in the district where the indictment, information, or complaint is pending, consents in writing to the court's disposing of the case in the transferee ...