(dissenting).
With deference to my distinguished colleagues in the majority, I respectfully dissent from their determination of this original action for writ of mandamus.
It is essential that we first place in proper perspective the particular nature *376of the offense charged in the indictment returned against petitioner in the case below and on which it presumably will have to stand trial. The only reference thereto in the majority opinion is that it is “Criminal Action No. 61-73-D then pending in said district court.”
Petitioner Minnesota Mining and Manufacturing Company, a Delaware corporation, was named as sole defendant in an indictment returned by a federal grand jury sitting in Danville, in the Eastern District of Illinois. The nine-count indictment charges that petitioner and others, named and unnamed, in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2, have attempted to monopolize, engaged in a combination and conspiracy in restraint of, and conspired to monopolize interstate and foreign commerce in pressure sensitive tapes since 1931 (Counts 1, 2, 3), in magnetic recording media since 1947 (Counts 4, 5, 6) and in aluminum presensitized lithographic plates since 1950 (Counts 7, 8, 9).
The indictment alleges in paragraphs entitled “Jurisdiction and Venue” that the offenses were carried out in part within the Eastern District of Illinois and that petitioner has performed acts in furtherance of the offenses within the Eastern District of Illinois and within five years preceding the return of the indictment.
It is conceded by both parties that venue in the criminal action below would lie not only in the Eastern District of Illinois but also in the Northern District of Illinois and the District of Minnesota, among other federal judicial districts. Indeed, the majority opinion correctly states: “No question of venue is before us. The sole question for respondent [Judge Platt] was whether the transfer to the District of Minnesota would be in the ‘interest of justice’.”
Petitioner’s motion to transfer the case to the District of Minnesota was predicated on Rule 21(b), Federal Rules of Criminal Procedure, 18 U.S.C.A. which reads:
“(b) Offense Committed in Two or More Districts or Divisions. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged.” (Emphasis added.)
Since there is no question of venue before us, respondent in the case below, and this court in the instant original action for writ of mandamus, are concerned solely with the foregoing italicized portion of Rule 21(b).
The plain and simple language of that part of Rule 21(b) under consideration is that the transfer sought should have been ordered only if respondent was satisfied that it was “in the interest of justice” to do so. This implies an element of discretion in the trial court.
The majority properly recognizes this discretion in the trial court and states that we would not be justified in overruling a denial of transfer unless “there is an abuse of discretion.” In view of the extraordinary writ prayed for in the present original action before us, it would be fair to say that such writ should not issue unless we find respondent has erred to the point of a gross or clear abuse of discretion in denying the transfer.
It should be noted that respondent filed a written memorandum setting out in detail his consideration of the motion to transfer. This followed the submission of affidavits, briefs and oral argument by the parties.
In this memorandum respondent listed ten factors he found to be pertinent in the determination of the Rule 21(b) motion. These factors were (1) location *377of 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.
Respondent then discussed each of these factors in detail in his memorandum. While Rule 21(b) does not set out governing standards, it is undisputed that these are relevant factors properly to be considered by a trial judge in determining a ruling on a transfer motion in a criminal case.
The only mention of respondent’s concern about the difficulty of getting a fair and impartial jury in the District of Minnesota was at the conclusion of the memorandum. This is fully set out •early in the majority opinion and reference is now made thereto.
My first cause for dissent is that the majority opinion gives no consideration "to respondent’s treatment of the first nine factors above listed and discussed in detail in his memorandum. Footnote (1) of the majority opinion makes passing reference to such discussion and then -concludes that “we are convinced that he saved the most important item for the last. * * * Certainly he was not expressing a minor afterthought.”
In the next to last paragraph of the majority opinion appears the only other reference to other factors considered by respondent. In footnote (3), the majority gratuitously makes findings of its • own, most of which are contrary to those in respondent’s memorandum. The final paragraph in footnote (3) makes a finding with reference to the condition of the dockets in the two districts concerned which I cannot accept. I do not believe the record will support the inference intended to be drawn therefrom.
On balance, I conclude that a consideration of all the factors relied upon by respondent fails to demonstate any abuse of discretion and certainly none sufficient to justify the issuance of this extraordinary writ.
Relying upon the authority of Chicago, R. I. & P. R. Co. v. Igoe, 7 Cir., 212 F.2d 378 (1954), the majority holds that “it is nevertheless true that we may set aside its action if there is an abuse of discretion, such as its reliance upon an improper factor in determining how the ‘interest of justice’ would be affected by the proposed transfer.” (Emphasis added.)
The “improper factor” found by the majority was the reference made by respondent to petitioner’s position of influence in the District of Minnesota and his statement that “[i]t would be more difficult to get a fair and impartial jury in the Minnesota District than in the Eastern District of Illinois.”
The majority first finds that respondent’s action could lead to an abuse “in the selection of what may be deemed a tribunal favorable to the prosecution,” citing United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249 (1944); Travis v. United States, 364 U.S. 631, 81 S.Ct. 358 (1961); and United States v. Cores, 356 U.S. 405, 78 S.Ct. 875 (1958). Each of these three decisions are readily distinguishable from the case at bar. They are concerned solely with the determination of the venue of a criminal action and not with what factors are to be considered in determining the “interest of justice.” There is no question of venue before us in this proceeding.
The majority concludes that respondent denied petitioner a trial in the District of Minnesota because it “has been an exemplary citizen of that district” and holds this was error, citing the Magna Charta. It is sufficient to say that respondent made no such holding.
The majority follows this with a holding that “it would be an unsound and dangerous innovation in our federal court system for a judge in any district to appraise or even speculate as to the efficacy of the operations of a federal court of concurrent jurisdiction in an*378other district.” I agree. But, in my judgment, respondent here was not guilty of such an encroachment. I cannot read into respondent’s memorandum anything that would justify such a finding and holding by our court.
In the concluding part 4 of the majority opinion, it is expressly held that “this criminal case is impressed with the fundamental historical right of a defendant to be prosecuted in its own environment or district * * * [and] we are convinced that this multiple-venue criminal prosecution should be tried in the district of Minnesota, which is the home of petitioner.” (Emphasis added.)
If this holding stands and is followed, then in every multiple-venue criminal prosecution under the Sherman Act and kindred statutes, it will mandate transfer to the home district of the defendant, if venue be found there, pursuant to a Rule 21(b) motion.
No authority has been cited as precedent for this holding and we have found none. There is nothing in Rule 21(b) to that effect.
The majority would impress its constitutional concern for trial in a defendant’s home district upon Rule 21(b). Laudable as this purpose may be, it is my considered judgment that such an amendment should be left to the legislative branch of the government rather than to engraft it upon the rule through the judicial process.
Finally, I believe the majority has made an unprecedented procedural error in its disposition of this original action. It orders that a writ of mandamus shall issue forthwith directing respondent to vacate his order denying petitioner’s motion for transfer and ordering him to transfer the criminal action to the District of Minnesota.
Assuming, arguendo, that under the authority of the Igoe case respondent relied upon an improper factor in determining the transfer motion, we should direct respondent to vacate the order of denial and reconsider petitioner’s motion in the light of the majority holding.
It is suggested that at this stage of the proceeding we have no authority to mandate the transfer sought. In Igoe, 7 Cir., 212 F.2d at 382, this court ordered the cause remanded “to the District Court with directions to vacate the order denying the transfer and to reconsider petitioner’s motion in the light of the views expressed herein.” The court went on to hold:
“Ultimate decision on that motion is within the province of the District Court, and we cannot, as petitioner would have us do, usurp its function and decide the question in this court.”
In Igoe, it was not until the remand had been complied with that this court, sitting en banc, in a second original action issued a writ commanding the transfer requested, with one judge dissenting. Chicago, Rock Island and Pacific Railroad Co. v. Igoe, 7 Cir., 220 F.2d 299 (1955), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735.
It is my view, therefore, that in the present posture of this case we are without authority to direct the transfer.
This situation should remind us that we are encouraging parties to make use of this extraordinary procedure to effect an interlocutory review of a discretionary order. The experience of our court in recent years affords a firm conviction that “repetitive, invocations of mandamus” are improperly becoming a way of appellate life.
I am in accord with the views of my Brother Castle, so well expressed in his recent dissent in Chesapeake & Ohio Railway Company v. Parsons, 7 Cir., 307 F.2d 924, 926-28 (1962), cert. granted, 83 S.Ct. 506.
I would deny the writ of mandamus sought in this proceeding.