Petition — Cintolo v. United States

!

5>oO9 ! Court, U.S.

, . YLiLED

| FEB 16

1983

No. e

ALEXANDCL? L. STEVAS.

Inthe 9 ="

Supreme Court of the United States.

OctToser TERM, 1982.

WILLIAM J. CINTOLO,

PETITIONER,

v.

UNITED STATES OF AMERICA anp

THE HONORABLE ANDREW A. CAFFREY,

CHIEF JUDGE OF THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS,

RESPONDENTS.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

Davip BERMAN,

BERMAN AND MOREN,

100 George P. Hassett Drive,

Medford, Massachusetts 02155-3297.

(617) 395-7520

Questions Presented

Le Is an order disqualifying an

attorney from representing witnesses

before a Grand Jury appealable under Title

28 U.S.C. $1291, or $1292(a), or under

the collateral order doctrine enunciated

in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546 (1949)?

2. If an order disqualifying an

attorney from representing witnesses be-

fore a Grand Jury is not appealable, is

it nevertheless subject to challenge ina

petition for extraordinary relief under

Title 28 U.S.C. 81651 generally or,

especially where as here, the District

Court acted on a premature motion that had

already been denied by another Judge of

the same Court and failed to hold even the

semblance of a hearing before allowing the

motion?

Table of Contents.

Citations to opinions below l

Jurisdiction l

Questions presented 2

Statutory provisions 3

Statement of the case 7

Reasons for granting the writ 1]

I. With respect to whether decisions disqualifying

attorneys are appealable, there is a conflict among

the circuits, and the First Circuit’s rule of “non-

appealability” is not in accord with prior decisions

of this court and is wrong ll

II. The Court of Appeals erroneously ruled that pe-

titioner was not entitled to relief under Title 28

U.S.C. § 1651 22

Conclusion 34

Appendix la

Table of Authorities Cited.

CASES.

Beacon Theatres, Inc. v. Westover, 359 U.S. 509 (1959) 34

Billington v. Underwood, 613 F.2d 91 (5th Cir. 1980) 28

Carroll v. Princess Anne, 393 U.S. 175 (1968) 19

City of Alma v. Loehr, 42 Kan. 368, 22 P. 424 16

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

541 (1949) 2, 13, 17

Connell v. Higginbotham, 403 U.S. 207 (1971) 30

Cosette v. Country Style Donuts, Inc., 647 F.2d 526

(5th Cir.) 12

ii TABLE OF AUTHORITIES CITED.

Donnelly Garment Co. v. National Labor Relations

Board, 123 F.2d 215 (8th Cir. 1941)

Dupre v. Anderson, 45 La. Ann. 1134, 13 So. 743

Eisen v. Carlisle & Jaquelin, 417 U.S. 156(1974) — 14,

Gainsburg v. Dodge, 193 Ark. 473, 101 S.W.2d 178

Goldsmith v. United States Board of Tax Appeals, 270

U.S. 117 (1928)

Grannis v. Orleans, 234 U.S. 385

Granny Goose Foods, Inc. v. Brotherhood of Team-

sters & Auto Truck Drivers Local No. 70, 451 US

423 (1974)

In Re Benjamin, 582 F.2d 121 (1st Cir. 1978)

In Re Investigation Before April, 1975 Grand Jury, 531

F.2d 600 (D.C. Cir. 1976)

In Re Lynchburg Grand Jury, 563 F.2d 562 (4th Cir.

1977)

In Re Oswalt, 607 F.2d 645 (5th Cir. 1979)

In Re Taylor, 567 F.2d 1183 (2d Cir. 1977) 19,

Interstate Commerce Commn. v. Louisville & Nash-

ville R.R. Co., 227 U.S. 88 (1913)

Kerr v. United States District Court for the Northern

District of California, 426 U.S. 394 (1976)

Laird v. Tatum, 408 U.S. 1 (1972)

Matter of Grand Jury Empaneled January 21, 1975,

537 F.2d 1009 (3d Cir. 1976)

Milliken v. Meyer, 311 U.S. 457

Morgan v. United States, 304 U.S. 1 (1938)

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950)

Perlman v. United States, 247 U.S. 7 (1918)

24

16

17, 22

16

30

29

26, 31

12,15

12

12

34

21, 23

28

13, 22

TABLE OF AUTHORITIES CITED. iii

Priest v. Board of Trustees of Town of Las Vegas, 232

U.S. 604 29

Roller v. Holly, 176 U.S. 398 29

Silverior v. Municipal Court of Boston, 355 Mass. 623,

247 N.E.2d 379 (1969), cert. den. 396 U.S. 878 27

United States v. Curcio, 694 F.2d 14 (2d Cir. 1982) 12

United States v. Gregor, 657 F.2d 1109 (9th Cir. 1981) 12

United States v. Oppenheimer, 242 U.S. 85 (1916) 24

Will v. United States, 389 U.S. 90 (1967) 32

Willner v. Committee on Character and Fitness, 373

U.S. 96 (1963) 18, 29

STATUTES.

United States Constitution

Fifth Amendment 5, 29

28 U.S.C.

§ 1254(1) 2

§ 1291 2, 3, 13, 14

§ 1292(a) 2,4

(1) 15

§ 1651 1, 2, 3, 4, 10 et seq.

Federal Rules of Civil Procedure

Rule 65(b) 25

Federal Rules of Appellate Procedure

Rule 8(a) 2

Rules of the Supreme Court

Rule 17.1(a) 4,11

Rules of the United States District Court for the District

of Massachusetts

Rule 8(d) 6, 24

Rule 9(a) 6, 25

iv TABLE OF AUTHORITIES CITED.

MISCELLANEOUS.

Black’s Law Dictionary (De Luxe Fourth Ed.) 923 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO.

WILLIAM J. CINTOLO,

Petitioner,

V.

UNITED STATES OF AMERICA

HONORABLE ANDREW A. CAFFREY,

CHIEF JUDGE OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

Respondents,

Citations to Opinions Below

There are no reported opinions below.

The brief per curiam opinions of the Court

of Appeals dismissing Petitioner's appeal

and denying his petition under Title 28

u.S.C. 81651 are duplicated as appendices

to this petition.

Jurisdiction

On January 26, 1983, the United States

Court of Appeals entered judgments dis-

missing Petitioner's appeal from an order

2.

of the United States District Court for the

District of Massachusetts (Caffrey, C.J.)

entered on January 19, 1983 disqualifying

Petitioner, an attorney, from represent-

ing witnesses before a grand jury ina

particular investigation on the ground

that such an order is not appealable and

denying Petitioner relief in a petition

under Rule 8(a) of the Federal Rules of

Appellate Procedure and Title 28 U.S.C.

$1651 filed on January 24, 1983. Juris-

diction of this Court is invoked pursuant

to Title 28 U.S.C. $1254(1).

Questions Presented

1. Is an order disqualifying an

attorney from representing witnesses

before a Grand Jury appealable under Title

28 U.S.C. $1291, or $1292(a), or under

the collateral order doctrine enunciated

in Cohen v. Beneficial Industrial Loan

3%

2. If an order disqualifying an

attorney from representing witnesses be-

fore a Grand Jury is not appealable, is

it nevertheless subject to challenge ina

petition for extraordinary relief under

Title 28 U.S.C. §1651 generally or,

especially where as here, the District

Court acted on a premature motion that had

already been denied by another Judge of

the same Court and failed to hold even the

semblance of a hearing before allowing the

motion?

Statutory Provisions

Title 28 U.S.C. 81291 states:

The court of appeals shall have

jurisdiction of appeals from

all final decisions of the

district courts of the United

States, the United States

District Court for the District

of the Canal Zone, the District

Court of Guam, and the District

Court of the Virgin Islands,

4.

except where a direct review

may be had in the Supreme

Court.

Title 28 U.S.C. $1292(a)(1) states:

(a) The court of appeals shall

have jurisdiction of appeals

from:

(1) Interlocutory orders of the

district courts of the United

States, the United States

District Court for the District

of the Canal Zone, the District

Court of Guam, and the District

Court of the Virgin Island, or

of the judges thereof, granting,

continuing, modifying, refusing

or dissolving injunctions, or

refusing to dissolve or modify

injunctions, except where a

direct review may be had in the

Supreme Court.

Title 28 U.S.C. 8165l(a) states:

(a) The Supreme Court and all

courts established by Act of

Congress may issue all writs

necessary or appropriate in aid

of their respective jurisdictions

and agreeable to the usages and

principles of law.

Rule 17.1l1(a) of the Rules of

this Court state:

Se

Rule 17. Considerations governing

review on certiorari

1. <A review on writ of certiorari

is not a matter of right, but of

judicial discretion, and will be

granted only when there are special

and important reasons therefor. The

following, while neither controlling

nor fully measuring the Court's dis-

cretion, indicate the character of

reasons that will be considered.

(a) When a federal court of appeals

has rendered a decision in conflict

with the decision of another federal

court of appeals on the same matter;

or has decided a federal question in

a way in conflict with a state court

of last resort; or has so far departed

from the accepted and usual course of

judicial proceedings, or so far san-

ctioned such a departure by a lower

court, as to call for an exercise of

this Court's power of supervision.

The Fifth Amendment of the Constitution states:

No person shall be held to answer for

a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except

in cases arising in the land or

naval forces, or in the Militia,

when in actual service in time of

War or public danger; nor shall

any person be subject for the same

offence to be twice put in jeopardy

of life or limb; nor shall be com-

pelled in any criminal case to be a

witness against himself, nor be

deprived of life, liberty, or

property, without due process of law;

nor shall private property be taken

for public use, without just compen-

sation.

6.

Rule 8(d) of the Rules of the United

States District Court for the District of

Massachusetts states:

(ad) Assignment. The Clerk shall

assign cases to the judges of the

court by lot in such manner that

each judge shall be assigned as

nearly as possible the same num-

ber of cases in each category.

Rule 9(a) of the Rules of the United

States District Court for the District of

Massachusetts states:

9(a) Matters and proceedings

heard by emergency judge. There

will be designated an emergency

judge to hear and determine:

(1) matters requiring immediate

action in cases already assigned

to any judge of the court, if

the judge to whom a case has

been assigned is unavailable or

otherwise unable to hear the

matter.

(2) special proceedings the

nature of which precludes

their assignment in the ordi-

nary course;

(3) any other proceeding, in-

cluding an admission to the bar

7.

and a naturalization, which is

not part of or related to a case

that should be assigned in the

ordinary course.

Statement of the Case

The United States District Court for

the District of Massachusetts, Caffrey,

C.J., received two motions from the Govern-

ment on January 18, 1983. One was a motion

to make an in camera submission to the

Court pertaining to Petitioner William J.

Cintolo. This motion was allowed by

Judge Caffrey when it was received and

without any notice at all to Petitioner.

The second motion was to disqualify

Petitioner, an attorney duly admitted to

practice before the United States District

Court for the District of Massachusetts,

from representing witnesses before a Grand

Jury carrying on a particular investiga-

tion, especially witnesses named Orlandella

8.

and Daw. Having informed Petitioner

through his Clerk that he would hold a

hearing at 4:00 p.m., on January 19, 1983

on the motion to disqualify (the Clerk

reached Petitioner by telephone late in the

afternoon on the 18th), Judge Caffrey be-

gan the hearing by announcing that he had

read the Government's in camera submission

and on the basis of it was allowing the

motion to disqualify. At this point he

had not heard any opposition to the motion

and, predictably, when he heard opposition

based on (inter akia) the fact that

another Judge of the District Court had

denied an identical motion by the Govern-

PES the prematurity of the Government's

motion since no witness whom Petitioner

1/ This allegation is set forth in an

affidavit filed by Petitioner in the

District Court.

9.

had proposed to represent had yet testi-

fied before the Grand Jury, the inappro-

priateness of ex parte communications to a

Judge, especially prior to notice and in

the absence of an emergency, and the fail-

ure to assign this case in accordance with

the Local au he adhered to his deci-

sion.

The following day, Petitioner filed a

Notice of Appeal to the United States

Court of Appeals for the First Circuit

and a motion for stay pending appeal. The

latter was denied. On January 24, 1983,

the appeal having been entered in the Court

of Appeals, Petitioner also filed in that

Court a petition for writ of mandamus,

2/ The Local Rules require the assign-

ment of all cases, with certain exceptions

of which motions to disqualify are not an

example, by lot, but the Government's

motion was assigned to Judge Caffrey as

Emergency Judge.

10.

and writ of prohibition and other relief

under Title 28 U.S.C. $1651. Without hear-

ing, the Court of Appeals on January 26,

1983, with only the briefest of opinions,

dismissed the appeal and denied relief

under §1651l.

Because of the ex parte nature of vir-

tually all of the Government's submissions

to the District Court, there is no factual

record to which Petitioner can refer. It

may be inferred, however, (a) that the

Government believes Petitioner to be a

target of an investigation currently under-

taken by a Grand Jury, (b) that Orlandella

and Daw, the witnesses who are specifically

mentioned in the Government's motion and

whom Petitioner indeed intended to

represent in their appearance before the

Grand Jury, were being called to testify

ll.

in connection with this investigation, and

(c) that the Government regards Petitioner's

representation of Orlandella and Daw and

any other Grand Jury witness called in

connection with this investigation as a

conflict of interest.

Reasons for Granting the Writ

I. WITH RESPECT TO WHETHER DECISIONS

DISQUALIFYING ATTORNEYS ARE APPEALABLE,

THERE IS A CONFLICT AMONG THE CIRCUITS,

AND THE FIRST CIRCUIT'S RULE OF "NON-

APPEALABILITY" IS NOT IN ACCORD WITH PRIOR

DECISIONS OF THIS COURT AND IS WRONG.

Rule 17.1(a) of the Rules of this Court

indicates that a conflict of the decision

rendered by a court of appeals with deci-

sions rendered by other Courts of Appeals

is an important consideration governing

the exercise of the certiorari jurisdic-

tion. There is inplain and simple

12.

English a conflict among the circuits on

whether orders disqualifying attorneys

from representing witnesses are appealable.

Cases holding that they are immediately

appealable include Matter of Grand Jury

Empaneled January 21, 1975, 537 F.2d 1009,

1011 (3rd Cir. 1976); In Re Investigation

Before Aprik, 1975 Grand Jury, 531 F.2d

600, 605, fn. 8 (D.C. Cir. 1976); United

States v. Curcio, 694 F.2d 14, 19-20 (2nd

Cir. 1982); In Re Lynchburg Grand Jury,

563 F.2d 562, 655 (4th Cir. 1977); Cossette

v. Country Style Donuts, Inc., 647 F.2d

526, 528 (5th Cir.). The First and Ninth

Circuits take the opposite view. In Re

Benjamin, 582 F.2d 121, 123, 125 (lst Cir.

1978). United States v. Greger, 657 F.2d

1109, 1111-1115 (9th Cir. 1981). Regard-

less of which view is right, the time has

plainly come for this Court to take upon

13.

itself the duty of umpiring the Federal

system and settling the rule on appeal-

ability of orders disqualifying attorneys

one way or the other.

This, of course, would be true even if

the view taken by the First Circuit were

right. But it is not right. Plaintiff

has a right of appeal under either of two

statutes, or, if not, under the collateral

order doctrine enunciated in such cases as

Perkman v. United States, 247 U.S. 7, 13

(1918) and Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949).

We consider first whether the order was

appealable as a "final decision" under

Title 28 U.S.C. $1291. Although the entry

and service in the case are somewhat in-

formal, to say the least, this is basic-

ally a civil action, unreleated to any

indictment to any pending case, in which

14.

the Government sought and obtained specific

relief on the bases of specific represen-

tations. Even if Orlandella and Daw never

testify before any Grand Jury, even if no

indictments are ever returned, even if the

Government should at some time in the future

give up its investigation entirely, an

order has been made in an adversary pro-

ceeding. Whatever other orders may or may

not be final decisions within the purview

of $1291, an order terminating an action

is plainly final. See Eisen v. Canrnkhishle &

Jaquekin, 417 U.S. 156, 170-171 (1974).

It may be argued, however, that a deci-

sion disqualifying an attorney is not

"final" in that circuits like the First

that do not permit direct appeal

nevertheless permit review on the merits

if a witness under subpoena is held in

contempt for refusing to answer questions

15.

and the refusal is based upon the invalid-

ity of the order of disqualification. See

@.g., In Re Benjamin, 562 F.2d. 121, 123

(lst Cir. 1978). It remains to be seen,

however, whether the order of disqualifica-

tion is an interlocutory order granting an

injunction and thus appealable under the

provisions of Title 28 U.S.C. 81292(a) (1).

Once again we must note that Petitioner

has been directed by the Court not to do

that which he would otherwise have both a

right and a duty to do, represent before

the Grand Jury witnesses who have retained

him for that purpose. To quote Black's

Law Dictionary (De Luxe Fourth Ed.), page

923:

INJUNCTION. A prohibitive writ

issued by a court of equity, at

the suit of a party complainant,

directed to a party defendant in

the action, or to a party made

a defendant for that purpose,

forbidding the latter to do some

16.

act, or to permit his servants

or agents to do some act, which

he is threatening or attempting

to commit, or restraining him in

the continuance thereof, such

act being unjust and inequitable,

injurious to the plaintiff and

not such as can be adequately

redressed by an action at law.

Dupre v. Anderson, 45 La.Ann.

1134, 13 So. 743; City of Alma

v. Loehr, 42 Kan. 368, 22 P.424.

A judicial process operating in

personam and requiring person to

whom it is directed to do or re-

frain from doing a particular

thing. Gainsburg v. Dodge, 193

Ark. 473, 101 S.W. 2d 178, 180.

If because of its potential for later review

in a contempt proceeding, the order issued

by Judge Caffrey was not "fina)," it was

nevertheless an “injunction” within the

purview of this language and, being inter-

locutory in character, immediately subject

to review by the Court of Appeals.

Finally, even if the order of dis-

qualification was neither an interlocutory

injunction nor a final decision, Petitioner

i7.

submits that it came within the so-called

collateral order doctrine of Cohen v. Bene-

ficial Industrial Loan Corporation, 337

U.S. 541 (1949). As this Court stated in

Eisen v. Carkishe & Jacquekin, Supra, 171-

a7vat

We find the instant case con-

trolled by our decision in Cohen

v. Beneficial Indus. Loan Corp.,

Supra. There the Court considered

the applicability in a federal

diversity action of a forum state

statute making the plaintiff in a

stockholder's deprivative action

liable for litigation expenses, if

ultimately unsuccessful, and en-

titling the coproration to demand

security in advance for their pay-

ment. The trial court ruled the

statute inapplicable, and the

corporation sought immediate

appellate review over the stock-

holder's objection that the order

appealed from was not final. This

Court held the order appealable

on two grounds. First, the

District Court's finding was not

"tentative, informal or incomplete."

337 U.S., at 546, 69 S.Ct., at

1225, but settled conclusively

the corporation's claim that it

was entitled by state law to

18.

require the shareholder to post

security for costs. Second, the

decision did not constitute mere-

ly a “step toward final disposi-

tion of the merits of the case

» « « e* JFhdd. Rather, it con-

cerned a collateral matter that

could not be reviewed effectively

on appeal from the final judgment.

The Court summarized its conclu-

sion in this way:

"This decision appears to

fall in that small class

which finally determine

claims of right separable

from, and collateral to,

rights asserted in the

action, too important to

be denied review and too

independent of the cause

itself to require that

appellate consideration

be deferred until the

whole case is adjudicat-

ed." Ibid.

A motion to disqualify counsel ina

criminal case implicates at least three

interests: the interest of an attorney in

pursuing his profession and in his reputa-

tion, see @.g., Wilkner v. Committee on

Character and Fitness, 373 U.S. 96, the

interest of the client in being represented

19.

by counsel of his own choosing, In Re Taylor,

567 F.2d 1183, 1186, fn. 1 (1977 2nd Cir.),

and the interest of the Government in avoid-

ing conflicts of interest that may lead to

motions to suppress or post-convictions pro-

ceedings. When the Government succeeds at

the District Court level in having counsel

disqualified, its interests are presumably

fully vindicated. If the District Court acts

3/

erroneously, however, how may the lawyer and

4/

the client vindicate their

3/ The entirely ex parte nature of the

District Court's action in the present case

significantly increases the chances of er-

ror. Cannolkk v. Princess Anne, 393 U.S.

175, 183 (1968).

4/ In the present case the clients, Daw

and Orlandella, received neither formal nor

informal notice of the Government's motions,

though they were persons entitled to notice,

see In Re Taylor, Supra, and their failure

to receive it was specifically called to

the District Court's attention.

20.

respective interests if the order is non-

appealable? The client, we are told, may

do so by refusing to answer questions be-

fore the Grand Jury and, if he is cited

from contempt, challenge the citation on

the grounds that the order disqualifying

his attorney was improperly made.

From virtually every viewpoint, this

procedure smacks of foolishness. In the

first place, it calls upon one District

Court Judge to review a finding and ruling

made by another District Court Judge or,

perchance, by himself. Such review is

likely to prove embarrassing or meaning-

less or both. From the client's view-

point, there is the need to hire (and pay)

counsel who will represent him in a new

proceeding and to assume the risk of

obloquy and imprisonment. To make matters

worse, the client is forced to assume all

21.

these risks merely to assert one of his basic

Constitutional rights: the right to be

represented by counsel of his own choosing.

Taylor, Supra.

From the lawyer's viewpoint, the pro-

cedure of review by contempt citation is

even worse. In all likelihood the client

in most cases will not take the risks

involved but will simply get other counsel,

making review forever impossible. Even if

the client remains steadfast in his choice

of counsel, in the face of virtually every

known principle with respect to the law

of standing, see Laind v. Tatum, 408 U.S.

1, 14, fn. 7 (1972), the lawyer will be

looking to a third party to vindicate his

rights. Since he is effectively without

any but the most illusory means of vindi-

cating his rights if the order of dis-

qualification is unappealable, and since

disqualification generally includes not

22.

merely immediate harm to the lawyer's pocket-

book but, much worse, long-range harm to

the lawyer's reputation, the disqualifica-

tion of the lawyer must be appealable.

Perlman v. United States, Supra. At

the very least, the order with respect to

the lawyer is so far final as to be appeal-

able under the rule of Eisen, Supra.

II. THE COURT OF APPEALS ERRONEOUSLY RULED

THAT PETITIONER WAS NOT ENTITLED TO

RELIEF UNDER TITLE 28 U.S.C. 81651.

In its brief order denying relief under

Title 28 U.S.C. $1651 the Court of Appeals

gave three reasons why Petitioners were

not entitied to relief. These were (a)

the absence of “patent abuse of discretion"

(b) the absence of new or important issues

regarding the power of the District Court,

and (c) the absence of extraordinary cir-

cumstances.

To the extent that the decision rested

23.

upon the absence of important issues of law,

it is in conflict with the holding of the

Second Circuit in In Re Taylor, supra, 1187,

that the motion to disqualify counsel from

representing witnesses before the grand jury

was premature, and should have been dis-

missed. In Taylor, Supra, 1185-1186, the

Court was faced with facts indistinguishable

from the facts in the present case except

that in Taylor there was no allegation that

the attorney was a target of the Grand Jury.

But that distinction is without substance

since it is as much a conflict for an attorney

to represent witnesses with conflicting

interests as it is for him to represent

witnesses whose interests may conflict with

his own.

Yet another important issue raised by

the 81651 petition was whether Respondent

Caffrey should have in effect overruled

a decision made several weeks earlier

24.

by another Judge of the United States

District Court for the District of Massa-

chusetts. Both on grounds of ‘4e4 judicata,

see United States v. Oppenheimer, 242 U.S.

85, 87 (1916), and cn the grounds that one

Judge should not normally “overrule” a

decision of another Judge in the same Court

and in the same case, see Donnekky Garment

Co., v. Nationak Labor Relations Board, 123

F.2d 215, 220 (8th Cir. 1941), Judge Caffrey

should have allowed Petitioner's motion to

dismiss the Government's motion for dis-

qualification.

A third important issue of law was

whether this case should have been assigned

by lot as Rule 8(d) of the Rules of the

United States District Court for the

District of Massachusetts seems to re-

quire and not merely assigned to Respondent

Caffrey as emergency judge. We note that

25.

motions of this type are not included under

cases assignable to the emergency judge

under Rule 9 of the Rules of the United

States District Court.

But by far the most extraordinary

aspect of this case is the manner in which

it was handled by Respondent Caffrey in the

District Court. Upon receiving a motion

from the Government for leave to make an

dn camera, 4.@., ex parte, submission, he

allowed the motion even before Petitioner

had even received notification that the

motion had been filed. There are, of course,

occasions on which an ex parte submission

to a judge is appropriate; the classic ex-

ample is an application for a temporary

restraining order. See Rule 65(b) of the

Federal Rules of Civil Procedure. But the

power to issue restraining orders is hedged

above by numerous safeguards including a

26.

ten-day expiration date, Rule 65(b), and a

judge issuing it knows that the Defendant

will promptly receive a copy of all sub-

missions made to him and have a full oppor-

tunity to rebut, explain and contradict

whatever was said in the application. Even

so, temporary restraining orders are dis-

favored in the Federal courts, and only a

most substantial showing of urgency will

justify the granting of such an order.

Granny Goose Foods, Inc. v. Brotherhood of

Teamsters & Auto Truck Drivers Local No.

70, 451 U.S. 423, 438-439 (1974) ("The

stringent restrictions imposed by 817 and

now by Rule 65, on the availability of ex

parte temporary restraining orders reflect

the fact that our entire jurisprudence

runs counter to the notion of court action

taken before reasonable notice and an

opportunity to be heard has been granted

27.

both sides of a dispute").

In the instant case the Government made

no showing in its motion for leave to make

an @x parte submission of any emergency just-

ifying such a submission. It did in the

motion indicate that Petitioner was a target

of an on-going grand jury investigation.

But even if, as the motion did not say, the

submission that the Government proposed to

make was of evidence that had been or would

be presented to the grand ea Pts allega-

tion, taken as true, would not require that

the submission be ex parte either under Rule

6(e) of the Federal Rules of Civil Procedure

or under common law. See, @.g., Sikvenrionr

v. Municipal Court of Boston, 355 Mass. 623,

627-628, 247 N.E.2d 379, (1969) cert. den.

396 U.S. 878.

Having allowed the Government's motion

for leave to make an ex parte submission,

5/ The motion for leave to file affi-

davit for in camera review stated that the

affidavit contained the “substance of

evidence ... presently before the grand jury."

28.

Respondent Caffrey then allowed the Govern-

ment's motion for disqualification. It was

as simple as that. Since according to his

lights Petitioner had no right to knowledge,

or even an inkling, of what was in the sub-

mission and since what was in the submission

convinced him that Petitioner should indeed

be disqualified, why waste time on listening

to any issues of fact or law that Petitioner

might wish to raise? He opened the so-called

"hearing" by announcing that he was allow-

ing the Government's motion, and thus there

was in reality no hearing at all. Cf. Morgan

v. United States, 304 U.S. 1, 18 (1938)%

Interstate Commerce Commn. v. Loursvikle &

Nashville R.R. Co., 227 U.S. 88, 93 (1913);

Bikkington v. Underwood, 613 F.2d 91, 95,

(Sth Cir. 1980). Petitioner came to court

to hear the verdict read and the sentence

pronounced, without benefit of trial, hear-

29.

ing, or even notice of the charges.

It should hardly be necessary to point

out that notice and the opportunity for

hearing lie at the heart of the Due Process

Clause of the Fifth Amendment. To quote

Muflane v. Centrak Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950):

An elementary and fundamental re-

quirement of due process in any

proceeding which is to be accorded

finality is notice reasonably cal-

culated, under all the circumstances,

to apprise interested parties of

the pendency of the action and

afford them an opportunity to pre-

Sent their objections. Milliken

v. Meyer, 311 U.S. 457; Grannis

v. Orleans, 234 U.S. 385, Priest

v. Board of Trustees of Town of

Las Vegas, 232 U.S. 604; Roller

v. Holly, 176 U.S. 398. The

notice must be of such nature

as reasonably to convey the re-

quired information. (Emphasis

supplied.)

The right to be heard prior to disqualifi-

cation has been applied to the right to

practice law. Willner v. Committee on

30.

Character & Fitness, 373 U.S. 96, 102, 103-

105 (1963) as it has been applied to the

right to practice other professions and

occupations. See, @.g., Connell v. Higgin-

botham, 403 U.S. 207, 208-209 (1971) and

cases cited.

Particularly applicable here is Golkd-

Smith v. United States Board of Tax Appeaks,

270 U.S. 117, 123 (1928) stating that not

merely the general right to practice a

profession but the right to practice a

specific aspect of it may not be cut off

without the opportunity for a hearing.

The manner in which Respondent Caffrey

reached his decision dovetailed rather neatly

with his denial of Petitioner's motion for

a continuance, a motion that Petitioner

did not even have the opportunity to make

until the decision was announced: 2.g.,

if the motion was to be allowed ex parte,

31.

why give Petitioner time for preparation?

But Petitioner was entitled to be heard, and

twenty-four (24) hours was insufficient time.

see Granny Goose Foods, Inc., v. Braotlerhood

0g Teamsters, Supra, 432, fn. 7 (same day

notice on hearing of preliminary injunction

did not suffice).

If the manner in which Respondent Caf-

frey conducted himself on the Government's

motion to disqualify Petitioner was not a

"patent abuse of discretion" justifying

intervention by the Court of Appeals through

a writ of mandamus, under what circumstances

could it be said that discretion was patently

abused. In what conduct after all could a

judge engage in respect of a motion by the

Government to disqualify an attorney that

would be more outrageous than that of

Respondent Caffrey in the present instance?

Perhaps the answer to the Court of Appeals

32.

is that it is sufficient grounds for the

issuance of a writ of mandamus that the

District Court abused its discretion, 4.@.,

usurped its power, Will v. United States,

389 U.S. 90, 95 (1967), and that whether,

as Petitioner believes, it did so patently,

is a less than important issue.

In seeking certiorari to review the

order dismissing the petition under 8165l,

Petitioner has emphasized the procedural

aspects of what transpired in the District

Court. This could be taken as a 4ub

4ikentio admission that substantively the

Government's position was correct. No

such admission is intended. The problem

with any attempt to discuss the "substan-

tive" aspects of the Government's case is

that Petitioner knows virtually nothing

about them. For one to proclaim his

innocence when he has no idea of the conduct

with which he is charged is fatuous. Peti-

tioner could hardly dispute that he is the

33.

target of a Grand Jury investigation, nor

can he agree that he is.

It "is important to remember that

issuance of the writ is in large part a

matter of discretion with the court to

which the petition is addressed." Kerr v.

United States District Court for the

Northean District of California, 426 U.S.

394, 403 (1976). Petitioner has not for-

gotten. In asking this Court to review the

judgments of the Court of Appeald dismis-

sing his appeal and denying his 81651 peti-

tion, Petitioner recognizes that reversal

of the former judgment will make the latter

judgment moot. If the order of disquali-

fication is held nonappealable, Petitioner

has suffered, contrary to the intimation

of the Court of Appeals, a grievous wrong

at the hands of both Respondents, for

which he has no effective remedy, see

34.

Tn Re Oswalt, 607 F.2d 645, 648 (5th Cir.

1979), and this case ought to be within that

narrow band of cases in which the refusal of

relief by mandamus is erroneous in law. (Cf.

Beacon Theatres, Inc. v. Westover, 359 U.S.

509, 511 (1959).

CONCLUSION

For the reasons given a writ of cert-

iorari should issue to review the judgments

dismissing Petitioner's appeal and denying

his petition for extraordinary relief.

By Petitioner's Attorney

DAVID BERMAN

BERMAN AND MOREN

100 George P. Hassett Dr.

Medford, MA 02155-3297

Tel: (617) 395-7520

la

Appendix.

United States Court of Appeals

for the First Circuit

No. 83-1045.

IN RE GRAND JURY PROCEEDINGS,

WILLIAM J. CINTOLO,

APPELLANT.

BEFORE COFFIN, Chief Judge,

BOWNES AND BREYER, Circuit Judges.

ORDER OF COURT

Entered January 26, 1983

In accordance with our order denying appellant's petition

for writ of mandamus, stay, writ of prohibition, and injunc-

tion, the appeal is dismissed.

By the Court:

/s/ Dana H. Ga.iup

Clerk.

[cc: Messrs. Berman and Ms. Collins]

2a

United States Court of Appeals

for the First Circuit

No. 83-1050. Onic.

IN RE

WILLIAM J. CINTOLO,

PETITIONER.

BEFORE COFFIN, Chief Judge,

BOWNES AND BREYER, Circuit Judges.

ORDER OF COURT

Entered January 26, 1983

There being no right to appeal pre-indictment disqualifica-

tion of an attorney, In re Benjamin, 582 F.2d 121 (lst Cir.

1978), and there being no patent abuse of discretion or new

and important issues regarding the power of the district court

or other extraordinary circumstances warranting a writ of

mandamus, see e.g. In re Oberkoetter, 612 F.2d 15, 17 (lst

Cir. 1980), the petition for writ of mandamus, stay, writ of

prohibition, and injunction is denied.

By the Court:

/s/ DANA H. GALLup

Clerk.

(Cert. c. Hon. Andrew A. Caffrey, Clerk, U.S.D.C., Mass.;

ce: Messr. Berman and Ms. Collins.)