# Petition — United States v. Gonsalves > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1040%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 806 ## Text ‘ ; S ie Office - Supreme Court. U9. 8 rte Fine 2=-1G044 ee MAY SL 1983 No. ponemetes STEVAS, CLERK e { In the Supreme Court of the Anited States OCTOBER TERM, 1982 UNITED STATES OF AMERICA, PETITIONER U. STEPHEN A. GONSALVES PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Rex E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General JOHN FICHTER DE PUE Attorney Department of Justice Washington, D.C. 20530 (202) 633-2217 ES, EN, OE CT Oe eee QUESTION PRESENTED Whether the district court correctly invoked “superviso- ry power” to dismiss the indictment on the ground that con- ducting a trial would impose an undue burden upon the court. (1) TABLE OF CONTENTS Page Opinions below .........-.ee cece cere e eee e cette 1 Pe nia ea beeen gas Kees een nese nes l ahah TNUAIVO . ou cine sets cere cere senecescenes 2 EE ESET LE EOE ESI 2 Reasons for granting the petition ........--++++++ 12 (ST 24 Appendix A... 00. cncnceccereece cess eessccees la Appendix B ..........scsecce reece e cess eccoecees 24a Appendix C ..... 2. cece eee c cece reece eee ceereecs 27a Appendix D .. o.oo cece eee seen sec ce ns eeeenecees 42a Appendix E ..... occ ccc ens nee sees eres esses neee 43a Appendix F .... 20 ce en cnsccce nee er cscccecess 44a TABLE OF AUTHORITIES Cases: Amsler v. United States, 381 F.2d 37......... 23 Baker v. Carr, 369 U.S. 186 .......---seeeees 21 Bordenkircher v. Hayes, 434 U.S. 357 .......- 13, 18 Colorado River Water Conservation District v. United States, 424 U.S. 800 ..........-eees 13, 16 Confiscation Cases, 74 U.S. (7 Wall.) 454 ..... 18 Costello v. United States, 350 U.S. 359 ....... 7 England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 .....ccccceccccues 13, if Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 .......+++++e0eees 19 Marbury v. Madison, 5 U.S. (1 Cranch) i i ee te se ewes ti, 16, 17 McNabb v. United States, 318 U.S. 332....... 13, 14 Newman v. United States, 382 F.2d 479 ...... 19 Palermo v. United States, 360 U.S. 343 ...... 19 Powell v. Katzenbach, 359 F.2d 234 .......... 19 Ill IV Cases:—Continued Page Smith v. United States, 375 F.2d 243 ......... United States v. Batchelder, 442 U.S. 114 .... United States v. Bertolotti, 529 F.2d 149...... 15, United States v. Brown, 481 F.2d 1085 ....... United States v. Coven, 662 F.2d 162, cert. CI, Fe ng new ci cce ns ccccnunes United States v. Cor, 342 F.2d 167, cert. WT, Oe a esc kan cucecwaues 18, United States v. Goodwin, No. 80-2195 (June De i abc w ccc wasn cue eues United States v. Hasting, No. 81-1463 (May 23, pe CARRIER SETS I UR Re ape agen ere 15, United States v. Lovasco, 431 U.S. 783 ....... United States v. Morrison, 449 U.S. 361...... United States v. Miller, 463 F.2d 600, cert. I Fe iv ook whic cvcccicceses United States v. Nixon, 418 U.S. 683......... 16, United States v. Payner, 447 U.S. 727..18, 14, 17, United States v. Praetorius, 622 F.2d 1054, RPE. GN, SO UL, Ben vc ccs nnsevcse United States v. Russell, 411 U.S. 423 ....... Umsied States v. Seok, BT U.S. SE... ow canes United States v. Sperling, 506 F.2d 13238, cert. I I, oe voce cc ccececc Willcox v. Consolidated Gas Co., 212 U.S. 19. Youngstown Sheet & Tube Co. v. Sawyer, 343 ao wkd kckiceesunsces i, Constitution, statutes and rules: Pov | GO ee ee haw Be es I oc ees ec ceseccsncens Re a ee ee 2, 16, WU ai ease cednceyscnnies V Constitution, statutes and rules:—Continued Page Dy UG BU oo kien vce cckecennsnes 2, 4 eo hc dek kn ce sadcenwenes & 4 8 Oe reek cen is vanes ces cece 2,4 a aes rer err rarer. 2,4 ee oo oe a oe nha bceeennenes 2. 4, 19 Oe Oe PO occ ete wees ns cnceess 22 28 U.S.C. (@ Supp. V) SOGLD) .. .. ccc eecess 22 28 U.S.C. (@ Supp. V) 202d) ... 2. cece nceess 22 28 U.S.C. (@ Supp. V) 204.2... cece erence ees 22 Fed. R. Crim. P.: oc ces k eee wenn nea 20 acc n hehe kann ee 3 ics cdaecsscasnnes 20 We hc keds cin ceuns css 3 pO RUSE USGS 0s ARRENE S oe cag na 20 ee haa ckesctrwnnees 20 ein vce cin kee emus ins : ee BI oo ck eve ceccneces ss 23 Miscellaneous: Note, A Separation of Powers Approach to the Supervisory Power of the Federal Courts, 34 Stan. L. Rev. 427 (19GB) .... 2. ec eeeeeccess . 3 J. Wigmore, Wigmore on Evidence (Chadbourn rev. 1970) .. ... «2. cccnescceen: 23 In the Supreme Court of the United States OCTOBER TERM, 1982 No. UNITED STATES OF AMERICA, PETITIONER U. STEPHEN A. GONSALVES PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The Solicitor General, on behalf of the United States, pe- titions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra, la-23a) is reported at 691 F.2d 1310. The district court’s or- der granting respondent's motion to dismiss the indictment (App. B, infra, 949-26a) is unreported. The 1976 oral opin- ion of the district court granting motions for “acquittal” filed by three other defendants charged along with respon- dent in the indictment (App. C, infra, 27a-41a), upon which the court relied in dismissing the indictment as to respon- dent, is likewise unreported. JURISDICTION The judgment of the court of appeals (App. D, infra, 42a) was entered on November 9, 1982, and a timely petition for rehearing was denied on February 28, 1982 (App. E, infra, 43a). On April 23, 1983, Justice Rehnquist extended the time in which to file a petition for a writ of certiorari until 2 May 29, 1983. The jurisdiction of this Court is invoked un- der 28 U.S.C. 1254(1). STATUTE INVOLVED 18 U.S.C. 3231 provides in pertinent part: The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. STATEMENT On March 25, 1976, respondent and 12 other defendants were charged in a two-count indictment returned by the federal grand jury in the District of Nevada with conspir- acy to import hashish, a controlled substance, into the United States, in violation of 21 U.S.C. 952(a), 960(a)(1) and 963, and conspiracy to possess that contraband with in- tent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 846. Respondent was a fugitive for several years after the return of that indictment. See United States v. Gonsalves, 675 F.2d 1050, 1051-1052 (9th Cir. 1982). He surrendered to federal authorities in Las Vegas on August 28, 1980, and his case was set for trial. On September 28, 1980, respon- dent moved to dismiss the indictment on the grounds that previously had been stated by the district court in 1976 in entering judgments of acquittal as to three of the other de- fendants charged in the indictment. On December 17, 1980, the district court (Foley, J.), invoking “discretionary super- visory powers,” dismissed the indictment as to respondent. The court stated that the indictment was “a complex mon- strosity,” and that dismissal was warranted for the “rea- sons articulated in this Court’s [prior] order and judgment of acquittal” as to the three defendants previously prose- cuted (App. B, infra, 26a). The court of appeals affirmed. l.a. In December 1975 a grand jury sitting in Nevada re- turned a three-count indictment, Cr. LV 75-198, charging respondent and 15 other individuals with conspiracy to import hashish and conspiracy to possess hashish with in- tent to distribute, (Count I), importation of hashish (Count II), and possession thereof with intent to distribute (Count 3 III).! Only three of the defendants, Richard Kenneth Brown, Robert David Work, and Kent Giles Snyder, were apprehended at the time. The others were citizens of other countries and nonextraditable, or (like respondent) fugi- tives. After the government voluntarily dismissed the two non-conspiracy counts pursuant to Fed. R. Crim. P. 48(a), a motion was filed to dismiss the remaining count on the ground that it charged two separate (albeit related) of- fenses without separating them into counts, in violation of Fed. R. Crim. P. &(a). On February 26, 1976, the district court granted that motion without prejudice to reindictment. The district court also took the occasion to complain about other aspects of the case presented to him: Count I of the indictment now dismissed names 16 defendants. Ten of the defendants are citizens of other countries and not amenable to the process of this Court, and according to the Government, there is no way they can be compelled to appear before this Court pursuant to treaty between the United States and the countries of which they are citizens. Of the 6 defend- ants that are citizens of the United States, only 3 are before the Court, the other 3 are fugitives and the Government cannot assure the Court as to whether or not pending bench warrants will ever be served upon them. The indictment names some 14 co-conspirators who are not defendants and alleges 93 separate overt acts alleged to have taken place in the United States and many foreign countries. The district court concluded: The Court hopes that in representing the matter to the Grand Jury United States Attorney Lawrence Semenza will make some effort at least to comply with the requirements of Rule 7(c)(1)[?] and, in addition, to give the Court a case that is manageable for trial. Count I of the indictment now dismissed is, to say the least, a monstrosity. ! Respondent was not charged in Counts II and ITI, 2 Fed. R. Crim. P. 7(¢)(1) provides, in pertinent part: The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. d b. Less than a month later, on March 25, 1976, the grand jury returned another indictment, Cr. LV 76-39, based upon the scheme previously charged.? The two-count in- dictment charged 13 defendants, including respondent, Brown, Work, and Snyder, with conspiracy to import a con- trolled substance (hashish), in violation of 21 U.S.C. 952(a), 960(a)(1) and 963 (Count I) and conspiracy to possess a con- trolled substance with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 846 (Count II). The twin conspiracies charged each spanned the period March 4, 1973 to June 1, 1974. Ten overt acts were enumerated, and 17 unindicted co-conspirators were named. The indictment charged that defendants repeatedly imported large quantities of hashish. As ultimately elabo- rated in the government’s trial memorandum submitted in connection with the scheduled trial of defendants Brown, Work, and Snyder, five successive episodes of importation were involved. Each episode entailed shipment of specially constructed oversized stereo speaker cabinets to a location in Europe, transfer of large amounts of cash from central figures in the United States to operatives in various Euro- pean cities who purchased the hashish, insertion of the con- traband into plastic inserts which were in turn installed in the stereo speaker cabinets, shipment of the speaker cabi- nets to various United States cities by air freight, and claiming of the cabinets and removal of their illicit contents. The last of these shipments was destined for Las Vegas but was intercepted by federal agents, triggering the investiga- tion that produced the 1975 and 1976 indictments. The case was ready for trial in the fall of 1976. Defend- ants Brown, Work, and Snyder were still the only ones who could be located for trial. The court allowed the motions that had previously been filed attacking the earlier indict- ment to be refiled in this case but did not act upon them be- fore impaneling a jury and entertaining opening statements on September 21, 1976.4 The next morning, however, rath- 3 Indictment Cr. LV 76-39 is reproduced as Appendix F, 44a-5la, infra. * It appears that the district court intended by its failure to act to deny those motions (see App. C, infra, 34a). ~ 0 er than proceeding with the government’s case as sched- uled, the district court invited the defendants to move for judgments of acquittal based on the government’s opening statement and trial memorandum (App. C, infra, 30a). Observing that “I read the trial memorandum last night, I hadn’t read it before” (App. C, infra, 29a), the district judge went on to explain at considerable length that he was unwilling to proceed with trial (id. at 30a-41a). His remarks made three interrelated points: (1) that the government should have charged each of the major episodes described in the government’s trial memorandum as a separate con- spiracy (id. at 3la-34a, 38a, 41a); (2) that if the charges had been so divided venue would not lie in Nevada as to several of the sub-offenses that could have been charged (id. at 31a, 38a, 41a); and (3) that the case was, in any event, too complex and unmanageable to try, and the indictment would accordingly be dismissed under the inherent supervi- sory power the court believed it possessed (id. at 34a-35a, 384-40a). The latter theme was dominant in the court’s re- marks. Also interspersed throughout the court’s remarks were comments reflecting strained relations between the individual district judge presiding and United States Attor- ney Lawrence Semenza. Because of the extraordinary nature of the district court’s explanation of its ruling, we review these comments in some detail. The district court commenced (App. C, infra, 30a): (I]n the Alice in Wonderland mind of Lawrence Semenza, who is United States Attorney for Nevada, we have conjured up here a massive conspiracy. This isn’t the first time Mr. Semenza, in his own inimitable way, has conjured up a massive conspiracy. Back in 1974, I spent a whole summer, missed the Judicial Conference, trying one of Larry Semenza’s dreams * * * The district court recounted this prior experience in trying an elaborate multi-defendant drug case. The court singled out repetitive cross-examination and the rudeness of the defendants’ counsel as the signal difficulties of the earlier 6 trial (ibid). The court stated (ibid.), “Mr. Semenza sat in that chair and smiled. I think he likes to concoct this type of monstrosity.” The court then proceeded to review the sequence of events laid out in the government’s trial memorandum. suggesting at intervals how they could have been divided into separate conspiracies for purposes of prosecution (in some instances in other judicial districts), noting the un- availability of many of the defendants for trial, and contin- uing its criticism of the United States Attorney (App. C, infra, 3la-34a).5 Concluding this review, the court stated (id. at 34a): I haven't done any research, but I am going to grant the motion [to acquit] based on the, and it is so or- dered that it is granted, based on the opening state- ments and the trial brief, on the grounds that the court had no jurisdiction. And on the further ground that this type of a monstrosity, unmanageable monstrosity, does not have to be tried by Federal Judges. [®] 5 See, e.g., App. C, infra, 31a: Most prosecutors, ninety-nine out of a hundred lawyers that have any logic in their mind would have said, “Okay, that is one charge.” * * * That is just the beginning of Mr. Semenza’s dream. The court added (ibid.): “I really wish the press were here, perhaps that is just as well.” See also App. C, infra, 34a: The theory, of course, in this mind of Mr. Semenza’s “Yes, that they are working for Combs” [the “mastermind” of the conspir- acy charged]. Well Combs might have a hundred and fifty other people working for him, importing, I don’t know, it could be a half dozen other things not only involving controlled substances. * * * But, if you follow the logic, the illogic of the mind of our United States Attorney, that is all one great conspiracy. It is ri- diculous. * * * I fell for it once. Damn near had a nervous break- down with that trial. It should have taken two or three weeks and I let one Los Angeles lawyer voir dire the jury and three days later, we are still trying to get a jury. I remember that very well. * At this juncture the court complained about what it regarded as the subservience of grand juries to prosecutors and the rendition of in- dictments based on hearsay evidence (App. C, infra, 34a). In the lat- ter connection the court acknowledged this Court’s decision in Costello 7 The district court continued (7d. at 35a): (T]his type of conspiracy is unmanageable trialwise. I don’t know if there is any case law to support me, It think that a trial judge is not an umpire and courts have said this. A Federal trial Judge can participate to the extent it is necessary to bring order out of chaos, and to the extent that it is necessary to a fair trial and comment on the evidence and so forth. He has man- agement powers, he is not an umpire calling all the balls and strikes as some of our poor state courts. And when something like this comes in, the court has the inherent authority I am going to bola ~*~ * 7 to dispose of this kind of thing. It is quite apart from jurisdiction. Foreseeing the likelihood of a government appeal from its action, the district court was vague about the legal ground for the ruling (7bid. ): I will allow counsel to think about it and read what the government says in their brief if they do take it to ap- peal and then leave open any other reasons to support me. But it is the kind of thing that should not be tried or allowed. In view of its criticism of the United States Attorney, the court stated to the Assistant United States Attorneys prosecuting the case (App. C, infra, 36a): “I don’t expect a response from government counsel, you have got to be loyal to the man you are working for.” The prosecutors never- theless sought leave to go forward with their evidence, arguing that they would be able to establish the existence of a single overall conspiracy, and observing that if the gov- ernment failed to sustain its burden in this regard a motion for acquittal could be granted at the close of the govern- ment’s case. The court declined to consider this procedure, stating (ibid.), “I am not going to waste two or three weeks. I have got other things to do and so have you and the other counsel.” The court appeared to acknowledge that whether the acts charged were part of a single conspiracy vy. United States, 350 U.S. 359 (1956), but commented (App. C, infra, 34a): “It’s going to change, it’s going to have to.” 3 Was a factual question (id. at 37a-38a). The court insisted, however (id. at 38a): You are misunderstanding, I am not saying there is no theory * * * for this. I say it is a monstrosity, it is unmanageable, it is not the kind of thing that a court has to put up with and it should be broken down. After advising the prosecutors in considerable detail as to how the prosecution should have been handled (App. C, infra, 38a), the court again refused to allow the govern- ment an Opportunity to prove that the overall conspiracy charged had occurred, making clear that it was unwilling to try the case in any event (id. at 39a: emphasis added): You are not going to offer any evidence. If the Court of Appeals reverses this finding and sends it back for trial, | won't try it. I will find some young Judge that has got more patience and energy than I have, to come in and try it. The district court never explained what it was that would make the trial of Brown, Work, and Snyder on the conspir- acy indictment returned by the 1976 grand jury unmanage- able. In discussing a prior experience with a multi- defendant drug conspiracy trial, the court made clear that it preferred that the case be tried elsewhere (App. C, infra, 40a). The court appears, moreover, to have lost sight of the fact that there were only three defendants before it for trial (id. at 39a): THE COURT: * * * I don’t think that the court has to sit carte blanche—let’s suppose that somewhat like the [earlier] case that all the defendants were found here and they all had different lawyers. Have you ever been through one of those? Mr. Sheridan [counsel for de- fendant Snyder], I know you better than those other gentlemen. Have you ever seen one of those tried? MR. SHERIDAN: Yes, your honor. THE COURT: They are horrible. They are unmanage- able. You’ve got how many defendants, eleven? MR. SHERIDAN: Thirteen, I think and seventeen unindicted co-conspirators. THE COURT: You have got eleven cross-examiners for each witness. * * * 9 The court acknowledged (App. C, infra, 39a) that mas- sive conspiracies do exist, and did not explain why the three defendants before it should not go to trial upon the indictment. Instead, the court again suggested that the case should have been prosecuted elsewhere, renewed its sharp criticism of the United States, and finished with a suggestion that it commence general supervision of the prosecutorial decisions of the United States Attorney (id. at 40a; emphasis added): [N]o, you see they all came from Las Vegas and that is how I got [this case]. Another one of Mr. Semenza’s Alice in Wonderland dreams. And they are that. They are ridiculous in concept. I don’t know what the matter is, I don’t know how he thinks. I think he has some kind of sense of delight in conjuring these things up, creating these massive puzzles and saying, “Let’s see how Judge Foley can handle that.” I don’t know what is going on, but I will tell you this much, I’m not going to put up with it any more. Please God, we'll have a change of administration and he'll be gone.[{7] I don’t know about that either, but /’m not going to put up with Semenza any more. So I won't try this. If the Court of Appeals should say that I am wrong, I don’t think they are going to, and this case comes back, I won’t try it. And I won't try any more of Larry Semenza’s cases that are this ill. I’m going to have to work out some system when I get copies of the indictment where I can demand in ad- vance a trial brief so I can see what we are into before we go through all the time and energy, the motion stage and impanelling the jury and so forth. The motions for acquittal were granted (id. at 41a). c. The government took an appeal from the judgments of acquittal, arguing that there would be no Double Jeopardy bar to further proceedings after the “acquittal” because the grounds for acquittal had no bearing on the question of guilt or innocence, and the “trial” had been a sham. On May 4, 1977, however, the court of appeals dismissed the gov- 7 These proceedings occurred shortly before the 1976 presidential election. 10 ernment’s appeal on double jeopardy grounds (see App. A, infra, 9a).® 2.a. As previously noted, proceedings directly involving respondent commenced when he surrendered to federal au- thorities in August 1980. Respondent moved to dismiss the indictment for the reasons given by the district court in acquitting Brown, Work, and Snyder in 1976. Respondent also argued that the trial would be protracted, with many government witnesses and an extensive defense case, and that such a prosecution was unwarranted given what he characterized as his minor role in the alleged conspiracy. Finally, respondent urged that the government was collat- erally estopped from opposing dismissal by the order en- tered in the earlier prosecution. The district court granted the motion to dismiss on De- cember 17, 1980 (App. B, infra, 24a-26a). The court de- clined to rely upon collateral estoppel (¢d. at 25a) and ap- pears to have eschewed any suggestion that the indictment charged multiple conspiracies or that venue was improper, relying exclusively upon the supervisory power rationale for dismissal asserted in 1976 (/d. at 26a; citations omitted): This court is well aware that a conspiracy prosecution may be brought in any district in which any act in fur- therance of the conspiracy was committed by any of the conspirators, even though some of them were nev- er physically present there. * * * And the actions in Las Vegas of Ernest Franz Combs, Jr., an indicted coconspirator, could be used to establish the necessary overt act within this district. However, the problem in Brown [the prosecution of Brown, Work and Snyder] was that the indictment was such a complex monstrosi- ty that this Court decided that it should have been broken down into several smaller more manageable in- dictments. There was simply no good reason for those defendants to be indicted in this district given their al- leged roles in the government’s conspiracy theory. This Court is confronted with that same problem with the indictment against Gonsalves. 8 The court of appeals, of course, acted without the benefit of United States-v. Scott, 437 U.S. 82 (1978). 1] Therefore, for the reasons articulated in this Court’s September 21, 1976 order and judgment of acquittal as to defendants Brown, Work and Snyder, this Court hereby exercises its discretionary supervisory powers and dismisses the indictment as against Gonsalves.[%] b. The government appealed and, nearly two years later, the court of apeals affirmed. It stated: “Our task is to de- termine whether the dismissal of the indictment was a proper exercise of supervisory power by the district court” (App. A, infra, 10a). The court of appeals recognized that the dismissal of the indictment in this case did not rest upon any infringement of respondent’s legal rights (7d. at 10a, 13a, 14a). Nevertheless, the court espoused a broad doctrine of supervisory authority vested in the district courts “to do justice in particular fact situations” (7d. at lla). Recognizing that dismissal of an indictment absent le- gal grounds for doing so may “encroach on the prosecutor's prerogatives” (id. at 12a) and implicate separation of pow- ers concerns (id. at 14a), the court invoked a principle of “checks and balances,” said to be implicit in the Constitu- tion, as a source of supervening authority (7d. at 15a-16a). Citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the court stated (7d. at 16a): “It is clear that Article III authorizes the judicial branch to review the operations of the executive and legislative branches” and concluded (ibid. ): The judiciary therefore should use its supervisory power to maintain its own institutional integrity, in- cluding the ability to administer an effective criminal justice system * * * Turning to the particular case presented, the court of ap- . peals stated: “The District Court in this case hadfample fac- tual and legal basis upon which to conclude that the indict- ment pursued by the prosecutor constituted a serious intrusion into the judiciary’s interest in the fair administra- tion of the criminal justice system” (?d. at 19a). It sug- gested that the transcript of the district court’s 1976 oral 9 Only a minute order records the 1976 disposition. Accordingly, the court must have intended to invoke its oral ruling. 12 ruling acquitting defendants Brown, Work, and Snyder re- flected the judge’s experience with the problems of manag- ing “massive conspiracy trials” (id. at 18a). The court also invoked Second Circuit decisions noting the risks of appel- late reversal created by use of broad conspiracy indict- ments (?d. at 18a-19a). The court of appeals explained its conclusion that dis- missal was warranted here only in the most general terms (App. A, infra, 19a-20a; footnote omitted): Our own review of the record, and indeed our mere recitation of the elaborate facts of the conspiracy out- lined in the indictment * * * show that the facts here justified the conclusion that to allow prosecution on this indictment would “gravely impair the basic func- tion of” the District Court. The court was not required to ignore the practical con- siderations attendant to a trial of this size and com- plexity, e.g., the innumerable pretrial motions, the occupation of weeks of the court’s busy calendar, the superhuman tasks facing the jury and the likelihood of a mistrial. On the facts of this case the judge had a sol- id basis upon which to find the prospect of these hor- rors real and the resulting disruption of the judicial process great. Purporting to apply a balancing test weighing these consid- erations against the value of prosecutorial discretion (id. at 20a), the court of appeals concluded that “the degree of en- croachment upon the prerogatives of the prosecutor that a dismissal entails in this case is minimal” because the dis- missal was without prejudice and left the prosecutor free to seek reindictment upon terms charging separate conspira- cies of less global scope in other venues (id. at 20a & n.13). REASONS FOR GRANTING THE PETITION The dismissal of the indictment in this case was not based on any finding that it failed to state an offense triable in the United States District Court for the District of Nevada or that trial on the indictment would violate any right of re- spondent’s. Rather, it was based on vaguely identified “su- pervisory powers” and considerations of judicial conven- ience. By upholding the dismissal, the decision of the court 13 of appeals effects an unprecedented shift of authority to de- termine whether and against whom criminal charges should be brought, and the nature of those charges, from the Ex- ecutive Branch (and the grand jury), where it has hereto- fore resided, to the district courts. This transfer finds no support in the decisions of this Court identifying the limits and purposes of the supervisory power and is contrary to this Court’s teaching that “[t]he supervisory power merely permits federal courts to supervise ‘the administration of criminal justice’ among the parties before the bar.” United States v. Payner, 447 U.S. 727, 735 n.7 (1980), quoting McNabb v. United States, 318 U.S. 332, 340 (1943). Nor has any decision of any other court of appeals purported to arrogate a similar authority to the judiciary. The court of appeals’ decision is also contrary to other fundamental principles established by this Court’s deci- sions. First, the court of appeals’ decision disregards the “virtually unflagging obligation of the federal courts to ex- ercise the jurisdiction given them.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976); see also England v. Louisiana State Board of Med- ical Examiners, 375 U.S. 411, 415 (1964). Second, the court of appeals’ reasoning that dismissal of the indictment was permissible because different charges could still be proffered in other venues ignores the fundamental rule of prosecutorial discretion: In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Accord- ingly, the district courts do not possess authority— how- ever it may be labeled—to determine that trial of defend- ants upon legally valid charges pressed by the prosecutor and the grand jury would impose an undue burden upon the courts. Even if such authority were available in extraordinary circumstances, the record of this case provides no basis for its application. It is inconceivable that the trial of a single 14 defendant upon a two-count indictment could present an unmanageable task for the district court. Indeed, neither the district court nor the court of appeals identified any ba- sis in the record of this case for concluding that the trial would entail unusual difficulties. Moreover, the record re- veals with painful clarity that the true basis for the district court’s ruling was its view that the prosecutorial practices of the government generally should be subject to its con- trol, together with the individual trial judge’s disapproval of the United States Attorney’s prosecutorial policies. l.a. There is no precedent for the exercise of supervisory power sanctioned by the court of appeals in this case. It is established that supervisory power does not arm “the fed- eral judiciary [with] a ‘chancellor’s foot’ veto over [prose- cutorial] practices of which it d[oes] not approve” (United States v. Russell, 411 U.S. 423, 485 (1973)). As the Court stated in Russell (ibid.; emphasis added): The execution of the federal laws under our Constitu- tion is confided primarily to the Executive Branch of Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.[}°] As the Court cautioned in Payner, supra, 447 U.S. at 735 n.7, quoting McNabb v. United States, supra, 318 U.S. at 332, “[t]he supervisory power merely permits federal courts to supervise ‘the administration of criminal justice’ among the parties before the bar.” There is no suggestion in this Court’s decisions (or those of the other courts of ap- peals) that supervisory authority exists to determine which 10 The Court’s comments in Russell were made in the course of re- jecting the suggestion that it give extra-constitutional, extra-statutory scope to the entrapment defense—in other words, that it invoke a su- pervisory power. _ 15 parties should be prosecuted or to determine (other than by reference to the pertinent legal rights of defendants) what the charges against them should be.?? That the decision of the court of appeals overstepped the confines of the supervisory power doctrine is confirmed by this Court’s recent decision in United States v. Hasting, No. 81-1463 (May 23, 1983). There the Court described the supervisory power as allowing federal courts “within lim- its, [to] formulate procedural rules not specifically re- quired by the Constitution or the Congress” (slip op. 6; em- phasis added). Of course, the dismissal of a legally valid indictment, sanctioned by the court of appeals in this case, rests not upon some rule governing the conduct of proceed- ings before a court, but upon the district court’s view that trial of the case itself does not comport with the public in- terest. That such a determination overreaches the bounda- ries of the courts’ supervisory authority is evident from consideration of the purposes of the supervisory power doc- trine identified by the Court in Hasting (slip op. 6; citations omitted): The purposes underlying use of the supervisory pow- ers are threefold: to implement a remedy for violation of recognized rights * * *; to preserve judicial integri- ty by ensuring that a conviction rests on appropriate considerations validly before the jury * * *; and finally, as a remedy designed to deter illegal conduct * * * None of these purposes is served by the dismissal of this case. The courts below did not purport to identify any vio- 11 To the extent the court of appeals relied (App. A, infra, 18a-19a) upon the Second Circuit’s decisions in United States v. Sperling, 506 F.2d 1323, 1340-1341 (1974), cert. denied, 420 U.S. 962 (1975), and United States v. Bertolotti, 529 F.2d 149 (1975), that reliance was mis- placed. In Sperling the court of appeals merely cautioned the prosecu- tor that whenever the link between episodes of a larger conspiracy is tenuous, there is a risk of appellate reversal of convictions secured upon the global conspiracy charge. 506 F.2d at 1340-1341. And in Bertolotti convictions were reversed because the court of appeals found “no evidence linking [the illegal transactions charged] together in a single overall conspiracy.” 529 F.2d at 155. The Second Circuit did not suggest on either occasion that the district court possessed super- visory authority to prevent the government from seeking to prove its case, which is what the district court did here. 16 lation of respondent’s rights that would result from bring- ing him to trial upon the indictment in this case. And the rationale of the court of appeals for sanctioning dismissal bears only a semantic resemblance to the judicial integrity concerns recognized in Hasting, for neither court below identified any consideration that would have been improp- erly presented to the jury simply because respondent was to be tried upon the pending indictment. Finally, there is no suggestion whatsoever that the prosecution of this case involves illegal conduct by prosecutors or other law en- forcement personnel. b. The court of appeals’ premise that supervisory power may be employed to dismiss indictments where trial would impose burdens upon a district court that are, in that court’s judgment, unwarranted, distorts the role of the fed- eral courts in our constitutional system. It does not deni- grate the role of the judiciary to remember that the func- tion of the federal courts is “to say what the law is” with respect to the cases before it, Marbury v. Madison, supra, 5 U.S. (1 Cranch) at 177, and to apply the law thus deter- mined to the facts of those cases as they are found to be. In United States v. Nixon, 418 U.S. 683, 707 (1974), the Court recognized “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” This duty plainly cannot be fulfilled by refusal to try cases that the courts determine to be unduly time consuming. On the contrary, the obligation of the federal courts to exercise the jurisdiction given them is “virtually unflagging.” Colorado River Water Conservation District v. United States. supra, 424 U.S. at 817.12 Here, moreover, the jurisdiction of the district court is exclusive and absolute. 18 U.S.C. 3231 pro- vides in pertinent part: '? To be sure, the holding of Colorado River Water Conservation District was that the district court had properly declined to exercise its jurisdiction in favor of concurrent proceedings in state court. But the Court stressed that the circumstances presented were “exception- al.” 424 U.S. at 818. More importantly, the issue was whether the water rights involved would be adjudicated in state or federal proceed- ings; there was no suggestion that a federal court might decline to ex- ercise its jurisdiction when the result would be to preclude altogether a determination of rights or liabilities. 17 The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States. of all offenses against the laws of the United States. The dismissal of the indictment in this case is accordingly “at war with the unqualified terms in which Congress, pur- suant to constitutional authorization, has conferred specific categories of jurisdiction upon the federal courts, and with the principle that ‘When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.’”’ England vy. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415 (1964), quoting Willcox v. Consolidated Gas Co., 212 U.S. 19, 40 (1909). The court of appeals grounded its decision upon the as- sertion that “Article III authorizes the judicial branch to review the operations of the executive and legislative branches” (App. A, infra, 16a). This fundamental premise is erroneous. Article III empowers the federal courts to de- cide only cases or controversies. In doing so, the courts are authorized “to say what the law is,” Marbury v. Madison, supra, 5 U.S. (1 Cranch) at 177, and thus to declare that an Act of Congress is unconstitutional, or that an executive act is unauthorized by Constitution or statute, as in Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S. at 585-589, or is otherwise contrary to law. But neither these cases, upon which the court of appeals relied (App. A, infra, 16a), nor any other authority of which we are aware, suggests that the courts are established to oversee the functions of the Executive or Legislative Branches gen- erally, or specifically to review the prosecutorial discretion of the United States Attorneys.!% Nor does the principle of “checks and balances” that the court of appeals invoked as a counterweight to the doctrine of separation of power (ibid. ) 13 We note that the court of appeals’ analysis in this aspect rests pri- marily upon a student law review note, A Separation of Powers Ap- proach to the Supervisory Power of the Federal Courts, 34 Stan. L. Rev. 427 (1982), the burden of which is that United States v. Payner, supra, was wrongly decided by this Court. 34 Stan. L. Rev. at 449-451, 452. 18 support such general supervision of the prosecution by the district court. That concept is merely descriptive of the ar- rangements embodied in our Constitution. It has been ap- plied, inter alia, to describe the function of judicial review. It may also plausibly be applied to describe the exercise of the courts’ powers under the Constitution and various stat- utes and rules that govern criminal proceedings—and in that special sense to check the power of the Executive as prosecutor and to hold Congress to constitutional limits in defining offenses. But the structural principle of checks and balances said to be embodied in our Constitution plainly cannot form an independent source of authority for any branch to exercise discretionary control over the activities of another branch, lest the actual allocation of authority in the Constitution be disrupted. c. The court of appeals reasoned that the district court’s dismissal of the indictment in this case does not seriously impair the prerogatives of the prosecutor because the gov- ernment remains free to indict on charges differently framed, in other venues (App. A, infra, 20a & n.13). The court of appeals’ reasoning fails, however, to recognize that the constitutional authority of the Executive, exercised through the prosecutor in conjunction with the grand jury, extends not only to deciding whether to prosecute, but also to the “select{ion] [of] the charges against the accused.” United States v. Goodwin, No. 80-2195 (June 18, 1982), slip op. 11 n.11. As the Court explained in Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978): In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute the decision whether or not to pros- ecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. See also United States vy. Batchelder, 442 U.S. 114, 124 (1979); United States v. Nixon, supra, 418 U.S. at 693, citing with approval United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965); ef. Confis- cation Cases, 74 U.S. (7 Wall.) 454, 457-459 (1869). The de- cision of the court of appeals thus cuts to the heart of the prosecutor’s constitutional independence. It also undercuts 19 the constitutional role of the grand jury in determining what offenses are to be charged. The decisions of other courts of appeals recognize that the prosecutor’s charging decisions are not subject to judi- cial oversight—no matter what the procedural device by which it is sought. United States v. Brown, 481 F.2d 1035, 1043 (8th Cir. 1973) (sua sponte dismissal of indictment); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973) (civil action to compel federal prosecution); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967) (appeal from conviction based upon prose- cutor’s acceptance of co-defendant’s guilty plea to lesser of- fenses): Smith v. United States, 375 F.2d 243, 247 (5th Cir. 1967) (Federal Tort Claims Act suit); Powell vy. Katzen- bach, 359 F.2d 234, 235 (D.C. Cir. 1965) (mandamus to compel prosecution); Un ited States v. Cow, supra (order di- recting United States Attorney to draft and sign indict- ment). Each of these cases reflects an understanding of the respective roles of court and prosecutor that is at odds with the view of the Ninth Circuit in this case. d. In addition to the limitations upon the scope of the su- pervisory power previously addressed, that power is limit- ed by the paramount authority of Congress to establish, within constitutional limitations, practices and procedures and substantive rules to govern proceedings in federal courts. See, e.g., Palermo v. United States, 360 U.S. 343, 353 n.11 (1959). The decision of the court of appeals, how- ever, effectively overrides the pertinent provisions of fed- eral law that establish grounds for dismissal of an indict- ment and related procedures in managing a criminal trial. As previously noted, the discretionary power of dismissal (unrelated to rights of the defendant) announced by the courts below is inconsistent with 18 U.S.C. 3231, which vests the district courts with jurisdiction over all offenses against the United States. Absent specific legal grounds for dismissal of an indictment, such as failure to state an of- fense, the assumption of vaguely defined “supervisory pow- er” to dismiss the indictment here is contrary to that grant of jurisdiction, as well as to the substantive provisions that define the offenses charged, and the statutory provisions 20 punishing conspiracy to commit those offenses, 21 U.S.C. 846 and 963. In addition, the supervisory authority claimed by the dis- trict court effectively circumvents the provisions of the Federal Rules of Criminal Procedure that govern the con- tents of indictments (Rule 7), the joinder and severance of offenses and defendants (Rules 8 and 14). and permissible venues for prosecution (Rule 18; see also 18 U.S.C. 3237). Neither the district court nor the court of appeals identified any legal defect under these provisions or other previously recognized legal principles that would warrant dismissal of the indictment. Thus, the decision of the courts below “con- fer[s] on the judiciary discretionary power to disregard the considered limitations of the law that it is charged with enforcing.” United States v. Payner, supra, 447 U.S. at 737, “[T]he supervisory power does not extend so rar.” Ibid. e. The decision of the court of appeals proceeds upon the er- roneous supposition that the supervisory power claimed by the district court must be made available to ensure that federal prosecutors do not destroy the courts’ “ability to ad- minister an effective criminal justice system” by initiating unmanageable prosecutions (App. A, infra, 16a). There is no warrant for this remarkable assumption. On the contra- ry, the Department of Justice and the United States Attor- neys have every incentive to ensure that complex indict- ments are not obtained except to the extent necessary and appropriate in carrying out their constitutional duty to “take Care that the Laws be faithfully executed” (Art. II, § 3). The resources and personnel of federal prosecutors, like those of the judicial branch, are limited.14 Given these limited resources, federal prosecutors, confronted by the '* It bears mentioning that the alternatives to a complex, multi- defendant indictment as a means of prosecuting a large-scale conspir- acy are either to refrain from indicting many persons believed to have committed serious crimes or to break up the offense into a number of separate indictments, each to be separately tried (as the district court apparently would have preferred here). It is far from obvious, to say the least, that multiple trials requiring many of the same witnesses to testify about the same core events would realize the goal of economic allocation of scarce criminal justice resources. 21 lash of the Speedy Trial Act, have powerful reasons to be selective about the matters presented to a grand jury. Even apart from constitutional considerations, it is the prosecutor who is best situated to make necessary decisions about the relative priority of various cases and to deter- mine whether the public interest in effective administration of the criminal justice system as a whole will be served by going to trial upon a particular indictment. See United States v. Lovasco, 431 U.S. 783, 792-795 (1977). Conspicu- ous by contrast is the “lack of judicially discoverable and manageable standards” (Baker v. Carr, 369 U.S. 186, 217 (1962)) by which courts can make these decisions. The court of appeals noted that the hazards of going to trial upon the indictment in this case include the possibility of juror confusion and the likelihood of a mistrial (App. A, infra, 20a & n.12). Neither of these outcomes serves the prosecutor's interest. If the evidence does not support con- viction of one or more defendants in a multiple defendant conspiracy case, appellate reversal will follow. See, e.g., United States v. Bertolotti, supra. A mistrial also leads to wasteful expenditure of scarce prosecutorial resources. There is no reason to believe that federal prosecutors are so insensitive to these hazards, and to the other incentives for selectivity in prosecution that confront them, that it is necessary to invent a wholly unprecedented supervisory power to prevent the filing of unnecessarily complex indictments. 2.a. Even if supervisory power were available in appro- priate cases to dismiss indictments determined to impose undue burdens upon judicial resources, there was no basis whatsoever in the record of this case for that extreme measure. Neither the court of appeals’ opinion nor the dis- trict court’s oral ruling identifies any satisfactory basis for dismissal of the indictment. The court of appeals noted (App. A, infra, 20a; footnote omitted) the following “prac- tical considerations attendant to a trial of this size and complexity”: 15 Significantly, 18 U.S.C. 3161(h\(8C) makes clear that trial delay attributable to calendar congestion is not excludable from Speedy Trial Act reckoning. 22 innumerable pretrial motions, the occupation of weeks of the cdurt’s busy calendar, the superhuman tasks fac- ing the jury, and the likelihood of mistrial. But the court of appeals did not explain why this case, more than any other conspiracy charge, entails these hazards. It plainly cannot be the law that those who commit complex offenses are immune from prosecution for the full scope of their criminal activity. Moreover, the indictment in this case is not in fact unusually complex, given the nature of the offenses found by the grand jury to have probably been committed. The court of appeals, however, gave no consid- eration to the nature of those offenses and the typically elaborate patterns of international drug trafficking in up- holding dismissal of the indictment. There are no special factors in this case that suggest an unusually complex or difficult motion practice. And while we do not minimize the burden of a major trial upon a busy. court’s calendar, it is the role of the courts to shoulder this burden.'® We are particularly puzzled by the court’s invoca- tion of the problem of juror confusion and the likelihood of mistrial. Both courts below appear to have lost sight entire- ly of the fact that respondent was to be the only defendant at his trial.17 Even if there had been multiple defendants, there would be no basis to question the district court’s abili- ty to instruct the jury carefully as to the need properly to determine the guilt of each individual defendant in a con- Spiracy case, an everyday occurrence in the federal courts. Accordingly, the court of appeals utterly failed to identify any consideration that sets this case apart from a host of cases that are regularly tried by the district courts. '§ There is no suggestion in the record that the district court was ac- tually unable to find time to try this case. We note, in any event, that Congress has made provision for the temporary reassignment of judi- cial personnel within the federal system whenever that is necessary to ensure that judicial business is accomplished. See 28 U.S.C. (& Supp. V) 291(b), 292(b) and (d), and 294. '7 See, e.g., App. A, infra, 18a: Of course, this problem—of the Government attempting to force as many defendants as possible to trial in the same proceeding on the claim of a single conspiracy * * * is one not faced by judges in this circuit alone, 23 Nor did the district court identify any special considera- tions that warranted its refusal to try this case when it granted “acquittals” to defendants Brown, Work and Snyder in 1976. Insofar as the court commented on this subject at all, it pointed to particular difficulties experi- enced in other cases that do not reflect any problem of in- herent unmanageability, especially on the facts of the pres- ent case. The court singled out the problem of repetitive cross-examination (see pages 8-9, supra), but that had rela- tively little bearing on the trial of Brown, Work and Snyder, and has no bearing on the present case. In any event, the federal courts possess authority to limit repeti- tive cross-examination.!® Contrary to the district court’s suggestion (see page 7, supra), the availability of such au- thority to manage the proceedings before the court under- cuts the claimed authority simply to dismiss cases present- ing management difficulties. See United States v. Hasting, supra, slip op. 6-7 & n.5; United States v. Morrison, 449 U.S. 361 (1981). b. The district court’s recitation of grounds for invocation of supervisory authority to dismiss the indictment in this case raises concerns that go beyond its failure to identify special circumstances that would warrant that extraordi- nary relief under the court of appeals’ analysis. The district court’s announced intention to commence general supervi- sion of the contents of indictments (App. C, infra, 40a) is utterly inconsistent with the constitutional independence of the prosecutor. And it is perfectly clear from the district 18 Rule 611(a), Fed. R. Evid., gives the district courts broad discre- tion to regulate “the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presenta- tion effective for the ascertainment of the truth, [and] (2) avoid need- less consumption of time * * *.” The courts of appeals have repeatedly held that it is within a trial judge’s discretion to bar unnecessary dupli- cative cross-examination of government witnesses at multi-defendant trials. See, ¢.g., United States v. Coven, 662 F.2d 162, 170 (2d Cir. 1981), cert. denied, 456 U.S. 916 (1982); United States v. Praetorius, 622 F.2d 1054, 1061 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980); United States v. Miller, 463 F.2d 600, 601 (1st Cir.), cert. denied, 409 U.S. 956 (1972); Amsler v. United States, 381 F.2d 37, 51 (9th Cir, 1967). See also 3 J. Wigmore, Wigmore on Evidence § 782, at 183 (Chadbourn rev. 1970). 24 court’s remarks (id. at 3la, 38a, 41a) that the court intend- ed to impose upon the prosecutor its own notion of good prosecutorial practice. Equally disturbing are the repeated statements by the district court that reflect its personal disapproval of the individual United States Attorney’s prosecutorial policies. These considerations, which appear to have influenced the district court’s ruling, have no place in the exercise of judicial authority. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E, LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General JOHN FITCHTER DE PUE Attorney MAY 1983 la APPENDIX A UNITED STATES COURT OF APPEALS NINTH CIRCUIT No. 80-1860 UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. STEPHEN A. GONSALVES, DEFENDANT-APPELLEE Argued and Submitted Aug. 3, 1981. Decided Nov. 9, 1982. Appeal from the United States District Court for the Dis- trict of Nevada. Before ELY and NORRIS, Circuit Judges, and PECK- HAM, * District Judge. PECKHA\M, District Judge: The Government appeals from the District Court’s order of December 17, 1980, granting the motion to dismiss the indictment on behalf of appellee-defendant Stephen An- thony Gonsalves. Appellee had been charged along with twelve other defendants and seventeen unindicted co- conspirators for violation 21 U.S.C. § 963, Conspiracy to Import a Controlled Substance, and 21 U.S.C. § 846, Con- spiracy to Possess with Intent to Distribute a Controlled Substance. Gonsalves’ alleged role was to act as a money courier in one of the numerous financial transactions that took place during the course of the charged conspiracy. Four years earlier, the District Court had’ ordered a judgment of acquittal in favor of three of appellee’s co- conspirators who had been brought to trial on the same in- dictment. Gonsalves had not been arrested as of that time. However, on August 28, 1980, he surrendered to the United States magistrate in Las Vegas, Nevada. On Sep- *Honorable Robert F. Peckham, Chief United States District Judge, Northern District of California, sitting by designation. 2a tember 26, 1980, he filed a motion to dismiss the indictment on the same grounds that had supported the previous judgment of acquittal in favor of three of his alleged co-conspirators. The District Court, relying on its inherent supervisory power to prevent undue interference with the effective ad- ministration of justice, granted the motion on the grounds that, inter alia, the indictment was an “unmanageable monstrosity.” Under the particular facts of this case, and for the reasons set forth below, we affirm the District Court’s order of dismissal pursuant to its proper excercise of supervisory power. The Government has alleged an elaborate on-going con- spiracy to import and distribute a controlled substance dur- ing the period of January 1, 1973, to June 18, 1974. The two-count indictment names a total of thirteen defendants, Gonsalves among them, as well as seventeen co-conspir- ators who were not named as defendants. According to the Government, these individuals were engaged in a conspir- acy to import and distribute hashish purchased from England, the Netherlands, and other countries in Europe and the Middle East. The Government alleges that the fol- lowing scenario took place.! In February of 1973, Ernest Franz Combs contacted James Earl Gater in South Lake Tahoe, California. Combs told Gater that, with the help of James Morris and others, he was going to smuggle hashish from Europe into the United States. In particular, Morris was to get some acous- tical sound speaker cabinets specially manufactured so that fiberglass sections filled with hashish could be fit into them. After the cabinets were manufactured in England, they were shipped to France where they were picked up by Robert David Work, among others, and then loaded with hashish. ' We emphasize that none of these charges have been established by evidence. Upon review of an order dismissing an indictment, however, the indictment must be tested by its sufficiency to charge an offense. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-175, 9 L.Ed.2d 136 (1962).’We must, therefore, accept all of the Govern- ment’s allegations as true of the purposes of this appeal. 3a Morris shipped the hashish-filled speaker cabinets from Paris, France, to New York City on March 4, 1973. From there they were shipped to Los Angeles. Gater was to meet Richard Kenneth Brown at the Orange County Airport in California and then proceed to a warehouse in San Pedro, California, where the cabinets were to be delivered and un- loaded. Brown had given Gater a carnet which he was to show to the customs officials at Trans World Airlines (TWA) Air Cargo at the Los Angeles International Airport in order to pick up the cabinets. On March 8, 1973, Gater picked up the hashish-filled sound speaker cabinets at the Los Angeles airport in a rented U-Haul truck and transported them to the ware- house in San Pedro where Gater, Brown, and Work un- loaded 724 pounds of hashish. After unloading the cabinets, Brown gave Gater a kilo of hashish as compensation for picking up the equipment. Furthermore, because Gater had been involved in the operation, Combs told him that, if he desired, he could invest between twenty and thirty thou- sand dollars on the next shipment and receive a share of the proceeds. In early March of 1973, Combs again contacted Gater and instructed him to go to Austria and rent a house that would be used to collect the hashish. Combs agreed to allow Gater to invest $20,000.00 in this venture. Combs told Gater that Robert Carl Fry was to receive $50,000.00 to assist Gater in Austria. Combs also explained that Gater was to fly to Graz, Austria, and meet with Salim Inard Hraoui. On March 12, 1973, Gater flew from South Lake Tahoe to the Orange County Airport where he was picked up by Brown. They went to Brown’s house where Gater was giv- en approximately $300,000.00 in cash to take with him to Graz. In Graz, Gater met with Karl Ferdinand Krug who assisted him in finding a house to rent. After renting the house, Fry arrived and Gater gave him the $300,000.00 which he was to use to purchase the hashish. Thereafter, the hashish was purchased and was brought to the house for packing in the sound speaker cabinets. During this peri- od, Combs persuaded Gary Lynn Lickert to rent a U-Haul truck and drive to San Pedro. Lickert loaded ten speaker da cabinets on the truck and delivered them to TWA air freight to be sent to London, England. The ten cabinets, along with other pieces of equipment, were shipped by Raymond Barry Mayo from London to Austria. Mayo then traveled to Austria where he and Hraoui picked up the equipment and delivered it to the house that Gater had rented. Gater, Fry, Mayo, and Hraoui then loaded the ten sound speaker cabinets with hashish and shipped them from Austria to Philadelphia, Pennsylvania. After this transaction, Fry had $120,000.00 left out of the $300,000.00 sent by Combs to Austria to purchase hashish. Fry gave the remaining money to Gater. The Government claims that appellee Gonsalves instructed Gater to give the money to Kent Giles Snyder. After the cabinets had been shipped, Gater went back to the United States where he met up with Snyder, Morris, and Kenneth Graham Plinston. Upon arrival in the United States, Gater went first to Brown’s house and then to Comb’s house. Gater was paid $25,000.00 for his share of this deal from Snyder. In the latter part of May 1973, Combs asked Harold Adrian Armstrong to take $140,000.00 in cash to London. Combs instructed Armstrong to purchase a special suitcase to carry the money. Gonsalves delivered the $140,000.00 in cash to Armstrong which was to be given to Plinston in London. After delivering the money, Armstrong returned to the United States. At the end of June 1973, Gater was again instructed to go to Austria to consummate another hashish deal. According- ly, Gater and Brenda Marie Sibson went to an apartment in Newport Beach where they were met by Brown and Combs. There, Combs gave $260,000.00 cash to Gater to take to Austria. On July 3, 1973, Klaus Warner met Gater and Sibson in Graz, Austria. Warner gave Gater the keys to a vehicle containing 140 kilograms of hashish, whereupon Gater paid Warner $50,000.00 cash. Gater, Sibson, and Mayo then loaded 420 kilograms of hashish in fiberglass inserts which 5a were placed inside twelve accoustical sound speaker cabinets. A few days later, Mayo shipped twenty-three pieces of sound equipment, including the twelve speaker cabinets, to Chicago, Illinois, and retrieved the shipment there on July 18. Mayo then shipped the speakers to Las Vegas. On August 21, 1973, Gater, Sibson, Mayo, and Richard Jonathan Vickers loaded 500 pounds of hashish into sound speaker cabinets in Italy. Thereafter, Vickers and Mayo shipped thirty-four pieces of sound equipment, including the speaker cabinets, to San Francisco. Morris received the shipment at the San Francisco International Airport. On August 31, Combs had Lickert take $297,000.00 in cash to Amsterdam, Holland, and deliver the money to Gater and Dennis Howard Marks. In early September 1973, Gater, Marks, and others packed 820 pounds of hashish into sixteen sound speaker cabinets. That same day, Allen Richard White shipped twenty-nine pieces of sound equipment, including the six- teen sound speaker cabinets, from Holland to Detroit, Michigan. Instead of being sent to Detroit, however, the cabinets were sent through New York to Las Vegas. It was at this point that the Government began its investigation. On September 13, 1973, a United States Customs dog at John F. Kennedy Airport in New York reacted to an odor being emitted from a large wooden chassis of one of the sound speaker cabinets. United States Customs Inspectors opened the speaker cabinet and found sixty pounds of hash- ish in the chassis of the speaker. An investigation deter- mined that the speaker cabinet they discovered was one of the twenty-nine pieces of freight destined for Las Vegas. Investigation further disclosed that the remaining twenty-eight pieces were on a TWA flight which was to arrive in Las Vegas on September 13, 1973, at 12:37 p.m. The shipment of the twenty-eight pieces had originated in Amsterdam and arrived at JFK International in bond ship- ment. The shipment was consigned to D & N Delivery Cor- poration, McCarran International Airport, Las Vegas, for delivery to Trans Atlantic Sound, Las Vegas. Special Agent Fowler of the Drug Enforcement Administration 6a (DEA) in New York notified the Special Agent in charge at Las Vegas of these events. Special Agent Harlan Bowe arrived at TWA freight at McCarran International on the afternoon of September 13, 1973. Bowe, other DEA agents, and a United States Customs Agent were directed to a TWA agent who in turn directed the Customs agents toa Pan Am air freight transportation crate. The crate con- tained the twenty-eight pieces of freight. The freight con- sisted of fifteen large wooden chassis containing speakers, six wood frame chasis with a fiberglass coating, two music- al instrument cases, and five metal trunks. A U.S. Customs Supervisory Inspector advised the agents that the ship- ment was still in U.S. Customs bond. The freight was re- moved from the Pan Am crate and placed in a TWA and United Airlines storage area. Later that day, DEA agents opened a side panel to one of the large speaker chassis. They found a fiberglass container secreted in the compartment of the speaker. Inside the con- tainer, they found individual packages containing hashish. The speakers were repacked and the agents waited for them to be picked up. The next day, Lickert went to D & N Delivery Corporation and picked up the shipment. The agents trailed Lickert briefly and then stopped his car and arrested him. Lickert was indicted on September 27, 1973, by a federal grand jury in Las Vegas. He was charged with violation of 21 U.S.C. § 841(a)(1).2 On October 4, 1973, a superseding indictment was returned charging Lickert with the same offense. After a jury trial, he was found guilty. As a result of the information supplied by Lickert and others, along with further investigation by the DEA, a sec- ond federal grand jury in Las Vegas returned a three-count indictment on December 5, 1975, naming Gonsalves and fif- teen other co-defendants. Count I of the indictment alleged "21 U.S.C. § BA. (a) Except as authorized by this subchapter, it shall be unlaw- ful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; Ta ninety-three separate overt acts in furtherance of an elabo- rate drug conspiracy. Counts li and III relied upon an al- ternative theory of aiding and abetting the drug importa- tion and possession. The District Court was able to acquire jurisdiction only over defendants Richard Kenneth Brown, Robert David Work, and Kent Giles Snyder.® On February 11, 1976, the District Court granted the Government’s motion to dismiss Counts IJ and III of the indictment pursuant to rule 48(a), Fed.R.Crim.P.4 Thereafter, the three defendants moved to dismiss the remaining count on the ground that it imper- missibly charged two separate conspiracies in violation of rule 8(a), Fed.R.Crim.P.5 The District Court agreed and dismissed the indictment on that basis. Moreover, the court set forth specific concerns it held regarding the allegations in Count I and their complexities: Count I of the indictment now dismissed names 16 defendants. Ten of the defendants are citizens of other countries and not amenable to the process of this Court and, according to the Government, there is no way in which they can be compelled to appear before this Court pursuant to treaty between the United States and the countries of which they are citizens. Of the 6 defendants that are citizens of the United States, 3'The main conspirators, Ernest Franz Combs, James Morris, and Kenneth Graham Plinston, were not before the court. Morris and Plinston are residents of foreign countries, While Combs apparently re- mains a fugitive. 4 Fed.R.Crim.P., Rule 48. Dismissal (a) By Attorney for Government. The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant. > Fed.R.Crim.P., Rule & Joinder of Offenses and of Defendants (a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misde- meanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a com- mon scheme or plan. Sa only 3 are before this Court, the other 3 are fugitives and the Government cannot assure the Court as to whether or not pending bench warrants will ever be served upon them. The indictment names some 14 co- conspirators who are not defendants and alleges 93 separate overt acts alleged to have taken place in the United States and many foreign countries. Rule 7(c)(1) of the Federal Rules of Criminal Proce- dure reads: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The Court hopes that in representing the matter to the Grand Jury United States Attorney Lawrence Semenza will make some effort at least to comply with the requirements of Rule 7(c)(1) and, in addition, to give the Court a case that is manageable for trial. Count I of the indictment now dismissed is, to say the least, a monstrosity. Subsequent to the dismissal of the original indictment, the grand jury returned the present two-count indictment, Cr. LV 76-89, on March 25, 1976, charging appellee Gon- salves, among others, with violations of 21 U.S.C. § 846, Conspiracy to Possess with Intent to Distribute a Con- trolled Substance, and 21 U.S.C. § 968, Conspiracy to Import a Controlled Substance. As this was a superseding indictment, the District Court allowed all motions and re- sponsive pleadings filed in Cr. LV 75-198 to be filed in Cr. LV 76-39. The jury was empaneled on September 20, 1976, and the Government and attorneys for defendants Brown, Work, and Snyder each made their opening statements. The fol- lowing day, the court granted a Rule 29(a) motion for judg- ment of acquittal as to each of the three defendants. The order of judgment of acquittal stated simply that it was based upon the Government’s trial memorandum and open- ing statement. The transcript, however, informs us that the trial judge was concerned with at least three related problems raised by the indictment. (1) The indictment impermissibly alleged separate multiple conspiracies as a single conspiracy. (2) Viewed as multiple conspiracies, the Ya District Court for the district of Nevada lacked jurisdiction to try the offenses as alleged with respect to the three de- fendants because of lack of contact with Nevada. (3) The in- dictment encompassed an “unmanageable monstrosity” of proof and events so as to interfere unduly with the effective administration of justice and to require dismissal under the “supervisory powers” of the District Court. The transcript makes clear, however, that the court rested its decision pri- marily on the unmanageable nature of the indictment and not on the issue of jurisdiction.® The Government appealed the District Court’s granting of the Rule 29(a) motion on October 1, 1976. Another panel of this court dismissed that appeal on May 4, 1977, based on the fact that jeopardy had attached. On July 11, 1977, the Government filed a petition for an out of time rehearing and a motion to recall the mandate which had previously is- sued. These requests were denied by the panel citing the substantial delay and the failure of the Government to pres- ent adequate justification for the delay. On August 28, 1980, appellee Gonsalves surrendered to the United States Magistrate in Las Vegas and was re- leased on bond. The matter was set for trial on the same two-count indictment which was the subject of the previous judgment of acquittal for defendants Brown, Work, and Snyder. Subsequently, appellee moved to dismiss the in- dictment for the reasons articulated by the District Court as its basis for granting the previous judgment of acquittal, i.e., the allegation of multiple conspiracies on the face of the indictment, lack of jurisdiction, and unmanageability. Appeallee also filed without objection a supplemental mem- orandum of points and authorities which set forth for re- view by the District Court the signed statements of the three predominant Government witnesses. These state- ments, which were voluminous, purportedly supported ap- pellee’s previously stated three grounds for dismissal. 6 The court stated that the question was “quite apart from jurisdic- tion.” Assuming all of the overt acts occurred in Nevada, the court reasoned, the court’s inherent authority allowed it to step in “to the extent it is necessary to bring order out of chaos.” See Excerpt of Ree- ord at 63-64. 10a On December 17, 1980, the District Court exercising What it labeled its “discretionary supervisory powers,” dis- missed the indictment. The following day the Government filed its notice of appeal. Our task is to determine whether the dismissal of the indictment was a proper exercise of su- pervisory power by the District Court. Il. SUPERVISORY POWER Supervisory power first appeared as an independent ba- sis of decision in the federal judiciary in McNabb v. United States, 318 U.S. 332, 340-47, 63 S.Ct. 608, 612-616, 87 L.Ed. 819 (1943). In McNabb, the Supreme Court, relying on the authority of its supervisory power over the adminis- tration of the criminal justice system, excluded relevant ev- idence from a federal criminal prosecution because federal police and investigators had obtained it illegally. The Court described its supervisory authority over federal courts as a basis of decision resting neither on constitutional nor on statutory grounds. Since then “supervisory power” has been used to cover a broad range of judicial actions and has been exercised by all three levels of the federal judiciary for the purposes of (1) formulating new rules of cae ss of general application, (2) enforcing judicial compliance with already existing standards of fairness, and (3) avoiding a miscarriage of justice in particular cases where already ex- isting procedures have proved inadequate. See Note, The Judge-Made Supervisory Power of the Federal Courts, 53 Geo.L.J. 1050 (1965). From the outset, notions of fair play which are more exacting than the minimum constitutional requirements of due process have been the primary moving force behind the exercise of judicial supervisory power. The doctrine is now commonly invoked to refer generally to the court’s inherent power to preserve the integrity of the judi- cial process. The “tainted evidence” doctrine remains perhaps the most well-known rule of law which traces its origin to the Supreme Court’s supervisory power. McNabb, supra, 318 U.S. at 341, 63 S.Ct. at 618. See United States v. Payner, 447 U.S. 727, 744 100 S.Ct. 2439, 2450, 65 L.Ed.2d 468 ». (G (1980). Courts also use their supervisory power to exclude lla unreliable evidence from trial. Mesarosh vy. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); Communist Party of the United States v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663, 667, 100 L.Ed. 1003 (1956). In addition, the supervisory power has been used to impose upon prosecutors the duty in certain cases to make available to a defendant information from their files. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1L.Ed.2d 1103 (1957). The inherent supervisory authority of federal courts has been used to do justice in particular fact situations that do not lend themselves to rules of general application. For ex- ample, in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the defendant refused to testify before a grand jury, invoking the fifth amendment privilege against self-incrimination. However, he later tes- tified on the same subject-matter at his trial. Cross- examination by the prosecutor revealed the plaintiffs earlier refusal, but the Supreme Court held the permitting of such cross-examination to be reversible error. The ma- jority held that “under the circumstances of this case” the possibility of prejudice was great enough to warrant the Court’s invocation of its supervisory power. See also Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (exercise of supervisory power to pro- tect against prejudice turns on facts of each case); Note, The Supervisory Power of the Federal Courts, 76 Harv.L.Rev. 1656, 1659 (1963). In recent years, the Ninth Circuit has affirmed its will- ingness to utilize its supervisory powers to review the dis- missal of an indictment by a trial court when necessary “to protect the integrity of the judicial process.” United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977), quoting United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969). While such dismissals have been based occasionally on con- stitutional grounds, United States v. Basurto, 497 F.2d 781 (9th Cir. 1974), more often we have invoked our inherent supervisory power, United States v. Owen, 580 F.2d 365 (9th Cir. 1978), United States v. Samango, 607 F.2d 877 12a (9th Cir. 1979). Indeed, over twenty years ago this court stated that a trial court may have legal discretion to dis- miss an indictment “to do justice,” even in the absence of express statutory authority. United States v. Apex Distri- buting Co., 270 F.2d 747, 756 (9th Cir. 1959).7 See also United States v. De Diego, bil FF .2e 81S. B24 n. 8 Ee OM Cir. 1975). In the realization that the dismissal of an indict- ment by a trial court may encroach on the prosecutor’s pre- rogatives, however, this court has further held that the trial court may not exercise such “supervisory power” un- less there is “a clear basis in fact and law for doing so.” Chanen, supra, 549 F.2d at 1313. Reliance upon this court’s supervisory power with re- spect to dismissals can be seen clearly in cases involving prosecutorial misconduct in securing indictments. In United States v. Basurto, supra, a panel of this court held that the defendants’ right to due process was violated where they had to stand trial on an indictment which the Government knew was based in part on perjured testimo- ny. It was stated that permitting trial on such an indict- ment failed to comport with the required “fastidious regard for the honor of the administration of justice.” Jd. at 787, quoting Communist Party v. Subversive Activities Control Bd., supra, 351 U.S. at 124, 76 S.Ct. at 667 (1956). In a special concurrence, Judge Hufstedler accepted the result reached by the majority, but declined to rely upon a consti- tutional theory as the basis for the decision. Instead, she relied upon “our power to supervise the administration of criminal justice in the federal courts.” Basurto, supra, 497 F.2d at 793. “An important function of our supervisory 7 United States vy. Aper Distributing ('o., supra, involved a Govern- ment refusal to comply with subpoenas duces tecum and court orders requiring it to produce certain materials before a criminal trial. The District Court responded by ordering a dismissal with prejudice. On review, the appellate panel agreed that the United States had essen- tially caused an “unnecessary delay” in bringing appellees to trial. Ac- cordingly, the circuit court held that the trial court could have proper- ly invoked its power to dismiss under rule 48(b), Federal Rules of Criminal Proceduve. Alternatively, the trial court “may simply have purported to act in the exercise of its inherent power to do justice.” 270 F.2d at 755-56. l3a power is to guarantee that federal prosecutors act with due regard for the integrity of the administration of justice.” Id. Subsequent to Judge Hufstedler’s concurrence, this court has supported the reasoning set forth therein in a number of cases involving prosecutorial misconduct. In United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978), for ex- ample, we explicitly held that, pursuant to its inherent su- pervisory power, a federal court Is empowered to dismiss an indictment on the basis of governmental misconduct. “As such, dismissal is used as a prophylactic tool for dis- couraging future deliberate governmental impropriety of a similar nature.” Jd., citing Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960) and United States v. Houghton, 554 F.2d 1219, 1224 (Ist Cir. 1977), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). In this case, however, prosecutorial misconduct cannot form the basis for upholding the District Court’s dismissal. Although the motives of the United States Attorney have been questioned by the trial judge in this case,® no allega- tion of prosecutorial misconduct as such has been pre- sented.? Rather, the District Court focused on the sheer 8 See, e.g., Excerpt of Record at 54-59, 57, 6I, 7. ’ Moreover, we recognize that, although dismissal is a permissible exercise of a court’s supervisory power in cases involving prosecutorial misconduct, this power is more often discussed than invoked. See Samango, 607 F.2d at 881; Owen, 580 F.2d at 367. Of the cases cited in Chanen in which prosecutorial conduct was allegedly inimical to the in- tegrity of the judicial process, dismissal was warranted only in those in which the prosecutorial conduct was patently egregious. Chanen, 549 F.2d at 1309-12. See, e.g., United States v. Estepa, 471 F.2d 1132 (2d Cir.1972); Laughlin v. United States, 385 F.2d 287 (D.C.Cir. 1967), cert. denied, 390 U.S. 1008, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968); United States v. Wells, 163 F. 313 (D.Idaho 1908); United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.1975), affd, 550 F.2d 1224 (9th Cir.), cert. denied, 484 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977); United States v. Gallo, 394 F.Supp. 310 (D.Conn. 1975). See also United States v. Rasheed, 663 F.2d 848, 853 (9th Cir.1981), cert. denied, U.S. 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982). l4a unmanageable complexity of the indictment in invoking its supervisory powers. As we discussed above, however, the inherent superviso- ry power of the federal courts may be invoked to do justice in particular fact situations. See United States v. Samango, supra, 607 F.2d at 884: Note, The Supervisory Power of the Federal Courts, supra. But the decision of whether to exercise the court’s power in a particular case obviously must be made on a principled basis. For example, in Chanen it was noted that, even absent prosecutorial misconduct, a district court has a discretionary power to dismiss an indictment under limited circumstances where the court determines that dismissal is necessary to ensure fundamental fairness. Although in this case we review an exercise of supervisory power based on institutional con- cerns, Chanen’s analysis is instructive. Before determining that dismissal was not warranted in that case, the court an- alyzed the dynamics of the constitutional scheme of separa- tion of powers and the role of judicial supervisory power. The opinion explained that the court and the prosecutor play limited, but supportive and complimentary roles vis-a- vis indictments. After delineating the respective roles of the court and the prosecutor,!° the court then described the '® As a practical matter, the grand Jury generally relies on the pros- ecutor to determine what witnesses to call. Also. in practice the prose- cutor conducts the examination of the witnesses and otherwise deter- mines what evidence to present before the grand jury. [citations] In addition, it is the prosecutor who normally prepares the indictment, [citation] although of course the grand Jury must review the indict- ment and adopt it as its own. [citation] Some of these funetions—such as initiating a criminal case by presenting evidence before the grand Jury—qualifies as “an executive function within the exclusive preroga- tive of the Attorney General.” [citations] The court, on the other hand, exercises its power to summon wit- nesses to attend and to give testimony before the grand jury. Also, “it is the court which must compel a witness to testify if, after appearing, he refuses to do so.” [citation] In addition, the court exercises a form of authority over the grand jury when, for example, it dismisses an in- dictment for failure to charge all elements of the offense or to warn the defendant fairly of the charge against which he must defend. [citation] Likewise, the court exercises authority over the prosecutor when it dismisses an indictment because of prosecutorial misconduct. United States v. Chanen, supra, 549 F.2d at 1312-13. 15a standard upon which the courts should rely in exercising their inherent supervisory power: (Gliven the constitutionally-based independence of each of the three actors—court, prosecutor and grand jury—we believe a court may not exercise its “super- visory power” in a way which encroaches on the pre- rogatives of the other two unless there is a clear basis in fact and law for doing so. If the district courts were not required to meet such a standard, their “supervi- sory power” could readily prove subversive of the doc- trine of separation of powers. Chanen, supra, 549 F.2d 1313 (citation omitted). We feel similarly compelled to perform a detailed analy- sis of the source and scope of a trial court’s supervisory power before making the determination whether the power was properly invoked in the instant case. As the Chanen court suggested, the source of the super- visory power doctrine in its present form is found in the complementary principles of separation of powers and checks and balances. The principle of separation requires that the judiciary, executive, and legislature be independ- ent. The principle of balance requires that the three branches pursue inconsistent and conflicting goals. As Pro- fessor Nagel has explained: Separation of powers relies on the implementation of an “intellectual distinction” among the three major functions of government to ... [prevent tyrannical use of power]; accordingly the relevant case law is replete with assertions that the branches of government must be kept distinct and each must not interfere with the functioning of the others. In contrast, the doctrine of checks and balances buttresses the conceptual distinc- tions among the functions of government by providing for direct intervention by each branch into the func- tioning of the others; power can be checked only if it is shared ... For historical, pragmatic and conceptual reasons, American scholars have tended to favor a theory of constitutional balance over the theory of sep- aration of powers. Nagel, Separation of Powers and the Scope of Federal Eq- uitable Remedies, 30 Svan.L. Rev. 661, 682 (1978). l6a The authority for a court’s exercise of its supervisory power, therefore, can be traced to the structural balance articulated in Article III of the United States Constitution. See Note, A Separation of Powers Approach to the S uper- visory Power of the Federal Courts, 34 Stan.L.Rev. 427, 443 (1982). It is clear that Article III authorizes the judicial branch to review the operations of the executive and legis- lative branches. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); Youngstown Sheet & Tube Co. vy. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Indeed, inter-branch review is a necessary function within the principle of checks and balances. The principle of “checks and balances” embodies the notion that power can be checked only if it is shared; each branch has the right, if not the affirmative duty, to curb the excesses of the others. Therefore, the su- pervisory power emanates from the exercise of concur- rent powers by the legislature, the executive, and the courts. 34 Stan.L. Rev. at 443-44. The judiciary therefore should use its supervisory power to maintain its own institutional integrity, including the ability to administer an effective criminal justice system, as well as to maintain the institutional power of all three branches of government. The courts must not abdicate their responsibility to check the governmental excesses of the executive and the legislature;!! the invocation of super- visory power may occasionally provide the necessary re- straint of these excesses. '' As Professor Abraham Goldstein has perceptively noted, courts often mistakenly interpret the separation of powers to preclude any judicial role in prosecutorial discretion. |-Fudicial passivity]... is rooted in a misunderstanding of the re- lation between the concept of discretion itself and the separation of powers. The absence of a clear-cut legal rule defined by the legislature is treated by the court lows the prosecutor not only with discretion to fill the interstices in the rule but with an exclusively “executive” authority to do so. A. Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea 57 (1981). 17a This analysis also provides us with a means of determin- ing the proper scope of the court’s exercise of supervisory power in this case. When a court determines that institu- tional interests relating to judicial economy and the man- ageability of cases are threatened by pursuit of a particular indictment, it is appropriate to balance those interests with those of the executive in preservation of prosecutorial dis- cretion, and to weigh the relative intrusiveness of action by each branch on the other’s inherent functions. Specifically, we must determine whether the District Court’s exercise of supervisory authority in this case unduly intruded into the domain of the executive branch, or, alternatively, whether the proposed actions of the prosecutor would have unduly disrupted the District Court’s administration of justice. Following Chanen, we inquire whether the balance struck by the District Court between the conflicting interests of the two branches has a clear basis on the facts of this case and under the relevant legal precedent. We proceed with this endeavor in light of the District Court’s order of dismissal. The trial court’s order of dismissal stated in part: For purposes of deciding the pending motion, this Court need not decide if collateral estoppel bars the Government from bringing this indictment against Gonsalves. After all, different defendants were in- volved in the Brown [359 U.S. 41, 79 S.Ct. 589, 3 L.Ed.2d 609 (1959)] decision. Thus, this Court did not necessarily determine that it would refuse to exercise jurisdiction over any of the other defendants. This Court is well aware that a conspiracy prosecu- tion may be brought in any district in which any act in furtherance of the conspiracy was committed by any of the conspirators, even though some of them were nev- er physically present there. Title 18, U.s.0.., § 3237/(a); Wright, Federal Practice and Procedure: Criminal § 303, pp. 589-90. And, the actions in Las Vegas of Ernest Franz Combs, Jr., an indicted coconspirator, and Gary Lynn Lickert, an unindicted coconspirator, could be used to establish the necessary overt act within this district. However, the problem in Brown was that the indictment was such a complex lSa monstrosity that this Court decided it should have been broken down into several smaller, more manage- able indictments. There simply was no good reason for those defendants to be indicted in this district given their alleged roles in the Government’s conspiracy theory. This Court is confronted with the same prob- lem with the indictment against Gonsalves. Therefore, for the same reasons articulated in this Court’s September 21, 1976, order and judgment of ac- quittal as to defendants Brown, Work and Snyder, this Court hereby exercises its discretionary supervisory powers and dismisses the indictment as against de- fendant Gonsalves. Thus, the main ground given by the District Court judge for dismissing the indictment in this case was that it was “such a complex monstrosity” as to be unmanageable. The transcript of the hearing in which the order of judgment of acquittal was entered on behalf of Brown, Work, and Snyder reflects vividly the fact that the trial judge had had previous experience with massive conspiracy trials which broke down because of their size. Of course, this prob- lem—of the Government attempting to force as many de- fendants as possible to trial in the same proceeding on the claim of a single conspiracy when the criminal acts could be more reasonably regarded as two or more conspiracies—is one which is not faced by judges in this circuit alone. In the Second Circuit, for example, one panel found it necessary to issue the following warning t. ‘he United States Attor- ney’s Office: In view of the frequency with which the single con- spiracy vs. multiple conspiracies claim is being raised on appeals before this court, see United States vy. Rizzo, 491 F.2d 12345 (2 Cir.1974); United States v. De Marco, 488 F.2d 828 (2 Cir. 1973); United States v. Mapp, 476 F.2d 67 (2 Cir.1973), we take this occasion to caution the government with respect to future pros- ecutions that it may be unnecessarily exposing itself to reversal by continuing the indictment format reflected in this case. While it is obviously impractical and inef- ficient for the government to try conspiracy cases one defendant at a time, it has become all too common for the government to bring indictments against a dozen 19a or more defendants and endeavor to force as many of them as possible to trial in the same proceeding on the claim of a single conspiracy when the criminal acts could be more reasonably regarded as two or more conspiracies, perhaps with a link at the top. Little time was saved by the government’s having prose- cuted the offenses here involved in one rather than two conspiracy trials. On the contrary, many serious problems were created at the trial level, including the inevitable debate about the single conspiracy charge, which can prove seriously detrimental to the govern- ment itself. We have already alluded to our problems at the appellate level, where we have had to comb through a voluminous record to give adequate consid- eration to the claims of eleven separate appellants. United States v. Sperling, 506 F.2d 1323, 1340-41 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 4& L.Ed.2d 439 (1975) (footnotes omitted). When the Govern- ment failed to heed the admonition, the court did in fact rely on Sperling in reversing the convictions of seven de- fendants convicted of conspiracy to violate the federal nar- cotics laws. United States v. Bertolotti, 529 F.2d 149, 151 (2d Cir.1975). The District Court in this case had an ample factual and legal basis upon which to conclude that the indictment pur- sued by the prosecutor constituted a serious intrusion into the judiciary’s interest in the fair administration of the criminal justice system. See Payner, supra, 447 U.S. at 735 n. 7, 100 S.Ct. at 2446 n. 7; McNabb, supra, 318 U.S. at 340, 63 S.Ct. at 612. Faced with the same complex in- dictment, and with the benefit of lengthy trial briefs, the opening statements of counsel, and the volumes of Govern- ment witness statements, the trial judge entertained the same serious concerns about the sheer impossibility of a manageable, fair trial that he expressed earlier in connec- tion with Brown, Work, and Snyder. Our own review of the record, and indeed our mere recitation of the elaborate facts of the conspiracy outlined in the indictment, see Part | supra, show that the facts here justified the conclusion that to allow prosecution on this indictment would ‘gravely impair the basie function of” the District Court. 20a The court was not required to ignore the practical consid- erations attendant to a trial of this size and complexity, e.g., the innumerable pretrial motions, the occupation of weeks of the court’s busy calendar, the superhuman tasks facing the jury,!? and the likelihood of a mistrial. On the facts of this case the judge had a solid basis upon which to find the prospect of these horrors real and the resulting dis- ruption of the judicial process great. In contrast, the degree of encroachment upon the prerog- atives of the prosecutor that a dismissal entails in this case is minimal. Although the court’s order is not entirely ex- plicit, it is clear that the indictment was dismissed without prejudice. The order suggested that the indictment be bro- ken down into smaller, more manageable indictments, thus leaving the prosecutor free to reindict Gonsalves, and the other alleged conspirators, in a manner less intrusive upon the administration of a fair criminal justice system in the courts. !3 The Government argues that a court never has the right to dismiss an indictment on the grounds of unmanage- ability, even if the dismissal is without prejudice. In sup- port of this claim, it cites United States v. Olson, 504 F.2d 1222 (9th Cir.1974).!4 The trial judge in Olson had ob- '2 As reflected in the transcript, one of the court’s major concerns was the “dragnet effect” of complex conspiracy cases and the ability of a jury to digest and comprehend the evidence relevant to the defend- ant. See Excerpt of Record at 62-63. 'S The District Court recognized that when broken down into small- er conspiracies, indictment against some of the defendants may not re- sult in proper venue in the Nevada District Court. See Excerpt of Ree- ord at 383-84 (Order dismissing the indictment against Gonsalves). '* The Government cites other cases which it claims support its ar- gument that the District Court’s exercise of supervisory power in this case was improper: United States v. Wilson, 614 F.2d 1224 (9th Cir.1980), United States v. Welch, 572 F.2d 1359 (9th Cir.), cert. denied, 439 U.S. 842, 99 S. Ct. 183, 58 L.Ed.2d 140 (1978); United States v. Hall, 559 F.2d 1160 (9th Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1523, 55 L.Ed.2d 539 (1978). Olson, however, while not controlling, is clearly the most relevant to the instant case. It is the only case cited by the Government that addresses the issue of the United States Attorney presenting unmanageable and overly- burdensome indictments to the courts. 21a served that the United States Attorney in his district con- sistently presented to the grand jury overly lengthy indict- ments which served to burden the court with extended jury ~ trials and compiex jury instructions. The judge’s solution was to attempt to force the prosecutor to pare down the in- dictment before trial to conform to the judge’s desires. Hall involved a defendant who had already served a one-year term for smuggling which had been granted on the condition that he “con- sent” to the entry of a civil decree of forfeiture of the merchandise. De- fendant appealed and secured a dismissal of the indictment after which he was reindicted for the same offense. The District Court dismissed the indictment on the ground that it would be “unconscionable to pro- ceed further” and retry the defendant. The appellate panel held, inter alia. that “unconscionability” was not a proper basis for the District Court’s exercise of its inherent supervisory power since there was Ninth Circuit authority to the effect that “merciful inclinations” were not a sufficient basis for substituting judicial discretion for prosecuto- rial discretion in dismissing an indictment. See United States v. Real, 446 F.2d 40 (9th Cir.1971). Moreover, the court noted that the Su- preme Court had approved of reindictment and retrial under circum- stances analogous to the case before it in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L. Ed.2d 656 (1969). The case at bar, on the other hand, does not involve any issue of “unconscionability” or “merciful inclinations.” Moreover, unlike the situation in Hall, there is no controlling authority on the issue of “unmanageability.” Finally, in Hall and Real the trial court sought to prevent the indictment of the defendant; the trial court in the instant case simply refused to allow the prosecution of Gonsalves pursuant to this indictment. In Welch, the defendant was convicted in federal district court of unlawfully transporting a firearm in interstate commerce and posses- sion of a sawed-off shotgun. He appealed on the ground that it was against Justice Department internal policy to try him in federal court for the same act on which he had already been indicted (later dis- missed) in state court. The appellate court affirmed the conviction, relying on a prior Ninth Circuit case which had held that a federal court has no authority to determine whether a federal prosecution vio- lates an in-house policy of the Attorney General. Wilson also involved a defendant who challenged her conviction on the ground that the United States Attorney's Office contravened its own guidelines, in this case by serving a forthwith subpvena on her only two hours before she was to appear before a grand jury. The court of appeals, relying in part on Welch, held that the guidelines in the United States Attorney’s Manual do not have the force of law. More- over, on a practical level the court held that the use of the forthwith subpoena under the facts before it was not an abuse of discretion. Welch and Wilson obviously provide no authority for the resolution of the issues presented in this case. 22a When the Government refused to elect one out of the four counts on which to proceed to trial, the District Court dis- missed the entire indictment with prejudice. Olson is distinguishable in that the District Court’s ra- tionale for its order of dismissal was solely that it was “highly improbable” that the court would impose consecu- tive sentences and that a conviction on all four counts was therefore unnecessary. The Government refused to elect on the grounds that (1) there was no showing that the joinder of the four counts and their simultaneous trial would preju- dice either defendant or the Government, and (2) the elec- tion of the conspiracy count would not shorten the trial be- cause the principal evidence to be produced—tape recorded conversations of the defendant and an informant—would also support the three remaining substantive counts. The prosecution claimed it would be impossible to play the tape recordings without the jury hearing information which would support all four counts. Olson therefore does not support the proposition that a trial judge may never dismiss an indictment on the basis of unmanageability. Rather, Olson stands for the proposition that a dismissal with prejudice is not an appropriate exer- cise of a court’s supervisory power when a prosecutor fails to heed the court’s “suggestion” that all but one of a num- ber of counts of an indisputably valid indictment be dropped. No practical or legal grounds supported the sum- mary dismissal in that case; indeed, such drastic action by the District Court on the basis of such facile reasoning in- truded unduly on the historic role of the prosecutor. Olson, therefore, and other cases on which the Government relies, are distinguishable on the basis that a complete termination of the criminal prosecution, i.e., a dismissal with prejudice, entails an undue intrusion into prosecutorial prerogatives. See, e.g., United States v. Hall, 559 F.2d 1160, 1165 (9th Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1523, 55 L.Ed.2d 539 (1978) (district court judge has no power to dismiss indictment on ground “it would be unconscionable to proceed further”); United States v. Real, 446 F.2d 40 (9th Cir.1971) (district court judge improperly dismissed in- dictment on ground of “merciful inclinations” toward de- 23a fendant).!5 Such dismissals may easily constitute an exam- ple of the improper substitution of judicial discretion for prosecutorial discretion. It remains the prerogative and re- sponsibility of the executive to determine whether to prose- cute at all. In contrast, the district judge in this case left the Government free to reindict the defendant, either in the same district pursuant to a more manageable indict- ment. or in another district, should a new indictment reveal a lack of jurisdiction over this particular defendant. We conclude, therefore, that the intrusiveness of this cumbersome indictment on the judicial machinery is so great, while that on prosecutorial discretion so slight, that the district court did not abuse its discretion in using its in- herent supervisory powers to dismiss the indictment. AFFIRMED. 24a APPENDIX B UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Crim. LV 76-39 RDF Received and Filed: Dec. 17, 1980 UNITED STATES OF AMERICA, PLAINTIFF (om STEPHEN ANTHONY GONSALVES, ET AL. DEFENDANTS. ORDER GRANTING MOTION TO DISMISS INDICTMENT ON BEHALF OF DEFENDANT GONSALVES The defendant Stephen Anthony Gonsalves has been charged by a two-count indictment. Count I charges a con- spiracy to import a controlled substance, and Count I] charges a conspiracy to possess with intent to distribute a controlled substance. Both counts allege that on or about May 25, 1973, the defendant delivered to Harold Adrian Armstrong in Long Beach, California, approximately $140,000 in cash. The cash ostensibly was used to purchase controlled substances as part of an international conspiracy to smuggle controlled substances. Defendant has moved this Court for an order dismissing the indictment for three separate, but related, grounds (1) each count of the indictment impermissibly charges sepa- rate multiple and distinct conspiracies as a single conspir- acy, (2) this Court lacks jurisdiction to try the offenses as alleged against Gonsalves, and (3) the indictment unduly in- terferes with the effective administration of justice so as to require dismissal under this Court’s inherent supervisory powers. He claims that collateral estoppel requires dismiss- al of the indictment. The indictment against Gonsalves is the very same in- dictment that was at issue in this Court’s previous decision in United States v. Brown, et al., Cr. LV 76-39 RDF (Sep- 25a tember 21, 1976). In that previous decision, this Court en- tered an order and judgment of acquittal pursuant to Rule 29(a), FRCrP, as to Brown, Work and Snyder, the only three defendants who were before the Court at that time. The decision not to exercise jurisdiction was based upon the Government’s trial memorandum and opening statement in light of the monstrous complexity of the case. The same three grounds of dismissal relied upon for that decision are now asserted by Gonsalves for dismissal of the indictment as against him. The Government’s opposition to his motion merely argues that the indictment does properly charge a general conspiracy in each count. The Government has not addressed the issue of whether or not this Court has the in- herent supervisory power to decline jurisdiction. The doctrine of collateral estoppel is applicable to crimi- nal cases. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948). Two criteria must be met before criminal collateral estoppel may be applied. First, the party estopped from relitigating an issue must have been a party to the initial litigation. United States v. Smith, 446 F.2d 200 (4th Cir. 1971); Serio v. United States, 203 F.2d 576 (5th Cir. 1953). Second, a defendant claiming an estoppel must show that the issue he seeks to exclude from the subsequent trial was “necessarily deter- mined” by the former verdict of acquittal. United States v. Smith, supra; United States v. Friedland, 391 F.2d 378 (2nd Cir. 1968); Adams v. United States, 287 F.2d 701 (Sth Cir. 1961). Since collateral estoppel applies only to matters actually litigated, the moving party must introduce a suffi- cient record of the prior proceeding to enable the trial court to pinpoint the exact issues previously litigated. United States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979). For purposes of deciding the pending motion, this Court need not decide if collateral estoppel bars the Government from bringing this indictment against Gonsalves. After all, different defendants were involved in the Brown decision. Thus, this Court did not necessarily determine that it would refuse to exercise jurisdiction over any of the other defendants. 26a This Court is well aware that a conspiracy prosecution may be brought in any district in which any act in further- ance of the conspiracy was committed by any of the con- spirators, even though some of them were never physically present there. Title 18, U.S.C. § 3237(a); Wright, Federal Practice and Procedure: Criminal § 303, pp. 589-90. And, the actions in Las Vegas of Ernst Franz Combs, Jr., an in- dicted coconspirator, and Gary Lynn Lickert, an unindicted coconspirator, could be used to establish the necessary overt act within this district. However, the problem in Brown was that the indictment was such a complex mon- strosity that this Court decided it should have been broken down into several smaller, more manageable indictments. There simply was no good reason for those defendants to be indicted in this district given their alleged roles in the Gov- ernment’s conspiracy theory. This Court is confronted with the same problem with the indictment against Gonsalves. Therefore, for the same reasons articulated in this Court’s September 21, 1976, order and judgment of acquit- tal as to defendants Brown, Work and Synder, this Court hereby exercises its discretionary supervisory powers and dismisses the indictment as against defendant Gonsalves. /S/ Roger D. Foley ROGER D. FOLEY District Judge 27a APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA Criminal LV-76-39, RDF UNITED STATES OF AMERICA, PLAINTIFF, Uv. RICHARD KENNETH BROWN, ET AL., DEFENDANTS. Before: The Honorable Roger D. Foley, District Judge REPORTER'S TRANSCRIPT OF COUNSELS’ OPENING STATEMENTS AND THE COURT'S ORDER OF ACQUITTAL. Monday, September 20, 1976 Tuesday, September 21, 1976 WILLIAM E. MADARA, R.P.R., C.S.R. #22, Court Reporter Pro Tem APPEARANCES: FOR THE PLAINTIFF: LAWRENCE J. SEMENZA, Esq. UNITED STATES OF AMERICA _ U.S. Attorney By: LELAND E. LUFTY, Esq. PHILIP M. PRO, Esq. Assistant U.S. Attorneys 300 Las Vegas Boulevard South Las Vegas, Nevada 89101 FOR THE DEFENDANTS: RICHARD KENNETH BROWN RICHARD G. SHERMAN, Esq. 6420 Wilshire Boulevard Los Angeles, California 90048 and HARRY E. CLAIBORNE, Esq. 108 South Third Street Las Vegas, Nevada 89101 ROBERT DAVID WORK FLYNN, KIMERER, THINES & GAILBRAITH By: MICHAEL D. KIMERER, Esq. 100 West Washington Street Phoenix, Arizona 85003 28a KENT GILES SNYDER SIMON & SHERIDAN By: THOMAS R. SHERIDAN, Esq. Suite 400 2404 Wilshire Boulevard Los Angeles, California 90057 [pages 28-48] LAS VEGAS, NEVADA, TUESDAY, SEPTEMBER 21, 1976 , THE COURT: The record will show the presence of the defendants and their counsel and the Assistant U.S. Attorney. Last night there was introduced a writ hearing in this case and I didn’t recognize it as such until I got it in chambers. Applying the principle of Briggs that it is improper for the government to name persons as unindicted co-conspirators, that has absolutely nothing to do with the admissibility of evidence. Let’s assume that you have a conspiracy with only two named co-conspirators and the evidence shows that there were four others. Under proper circumstances, if a conspiracy is shown to exist, if the defendant is shown to be a member, then the third party’s act or declaration of a co- conspirator is admissible in accordance with the rules of evi- dence. I think the government brief is right and defense counsel saw that from the start and wondered what I was talking about. In any event, that is no longer a problem. As a matter of fact, I sighted [sic] to you a second case from the Fifth Circuit Beasley. In that case, counsel was trying to turn this rule around as defense counsel often does, the court said, this is another panel, “In reality he attacks the government’s failure to specifically name Dickey Dia- mond and Barbara Irwin in the indictment. Both were ad- mitted co-conspirators and the prosecution’s key witness in the conspiracy count.” Then, in a footnote, the court says, “We note this Court’s recent decision in Briggs,” and so forth, So that is no problem. 29a However, I had planned to dispose of this case this morn- ing, but in his anxiety Mr. Sherman has obtained an order from the august Walter Ely and Shirley Hufstedler from the Ninth Circuit which says that I cannot go further. It says, “Further proceedings in District Court are stayed pending compliance with these directions.” That is hearing the late motions you filed. I would interpret that to mean that I can’t go ahead with the trial. Suppose I wanted to grant a motion for a directed verdict on the opening statements and the trial brief of the government, which I think I’m going to do. Would I then be in contempt of my superiors, Mr. Sherman? MR. SHERMAN: May I address the court on that sub- ject, sir? Your Honor, I did not mean, just to make myself clear, I think sometimes it is necessary—Judge Foley, I have really and truly great respect for this court. I meant no imperti- nence with that petition and it was not the sole effort on my— THE COURT: Judge Ely and Judge Hufstedler are not adverse to intruding into the area of the District Court’s work before appeal. That doesn’t surprise me. You got the right judges among others that would have listened to you. MR. SHERMAN: Your Honor, if I could have brought that writ to a San Francisco Judge and been here and there at the same time, I assure Your Honor that I would have done exactly THE COURT: Well, I don’t want to get into that. I’m going to take the position that what Judge Ely and Judge Hufstedler mean when they say, “Further proceed- ings are stayed pending compliance ...”, that means, “Judge Foley, you can’t go ahead with the trial.” So, I feel that if I go ahead and consider what I think I am going to do—I read that trial memorandum last night, I hadn’t read it before, I scanned it—if I am going to dismiss this case, I assume that my superiors are not going to find me in contempt of their order. MR. SHERMAN: I would assume so, Your Honor. THE COURT: In fact, you would be pleased with dismissal? 30a MR. SHERMAN: Your Honor, I would be delighted. THE COURT: So, let’s lay this aside. Now, in the Alice in Wonderland mind of Lawrence Semenza, who is the United States Attorney for Nevada, we have conjured up here a massive conspiracy. This isn’t the first time Mr. Semenza, in his own inimitable way, has con- jured up a massive conspiracy. Back in 1974, I spent a whole summer, missed the Judicial Conference, trying one of Lar- ry Semeza’s dreams and it finally broke down because of its sheer size. We had thirteen defendants, fifteen lawyers. We had a conspiracy that involved a Mexican who was the source of marijuana in Mexico. We had defendants and mul- tiple and unindicted co-conspirators who had to do with load- ing cars in Mexico and driving across the border. Couriers who took them from El Centro to Las Vegas, couriers who took them from Las Vegas to Salt Lake, couriers who took them to Detroit. And then there, five or six other defend- ants who bought the stuff and distributed it in the Detroit area. It was a dandy. We finally ended up negotiating pleas. It was impossible to try. Fifteen lawyers cross-examining each government witness. The Detroit lawyers, I think most of them had never been out of the Police Courts before, they were the most discour- teous bunch of lawyers I ever met in my life. They tried me constantly. They were able to get to my Irish and I apolo- gized and wrote speeches to the jury every other day trying to unring the bell. We went on and on and Mr. Semenza sat in that chair and smiled. I think he likes to concoct this type of monstrosity. Now, I said something about that when I threw out the first indictment in this case. So, this isn’t the first time. Now, I am going to grant, if defense counsel will move, a motion for judgment of acquittal based upon the govern- ment’s opening statement and trial memorandum. I assume that defense counsel will so move? MR. SHERIDAN: So move, Your Honor. MR. SHERMAN: So move. MR. KIEMERER: So move, Your Honor. sla THE COURT: Now, let’s look at this thing. You turn to page two of the government’s trial memorandum—first let me say that poor Mr. Pro and poor Mr. Lufty have struggled long and hard with this case. I know you put a lot of time and preparation in this case. It is not your fault, it is your bosses’ fault. First transactions, in February of 1973, Mr. Gater met with Combs in Lake Tahoe in California, that puts us in the Eastern district, is that right? MR. SHERIDAN: It is, Your Honor. THE COURT: And then after that, Gater came into Los Angeles pursuant to arrangement agreeing to pick up mari- juana. He went to Rick Brown’s house, one of the defend- ants here, in Newport. Well, no, he was to proceed from Lake Tahoe to Rick Brown’s house. Then, he flew into Orange County Airport and Brown picked him up and took him to a warehouse in San Pedro. Brown told Gater this is where the load was to be delivered. They drove to Brown’s home in Newport Beach. Brown showed Gater a Carnet and told him that he would have to show it to get the air cargo from TWA in Los Angeles Inter- national in order to pick up the shipment of musical equip- ment. Then, ultimately Gater picked it up, drove the truck to the warehouse in San Pedro, Brown was waiting for him. Bob Work, another defendant on trial here, came in the pic- ture there and he told Gater that he had made the shipping arrangements for the speakers from Paris. Gater, Brown and Work unloaded the speakers and put them in the ware- house. They took this red Lebanese hashish and put it in small packages and so forth. Then, Mr. Gater for his trouble, got a kilo of hashish. That’s it. That is one complete conspiracy. Most prosecutors, ninety-nine out of a hundred lawyers that have any logic in their mind, would have said, “Okay, that is o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1040%3A1. Public record. Not legal advice.