Petition for Writ of Certiorari — Lasker v. United States

LIBRARY. FILED

eUPREMIE COURT, Us & sae

IN THE

MICHAEL RODAK, JR,CLERK

hos .

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1973

No. 73-746

HONORABLE MORRIS E. LASKER,

UNITED StaTeEs;District JUDGE FOR

THE SOUTHERN DisTRICT OF NEW YorK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Max WILD

RUBIN WACHTEL BAUM & LEVIN

598 Madison Avenue

New York, N. Y. 10022

GreGory J. PERRIN

30 Vesey Street

New York, N. Y. 10007

November 8, 1973

RRS SA ESTEE ETAL OS EEL SNES REESE EEE LES ILE LTE CLS Tie OO OL COED TT

Opinions below

_ Jurisdiction

Questions presented

Statutory and regulatory provisions involved...................-.

Statement of the case

Reasons for granting the writ

1. The Decision Below Conflicts With This Court’s

Decision in Will v. United States, 389 U.S. 90

(1967) and With Decisions of the Second

Circuit and Other Circuits Holding That in

Criminal Cases Mandamus Only Lies Where a

District Judge has Exceeded His Jurisdiction.....

2. The Decision Below Raises Significant and

Recurring Problems Concerning the Scope of

the Writ of Mandamus........................cccccecesseeeeees

3. The Court Below Exceeded Its Jurisdiction by

Preventing Petitioner from Ruling on a Dis-

cretionary Matter which it had No Authority to

Review

4. Decision Below Misinterpreted the Prompt Dis-

position Rules, Improperly Rejected Petition-

er’s Factual Findings, Ignored and/or Mis-

stated Material Facts, and Adopted Standards

of Prejudice for Dismissal Under Rule 48(b),

F. R. Crim. P., Contrary to Those Enunciated

By This Court

Conclusion ei -

Appendix (Opinion and Judgment of District Court) .......

13

16

18

ESERIES SRR AE SEY LEYLA PERO NETERIESTLE PE LYALL DEEL IE ABET IS IE I I NI TE

ii

CITATIONS

Page

CASES:

Frost v. Yankwich, 254 F.2d 633 (9th Cir.) cert. denied,

355 US. 915 ( 1958)

Hilbert v. Dooling, 476 F.2d 355 yy Lo Me. s ) Ane 15-16

Johnston v. Marsh, 227 F.2d 528 (3d Cir. 1955)............... 15

LaBuy v. Howes Leather Co., 352 U.S. 249 (1957) .......... 14

SEC v. Chenery Corp., 318 U.S. 80 (1943)... ecco 20

SEC v. Stewart, 476 F.2d 755 (2d Cir. 1973)... 15, 16

Strunk v. United States, — U.S. —, 93 S. Ct. 2260, 37 L.

REESE ee Mee! A SEL Ae eee 21

Thornton v. Corcoran, 407 F.2d 695 (D.C. Cir. 1969)...... 15

United States v. Di Stefano, 464 F.2d 845 (2d Cir. 1972). 11-16,

18

United States v. Griesa, 481 F.2d 276 (2d Cir. 1973) ....... 15, 16

United States v. Hester, 325 F.2d 654 (9th Cir. 1963) ...... 15

United States v. Lasker, 481 F.2d 229 (2d Cir. 1973)....... 13, 15,

17, 18, 20, 21

Will v. United States, 389 U.S. 90 (1967) ....... eee eeeeeeee 11-16

STATUTES AND RULES:

All Writs Act, 28 U.S.C. $1651 (1948) oe eeeceeteeeeees 12

18 U.S.C. §3731 (as applicable to indictments filed

aia cnciipesiecineanisonenedoentiannnnnigs 14, 18

18 U.S.C. §3731 (as applicable to indictments filed after

I WE reacted scncsdeispacrniechteiiegeipiitaghbiais dbagdeassaiinenis 17

Second Circuit Rules Regarding Prompt Disposition of

Oats scacctcunaamenacaalennentin 9-14, 17-20

Plan for Achieving Prompt Disposition of Criminal Cases

( ennai pursuant to Rule 50(b), Fed., R. Crim. 118

SSRI eel hela ee ake Ona le inten sere en ENE 17, 1

sa i, rs ca eceteencricrnisiintoceincincses 10, 11, 14, 18, 19, 21

PRG AYR ALL ARIA LP NT EI SS API R CLS eee

a

IN THE

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1973

No.

HONORABLE MORRIS E. LASKER,

UNITED STATES DISTRICT JUDGE FOR

THE SOUTHERN DISTRICT OF NEW YORK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, the Honorable Morris E. Lasker,

United States District Judge for the Southern District of

New York, respectfully prays that a writ of certiorari issue

to review that part of the judgment and opinion of the

United States Court of Appeals for the Second Circuit,

entered in this proceeding of June 11, 1973, which con-

stituted a writ of mandamus directing petitioner to rein-

state the separate indictments of Donald F. Carone,

Raymond F. Carr and Albert Ferguson, which he had

rupees abt SRC RN ERTL YEAST EN Se LEE Nee a ee eee

2

dismissed on December 5, 1972 because of the respond-

ent’s violation of the Second Circuit Rules Regarding

Prompt Disposition of Criminal Cases (the “Prompt

Disposition Rules” ).*

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

481 F.2d 229. Petitioner’s opinion, not officially reported,

is reproduced in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Second

Circuit was entered on June 11, 1973. A timely petition

for rehearing with suggestion of rehearing in banc was

denied on August 10, 1973, and this petition for certiorari

was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. §§1254(1) &

1651(a).

QUESTIONS PRESENTED

1. Whether the Court of Appeals had the power to

issue a writ of mandamus, since petitioner acted within his

discretion.

2. Whether the Court of Appeals exceeded its

jurisdiction, or, alternatively, abused its discretion by

precluding petitioner from deciding a non-reviewable

discretionary matter, to wit, whether the indictments

should have been dismissed under Rule 48(b), F. R.

Crim. P.

3. Assuming, arguendo, that the Court of Appeals had

the power to issue a writ of mandamus, whether it abused

* This petition is prosecuted on Judge Lasker’s behalf by Max

Wild, Esq. of Rubin Wachtel Baum & Levin representing Mr. Carone,

and Gregory J. Perrin, Esq., representing Messrs. Carr and Ferguson.

3

its discretion by greatly expanding the scope of mandamus

in criminal cases, making it a substitute for appeal, in a

case where there was no need for guidance since the

relevant law had changed.

4. Whether the Court of Appeals exceeded its power

in setting aside a factual finding by petitioner.

5. Whether the Court of Appeals improperly made

factual findings on disputed issues without remanding for

a hearing.

6. Whether the Court of Appeals, in holding that

petitioner could not properly dismiss the indictments

under Rule 48(b), F. R. Crim. P., although petitioner

neither grounded his decision nor held a hearing thereon,

erroneously rejected as “insubstantial” undisputed show-

ings by defendants that they had been severely prejudiced

by the government’s intentional and bad faith delay of

their respective trials.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

United States Code, Title 28:

§1651. Writs

(a) The Supreme Court and all courts estab-

lished by Act of Congress may issue all writs neces-

sary or appropriate in aid of their respective jurisdic-

tions and agreeable to the usages and principles of

law.

(b) An alternative writ or rule nisi may be issued

by a justice or judge of a court which has jurisdiction.

vo nnsaglgys eerie sr nteatec reese oN (2 NEES RE CORES TNT TRE PRO ny FO At Bee Cr oe Pee een Se aaa oa

4

United States Code, Title 18:

$3731 (as applicable to indictments filed before

January 1, 1971) provides in relevant part:

§3731. Appeal by United States

* * * *

An appeal may be taken by and on behalf of the

United States from the district courts to a court of

appeals in all criminal cases, in the following in-

stances:

From a decision or judgment setting aside, or

dismissing any indictment or information, or any

count thereof except where a direct appeal to the

Supreme Court of the United States is provided by

this section.

§3731 (as applicable to indictments filed after

January 1, 1971) provides in relevant part:

§3731. Appeal by United States

In a criminal case an appeal by the United States

shall lie to a court of appeals from a decision,

judgment, or order of a district court dismissing an

indictment or information as to any one or more

counts, except that no appeal shall lie where the

double jeopardy clause of the United States Con-

stitution prohibits further prosecution.

The Second Circuit Rules Regarding Prompt Disposition

of Criminal Cases provide in relevant part (rescinded

March 31, 1973):

4. In all cases the government must be ready for

trial within six months from the date of the arrest,

a eh a Se

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5

service of summons, detention, or the filing of a

complaint or of a formal charge upon which the

defendant is to be tried (other than a sealed in-

dictment), whichever is earliest. If the government is

not ready for trial within such time, or within the

periods as extended by the district court for good

cause under rule 5, and if the defendant is charged

only with non-capital offenses, then, upon application

of the defendant or upon motion of the district court,

after opportunity for argument, the charge shall be

dismissed.

5. In computing the time within which the

government should be ready for trial under rules 3

and 4, the following periods should be excluded:

* * * *

(d) The period of delay resulting from the

absence or unavailability of the defendant. A

defendant should be considered absent whenever

his location is unknown and in addition he is

attempting to avoid apprehension or prosecution or

his location cannot be determined by due dili-

gence. A defendant should be considered unavail-

able whenever his location is known but his pres-

ence for trial cannot be obtained by due diligence.

(e) A reasonable period of delay when the

defendant is joined for trial with a codefendant as

to whom the time for trial has not run and there is

good cause for not granting a severance. In all

other cases the defendant should be granted a

severance so that he may be tried within the time

limits applicable to his case.

The Plan for Achieving Prompt Disposition of Criminal

Cases (promulgated pursuant to Rule 50(b), F. R. Crim.

P., and effective April 1, 1973) provides in relevant part:

AM MELD ERIOL ORE SELL ET OR ad Nepean eee ee ee

6

4. All Cases: Trial Readiness and Effect of Non-

Compliance.

_ _ _In all cases_the government must be ready for.

trial within six months from the date of the arrest,

service of summons, detention, or the filing of a

complaint or of a formal charge upon which the

defendant is to be tried (other than a sealed

indictment), whichever is earliest. If the govern-

ment is not ready for trial within such time, and if

the defendant is charged only with non-capital

offenses, the defendant may move in writing, on at

least ten days’ notice to the government, for dis-

missal of the indictment. Any such motion shall be

decided with utmost promptness. If it should

appear that sufficient grounds existed for tolling any

portion of the six-months period under one or more

of the exceptions in Rule 5, the motion shall be

denied, whether or not the government has pre-

viously requested a continuance. Otherwise the

court shall enter an order dismissing the indictment

with prejudice unless the court finds that the gov-

ernment’s neglect is excusable, in which event the

dismissal shall not be effective if the government is

ready to proceed to trial within ten days.

5. Excluded Periods.

In computing the time within which the govern-

ment should be ready for trial under Rules 3 and 4,

the following periods should be excluded:

* * * *

(d) The period of delay resulting from the

absence or unavailability of the defendant. A

defendant should be considered absent whenever

his location is unknown. A defendant should be

7

considered unavailable whenever his location is

known but his presence for trial cannot be obtained

. by.duediligence. .. .. 458 Bes og Fae x

(e) A reasonable period of delay when the

defendant is joined for trial with a codefendant as

to whom the time for trial has not run and there is

good cause for not granting a severance. In all

other cases the defendant should be granted a

severance so that he may be tried within the time

limits applicable to his case.

Rule 48(b). F. R. Crim. P., provides:

Rule 48. Dismissal.

* * * *

(b) By Court. If there is unnecessary delay in

presenting the charge to a grand jury or in filing an

information against a defendant who has been held

to answer to the district court, or if there is unneces-

sary delay in bringing a defendant to trial, the court

may dismiss the indictment, information or com-

plaint.

STATEMENT OF THE CASE

Each of the indictments was handed up on February

25, 1970. In substantially identical language, each

charged in one count that defendant Mintz and Morton

Penn, who were partners in the business of representing

manufacturers selling to the Army and Air Force Ex-

change Service (the “PX”), conspired to defraud the

United States by paying kickbacks to various PX buyers,

including defendants herein, to obtain favored treatment

for their clients, in violation of the general conspiracy

SSN LOS SPIES RAG OILY EAS eee oe ee nem

statute*. 18 U.S.C. 371.: At or prior to arraignment each

defendant was offered eumerend to incriminate other PX

. buyers. ot. te Vis. 8

Promptly after their suvelgjeanbiite each of the a ap-

pellees moved to dismiss his indictment on the grounds

that it failed to charge a crime, since the PX was neither

the United States nor an agency thereof and consequently

the United States could not have been defrauded by the

alleged commercial bribery of PX employees, and because

it was vague and indefinite. Additionally, defendants Carr

and Ferguson sought dismissal on the ground of prej-

udicial pre-indictment delay. On June 1, 1970, said

motions were denied. Messrs. Carr and Ferguson were

granted leave to renew their pre-indictment delay motion

before the trial court.

Apart from furnishing appellees with bills of particu-

lars on July 15, 1970, which admitted, in substance, that

the PX had not suffered any financial loss from the alleged

conspiracy to defraud, the government took no step to

prosecute these actions, which had been marked off the

calendar from the time of the argument of the motions in

April, 1970.

Although denied meaningful discovery counsel for

the defendants diligently prepared for triai. The defend-

ants had advised their attorneys that an analysis of the PX

purchasing records would negate the alleged commercial

bribery by establishing that they had not favored sellers

represented by Penn and Mintz and that the defendants

had purchased only the highest quality merchandise at the

lowest possible prices from a broad range of manufac-

turers. Accordingly, with the full knowledge of the

government, defendants served pretrial subpoenas upon

* Penn had been given immunity and was named only as a co-

conspirator. He will be the government’s key witness.

PLEA RIRS, EIe LTI SI e A ee PEA LEAL

9

the PX requiring the production of all relevant records.

However, the records of the PX pertaining to the pur-

. .chases made by -tthe defendants had not been retained-

apparentlky due to the expiration of such a long period of

time.* Further, the PX was unable to identify the manu-

facturers represented by Penn and Mintz.

On January 5, 1971 the Circuit Council promulgated

the Second Circuit Rules Regarding Prompt Disposition

of Criminal Cases, specifically making them applicable to

all pending cases, such as these. The effective date of the

Rules was postponed for six months to July 5, 1971, to

allow “sufficient time for the United States Attorneys to

determine which cases should be reached for trial and

which cases should be discontinued. . . .” Statement of

Circuit Council Accompanying the Rules.

Still the government did nothing to prosecute these

cases. Instead, during the summer of 1971, it instituted a

number of civil actions against the defendants and other

PX buyers not under indictment, seeking to recover the

improper payments supposedly made to them by Penn

and Mintz under the scheme alleged in these indictments.

These cases were commenced in the district courts located

in New Jersey, Florida, Texas and Hawaii.

The defendants Carr and Ferguson continue to be

employees of the PX. However, they have been under a

cloud as a result of the indictments and promotional and

other opportunities have been seriously affected. The

defendant Carone was forced out of business as a result of

the filing of the indictment and later precluded from

* The indictments charged conspiracies beginning in Europe in

1961 and ending ten years later with their filing in 1970. The alleged

overt acts took place three to four years before the indictments were

filed.

SSE

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10

taking a real estate brokers examination due to the

pending charge.

Thereafter, thé government, without notice to any of ~

the defendants or approval of the petitioner, caused the

cases to be reported as Rule 5(e) exceptions to the six

month trial requirement of the Prompt Disposition Rules

on the theory that Mintz, who for many years prior to the

return of the indictment had resided in Europe, was a

“fugitive”. The government had been in contact with

Mintz both before and after the indictments. Moreover,

many months after the indictment Mintz was located and

interviewed in Spain on behalf of the defendants.

In March 1972, petitioner held an ex parte conference

with government counsel to inquire as to the status of

these cases and was advised of the above reason for the

government’s classification of these cases as Rule 5(e)

exceptions. He directed that the government apprise coun-

sel for the defendants of the status of the cases and the

reason for the government’s failure to have moved the

cases for trial. By letter dated March 10, 1972, the

government so advised defense counsel.

Promptly after receipt of said letters, each defendant

moved for the dismissal of the indictment against him.

The grounds of the motions insofar as Messrs. Carr,

Ferguson and Carone were concerned, were that the

government’s delay violated their rights under the Prompt

Disposition Rules as well as under Rule 48 of the Federal

Rules of Criminal Procedure and the Sixth Amendment of

the United States Constitution. Defendants urged that the

government’s delay was purposeful, because it recognized,

as a pretrial deposition taken of Penn in one of the above

civil actions made clear, that a conviction could not be

obtained on Penn’s uncorroborated testimony. The gov-

ernment attorney in charge of the civil actions advised

SLA VEILS TASTY RIGO sails

i

defendant Carone’s counsel at Penn’s deposition that it

was delaying the criminal cases in the hope of locating

and extraditing Mintz, upon whom it intended w confer *

immunity. Although the prosecution averred before peti-

tioner that the government did not intend to immunize

Mintz, it did not deny the above statement by the other

government counsel.

On December 5, 1972, petitioner filed an opinion and

order in which he dismissed each of the indictments.

Petitioner grounded his ruling exclusively on the Prompt

Disposition Rules and left open the issue of whether the

defendants were also entitled to dismissal under Rule 48.

The government thereafter prosecuted an appeal to

the United States Court of Appeals for the Second Circuit.

The government neglected to call to that court’s attention

its waiver of oral argument before petitioner and argued

that it had been denied a hearing. Further, it neglected to

call to that court’s attention the then recent decision in

United States v. DiStefano, 464 F.2d 845, (2d. Cir. 1972).

DiStefano, 464 F.2d supra at 846-49 held unanimously

under the appeal statute applicable to these indictments,

(18 U.S.C. 3731) these dismissals were non-appealable.

In DiStefano, then Chief Judge Friendly, with Circuit

Judge Mulligan concurring, further held over the dissent

of former Chief Judge Lumbard, that under this Court’s

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

mandamus would not lie either. 464 F.2d at 849-51.

At oral argument the panel below, consisting of

Senior Circuit Judge Lumbard, Circuit Judge Timbers and

Senior District Judge Wyzanski, sitting by designation,

suggested to the government that it file a petition to the

panel for a writ of mandamus directing petitioner to

reinstate indictments.

es ta von _—

12

Defendants opposed mandamus on the grounds that

it was unauthorized in criminal cases, except where the

| . . district judge had acted without-jurisdiction. and that to. . _.

grant such relief would conflict with the well settled law

contained in such cases as Will, supra and DiStefano,

supra. Defendants further urged that the extension of the

law of mandamus was unnecessary since (1) the new

appeal statute gave the government a right to appeal in

substantially all pending cases and (2) the relevant

provisions of the Prompt Disposition Rules had been

changed.

Throughout the proceeding before petitioner and

before the Court below the government at no time ever

stated that it was ready to try any of the cases against

these defendants.

By decision dated June 11, 1973, the court below held

that it was without jurisdiction to hear the governments

appeal, but that it would grant it mandamus.

Petitioner’s timely application for rehearing with

suggestion for rehearing in banc additionally urged that

the panel decision of June 11, 1973, improperly rejected

factual findings of petitioner and made its own findings on

disputed issues, without remanding for a hearing.

On August 10, 1973 petitioner’s timely application for

rehearing with suggestion for rehearing in banc was

denied. On September 12, 1973 the certified record in

these cases was forwarded by the clerk of the court below

to this Court.

This Court has jurisdiction pursuant to 28 U.S.C.

§§1254(1) and 1651. Petitioner is required to file this

petition within ninety days from the date of the judgment

of the Second Circuit denying his petition for rehearing.

a

13

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH THIS

- + COURT'S DECISION IN WILL #. UNITED STATES, 389 U.S. 90

, (1967) AND WITH DECISIONS OF THE SECOND CIRCUIT AND

OTHER CIRCUITS HOLDING THAT IN CRIMINAL CASES MAN-

DAMUS LIES ONLY WHERE A DISTRICT JUDGE HAS EXCEEDED

HIS JURISDICTION.

The court below specifically grounded its decision,

not upon any breach of petitioner’s conceded discretionary

powers, but upon its undefined “supervisory authority”.

481 F.2d at 235.* This holding flies in the face of Will v.

United States, 389 U.S. 90 (1967) and squarely conflicts

with the Second Circuit’s decision in United States v.

United States v. DiStefano, 464 F.2d 845 (2d Cir. 1972)

and other decisions in the Second and other circuits. The

well-settled law until this case was that in criminal cases

mandamus was limited to those rare instances where a

district judge had exceeded his lawful powers.

(a) Will, supra, is the definitive decision on the scope

of mandamus in criminal cases. This Court there reversed

a writ of mandamus granted on the government’s appli-

cation, stating that

“it is clear that only exceptional circumstances

amounting to a judicial ‘usurpation of power’ will

justify the invocation of this extraordinary remedy.”

389 US. at 95.

* The court below in footnote 2 offered as an alternative basis of

decision the contention that under its interpretation of the Prompt

Disposition Rules the six month period had not run and, therefore,

petitioner lacked the power to dismiss the indictment. 481 F.2d at

235. This view is akin to stating “that a judge has no ‘power’ to enter

an erroneous order”, which this Court rejected as a “semantic fallacy

[that] would undermine the settled limitations upon the power of an

appellate court to review interlocutory orders.” Will, supra, 389 U.S.

at 98, fn.6.

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14

This Court expressed particular concern over the fact that

the underlying case was criminal in nature, distinguishing

_ LaBuy vy. Howes Leather Co., 352. U.S. 249 (1957)...

“and the other decisions of this Court approving the

use of mandamus as a means of policing compliance

with the procedural rules . . . [on the ground that they

were] civil cases.” 389 U.S. 100 fn. 10 (emphasis

added).

This Court there held that Congress had strictly limited

the government’s right to appeal in criminal cases (former

18 U.S.C. §3731) “to narrow categories of orders termina-

ting the prosecution” (389 U.S. at 96).* This Court then

stated (389 US. at 97):

“Nor is the case against permitting the writ to be used

as a substitute for interlocutory appeal ‘made less

compelling . . . by the fact that the Government has

no later right to appeal.’ ”

Judge Lumbard attempted to distinguish Will in this

case (481 F.2d‘at 236) as he had in his dissent in United

States v. DiStefano, 464 F.2d 845, 853 (2d Cir. 1972) on

the ground that in Will there had not been a dismissal.

However, Chief Judge Friendly, with Circuit Judge Mulli-

gan concurring, rejected that attempted distinction stating

(464 F.2d at 850):

“While it is possible to find phrases in the Will

opinion that might afford some basis for distinction,

such an effort would ignore the decision’s main

thrust.”

* The court below recognized that former 18 U.S.C. §3731 did

not permit the government to appeal when indictments had been

dismissed under either Rule 48(b), F. R. Crim. P. or the Prompt

Disposition Rules. 481 F.2d at 232.

15

b. DiStefano, supra, is indistinguishable from the

instant case. It squarely conflicts with the instant decision.

Additionally, the Second Circuit’s secent decisions, ‘both

before and after its instant opinion, have specifically

rejected the notion that supervisory mandamus may be

used in a criminal case. SEC v. Stewart, 476 F.2d 755

(2d. Cir. 1973), United States v. Griesa, 481 F.2d 276 (2d

Cir. 1973) and Hilbert v. Dooling, 476 F. 2d 355 (2d Cir.

1973). Indeed, the doctrine of supervisory mandamus

applied below by Circuit Judges Lumbard and Timbers

was rejected by Chief Judge Friendly and Circuit Judges

Hays, Smith, Feinberg and Mulligan over the dissents of

Circuit Judges Lumbard and Timbers.

The law of the Second Circuit, which except in this

case, squares with Will, supra, should not be changed by

the fact that two dissenters should find themselves on the

same panel. Its decisions both before and after the instant

decision are in irreconcilable conflict with the instant

decision.

c. The decision of the court below to extend the scope

of mandamus under its “supervisory authority over the

district courts” (481 F.2d at 235) to correct what was at

most a discretionary error conflicts with the decisions of at

least three other circuits which have limited mandamus to

jurisdictional excesses. United States v. Hester, 325 F.2d

654 (9th Cir. 1963); Frost v. Yankwich, 254 F.2d 633 (9th

Cir. 1958), cert. denied, 355 U.S. 915 (1958); Thornton v.

Corcoran, 407 F.2d 695 (D. C. Cir. 1969); Johnston v.

Marsh, 227 F.2d 528 (3d Cir. 1955).

Hester, supra, is particularly close to the instant

decision. There the Ninth Circuit denied the govern-

ment’s petition for a writ of mandamus to compel a district

judge to reinstate an indictment he had dismissed for want

of prosecution, stating (325 F.2d at 657):

P 5 wing ath Ragin Ppt SMe SES Ee eS

RBC GENIE BABE EV GRE ELISE OLDE GEILE aa ae Beg E Sota te

16

“A writ of mandamus directing a court to do some act

is an extraordinary remedy and is properly issued

-- @nly when the lower-court clearly-.acts.in excess of its-

jurisdiction, abuses its jurisdiction, or refuses to ex-

ercise it. * * * Rarely should a writ of mandamus be

issued.”

It is clear that the decision below stands in direct

conflict with the settled law of this Court, at least three

other circuits and the Second Circuit itself. Certiorari is

necessary to resolve this conflict and prevent future

unwarranted extensions of mandamus.

2. THE DECISION BELOW RAISES SIGNIFICANT AND

RECURRING PROBLEMS CONCERNING THE SCOPE OF THE

WRIT OF MANDAMUS.

Mandamus is on its face an extraordinary writ lim-

ited, especially in criminal cases, to a “judicial ‘usurpation

of power’”. Will, supra, 389 U.S. at 95. During the first

six months of 1973 there were four major decisions

involving the scope of mandamus in the Second Circuit

alone. Hilbert v. Dooling; SEC v. Stewart; United States

v. Griesa and this case. The future importance of a precise

delineation of the scope of mandamus is clear beyond

question.

Unless this Court explicitly closes the technical gaps

the court below contends were left open in Will, supra,

future circuit judges will continue to seize upon them to

use mandamus as a substitute for appeal in complete

disregard of what Chief Judge Friendly has described as

Will’s “main thrust”. DiStefano, supra, 464 F. 2d at 850.

This case presents the ideal vehicle for closing those

supposed gaps. Here Circuit Judges Lumbard and Tim-

bers obviously took advantage of the fact that they were

on the same panel to reach out and create a new and

expanded form of “supervisory mandamus”, which their

ant Laat mal cae oe i eR ee ae

a

-2om @

17

brothers had rejected over their dissents in earlier cases.

This Court should not permit the random panel selection

process to result in distortions of the settled law when

dissenters find themselves on the same panel.

The need for review in this case is made all the more

compelling because mandamus was completely unneces-

sary.

First, under the new appeals statute (18 U.S.C. §3731

applicable to all indictments returned after January 1,

1971) the government has the right to appeal dismissals in

substantially all pending cases.

Second, the decision below can provide little, if any,

guidance. The Prompt Disposition Rules under which

petitioner dismissed the indictments were rescinded less

than three weeks after argument below. Moreover, as the

court below knew, the new Plan For Achieving Prompt

Disposition of Criminal Cases (the “District Plan”) be-

came effective two and a half months before it filed the

instant opinion.* While the District Plan was intended to

effect prompt disposition of criminal cases, it was so

significantly different from the relevant provisions of the

Prompt Disposition Rules as to deprive the decision below

of any guidance value.** Moreover, any guidance which

the Circuit Council might have wished to provide the

* The District Plan, promulgated pursuant to Rule 50(b), F. R.

Crim. P., became effective on April 1, 1973.

** The court below was concerned that the government not be

“‘mouse-trapped” by a retroactive determination that its delay was

unreasonable. 481 F.2d at 233. Accordingly, it interpreted the

Prompt Disposition Rules so as to eliminate the need for a prior

application for a continuance. This interpretation served no didactic

function since the District Plan which had been effective for some two

and one half months prior to the filing of the option specifically so

provided.

district judges, could more appropriately have been made

by modifying the Prompt Disposition Rules as was effec-

" tively accomplished ‘by the’ District Plan”

Clearly, the decision below was an unnecessary and

improper extension of the scope of mandamus which is

bound to increase litigation around the country. The

panel below set a dangerous precedent in arrogating to

itself a right of review denied it by Congress in former 18

U.S.C. §3731.

3. THE COURT BELOW EXCEEDED ITS JURISDICTION BY

PREVENTING PETITIONER FROM RULING ON A _ DIS-

CRETIONARY MATTER WHICH IT HAD NO AUTHORITY TO

REVIEW.

Defendants sought dismissal of their indictments both

under the Prompt Disposition Rules and under Rule

48(b), F. R. Crim. P. Since petitioner believed that there

was a clear violation of the Prompt Disposition Rules, it

was unnecessary for him to rule on the Rule 48(b) issue

and he declined to do so. The court below held that

petitioner’s failure to rule under the Rule 48(b) motions

did not preclude mandamus “since we feel that the Rule

48(b) motions should have been denied. . . .” 481 F.2d at

237. This ruling is perhaps more egregious than the ruling

on the Prompt Disposition Rules.

It had already been settled in the Second Circuit that

the dismissal of the indictment under Rule 48(b) is a

discretionary act not reviewable by appeal or mandamus.

United States v. DiStefano, supra. The court below

apparently believed that petitioner would dismiss under

Rule 48(b) if the matter were remanded to him. Accord-

ingly it acted most improperly and far beyond the scope of

its authority by depriving petitioner of the opportunity to

rule on this issue.

GOOEY IPT NETO PN N P T MN RIESR TAAN

19

4. THE DECISION BELOW MISINTERPRETED THE PROMPT

| DISPOSITION RULES, IMPROPERLY REJECTED PETITIONER'S. _ .

: ’ FACTUAL FINDINGS, IGNORED AND/OR MISSTATED MATERIAL

FACTS, AND ADOPTED STANDARDS OF PREJUDICE. FOR DIS-

MISSAL UNDER RULE 48(b), F. R. CRIM. P., CONTRARY TO

THOSE ENUNCIATED BY THIS COURT.

a. Under Rule 5(e) of the Prompt Disposition Rules

the government would have an additional “reasonable

period of delay when the defendant is joined for trial with

a codefendant as to whom the time for trial has not run

and there is good cause for not granting a severance”.*

The government attempted unilaterally, without notice to

defendants or approval of petitioner, to avail itself of Rule

5(e) by contending that Mintz was a “fugitive”, simply

because he apparently elected to continue living abroad as

he had done for the ten years which preceded his in-

dictment. The question of whether Mintz was a fugitive

was irrelevant. Rule 5(d) would extend the government’s

time as to Mintz only if he were “absent” or “unavailable”

as defined therein. Both of these terms required the

government to show that it had exercised “due diligence”

either to locate Mintz or to return him for trial. The

government represented to petitioner that despite due

diligence it had been unable, since his indictment, to

“ascertain his whereabouts” (A 98).** This was a deplor-

able misrepresentation. Defendants demonstrated, by

reference to the government’s own papers and the depo-

sition of Penn, its principal witness, that the government

* The rule further states: “In all other cases the defendant should

be granted a severance so that he may be tried within the [6 months]

time limits applicable to his case.”

** References in the form “A_ ” are to the appendix in the court

below. References in the form “CA ” are to the appendix to this

petition.

eis ET AMR,

i

— YR res ne PNER LASERS NLS NEEL IT NEN Te

20

had been in direct personal contact with Mintz before, and

for at least eight months after, the indictments were filed.

Accordingly, petitioner found, rather gently in light of the

government’s misrepresentation, that the government’s

delay as to the defendants was unreasonable. Petitioner

implicitly found that Mintz was neither “absent” nor

“unavailable”, as those terms are used in Rule 5(d),

stating:

“No facts have been presented to reveal how dili-

gently or earnestly Mintz is being sought or with what

likelihood of discovery, arrest or expedition.” (CAS).

In granting mandamus the court below, without any

justification and contrary to the well-settled law, neces-

sarily set aside petitioner’s factual determination on this

essential point. SEC v. Chenery Corp., 318 U.S. 80, 88

(1943).

b. The court below rested its opinion upon its er-

roneous finding that the government “was able and

willing to proceed with the trials forthwith.” 481 F.2d at

232 and 234. The government never stated that it was

ready for trial, but merely that it “has never indicated an

unwillingness to go to trial.” (A 267).* In light of the fact

that the Prompt Disposition Rules obviously required the

government to announce its readiness, petitioner properly

characterized the prosecutor’s above quoted statement as

“beside the point”. (CA 6).

c. The court below, without a hearing and without

any ruling by petitioner, rejected as “insubstantial” de-

* The government’s conduct throughout this case has been less

than exemplary. Only yesterday it moved to dismiss one of its civil

actions ( United States v. Carr et al., Civil Action No. 3-5015-B, N.D.

Tex.) rather than comply with the order of District Judge Sarah T.

Hughes directing it to answer the written interrogatories of Mr. Carr,

one of the criminal defendants herein. The government is thus

continuing, callously and improperly, to use its vast resources to bring

additional pressure to bear upon these defendants and inhibit their

ability to prepare for trial in any meaningful manner.

21

fendants’ grounds for dismissal under Rule 48(b). F. R.

Crim. P., and held that petitioner could not properly have

granted relief under that rule. In reaching this result the

court below: (1) failed to set forth accurately and fully the

facts raised by defendants, and (ii) applied erroneous

legal standards.

In enumerating the elements of prejudice suffered by

petitioners because of the government’s delay, the opinion

below overlooked several crucial allegations. The major

strategy of the defense would have been to establish from

the records of the PX that purchases made by defendants

did not favor manufacturers represented by Penn and

Mintz and that such merchandise was not only the highest

quality name brand, but that it was within the prices

agreed to by the PX and that it was regularly saleable.

The moving papers in the district court demonstrated that

the documents necessary for the preparation of this de-

fense had not been retained by the PX due to the lapse of

time, as petitioner pointed out (CA 2). The opinion

below additionally overlooked the fact that defendants

had alleged that they suffered greatly in their employ-

ment, being denied promotions. Mr. Carone was forced

out of business and denied permission to take a real estate

salesman’s license examination because of the mere pend-

ency of the indictments. The court below apparently

rejected as “insubstantial” the foregoing claims, as well as

defendants’ assertions that they had suffered emotional

stress from the long delay, 481 F.2d at 237.

This Court’s recent evaluation of the factors necessary

to relief under Rule 48(b) differed sharply from that in

the opinion below. In Strunk v. United States,—U. S.—

37 L.Ed. 2d 56, 61 (1973) this Court stated:

“The speedy trial guarantee recognizes that a pro-

longed delay may subject the accused to an emotional

POL SIRT PE LINGER CTE LY SE ee

22

stress that can be presumed to result in the ordinary

person from uncertainties in the prospect of facing

public trial... .”

CONCLUSION

For these reasons, a writ of certiorari should be issued

to review the judgment and the opinion of the Second

Circuit.

Respectfully submitted,

MAX WILD

Rubin Wachtel Baum & Levin

598 Madison Avenue

New York, N. Y. 10022

GREGORY J. PERRIN

30 Vesey Street

New York, N. Y. 10007

November 8, 1973.

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

Plaintiff,

; 70 Cr. 126,

—against—

RAYMOND F. Carr and FRITz

CLAUDIUS MINTZ,

Defendants.

Watney N. Seymour, Jr., Esq.

United States Attorney

United States Court House

New York, New York 10007

RICHARD BEN-VENISTE, Esq.

Assistant United States Attorney

Grecory J. Perrin, Esq.

30 Vesey Street

New York, New York 10007

Attorney for defendant Carr

UNITED STATES OF AMERICA,

Plaintiff,

70 Cr. 127-

—against —

DorotHy LUBKERT SHEA and

Fritz CLAUDIUS MINTZ,

Defendants.

Witney N. Seymour, Jr., Esa.

United States Attorney

New York, New York 10007

RICHARD BEN-VENISTE, Esq.

Assistant United States Attorney

Rosert E. GOLDMAN, Esq.

122 East 42nd Street

New York, New York 10017

CA2

Lasker, D. J.

Seven defendants in related cases moved to dismiss

the indictments against them under Rule 4 of the Second

Circuit Rules Regarding Prompt Disposition of Criminal

Cases, Rule 48 of the Federal Rules of Criminal Proce-

dure and the Sixth Amendment. They rely primarily on

the Second Circuit Rule. The parties have heretofore been

advised that the motions were granted and that an opinion

would be filed stating the court’s reasons.

The indictments in each case date from early 1970.

They allege conspiracies beginning between 1960 and

1966 with overt acts falling between 1965 and 1967. Each

of the indictments alleges a conspiracy to defraud the

United States, 18 U.S.C. §371, by a scheme of bribes and

kick-backs in supplying the Army and Air Force Exchange

Service, the Post Exchange facilities (“PX”). Each case

involves two defendants, the second in each being one

Fritz Claudius Mintz who appears to have offered the

bribes. The other defendant is alleged to have received

the bribes. Mintz has been a fugitive since the filing of the

indictments on February 25, 1970, and the remaining

defendants have moved to dismiss the indictments against

them.

In support of their motions, the defendants assert

prejudice of several kinds: The dulling of witnesses

memory caused by passage of time, (in this regard,

defendants’ prior Rule 48 motion was denied without

prejudice to renewal on trial); inability to secure the

records relevant to the dealings each defendant had with

Mintz (see e.g., Carr, Affidavit of Gregory J. Perrin, sworn

to May 1, 1972); character witnesses of one defendant

have died (see e.g., Bisgyer, Affidavit of Philip Vitello,

sworn to March 16, 1972). Defendants also urge that the

CA3

lack of a speedy trial has denied them an opportunity to

vindicate themselves and in the interim with the cloud of

the accusations over them they have lost jobs, been denied

promotions and have been unable to clear their names.

Because we base our decision on Rule 4, we need not

consider whether these factors would also justify dismissal

under Rule 48 of the Federal Rules of Criminal Proce-

dure. They are relevant, however, in determining whether

discretion should be exercised to permit delay beyond the

six month limit provided in Rule 5.

Rule 4 states a mandate.

“In all cases the government must be ready for

trial within six months from the date of arrest, service

of summons, detention, or the filing of a complaint or

of a formal charge upon which the defendant is to be

tried (other than a sealed indictment), whichever is

the earliest. If the government is not ready for trial

within such time, or within the periods as extended by

the district court for good cause, . . . then, upon

application of the defendant or upon motion of the

district court, after opportunity for argument, the

charge will be dismissed.”

The provisions of Rule 4 must be read with those of

Rule 5 which states:

“In computing the time within which the govern-

ment should be ready for trial under Rules 3 and 4,

the following period should be excluded ...(e) A

reasonable period of delay when the defendant is

joined for trial with a codefendant as to whom the

time for trial has not run and there is good cause for

not granting a severance.” 1

A 9 SETA NE SS ee

CA4

These are the facts: Investigation of alleged fraudu-

lent practices in the PX facilities in Europe began in 1966.

One of the alleged coconspirators Morton Penn, coopera-

ted with the government in late 1969 and testified before

the Grand Jury on February 24, 1970. The indictments

were returned the next day.

The indictments allege criminal acts in the following

years: j

Carr, 1965 and 1966; Shea, 1965 and twice in 1966;

Munns, 1965 and 1966; Bisgyer, 1965 and 1966; Roemer,

twice in 1965; Ferguson, 1965 and 1966, Carone, 1965,

1966 and 1967. Motions by defendants in early April of

1970 seeking dismissal under Rule 48 and the Sixth

Amendment were denied at that time “‘without prejudice

to be renewed at trial.” ( Unpublished Opinion filed under

70 Cr. 126, June 1, 1970, Murphy, D.J.).

On January 5, 1971, the six month rule of the Second

Circuit was promulgated and became effective July 5,

1971. Previously all these cases had been transferred and

consolidated before us by order of the Chief Judge. No

notice of readiness or other communication was received

by the court during the six months after July 5, 1971. No

application for extension of time as provided under Rule 5

was made by the United States Attorney.

On February 2, 1972, the court held an ex parte

conference with the Assistant United States Attorney

assigned to these cases in order to determine the status of

the cases. The court noted that no application for an

exception to Rule 4 has been sought and inquired why the

cases were listed as “Rule 5(e) exception” in the

“Monthly Case Report” prepared by the United States

Attorney in compliance with Rule 2 of the same Second

Circuit Rules. The court noted its obligation to rule upon

CAS

the reasonableness of any delay beyond the sixth month.

The government stated that the continued delay was

because Mintz remained a fugitive and the government

sought economies of court and government time by trying

Mintz with the other defendants. The court asked that the

government notify defendants of this reason for delay.

Complying with the court’s request, on March 10,

1972, the government addressed a letter to each defense

counsel informing him that because Mintz was a fugitive,

the government “has not moved for a certain trial date in

the anticipation that we will be able to secure Mintz’

appearance and thereby eliminate the expenses and incon-

veniences of multiple trials.”

The instant motions followed and were filed during

the latter part of March and April. Argument on the Shea

and Bisgyer motions was held at a conference on April 13,

1972. On May 10, 1972, the court directed that the

government answer all the remaining outstanding defense

contentions. The government’s papers were filed on May

17, 1972, and raised no new or different contentions or

facts, but alleged its readiness to go to trial against the

moving defendants.

In support of its argument that the delay while

seeking Mintz is reasonable, the government has stated

that Mintz is in Europe and is wanted in Germany, Spain

and Switzerland. When found, extradition is planned.

No facts have been presented to reveal how diligently or

earnestly Mintz is being sought or with what likelihood of

discovery, arrest or extradition. He was in Europe at the

time the indictments came down, was notified of them and

refused to return to the United States. Despite a search of

some two and one-half years, Mintz remains unappre-

hended and his whereabouts are apparently unknown.

PEs

CA6

An extended search for one defendant without rea-

sonable hope at any time of apprehending him offers no

justification under the rule for the delayed trial of another

defendant. To say either that the government “has never

indicated an unwillingness to go to trial” or that it is now

ready to proceed against the remaining defendants is

beside the point. It was the government that, unilaterally

and without application, listed the series of cases involving

Mintz as an exception to Rule 4. It was the government

that pressed delay in hopes that Mintz would be caught.

The government’s determination in its “Monthly Case

Report” cannot be deemed to have been accepted or

acquiesced in sub silentio by the court. To the contrary, it

is the court which raised the question as to why the cases

were listed as exceptions under the rule, and whether there

was justification for such listing. The burden is on the

government to either press for trial or demonstrate that an

exception to the six month rule has merit.

By the time the court called on the government to

justify its delay, thirteen months had passed since the

promulgation of the Rule, and seven months since its

effectiveness, without action by the government. Even

today, we have not been advised that there is any hope of

apprehending Mintz. Surely this set of facts undermines

the government’s contention that it was justified in the first

instance in unilaterally designating the case as falling

within an exception to the rule on the theory that Mintz

would soon be found and extradited.

Even if the government had formally applied for a

“reasonable period of delay” under Rule S(e), or a

continuance under 5(c), or pressed exceptional circum-

stances under 5(h), we do not believe the period could

extend beyond a very few months at most, and then only

RETA SANS: Ayr Sseg ree meeipeegi yp: FF aa a erat epee

ee

CA7

with the real likelihood that Mintz would be apprehended.

The delay here without securing Mintz’ presence demon-

strates its unreasonableness.

Nor would delaying the severance of Mintz have

achieved the economies of court time which the govern-

ment has pressed. To be sure there is the possibility that

were he convicted in one case he might cooperate with the

government in the others, but then again he might not.

Even if he were to cooperate, barring unexpected changes

in defendants’ pleas, seven separate trials would still have

to be held.

Unlike motions under Rule 48 or the Sixth Amend-

ment, where issues such as the length and reason for the

delay, prejudice the defendant and his possible waiver

must be explored, Rule 4 motions focus on the obligations

of the government recognizing, as the Supreme Court

commented in Barker v. Wingo, 407 U.S. 514, 519,

(1972), that, “. .. there is a societal interest in providing a

speedy trial which exists separate from and at times in

opposition to the interests of the accused.”

The rule cast in positive terms. The district court

must dismiss the charges unless the government success-

fully sustains its burden of demonstrating the priority of a

Rule 5 exception. As the Court of Appeals noted in its

“Statement” accompanying the Prompt Disposition Rules:

“The public interest requires disposition of crimi-

nal charges with all reasonable dispatch. The deter-

rence of crime by prompt prosecution of charges is

frustrated whenever there is a delay in the disposition

of a case which is not required for some good reason.

The general observance of law rests largely upon a

respect for the process of law enforcement. When the

STEEL TAR AT RIL LLL ETS ONS EIN ee a NO a ee

CA8

process is slowed down by repeated delays in the

disposition of charges for which there is no good

reason, public confidence is seriously eroded.”

For the reasons stated, defendants’ motions to dismiss

the indictments are granted.

It is so ordered.

Morris E. LASKER

U.S.D.J.

Dated: New York, New York

December 5th, 1972.

OR LOL RO BP oe

PR OE OS