Appendix — Parr v. United States

Supreme Court brief1956

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Text

Memorandum Opinion

(Judge T. M. Kenneriy).

(Filed. April ZS, 1955.)

. Caption Omitted

Maucotm R. Winkey,. United States Nitarney, and

- dames T. Dows, Assistant United States Attorney, of

Houston, Texas: for Plaintiff,

Evererr J. Looxey, of Austin Texas, Thomas James, of

Austin, Texas, Marvis K. Conus, of Houston, ‘Texas, and

Crype L. Wises, Ji. , of Houston, Texas: For Defendant.

April 27, 1955.

MEMORANDUM

The Defendant, ‘Gesres B. Parr, is charged’ by imdiet-

ment in this court with having made false and fraudulent

income tax returns for the years 1949, 1950 and 1951,

There have. been assigned to me tor Jdiearing four

notions in the ease. hese have béen heard under Local

District Court Rule 25, atid-are disposed of as follows:

“ee Jefendant’s Motion for Bill of Partic ‘lars filed Jan-

aru 3, 1955, under Rule 7(f) of the Federal Rules of Crim-

ised Procedtire reading as follows:

‘*(f) Bill of Particulars, The court for cause may

direct the filing of a bill of particulars. A motion

for a bill of particulars may. be made’ only within

‘ten days after arraignment or at such other time

before or after arraignment as may be prese ribed hy

rule or order, A bill of particulars may be ‘amiended

“ag any time “subject to sueli rauiditions” as 4iusticr

requires,” 2. 7 |

* (a) T think the Government". answers to Priragraphs

lol, WE and TV of Defendant's Motion for Bill of Par.

ticulars require that such paragraphs of such Motion he,

and they are denied, .

(b) Lithdnk however. that Paragraph Vo of Defendant’.

Motion for Bill of Particulars, should be ranted, hut.

only te the crtent set forth im Paragraph Voof. the “Gor

erument’s Answer te Defendant's Motion. But, if, after

‘the Government ims made the disclospres set forth j in gaid

Paragraph V of its Auswer, the Defe: dant is still unable

te properly prepare his defense, he may again be heard

in this inatter. =

» Defendani’s Motion, filed January 3, 1955, for Dis.”

covery aqnd Tuspection wider Rule 1¢ of the Federal Rules

of C remmal Pr ocedure, as follows:

“Upon motion of a defendant at any timé after the.

filine of the indictment or information, the court may

‘order the attorney for the. Government to pertiit the

defendant fo inspect and copy or photograph desig-

nated hooks, ’ papers, doeuments or tangible ebjeets,

obtained from or belonging to the defendant or

obtained from others by seizure or hy’ process,’ upon a

showing th at the items sought may be material to the

preparation of his defense aud that the rec avest is

reasonable. The order shall specify the’ time, plaee

and manner of making the inspection and of taking

the copies or photographs and may preseribe such -

terms and conditions as are just.”’

fa) Defendant moves for discovery and inspection of

all **hooks, papers, documents, transcripts and tangible.

objects’ relating ta this ‘ase and in the **nossession of

Plaintiff’. which were obtained from the Defendant or

belonged fas the Defendant or were obtained from others

hy SEIDHPe OF process, — : 2

Paragraphs I, He and TE of. the Government's Answer

areas follows: | .

Te Government does not have i in its possession any

hooks, papers, doe Wments, transeripts or tangible

objests relating ta fhe wat tity COs obtuined trom-t

detenda nt.

‘+. The Government does yot have ‘in “its Seaton

any books, Papers, docu nts, hhanseript~ of tangible

objects-relating te gle within cause belonging to th

defendanit. ’ erate

If.

The Government does snot have in its pOsvession

any transcripts relating to the within eaitsge obtained

from Others by seiznre or process.”’ tes

Defendant’s Motion is ‘denied as .te ‘the matters! ‘set

forth in Paragraphs J, IL and TIL of the Government's

~ Answer,

(hb) The. Government, in Ps eonenoke IV and V 5

Answer, further. replies to Defendant’s Motion aS oe

“TV, o é,

The Hove ernment does have in its possession certain

hooks, papers, documerits and tangible objects: relating

to the within cause, which were obtained from others

by, seizure ‘or process, | 3 «

v. |

With reference to those items ‘in Paragraph IV

above, the Government stands’ ready to permit the

Defendant and his attorneys, under proper ‘super-

Vision and ata tine and place designated by the Court

“to inkpect, eopy or photograph these hooks, aApers.

documents or tangible objects relating to the within

‘tuse provided that: =

~ {ad Defendant specifies which partic her hocks,

papers, documents or tangible objects tw wishes to

Pspect, roOpy or r photogr: aph:; and ye

“(b)) Defendant establishes that the above jitem-

“Were obtained Prom, others hy SORZHYO Or process: and

b. Defendant estiilishes that Heh items are nate

rial to the within cause: and | oe

(lj) Defenelajut establishes that sméh request thert

mide is NECESSATV to the proper prenaration ot thre

defendant ‘s defense: and

fe) Defendant establishes that such request then

made is reasonable, he

If Subparagraphs (a), (bd, Ce), fd) and ce) of Para

graph V of the Answer of the ( Government be sustained,

Rule 16 would be made noneffeetive. Defendant cannot

specify what particnlir matter.’there ix it the POSSession

of the Government until he is awarded discovery and.

inspection, ~The Government in its above quoted answer’

admits that such matter was seized from others and it

would be idle to require Defendant to prove it. Presumably

such matter is material to the’ within eanse or the Govern-

ment wonld not have seized it, Defendant cannot know

what sueh matter is until he se@s and Inspects if, and —

‘annot until then say whether it js necessary for the proper’

preparation of. his defense, or whether: his’ request is

‘reasonable. Ka a ge ae

Discovery and inspection under Rule 16 shonld he sand

is granted without the conditions ‘which ip Government.

seeks to Impose In Parner: ap] is Vand V of j s Answer, ‘

3. Defendant's Motion 7 Subpoena Duces Tecum far

Honorable Maleolin Wilks u,b nited States Atftorne We undies

Rule Fle) of the Fede ral Rules af Criminal Proce dure.

reading ws follows:

“(e}) For Produetion of Doeirnients ry Evidence and ®

Objects. A Subpoenaom: iv also cron: mand the person

; to whom it is directed to pradnee the hooks, papers,

documents or other Objects designa ited therein. The

court on metion made spromptly. may quash or modify

the ub pewgia if companies Weonpled hoes Wireasonabhde int

Opapre ssive. “Phe court mid acdireect that hotks, papers,

° — : we . : ‘ .

iloeurrerit- OP Ol peats (esponated itr The STD poen ga bie

produced betore the éourt ata time prior to the ‘tria!

OF prior to. the tite When thet are to be offered in

evidence tere pron Uke iy prrodne tion, pre rit the hooks,

ptpers, clocunents or ob peat On hort ranit thereat to be

juspectod hy the partic sand tite ir atte rhe Ta, ne

In Rowe Dairy Co..vs. United States, O41 U.S. 219,

aocase similar to this, it@is said that Rude Ve(e) is chiefly

oe) Taexpedite preparation for-the trial. Et ts also Said:

. “Rule Ei deals with documents and other materials

that are in the possession of the Government and

provides how they may be made available to the de-

fondant for his information, In the interest of orde rly

procedure in the handling of be oks, papers, documents

and objects in the enstody of the Govermuent aeeann-

lated insthe course of an iivestigation and subpoen: ved

for use before the grand jury and on the trial, it: was

provided hy Rule 16 that the court could order such

materials made available te the de fe ndant for inspee-

tion and cop¥ing or iy shotographing. [n that way, the

— control and possession of the Government’ is not

» disturbed. Rule 16 prov ides the only way the defend-

ant-can reach such material so as fo inform Himself.

But if such materials or*any part of them! are not

putin evidence by the Government, the defendant Hay

subpoena them cunder Rule W7le) and use then! hinm-

~elf. Tt wonld be <teanee indeed if the-defendant dis.

coveroed care evildoers oo by the use of Rule 16 which the

Government wae Net wore to mtrodnce and vet could

not-requipre its pradduetion | hy Rutke 12(e), There may

be documents and ether materiats in the Possession

of the Government not snb qeet to ule 16, No eooud

reason appesirs tous why they may net be reached liv

- subpoena under Rule i7ée) as long as they are évi

dentiary. That is not fo sav that the tnaterials thus

subpoenaed miust wetuayly le used im evidence. It. is

only required that a brooil-faith effort be mude to

obtain “evidence. The ¢ourt may control the use of

Rule Wie) to that-end hy its pewer to rule on THOTLIONS

to Guiash-or madity, mn

ft was not infended hy Rule-16 to vive il limited

right of discovery, and then hy Rule 17 to vive a right

of discovery in the broadest terms. Rule 17 provided

fer the nsual subpoe na oad testifieandam and’ duces

tecum, Which may be issted by the clerk, with the pro-

Vision that the court may direct the’ materials

designated in the subpoena duces tecum to be produced

at a specified time and place for inspection by the

defendant, Rule 17(e) was not intended ta provide

an additional means of dise ‘overy. [ts chief inovi-

tion Was to expedite the tri: al by providing a time and .

plice hefore trial for the inspection of the xubpoenaed

material. United States v. Marviand & Virginia Milk

Producers Assn, 9-F.R.D. 509, However, the plain

words of the Rule are’ not to be. ignored. They mast

be given their ordinary meaning to carry out the pur-

+ pose of establishing a more. liberal’ policy for the

production, inspeetion and use of materials at the

trial"? .

In view of defendant's Motion for Bill of Partienlars-

under Rule 7(b), and his Motiey for Deco under Rule.

16, T think it would be premature to. at this tne grant

fiefendant *s Motion for subpoena duce tecum. It may or

}

may not be needed in the preparzition |for. the trial. - De.

fendant’s Motion for Sub poena Duces Tee ‘um should and

will remain on the Metion Calendar ta await the outcome

of Defendant's Motions for ‘ill oof | Partienlars cand

Discevery, = , . : A

4. De fendaut’s Motion ta ¢ "hanae*the Pouca in this case

from the Corpus ¢ Tristy Division te the’ Laredo Division

. OF thie (' ourt TT r Rule CU ai of the Rites af Criminal

Procedure, reading as follows (italies mine) :

or Prejudice in the Disthiet or Division. Thi

eours Mm, motion vf thie de fendan shail transfer the

proceeding its to him to anather Aistrict or division

if the court bs satistied that there eXtsts in the district

or division where the prosecution is pe nding -so great

a prejudice against the defendirty that he gannot

Obtain a fair and impartial trial in that distriet or

division." as

(a) The Government, Opposes the Defend: ait s “Motion:

The pleadings, briefs, affidavits, exhibits, ete. filed) and

Seca forth by both parties constitute ‘a ros record,

which T have examined and Considered, .

"The cases which the Government cites,’ many of which

Defendant also cites, hive been examined. They are

helpfut. They hold) generally that a defendant im a

criminal ease has the burde nm oOf proof and minst make a

proper showing under the statute ar rules. in order. fo

obtain a change of venne*to another district or division.

Mach case cited shows:the facts in that ease and points

out why such facts do or do not authorize or require such

a change. In most of them a change of venue is denied.

They also dixcuss newspaper publicity, ete, asa ‘ground

for a change of venue. In all of thei it is held that a

change of venue is in the sound discretion of the eourt

"Shockley -v. United States, 166 P.c2d) 704 (CLA. 1949), cer.

forart denied 334 U.S. 830:.Dennis v. United States, 171 F.2d)

Oni}, certiorari granted 337 (8. 954; United States v. Mellor,

(D.C" Neb, 1946). 71 F, Supp. 53, affirmed 1%0 >/ (2d) 797, cer:

Horari Genied Sab TUS. S48: Kott v. United States, ( 5C. A. 1949)

Ths Blir2d) Ss4;: United States v. Florio: 13 -F.R. b. 296 (S8.D.

NY. WWo2); United States 2 Lattimore, 12 F. Supp. 507 (SD. |

D.C. Was): Kerston vo Pai?” States, 161° Fo (2d) 237 VPC LA

PO47). certiorari denied 331 US. Sal: United States v. Carper

vet ab. (DA DAC. 1953) 13 F-RD. 483: United States v. Moran.

(2 CLAY 1959) (199 F.(2d) 107: Shushan v. Wnited States, 3)

ClUN. P4T) V7 Food) 116; Aen ¥. Mnited States: veep e 19234 }

1 F (lds 68s; United States ve Mesaresh, X Do WD. Tenn. 1982

13 ERD: 180 mae

and must be determined on the faets of -each particutaf

case. .. ~ anes | ae .

(b) Originally Defendant's Motion. was wibinitted on

Inany affidavits ahd many hewspaper clippings from eer

tain Corpus Christi newspapers filed and offered hy De-

fendant, ank a few affidavits filed and offered by the

Government. — Later the’ Government asked and = was

rranted permission fo and has also filed and offered Hany

affidavits. , All these T have carefully studied. They, along

with other portions of the record, show the reographie

location, population, eté., of the Corpus Christi and Laredo

Divisions of the Court and of. the county and town in

which Defendant ‘resides, They also show the pxtent of

circulation ‘and places of circulation of the newspapers

mentioned. ie a

“Many different opinions, viewpoints and ideas are re-

flected by such affidavits. Apparently many of the persons *

making them are not at all familiar- with, or overlooked

the faet, that tha Court must follow the yiethod fixed and

required hy law in selecting, summoning, and empaneling

‘a jury in this ease Some of them apparently were so

uninformed about. the:law arid coust procedure that they

erroneously regarded the Motion by Defendant for a

change of venue as a reflection on the people of the Corpus

Christi Division, ete. Some took sides-for or against the

Defendant. A preponderance of the “evidence reflected

‘hy such affidavits—and 1 have no donbt on the snbject and

find—that there exists in the Corpus Christi Division of *

the Court so ¢reat a prejudice acxinst’ Defendant that he

cannot obtain a fair ed imoaetakc idl in this ease in

such division. ote ; bs ari |

Regardless of their opinions, views, Yr ideas, substan:

“nally all of the persons who made such affidavits mention

ar refer to the publication of many articles \hont Defend

ant in two newspapers published at’ Corpns Christi with

large cirentitions in the Corpus Christi Division. Defend.

ant lias brought and offered in’ evidence CHppiigs, ete, of a

vers darge qoinnber. of these articles Org publte ations, OX--

te nding Ove roa pee nied of several Vears did onedow NH, Whic!

T have studi ted. Talo net unde rake too wo inte de ‘tails about

then, they pp ak hor thegiseWes. They ard stiniply In evi

-degiee here and it is not within the province of the Court

tf either. condemn or justify them. It is sufficient to suY

‘that the Defendant tias the rein been wiven, daring reeeut

Years, much publicity, generally very unfavorable and

sometimes tnost unfavorable. Such publfeations, vene rally

With prominent headlines, ibe directly ov indirectly with

respect to Defendant or pe rsous close ‘ly associated or said

to be associated with hin, ang concern political matters,

elections, law enforcement, neatiok Sele generally and

in the town of San Diego, and in Duval County, where

Defendant resides, and in some adjoining counties, -They

‘are also-with respect to. the kiting at night of a ‘young

man at Alice, Texas, in connection wit?) which Defendant

and persons associated, or claimed, to be associated, with

Defendant are mentioned. Alo with: respect to the: sta-

tioning of Texas Rangers in Duval County, the investiga.

tion by -the Attorney General of Fexas’ and others of

. Defer dant ard associates, and the aft: airs of Duval ¢ ‘ounty

and the enforeement ef Jaw in sueh county. Also with

respect to: the Tinpeachment of wertain judici nl and other

officers thereof. Also with wespect to many lawsuits filed

on gia oan of the state“of Texas and the.1 United States and

others against Defendant and ‘or ‘those associated with:

him." Reference is, made to th a dituties for full particu

lars. These publications whether Standing Alone or when

‘considered in connection. with suey affidavits, <apport,

strengthen and confirm my view that there is so creat a

prejudice: “aeainst Defendant in «the Corpus Christi

Divisio that he cannot obtain @ fair and Hipartial trial

there in this ease, ,

(e) This brings us to’ the anestion of where this ense

should he sent for trial. T discuss the suggestions shown

in.the record, ae . | St

Oe ere

: 1)

e . a! . t

L think it is clear that Rule 21a) hereinbefore quoted

“mtist be constriied in -the leht oof the Sixth At endijent

Ip Our ederal r ‘onstiution, iis follow. (italics rilthe Jr:

tin all eriniiial prosecutions,. fhe acetsed shall

enjoy the right to va speedy and publie trial, by an

impartial Juryeot! the Stats and district where in the

CN litte Shall have hes a committed, wiiteh district shall

have beey previously ascertained by faw, and to be:

informed of the ature and cause of the UCCUSALION:

have compulsory process for Oltaining witnesses Ty

his favor, and to have the Assistance of counsel for

his defence,” |

The construction placed upon this Amendment has uni-

forinly been that unless a defendant ina criminal ease

Waves hig riqghi to be: tried In the distriet in Which thy

crime was conmnitted, the case. éannot be lawfaliv sent to

another district for triale-. Ue

-The Offerses with avhich Defendant fs charged are

alleged in the indictment to have been committed in this.

district and this case must be tried in this district wnaless.

the Defendant has. waived his right in that respect, An

examination Of the (Record anid warticularly Defendant s ’

Motion, ‘show definitely fhat he has not done so. The

holding here) ther must be, and ‘is, that. this (Court is

Without power to transfer this case touny other district,

IT think it is clear that Rake 2b ta) hereinbefore quoted,

and Rules IS and 19 of ie Pederal Rules of Criminal

Procedure, must de eorstrued towether, Rutes Ss and 14

are as follows (italics mine):

“Rule IS. District anid Division.

Except {is otherwise Permitted by statute or hy

these rules, thy Prosecution Shall hie\ had im) 4 district’

- im which the offense. wre committed, Int if the distriet

consists of two ar more divisioys the triad shall. he!

had in a division in whieh the offense) was committed,

; 1

Rule-ly Teanusfer within the D

fu ct cbistrict consisting of feo 1

arraignment may be had, a ples entered. the ty

ducted Or sentence ittpsecd, i} the de LO ni! ‘i

ino any division andoat aus tine.”

: Defendant is Gharged im the indietivent

committed such offenses tte thee, ¢ Orpiis Christy, Dy

of the Court, ands under Rules IS ane MS) trust

there auless he has, as provided in Rule 1, consented tn

trial in sdme other division. ‘

An examination of the Record and Defendant's Mot

shows definitely that im filing and presenting his Motio

under Rule 21(2) he has cofise nted, as is bis right, to a

trial aidy inthe Laredo Division. In fact. Defendant a

in his brief, “We wish to be Clearly understo&d that

the case is sot to be transferred to Laredo we prefer that

it remain in 4" orpus Christi.’’

It ix, therefore, under the Jaw not- within the power of

the Court to transfer the ease to either the Huston. |

Galveston, Victoria or Brownsville Division. bat GUN: to

the: Laredo Division.- .

Because of this view of the law T do noi deem 2 yeces

sury to decide, pil because the ‘nformatien in the Record

“as to conditions in the Houston, Galveston, Vietorin ared

Brownsville Divisions is very meager, - do not deem it

proper te dee ide the questions raised as to tices divisions,

= The Government raises another question,

As Lunderstand the Government's presentation of these

miatters it didi not, wher the case Was first submitted, clad;

that it could not obtain a fair and mnpartio’ trial at, the

Laredo Division, ner does it do so now. Tt saves ii its

drief filed (italies’ mine ),:

- ’

‘That the Government would-be under A ostreri

haw cap iN Prasecuti nts ttiis defendant tn the Liredo

Division.

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,* : ' ’ ’ ' ’ ae pry ' ’ thi tu |

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i ye of » preeit a | count Tlie states of Ohne Penarrel

.. % > pet , e everbeediticetms ity ? bie - Thous@on, Crulveston,

\i Feet : etal Brownsville Divisions.

Bat [ave studied the brie ind caflidavit. of both thy

fioverticent aud Deefendant wioa respect to Couditions it

sie Learette Division. The Government's ‘albdavits shew

tinal eertain conditions ; are heliewead to GNIst. Defendant‘.

atidavit® show that it ~ belie ae that they do neat @NIST.

No overt acts are alle aa ~ shown, Apparently there |

eXists a political eaiieesety! of lone standing at Laredo,

- teted TATE, OP satrie of those making the ifticlan its for thio:

° : :

Cyiave rhimenty< se any or some of those making then for

the Defetalant are in diferent politieat camps or hold

ravdioally eee proditiccsal Views. The two vroups, ar

soreoof Them. seen: ta new see Gach othty ‘through a eli iss.

darkly’, : toh be <nid) freettons Iv that they seem to

erg@uder “mere heat than light" ; Basing my tindings,

us | omust, wlvally on all the affidavits T do mot think that

the peur shows that the (Foverument either will ar’

tht **he under “aosevege handteap in the proscention ~s

oP Tht TI ne othe thts the CONMTITY.

we) Mv cenebasion is tha; tye Motion of the Defondsiny

its trade shonild Tp wrenited gne the vente of the case

shinuled be phone trom the (Corpus (“yristi Division tao

the Laredo Division.

° .

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Geel Opinion

Tuk Cons r: | think v eit dispose Ob the rater r without

hearing ? further trom the Government,

\s a retired Judge, D receive guy work in this district

from ov brethren, the other Judges. and I received a

request from Judge Allved to hear these four motions that

are disposed of by the opinion filed,

In the motion forchange of venue. | found an. clormeus

record, I think there Were ES than one hun, reel afi.

alavits, ariel cortaln ly rove thin a hundred frailty, heemise

ere Were some fled after the reaored eae to me, There

Were very satisfactary briefs; and - there were several

*, hundred —1 didn’t count them. and there mav dave heen

five or six hundred—-clippings from two dai! y papers in

Corpus Christi, .

‘ ;

— Albof these J eonade ‘red as carefully as fF Krew how to

consider them, ind found rmivseif settled on one apinion

about whether the @ase should be tried in’ the Corpus:

Christi Division. «J an dowbrfab that any Judge in this

distriet., or any other district, reviewing thes reeord aa

.-_. did, see di ave Seapets’ any other wepacteviseso and that is

Tht?

Serer in ornis Cristi, oe thievt ieee motion. for

ehanore af Yenie shontd hae wranted,

Iu reaching that conefysion, or rather ip exmmiining the

record, | reaehed this further conelusien, that] grravedy

doubted whether in the administration of justice gen

erally, the case should be tried ite this distriet at all. 2%

reachod that conedusion, not as havering eithe r the Craver

tment or fhe defendant, bist more Prom the standpoint ofa

yudwe who is charggad with the aeivinisteation of justice

in the district, ,

"Bat awhen i came to exaniue the daw, b found that [was

Without power to transfer the ease outside of the Southern

District of Texas. As you atl know, we have in the state

courts dof Texas oe practice by whieh the judwe Sometinies

of tis own motion sends.a case here, there and-celsewhere,

There is no sath provision, in the federal statutes, and ]

found, as Tounderstand-the kaw, that Thad no authority

to transfer the vase ont of the Southern Distriet of Texas.

If Lo dined had “that authority { would hive sent it te

Amarillo, or Sherman; on Toxarkana, or some of those

plaees as far removed from the sc@te of. the troubles as

1 could, ~ Lecould findy Lo would have done that: not,

as Tsay, to f ivor either the defendant of the Government,

heeause I feel that justice in the ease would be west admiin-

iste red hy tr ansferring the ease Yo one of those places,

Sut as stated, I could not do that as EF wyderstand the

“

law, wos - 3

Il then discovered that’ }-could not transfer the ease te

any ather division of ‘the district except Laredo, You

gentlemen who were an the ease will understand or are

familiar With the reason® that Leave in the opinion, whieh

is conenrred in by Jude Atlred, and DP think We are correct

ith that, that ison the haw, that at was rant de wail, mot within

the power of the Court, ti transfer the cise fo any plac

except to. Laredo, so the case was transferrey4 tiers

NOW WE Cote Tr this matin tee Gavernent ter-edte

NHISS thie ease because of the aet that THON dnediety ent

covering the same matter has been presented Inthe

"Western Distriet, and the Anetin Division of » Western .

District, mm 3 am asked hw the Covernmnent.,to dismiss

this ease 1y)

this distriet. Tender the rule- Whats if, 46?

ey,

. ‘ ce % :

Mr. Looney: 48-\, Your Heaoner,- “ ;

The Gur: . is oY eVide ntiv there Is SOTO diseretion

, ; ; . ie ee —

rrr the ¢ ourt as to the taatter of whether the CHse shouid

er Should Hot, be distuissed,

In hWwenty four vears on the Beneh in this district, | do

“not recall ever having at any tine hesituted to dismiss it

care when requested by the Govertiment, That was of

course under the old law, and under the. present rujes. Tf

Thave i diseretion under the rnles now as to whether. this:

ease should or should not. be disinissed, Pomust exercise,

that diseretion aa allow it te be disnrissed, because T do

not think that the defenedant. either . in the hearing this

morniig or in this enormous record on the question of

change of vennes has shown auy reasons why. the case

showld not The dismissed,

In dging thit I in ainine as vou want me to assume,

that the Court in Austin has Jurisdiction of the ease.. (1)

threat pain. of course, T da not decide it does or does not,

Whether it tas-jurisdietion or does not have jurisdiction.

[oam going toe dismiss this CUsSe as requested ny the

frovernmeont, ,

2. . . * . . . . * .

Ho . “3 :

IN THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Georse B. Piss. Appellant,

versus

Usrrep Srates ov. America, Appellee,

Appe al from the United States Distrief Court for the’

- Southern District of Teras,

Saath

(July 22, 1955.)

—

On Motion of Appellee to Dismtiss the Appeal and on Motion

for Leave to File Petition for Writs of Mandamus and

.Prohibition.

eat

Before Hurenesos, Chief Judge, Catierox, Cireuit Judge,

and Daw KINS, District Jude,

lercuesos, Chief 3u dye: This appeal is from an order

dismilssing, on motion of ‘the United-States, an indictment

n, three counts returned against ue defendant belew, ap-

pellant here, in the we ms Christi Division of the South-

ern Diiin et of Toxnss and thareite tie wdthin such divi _

sien and district WW ‘th prepartny and causing te be pre-

pared false and fraudulent income tax returns ‘for the

vears 1960, 1)1, and 152. and filing them with the Col-

lector of Internal Revenue for the First Internal Revenue

Collection Districts of Tex: cis, by deposyt ing and eausing

them to be deposited at the Corpus Christ? Division Office.

afm -

. li

: (iivinyg notice of appeal tren the order, defendant is there

attacking it as erroneous and seeking its reversal,

, i ~~ ee

“The Lonited States, proceeding under Rate Scas, Fed

eral Rules of ere Procedure, Is ULS.CLA., ‘Super

Vision of Appeal} \ppeliate Court’) lias filed a motion

lo. dismiss the auppe oe on three grounds. and the rhatter is

before us on the motion to disinuiss. oe

Supporting its motion by brief and-argument and the

citation of many huthorities.” the United States urges:

upon us that the only kind of arder having the requisite

finality to support an appeal in a criminal ease is one in

posing i sentence and leaving nothing to be Gone but: te

enforce hy execution What has heen determined, and that

the order in question deternined nothing as to defendant's

euilt or imnocetes,— So urging, Tt tasists: that, whatever

“may be the merits of.aAppellant’s contentions as to the COr-

reciness ar incorrectness of the judve’s action in entering

the order, those. contentions are not, they cannot be, for

decision here: and that, since the distnissal of th e indict-

menf determined nothing except that it word be-no longer

prosecuted, the determination by as of defendant's con.

tentions must await the entry of, and the appeal from, a:

final judgment.

On his-part. the appellant, realizine that’ an ordinary

~distnissal on the motion of the United States of a pending

TCP. Semel vo United States, 158 Feo) 2000 -

° These are: {] \ that the orde pr ot disrnissal | mot ay) walable

heeanse net a final deeision ina criminal cHse within the meanme —

of 28 US.C., See. Neves BS because, as the record shows. the

| defendant 3 as Tw en PT RP ay tHe Western pistriet-of-Pexas ans

itis the intention of the government to prasee ate that indietmert

toa final decision there: and (3) hecause tite appeal is frivolous

ad obviously without mer itvand is taken for the purpose of del TAY

* Particularly Bermaiy v. ULS.. 302 US. 211; Cobbledick vo US.

909 tS. 393. i s+ Swidler, 207 FA?) 47. Lewis v. US... 216

S:-611; Heike v. US. 217 U.S, 423; MeLish vo Roff. 141 US. #

661: Ex parte Altman, 34 Ped. Supp. 1065 and U.S. vs. John

Doe, 101 Ped) Supp. 609, °

indictment is not a final Judgment from Witch an appeals

Will die, is here insisting that the order appealed frou is

not such an order, and this ity a te ~ not stich an appeat.

‘So insisting, he thus states his case

‘It is the position of the necused that aly the dis:,

Hilssal Was filed suring the trial without his consent,

contrary to the provisions of Rule ‘4S(a) Rules of

(ritminal P rocedure, and ¢2) the order transterriie

the case front the Corpus Christ} Division to the

Laredo Division, sha ‘rn District of Texas, pursuant

to Rule 21(a) R.C.P.. was res judicata of verne and

effective lv lodged oe Jurisdictionsof the offenses

charged by the indietment -acninst accused in the

Laredo Division, Southern District of Texas. For

these and. other reasons st: ated below, the accused

urges that the judgement of dismissak filed M: ay 20,

1955, from which this appeal is prosecuted is an erro.

neous final decision of the Distriet Court of tne United

States for the Southern District of Texas; Laredo

Division, .witaln the meaning of 28 1.8.01, Section

Lb 5) ae See

In. support of his pesition, as thus stated, appellant cites.

“no federal decisions there is mone, holding. that an order

dismissing an tndictment is appealable, pone supporting

his clajm that under federal Jurisprudence the order in

this case was a_final and. appealable order. Itixtead le

elites cases dealing with non Bass entered in civid eases .

sueh as @ubar Lumber Co. \ . Eckhart (5 Cir.) 247° Fed.

284; Mass. F. dM. fus.C'ol ve SY Te ee Bod, (2) 1h:

Ch. Marks ‘v. Feist, Ine..’8 Fed. (2) 460: Ruff ve Gay, 67

(2) 684; Weeks vo FL. &.C. Co. 18 P(2) S08: and

Vanghan ve City Bank th Trust Co,, 218 (2) so, |

He further urges that the ofde ‘ry entered on de fomdant’ s

motion, try itisfe rring the case from the ¢ oOrpus | ‘hristi. to

the Laredo Division for trial was ‘res hadioata is ta thre

Jurisdiction and venne of the prosecution of the defendant

ame

for the identical offense charged in the indictiient. int this

Case; that the court, therefore, wos Without! aurherity to

distuiss the case under Rule dsca) Pederal Rules of Crit

inal Procedure, IS ULS.CL: that under the cireniistanee-

the only order of distnissal aithorized is With prejudice

forever terminating the proseculion or defendant Sor the -

offense charged: and that thus tie order séuelt to be

appealed’ from is invested with finality. ° He, however,

cites no federal cases ti support of this views fnustead he

so rehles entirely upon decisions of state courts controlled by

particular statutes or partic lar principles or theortes of

Jurisprudence. Basie among tnem is the case of Coleman

v. State, 35 So. 937! 2 Mississippi’ ees holding that.

“wudera statute ee W ding in effect that where an offense

is committed i Cone or more counties that county wher:

the offense was commenced, prosecuted or consummated.

where prosecation . shat he first he Aan, shall have & xclusive

Jurisdiction of thee; ause, the state could not. after hiaying

— begun the prosecution in one county, dismiss the indict

- ment and file it in another county. Hecalso cites several

evil cases from Texas, one of them Jiolding that under

certain conditions —interloe ‘tory orders, ‘though not

appeatable for want: of finality, may be complained of on

amaippeal from a final judgement in the eause, Coke y.

Pottor®s, 140 SW2) 586, and others that. under Pex

Rules of Civil P rocedure expressiy so providing, appeals

will lie. trem certain inte rloe ‘utery orders, |

As his final position, appellant, disputing appellee's

¢talin thal the appeal is frivolous, asserts that his claim:

OF prejudice Prog the’ distiissal order is meritorious in

that if the orders ‘transferring the caiise ‘to the Laredo

Division and thre distnissing the indictment, diel not eon

litute former jeopardy so as te prevent further prose

* cution, the order: of travster was'a holdine that he eanld

he proseented only tn that division and in legal effeet

prevents his being proseeuted in the Western District of

*Texas, or anyyhes ee xcept in the Laredo Division of the :

“? Souther rh District. ; :

luterpre tig these tontent io! is and arguments ino tertis

of deval theory, Liev Lee into be: that When, efter lenyethiy

Tiearings, Judee Ke niterly ry hie defendant} motion to

Transfer the case. to TLaredo, fis ruling was a final and

irrevocable ad judicati in that jurisdiction af the offense of

defrauding the revenee was therelys enchtisively vested

in the Laredo Division of the Southern Disthiet of Texas:

that it created in the defendaut® a vested right to lie tried

there, and there alone; and that, wheu the wovernment

presented the facts to a rand jury ane obtained aa ane”

dictwent in the Western District of Texas, and then. as

appellant claims, erroneously procured a dismissal of

the indictment earlier obtained in the Southern District, it

in effeet induced the court to enter an order depriving

defendant of thaf right, and thus the order appealed from

‘was invested With finality and was and beenme a final

judgment.” Thus, as it seems to us, presenting his posi-

tion at once on the motion to dismiss and on the merits

of the appeal and analogizing the dismissal of the indict-

ment over his objection to a non suit in a eivil case over

the Objection and to the prejudice of the defendant, -the-

defendant argues quite contradictorily: (1) that this de-

privation furnishes the element which at once invests

the order with’ finality sufficient to make it appealable and

requires its reversal; and (2) that if it stands unreversed,

it has the effect of entitling him to an eet altogether,

We puss. without consideration or discussion of them.

‘appellant's views on = merits, because, unless the order

is final and we think it is hot, the merits are not before

. to take up and ieee of the only qatter qow. before

bee

is, the fituaility vel ton of the order Jiere sought tes

appealed from. ey

We think it clear that none of défindant'’s claims that

it is final are well taken as bearjle upon the Gnalitv. of

} } iu

the order -fur ‘the eee a! hae Ali that occurred

in’ this case and the sole purport and effect of the order

sought to he operated: from 14 stmiply that fhe United

“

os .

States hiix elected to disecnttuane, ane Iga Hiscontinned: Tiie

prosecution of the ineictinent returned in the Southern

District of Texas, and that the ordet sought to be ape

peated from is. the vetore mot finad but discretionary nd

Hiterloeutory and net appealable Seu Oe wifed States,

Pos ki ~) od, ald authoritiv ~ cited in note i supra, These,

though not oon mdf fours on their facts, do vive Insieh:

into: the problen: of “thnality’ : presented here, They, to-

vether with Swift, 389 U.S. 684 and Cohen, 337 U.S. 541,

indieate the” veneral. and consistent approach that an

order is ‘final’? only if it terminates the matter In con

troversy: below. When a seemingly interlocutery. order

has been held appealable, it has beenson the theory, that

irreparable injury. Will result from dismissal .Of the an.

peal or that the particular narrow. issue with whieh the

order was eoneerned is wholly’ separable from the re-

mainder of the ei mse and the order te ruinates the separable

issue, ;

The matter witt in controversy by the distissed indiet-

jnent was the defemdant's guilt of the crime of tax evasion

charged in it. That issue was never reached for deter-

“unin: ition, Te ‘tealone determined, and winder the controlling.

authorities cited, supra, the uppeal iiust, therefore, he,

and it ts here ly DISMISSE p for want of finn lity in the order

appealed from, - 4"

From these views that the order appealed from, was net

a final order and@the eourt 3s withéut jurisdiction of this

appeal ta be followed by an order dizmitsinge it, com

pletely inconsistent us thev are with the theary of pro

teeting sed preserving yhis courts Jurisdiction, on owhtely

appellant’s motion was fited Tn this’ennse. it follows. that

the motion for leave togfile petition for writs of manana

andl prohibiting must he. and itis, pextep,

Cameron, Crreuat Judge. £ dissent: .

(‘emenon, Crrenit. Judge, dissenting:

In its opinion granting’, motion of appellant Parr te

change the venue of the first indictment from the. Corps °

Christi Division, where it) was brought, to the Laredo

i *

Divisionof the Southern Distriet of Texas, the Dest rick.

Court said in part:

ss © #

substantially all of the persous who made

such affidavits mention of refer to the publication of

many articles. about defendant in two news papers

published at C orpus Christi with large cireulations in

the Corpus Christi Division. Defendant has brought

and offe red invevidence clippings, ete, of a very large

uamnber of these articleSsor publications, extetiding

over a “period of seve ‘ral Vears and on céwn, whieh |

“have ‘studied. * *-* [Later the Court estin sated the

number as betwoen five and six hundred.| ft is suffi:

cient fo say that the defendant has therein been given,

during reeent vears, mueh publicity, unfavorable and -

sometimes most unfavorable. Sueh’ pab lieations, ren- -

eraliy with prominent headlines, are directly or indi-

rectly with respeet to defendant * * * and coneern

political matters, elections, law enforcement, taxation,

ete, generally and in the town of San Diego and. in

Duval County, where defendant: resides, and in some

adjoining counties. They are also with respect to the

killing at night of a young min at Alice, Texas, in.

connection with which defendant and persons asse-

ciated * * * are mentioned. Also with respect to the

stationing of Texas Rangers in Duval County, the

Investigation hy the Attorney General of Texas * * *,

Afso- with respect to the impeachment of” certain

judicial and ether officers thereof. Alsa with respect

to many lawsnits filed on behalf of the State of Texas

and the United States against defendants eat oe

. ~*

These publications whether standing alone — or

When considered in connection with sach affidavits, .

support, strengthen and eonfirn tiv vew that there is

so-great a prejudice against defendant in the Corpus

Christi Division that he cannot obtain a fair and im-

partial trial there in this case.”

It was in a-jurisdiction pervadtd by that atmosphere _

that the Government initiated this prosecution. — Ty sO

doing, ‘the Government's attorney assertod that a. prece--

dent, observed for twenty years, of bringing sach prese-

cutions at Austin, was broken, "Having the right to prose-

cute at severdl other points, it “chose as the battleground

upon which appellant's “Liberty would be deeided a com.

munity in which the Government would have had all of the

advantage and the appellant? would have had a hard uplgll

fight. .

When the motion for: change of vente was made the

Government opposed the change and offered many affi-

davits in opposition to it. After an extended hearing in

Which the parties filed elaborate Written briefs, the Dix.

trict Jndge eraiited a change of venne based ipon the

conditions found by it to exist where the proseeution was

brought.

In commenting upon the transfer to the Laredo Division

the District Court mentioned that the Government ‘did

not, when the case was first submitted, elaim that it could

hot-obtain a feir-and iyipartial trial at- the Laredo Divi>

sion, wor does it do so now, If,says in its brief * * * “thay

the Government would be under a severe handieap in

prosecuting this defendant in the Laredo Division’ * The

. District Conrt then proceeded ‘to deseribe certain political

controversies Hs ONisting in tte Laredo Dis iston, sppeilant

The matter is before as ape sine from orde dismissing the

first indictment and also ‘on Petition for Mandamus and Prohibi.

tien and Motion to file same, Parr wal he referred te’ in ever,

instance only as appellant, - ,

. :

being in one. political camp and some of the proseenting

Witnesses being in the other, Having considered the show

ng fully, the’ Distriet. Court concluded ‘tT do not think

that the evidence shows that the Government either. will

or might be ander a severe hatidicap in the prosecution

of this case as claimed. 1 find to*the contrar aed The care-

fully drawn opinion was written by retired District Judge .

Kennerly and concurred.in by active Judge Allred.

That lor ete was filed April 28, , 1995 and five days later,

May ord, the United States i eacace called the District

Judge over long distance telephone advising that the Gov-

ernment desired to disiniss the first imadictment hecause a@-

new indictment had been returned in the Western District

of Texas. He stated to the judge that he did not believe

that the defendant could be heard on the miitter under

Ride 48. The ‘treeular District Judye ruled otherwise,

however, and set the motion ty dismiss for hearing before

Jucige KKennerly.

The motion to dismiss the first indietment was ‘filed

May 4, 1955 and. with it way filed a copy of the new indict-

mInent returned in the Western District invelving the same

facts.. With it also was filed a written statement ‘of

reasons for the dismissal. The chief reason given was that

the Governnent had chosen to-present the new indictment

in the Western’ Distriet and that it had a right so to do,

adding that new, factors had been introduced in the sitn-

ation: ** Among’the recent factors weighing in the overail

appraisal of where prosecution shouldbe had should’ be

‘mentioned the recent décision of -the-court to i.ansfer

venne from Corpus Christi to Laredo in the Southern Dis-

‘trict Of Texas. *This means that trial wilh be had in a

division in which néither the, taxpayer lives nor the Gov-

ernment chose originally to bring: prosecution, and thus

establishes a set of cirenmstances which was never in the

contemplation of Government counsel at the time >the

original prosee ution was brought in the Southern District

of “Texas.” ih , ;

éaf,

- wt)

The Dis trict Court for the Southery In: tr 1 condnueted

an extensive he ‘aring on the Government’ 4 ABT: to dis-

miss the first indictnie ‘ul in which it heahed an extended

statement by the Croviernent counsel and a\like statement

X by one of appellant's counsel, and the Governinent coun

‘gol Was subjected to a short eNainination ii\ Appellant's

counsel, 7 = AN

From the statenient | of Government counsel’ and the

testimony viven by him, the chief articulated reason tor

the imotion to dismiss the Corpus Christi indietment was

that the Government did not? feel that the witnesses for

the Governnient would stand up as well in the Laredo

Division as they would elsewhere, In his testimony, the

attorney adverted to the fact that it was easier to make

proof of venue tathe Austin Division (Western Disérict),

but his answers, on the whole, failed to sustain that con-

tentic n. Here isiay answer given by- the attorney which

may be taken as epitomizing the underlying reason for

the Government’s opposition to trving the case” im the

Laredo Division ; / . |

ce ie very raet that the case in the Southern

District has how been transte en to Laredo and the

-fact that testimony will. have ‘he ehieited) from: 4

Witnesses whosare either cuir or hostile ntake

throws a different Hecht on thy Gove rhment. shiek

venue, as it.does on the Goverumnent's proof of other

‘aspects of the case, I point out to vou in that py rds

that Mr. Be ‘nson here, who was in the eiiploy of Mr.

Parr ane signed the tax retorns, was itt iiptoves of

Mr. Parr and he-has lived down in. that- ares Not

eoing further into the ease, but the change in the loen:

tier affects the proof as fo wenue as it does: the

other facts ot the Government’s Case, * ;

AS far as the basic. fuet. ares we hefieve ther te

thel the same: as far as the practical prablen of

Drool ith ot lawstilt, the seene has been altered, the

‘«

this

the

merely exerting that rights

o ty

‘ *

situ: Hon has veen altered coysiderably by the shifting

of the case from © orpus ‘hristi to Laredo,’

t another “port in His testiyony” Government counse!

summarized the attitude that the Governme ‘ut had

‘plain right to shift the seene of the trial aud’ Wits

“T think it has been very clear fren: Several docu.

ments we have filed that we would have prefe rred the

ease te remain in Corpus ¢ ‘hristi, and it is ce riainly

clear with the ‘uction of the Attorney General and

myself that: the Attoriey General preters that the

cause go té Austin,. and believes, in the exere ise of his

‘odice ax the chiet prosecutor, it ought to be prosecuted

there in Austin. ear

The Judge. for the Southe rn District made it elear in ‘hiss

brief opinion What influe aicedTiim to wrant the notion to

dismi

USS 5 YB

‘‘Now we Come 16 this motion bv the Gove rhinent to

distniss the case because of the fact that a new indiet-

ment covering the same matter bas been presented i

the’ Western -Distriet * "+" Le vide “tly there is seme

discretion in the Court as to the matter. of whether

the case should or should sjot: be disritssed., .

_ ‘Tn twenty-four years on the bench in this district,

Podlo met reead] ever having at AMV time hesitated

disintiss th hbehtat’ Whiem reqaestod hy thie (Feverument:

That, was, of courses under the old law, and ander

the pure sent rirles, “yy fo have oa isceretion thder the

rites now as ta whether this

he, distnissedys TPounist exercise that. disey Thom asta

allow if to be dismiisked, because | da-tet think that

the defendant, either int thie hess ihiu this TRECDT TRE T Er ane

Hi this enormous record on the qiestion of change of

haut the transcript mits the word nat art tix

tiett } rite rt} iff i vA ; } ‘ = F

. -

aol :

Venue, has shown ane pens WHEY Lb) emse <fiotiid

net be disthissed * *:* | ai rong toalismiiss this case

ais requested bw thie Croverninent. *

’ .

Appellint prosecuted ary pet! Proer fhe judgment en

tered dismissing the former indietmenut. umd briefs: brave

been. filed and that case stands on our docker for decision

in due ceougse,

Thereafter, ory. May 31, 1955 the Govern, ent called up

criminal case 3866 in the Austin Division of the We stern

District of Texas, thie new indic tient, and age ita fikenl

4 motion to stay procecdimys thefein until the pepe!

could be disposed of. That motion Was overruled and

appellant filed a motion to transfer the second indictment’

te the Laredo Division. of the Southern Distriet for triat.

W estern District of .Texas therenpon set the new. indict.

ment for trial Jrily 18,1955. framiethatedy the ‘éafter ap.

pellant filed in this Court a Petition tor’ Maudamus and

Prohibition together with motion for leave to file the

Stun, and the Government bias filed. its Opposition thereto.

nlovge witha motion to distniss the appeal,

a eee | 3

« aie ;

[ think leave should be eranted that the Petition for

Mandarius spd Prohibition he filed and that faty orcas

should be entered at least holding these ‘COM pLEN pro

*eoodinios in sfadus quo Wntil the Appeal may be heard ja’

- ad . . , .

due eourse, and the proctedi tips Cut be CHITiE Ob leo an

orides lv fiir pres rvilw lhe ricl ts oft thie tye] T he ant ‘1! vd

the Government alike. Mie ajoritv holds that the ap

peeelleant Is entitled to neo riglie! vat all, toed ehietty (Pp eeoni

thie wreoinel tht if is conecived that epepoeesi | Tiny — et thee

tracers the podade r this ifssine nay Mest brdietorient. ] think

: ' : ;

that 1 ijopee idiat Tht thst oheeley besesetits fe serps.

typibees cide i hide ry ft Peeert eeeminiash~ apt Tiye Supreme Conet

in Swett, ete, Co, v. Compania, Me, 320-°ES BS. and

° Cutie y .. be 7 fk ‘ht fe, F sake | oN 54} “ind fell decision

Pomlinson Vo Podler, 220 F.2d OOS, there icy probability

Shigit cupeypes al does’ te Prony thus order, But | see no reason

te UC lebe 1h): ~ lle stron How, The Gove Thitmeeny hats olfe red

Ho eXphination at all for its great haste in bringing its

midtetment returned in’ May to trialat ones, The eVelits

formuny the basis af the prosecution wecurred between.

four ane ix Years ages There is no reason Why the apyper

should not — heard in die course by this court, having the

benefit af oval. argument of comnsel ane leisurely sty ady of

the briefs.

‘ Til.

But we have ample power to deal fully with this situ.

fition even if that orton | is not appeak able and there i ix pre.

. che precedent for such alcourse. En Atlantic Coast Line

RRL Coley. Bests we sustained: Mandamus and Uro-

hibition as proper means for arresting proceedings in

order that justice might be done with- respect to a uen-

tippealable order, We gave as vereasan (Tso b2td 758)

for aHowing the extrao: ‘inary writ that the sitnation was

of such a-nature as ‘renders the likelthood. of any fair and

effective correction of the action of the Court by subse-

rp nt apy weal <cigiag * highly linprebable, if not Impossible’

‘iting cases] The same is trie here as regards the prob.

nh lity of correcting, after possible conviction on the second

indictment, any error which aay have been made in per

‘mitting dismissal of the first indictment. And we noted

further that the allowance of the writ was in ‘ald and

maintenarce and protection of this Court’s appellate juris.

diction.’ A Distriet Court in Florida had entered an order

nnder 28 TLS.CLAL 1404 (a) transferring a eivil action to

another r district for trials, Appeal did not lie from that

=i . ;

: » o

7S Cir, P90, tb Pod Tae. Petition for leave to file mandamus,

ety stepped Hy Sup. €¢. 340 Us U4], and the ceases elted: and see

28 USCA: W51fa) and me additional cases collected In. the

artic de cited in Nore 6 infra.

order! Ne Vertheloss Wwe obiowee Petitio Tory Marndiay

® « » ‘ . } . ‘ ' ’ z na ‘

tute bProlibition to tee thea and areds red thy Distrret Cony

to vacate the transter ore ‘ined te procced= with this trig]

. t . : . ‘ e .

@?-the case. If the facts JUstiiyv it, We ean grant fall and

appropriate relief. here

| think the faets dlo justify it. S would nat state Mi

reasons for dissecit it | dic not feel thieat this recaora pre

sents a iniportant question of precedure whose pratec:

Von appellant is entitled to inveke and> whose deffnition:

tlie beneh and bar are entitled to have. It is the duty of

the courts to held the /senkps -of Justice in eqnal balance

hetween the Governmesit and a citizen charged with erime

In exactly the same imatner as those seales are held ‘in

litigation ‘hetwen two private individuals,

An tnstinetiye feeling of doubt ates whether ‘these

° < . . \ a

proceedings would be attended with he same results if

they were between two private litigants, Suppose private

litigant A had sued private litieant B img civil action

ami had chosen to lay the venne in® the Corpus ‘Christ:

‘Division. RB oeame alone and filed a motionw io transfer

to the Laredo Division vader 28 US.CLA. 1404(a). After

amextendéd hearing and over the opposition of Ayan order

Was entered transferring the case to the Laredo Division.

Without waiting for a week te pass, Htigant A sought out

another fortimn- and there served the. same complaint On:

litigant B proceeding hack >to the eriginal jurisdiction.

with the request that. the original avi] action he disiissed

solely on the eronnd that A did hot feel that his witnesses

would stand nyoas well in the jurisdi¢tion to which the

transfer had been made. Tt is not hard ta Visuilize the

effectiveness with Whieh egnusel could deelaimy that the

Cromer etal vo duPont. ef dil, eC ir. 1952. 196 Joa 40s,

aye rOHRSE the ease here is stroneer for appeliant, The trans

fer here was from oa point Where ‘prejudices palpably existed in

favor of one Utivant ta a point where Prejudices did not exist for

3 . ss ..%

or against either litigang

Processes wt hore Courts Wrpe beevgegr triflad Will) lo hares.

litigant‘ B

With respect to civil litigation? it: has been said that,

prior, to the passe OF 28 U.S.C A.-1404(a). venue was

the “prive prerogative of plaintiffs’ | Tr awas pointed

out that this Act of Congress had transferred some of thar

prerogative to the defendant and a large portion Of that

prerogative to the. court. to be used by the court in de-

éiding «questions of Kenue’ on the basis of fairness te

both parties. It was Marther pointegr ont that the courts

have almast universally exercised that prerogative’ to sce

to it Mat the. rights of hoth jhe parties are protected with

out advant: age to either

Does not Rule 48(a) have a slinilar effect with respect

to criminal prosecutions? Are ae to assume, as the court

below manifestly assumed, that venue’ is still the pfime

prerowative of prosecutors to be used in a ead

this ene to gain an advantage for the Crovernment or to

escape from a position of less advantage in which the

Government found itself as the result of its own election?

1 do not think sf Prior ‘to the alloption of the new

rule, the Seis nae had had a free hand and had used it

fretly. The court’ below: ~ wed it its opinion that. in

more than twenty vears’ it had never~re ‘fused the Gay.

ernment in its request. =f Gismissal and it is rasonably’

cle; ar that this unbroken practice was decisive in its mind?

*** Foruin Non Convenions and 28 U.S.C.A. 1404(a)°*,.23 Miss

Law Journal p. 1 (December, 1991 a

' Besides inlieating its feeling: that the Government stil! had.

under Ruie 4s, practically an absolute right to dismiss, the Court

- indicated further that. in the. hearing of such a motion the de-

fendant had the barden of proving that the indictment Slrondd mot.

be “dismisséd. Both assumptions repvesent auscopeeptions. of the

law. The Gove rument, seeking affirmative action. chy tht Cours

encrind the burden of showing that there Was some valid jegal

feason for the, dismissal. ,

s .

. , s ,

F 3 P Z oo ’ ;

it that s oti thie bidgW, Tlie PSteeoN CAT PeaEL ore this Rrptes tat

’ i \ “ei s

: Pit Thea i Pacha ite cet) mrips alti Careers iy? Coptpr? heftors

‘ : ; 4 . ee ; ’ : & : f

atti bhiediet rent coulda be tListhitsseah worried tas Mieetaltigrless

: .

' ° a : .

and With Petit donna: rhe iH itetters] es Por the Claris

IN procedure was that th swpretie Court with Coneres

song! approval, was doing with respect to criminal pros

entions, what Conueress had done with: respect’ to ei)

welons: it was taking the choiee of venue out of the Whi

fottered Shand. ay he litiznants and giving t-te the meses

to be evereised iweesy Way which wonld insure justibe and

eqnal treatment to atl parties,”

If threat Wipe the Puerpase and if thieat in: thy ' leaning at

the ryt, then thie Pye j< Opeys clout Whether ¢ that “pUTpase

“The Notes of the Aalya ;

contain this comment

adi

—-

i. eo » pp whTes

Phe tiest sentence .of this rute will change aXistinge law

ye COMMON haw rule that the public Prosecutor IAN enter

Holle proseaui in las Hiseretion., without any aetion by thi

court, prevails an the Federal Courts: * * « This Provision will

Permit the filme of a onodle Prosedai only by leave of court

This is similar to Hie rule now prevailing im man states

* 6 @°*: E ‘ 5

The Advisory Committee bad recommendes} that ‘the right te

Uist iss be left with Government Atorness with the requirement

that writter reasons he wiven. Phat the Supreme Conrt CREEP eT

that recommendation and inserted whe regnirement for eourt aay)

roca poten |

Even before the passage of this rile oone Distriet Court had

Held that the Court had athe power, in the exercise of a judicial

disere abn, to refuse A resnested dismissal US) y Krakywivz, nde

Ciriee, 1343, 92 F Rupp aa oe A d/ 2

* Few casee are opted hy counsel and they are not yf much help.

Two federal cases are brought te our attention. Uytited States 4

Haupt, pe A. BC. Pav ee | til, and Uni ited Stafes v. Tones, ;

Maska 37S. and hath kpenk ik condemnatory terms of the a 4S :

ff minttips Le Sndictytents. The practice of disinissing an indie areas

In-erder to proce edennder a ie Oe I at pore favorihie elimate qs

wonlemfied in severit’ state court cages, notibly Ex Parte’ Lat

‘caster, Ala. 1921, 89 So. 2d 721, State vy. _ tilane. La. 19M, 71

IST. and Coleman v. State. Misst 1904. 25 So, 937

and that meas Mo chave dleen -vindieated here.’ There ts

tit? Wan tne Grover Hien can eSCialiie the “conehision that ts”

aehign= here were take ino ay effort to seleet ai forum

°a Jocale where the atin sphere would be favorable to

he Government and not to the defendant" No eriticisn

is directed to such a course. Litigants from time im.

neeriearial haves Jockeved for positions af advantage mid

gave shopped about in an effort to Heht pon tht prost

faverahle “venue situation’ for theit own snecess. Put

courts have to be blind to suehomaehtnations. They must

welgh the faets of the cease hefove them and wive judg.

ment based pon the rights of the’ parties contending as

eqnals and upon acbattleeroun! which favors neither.

; at .

The Government attorney had said this, in stating to the Dis-

trict Court the reasons the Government desired the order of ais-

inissal: These witnesses. in most instances, are reluctant.-and ,

some stances are hostile. We feel that the trial of the ease in

Laredo, ‘close to the defendant's seat of political power and his

associations there, wonld have an adverse effect on eliciting the

truth from the witnesses the Craverninent will he forced to bring in

order to establish this ease, * #7

The Atlas shows thet Faredo ist Webb Connty and San Di eva

is in the adjoining= Comety of Duval, ant that the tave Cities: are

rather close’ tower fher. It further shows that Austin is more. than

one nunered miles Awa from San Dives! Students of the problanr

af Jaw euforcement. ka: ceely agree that -covernment functiens at

its hest at the local level, and that prosecutions are likely to bring

Tnore just results when they are conducted where the defendant

and the witnesses are known and where the diffientt question of

lan enforcement has its inmost direct impact. The vast majority

ef criminal prosecutions ar conducted in saeh an atmosphere

Aurors wheehave no acqraintanee with the defe ndant or the wit-

nesses and whe de not have a knowledge of all of the facets ane

OPC TUS T ators siiprenineling ne pretite thiol the en forceinesit of the.

layy sty as would inevitably “he the case nia “distriet so far

remeved fron: the site of the hatpenings forming the basis of the

prosecution — are ata great disadvantage Ee

Tn passing on the, Government's contermtioans that it wenkd be-nn-

deria sistant moa trial ai Laredo. whieh it had presented

fully on Abe moetfon for change of venue. the District Court had.

ruled directiv Ylat the Government would not be under a dis.*

advantage therd. Sea .

. ete

The Goveriunsent thitde ts selection ke we battlewrodund

Th the first iistalee as 1 tad «tl righ do. The-eourt

‘

found 1

vrninent ane unfair fo the defendmit. The court changed

? ? Fe :

Wt obattiogroiund to be toa enn to the Goy

the battleground to ole if adjudicated to be fuverable te

neither side! «To permit: the Government. Under those

cireutistances, to repudiate the whole proceeding it: had

initiate and to move the scene of the fight to another

place of its Own selection is. ta open the door to the pos-

sibility: of wrave abuses. Further, such a’ course would

deny ‘Appellant rights whith he is entitled to have the

COUTTS | protect. i

Af it bat CHauen that the views “seen expressed vive hos-

pit: lity to the concept that the Gevernment does not be:

long in il favored-lfigant class, they are so inte nded. The

mass of litigation, both, civil and criminal, to which the

davaraeen, Is party ts sufficient to cause the courts in-

creasingly to give most ¢ areful scrutiny to the status of

the Government asea litigant. In the very nature. of

tings, the Government enters every contest with @

citizen with a distinet advantage.’ -Moreover, all who

wn It is true that the ‘hattleground Was ‘She chopee of the det end-

ant, but the Court found that. the rights of the Government would

no fe pre judiced In. the Laredo Division. :

? This thesis was well devele youd bya paper read May 30, 1952

to the Judicial Conference ine = Fifth Cirenit. and a part of the

rerords of that. Conference, - Hon. Rebert B. Treutman of Ate

~danth, Georgia. Here ts an beslbie: from that paper: ‘

“With this vast power, and these tremendous resourves, the

Dnited States tx, indeed & formidable adversary * * * The

prdinary citizeg stands in awe when oe ag thacatie wifh sneh Hti-

* gation. -* * “Ttois a Goliath, a giant -in power, whose ghal-

lenge a tnodern Saul and all his Paes might with’ “good

.Peason hesitate to aeeept More often than not, however, the

ecitizen has no eheiee. ~The initiative is-on the Side. of the —

Government z

howe ‘ver, that the end ant aimeif his Government is’ the pro.

have not been blind rust knéw that it: has frequentiv been .

treated as a favored litiant. -That is not as it should be. - s

When the Croverniient ehlers litivation with its citizens, |

It-tust stand as an equal and tmigst toe.the same mark

private litigants must. come to. It fs hard to conceive

that a private litigant could make ‘actest run in one

Jurisdiction and fail, and they start a proceeding in

wnother «jurisdiction and vet jis action to trial on the

merits With such speed while, at the same time, the former

action Was: pending and undisposed of, or was improperly

dismissed, |

IV. }

The Government takes the position that appellant has

“no stake in the continued pendency of the prosecution - .

first brought. That position is untenable. Lf tt sliould be

hekt that the motion to_disniiss that indictment should

have been everruled, the parties litigant will have two

pases pending in separate jurisdictions’ and involving the

same subject matter. The respective eourts entled Upoy

to deal justly as between the parties will exercise, their

respective discretions, having due regard for the dictates

of justice as well as for the comity usually observed in

such matters. We so held in Iinois Central y. Bullock,

3 eir, 1950, 181 F.2d 851. The Government argues that,

—— ~

tection of his freedom and his ‘rights’. In an even broader

sense, justice to. the individual is its aim. History tells him

that those ‘rights’ were established by Htigants with the cour-

age to combat tyrants who sought to deny them. before judges

who had the courage to uphold them. iff such contests our

profession has supplied beth the adversary advocates and the +>

judges. The latter ‘have been set apart and charged with

.Tesponsibility of seeing that Justice be Gone io the individual

and to the Government. * * * The seal of ‘the Department of

Justice to which they -belong contains a motto. ‘Qu: pro

Domina Justitia Sequitur! Wt appears on the flag which flies

ovet the Department's ofiee. Liberally translated, ‘The [d-

partment of Justice Prosecntes [np fehalf Of Our Lady Jus-

_ tiee’.”’ : of, oe

7, - Cf. Lydick, v. Fischer, 5 Cir 1943, 135 F.2d 983.

Wiwher (arp yter \ S Ld nionson. as eT... 1937, 9°? Fd SOO),

bre District (ourt‘for the W eastern District of Texas would

have ho discretion dur’ tw proceed to lear the czas it

elected to press. “That argument too. is nusound, The

Carpenter doctrine was’ consider abiy wenkened by MeLiin-

» Lance, o Cir, 19H, 146 FL 2d 341, and was repudiated

aa the Builock case, s epra. - "Phe law now is that each

Judge called upon to try a-case pending also in another

jurisdiction has t1% right aml duty to exercise a judicial |

discretion as to whether the Gase will be tried or not. |

If ‘that situation should ceme to pass, it would be in-

cumbent-upon the Distriet Court for the Southern District

Texas, and the District Court for the W estern District

Texas. e¢ ach to exercise diseretion as ‘to Which case

ae be tried, It may be that discretion so’ exercised

would lead to the concluston ‘that the cases should be dis-

posed of in the order of their filing. That would not be

inconsonant with’ practices irequently observed.* The-

two courts would, of course, exercise discretion according

_to their own judements. .The sugge stion is made merely

to indicate that the Gove rhiment *<argume nt is wrong and’

‘that appellant does have a definite legal interest in the

continued pendency of the first progecution..

V.«

It is plain that we have all elements of this controversy

before us and are able to do ful! Justice to the parties in-

depende: ttly of the question of. the appealability’ of the

dismissal order. It is clear that the Court of the Southern

District applicd the Wrong tests in deeiding that-the in-

dictment first brought mis chit he. dismisse d: Tf it had res

quired the Goyernment to establish a sound leval reason

for tie dismissal, givine due consideration to the rights

‘of hotix parties, ‘it is difficult 410 -Benchide that the right to

dismiss would have heen sustained, so barren j is. Ahe record.

of any such showing. “When‘all of the-talk is boiled dow u,

wot Niehaus, ¢t al. v. Magnolia Textiles, 5 Cir. 1949, lio F.2d

AZ, and the eOmpanion case: Magnolia Textiles, Inc’ v. ». Gillis, etal,

Sup. Ct Miss! 1949, 41 Nin2d 6 =

36.

It points to the fact that the Government was Wholly iis-

pleased With’ the prospect of a trial in a venue the eourt

‘had adjudicated to be fair. -

That + judement transferring the casé to the Laredo

Division had bee reached after full hearing and at mani

Festly great expense to the Government and appellant.

To perinit fhe Gover “nTue nt to furn its b: ack upon the entire

proceeding conducted in a venue of its own Selection,

siving it, ut the same time, a second. choice of venue, and

to put the appellant to trial with the, added expense which

would obyviousiy be entailed, would, under the facts clearly

appearing in the record before us, be unjust and in dero-

gation ef appellant's rights.

The authorities discussed in Ui supra furnish a‘elear -

blueprint of means by ares we may do full justice be-

tween the parties, LL think we should permit the Petition

for: Mandamus. and Prohibition to be filed, and “should.

take full charge of the entire litigntion. either (a) pre-

serving the status quo While proceeding fo hear the appeal

on its merits; or (bj) reversine the dismissal: order for

rehearing by the Court of the Southern Distriet euided by

proper staidards of proof and decision: or (e) ordering: .

that the case in the Western Distriet be transferred to

‘the Southern District and consglidated With the. case

originated there, and that srial proceed in the -Laredo

Division. By following one of these alternatives, or «a

: combingtion of them, we car proceed to grant appellant

the protection to which I think he is entitled and ean

dispense justice which will be effective and not sterile,

These afe the grounds of ‘my dissent. :

eee

A. True Copy:

Teste: Fae 5 | make

; Jour A. FPeriax, J; 7/

: prs Clerk Of the Pryited States

rf Court ef Appeals for the

: Fofth Circuit.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.