Will v. United States

• Decision Date: 13 November 1967
• Docket Number: No. 36,36
• Citation: 19 L.Ed.2d 305,389 U.S. 90,88 S.Ct. 269
• Parties: Honorable Hubert L. WILL, Judge, United States District Court for the Northern District of Illinois, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

389 U.S. 90

88 S.Ct. 269

19 L.Ed.2d 305

Honorable Hubert L. WILL, Judge, United States District Court for the Northern District of Illinois, Petitioner,

v UNITED STATES.

No. 36.

Argued Oct. 17 and 18, 1967.

Decided Nov. 13, 1967.

Harvey M. Silets, Chicago, Ill., for petitioner.

Richard A. Posner, Washington, D.C., for respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

The question in this case is the propriety of a writ of mandamus issued by the Court of Appeals for the Seventh Circuit to compel the petitioner, a United States District Judge, to vacate a portion of a pretrial order in a criminal case.

Simmie Horwitz, the defendant in a criminal tax evasion case pending before petitioner in the Northern District of Illinois, filed a motion for a bill of particulars, which contained thirty requests for information. The Government resisted a number of the requests, and over the course of several hearings most of these objections were either withdrawn by the Government or satisfied by an appropriate narrowing of the scope of the bill of particulars by petitioner. Ultimately the dispute centered solely on defendant's request number 25. This request sought certain information concerning any oral statements of the defendant relied upon by the Government to support the charge in the indictment. It asked the names and addresses of the persons to whom such statements were made, the times and places at which they were made, whether the witnesses to the statements were government agents and whether any transcripts or memoranda of the statements had been prepared by the witnesses and given to the Government.¹ After considerable discussion with counsel for both sides, petitioner ordered the Government to furnish the information. The United States Attorney declined to comply with the order on the grounds that request number 25 constituted a de- mand for a list of prosecution witnesses and that petitioner had no power under Rule 7(f) of the Federal Rules of Criminal Procedure to require the Government to produce such a list.

Petitioner indicated his intention to dismiss the indictments against Horwitz because of the Government's refusal to comply with his order for a bill of particulars. Before the order of dismissal was entered, however the Government sought and obtained ex parte from the Seventh Circuit a stay of all proceedings in the case. The Court of Appeals also granted the Government leave to file a petition for a writ of mandamus and issued a rule to show cause why such a writ should not issue to compel petitioner to strike request number 25 from his bill of particulars order. This case was submitted on the briefs, and the Court of Appeals at first denied the writ.² The Government petitioned for reconsideration, however, and the Court of Appeals, without taking new briefs or hearing oral argument, reversed itself and without opinion issued a writ of mandamus directing petitioner 'to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars.'³ We granted certiorari, 386 U.S. 955, 87 S.Ct. 1022, 18 L.Ed.2d 102 (1967), because of the wide implications of the decision below for the orderly administration of criminal justice in the federal courts. We vacate the writ and remand the case to the Court of Appeals for further proceedings.

Both parties have devoted substantial argument in this Court to the propriety of petitioner's order. In our view of the case, however, it is unnecessary to reach this question.⁴ The peremptory writ of mandamus has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941 (1943). While the courts have never confined themselves to an arbitrary and technical definition of 'jurisdiction,' it is clear that only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566 (1945). Thus the writ has been invoked where unwarranted judicial action threatened 'to embarrass the executive arm of the government in conducting foreign relations,' Ex parte Republic of Peru, 318 U.S. 578, 588, 63 S.Ct. 793, 799, 87 L.Ed. 1014 (1943), where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations, State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926), where it was necessary to confine a lower court to the terms of an appellate tribunal's mandate, United States v. United States Dist. Court, 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351 (1948), and where a district judge displayed a persistent disregard of the Rules of Civil Procedure promulgated by this Court, La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); see McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 706, 707, 47 S.Ct. 286, 288, 71 L.Ed. 481 (1927) (dictum). And the party seeking mandamus has 'the burden of showing that its right to issuance of the writ is 'clear and indisputable." Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953); see United States ex rel. Bernardin v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287 (1899).

We also approach this case with an awareness of additional considerations which flow from the fact that the underlying proceeding is a criminal prosecution. All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court. See, e.g., Judiciary Act of 1789, §§ 21, 22, 25, 1 Stat. 73, 83, 84, 85; Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940); McLish v. Roff, 141 U.S. 661, 12 S.Ct. 118, 35 L.Ed. 893 (1891). This general policy against piecemeal appeals takes on added weight in criminal cases, where the defendant is entitled to a speedy resolution of the charges against him. DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962). Moreover, 'in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored,' Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957), at least in part because they always threaten to offend the policies behind the double-jeopardy prohibition, cf. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). Government appeal in the federal courts has thus been limited by Congress to narrow categories of orders terminating the prosecution, see 18 U.S.C. § 3731, and the Criminal Appeals Act is strictly construed against the Government's right of appeal, Carroll v. United States, 354 U.S. 394, 399—400, 77 S.Ct. 1332, 1335—1336 (1957). Mandamus, of course, may never be employed as a substitute for appeal in derogation of these clear policies. E.g., Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671 (1962); Parr v. United States, 351 U.S. 513, 520—521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956); Bank of Columbia v. Sweeny, 1 Pet. 567, 569, 7 L.Ed. 265 (1828). 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.' DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659 (1962).⁵ This is not to say that mandamus may never be used to review procedural orders in criminal cases. It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal. We need not decide under what circumstances, if any, such a use of mandamus would be appropriate. It is enough to note that we approach the decision in this case with an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense.

In light of these considerations and criteria, neither the record before us nor the cryptic order of the Court of Appeals justifies the invocation of the extraordinary writ in this case.

We do not understand the Government to argue that petitioner was in any sense without 'jurisdiction' to order it to file a bill of particulars.⁶ Suffice it to note that Rule 7(f) of the Federal Rules of Criminal Procedure specifically empowers the trial court to 'direct the filing of a bill of particulars,'⁷ and that federal trial courts have always had very broad discretion in ruling upon requests for such bills, compare Wong Tai v. United States, 273 U.S. 77, 82 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927). Furthermore, it is not uncommon for the Government to be required to disclose the names of some potential witnesses in a bill of particulars, where this information is necessary or useful in the defendant's preparation for trial. See, e.g., United States v. White, 370 F.2d 559 (7th Cir. 1966). See also United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953).

The Government seeks instead to justify the employment of the writ in this instance on the ground that petitioner's conduct displays a 'pattern of manifest...