United States v. United States Dist. Ct. for ED of Mich., 71-1105.

• Decision Date: 21 June 1971
• Docket Number: No. 71-1105.,71-1105.
• Citation: 444 F.2d 651
• Parties: UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION and Honorable Damon J. Keith, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

444 F.2d 651 (1971)

UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION and Honorable Damon J. Keith, Respondent.

No. 71-1105.

United States Court of Appeals, Sixth Circuit.

April 8, 1971.

Certiorari Granted June 21, 1971.

Robert L. Keuch, Dept. of Justice, Washington, D. C., for petitioner; Robert C. Mardian, Asst. Atty. Gen., Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Kevin T. Maroney, Daniel J. McAuliffe, George W. Calhoun, Attys., Dept. of Justice, Washington, D. C., on brief.

William M. Kunstler, New York City, pro hac vice, by special leave of Court, with whom Hugh M. Davis, Jr., Detroit, Mich., and Leonard I. Weinglass, Newark, N. J., were on the brief.

Herman Schwartz, Buffalo, N. Y., Melvin L. Wulf, New York City, Erwin Ellmann, Detroit, Mich., on brief for American Civil Liberties Union, as amicus curiae.

Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.

Certiorari Granted June 21, 1971. See 91 S.Ct. 2255.

EDWARDS, Circuit Judge.

At issue in this case is the power of the Attorney General of the United States as agent of the President to authorize wiretapping in internal security matters without judicial sanction.

This case has importance far beyond its facts or the litigants concerned.

If decided in favor of the government, the citizens of these United States lose the protection of an independent judicial review of the cause and reasonableness of secret recordation by federal law enforcement of thoughts and expressions which had been uttered in privacy. If it is decided in favor of the respondent, it may prejudice an important criminal prosecution. And more important, of course, in all future surveillances undertaken in internal security matters, it may add at least some dimension of risk of exposure of federal investigatorial intentions.

The background of this case is the pending trial in the United States District Court for the Eastern District of Michigan in Detroit of three young men for conspiracy to destroy government property in Ann Arbor, Michigan, in violation of 18 U.S.C. § 371 (1964). One of them named Plamondon was also charged with destruction of government property in a value exceeding $100, in violation of 18 U.S.C. § 1361 (1964). The particular case before us is a petition for writ of mandamus filed originally in this court by the United States to compel the District Judge who is presiding at the Detroit trial to vacate an order directing the United States to "make full disclosure to defendant Plamondon of his monitored conversations."

STATEMENT OF FACTS

For purposes of this case, we accept the statement of facts from the petition filed by the United States:

"On December 7, 1969, defendants in the court below were indicted by a Federal Grand Jury for destruction of Government property in violation of 18 U.S.C. 1361. In the course of the pre-trial proceedings, defendants filed a motion for disclosure of certain electronic surveillance information. That motion was granted by respondent, and petitioner has been ordered by respondent to disclose the information sought. Respondent\'s Order is the subject of this petition.

"On October 5, 1970, defendants filed a `Motion for Disclosure of Electronic or other Surveillance, For a Pre-trial Hearing, To Suppress Evidence and to Dismiss the Indictment.\' * * *

"On December 18, 1970, petitioner filed, in response, an opposition to defendants\' motion. By way of an affidavit of the Attorney General of the United States, John N. Mitchell, which was attached to petitioner\'s opposition, petitioner acknowledged that one of the defendants, Lawrence Robert "Pun" Plamondon, had participated in conversations which were overheard by government agents.1 The logs of

"1. It is important to note at this point that although he was overheard, defendant Plamondon was not the object of the surveillance. This distinction apparently went unnoticed by respondent for he stated in his decision ordering disclosure that the Attorney General `had authorized and deemed necessary the wire tapping of certain of defendant Plamondon\'s conversations.\' * * *

"The sealed exhibit submitted to the court below will quickly demonstrate that defendant Plamondon was not the object of the surveillance, and petitioner respectfully refers this Court\'s attention to that exhibit and the additional sealed exhibit being made available to the Court for the grounds and objectives of the Attorney General\'s authorization." (Footnote in quotation.)

these surveillances were given to respondent in the form of a sealed exhibit for respondent\'s in camera inspection only and are available to this Court on those terms as well.

"Oral argument was had before respondent on January 16, 1971; on January 25, 1971, respondent holding that the surveillance was illegal, granted defendants\' motion and ordered petitioner to disclose the information sought. Respondent then granted petitioner a 48-hour stay which was, in turn, extended to and including February 9, 1971, to afford petitioner an opportunity to present this matter to this Court."

To this statement of facts the United States also attached the affidavit of Attorney General Mitchell — the full context of which follows:

"JOHN N. MITCHELL being duly sworn deposes and says:

"1. I am the Attorney General of the United States.

"2. This affidavit is submitted in connection with the Government\'s opposition to the disclosure to the defendant Plamondon of information concerning the overhearing of his conversations which occurred during the course of electronic surveillances which the Government contends were legal.

"3. The defendant Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government. The records of the Department of Justice reflect the installation of these wiretaps had been expressly approved by the Attorney General.

"4. Submitted with this affidavit is a sealed exhibit containing the records of the intercepted conversations, a description of the premises that were the subjects of the surveillances, and copies of the memoranda reflecting the Attorney General\'s express approval of the installation of the surveillances.

"5. I certify that it would prejudice the national interest to disclose the particular facts concerning these surveillances other than to the court in camera. Accordingly, the sealed exhibit referred to herein is being submitted solely for the court\'s in camera inspection and a copy of the sealed exhibit is not being furnished to the defendants. I would request the court, at the conclusion of its hearing on this matter, to place the sealed exhibit in a sealed envelope and return it to the Department of Justice where it will be retained under seal so that it may be submitted to any appellate court that may review this matter."

This court stayed the order of the District Court pending hearing and final disposition of the petition for writ of mandamus.

From the above-quoted statement of facts, it appears that the exact question this court must answer is:

Where the Attorney General determines that certain wiretaps are "necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the government," does his authorization render such wiretaps lawful without judicial review?

THE MANDAMUS QUESTION

Preliminary to answering this question, there is a challenge to our jurisdiction. It is claimed that mandamus is not an appropriate form of action in which to review the question just posed in the context of the instant case. It is clear that the District Court order under attack is a pretrial order interlocutory in nature, and hence, not appealable under 28 U.S.C. § 1291 (1964) which conveys appellate power to this court to review only "final" orders of the District Courts. Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929). Nor is the order here under attack subject to appeal under 28 U.S.C. § 1292 (1964), which grants appellate power to this court in certain limited classes of interlocutory orders, nor under 18 U.S.C. § 3731 (Supp. V, 1965-69), which deals specifically with criminal appeals.¹

It is, of course, the general rule that mandamus may not be substituted for appeal. Roche v. Evaporated Milk Ass'n., 319 U.S. 21, 30-31, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106 (1953); Black v. Boyd, 248 F.2d 156, 159 (6th Cir. 1957); Hoffa v. Gray, 323 F.2d 178, 179 (6th Cir.), cert. denied, 375 U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147 (1963); University National Stockholders Protective Comm., Inc. v. University National Life Ins. Co., 328 F.2d 425, 426 (6th Cir.), cert. denied, 377 U.S. 933, 84 S.Ct. 1335, 12 L.Ed.2d 296 (1964).

Petitioner United States, however, points to the All Writs Statute (28 U.S. C. § 1651 (1964)) as source of this court's power to grant the writ prayed for and argues that this is an extraordinary case wherein the respondent has entered an illegal order which if allowed to stand, "would result in grave and irreparable harm to legitimate Governmental interests."

Concerning the use of mandamus in "exceptional cases," this court has said:

"It is also well settled that although sparingly used, the power to issue a writ of mandamus exists and will be exercised by the court when in its discretion the exceptional circumstances of the case require its use. * * * Its use in such exceptional cases, however, does not mean that the All Writs Statute grants to the appellate court a general power to supervise the administration of justice in the federal district courts and to review by writ of mandamus any

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