United States v. Lasker

Decision Date11 June 1973
Docket NumberNo. 692-698,73-1102 to 73-1108.,Dockets 73-1370,692-698
PartiesUNITED STATES of America, Petitioner, v. Morris E. LASKER, United States District Judge for the Southern District of New York, Respondent. UNITED STATES of America, Appellant, v. Raymond F. CARR, Appellee. UNITED STATES of America, Appellant, v. Dorothy Lubkert SHEA, Appellee. UNITED STATES of America, Appellant, v. Lamont H. MUNNS, Appellee. UNITED STATES of America, Appellant, v. Melville L. BISGYER, Appellee. UNITED STATES of America, Appellant, v. Martin L. ROEMER, Appellee. UNITED STATES of America, Appellant, v. Albert FERGUSON, Appellee. UNITED STATES of America, Appellant, v. Donald F. CARONE, Appellee.
CourtU.S. Court of Appeals — Second Circuit

John W. Nields, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., on the brief), for appellant.

Gregory J. Perrin, New York City, for appellees Carr and Ferguson.

Max Wild, New York City (Rubin, Wachtel, Baum & Levin, New York City, on the brief), for appellee Carone.

Peter Lushing, New York City (Robert E. Goldman, New York City, on the brief), for appellee Shea.

Henry J. Boitel, New York City (Philip Vitello, New York City, on the brief), for appellee Bisgyer.

Jack S. Hoffinger, New York City, for appellee Roemer.

Before LUMBARD and TIMBERS, Circuit Judges, and WYZANSKI, District Judge.*

LUMBARD, Circuit Judge:

The government appeals from an order of the Southern District dismissing the indictments against the seven appellees, Carr, Shea, Munns, Bisgyer, Roemer, Ferguson, and Carone. Alternatively, the government has petitioned this court for mandamus ordering the district judge to reinstate the indictments. We dismiss the appeal for lack of jurisdiction and we grant the petition for mandamus.

In seven indictments handed up February 25, 1970, appellees were individually charged with having conspired with a co-defendant, Fritz Claudius Mintz, and an unindicted co-conspirator, Morton Penn, to defraud the United States, in violation of 18 U.S.C. § 371. The defendants were all employed as civilian buyers for European or American post exchanges. The indictments charged that the defendants conspired with Mintz and Penn, who represented certain American manufacturers, to receive substantial payments during the period from 1960 to 1967 in return for causing the post exchanges to purchase products offered by Mintz' and Penn's principals. Mintz was named as a co-defendant in each indictment.

All the indicted defendants-appellees pleaded not guilty to the indictment in which he or she was named. Mintz has not appeared; he is a fugitive who has been living in Europe since some time prior to the filing of the indictments.

In April, 1970, each of the appellees moved pursuant to Rule 48(a), F.R. Crim.P., for dismissal on several grounds, one of which was pre-indictment delay. However, defendants-appellees at no time made a request for a trial date. The district court denied all motions for dismissal.

On January 5, 1971, the Second Circuit Judicial Council promulgated the Rules Regarding Prompt Disposition of Criminal Cases ("Prompt Disposition Rules"), which became effective on July 5, 1971. After the Prompt Disposition Rules went into effect, the government listed the seven indictments on the monthly report of cases over six months old as an exception to the general six-month rule under Rule 5(e).

Ever since the filing of the indictments, the government has attempted to obtain Mintz' presence in the Southern District. However, he has remained in Europe and has refused to return. In June, 1971, the government commenced proceedings to extradict Mintz from Spain. Either because Mintz has left Spain or because the Spanish authorities have been unable to locate him, the extradition proceedings have not been successful. Thus, the government's efforts to return Mintz to this country have proved fruitless.

In an ex parte meeting with the government's counsel in March, 1972, the district judge insisted that the government notify the appellees of the basis for these cases being carried as Rule 5(e) exceptions, which the government did by letter on March 10, 1972. Shortly thereafter, the defendants each moved to dismiss the indictments under Rule 4 of the Prompt Disposition Rules, as well as under Rule 48(b), F.R.Crim.P. The government indicated that, if the district judge concluded that it was not reasonable to wait any longer for Mintz, it was able and willing to proceed with the trials forthwith. On December 5, 1972, the district judge dismissed the indictments under Rule 4 of our Prompt Disposition Rules.1 Thereupon, the government took this appeal and brought the instant petition for mandamus.

Initially, we must agree with appellees' contention that this court is without appellate jurisdiction to review the order of the district court. Although as presently structured 18 U.S.C. § 3731, which governs this court's jurisdiction of criminal appeals brought by the government, would clearly give this court jurisdiction to review the district court's order on appeal, the statute applicable to this appeal is § 3731 as it was phrased prior to its amendment by § 14(a) of the Omnibus Crime Control Act, 84 Stat. 1890 (1970). For reasons set forth in Part I of Chief Judge Friendly's opinion in United States v. DiStefano, 464 F.2d 845 (2d Cir. 1972), § 3731 does not give this court jurisdiction to review on appeal the district court's dismissal of these indictments. Accordingly, we dismiss the government's appeals.

Turning to the petition for mandamus, we must acknowledge at the outset that mandamus will not issue merely as a substitute for ordinary appellate review. Mandamus is only available in extraordinary cases, where the action of the lower court amounts to a usurpation of power or a gross abuse of discretion. Mandamus cannot "be availed of to correct a mere error" of the district court. De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). Thus, we must determine whether any error of the district court is of sufficient magnitude to justify the issuance of mandamus.

The issue presently before us involves the proper application of Rules 4 and 5(e) of the Prompt Disposition Rules. Rule 4 provides that:

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 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 shall be dismissed.

Rule 5(e) states that:

In computing the time within which the government should be ready for trial, the following periods 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. 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.

Here the threshold question under Rules 4 and 5(e) is whether the Prompt Disposition Rules require the government to apply to the district court for "a reasonable period of delay" under 5(e) beyond, and before the expiration of, the six-month period otherwise applicable under Rule 4. Two other questions are 1) how the 5(e) "reasonable period of delay" is to be determined and applied, and 2) who shall have the burden of moving for the severance contemplated by Rule 5(e) "in all other cases." This case demonstrates the significance of these questions, in that, if the government is not required to apply for a 5(e) "reasonable period of delay" before the end of the ordinary six-month period and if neither the defendant nor the court seeks a severance, there is considerable danger that the government will be "mouse-trapped" by the defendant moving for a Rule 4 dismissal some time after the six-month period and by the court retroactively determining that the period during which the government has delayed under Rule 5(e) was unreasonable. In the cases involved here, this series of events resulted in the mass dismissal of seven conspiracy indictments.

The Rules were not intended to operate in this fashion. In light of United States v. Rollins, 475 F.2d 1108 (2nd Cir., 1973), it now seems clear that it was not necessary for the government to apply for an extension of the six-month period under Rule 5(e) before the end of the six month calendar period. Indeed, the phraseology of Rule 5 would seem to militate against any other result; for that rule clearly provides that "in computing the time within which the government should be ready for trial," certain listed periods of time "should be excluded." Thus, it seems that one cannot sensibly talk about the six-month period having run or not without making initial reference to the excluded periods under Rule 5. As a result, it would involve strained logic to say that applications for exclusions under Rule 5 must be made to the district court before the elapse of the six-month period, since by definition any Rule 5 excluded period is not to be included in calculating the six-month period. Accordingly, we hold that, as indicated in Rollins, it was not necessary for the government to apply for a Rule 5(e) exclusion before the expiration of the six-month calendar period.

A more difficult problem involves the proper course of action for the district court when it decides that the period of delay contended for by the government is unreasonable. The rule itself provides some guidance for this situation when it indicates that "in...

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