In re Ellsberg

• Decision Date: 10 August 1971
• Docket Number: Misc. No. 500.
• Citation: 446 F.2d 954
• Parties: In re Daniel ELLSBERG, Petitioner.
• Court: U.S. Court of Appeals — First Circuit

446 F.2d 954 (1971)

In re Daniel ELLSBERG, Petitioner.

Misc. No. 500.

United States Court of Appeals, First Circuit.

Submitted August 5, 1971.

Decided August 10, 1971.

Leonard B. Boudin and Charles R. Nesson, Cambridge, Mass., for petitioner.

Lawrence P. Cohen, Asst. U. S. Atty., for United States.

Before ALDRICH, Chief Judge, and COFFIN, Circuit Judge.

COFFIN, Circuit Judge.

Defendant, a resident within this Circuit, was indicted by a grand jury of the Central District of California on June 28, 1971, for violation of 18 U.S.C. §§ 793(e) and 641. On the same day he delivered himself for arrest in Boston.¹ Hearing on the question of defendant's removal to California was held before a U. S. Magistrate on July 15. Since the identity of the defendant and the propriety of venue were removed from controversy by stipulation, the only issue before the magistrate was defendant's motion to compel the government to disclose whether it had intercepted any communication of defendant up to the time of the indictment through wiretapping or other means. The motion also sought a hearing to determine whether any such wiretapping was unlawful and whether the indictment and other removal documents were the products of any unlawful wiretapping. If so, the motion prayed that defendant be discharged from custody. The government refused to answer, taking the position that its duty to respond does not arise until a later stage in the prosecution.

The magistrate issued an opinion in which he concluded that the recent legislation relied on by defendant did not change pre-existing law limiting inquiry in removal proceedings and barring a collateral attack on an indictment and denied the motion. The district judge in substance adopted the findings and conclusions of the magistrate and issued a warrant of removal. Defendant has not appealed from this order, which is non-appealable, but has appealed from the district court's refusal to grant mandamus against the magistrate, and has also petitioned this court for a writ of mandamus, which we have permitted to be filed, directing the judge and magistrate in effect to grant defendant's earlier motion seeking disclosure of any wiretapping and adjudication of its legitimacy together with the effect of any unauthorized interception on the documents supporting defendant's removal.

Our first problem is to decide whether or not we have jurisdiction under the All Writs Statute, 28 U.S.C. § 1651, to issue a writ of mandamus. This statute limits our power to issue extraordinary writs to those "necessary or appropriate in aid of" our jurisdiction. Historically, one of the major predicates for mandamus has been the existence of appellate jurisdiction. Indeed, the most recent Supreme Court construction of the Act affirms that a court of appeals may issue a writ of mandamus only "in aid of an exercise of the Court of Appeals' appellate jurisdiction." Will v. United States, 389 U.S. 90, 95 n. 4, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). This court has given what petitioner fairly characterizes as a broad interpretation to "appellate jurisdiction" in In re United States, 348 F.2d 624 (1st Cir. 1965). There we held that this jurisdictional requirement was satisfied if the court had "potential jurisdiction" on appeal in a collateral proceeding.

Here, however, there is no question but that direct appeal does not lie from a removal order from one federal district to another. Galloway v. United States, 302 F.2d 457 (10th Cir. 1962). Moreover, Congress has specifically changed prior law to proscribe our appellate jurisdiction over district court actions in granting or refusing writs of habeas corpus to test the legality of removal proceedings or detention prior to removal. 28 U.S.C. § 2253. It is clear that if defendant had sought habeas relief, on the same grounds as those here alleged to support mandamus, we would not be able to review the action of the district court, even though it might have been in egregious error.

Petitioner seeks to establish the existence of potential appellate jurisdiction by treating mandamus itself as a collateral proceeding. Thus, the argument runs, petitioner could (and in fact did) seek a writ of mandamus from the district court under 28 U.S.C. § 1361. Since the grant or denial of such a writ by a district court is appealable, see, e. g., Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965), even though a removal order per se is not appealable, this court allegedly has appellate jurisdiction over the removal proceeding. This argument stretches beyond elasticity the sense of "potential jurisdiction" in that it would convert any non-appealable order into an appealable one by annexing a prayer for mandamus relief. It is particularly unpersuasive here, since Congress has specifically proscribed review of the grant or denial of habeas corpus relief. Cf. Merino v. Hocke, 289 F.2d 636, 639 (9th Cir. 1961).

Another alleged source of jurisdiction is a commonly employed end run around the "in aid of appellate jurisdiction" requirement. It grounds jurisdiction in this court's supervisory control over the district courts. In LaBuy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) and Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), the Supreme Court expressly based jurisdiction on this supervisory power. Particularly as to this supervisory jurisdiction, however, it is exceedingly difficult to separate the question of jurisdiction from the substantive standards for issuance of a mandamus. What seems really involved is the sound discretion of this court to exercise its power of supervisory mandamus only in extraordinary circumstances.

The case law provides some help in giving contour to "extraordinary circumstances". One category of cases involves a "clear abuse of discretion". But that is not involved in the present case, since the district court is charged with having made a mistake of law as to the proper meaning of the words "hearing" and "evidence". This case seems to fit the language of Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L. Ed. 1377 (1956): "Here, the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction." Similar language is found in Will v. United States, supra, 389 U.S. at 103-104, 88 S.Ct. 269.

A second category of cases where mandamus has been deemed appropriate concerns those in which the writ has been used "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, 87 L.Ed. 1185 (1943), quoted with approval in Will v. United States, supra, 389 U.S. at 95, 88 S.Ct. 269. But this category of supervisory mandamus is inapposite here because the district court heard and adjudicated the motion for removal as required by Rule 40.

Arguably, however, this case falls within the final category of supervisory writs of mandamus, those raising important issues of first impression. Schlagenhauf v. Holder, supra, 379 U.S. at 110, 85 S.Ct. 234. That case differed from the present case in that there the court of appeals would have retained jurisdiction over the litigation and thus continuing supervisory power regardless of the grant or denial of the mandamus petition; where as if we do not grant mandamus relief, the present litigation will pass from our jurisdiction to that of the court of appeals whose jurisdiction includes the court in which the indictment was issued. While we thus have the most serious doubt as to our jurisdiction, we need not resolve this issue since we conclude that on the merits petitioner is not entitled to mandamus relief.

Defendant's attack on his removal involves two longstanding legal principles. The first is the historic limitations on challenges to removal. While courts must deny removal if an examination of the indictment fails to reveal that a crime against the United States has been charged, that the court to which the accused is sought to be removed has jurisdiction, or that the defendant is the individual named in the charge, Tinsley v. Treat, 205 U.S. 20, 29, 31, 27 S.Ct. 430, 51 L.Ed. 689 (1907), they have not carried their inquiry beyond the face of the indictment. United States v. Winston, 267 F.Supp. 555, 560-561 (S.D.N.Y. 1967).

The second hurdle faced by defendant is the historic bar against a judge's review, at a defendant's behest, of grand jury action. United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1965); Lawn v. United States, 355 U.S. 339, 349-350, 78 S.Ct. 311, 2 L.Ed. 2d 321 (1958); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Defendant makes clear that he is not presently seeking to quash the indictment as an accusation but only as evidence in the removal proceeding. Rule 40(b) (3) of the Federal Rules of Criminal Procedure has, however, strengthened the historic bar in the context of removal proceedings. The rule provides, "If the prosecution is by indictment, a warrant of removal shall issue upon the production of a certified copy of the indictment and upon proof that the defendant is the person named in the indictment." The Notes of the Advisory Committee on Rules explain that while proof of probable cause must be adduced if the demand for removal is based on an information or complaint, "the indictment will be conclusive proof of probable cause * * * since the grand jury, which is an arm of the court, has already found probable cause. Since the action of the grand jury is not subject to review by a district judge in the district in which the grand jury sits, it seems illogical to permit such review collaterally in a removal proceeding by a judge in another district."

Defendant argues that these traditional limitations on a removal proceeding court must yield to recent...