In re United States

Citation348 F.2d 624
Decision Date16 July 1965
Docket NumberNo. 6550,6550
PartiesIn the Matter of UNITED STATES of America, Petitioner. Petition for a Writ of Mandamus.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John L. McCullough, Atty., Dept. of Justice, with whom Fred M. Vinson, Jr., Acting Asst. Atty. Gen., Francisco A. Gil, Jr., U. S. Atty., and Jay M. Vogelson, Atty., Dept. of Justice, were on memorandum, for petitioner.

Harvey B. Nachman, San Juan, P. R., with whom Nachman & Feldstein, San Juan, P. R., was on memorandum, for intervening respondent.

Before ALDRICH, Chief Judge, LUMBARD*, Chief Judge, and LEWIS*, Circuit Judge.

ALDRICH, Chief Judge.

During the pendency of an indictment in the District Court of Puerto Rico against intervenor respondent, hereinafter defendant, the government's answer to a bill of particulars having disclosed the names of its two proposed principal witnesses, the defendant moved for court permission to take their deposition. For authority he relied upon F.R.Crim.P. 15(a). This rule provides for the taking of a deposition by a defendant "if it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice * * *." At the hearing, the defendant stated that one of the named witnesses resided in Florida, and the other in Puerto Rico. He made no showing with respect to their ability or inability to attend the trial except the bare assertion that they might not be able to appear. The government, in opposition, stated that its case was essentially dependent upon these witnesses and that it had every intention and expectation of producing them. Remarking that it was always possible, in spite of the government's assurances, that a witness might not be able to attend a trial, the court granted defendant's motion. Its order was made on May 5, 1965. The government appealed on May 17, and sought to prosecute the appeal forthwith, but has now abandoned it. On May 21 it sought to file a petition for mandamus. We ordered the depositions stayed and placed the petition on the June calendar for hearing.

We must first consider whether it can be appropriate for the government to seek extraordinary relief in a criminal case when its ordinary rights of appeal are severely limited. Carroll v. United States, 1957, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442; 18 U.S.C. § 3731. No cases even closely in point have been cited to us, nor have we found any.1 However, the present question is one upon which the government could seek appellate relief, and do so prior to verdict. Should the order remain in effect and the witnesses refuse to testify or the government fail to produce them, and should the court as a result enter an order of contempt, appeal would lie. Bowman Dairy Co. v. United States, 1951, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (F.R. Crim.P. 17(c)). Alternatively, if the court should dismiss the indictment because of the government's noncompliance, see, e. g., United States v. Germany, D.C.M.D.Ala., 1963, 32 F.R.D. 421, an appeal would lie from the dismissal. 18 U.S.C. § 3731. Action upon the government's petition at this point in the case will not put defendant twice in jeopardy. Cf. Fong Foo v. United States, 1962, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629. Accordingly, nothing in the policy of limiting prosecution appeals precludes review of this question.

We see no reason why the government should not be able to do directly what it could effectuate indirectly. Furthermore, in the light of the general importance of the question, this does not seem a case where we should exercise our normal reluctance to take jurisdiction prior to trial. Schlagenhauf v. Holder, 1964, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152; Madison-Lewis, Inc. v. MacMahon, supra.

Some thought, however, should be given to the timeliness of the petition. In In re United Shoe Mach. Corp., 1 Cir., 1960, 276 F.2d 77, we held that remedy by way of mandamus must be promptly sought, and suggested that the appropriate time was the normal appeal period. In a criminal case there are various appeal periods. A government appeal, as distinguished from a defendant's, is thirty days. F.R.Crim.P. 37(a) (2). It is true that the time for commencing discretionary interlocutory appeals in civil cases is ten days. 28 U.S.C. § 1292(b). But cf. 18 U.S.C. § 1404 permitting the government thirty days to appeal from the suppression of evidence in narcotics prosecutions. We make allowance in this particular case for the fact that the availability of remedy by way of mandamus might not readily occur to counsel. Without suggesting that we would do so in other instances, we will hold that the government acted with sufficient diligence.

The defendant contends that if the court erred at all, it merely abused its discretion. The government's position is that the court was without...

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24 cases
  • United States v. Valentine
    • United States
    • U.S. District Court — District of Puerto Rico
    • August 20, 1968
    ...denied, 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed. 2d 49; United States v. Glessing, 11 F. R.D. 501, 502 (D.Minn., 1951); see In re United States, 348 F.2d 624, 626 (C.A.1, 1965). The motions must therefore, of necessity, be Defendants have offered various arguments for expanding the factual issue ......
  • Will v. United States
    • United States
    • U.S. Supreme Court
    • November 13, 1967
    ...jurisdiction. See 28 U.S.C. § 1651; Roche v. Evaporated Milk Assn., 319 U.S. 21, 25, 63 S.Ct. 938, 941 (1943). Compare In re United States, 348 F.2d 624 (1st Cir. 1965), with United States v. Bondy, 171 F.2d 642 (2d Cir. 1948). In our view, even assuming that the possible future appeal in t......
  • United States v. Birrell
    • United States
    • U.S. District Court — Southern District of New York
    • November 15, 1967
    ...witness. Interpreting Rule 15(a), in a somewhat different though analogous factual context, Chief Judge Aldrich in In re United States, 348 F.2d 624, 625 (1st Cir. 1965) pointed "He the defendant made no showing with respect to their the prospective witnesses' ability or inability to attend......
  • Halkin, In re
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • January 19, 1979
    ...566, 46 L.Ed.2d 407 (1975).60 See, e. g., Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); In re United States, 348 F.2d 624 (1st Cir. 1965); International Products Inc. v. Koons, 325 F.2d 403 (2nd Cir. 1963); United States Board of Parole v. Merhige, 487 F.2d 25 (......
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