U.S. v. Carrigan, 86-2152

• Decision Date: 07 November 1986
• Docket Number: No. 86-2152,86-2152
• Citation: 804 F.2d 599
• Parties: UNITED STATES of America, Petitioner, v. Honorable Jim R. CARRIGAN, Respondent, and Peter Kiewit Sons' Company, Harold L. Cherry, and Richard L. McVaney, Parties in Interest-Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 599

804 F.2d 599

55 USLW 2291

UNITED STATES of America, Petitioner, v. Honorable Jim R. CARRIGAN, Respondent, and Peter Kiewit Sons' Company, Harold L. Cherry, and Richard L.

McVaney, Parties in Interest-Respondents.

No. 86-2152.

United States Court of Appeals, Tenth Circuit.

Nov. 7, 1986.

William P. Sellers, Peter B. Clark, and Barbara N. Bandfield, Trial Attys., U.S. Dept. of Justice, Washington, D.C., for petitioner.

Daniel J. Sears, Denver, Colo., for respondent.

Harold A. Haddon, Haddon, Morgan & Foreman, Denver, Colo., for parties in interest-respondents.

Before LOGAN, SEYMOUR and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

This is a petition for a writ of mandamus seeking vacation of a pretrial order directing that defendants in a criminal action be allowed to depose particular prospective government witnesses. In the underlying criminal action, a mail fraud case brought against defendants Peter Kiewit Sons' Co., Harold L. Cherry, and Richard L. McVaney in connection with a federally-funded bridge construction project, several government witnesses refused defense requests to interview them. Alleging that the witnesses' refusal was the result of government prosecutors' interference with defense counsel access to the witnesses, defendants filed a motion requesting the district court to advise two prospective witnesses, Floyd Jett and Donald Steele, that it would be appropriate for them to submit to defense interviews.

The court held a hearing during which it heard testimony of prospective government witnesses Jett and Steele; another prospective government witness, Katherine Williams; the witnesses' attorney, Neil Lee Thompson; and defendants' investigator, R. Jon Foster. The district court then ordered that defendants be permitted to take the depositions of Jett and Steele in the presence of their attorney and the government's counsel. The court based its order on findings of fact that the prosecutors' statements, advice and conduct discouraged the witnesses from communicating with the defense, "at least strongly implied that the witnesses should decline the requested defense interviews," and "substantially chilled these witnesses' previously expressed willingness to discuss the facts with the defense." Memorandum and Order at 10, 11, Hearing Transcript 7/22/86 at II, 3. Accordingly, the court concluded that the order was necessary, pursuant to Fed.R.Crim.P. 16(d) and the "court's inherent power to enforce fair procedures to assure fair trial," to "reopen the access to these witnesses that existed before the government's actions." Memorandum and Order at 12.

The government petitioned this court to issue a writ of mandamus vacating the district court's order on the grounds that the order exceeded the court's authority under Fed.R.Crim.P. 15, and violated the witnesses' rights to choose not to speak with defense counsel. Although the judge's Memorandum and Order at one point mentions ordering the government to make the witnesses available, Memorandum and Order at 3, the order appears to have been directed at the witnesses themselves, id. at 12; Hearing Transcript 7/22/86 at II, 3-4. The witnesses have not petitioned this court or otherwise objected on the record to the district court's order. ¹ Mandamus is a drastic and extraordinary remedy, used in 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.' ... Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)). To ensure that the writ will issue only in extraordinary circumstances, the Supreme Court has required that the petitioner show a clear and indisputable right to relief. Allied Chemical, 449 U.S. at 35. We have accordingly limited issuance of mandamus writs to "those exceptional cases where the inferior court acted wholly without jurisdiction or so clearly abused its discretion as to constitute usurpation of power." In re Dalton, 733 F.2d 710, 716 (10th Cir.1984), cert. dismissed, 469 U.S. 1185, 105 S.Ct. 947, 83 L.Ed.2d 959 (1985). Therefore, to grant the government's petition in the case before us here, we must find either (1) that the district court acted wholly without jurisdiction, or (2) that the district court so clearly abused its discretion as to constitute usurpation of power.

I

Does a district court have authority in a criminal case, in any circumstances, to order pretrial depositions of the prosecution's witnesses by a defendant? In searching for this power we must consider these sources: Federal Rules of Criminal Procedure 15(a) and 16(d), and the court's inherent power to control the conduct of its trials and to impose sanctions in connection with that supervisory power.

Fed.R.Crim.P. 15 explicitly treats depositions. Under subsection (a) depositions of "a prospective witness of a party" may be taken when in the exceptional circumstances of the case such taking is in the interest of justice. The advisory and legislative committee notes make clear that Rule 15 does not authorize a party to take discovery depositions of the adversary party's witnesses. Fed.R.Crim.P. 15, Notes of the Advisory Committee on 1974 Amendment; Notes of Committee on the Judiciary, H.R.Rep. No. 94-247, U.S.Code Cong. & Admin.News 1975, p. 674, 1975 Amendment. The case law has confirmed this construction of Rule 15, holding that it does not contemplate use of depositions of adverse witnesses as discovery tools in criminal cases. See, e.g., United States v. Fischel, 686 F.2d 1082, 1091 (5th Cir.1982); United States v. Adcock, 558 F.2d 397, 406 (8th Cir.), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 377 (1977).

Rule 16 treats discovery and inspection in criminal cases. Rule 16(d) places the regulation of discovery in the hands of the trial judge. The subsection appears to give the district court significant discretionary power to make such orders as are appropriate. In context, however, Rule 16 appears to limit discovery to items other than depositions. The rule states that the court may permit a defendant to have access to tangible items, to copy written papers, and to receive statements under certain circumstances. Moreover, in 1974, amendments to Rule 16 were proposed to permit parties access, in normal circumstances, to the names and addresses of the other side's witnesses. Those proposed amendments were rejected by the Conference Committee, which stated:

"A majority of the Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. Discouragement of witnesses and improper contact directed at influencing their testimony, were deemed paramount concerns in the formulation of this policy."

Fed.R.Crim.P. 16, 1975 Amendment, Conference Committee Notes, H.R.Rep. No. 94-414, U.S.Code Cong. & Admin.News 1975, pp. 674, 713. In view of Congress' explicit rejection of discovery of the identity of witnesses, we cannot read Rule 16 as providing a basis for the trial court to order the depositions of adverse witnesses in criminal prosecutions.

In our view, the only possible source for the district court's authority to make the order it did in the present case is in its inherent power to control and supervise its own proceedings. Cf. Fischel, 686 F.2d at 1091. As a sanction for government misbehavior, can the trial court order the depositions of specific government witnesses by defendants?

Against finding that the court had the inherent authority to make this order is the scheme of the Federal Rules of Criminal Procedure, which provide detailed rules for essentially all aspects of criminal trials and contain no explicit statement that the trial court has such power. Those rules authorize certain explicit sanctions for particular infractions: Rule 26.2(e) permits the court to strike the testimony of a witness or to declare a mistrial for failure to comply with an order to deliver a statement; Rule 48(b) permits the court to dismiss a case if there is unnecessary delay in presenting charges to a grand jury or to a court, or there is unnecessary delay in bringing a defendant to trial; Rule 16(d)(2) permits the court to prohibit a party from introducing evidence it has not disclosed as the court required. What the district court did here is nowhere specifically authorized as a sanction.

On the other hand, the courts have long recognized that trial judges must be able to control their own proceedings to ensure the fair administration of justice within the confines of the law. We have recognized the principle that witnesses in a criminal prosecution belong to no one, and that, subject to the witness' right to refuse to be interviewed, both sides have the right to interview witnesses before trial.

"As a general rule, a witness belongs neither to the government nor to the defense. Both sides have the right to interview witnesses before trial. Callahan v. United States, 371 F.2d 658 (9th Cir.1967); United States v. Long, 449 F.2d 288 (8th Cir.1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972). Exceptions to this rule are justifiable only under the 'clearest and most compelling circumstances.' Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966)."

United States v. Cook, 608 F.2d 1175 (9th Cir.1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); accord United States v. Pinto, 755 F.2d 150, 152 (10th Cir.1985); United States v. Walton, 602 F.2d 1176, 1179-80 (4th Cir.1979). This view is bolstered by the American Bar Association's...