United States v. Alexander, Cr.A.No. 80-CR-54.

• Decision Date: 07 January 1982
• Docket Number: Cr.A.No. 80-CR-54.
• Citation: 529 F. Supp. 452
• Parties: UNITED STATES of America, Plaintiff, v. James Edward ALEXANDER, Defendant.
• Court: U.S. District Court — District of Colorado

529 F. Supp. 452

UNITED STATES of America, Plaintiff, v. James Edward ALEXANDER, Defendant.

Cr.A.No. 80-CR-54.

United States District Court, D. Colorado.

January 7, 1982.

Joseph F. Dolan, U.S. Atty., Charles H. Torres, Asst. U.S. Atty., Denver, Colo., for plaintiff.

James W. Nearen, Jr., Denver, Colo., for defendant.

MEMORANDUM OPINION

WINNER, Chief Judge.

Defendant has moved to dismiss saying that he can't be tried on the charges for which he has been indicted. He says this because of the Speedy Trial Act, and neither counsel nor I have been able to find a case in point. The government and appointed defense counsel have filed briefs, and the industry and professional skill of appointed counsel in representing his client should not go unnoticed. He is commended for his efforts, albeit his compensation is mostly by way of commendation rather than by financial reward paid under the Criminal Justice Act. James W. Nearen, Jr.'s work has been in the highest traditions of the legal profession.

Defendant Alexander was one of several defendants, and his case was severed for trial purposes. Trial testimony and post-trial hearings in the companion cases have shown that most unusual treatment has been afforded this matter by the Justice Department. Charges have been leveled at the Justice Department, the United States Attorney's office for the Southern District of New York and the same office for the District of Colorado. I have conducted numerous hearings, and so has a sub-committee of the Judiciary Committee of the United States Senate. Whether there is any fire is something which is unproven, but there is undeniably a lot of smoke when one looks at the accusation which have been made by the defendants, the national press and United States Senators, and those accusations go to the question of a fair trial under the principles of justice governing trials in this country. When it was shown that material required to be furnished under 18 U.S.C. § 3500 had not been supplied, I ordered a new trial. In doing so I spoke hastily and I created an impression that this was the only ground for the new trial and I failed to make the requisite finding of prejudice. That the failure to comply with § 3500 was the straw which broke the camel's back rather than the single reason for the new trial order I tried to explain in an order entered on the government's motion for reconsideration of the new trial order. In its entirety, that order says:

"I ordered a new trial in this case. I did so because I think that the evidence in the case against this defendant is weak; that the slightest change in the testimony might change the result and that the interests of justice require a new trial. The government failed to comply with Brady, but that is not the only error on the part of the prosecution. I just don't think that the defendant received a fair trial taking into account all of the surrounding facts and circumstances, including the many problems which have developed in the companion cases in which James Feeney and Kevin Krown are charged. Evidence vital to defendants has been held back, and the government must accept the consequences of its conscious decision to keep facts secret.

"I have now been asked to change my mind. I decline to to so. The government wants some sort of a stay while it thinks about appellate review. I don't know how to stay an order granting a new trial and I decline to try to do so. If the government wants appellate review, it can ask for it, but I recommend that a long, hard look be given to a case cited in some of the appellate proceedings in Feeney. The case I have in mind is Allied Chemical Corporation v. Daiflon, Inc. (1980) 449. U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193. That was a summary reversal of the Court of Appeals' use of mandamus to order restoration of part of a jury verdict set aside on motion for new trial. In the course of the summary reversal, the Supreme Court said that mandamus wouldn't lie and it said, `An order granting a new trial is interlocutory in nature and therefore not immediately appealable.' "I mention this settled law in support of my belief that there is no stay of any sort which will interrupt the running of the time specified in the Speedy Trial Act for holding new trials, and I mention it as a word of caution to the government.

"Dated this 27th day of July, 1981."

The case to which I invited the government's attention is one which resembles this one in many respects. It was a civil case, but I perceive no reason that the rule there announced should be different in criminal cases. In its summary reversal of the Tenth Circuit, 612 F.2d 1249, the Supreme Court, 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 1931, explained that the trial judge granted a new trial. Being cognizant of the rule that a new trial ruling is interlocutory, plaintiff there did exactly what the government did here, and it tried to get around the non-appealability of an interlocutory order rule by seeking to mandamus Judge Bohanon to reinstate the jury verdict. As I have said, the case was summarily reversed by the Supreme Court with an opinion which says, inter alia:

"An order granting a new trial is interlocutory in nature and therefore not immediately appealable. The question presented by this petition is therefore whether a litigant may obtain a review of an order concededly not appealable by way of mandamus. If such review were permissible, then the additional question would be presented as to whether the facts in this particular case warrant the issuance of the writ.

. . . . .

"Although a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances `would undermine the settled limitations upon the power of an appellate court to review interlocutory orders.' Will v. United States, supra 389 U.S. 90 at 98, n. 6 88 S.Ct. 269 at 272 n.6, 19 L.Ed.2d 305.

"This Court has recognized that the writ of mandamus `has traditionally been used in the 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."' Will v. United States, supra, at 95 88 S.Ct. at 273 quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy. Will v. United States, supra, at 95 88 S.Ct. at 273.

"The reasons for this Court's chary authorization of mandamus as an extraordinary remedy have often been explained. See Kerr v. United States District Court, 426 U.S. 394, 402-403 96 S.Ct. 2119, 2123-2124, 48 L.Ed.2d 725 (1976). Its use has the unfortunate consequence of making a district court judge a litigant, and it indisputably contributes to piecemeal appellate litigation. It has been Congress' determination since the Judiciary Act of 1789 that as a general rule appellate review should be postponed until after final judgment has been rendered by the trial court. A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would `run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.' Id., at 403 96 S.Ct. at 2124. In order to insure that the writ will issue only in extraordinary circumstances, this Court has required that a party seeking issuance have no other adequate means to attain the relief he desires, ibid.; Roche v. Evaporated Milk Assn., supra, at 26 63 S.Ct. at 941 and that he satisfy the `burden of showing that his right to issuance of the writ is "clear and indisputable."' Bankers Life & Cas. Co. v. Holland, supra 346 U.S. 379 at 384 74 S.Ct. 142 at 148, 98 L.Ed. 106 quoting United States v. Duell, 172 U.S. 576, 582 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899). In short, our cases have answered the question as to the availability of mandamus in situations such as this with the refrain: `What never? Well, hardly ever!' "A trial court's ordering of a new trial rarely, if ever, will justify the issuance of a writ of mandamus. On the contrary, such an order is not an uncommon feature of any trial which goes to verdict. A litigant is free to seek review of the propriety of such an order on direct appeal after a final judgment has been entered. Consequently, it cannot be said that the litigant `has no other adequate means to seek the relief he desires.' The authority to grant a new trial, moreover, is confided almost entirely to the exercise of discretion on the part of the trial court. Where a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is `clear and indisputable.' Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666 98 S.Ct. 2552, 2559, 57 L.Ed.2d 504 (1978) (plurality opinion).

"To overturn an order granting a new trial by way of mandamus indisputably undermines the policy against piecemeal appellate review. Under the rationale employed by the Court of Appeals, any discretionary order, regardless of its interlocutory nature, may be subject to immediate judicial review. Such a rationale obviously encroaches on the conflicting policy against piecemeal review, and would leave that policy at the mercy of any court of appeals which chose to disregard it."

With attention called to Allied Chemical, and having been told my views of the Speedy Trial Act, the government went ahead and asked for a writ of mandamus requiring me to set aside the grant of a new trial and asking that I stay all proceedings. I said I didn't know how I could stay anything and that I thought a new trial was required. The government also asked the Tenth Circuit to stay everything.

However, with copies to all counsel, I wrote the Clerk of the Court of Appeals the same day the mandamus action and the stay petition were filed in that Court August 24, 1981:

"I have received the government's

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