United States v. Bondy

• Decision Date: 23 December 1948
• Docket Number: Docket No. 21188.
• Citation: 171 F.2d 642
• Parties: UNITED STATES v. BONDY.
• Court: U.S. Court of Appeals — Second Circuit

171 F.2d 642 (1948)

UNITED STATES v. BONDY.

Docket No. 21188.

United States Court of Appeals Second Circuit.

December 23, 1948.

John F. X. McGohey, U. S. Atty., of New York City (Bruno Schachner, Roy M. Cohn, and Clark S. Ryan, Asst. U. S. Atty., all of New York City, Ira B. Kirkland, of Washington, D. C., and Alecia M. Conner, Office of Alien Property, of New York City, of counsel), for petitioner.

Root, Ballantine, Harlan, Bushby & Palmer, of New York City (John M. Harlan and Walter Pond, both of New York City, of counsel), for intervener Nelson Littell.

Harper & Matthews, of New York City (Ben A. Matthews, of New York City, of counsel), for intervener Lewis H. Marks.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

PER CURIAM.

This is an application by the United States for leave to file a petition of mandamus to direct District Judge Bondy to vacate an order made by him on November 5, 1948 in a criminal case entitled United States v. Nelson Littell and Lewis H. Marks. The defendants in that case have been allowed to intervene in this proceeding in opposition to the Government's application. The order which the petitioner seeks to have vacated granted, in part, the defendants' motion for a bill of particulars and directed that the books, papers and documents designated in a subpoena served by the defendants upon the United States Attorney for the Southern District of New York be produced for inspection by the defendants and their attorneys prior to the trial. The petitioner contends that the terms of the order are so sweeping as to impose impossible standards of precision in pleading and, in effect, to require the United States to furnish the defendants in advance of the trial the evidence to be used against them.

Before the merits of the order can be reached, the jurisdiction of this court to grant the writ must be considered. Our power is defined in § 262 of the Judicial Code, which now appears as § 1651(a) of the 1948 Revision of Title 28 U.S.C.A. and reads as follows:

"(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law."

We have no power to issue writs except in aid of our appellate jurisdiction. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25, 63 S.Ct. 938, 87 L.Ed. 1185. The order complained of is interlocutory and not directly appealable. 28 U.S.C.A. 1948 Revision, §§ 1291, 1292; Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275; United States v. Rosenwasser, 9 Cir., 145 F.2d 1015, 1018, 156 A.L.R. 1200. Most relevant is the statement in United States Alkali Ass'n v. United States, 325 U.S. 196, 203, 65 S.Ct. 1120, 1125, 89 L.Ed. 1554, that where "the statutory scheme permits appellate review of interlocutory orders only on appeal from the final judgment, review...