United States v. Hughes, 24101

• Citation: 413 F.2d 1244
• Decision Date: 02 June 1969
• Docket Number: 24120 and 24121.,No. 24101,24101
• Parties: UNITED STATES of America, Petitioner, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent. GIFFORD-HILL-AMERICAN, INC., Petitioner, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent. UNITED CONCRETE PIPE CORPORATION and Lloyd R. Earl, Petitioners, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

413 F.2d 1244 (1969)

UNITED STATES of America, Petitioner, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent.

GIFFORD-HILL-AMERICAN, INC., Petitioner, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent.

UNITED CONCRETE PIPE CORPORATION and Lloyd R. Earl, Petitioners, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent.

Nos. 24101, 24120 and 24121.

United States Court of Appeals Fifth Circuit.

June 2, 1969.

Thomas S. Howard, Atty., Dept. of Justice, Chicago, Ill., Howard E. Shapiro, Ronald B. Lewis, Attys., Dept. of Justice, Washington, D. C., for the United States.

Irwin F. Woodland, Los Angeles, Cal., William P. Fonville, Dallas, Tex., for United Concrete and Lloyd R. Earl.

Stanley E. Neely, Dallas, Tex., Laughlin E. Waters, William L. Scott, Los Angeles, Cal., for Gifford-Hill-American, Inc. Gregory B. Hovendon, Atty., Dept. of Justice, Washington, D. C., for Sarah T. Hughes.

Before GODBOLD and SIMPSON, Circuit Judges, and McRAE, District Judge.

GODBOLD, Circuit Judge:

These three petitions for writs of mandamus raise important questions concerning the construction of the discovery provisions of the recently revised Federal Rules of Criminal Procedure, Fed.R. Crim.P. 16.¹ The cases were assigned for oral argument and supplemental briefing in an earlier opinion of this court. United States v. Honorable Sarah T. Hughes, 388 F.2d 236 (5th Cir. 1968).

All three cases arise out of a pending Sherman Act prosecution² in the Northern District of Texas. An indictment was returned January 20, 1966, charging United Concrete Pipe Corporation, Gifford-Hill-American, Inc., and Lloyd R. Earl, formerly Chairman of the Board of United, with conspiracy to fix prices, to submit rigged non-competitive bids and to divide the Texas market for concrete pressure pipe. The defendants in that criminal prosecution are the petitioners in Nos. 24120 and 24121. The United States is the petitioner in No. 24101.

On July 21, 1966, and subsequently,³ the defendants filed pre-trial motions for discovery under Rule 16.⁴ Under Rule 16 (a) (3), which allows a defendant to discover his recorded testimony before a grand jury, they moved for the production of the testimony of all present and former officers and employees of the corporate defendants before the Dallas, Texas grand jury which returned the indictment and a Los Angeles grand jury which previously had investigated a similar alleged conspiracy involving some of the defendants in the Texas prosecution. The defendants also moved under 16(b), which allows a defendant discovery upon a showing of a materiality to the preparation of the defense and of reasonableness, for the production of all documents material to the preparation of the defense, including transcripts of the Dallas and Los Angeles grand juries.

In an order reported at 41 F.R.D. 538,⁵ the motions were granted in part and denied in part. Under 16(a) (3) District Judge Hughes allowed the corporate defendants to discover the testimony of officers and former officers before both grand juries.⁶ Under 16(b) she allowed the defendants to discover documents submitted by all witnesses to the Dallas grand jury and by two key witnesses to the Los Angeles grand jury. Both the prosecution and the defendants filed the instant petitions attacking the court's rulings.

Following our initial opinion in this case, and pursuant to a suggestion therein, the defendants filed supplemental motions in the district court seeking discovery of the testimony of officers and employees on the basis of Fed.R.Crim.P. 6(e).⁷ The district court, on a finding of particularized need, granted the same discovery under Rule 6(e) which it previously had granted under its 16(a) (3) order, plus the testimony of two named employees of United.⁸ The court refused to grant discovery of the testimony of several additional employees on the ground that no particularized need existed.

Although the government insists that the district court's original order is erroneous insofar as it rests on Rule 16 (a) (3), it does not attack the second order issued under Rule 6(e). Since the second order grants the same relief as the first (plus the testimony of two additional witnesses), the government's mandamus petition, No. 24101, is effectually mooted. However, since the testimony of defendants' employees granted under the Rule 6(e) order is that of less than all their employees, and since they claim to be entitled to the testimony of all employees as a matter of right under Rule 16(a) (3) and 16(b), their petitions remain viable.⁹

The issues that now remain for decision are:

(I) Is mandamus an appropriate remedy in this case?

(II) Under Rule 16(a) (3), are the corporate defendants entitled to discovery of the testimony given before the Los Angeles and Dallas grand juries by their present and former officers and employees?

(III) Did the court properly refuse the defendants\' motions under Rule 16 (b) for the production of all documents in the government\'s possession material to the preparation of the defense and for the disclosure of the grand jury transripts?

1. Propriety of mandamus

All parties join in urging that mandamus is an appropriate remedy. But if we lack judicial power parties may not confer it upon us by concurring in a request for action. Therefore, we undertake an independent evaluation of the propriety of mandamus in this case.

The jurisdictional predicate of the All Writs Act, 28 U.S.C.A. § 1651, traditionally has been that a writ "issue in aid of an exercise of the Court of Appeals' appellate jurisdiction." Will v. United States, 389 U.S. 90, 95 n. 4, 19 L.Ed.2d 305, 310 n. 4 (1967).¹⁰ The Court in Will illustrated differing views of this requirement's application to interlocutory orders in criminal cases with the following citation: "Compare In re United States, 348 F.2d 624 (C.A. 1st Cir. 1965), with United States v. Bondy, 171 F.2d 642 (C.A.2d Cir. 1948)." Id. In Bondy the government sought mandamus to determine the propriety of a pre-trial order granting discovery to the defendants. The Second Circuit pointed out that because the government may not appeal in a criminal case, the order could not otherwise be reviewed by the court of appeals. It concluded that mandamus was not appropriate since "we have neither actual nor potential jurisdiction to review the order." 171 F.2d at 644. The First Circuit took a broader view of "potential jurisdiction" in In re United States, supra. Because an order allowing a criminal defendant to take depositions of government witnesses could be tested prior to trial by a contempt proceeding or by dismissal of the indictment, Judge Aldrich stated, "we see no reason why the government should not be able to do directly what it could effectuate indirectly." 348 F.2d at 625.

The present case fits within the views of both the First and Second Circuits of "potential jurisdiction." Because of the present posture of the case the relief which we could grant on mandamus would operate in favor of the defendants. The defendants, the only parties claiming to be prejudiced by the 16(a) (3) and 16 (b) orders, could, if convicted, challenge those orders on appeal. By passing on the court's orders at this juncture we would, in Judge Aldrich's terms, be doing directly what we could do indirectly. Moreover, unlike Bondy, we would not be reviewing an interlocutory order which could not be otherwise reviewed in the court of appeals. Insofar as the jurisdictional prerequisites of 28 U.S.C.A. § 1651 are concerned, we conclude that the mandamus petition is properly before us.

Our finding of jurisdiction is only the beginning of the inquiry. As the Supreme Court emphasized in Will, even when mandamus is within a court's jurisdiction it may be employed only in exceptional causes. See also Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041, 2043 (1947). We recognize, and reiterate, that extraordinary prerogative writs may not be used indiscriminately to review interlocutory orders, La Buy v. Howes Leather Co., supra, or to thwart the Congressional policy against piecemeal appeals, Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943), or to alleviate the hardship resulting from an unnecessary trial in a particular case, United States Alkali Export Ass'n, v. United States, 325 U.S. 196, 202-203, 65 S.Ct. 1120, 89 L.Ed. 1554, 1560 (1945). Our reluctance to interfere with the progress of a trial is especially strong in criminal cases, where the Sixth Amendment guarantee of a speedy trial is present. See, e. g., Will, supra; Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940).

Despite our appropriate reluctance to employ the mandamus remedy, we conclude that a cumulation of factors causes this case to be of the exceptional and extraordinary nature that justifies the use of the writ. Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed. 2d 152 (1964).¹¹ The issues presented are basic, they concern the extent of a district court's power under a newly adopted rule of procedure, and they have not been passed on by this court. See Securities and Exchange Commission v. Krentzman, 397 F.2d 55 (5th Cir. 1968). District courts within the circuit are in conflict over the questions raised in this case, see United States v. Venn, 41 F.R. D. 540 (S.D.Fla.1966); United States v. I. G. Balfour Co., Crim. No. 2407 (N.D. Ga.1967), and the exercise of our "expository and supervisory functions" will limit further disparity. LaBuy v. Howes Leather Co., supra; Atlass v. Miner, 265 F.2d 312, 313 (7th Cir. 1959), aff'd 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed. 2d 1462 (1960). The trial of the present case and similar cases would be lengthy and...