United States v. Igoe

• Decision Date: 07 May 1964
• Docket Number: No. 14412 Original,14377.,14412 Original
• Citation: 331 F.2d 766
• Parties: UNITED STATES of America, Petitioner, v. The Honorable Michael L. IGOE, United States District Judge of the United States District Court for the Northern District of Illinois, Respondent. UNITED STATES of America, Plaintiff-Appellant, v. Orlando P. COLAMATTEO, Defendant Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

331 F.2d 766 (1964)

UNITED STATES of America, Petitioner, v. The Honorable Michael L. IGOE, United States District Judge of the United States District Court for the Northern District of Illinois, Respondent.

UNITED STATES of America, Plaintiff-Appellant, v. Orlando P. COLAMATTEO, Defendant Appellee.

Nos. 14412 Original, 14377.

United States Court of Appeals Seventh Circuit.

May 7, 1964.

Edward V. Hanrahan, U. S. Atty., John Powers Crowley, and Frank E. McDonald, Asst. U. S. Attys., John Peter Lulinski, Asst. U. S. Atty., of counsel, for petitioner.

Anna R. Lavin, Chicago, Ill., for respondent.

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

KNOCH, Circuit Judge.

This appeal and this petition for mandamus arise out of the following circumstances. Orlando P. Colamatteo was indicted on a charge of violating Title 26 U.S.C. § 7201, evasion of income tax. On appeal, this Court reversed dismissal of that indictment and remanded the cause to the District Court for trial. United States v. Colamatteo, 7 Cir., 1963, 312 F.2d 154.

The case was set for trial on June 17, 1963. The government indicated that it would not consent to defendant's waiver of trial by jury, and the District Judge set the case for trial on September 10, 1963. Numerous subpoenas previously issued were continued in force and effect. The case was held on the trial call on September 10 and 11, 1963, and was called for trial September 12, 1963.

The defendant, at that time, signed a waiver of his right to trial by jury. Although the government clearly indicated its refusal to consent to such waiver, the District Judge approved the waiver and set the cause for trial the same day at 2:00 P.M., at which time the government declined to proceed to trial with its witnesses unless a jury were empaneled. The District Court dismissed the cause "for want of prosecution."

It is clear that the cause was dismissed because the government withheld its consent to waiver of trial by jury.

The government appealed the District Court's decision, but has also prayed that, if appellate jurisdiction is wanting to review the dismissal of the case, this Court issue its writ of mandamus directing that the dismissal order of September 12, 1963, be vacated and this cause proceed to trial on the indictment.

Rule 23 of the Federal Rules of Criminal Procedure provides:

"(a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government."

The Rules, promulgated by the Supreme Court of the United States, have the force and effect of law and are binding on District Judges conducting criminal trials in the United States District Courts. United States v. Hvass, 1958, 355 U.S. 570, 575, 78 S.Ct. 501, 2 L.Ed.2d 496. This Court has authority to issue its writ to ensure the proper application of those rules and in aid of its appellate jurisdiction. Howes Leather Co. v. La Buy, 7 Cir., 1955, 226 F.2d 703, 708, affd. sub nom. La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); United States v. Smith, 331 U.S. 469, 477, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947); Ex parte United States, 287 U.S. 241, 246, 53 S.Ct. 129, 77 L.Ed. 283 (1932); Los Angeles Brush Corp. v. James, 272 U.S. 701, 707, 47 S.Ct. 286, 71 L.Ed. 481 (1927).

Rule 23 is clear and unambiguous. For defendant effectively to waive his Constitutional right to trial by jury, he must secure both the approval of the Court and the consent of the government. Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263 (1930); Dixon v. United States, 110 U.S.App.D.C. 305, 1961, 292 F.2d 768, 769.

Respondent argues that the reasoning in Patton demonstrates that the primary object of the Rule later promulgated to reflect existing practice, and based on Patton, as indicated by the revisor's notes, is to protect the defendant; that the defendant here, an educated man, who has made a reasoned and intelligent waiver, needs no protection. Thus respondent contends that the interpretation of the Rule here sought by the government would be inconsistent with Patton and would give the government a substantive right to trial by jury through a mere procedural rule. In effect, respondent is saying that the defendant has an absolute right to waive trial by jury. The Constitutional right to trial by jury does not give rise to a correlative right to trial without jury. See C. I. T. Corp. v. United States, 9 Cir., 1945, 150 F.2d 85, 92, where an equally well reasoned and intelligent waiver of trial by jury was sought by the defendant, and cases there cited.

It is also contended by respondent that grant of the government's prayer will expose the defendant, Orlando P. Colamatteo, to double jeopardy. We disagree. No jury had been empaneled, no evidence had been heard, the trial had not begun when the cause was dismissed. Hunter v. Wade, 10 Cir., 1948, 169 F.2d 973, 975, affd. 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974.

Respondent also argues that delay in filing this petition for writ of mandamus should bar the relief sought under the doctrine of laches. We have considered the cases on which respondent relies: United States ex rel. Arant v. Lane (1919), 249 U.S. 367, 39 S.Ct. 293, 63 L. Ed. 650; In re United Shoe Machinery Corp., 1 Cir., 1960, 276 F.2d 77, and find both involve a much longer lapse of time than in the case before us, with no adequate justification for the delay in either instance.

Here notice of appeal was filed promptly and record of an appeal docketed in apt time. The petition...