United States v. Julius Mayer, No. 462

• Court: United States Supreme Court
• Writing for the Court: Hughes
• Citation: 35 S.Ct. 16,59 L.Ed. 129,235 U.S. 55
• Parties: UNITED STATES v. JULIUS M. MAYER, Judge of the District Court of the United States for the Southern District of New York
• Docket Number: No. 462
• Decision Date: 16 November 1914

235 U.S. 55 35 S.Ct. 16 59 L.Ed. 129 UNITED STATES

v.

JULIUS M. MAYER, Judge of the District Court of the United States for the Southern District of New York.

No. 462. Argued October 22 and 23, 1914. Decided November 16, 1914.

Page 56

The facts stated in the certificate may be summarized as follows:

On March 14th, 1913, one Albert Freeman, with two other individuals, was convicted in the district court, southern district of New York, on five indictments for violation of the statutes relating to the use of the mails and for a conspiracy. On that day judgments of conviction were entered and sentences were imposed as to certain of these indictments, or counts therein, sentence being suspended as to others; and on March 24th, 1913, the defendant Freeman sued out a writ of error from the circuit court of appeals to review the judgments of conviction. Assignments of error were filed; and on May 13th, 1913, the plaintiff in error was admitted to bail by the appellate court. No bill of exceptions has been settled or filed or argument had.

On January 12th, 1914, the plaintiff in error gave notice of application in the district court to set aside the judgments of conviction, and for the quashing of the indictments, or for a new trial. The grounds were, among

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others, (1) that the defendant had been deprived of a fair trial by the misconduct of an assistant United States attorney; and (2) that one juror, when examined on his voir dire, concealed a bias against the defendant. It is found as a fact by the district judge, that neither the defendant nor his counsel had knowledge of the facts on which the motion was based until after the conclusion of the trial and the expiration of the term as to those counts upon which sentence had been imposed, and that these facts could not have been discovered earlier by reasonable diligence.

Upon the hearing of the application, District Judge Mayer raised the question of the jurisdiction of the district court to entertain it, in view of the fact that the term had expired. Thereupon the United States attorney submitted a memorandum tendering his consent that the application be heard upon the merits. The application was heard and District Judge Mayer handed down his decision granting a new trial, 'on the ground that defendant had not had a trial by an impartial jury for the reason that one of the jurors at the time of his selection entertained a bias against the defendant, resulting from the juror's observations of the conduct of the defendant and other corporate officers in relation to the production of certain corporate records before a grand jury of which he had been a member, the juror having concealed his bias on his examination on the voir dire for the purpose of securing the jury fees, and the events of the trial having been such as to strengthen and confirm this bias.' The order vacating the judgments of conviction and granting a new trial has not yet been entered, the district judge having filed a memorandum stating in substance that the question of jurisdiction was an important one, and that the order would be withheld until the United States attorney had an opportunity to raise the question in a higher court.

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Thereafter, and on April 6th, 1914, the United States attorney procured an order in the circuit court of appeals, directing District Judge Mayer to show cause why a writ of prohibition should not be issued from that court, forbidding the entry of an order vacating the judgments of conviction and granting a new trial, upon the ground that the district court was without jurisdiction to enter it. Certain of the facts upon which the motion for a new trial was granted do not appear in the record of the previous trial.

The questions certified are:

'Question I.

'A. When a writ of error has been issued to review a judgment of conviction in a criminal cause entered in a district court, and thereafter, upon a motion made in the district court after the expiration of the term at which the judgment was entered, said district court has indicated its intention to enter an order vacating the judgment and ordering a new trial on facts discovered after the expiration of said term, and not appearing in the record of the previous trial, has the circuit court of appeals jurisdiction to issue a writ of prohibition against the entry of such order by the district court, when, in the opinion of the circuit court of appeals, the district court is without jurisdiction to enter such order?

'B. Or has the Supreme Court of the United States sole jurisdiction to issue such writ of prohibition, under the circumstances above stated?

'In case question I. A be answered in the affirmative, then——

'Question II.

'When a writ of error has been issued to review a judgment of conviction in a criminal cause entered in a district court, has the district court, upon a motion made after

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the term at which judgment was entered, jurisdiction to set aside the judgment and order a new trial on facts discovered after the expiration of said term, and not appearing in the record of the previous trial?

'Question III.

'Whether, when a district court has itself raised the question of its jurisdiction to entertain a motion made after the expiration of the term, to vacate a judgment of conviction, and the United States attorney thereupon tendered its consent to the hearing of the motion on the merits, if the jurisdictional question raised by the court were dependent on that consent, the United States is debarred by such tender from raising the question of jurisdiction of the district court to vacate said judgment?'

Solicitor General Davis and Mr. Karl W. Kirchwey for the United states.

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Messrs. Wilson B. Brice and Samuel Williston for Julius M. Mayer.

Statement by Mr. Justice Hughes:

[Argument of Counsel from pages 60-65 intentionally omitted]

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Mr. Justice Hughes, after making the foregoing statement, delivered the opinion of the court:

Preliminarily, objection is raised to the authority of this court to answer the questions certified. Under § 239 of the Judicial Code [36 Stat. at L. 1157, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 228], questions may be certified by the circuit court of appeals 'in any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight;' and § 128 provides that the circuit courts of appeals 'shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the district courts,' etc. The argument is that an application to a circuit court of appeals for a writ of prohibition is an original proceeding. But the jurisdiction of the circuit courts of appeals is exclusively appellate (act of March 3, 1891, §§ 2, 6 [26 Stat. at L. 826, 828, chap. 517, U. S. Comp. Stat. 1901, pp. 547, 549], Judicial Code, §§ 117, 128; Whitney v. Dick, 202 U. S. 132, 137, 138, 50 L. ed. 963, 965, 26 Sup. Ct. Rep. 584); and their authority to issue writs is only that which may properly be deemed to be auxiliary to their appellate power (Judicial Code,

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§ 262; Rev. Stat. § 716, U. S. Comp. Stat. 1901, p. 580; act of March 3, 1891, chap. 517, § 12, 26 Stat. at L. 826, 829, U. S. Comp. Stat. 1901, pp. 488, 553; Whitney v. Dick, supra; McClellan v. Carland, 217 U. S. 268, 279, 280, 54 L. ed. 762, 766, 767, 30 Sup. Ct. Rep. 501). Section 128 defines the class of cases in which the circuit court of appeals may exercise appellate jurisdiction, and, where a case falls within this class, a proceeding to procure the issue of a writ in aid of the exercise of that jurisdiction must be regarded as incidental thereto, and hence as being embraced within the purview of § 239, authorizing the court to certify questions of law.

It is also objected that the certificate sends up the entire case. It is a familiar rule that this court cannot be required through a certificate under § 239 to pass upon questions of fact, or mixed questions of law and fact; or to accept a transfer of the whole case; or to answer questions of objectionable generality, which, instead of presenting distinct propositions of law, cover unstated matters 'lurking in the record,' or questions that are hypothetical and speculative. United States v. Bailey, 9 Pet. 267, 273, 9 L. ed. 124, 126; Webster v. Cooper, 10 How. 54, 55, 13 L. ed. 325, 326; Jewell v. Knight, 123 U. S. 426, 432-435, 31 L. ed. 190, 192-194, 8 Sup. Ct. Rep. 193; United States v. Hall, 131 U. S. 50, 52, 33 L. ed. 97, 98, 9 Sup. Ct. Rep. 663; Cross v. Evans, 167 U. S. 60, 63, 42 L. ed. 77, 78, 17 Sup. Ct. Rep. 733; United States v. Union P. R. Co. 168 U. S. 505, 512, 42 L. ed. 559, 561, 18 Sup. Ct. Rep. 167; Chicago, B. & Q. R. Co. v. Williams, 205 U. S. 444, 452, 453, 51 L. ed. 875, 878, 879, 27 Sup. Ct. Rep....