Petitioner, a federal district judge, ordered the Government to
supply certain information requested by the defendant in a bill of
particulars in a criminal case. The prosecutor refused to comply on
the ground that the request constituted a demand for a list of
prosecution witnesses, the production of which petitioner lacked
power to compel under Fed.Rule Crim.Proc. 7(f). Petitioner
thereupon indicated his intention to dismiss the indictments
against the defendant. The Government petitioned the Court of
Appeals for a writ of mandamus to compel petitioner to strike the
request for information from his bill of particulars order. On the
basis of briefs filed, that court initially denied the Government's
petition but, without new briefs or oral argument, and without
opinion, reversed itself and issued a writ of mandamus directing
petitioner to vacate his order. The Government contends that,
absent compelling considerations, a trial court may not order the
Government to produce a list of its witnesses before trial, and
thereby offend the informant's privilege.
Held: The record in this case discloses no proper
justification for the Court of Appeals to have invoked the
extraordinary writ of mandamus to review the trial court's
interlocutory order. Pp.
389 U. S.
95-107.
(a) 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."
Roche v. Evaporated Milk Assn., 319 U. S.
21,
319 U. S. 26
(1943). P.
389 U. S.
95.
(b) Appellate review should ordinarily be postponed until after
the trial court renders final judgment. This is especially
important in criminal cases, where a defendant is entitled to a
speedy trial and may not be subjected to double jeopardy. P.
389 U. S.
96.
(c) Appeals by the Government in federal criminal cases are not
favored, and mandamus may not be used as a substitute for an
interlocutory appeal. Pp.
389 U. S.
96-97.
(d) Fed.Rule Crim.Proc. 7(f) specifically empowers the trial
court to direct the filing of a bill of particulars, and that
court
Page 389 U. S. 91
has broad discretion to rule upon a request for such a bill. Pp.
389 U. S.
98-99.
(e) The request here did not call for a list of prosecution
witnesses, and the record in this case does not support the
Government's assertion that petitioner, contrary to federal rules
for pretrial criminal discovery, followed a uniform rule of
requiring the Government in criminal cases to furnish the defense,
on motion for a bill of particulars, with a list of potential
witnesses. Pp.
389 U. S.
99-104.
(f) Petitioner had manifested his willingness to narrow the
disclosure order upon a showing that the safety of individuals or
the Government's ability to produce its evidence so required, but
the Government made no such showing. P.
389 U. S.
101.
(g) The lack of an opinion by the Court of Appeals precludes any
proper appraisal of the basis for its invocation of the
extraordinary writ. Pp.
389 U. S.
104-107.
Vacated and remanded.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The question in this case is the propriety of a writ of mandamus
issued by the Court of Appeals for the Seventh Circuit to compel
the petitioner, a United States District Judge, to vacate a portion
of a pretrial order in a criminal case.
Simmie Horwitz, the defendant in a criminal tax evasion case
pending before petitioner in the Northern District of Illinois,
filed a motion for a bill of particulars, which contained thirty
requests for information. The Government resisted a number of the
requests, and, over the course of several hearings, most of these
objections
Page 389 U. S. 92
were either withdrawn by the Government or satisfied by an
appropriate narrowing of the scope of the bill of particulars by
petitioner. Ultimately the dispute centered solely on defendant's
request number 25. This request sought certain information
concerning any oral statements of the defendant relied upon by the
Government to support the charge in the indictment. It asked the
names and addresses of the persons to whom such statements were
made, the times and places at which they were made, whether the
witnesses to the statements were government agents and whether any
transcripts or memoranda of the statements had been prepared by the
witnesses and given to the Government. [
Footnote 1] After considerable discussion with counsel for
both sides, petitioner ordered the Government to furnish the
information. The United States Attorney declined to comply with the
order on the grounds that request number 25 constituted a
demand
Page 389 U. S. 93
for a list of prosecution witnesses and that petitioner had no
power under Rule 7(f) of the Federal Rules of Criminal Procedure to
require the Government to produce such a list.
Petitioner indicated his intention to dismiss the indictments
against Horwitz because of the Government's refusal to comply with
his order for a bill of particulars. Before the order of dismissal
was entered, however, the Government sought and obtained
ex
parte from the Seventh Circuit a stay of all proceedings in
the case. The Court of Appeals also granted the Government leave to
file a petition for a writ of mandamus and issued a rule to show
cause why such a writ should not issue to compel petitioner to
strike request number 25 from his bill of particulars order. This
case was submitted on the briefs, and the Court of Appeals at first
denied the writ. [
Footnote 2]
The
Page 389 U. S. 94
Government petitioned for reconsideration, however, and the
Court of Appeals, without taking new briefs or hearing oral
argument, reversed itself and without opinion issued a writ of
mandamus directing petitioner "to vacate his order directing the
Government to answer question 25 in defendant's motion for bill of
particulars." [
Footnote 3]
We
Page 389 U. S. 95
granted certiorari, 386 U.S. 955 (1967), because of the wide
implications of the decision below for the orderly administration
of criminal justice in the federal courts. We vacate the writ and
remand the case to the Court of Appeals for further
proceedings.
Both parties have devoted substantial argument in this Court to
the propriety of petitioner's order. In our view, of the case,
however, it is unnecessary to reach this question. [
Footnote 4] The peremptory 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."
Roche v. Evaporated Milk Assn., 319 U. S.
21,
319 U. S. 26
(1943). While the courts have never confined themselves to an
arbitrary and technical definition of "jurisdiction," it is clear
that only exceptional circumstances amounting to a judicial
"usurpation of power" will justify the invocation of this
extraordinary remedy.
De Beers Consol. Mines, Ltd. v. United
States, 325 U. S. 212,
325 U. S. 217
(1945). Thus, the writ has been invoked where unwarranted judicial
action threatened "to embarrass the executive arm of the Government
in conducting foreign relations,"
Ex parte Peru,
318 U. S. 578,
318 U. S. 588
(1943), where it was the only means of forestalling intrusion by
the federal judiciary on a delicate area of federal-state
relations,
Maryland v. Soper, 270 U. S.
9 (1926), where it was necessary to confine a lower
court
Page 389 U. S. 96
to the terms of an appellate tribunal's mandate,
United
States v. United States Dist. Court, 334 U.
S. 258 (1948), and where a district judge displayed a
persistent disregard of the Rules of Civil Procedure promulgated by
this Court,
La Buy v. Howes Leather Co., 352 U.
S. 249 (1957);
see McCullough v. Cosgrave, 309
U.S. 634 (1940);
Los Angeles Brush Mfg. Corp. v. James,
272 U. S. 701,
272 U. S. 706,
707 (1927) (dictum). And the party seeking mandamus has "the burden
of showing that its right to issuance of the writ is
clear and
indisputable.'" Bankers Life & Cas. Co. v. Holland,
346 U. S. 379,
346 U. S. 384
(1953); see United States v. Duell, 172 U.
S. 576, 172 U. S. 582
(1899).
We also approach this case with an awareness of additional
considerations which flow from the fact that the underlying
proceeding is a criminal prosecution. All our jurisprudence is
strongly colored by the notion that appellate review should be
postponed, except in certain narrowly defined circumstances, until
after final judgment has been rendered by the trial court.
See,
e.g., Judiciary Act of 1789, §§ 21, 22, 25, 1 Stat. 73, 83,
84, 85;
Cobbledick v. United States, 309 U.
S. 323,
309 U. S. 326
(1940);
McLish v. Roff, 141 U. S. 661
(1891). This general policy against piecemeal appeals takes on
added weight in criminal cases, where the defendant is entitled to
a speedy resolution of the charges against him.
DiBella v.
United States, 369 U. S. 121,
369 U. S. 126
(1962). Moreover, "in the federal jurisprudence, at least, appeals
by the Government in criminal cases are something unusual,
exceptional, not favored,"
Carroll v. United States,
354 U. S. 394,
354 U. S. 400
(1957), at least in part because they always threaten to offend the
policies behind the double jeopardy prohibition,
cf. Fong Foo
v. United States, 369 U. S. 141
(1962). Government appeal in the federal courts has thus been
limited by Congress to narrow categories of orders terminating the
prosecution,
see 18 U.S.C. § 3731, and the Criminal
Appeals Act is strictly
Page 389 U. S. 97
construed against the Government's right of appeal,
Carroll
v. United States, 354 U. S. 394,
354 U. S.
399-400 (1957). Mandamus, of course, may never be
employed as a substitute for appeal in derogation of these clear
policies.
E.g., Fong Foo v. United States, 369 U.
S. 141 (1962);
Parr v. United States,
351 U. S. 513,
351 U. S.
520-521 (1956);
Bank of Columbia v.
Sweeny, 1 Pet. 567,
26 U. S. 569
(1828). Nor is the case against permitting the writ to be used as a
substitute for interlocutory appeal "made less compelling . . . by
the fact that the Government has no later right to appeal."
DiBella v. United States, 369 U.
S. 121,
369 U. S. 130
(1962). [
Footnote 5] This is
not to say that mandamus may never be used to review procedural
orders in criminal cases. It has been invoked successfully where
the action of the trial court totally deprived the Government of
its right to initiate a prosecution,
Ex parte United
States, 287 U. S. 241
(1932), and where the court overreached its judicial power to deny
the Government the rightful
Page 389 U. S. 98
fruits of a valid conviction,
Ex parte United States,
242 U. S. 27
(1916). But this Court has never approved the use of the writ to
review an interlocutory procedural order in a criminal case which
did not have the effect of a dismissal. We need not decide under
what circumstances, if any, such a use of mandamus would be
appropriate. It is enough to note that we approach the decision in
this case with an awareness of the constitutional precepts that a
man is entitled to a speedy trial and that he may not be placed
twice in jeopardy for the same offense.
In light of these considerations and criteria, neither the
record before us nor the cryptic order of the Court of Appeals
justifies the invocation of the extraordinary writ in this
case.
We do not understand the Government to argue that petitioner was
in any sense without "jurisdiction" to order it to file a bill of
particulars. [
Footnote 6]
Suffice it to note that Rule 7(f) of the Federal Rules of Criminal
Procedure specifically empowers the trial court to "direct the
filing of a bill of particulars," [
Footnote 7] and that federal trial
Page 389 U. S. 99
courts have always had very broad discretion in ruling upon
requests for such bills,
compare Wong Tai v. United
States, 273 U. S. 77,
273 U. S. 82
(1927). Furthermore, it is not uncommon for the Government to be
required to disclose the names of some potential witnesses in a
bill of particulars, where this information is necessary or useful
in the defendant's preparation for trial.
See, e.g., United
States v. White, 370 F.2d 559 (C.A. 7th Cir.1966).
See
also United States v. Debrow, 346 U.
S. 374,
346 U. S. 378
(1953).
The Government seeks instead to justify the employment of the
writ in this instance on the ground that petitioner's conduct
displays a "pattern of manifest noncompliance with the rules
governing federal criminal trials." [
Footnote 8] It argues that the federal rules place settled
limitations upon pretrial discovery in criminal cases, and that a
trial court may not, in the absence of compelling justification,
order the Government to produce a list of its witnesses in advance
of trial. It argues further that in only one category of cases,
i.e., prosecutions for treason and other capital offenses,
is the Government required to turn over to the defense such a list
of its witnesses. A general policy of requiring such disclosure
without a particularized showing of need would, it is contended,
offend the informant's privilege. Petitioner, according to the
Government, adopted
"a uniform rule in his courtroom requiring the government in a
criminal case to furnish the defense, on motion for a bill of
particulars, a list of potential witnesses. [
Footnote 9]"
The Government concludes
Page 389 U. S. 100
that, since petitioner obviously had no power to adopt such a
rule, mandamus will lie under this Court's decision in
La Buy
v. Howes Leather Co., 352 U. S. 29
(1957), to correct this studied disregard of the limitations placed
upon the district courts by the federal rules. [
Footnote 10]
The action of the Court of Appeals cannot, on the record before
us, bear the weight of this justification. There is absolutely no
foundation in this record for the Government's assertions
concerning petitioner's practice. The legal proposition that
mandamus will lie in appropriate cases to correct willful
disobedience of the rules laid down by this Court is not
controverted. But the position of the Government rests on two
central factual premises: (1) that petitioner in effect ordered it
to produce a list of witnesses in advance of trial, and (2) that
petitioner took this action pursuant to a deliberately adopted
policy in disregard of the rules of criminal procedure. Neither of
these premises finds support in the record.
Petitioner repeatedly and, we think, correctly emphasized that
request number 25 did not call for a list of government witnesses.
He carefully noted that it was utterly immaterial under the terms
of request number 25 whether the Government planned to call any of
the individuals whose names were sought to the witness stand during
the trial. Furthermore, it is clear as a practical
Page 389 U. S. 101
matter that the Government's proof in this case, as in any
prosecution of this complex nature, will extend far beyond mere
damaging admissions of the defendant, and that witnesses will in
all probability be called who have never heard Horwitz make any
incriminating statements. Nor, if the list of people who have
allegedly heard Horwitz make damaging admissions is long, is it
likely that they will all be called to testify for the Government.
Thus, while the two categories have a clear probable overlap, they
are not coextensive. And, as petitioner stated in the opinion
accompanying his original order to the Government to file a bill of
particulars:
"The reason for requiring disclosure of their names . . . is not
that they will or may be witnesses, but that the defendant requires
identification of the times, places and persons present in order to
prepare his defense."
Indeed, petitioner excused the Government from answering request
number 29(a), which was so broad as to constitute in effect a
demand for a list of prosecution witnesses. Finally, it should be
noted that, in the opinion accompanying the original order,
petitioner averred his willingness to narrow the order of
disclosure upon a showing by the Government "that such disclosure
will involve physical risk to the individuals or prejudice the
government in its ability to produce its evidence." He repeated
this offer numerous times in the subsequent hearings on the
Government's objections to the bill, but the United States Attorney
never suggested that such a showing could be made in this case.
[
Footnote 11]
Page 389 U. S. 102
The record is equally devoid of support for the notion that
petitioner had adopted a deliberate policy in open defiance of the
federal rules in matters of pretrial criminal discovery. The
extended colloquy between petitioner and government counsel
reveals, at most, that petitioner took a generally liberal view of
the discovery rights of criminal defendants. [
Footnote 12] But petitioner was careful
never
Page 389 U. S. 103
to divorce his ruling from his view of the legitimate needs of
the defendant in the case before him, and there is no indication
that he considered the case to be governed by a uniform and
inflexible rule of disclosure. [
Footnote 13] Thus, the
Page 389 U. S. 104
most that can be claimed on this record is that petitioner may
have erred in ruling on matters within his jurisdiction.
See
Parr v. United States, 351 U. S. 513,
351 U. S. 520
(1956). But "[t]he extraordinary writs do not reach to such cases;
they may not be used to thwart the congressional policy against
piecemeal appeals."
Id. at
351 U. S.
520-521. Mandamus, it must be remembered, does not "run
the gauntlet of reversible errors."
Bankers Life & Cas. Co.
v. Holland, 346 U. S. 379,
346 U. S. 382
(1953). Its office is not to "control the decision of the trial
court," but rather merely to confine the lower court to the sphere
of its discretionary power.
Id. at
346 U. S. 383.
Thus, the record before us simply fails to demonstrate the
necessity for the drastic remedy employed by the Court of
Appeals.
Even more important, in our view, however, than these
deficiencies in the record is the failure of the Court of Appeals
to attempt to supply any reasoned justification of its action. Had
the Government, in fact, shown that petitioner adopted a policy in
deliberate disregard of the criminal discovery rules and that this
policy had proved seriously disruptive of the efficient
administration of criminal justice in the Northern District of
Illinois, it would have raised serious questions under this Court's
decision in
La Buy v. Howes Leather Co., 352 U.
S. 249 (1957). [
Footnote 14] In
La Buy, however, we specifically
relied upon
Page 389 U. S. 105
evidence in the record which showed a pattern of improper
references of cases to special masters by the District Judge. 352
U.S. at
352 U. S. 258.
There is no evidence in this record concerning petitioner's
practice in other cases, aside from his own remark that the
Government was generally dissatisfied with it, [
Footnote 15] and his statements do not
reveal any intent to evade or disregard the rules. We do not know
what he ordered the Government to reveal under what circumstances
in other cases. This state of the record renders the silence of the
Court of Appeals all the more critical. We recognized in
La
Buy that the familiarity of a court of appeals with the
practice of the individual district courts within its circuit was
relevant to an assessment of the need for mandamus as a corrective
measure.
See 352 U.S. at
352 U. S. 258.
But, without an
Page 389 U. S. 106
opinion from the Court of Appeals, we do not know what role, if
any, this factor played in the decision below. In fact, we are in
the dark with respect to the position of the Court of Appeals on
all the issues crucial to an informed exercise of our power of
review. We do not know: (1) what the Court of Appeals found
petitioner to have done; (2) what it objected to in petitioner's
course of conduct -- whether it was the order in this particular
case or some general practice adopted by petitioner in this and
other cases; [
Footnote 16]
(3) what it thought was the proper scope of a bill of particulars
under Rule 7(f) and what limitations it thought the criminal rules
placed upon the particular or generalized discretion of a district
court to order the Government to file such a bill; or (4) what
relevance, if any, it attached to the fact that this order was
entered in a criminal case, in assessing the availability of
mandamus. We cannot properly identify the questions for decision in
the case before us without illumination of this unclear record by
the measured and exposed reflection of the Court of Appeals.
Due regard not merely for the reviewing functions of this Court,
but for the "drastic and extraordinary" nature of the mandamus
remedy,
Ex parte
Fahey, 332 U.S.
Page 389 U. S. 107
258,
332 U. S. 259
(1947), and for the extremely awkward position in which it places
the District Judge,
id. at
332 U. S. 260,
demands that a court issuing the writ give a reasoned exposition of
the basis for its action.
Mandamus is not a punitive remedy. The entire thrust of the
Government's justification for mandamus in this case, moreover, is
that the writ serves a vital corrective and didactic function.
While these aims lay at the core of this Court's decisions in
La Buy and
Schlagenhauf v. Holder, 379 U.
S. 104 (1964), we fail to see how they can be served
here without findings of fact by the issuing court and some
statement of the court's legal reasoning. A mandamus from the blue
without rationale is tantamount to an abdication of the very
expository and supervisory functions of an appellate court upon
which the Government rests its attempt to justify the action
below.
The peremptory common law writs are among the most potent
weapons in the judicial arsenal. "As extraordinary remedies, they
are reserved for really extraordinary causes."
Ex parte
Fahey, 332 U. S. 258,
332 U. S. 260
(1947). There is nothing in the record here to demonstrate that
this case falls into that category, and thus the judgment below
cannot stand. What might be the proper decision upon a more
complete record, supplemented by the findings and conclusions of
the Court of Appeals, we cannot and do not say. Hence, the writ is
vacated and the cause is remanded to the Court of Appeals for the
Seventh Circuit for further proceedings not inconsistent with this
opinion.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
Request number 25 originally read:
"25. If [the Government relies upon any oral statements of the
defendant], state with respect to each such statement, if there was
more than one: "
"a. The name and address of the person to whom the statement was
made;"
"b. The date on which the statement was made;"
"c. The place where it was made; "
"d. The substance of the statement;"
"e. Whether the person to whom the statement was made was a
Government Agent at the time of the statement;"
"f. The names and addresses of any other persons present at the
time the statement was made; and"
"g. Whether a written memorandum or verbatim transcript of the
oral statement was made, and, if so, whether the Government has
possession of the memorandum or transcript."
The Government objected,
inter alia, to compliance with
part "d" on work product grounds. At first petitioner sustained
this objection and struck part "d" altogether; however, he later
ordered the Government to reveal the substance of statements made
to government agents, but not of those made to private parties.
[
Footnote 2]
The order of the Court of Appeals denying the writ read, in its
entirety:
"This is a petition by the government for writ of mandamus to
compel respondent, a district court judge, to vacate his order
which effectually directs the government in a criminal cause to
give the defendant names and addresses of persons to whom defendant
in said cause made oral statements to support the charges in the
indictments. Briefs have been filed in this court by both parties.
The court has considered the briefs and is fully informed of the
points made and the positions of the parties with respect to the
issue, and"
"The court finds that the order subject of the petition is not
an appealable order, and a review of it would offend the policy
against piecemeal appeals in criminal cases,
Cobbledick v.
United States, 309 U. S. 323; that mandamus may
not be used as a means of reviewing the nonappealable order,
Roche v. Evaporated Milk Association, 319 U. S.
21; that federal courts use mandamus for the traditional
purpose of confining a district court to a lawful exercise of its
jurisdiction or to compel it to exercise its proper jurisdiction,
Roche v. Evaporated Milk Association; that the district
judge's order upon the government to furnish names and addresses of
witnesses to a defendant may be erroneous, a question we do not
decide, but the ruling itself was within the court's jurisdiction,
Roche v. Evaporated Milk Association; that the ruling can
be reviewed on appeal from a final judgment, and that there is no
question here that the district judge refused to exercise his
proper jurisdiction."
"It Is Therefore Ordered that the petition for writ of mandamus
be and it is hereby denied."
[
Footnote 3]
The original order denying the writ was entered on July 12,
1966. On August 16, 1966, the court granted the Government's
petition for reconsideration, remarking only that:
"The court finds that, in the circumstances of this particular
case, the court should consider the merits of the ruling of the
district court challenged by the government, rather than to remit
the government to a radical alternative appealable judgment
available to the trial judge upon the government's persistent
refusal to comply;"
"It is therefore ordered that the order of this court of July
12, 1966, be and it is hereby vacated, and the cause is taken by
the court upon the petition for the writ, the briefs of both
parties and the record."
Subsequently, on October 4, 1966, the Court of Appeals granted
the writ. Its entire order reads as follows:
"This cause came on to be heard upon the Government's petition
for writ of mandamus ordering respondent to vacate his order
directing the Government to answer question 25 in defendant's
motion for bill of particulars, which question sought, among other
things, the names and addresses of persons to whom defendant made
oral statements supporting the indictment charging willful evasion
of income tax, and which statements the Government would rely upon
at the trial; upon the rule issued upon respondent to show cause
why the writ should not issue; upon the brief of respondent
answering the rule, and the brief of the Government, and upon the
record."
"And the Court having, on August 16, 1966, vacated its July 12,
1966, order denying the writ, and having reconsidered the
question,"
"It Is Ordered that a writ of mandamus issue as prayed in the
Government's petition directing respondent to vacate his order
directing the Government to answer question 25 in defendant's
motion for bill of particulars."
[
Footnote 4]
It is likewise unnecessary for us to reach the question whether
the writ in the circumstances of this case may be said to issue in
aid of an exercise of the Court of Appeals' appellate jurisdiction.
See 28 U.S.C. § 1651;
Roche v. Evaporated Milk
Assn., 319 U. S. 1,
319 U. S. 25
(1943).
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). In our view, even assuming that the possible
future appeal in this case would support the Court of Appeals'
mandamus jurisdiction, it was an abuse of discretion for the court
to act as it did in the circumstances of this case.
[
Footnote 5]
Thus, it is irrelevant, and we do not decide, whether the
Government could appeal in the event petitioner dismissed the
Horwitz indictments because of its refusal to comply with his bill
of particulars order. Both parties agree that it is highly doubtful
that it could appeal.
See United States v. Apex Distrib.
Co., 270 F.2d 747 (C.A. 9th Cir.1959). The Government argues
that it is unseemly to force it to defy the court in order to seek
review of its order, and doubly so because it may secure review
with certainty only if the United States Attorney is cited for
contempt,
compare Bowman Dairy Co. v. United States,
341 U. S. 214
(1951), in view of the doubtful status of its right to appeal a
dismissal. But this misses the mark. Congress clearly contemplated
when it placed drastic limits upon the Government's right of review
in criminal cases that it would be completely unable to secure
review of some orders having a substantial effect on its ability to
secure criminal convictions. This Court cannot and will not grant
the Government a right of review which Congress has chosen to
withhold.
Carroll v. United States, 354 U.
S. 394,
354 U. S.
407-408 (1957). We may assume for purposes of this
decision that there may be no other way for the Government to seek
review of individual orders directing it to file bills of
particulars.
[
Footnote 6]
Nor do we understand the Government to argue that a judge has no
"power" to enter an erroneous order. Acceptance of this semantic
fallacy would undermine the settled limitations upon the power of
an appellate court to review interlocutory orders. Neither
"jurisdiction" nor "power" can be said to "run the gauntlet of
reversible errors."
Bankers Life & Cas. Co. v.
Holland, 346 U. S. 379,
346 U. S. 382
(1953). Courts faced with petitions for the peremptory writs must
be careful lest they suffer themselves to be misled by labels such
as "abuse of discretion" and "want of power" into interlocutory
review of nonappealable orders on the mere ground that they may be
erroneous. "Certainly Congress knew that some interlocutory orders
might be erroneous when it chose to make them nonreviewable."
De Beers Consol. Mines, Ltd. v. United States,
325 U. S. 212,
325 U. S. 223,
325 U. S. 225
(1945) (dissenting opinion of MR. JUSTICE DOUGLAS)
[
Footnote 7]
It should be noted that Rule 7(f) was amended, effective July 1,
1966, to eliminate the requirement that a defendant seeking a bill
of particulars make a showing of "cause." The Government argues
that this amendment was not designed "to transform the bill of
particulars into an instrument of broad discovery." Brief for
United States, p. 15, n. 5. We intimate no view regarding the
construction of the amendment. Petitioner's order was entered
before the amendment was promulgated. The impact of the amendment
on the present proceeding will, of course, be a question open upon
remand.
[
Footnote 8]
Brief for United States, p. 24.
[
Footnote 9]
Brief for United States, p. 11.
[
Footnote 10]
We note in passing that
La Buy and the other decisions
of this Court approving the use of mandamus as a means of policing
compliance with the procedural rules were civil cases.
See
Schlagenhauf v. Holder, 379 U. S. 104
(1964);
McCullough v. Cosgrave, 309 U.S. 634 (1940);
Los Angeles Brush Mfg. Corp. v. James, 272 U.
S. 701,
272 U. S. 706,
272 U. S. 707
(1927) (dictum). We have pointed out that the fact this case
involves a criminal prosecution has contextual relevance.
See
supra at
389 U. S. 96-98.
In view of our reading of the record, however, we need not venture
an abstract pronouncement on the question whether this fact imposes
a more stringent standard for the invocation of mandamus by the
Government where the allegation is that a district judge has
deviated from the federal rules.
[
Footnote 11]
Petitioner at one point stated to government counsel:
"I told you that any time you made a representation with any
foundation in support of it that the disclosure of the name of an
individual would either jeopardize him physically or jeopardize the
government's proof in the case and that his testimony might be
altered or effort might be made to persuade him not to testify, or
something else, I am prepared to say under those circumstances of
that showing we don't risk people's lives or their security, their
physical wellbeing, and we don't encourage any possible
circumstances in which testimony can be suppressed. That is
consistent, it seems to me, with my general philosophy that you
shouldn't be suppressing things, and if there is a threat of
suppression, then I will take the lesser suppression to prevent the
greater."
Earlier, after government counsel suggested that the danger of
fabricated defenses justified a policy against the disclosure of
the names of potential government witnesses, petitioner
replied:
"Now any evidence of a fabrication, believe me, we will deal
with it. The laws of perjury -- we have had convictions for perjury
here, and we will have them again, I have no doubt, arising out of
criminal cases, but I am not prepared to say to a defendant that
you may not have the information which it seems to me you
reasonably require to prepare your defense because I am afraid you
or somebody helping you will lie and we won't be able to do
anything about it."
Upon further inquiry, the United States Attorney made no
suggestion that there was a particular danger that disclosure of
the names sought by request number 25 would result in subornation
of perjury.
[
Footnote 12]
Petitioner remarked at one stage:
"You know, I have great concern that, in a civil case, we
require both sides to submit their witnesses to maximum deposition
when all that is involved is money. In a criminal case, the
government doesn't even want to disclose the name of a person so
the other side can go out and interview him when what is concerned
is life or liberty. To me, this is a very strange aberration of the
processes of justice as between civil and criminal cases. When all
that is involved is money, we say put your cards on the table.
Where life and liberty are involved, we say to the prosecution, you
don't have to tell him a thing."
The Government seeks to make much of an exchange in which
petitioner remarked that he would "go further" than what the United
States Attorney referred to as "the proposed new rules of discovery
under the criminal rules by the American Bar Association." The
reference, according to the Government, is to the amendments to the
Federal Rules of Criminal Procedure, which were pending in this
Court at the time, and the exchange reveals petitioner's
determination to require broad criminal discovery despite the
limitations of the rules. We cannot accept this argument. In the
first place, the colloquy clearly reveals that petitioner
considered the proposed rules irrelevant to the question before
him. In the second place, petitioner made it plain that he thought
his position could, in any event, be rested on a reading of the
proposed rules:
"The Court: . . . I would go further than they go, but they
certainly go a lot further than you -- a lot further."
"Mr. Schultz [United States Attorney]: They would not require
the answers to these questions."
"The Court: I don't agree with that. They would not require the
giving of a list of witnesses, and I don't conceive that I am. . .
."
[
Footnote 13]
After his initial ruling that the defendant was entitled to the
information sought by request number 25 because he needed it to
prepare his defense adequately, petitioner continually asserted a
willingness to consider any factors peculiar to the case which
militated against disclosure of this information and to narrow his
order in light of any such considerations.
See n 11,
supra. Moreover, on
several occasions, it was petitioner who sought to narrow the focus
of the discussion to the particular instance by insisting that the
United States Attorney relate his generalized policy objections to
the facts of the particular case:
"Mr. Schultz: We are not only talking about this very case, your
Honor."
"The Court: Well, I am talking about this case. That is what I
am ruling on. That is what I ruled on last week, or earlier this
week. That is what you are asking me to reconsider, to vacate."
And again:
"Why shouldn't they have an opportunity to interview the
witnesses? Why should they put them on cold at the time, or why
should I have to recess then while they go and interview the
witnesses to see what their testimony would be?"
"I don't understand it, Mr. Schultz. I just don't understand in
this situation -- I can understand a lot of situations, but in this
situation. We are not talking about some other case, but in this
case, this case in which you say that there were incriminating
admissions made."
[
Footnote 14]
The Government also places reliance on
Schlagenhauf v.
Holder, 379 U. S. 104
(1964), arguing that it "reaffirmed"
La Buy. Insofar as it
did so, the case does not help the Government here, since we have
no quarrel with
La Buy, which is simply inapposite where
there is no showing of a persistent disregard of the federal rules.
And it cannot be contended that
Schlagenhauf, on its
facts, supports an invocation of mandamus in this case. The Court
there did note that the various questions concerning the
construction of Rule 35 were new and substantial, but it rested the
existence of mandamus jurisdiction squarely on the fact that there
was real doubt whether the District Court had any power at all to
order a defendant to submit to a physical examination.
[
Footnote 15]
Petitioner stated that
"it is no secret that the government is disturbed that I am
making available to defendants the identity of people who are
alleged to have been present when transactions took place, which
the government contends are illegal. . . ."
". . . I have never required them to disclose their evidence,
but I have required them to identify the people with whom the
defendant is supposed to have participated in an illegal act but
who were present."
We note merely that petitioner was careful to distinguish his
practice from requiring the Government to produce its evidence or a
list of witnesses. In any event, petitioner's passing remarks
concerning a running dispute with the Government are insufficient
to support an invocation of
La Buy, absent some evidence
concerning petitioner's actions in other cases, or at the very
least some illumination of this dialogue flowing from the Court of
Appeals' experience with petitioner's general practice and its
reading of Rule 7(f).
[
Footnote 16]
Another puzzling aspect of the action of the Court of Appeals is
what it did not do. Requests 7, 14, 19, 21, 23, 25, 27, and 29
called for the disclosure of the names of persons who might
conceivably be called as witnesses by the Government at Horwitz'
trial. The Government objected to being required to answer requests
7, 14, 25, and 29. Ultimately petitioner excused the Government
from answering request number 29, which was very broadly cast and
did, in effect, call for a list of all potential witnesses. The
Government, for its part, answered all the remaining requests,
except number 25. The mandamus petition only placed the latter in
issue, but nothing in the record indicates why either the
Government or the Court of Appeals might have thought that it was
within petitioner's judicial discretion under Rule 7(f) to order
the disclosure of the names sought by the other requests, but not
the revelation of those sought by request number 25.
MR. JUSTICE BLACK, concurring.
I concur in the Court's judgment to vacate, and agree
substantially with its opinion, but would like to add a
Page 389 U. S. 108
few words, which I do not understand to be in conflict with what
the Court says, concerning the writ of mandamus. I agree that
mandamus is an extraordinary remedy which should not be issued
except in extraordinary circumstances. And I also realize that
sometimes the granting of mandamus may bring about the review of a
case as would an appeal. Yet this does not deprive a court of its
power to issue the writ. Where there are extraordinary
circumstances, mandamus may be used to review an interlocutory
order which is by no means "final," and thus appealable under
federal statutes. Finality, then, while relevant to the right of
appeal, is not determinative of the question when to issue
mandamus. Rather than hinging on this abstruse and infinitely
uncertain term, the issuance of the writ of mandamus is proper
where a court finds exceptional circumstances to support such an
order. In the present case, it is conceivable that there are valid
reasons why the Government should not be forced to turn over the
requested names and that compliance with the order would inflict
irreparable damage on its conduct of the case. The trouble here, as
I see it, is that neither of the courts below gave proper
consideration to the possible existence of exceptional facts which
might justify the Government's refusal to disclose the names.
Having no doubt as to the appropriateness of mandamus, if the
circumstances exist to justify it, I would vacate the judgment
below and remand the case to the Court of Appeals for further
deliberation on whether there are special circumstances calling for
the issuance of mandamus.