United States v. Griesa

481 F.2d 276, 1973 U.S. App. LEXIS 10094

• Court: Court of Appeals for the Second Circuit
• Decided: May 4, 1973
• Docket: No. 919, Docket 73-1544
• Status: Published

Opinions

PER CURIAM:

On December 20, 1972, a 65 count indictment was returned in the Southern District of New York charging the eight defendants named in the caption of this case with violations of the antifraud provisions of the federal securities laws, the provisions of the federal securities laws proscribing the filing of false financial statements and the mail fraud statute, and with conspiracy to violate the said statutes.

On January 8, 1973, defendants Miller and McCollum pled guilty to four counts of the indictment. The remaining six defendants pled not guilty to those counts in which they were named. The case was scheduled for trial beginning May 1, 1973 in the Southern District of New York before Thomas P. Griesa, District Judge.

On March 39, upon motion of defendants Wahrman, Bolka, Madole, Gray and Linn — and over the opposition of the government and defendant Clark — Judge Griesa ordered the action transferred, as to the five moving defendants, to the United States District Court for the Western District of Oklahoma, pursuant to Fed.R.Crim.P. 21(b). The judge severed the action as to the moving defendants in order to effectuate the transfer. This results in the action as against defendant Clark to be tried in the Southern District of New York; and the action as against the five moving defendants to be tried in the Western District of Oklahoma.

On April 12, the government filed the instant petition for a writ of mandamus seeking the following relief:

(1) That Judge Griesa be directed to vacate the order transferring the action as to the five moving defendants to the Western District of Oklahoma; and

(2) That the Chief Judge of the Southern District of New York designate another judge to preside over the trial of the instant action.

On April 19, we heard oral argument by counsel for the government and by counsel for each of the six defendants awaiting trial.

After due consideration, we have decided that the petition for a writ of mandamus should be denied and it is so ordered.

We start from the proposition that mandamus is an extraordinary writ “reserved for really extraordinary causes.” Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). As we recently noted, the writ may be used 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,” Hilbert v. Dooling, 476 F.2d 355 (2d Cir., 1973) (en banc) (quoting from Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943)). See also SEC v. Stewart, 476 F.2d 755 (2d Cir., 1973). The government does not seriously contend that the district court acted outside its jurisdiction here; at most, we are urged to correct what petitioner conceives to be an incorrect decision. We do not view this as an appropriate use of the extraordinary writ. SEC v. Stewart, supra.

Moreover, as the Supreme Court has warned us in Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L. Ed.2d 305 (1967), the usual reluctance to allow appeal of interlocutory orders through mandamus should be even more applicable in the context of criminal cases. The Court noted that it had “never approved the use of the writ to review an interlocutory order in a criminal case which did not have the effect of dismissal.” Id. at 9. To be sure, the Court then left open the possibility that wider use of the writ might be permissible. But that still leaves the petitioner here in the position of asking us to break new ground. It is difficult to conceive that a transfer order under Fed.R.Crim.P. 21(b) could ever provide the occasion for such a jump forward;¹ in this case, at least, we decline the gambit.²

Referring to the second item of relief sought in the government’s petition for mandamus as set forth above, we believe in fairness and in the public interest it should be stated that nothing in the record before us would justify our ordering, or recommending that the Circuit Council order, that another judge be designated to preside over the trial of this action. We are confident that Judge Griesa is fully competent to do so.

Petition for writ of mandamus denied.

1 . Indeed, Professors Wright and Miller have commented that the 1986 amendments to Rule 21, which dropped the former emphasis on venue and allowed transfers to be made “For the convenience of parties and witnesses, and in the interest of justice,” (emphasis added) “should eliminate any .occasion for such use of mandamus.” 1 O. Wright & A. Miller, Federal Practice and Procedure § 347 at 648. Of. 8 J. Moore, Federal Practice ¶ 21.04 [3].

2 . Nor do we think this an appropriate instance for the exercise of what has been termed supervisory mandamus. See LaBuy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). As we noted in SEC v. Stewart, supra, supervisory mandamus is particularly ill-suited as a method of policing district court decisions that turn on issues of fact, as is certainly the case here. Moreover, the same considerations that militate generally against use of the writ in criminal appeals arguably apply where supervisory mandamus is concerned. Cf. Will v. United States, supra, 389 U.S. at 100, n. 10, 88 S.Ct. 269.