United States v. Nicholas Distefano

464 F.2d 845, 1972 U.S. App. LEXIS 8369

• Court: Court of Appeals for the Second Circuit
• Decided: July 17, 1972
• Docket: 828, 829, Dockets 72-1268, 72-1442
• Status: Published

Opinions

FRIENDLY. Chief Judge:

The indictment here, in the District Court for the Southern District of New York, filed on December 8, 1970, charged Edmund Rosner, an attorney, and three other defendants, with the serious crime of suborning perjury, 18 U.S.C. § 1622, and conspiracy, 18 U.S.C. § 371, by procuring Pedro Hernandez and three others to testify falsely at a March, 1967 trial in which Hernandez was convicted of violating the federal narcotics laws. The defendants entered not guilty pleas. In March, 1971, a pre-trial conference was held before Judge Metzner to set a trial date. The Government announced readiness for trial in April or May, but counsel for the various defendants, who are among the most active members of the New York City criminal defense bar, pleaded heavy trial engagements through June.¹ Without objection, the judge scheduled the trial for November 1.

In July the Government began efforts to assemble its witnesses. Hernandez, who had testified before the grand jury and had been available in March, could not be located, despite vigorous efforts to that end. On October 27 the Government applied for an adjournment on the ground of the unavailability of Hernandez and another witness, Beltran. Over the objection of defense counsel, the judge adjourned the trial until January 4, 1972, stating that he would dismiss the indictment at that time if the Government was not prepared to go forward; he also issued a material witness warrant for^, Hernandez’ arrest. In the interval the Government found Beltran but not Hernandez. It sought and the judge granted, again over the objection of defense counsel, a further adjournment, to January 24. When on that date the Government sought a further adjournment but was unable to make any representation when Hernandez would be found, the judge dismissed the indictment.

Some two months later, with the statute of limitations having run in the meanwhile, the Government located Hernandez in Mexico City and sought to have him returned as a parole violator. Its motion of April 18, 1972, that the judge vacate his order dismissing the indictment since the missing witness had been located was denied. The Government had filed a notice of appeal on February 3, 1972 from the January 24, 1972 order of dismissal. On April 21, 1972, after the denial of its motion to vacate, it filed a petition for mandamus to direct the judge to reinstate the indictment. Defendants, while also responding on the merits, have moved to dismiss the appeal for want of jurisdiction.

I.

It is beyond question that if appealability were governed by the statute now in effect, 18 U.S.C. § 3731, as amended by § 14(a) of the Omnibus Crime Control Act, 84 Stat. 1890 (1970), the order dismissing the indictment would be appeal-able ;² indeed, we have recently entertained precisely such an appeal, United States v. Crutch, 461 F.2d 1200 (2 Cir.1972). It is equally beyond question that the present statute does not apply since § 14(b) provides that the 1970 amendments shall not apply to any criminal case begun before their effective date, January 2, 1971, and the instant indictment was filed December 8, 1970. See United States v. Marion, 404 U.S. 307, 311 n. 2, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). We therefore look to the statute effective on the date of the indictment. That too, if read literally, would confer jurisdiction since it authorized an appeal to a court of appeals in criminal cases, inter alia:

From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section,

and, as will be shown in Part II, the exception is not applicable.

However, this is the rare case where we must look not to the presently effective statute or to its father but to its grandfather, the Criminal Appeals Act as it stood before the 1948 amendment, 62 Stat. 844, just quoted. The equivalent provision of the predecessor legislation, the Criminal Appeals Act of 1907, 34 Stat. 1246, as amended in 1942, 56 Stat. 271, read:

From a decision or judgment quashing, setting aside, or sustaining a demurrer or plea in abatement to any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this Act.

Before any court had occasion to pass upon this language, which clearly would not have encompassed the appeal here sought to be taken, the Federal Rules of Criminal Procedure became effective on March 21, 1946. Rule 12(a) abolished all pleas except not guilty, guilty and nolo contendere. It also abolished demurrers and motions to quash and provided that “defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules,” notably Rule 12(b). In addition, the last sentence of Rule 54(c) provided that terms associated with these abolished pleas, motions to quash and demurrers, when appearing in acts of Congress, “shall be construed to mean the motion raising a defense or objection provided in Rule 12.” The Advisory Committee Note made clear that this “has particular reference to 18 U.S.C. § 3731 . . . . It is intended that the right of the Government to appeal in such cases should not be affected as the result of the substitution of a motion under Rule 12 for a demurrer, motion to quash and a special plea in bar.”

The announced purpose of the 1948 revision of the Criminal Code was “the substitution of plain language for awkward terms, reconciliation of conflicting laws, omission of superseded sections, and consolidation of similar provisions.” H.R.Rep.No.304, 80th Cong., 1st Sess. (1947). The changes represented by 18 U.S.C; § 3731 were consistent with that purpose, the Reviser’s Notes stating only: “Minor changes were made to conform to rule 12 of the Federal Rules of Criminal Procedure.”

The first case to consider whether the 1948 amendment should be literally applied, so as to reach a dismissal for lack of prosecution under Rule 48(b), there caused by the grant of a suppression motion, was United States v. Pack, 247 F.2d 168 (3 Cir. 1957). In an able opinion by Judge Kalodner, which took note of the Supreme Court’s admonition in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227-228, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), that courts should not blandly assume, in that instance with respect to the 1948 revision of Title 28, that Congress had intended to make important jurisdictional changes not clearly expressed when it had not been apprised by the Reviser’s Notes, the Court held that the section should continue to be read as theretofore, save only for the abolition of outmoded terms.³ A year later the Ninth Circuit was presented with a similar issue, United States v. Heath, 260 F.2d 623 (9 Cir. 1958),⁴ and reached the same result. Sitting in banc, the Ninth Circuit gave further consideration to the problem in United States v. Apex Distributing Co., 270 F.2d 747 (9 Cir. 1959).⁵ There was no change in result and no dissent although Judge Pope wrote a wistful concurring opinion, in which Judge Stephens joined, over the passing of the good old days when a statute could be read to mean what it said. Compare Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396, 71 S. Ct. 745, 95 L.Ed. 1035 (1951) (concurring opinion of Mr. Justice Jackson). A later decision in the Ninth Circuit has indicated no disposition to take a new look. United States v. Kanan, 341 F.2d 509 (9 Cir. 1965). The Government has cited no case in any other circuit to the contrary. Although the point was not directly involved in United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), the plurality opinion of Mr. Justice Harlan approvingly noted Apex and the reasoning as to the limited effect of the 1948 amendment on which it and the other cited decisions were based. 399 U.S. at 292 n. 22, 90 S.Ct. 2117. Beyond this, in 1968 Congress tackled the problem that had given rise to United States v. Pack, supra — the granting of a motion to suppress evidence — by authorizing an appeal on a certificate of need by the United States attorney, 82 Stat. 237,⁶ but left the Pack-Heath-Apex holdings intact until two years thereafter. Even if we entertained doubt with respect to the Third and Ninth Circuit decisions and felt free to act on this despite the footnote in Sisson, it would scarcely be in the interests of sound judicial administration to create a conflict with respect to a complex jurisdictional statute now happily repealed. However, we have none.

II.

Having given scant attention to the jurisdictional problem in its opening brief, the Government’s reply brief advanced the alternative suggestion that we certify the appeal to the Supreme Court under the paragraph of former § 3731 permitting an appeal by the Government to that Court

From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.

Construction of the phrase “a motion in bar” gave rise to much discussion in United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960), although decision ultimately turned on another point. In United States v. Weller, 401 U.S. 254, 259, 91 S.Ct. 602, 606, 28 L.Ed. 2d 26 (1971),.Mr. Justice Stewart summarized the state of the law as being:

First, a “motion in bar” must be taken to mean whatever was meant by a “special plea in bar” in the [Criminal Appeals] Act as originally passed in 1907. Second, this Court has never settled on a definitive interpretation of what constitutes a “motion in bar.”

He added that a characteristic common to the definition at common law “is that a special plea in bar did not deny that a defendant had committed the acts alleged and that the acts were a crime. Rather, it claimed that nevertheless he could not be prosecuted for his crime because of some extraneous factor,” 401 U.S. at 260, 91 S.Ct. at 606, typically double jeopardy, pardon, or the statute of limitations.

Under this language it seems doubtful whether there could ever be “a special plea in bar” after a defendant had pleaded not guilty and thereafter sought dismissal on the basis of conduct of the Government subsequent to the indictment. This was necessarily the view taken by the decisions of courts of appeals cited in Part I of this opinion, since none found that the appeal was one for the Supreme Court and thus subject to certification. See United States v. Heath, supra, 260 F.2d at 629 & nn. 15-17; United States v. Apex Distributing Co., supra, 270 F.2d at 750-751 & nn. 5-7. The Supreme Court cases most nearly favorable to the Government are United States v. Marion, supra, 404 U.S. at 311-312, 92 S.Ct. 455, which discussed the jurisdictional problem, and United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), which did not. But neither is sufficiently favorable. Although both concerned challenges under the speedy trial clause of the Sixth Amendment, they involved attacks on the indictment which, if successful, would have prevented prosecution then or later. The claim which the judge sustained here was addressed not to the impossibility of a valid indictment but to “unnecessary delay in bringing a defendant to trial.” F.R.Cr.P. 48(b).⁷ An added factor here is that the dismissal did not “bar” another prosecution. The statute of limitations had not yet run and there was nothing to prevent a new indictment. United States v. Chase, 372 F.2d 453 (4 Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); Mann v. United States 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). Cf. United States v. Apex Distributing Co., supra, 270 F.2d at 750-751. Although the Government intimates that this might not have been feasible without Hernandez’ testimony, this would have been a case where the use of his recorded testimony before the first grand jury would clearly have been permissible under Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), and United States v. Bennett, 409 F.2d 888, 900-901 (2 Cir.), cert. denied, Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969). Beyond all this it is unlikely in the last degree that Congress intended to burden the Supreme Court with mandatory review of dismissals under F.R.Cr.P. 48 (b), rulings which rest on the circumstances of each case and rarely present an important general issue of law.

III.

We are unable to agree with our dissenting brother that the case is a proper one for the issuance of mandamus. It is undeniable that, under F.R.Cr.P. 48(b), the judge had power to dismiss the indictment for “unnecessary delay in bringing a defendant to trial.” The claim, which is strongly presented in Judge Lumbard’s able dissent and with which we might well agree if the matter were before us on appeal, is rather that the judge was wrong, indeed very wrong, in finding that the delay was “unnecessary.” ⁸ But that is not enough.

Will v. United States, 389 U.S. 90, 95, 104, 88 S.Ct. 269, 273, 278, 19 L. Ed.2d 305 (1967), makes plain that mere error, even gross error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ. “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 . Mandamus, it must be remembered, does not ‘run the gauntlet oí reversible errors.’ Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147, 98 L.Ed. 106 (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 383, 74 S.Ct. 148.” While it is possible to find phrases in the Will opinion that might afford some basis for distinction, such an effort would ignore the decision’s main thrust. Indeed, the principle stated in Will was in no way novel. The Court had said long before that the all-writs statute, 28 U.S. C. § 1651(a), cannot “be availed of to correct a mere error in the exercise of conceded judicial power,” but can be used only “when a court has no judicial power to do what it purports to do — when its action is not mere error but usurpation of power . . .” De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945).

It is always tempting for an appellate court to resort to mandamus when confronted with a decision with which it strongly disagrees but which Congress has given it no power to review. The temptation is particularly strong when the aggrieved party, here the Government, now has no other remedy, even though it had the remedy of re-indictment at the time of the action of which it complains. However, as the Chief Justice said in Will, supra, 389 U.S. at 97 n. 5, 88 S.Ct. at 274:

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.

Congress now has importantly changed its policy with respect to Government appeals in criminal cases. But we must decide this case under the law that governed this indictment.

The appeal is dismissed for lack of jurisdiction; the petition for mandamus is denied.

1 . We take this occasion to observe that the concentration of business of this sort in the hands of a number of lawyers insufficient to meet the preferences of defendants able to retain counsel cannot be allowed to interfere with the public interest in “disposition of criminal charges with all reasonable dispatch.” Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. Counsel who are booked for months ahead cannot properly accept a retainer without the advance approval of the court. The Sixth Amendment right to counsel does not include the right to a lawyer whose other engagements prevent a speedy trial. See United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1214-1215 (3 Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970) ; Marxuach v. United States, 398 F.2d 548, 551 (1 Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 454, 21 L.Ed.2d 443 (1968) ; United States v. Bentvena, 319 F.2d 916, 936 (2 Cir.), cert. denied [Ormento v. U. S., Di Pietro v. U. S., Fernandez v. U. S., Panico v. U. S., Galante v. U. S., Loicano v. U. S., Mancino v. U. S., Seiremammano v. U. S., Mirra v. U. S.], 375 U.S. 940, 84 S.Ct. 345, 346, 353, 354, 360, 11 L.Ed.2d 271, 272 (1963).

2 . See 1970 U.S.Code Cong. & Adm.News p. 5848.

3 . The decision gains added authority from the presence on the panel of Judge Albert Maris, one of the federal judiciary’s outstanding experts on jurisdictional questions.

4 . In that case the Government’s inability to proceed to trial was due to its loss of documents turned over to it by the defendant.

5 . The dismissal in Apex was because of the Government’s refusal to comply with pretrial discovery orders.

6 . Congress had previously authorized Government appeals from grants of suppression motions in certain limited classes of cases, see Pub.L. No. 84r-728, title II, § 201, 70 Stat. 573 (formerly 18 U.S.C. § 1404), repealed by Pub.L. No. 91-513, title III, § 1101(b) (1) (A), 84 Stat. 1292. See Bova v. United States, 460 F.2d 404, 406 & n. 4 (2 Cir. 1972).

7 . The Government urges that the dismissal was not under Rule 48(b) but pursuant to paragraph 4 of this court’s Rules Regarding Prompt Disposition of Criminal Cases and that the judge failed to take proper account of paragraph 5(c) excluding from the permitted period of delay a continuance “granted because of the unavailability of evidence material to the government’s case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available within a reasonable period.” We see nothing in the colloquy to suggest this. Moreover, we fail to perceive why the matter should stand differently from the standpoint of appellate jurisdiction under the old statute even if the Government were right. The 1970 amendment should alleviate the Government’s fears of inability of this court to police the administration by district judges of its new rules in a manner unduly harsh to the prosecution.

8 . As noted in the dissent, the Government asked us after the argument to examine an affidavit dated January 19, 1972 which it had submitted ex parte to Judge Metzner and he had sealed. This gave an additional reason which it could not disclose to defense counsel at the time or, allegedly, at the time of the argument for its unwillingness to proceed to trial on January 24. The judge made this available to us, along with a letter stating he “did not consider” the affidavit because of the Government’s failure to advise defense counsel of its submission. The Government now seeks to make much of the judge’s alleged refusal to “consider” the affidavit. This strikes us as somewhat of a semantic quibble; as we understand it, the judge read the affidavit but thought he could not properly take it into account because of the prosecutor’s failure even to notify defense counsel that he had submitted a letter for in camera inspection — a failure that the Government could readily have cured. Whether the judge was overly punctilious or not, this is not such a departure from the norms of judicial behavior as to warrant the issuance of mandamus.