United States of America, Petitioner, v. Morris E. Lasker, United States District Judge for Thesouthern District of New York, Respondent.united States of America, Appellant, v. Raymond F. Carr, Appellee.united States of America, Appellant, v. Dorothy Lubkert Shea, Appellee.united States of America, Appellant, v. Lamont H. Munns, Appellee.united States of America, Appellant, v. Melville L. Bisgyer, Appellee.united States of America, Appellant, v. Martin L. Roemer, Appellee.united States of America, Appellant, v. Albert Ferguson, Appellee.united States of America, Appellant, v. Donald F. Carone, Appellee, 481 F.2d 229 (2d Cir. 1973)

The government appeals from an order of the Southern District dismissing the indictments against the seven appellees, Carr, Shea, Munns, Bisgyer, Roemer, Ferguson, and Carone. Alternatively, the government has petitioned this court for mandamus ordering the district judge to reinstate the indictments. We dismiss the appeal for lack of jurisdiction and we grant the petition for mandamus.

In seven indictments handed up February 25, 1970, appellees were individually charged with having conspired with a co-defendant, Fritz Claudius Mintz, and an unindicted co-conspirator, Morton Penn, to defraud the United States, in violation of 18 U.S.C. § 371. The defendants were all employed as civilian buyers for European or American post exchanges. The indictments charged that the defendants conspired with Mintz and Penn, who represented certain American manufacturers, to receive substantial payments during the period from 1960 to 1967 in return for causing the post exchanges to purchase products offered by Mintz' and Penn's principals. Mintz was named as a co-defendant in each indictment.

All the indicted defendants-appellees pleaded not guilty to the indictment in which he or she was named. Mintz has not appeared; he is a fugitive who has been living in Europe since some time prior to the filing of the indictments.

In April, 1970, each of the appellees moved pursuant to Rule 48(a), F.R. Crim.P., for dismissal on several grounds, one of which was pre-indictment delay. However, defendants-appellees at no time made a request for a trial date. The district court denied all motions for dismissal.

On January 5, 1971, the Second Circuit Judicial Council promulgated the Rules Regarding Prompt Disposition of Criminal Cases ("Prompt Disposition Rules"), which became effective on July 5, 1971. After the Prompt Disposition Rules went into effect, the government listed the seven indictments on the monthly report of cases over six months old as an exception to the general sixmonth rule under Rule 5(e).

Ever since the filing of the indictments, the government has attempted to obtain Mintz' presence in the Southern District. However, he has remained in Europe and has refused to return. In June, 1971, the government commenced proceedings to extradict Mintz from Spain. Either because Mintz has left Spain or because the Spanish authorities have been unable to locate him, the extradition proceedings have not been successful. Thus, the government's efforts to return Mintz to this country have proved fruitless.

In an ex parte meeting with the government's counsel in March, 1972, the district judge insisted that the government notify the appellees of the basis for these cases being carried as Rule 5(e) exceptions, which the government did by letter on March 10, 1972. Shortly thereafter, the defendants each moved to dismiss the indictments under Rule 4 of the Prompt Disposition Rules, as well as under Rule 48(b), F.R.Crim.P. The government indicated that, if the district judge concluded that it was not reasonable to wait any longer for Mintz, it was able and willing to proceed with the trials forthwith. On December 5, 1972, the district judge dismissed the indictments under Rule 4 of our Prompt Disposition Rules.¹  Thereupon, the government took this appeal and brought the instant petition for mandamus.

Initially, we must agree with appellees' contention that this court is without appellate jurisdiction to review the order of the district court. Although as presently structured 18 U.S.C. § 3731, which governs this court's jurisdiction of criminal appeals brought by the government, would clearly give this court jurisdiction to review the district court's order on appeal, the statute applicable to this appeal is Sec. 3731 as it was phrased prior to its amendment by Sec. 14(a) of the Omnibus Crime Control Act, 84 Stat. 1890 (1970). For reasons set forth in Part I of Chief Judge Friendly's opinion in United States v. DiStefano, 464 F.2d 845 (2d Cir. 1972), Sec. 3731 does not give this court jurisdiction to review on appeal the district court's dismissal of these indictments. Accordingly, we dismiss the government's appeals.

Turning to the petition for mandamus, we must acknowledge at the outset that mandamus will not issue merely as a substitute for ordinary appellate review. Mandamus is only available in extraordinary cases, where the action of the lower court amounts to a usurpation of power or a gross abuse of discretion. Mandamus cannot "be availed of to correct a mere error" of the district court. De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S. Ct. 1130, 89 L. Ed. 1566 (1945). Thus, we must determine whether any error of the district court is of sufficient magnitude to justify the issuance of mandamus.

The issue presently before us involves the proper application of Rules 4 and 5(e) of the Prompt Disposition Rules. Rule 4 provides that:

In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause, then upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.

Rule 5(e) states that:

In computing the time within which the government should be ready for trial, the following periods should be excluded:

* * *

We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here."

See also Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964). We think that this is a particularly appropriate case for our exercise of our supervisory authority by means of mandamus. The most important factor in this regard is that, in dismissing the indictments, respondent purported to apply rules promulgated by the judges of this court acting as a circuit council and, in so doing, interpreted those rules in a fashion that subverts the policies they were designed to serve. Having given the district courts a weapon by which to dismiss indictments, we have the power through mandamus to see that it is not wielded in a manner that subverts or ignores the interests that were intended to be served.

The issue in this case involves the proper interpretation to be given to our Prompt Disposition Rules. We have found that the district judge interpreted the Rules in a fashion that does violence to the policies that the Rules were intended to promote, without any offsetting benefit to the public interest. The result was a wholesale dismissal of seven indictments of government officials alleged to have conspired to receive bribes to influence their official conduct. There is a compelling public interest in the determination on the merits of charges of corrupt and illegal practices by those acting as government officers. In light of these factors, we conclude that corrective action is necessary within our supervisory authority over the district courts.² 

Defendants argue that this is not a proper case for the issuance of mandamus in support of our supervisory authority because, if such a dismissal recurs in later cases, the government will have the statutory right of direct appeal to this court.³  Therefore, defendants contend that mandamus is unnecessary to the effectuation of our supervisory authority. We do not agree. This is the first case that has come before this court in which the district court has interpreted the rules in question. Although we may later have similar cases under the new rules, which we can examine on appeal, this does not eliminate the uncertainty that the shadow of the district court's decision may throw over the conduct of the United States Attorney and the delay in the prosecution of future indictments pending appeals from dismissals such as that before us here.⁴  It is the business of this court to prevent such potential disruption of the orderly administration of criminal justice in this circuit whenever it can; indeed, the very rules involved here were promulgated with that end in mind. Therefore, we conclude that this is an appropriate case for the issuance of mandamus to effectuate this court's supervisory authority.

Nothing in the decision of Will v. United States, 389 U.S. 90, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967), prevents our issuance of mandamus in this case. The Court's decision in Will reversing the Seventh Circuit's grant of mandamus was based at least in part on the fact that the writ issued without any written opinion stating the reasons therefor. As the Court said:

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 LaBuy and [Schlagenhauf], 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. 389 U.S. at 107, 88 S. Ct. at 280.

See United States v. Griesa, 481 F.2d 276, 278 (2d Cir., 1973). This "corrective and didactic function" that the Court seemed to recognize assumes a special significance when the question involves the application of a rule promulgated by the issuing court.

The Court's reference to LaBuy and Schlagenhauf would indicate that Will did not retreat from these earlier decisions. Defendants argue that Will means that the use of mandamus in support of the court's supervisory power, which was recognized in LaBuy and Schlagenhauf, is limited to civil cases. Indeed, the Court did seem to indicate that it did not find the necessary extraordinary circumstances to justify mandamus in a criminal case. After enumerating several situations where the writ had issued and where it had not, the Court said:

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. 389 U.S. at 98, 88 S. Ct. at 275.

In this case, of course, we are dealing with a dismissal and neither of the constitutional precepts noted by the Court is in any way jeopardized by our issuance of mandamus. Thus, we find that Will presents no obstacle to the writ's issuance here.

Finally, defendants argue that, even if it is proper for the writ to issue on the question of the dismissal under Rule 4 of the Prompt Disposition Rules, the writ should not issue here because the dismissal was proper in any event on the motion to dismiss under Rule 48(b) of the Federal Rules of Criminal Procedure, on which the district judge did not rule. However, since we feel that the Rule 48(b) motion should have been denied, this is no obstacle to mandamus.

In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court laid down a balancing test to determine whether a particular delay had violated the defendant's right to a speedy trial. The Court listed four factors that should be considered in striking the balance: the length of delay, the reason for the delay, whether defendant has demanded a speedy trial, and prejudice to the defendant. The Court further indicated that these factors were interrelated and that no one was "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." We feel that the balance in this case must be struck in the government's favor. The delay here from the time of indictment to the making of the motions was slightly more than two years. This is far less than that involved in Barker, where the Court found no deprivation of the right. This delay is mitigated by the reason for the delay, the government's desire to secure the presence of Mintz and to try him jointly with each of his alleged co-conspirators, which would have obviated the inconvenience of a separate trial for Mintz.

In addition, there is the fact that none of the defendants asserted his speedy trial rights. Although this factor is not conclusive, the Supreme Court indicated that it is entitled to great weight:

Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely is the defendant to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. 407 U.S. at 531-532, 92 S. Ct. at 2192.

Finally, we must look to any prejudice suffered by the defendants. For the most part, defendants have asserted general claims of prejudice, such as damage to reputation while the indictments have been pending and the dulling of witnesses' memories. However, we find these claims to be relatively insubstantial in light of defendants' failure to demand a trial date. This seems to be the import of the language noted above from Barker v. Wingo. The fact that defendants did not assert their right to a speedy trial during the period of the delay is strong evidence that these general claims of prejudice are not substantial. In addition, defendant Bisgyer claims prejudice because two witnesses whom he had intended to call to testify about his character died during the period of the delay. The first of these witnesses died five months after the indictment was rendered, and the second died eleven months after the indictment. However, here again there was no complaint from Bisgyer about the delay until 24 months after the indictment. And there is conspicuously absent any allegation that Bisgyer is now unable to secure other character witnesses. Therefore, we conclude that this claim of prejudice is also insubstantial.

On balance, therefore, we find that there has been no violation of defendants' right to a speedy trial and that the Rule 48(b) motion would have had to be denied. Thus, it is appropriate for this court to issue mandamus directing the district judge to reinstate the indictments that he dismissed in reliance on the Prompt Disposition Rules.

Accordingly, the government's appeal is dismissed and its petition for mandamus is granted. The writ shall issue.