United States of America, Petitioner, v. Hon. Robert L. Carter, United States District Judge, Respondent.united States of America, v. Bertram L. Podell et al., Defendants, 493 F.2d 704 (2d Cir. 1974)

On December 27, 1973, the Assistant United States Attorney in charge of the prosecution of this case, prepared a subpoena for a retired official of the C.A.B., Ronald C. Kinsey, who had appeared before the Grand Jury and who had previously given information to the F.B.I. The Government maintains that Kinsey's testimony is critical to the Government's proof of the charges of conspiracy to defraud, bribery and conflict of interest and this does not appear to be controverted. The trial was set for January 14, 1974, but, at the request of counsel for Bertram Podell on January 2, 1974, trial was adjourned for one week to January 21, 1974. On January 3, 1974, the Assistant United States Attorney learned that Kinsey had suffered a severe heart attack on December 20, 1973, and was hospitalized in Seattle. Kinsey's physician, a certified cardiologist and internist practicing at the Seattle Heart Clinic, advised the Government that Kinsey's attack had been almost fatal, and that on the assumption that he suffered no further setbacks, he would not be able to come to New York to testify before the end of March or early April, 1974. The physician indicated that a deposition would not be advisable until the end of January, 1974 at the earliest.

On January 8, 1974, Henry E. Petersen, Assistant Attorney General of the United States, issued the following certification pursuant to 18 U.S.C. 3503:

Mr. Paul J. Curran United States Attorney New York, New York Dear Mr. Curran:

Pursuant to your request to obtain an order granting the taking of a deposition from Ronald C. Kinsey, I hereby certify, pursuant to the authority conferred upon me by 28 C.F.R. 0.59(b), that the case of United States v. Bertram Podell, et al, is a legal proceeding against a person who is believed to have participated in an organized criminal activity.

Sincerely, Henry E. Petersen Assistant Attorney General

Thereafter, the Government moved by order to show cause for an order to permit it to take the deposition of Kinsey. In his opinion filed on January 14, 1974, denying the Government's motion, Judge Carter found that the certification was 'without basis in fact and is, therefore, made in bad faith.' On the other hand, he found that there was adequate demonstration of the unavailability of Kinsey and that his early deposition was the only insurance that the Government had to preserve his testimony. He further held that there was no doubt of the constitutionality of Section 3503 and the right of the Government pursuant thereto to use the deposition of a witness in a criminal trial. Thus, his denial of the Government's motion here was based solely on the alleged inadequacy of the certification of the Assistant Attorney General. Judge Carter construed the term 'organized criminal activity,' as utilized in the statute, to be equivalent to 'gangsterism, racketeering and syndicate activity of clandestine criminal groups.' He felt that crimes such as trafficking in dangerous drugs, loan sharking, wholesale theft and violence on a large scale were within the statute. He pointed out that the three defendants in this case are a member of Congress, his brother, who is a member of the New York Bar, and a Florida businessman. He characterized the crimes charged here as typical 'public official offenses' not normally associated with so-called organized criminal activity.

This court has recently construed the statute in question in United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972). The holding of that case is clear. 'The decision whether or not a proceeding is against a person believed to have participated in organized criminal activity is to be made by the Attorney General or his designee and not by the court.' 460 F.2d at 1154. This court specifically held that Congress did not intend that the organized criminal activity certification be subject to judicial examination. The trial court is not to make a de novo determination. The certification used here was in the form upheld in Singleton, and under Singleton, is vulnerable only if the defendant is able to show that the Government acted in bad faith. 460 F.2d at 1154.

The court below found that while the crimes charged in the indictment here were heinous, they were not properly characterized as organized criminal activity. The certification was, for this reason, determined to be without a basis in fact and therefore made in 'bad faith.' While purporting to follow Singleton, the court below was plainly disregarding it. The determination of whether or not the defendants were engaging in organized criminal activity is to be made by the Attorney General or by his designee and not by the court. This is what Singleton held. It cannot be circumvented by a finding that the Assistant Attorney General was acting in 'bad faith' because the court here disagreed with the Government's determination that the defendants were believed to have participated in organized criminal activity. Under Singleton, the burden is upon the defendant to establish bad faith on the part of the Government and there is not a scintilla of evidence of bad faith in the record before us and, in fact, no such evidence is suggested in the opinion below. Presumably, the Attorney General had information at his disposal upon which the certification could be made.

Even if we were free to question the determination of the Attorney General, we could not accept the proposition that the Congress did not intend to include corruption, obstruction of justice and perjury within the purview of the statute.²  While crimes of violence engineered by gangs of thugs are of course repulsive and clearly within the concept of organized criminal activity, the concerted corruption charged here is equally odious. The fact that the alleged perpetrators are presumably respectable and entrusted with responsibility by an electorate or a profession or by stockholders does not suggest, in our view, that they are incapable of engaging in organized criminal activity. We all stand equal before the bar of criminal justice, and the wearing of a white collar, even though it is starched, does not preclude the organized pursuit of unlawful profit. In any event, the determination is for the Attorney General and not for the courts, and that is the holding of Singleton.³ 

It follows therefore that the court below did not simply abuse its discretion but usurped a power in making a finding which the Congress vested in the Attorney General. Hence, although this court has been reluctant to use the writ of mandamus, and we are aware of no case in which it has been utilized to review, at the behest of the Government in a criminal case, an interlocutory procedural order which does not have the effect of a dismissal, the possibility has not been foreclosed. See Will v. United States, 389 U.S. 90, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967); United States v. Griesa, 481 F.2d 276, 278 (2d Cir. 1973) and the concurring and dissenting opinion of Judge Timbers at 279-281. See also Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv. L. Rev. 595, 624-28 (1973).

In view of the circumstances set forth here, we believe the issuance of the extraordinary writ is fully justified. The Government's case, if not terminated, is at least jeopardized if the deposition of the witness Kinsey is not permitted. Counsel for the defendants and the defendants have been invited to attend the deposition. See 18 U.S.C. 3503(b). The crimes charged here are serious and a cloud of suspicion hangs over the heads of those not usually suspect. The court below commendably urged the parties to seek an early review and resolution of the present dispute by this court in view of the importance and significance of the question. We believe that justice dictates, both for the Government and the defendants, that all the evidence which is relevant be ascertained and presented in this case, and we therefore grant the writ requested by the Government and direct the court below to issue the order permitting the deposition of the witness Kinsey. The trial date we leave to the discretion of the trial court after the taking of the deposition.

WATERMAN, Circuit Judge (concurring in the result):

I concur with my colleagues in granting the petition.

I cannot concur in their opinion, however, for I have substantial doubts that Congress intended that a letter sent by return mail from an Assistant Attorney General of the United States to a United States Attorney who requested the letter would be a 'certification' pursuant to 18 U.S.C. 3503. And I have similar doubts that the Congress intended the term 'organized criminal activity' to include a broader range of alleged criminal activity than activity generally comprehended within the term 'organized crime.' In sum, I adopt, in substantial part, the approach of Judge Oakes in his dissent in United States v. Singleton, 460 F.2d 1148, 1155-1159 (2 Cir. 1972). However, the law of the Circuit has been declared in the majority opinion in United States v. Singleton, and I believe it incumbent upon me to follow that declaration. Nevertheless, I would hope that, if Mr. Kinsey's deposition is taken in Seattle and later introduced at trial, not only the proper interpretation of the statutory language mentioned here, but also the impact upon the constitutionally guaranteed right of an accused 'to be confronted with the witnesses against him,' will be preserved for later adjudication. 5 Wigmore on Evidence (3d ed. 1940) 1364-1367; 1420-1422.

'Confrontation: . . . (inter alia), permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.' California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970).

We should be zealous to protect the Sixth Amendment right from erosion. See, e.g., Warren, Ch. J., in Greene v. McElroy, 360 U.S. 474, 497, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).