Petition for a writ of mandamus directing Judge Jack B. Weinstein of the United States District Court for the Eastern District of New York to vacate orders entered by him directing the Government to produce the Selective Service files of 23 fugitive defendants indicated for Selective Service Act violations so that they might be inspected by an attorney appointed by respondent without defendants' authorization or consent and by amicus curiae for the purpose of discovering evidence that might support proposed motions to dismiss the indictments. Petitioner also seeks an order precluding respondent from entertaining motions by unauthorized counsel on behalf of the fugitive defendants. Petition granted.
Kaufman, Chief Judge, Feinberg and Mansfield, Circuit Judges.
MANSFIELD, Circuit Judge:
Pursuant to 28 U.S.C. § 1651 the Government seeks a writ of mandamus directing United States District Judge Jack B. Weinstein ("respondent") to vacate orders entered by him in November 1974, United States v. Lockwood, 386 F. Supp. 734, requiring the Government to produce the Selective Service files of 23 delinquent registrants who have failed to appear in criminal proceedings pending against them.*fn1 Judge Weinstein ordered that the files be made available for discovery and inspection by an attorney appointed by him to represent the fugitive defendants without their authority and by another attorney appearing as amicus curiae.
Since the purpose of the court-initiated discovery was to determine whether motions might be made by the court-appointed representative for dismissal of the indictments, the Government also seeks an order barring respondent from entertaining such motions. We agree with the Government that the respondent lacks the power to order the Government to make the discovery directed by him and that, absent consent by the defendants, the court-appointed counsel lacks authority to represent them. Accordingly, the petition is granted.
On September 10, 1974, respondent on his own initiative entered an order declaring that the defendants in some 26 Selective Service criminal cases pending before him were allegedly fugitives without representation.*fn2 He took judicial notice that the President and Congress were considering some form of amnesty for fugitives in such cases, which might affect their rights. Without notice to the Government or to the defendants he thereupon appointed Professor Louis Lusky of the Columbia University School of Law to represent the defendants.
Upon learning of the order the Government advised the court that, if the fugitive defendants should return to the United States, it would be willing to cooperate in the handling of the charges against them in a manner consistent with the formulation of new guidelines for such cases, but that in its opinion the court's order was invalid. Following a short stay, respondent held a hearing and within a few hours filed a memorandum decision and order upholding his earlier ex parte order. His memorandum decision took the view that fugitive cases were artificially inflating the caseload of the court and the prosecutor. In order to guarantee "prompt disposition" of these cases he proposed to call them up in accordance with the practice followed by him in the handling of fugitive cases, which was to determine whether the Government was making reasonable efforts to apprehend the fugitives, whether the public or the defendants were being prejudiced by the delay, and whether the indictments should not be dismissed.
Respondent did not state the manner in which the fugitive defendants (or, for that matter, anyone else) might be prejudiced by the pendency of the Selective Service indictments other than to suggest that the President's Amnesty Proclamation, characterized by respondent as a "pretrial diversion or deferred prosecution scheme," might present an unfair choice to guiltless defendants since some of the indictments might turn out to be "invalid" and the President's proposal might subject innocent defendants to pressure to accept the Amnesty Plan "alternative service" rather than face trial. However, respondent did not suggest that, if a fugitive should return to the jurisdiction, he could not obtain a fair trial in which, if the Government should fail to prove its case beyond a reasonable doubt, the defendant would be acquitted.*fn3 Respondent therefore proposed to "screen" the Selective Service cases in question to determine whether some or all might be dismissed on the basis of defenses disclosed by the Selective Service files. Toward that end, notwithstanding the defendants' absence as fugitives from the jurisdiction and their failure to authorize any such action to be made on their behalf, respondent denied the Government's motion to set aside his September 10, 1974, order.
In proposing to proceed without the presence or authorization of the defendants to decide motions that might be made by respondent's appointee on their behalf, respondent relied upon decisions upholding the court's power, pursuant to Rule 12(b) (2), F.R.Cr.P., sua sponte to dismiss an indictment appearing insufficient on its face and to dispense with the defendants' presence upon hearing pretrial motions. However, no authority was cited for the proposition that a trial court might, without a defendant's presence or consent, make an evidentiary disposition of a criminal case upon motion of an attorney acting without the defendant's knowledge or consent.
Having appointed Professor Lusky to represent the fugitive defendants, respondent proposed to entertain motions on their behalf to dismiss the indictments on the ground that the defendants had been denied a prompt trial in violation of the defendants' Sixth Amendment rights, even though prompt trials had been rendered impossible by the defendants having fled the jurisdiction and their never having sought a trial. When the Government submitted affidavits attesting to the fugitive status of 23 of the defendants and the Government's good faith efforts to locate and arrest them, respondent denied the motions of his appointed representative, Professor Lusky, to dismiss the indictments for lack of a speedy trial. However, while apparently unable to find the indictments defective on their face, respondent accepted the suggestion of an amicus curiae, Michael Tigar, Esq., that Professor Lusky be permitted to inspect the defendants' Selective Service files with a view to determining whether motions might lie to dismiss the indictments on the basis of defenses appearing in the files. When the Government objected on the ground that the court lacked the power to direct such discovery, respondent ordered that the files be turned over to him so that he might make copies available to Professor Lusky and Mr. Tigar. The Government, while refusing to turn over the files for inspection by Messrs. Lusky and Tigar, advised respondent that it was willing to provide a copy of each defendant's file to the defendant or his authorized representative.*fn4
On November 26, 1974, respondent granted the Government's request for a 14-day stay pending its filing of the present petition, which was lodged on December 9, 1974.
The extraordinary writ of mandamus, which is rarely granted in civil cases, is even less frequently issued in criminal proceedings, principally because of policy reasons based upon the defendant's rights under the Speedy Trial and Double Jeopardy provisions of the Constitution. Will v. United States, 389 U.S. 90, 96, 19 L. Ed. 2d 305, 88 S. Ct. 269 (1967). Use of the writ as a substitute for appeal or as a means of circumventing the Criminal Appeals Act is barred. Id. pp. 96-97; United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), cert. denied sub nom. Grunberger v. United States, 406 U.S. 917, 32 L. Ed. 2d 116, 92 S. Ct. 1766 (1972). However, in the unusual case where a district judge has clearly exceeded his powers the petition for a writ of mandamus may be granted, see, e.g., United States v. Smith, 331 U.S. 469, 91 L. Ed. 1610, 67 S. Ct. 1330 (1947); Ex parte United States, 287 U.S. 241, 53 S. Ct. 129, 77 L. Ed. 283 (1932); Ex parte United States, 242 U.S. 27, 37 S. Ct. 72, 61 L. Ed. 129 (1916); United States v. Mayer, 235 U.S. 55, 59 L. Ed. 129, 35 S. Ct. 16 (1914); United States v. Dooling, 406 F.2d 192, 198-99 (2d Cir.), cert. denied sub nom. Persico v. United States, 395 U.S. 911, 23 L. Ed. 2d 224, 89 S. Ct. 1744 (1969); United States v. Lasker, 481 F.2d 229 (2d Cir. 1973), cert. denied, 415 U.S. 975, 39 L. Ed. 2d 871, 94 S. Ct. 1560 (1974); United States v. Weinstein, supra, even with respect to an interlocutory procedural order, United States v. Carter, 493 F.2d 704 (2d Cir. 1974); Hilbert v. Dooling, 476 F.2d 355 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 38 L. Ed. 2d 123, 94 S. Ct. 56 (1973).
We believe this to be one of those rare, sui generis cases in which unique circumstances require that the writ be granted. For reasons noted below, we are satisfied that the district judge has clearly exceeded his powers. Issuance of the writ will not affect any defendant's constitutional right to a speedy trial, since each is a long-time fugitive who has not sought trial but, on the contrary, by fleeing the jurisdiction, has prevented his case from being brought promptly to trial. Should the indictments be dismissed for failure to comply with the discovery order, the Government is not assured of the right to appeal under 18 U.S.C. § 3731. Indeed such an appeal would probably not lie with respect to those cases in which the indictment was filed prior to January 2, 1971, when § 3731 in its present form was enacted, see United States v. Apex Distrib. Co., 270 F.2d 747 (9th Cir. 1959) (en banc), and there is the risk that the Government might be precluded on double jeopardy grounds from appealing dismissals based on facts not appearing on the face of the indictments, see United States v. Jenkins, 490 F.2d ...