Will v. United States

RESPONDENT:United States
LOCATION:Telephone Booth

DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 389 US 90 (1967)
ARGUED: Oct 17, 1967 / Oct 18, 1967
DECIDED: Nov 13, 1967

Facts of the case


  • Oral Argument – October 18, 1967
  • Audio Transcription for Oral Argument – October 18, 1967 in Will v. United States

    Audio Transcription for Oral Argument – October 17, 1967 in Will v. United States

    Earl Warren:

    Number 36, Hubert L. Will, Judge of United States District Court for the Northern District of Illinois, petitioner versus the United States.

    Harvey M. Silets:

    Mr. Chief Justice —

    Earl Warren:

    Mr. Silets?

    Harvey M. Silets:

    — may it please Court.

    Simmie Horwitz is druggist in Chicago and he was indicted in two separate indictments charging him with an offense of violation of Section 72061 of the Internal Revenue Code of 1954.

    That offense charged him with willfully making and subscribing false corporate tax returns under the penalty of perjury, which he did not believe to be true as to every material matter.

    The Petitioner here is the Judge of the United States District for the Northern District of Illinois to whom these cases were assigned.

    The defendant Mr. Horwitz filed a request for bill of particulars to which the government objected in part, claiming it would constitute a disclosure of a list of its witnesses.

    Some of the contested particulars were ultimately answered while another was ultimately refused by Judge Will.

    Remaining particular is the one that is at issue here and that was the court ordering the government to furnish to the defendant the names and addresses of non-government persons to whom or in whose presence the defendant made statements material to the proceedings, the date and place that the statements were made, whether written memoranda or verbatim transcripts were made of the statements and if so whether the government had possession of it.

    The government refused to furnish the particulars persisting in a claim that would be giving a list of witnesses.

    Judge Will specifically found that some of the persons to be disclosed might be witnesses, it was clear that not all that remained would be witnesses nor that other persons would not also be called to testify.

    Furthermore since the requests for the names of third persons on whose oral statements the government relied was refused by Judge Will, then the only disclosure in this case was the names of some potential witnesses.

    The government filed a petition for writ of mandamus in the United States Court of Appeals for the Seventh Circuit.

    A rule of show cause was issued and the Seventh Circuit initially held as follows that the order was non-appealable and would offend the policy against piecemeal appeals in criminal cases, that mandamus may not be used as a means of reviewing the non-appealable order, that Federal Courts use mandamus for the traditional purpose of confining a district court to a lawful exercise of its jurisdiction or to compel it to exercise its proper jurisdiction.

    And that finally that Judge Will’s order, they said, might have been erroneous, a question which they were not willing to undertake at the moment, but the ruling was within the court’s jurisdiction.

    On a petition for rehearing filed by the government, the court, Seventh Circuit undertook to reconsider its holding, saying that they would consider the merits rather than to remit the government to a radical alternative judgment available to the trial judge upon the government’s persistent refusal to comply.

    This Court has granted certiorari as to whether the Court of Appeals has jurisdiction to issue a writ of mandamus to prohibit a district court from directing the government to furnish request for bill of particulars where there is no statutory authority for an appeal by the government from such an order and where the district court has lawfully exercised its prescribed jurisdiction.

    Secondly, whether a Court of Appeals can substitute its discretion for that of a district court by the issuance of a writ of mandamus preventing the district court from requiring the government to furnish a bill of particulars, which may disclose in part the names of some perspective witnesses.

    While the right of the government to appeal in criminal cases has been sharply limited, there is no clear-cut dichotomy as yet drawn to the government’s right of review by mandamus in a criminal case.

    The concept of finality of judgment is controlling we say as a characteristic of federal procedure.

    As a result, piecemeal appeals have been frowned upon and where there are statutory exceptions they are either by the language of the statue or by their operation addressed to civil actions.

    Though governmental review in a criminal case has said — been said to be something unusual or exceptional or not favored, still Congress can and to a limited extent has granted review to the government.

    For example, the Criminal Appeals Act when there is actually a termination prosecution; or the Narcotic Control Act, where there is an appeal from an order suppressing the use of seized narcotics, but this Court has strictly construed all such statutes.

    Furthermore, this restrictive attitude has not been ameliorated in any way by the fact that the government has no later right to appeal.

    This reluctance, to grant review to the government in a criminal case is even more compelling when mandamus is the vehicle sought to be used to gain the review, especially so where the only affect of the use of the writ would be to avoid the congressional policy against piecemeal appeals in criminal cases.

    Thus we submit is there or should there be a sharply defined dichotomy between civil and criminal cases when considering the use by the government of the writ of mandamus?

    We answer yes.

    First, the same factors which limits the government’s appeals right in criminal cases apply to its right to use of mandamus.

    Secondly, the concept inherent in the Sixth Amendment right to a speedy trial is a corollary to the restrictive view to governmental use of mandamus in a criminal case.

    Harvey M. Silets:

    We submit a non-restricted application of the remedy by the government could prolong the trial at the pleasure of the government.

    Now in this case it will be perhaps two years from the date that Judge Will entered his order by the time that this Court concludes the correctness of the entry of that order.

    We submit as food for thought to the Court what if Mr. Horwitz had been in jail for failure to make a bond for two years.

    The third point in support of our position that there should be a sharp dichotomy is that the government should be restricted for the same reasons, which are applicable to the Fifth Amendment prohibition against double jeopardy.

    Thus, the unlimited resources of the government to press repeatedly for successive reviews of interlocutory orders could debilitate the defendant both financially and mentally.

    Finally, in the last analysis we suggest that it becomes a balancing of the inherent protections afforded a defendant in a criminal proceeding against the rights of the sovereign.

    In balance then, when should the sovereign have available the use of the extraordinary writ as a method of review of an order in a criminal case.

    We say clearly not in a situation where there is an interlocutory order, that is where there not been a termination of the prosecution.

    Analysis of the cases that have come to this Court in determining whether mandamus is applicable in a criminal situation can be categorized in two ways.

    This Court has permitted the use the mandamus on a request by the government in a criminal case in two situations where either the order effectively deprived the prosecution of its trial, right to trial as permitted by law or the order deprived the prosecution of the results of a proper conviction.

    These are the two situations that we suggest that should be the only instance where the government should have available to it the right of mandamus in a criminal case.

    What cases are you referring to?

    Harvey M. Silets:

    Mr. Justice Harlan, I refer to the two ex parte U.S. cases at 287, 241 which is a 1932 case.

    The 242 U.S. 27 I think that was 1916, United States versus Mayer 235 U.S. and United States versus Smith 331 U.S.

    Those are the four cases, which if any rule were to be drawn from them, in terms of a split between civil and criminal cases, are the ones that are applicable.

    In all of those cases that is where the case has been terminated, that is the government is kept from its right to trial as permitted by law or where the result of a conviction is prevented from the government, in both of those situations, mandamus would not delay or affect the conduct of the criminal case in the trial court, either at trial or at pretrial.

    We submit further that even if this Court does not desire at this time to draw this rule out as a sharp dichotomy between civil and criminal cases that we could suggest to the Court that a reading of the All Writs Act would prevent the government from obtaining the use of mandamus in a criminal proceeding.

    Thus under the All Writs Act, the Title XXVIII, Section 1651, a Court of Appeals may issue all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law.

    This Court has said that the use of the writ has been applied to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it’s its duty to do so.

    Now, if you’ll read the All Writs Act as conferring the right of a Court of Appeals to issue the writ of mandamus where it’s appropriate, in aid of its jurisdiction, where it thus confronted with this proposition.

    How it could that be in aid of its appellate jurisdiction when the person, the participant, the litigant seeking the use of it is the government in a criminal case, and since the government has a limited right to appeal, the Court of Appeals would not have an appellate jurisdiction.

    This kind of reasoning we submit was the reasoning that was followed by the Second Circuit in the United States versus Bondy where the Second Circuit refused to issue the writ to the government to grant a bill of particulars, to review a grant of bill of particulars holding that it had no actual or potential jurisdiction to review the order and since the writ was in aid of appellate jurisdiction, it should not be granted.

    Now, a different viewpoint has been followed for example by the First Circuit in In re U.S., 348 F.2d 624.

    That Circuit said we will interpret the All Writs section that is in aid of appellate jurisdiction and what I have suggested in our brief on a what could happen philosophy or perhaps a chamber of horrors’ idea if the government refused to furnish the bill of particulars, this philosophy would hold the — Assistant United States Attorney could be held in contempt of court and from that holding of contempt could go up on appeal.

    Therefore, theoretically the Court of Appeals would have appellate jurisdiction and therefore the writ would issue in aid of it.

    Or in the alternative, the government in its persistent refusal would find itself with a dismissed indictment and from that dismissal of the indictment perhaps the Court of Appeals would have a right to review and therefore it has appellate jurisdiction and therefore the writ is an aid of the appellate jurisdiction.

    Apparently it is this, what could happen philosophy, which prompted the Seventh Circuit to reconsider its original holding when it said it would reconsider rather than remit the government to a radical alternative appealable judgment available to the trial judge upon the government’s persistent refusal to comply.

    That is apparently what they were saying that this is the only — we don’t want to submit the government to being held in contempt or possible dismissal of the indictment and therefore on the theory that what could happen, we would have appellate jurisdiction let’s review it.

    But to accept this philosophy, this theory would also ensure the proposition that appellate jurisdiction could issue on, would exist on the issuance of any order and the writ could issue as a result of any order.

    This we submit is contrary to the ordered judicial process, which the prohibition against piecemeal appeals is meant to protect.

    Harvey M. Silets:

    This Court said in Bankers Life and Casualty versus Holland, if we applied the reasoning advance then every interlocutory order, which is wrong, might be reviewed under the All Writs Act.

    Abe Fortas:

    Well isn’t there another theory and that is that the appellate court has jurisdiction by way of mandamus, as jurisdiction a way of mandamus to review decisions of the lower court as an interlocutory matter provided that those decisions would be ultimately reviewable, would be ultimately reviewable by the appellate court and that unless review on an interlocutory basis, reviewability, the exercise of the reviewed jurisdiction might be destroyed.

    Harvey M. Silets:

    Mr. Justice Fortas, I don’t —

    Abe Fortas:

    Because I – it’s little surprising for me to hear you say that the theory to advance, the theory or argument purposes that your adversaries’ position would mean that every interlocutory decision could be reviewed because there are some decisions that just aren’t reviewable at any time.

    Harvey M. Silets:

    But if you accept the philosophy that what could happen as a result of a persistent refusal to comply with the court’s order as a basis for ascertaining whether there is appellate jurisdiction then you could, then the Appeals Court could always sit back and say well they could always be held in contempt.

    Abe Fortas:

    No, it’s much simpler theory, I haven’t you heard mention it and that’s why I take the liberty to interrupting you.

    The theory that I believe is advanced and some of the literature anyway, is that if a decision would be ultimately reviewable by the appellate court, if it’s — and if the failure to review it on an interlocutory basis would destroy the possibility of effective review, then the appellate court has jurisdiction to review it by means of mandamus.

    Harvey M. Silets:


    Abe Fortas:

    I’m not suggesting that’s the right principle, but it’s in your very careful statement to this point that’s the principle that you’ve not mentioned?

    Harvey M. Silets:

    That is a proposition that has been advanced but there’s also a proposition that has been advanced that the fact that the action may — for failure to grant the writ may result in a delay by virtue of causing the case to go to trial and causing a great deal of expense itself is not enough to warrant the issuance of the writ.

    We suggest that there’s enough jurisdiction in the Court of Appeals to determine whether the writ should issue, jurisdiction to determine whether it has jurisdiction but we suggest that this Court should now assimilate all of these cases and say clearly in a criminal situation that there’s this dichotomy.

    So that the government would be restricted in approaching a Court of Appeals in a — from an order of — an interlocutory order in a criminal case.

    Abe Fortas:

    Well I know that district judges never make very extreme errors but just suppose one did, suppose for example, one ordered the Secretary of Defense to produce all of the secret information relating to the conduct of a war or something like that.

    Now, what you’re saying is then the only possibilities are the government produces the information or the government dismisses the indictment and doesn’t prosecute.

    We would exclude even in case of a plain, extreme abuse by the district court the possibility of mandamus, is that right?

    That is your position.

    Harvey M. Silets:

    Our first position is that there should be a clear rule between criminal and civil cases and that if the government felt strongly enough in the situation that you have advanced Mr. Justice Fortas, they could do probably what was done in Bowman Dairy and that was refuse to comply with the order and hold itself available for contempt citation and that’s what happened there, and gained the review.

    But we don’t, in the ultimate we don’t go that far for purposes of decision in this case because in the ultimate even if this Court does not wish to accept a dichotomy between civil and criminal cases and you accept and persist in a view of the rule in civil cases that is whether there’s a clear abuse of discretion, which might be the proposition that you have advanced that there’s certainly a clear abuse of discretion that that test in these circumstances would not warrant the issuance of the writ.

    Now the —

    Potter Stewart:

    Before you move on, in this case it was apparent that the – it’s improbable at least that the district judge was going to either dismiss the indictment or you say perhaps hold somebody in the government in contempt.

    I suppose there clearly, there clearly would have been an appeal from any kind of contempt –

    Harvey M. Silets:


    Potter Stewart:

    — proceeding against anyone in the government.

    Would the government, if the district judge had taken the alternative route and dismissed the indictment, would the government have had a clear right to appeal there?

    Harvey M. Silets:

    We say no –

    Potter Stewart:

    Why not?

    Harvey M. Silets:

    — that the United States versus Apex Distributing would prevent –

    Potter Stewart:

    Then there’s no appeal by the government –

    Harvey M. Silets:

    No appeal, no.

    Potter Stewart:

    — indictment upon that ground, isn’t it?

    Harvey M. Silets:

    That’s right but that is not of a significant factor because in DiBella versus United States on a pre-indictment motion to suppress this Court said the fact that the government can’t appeal does not change the circumstances at all.

    The fact that government may not have a right of appeal to review this order is not a criterion to judge whether the writ should issue because I submit this Mr. Justice Stewart if the philosophy of the government here is accepted then in the DiBella situation they could go up on a writ of mandamus.

    Abe Fortas:

    The decision to dismiss or to hold for contempt is entirely up to a district judge, is it not?

    Harvey M. Silets:

    Yes it is.

    I see that I have just a few moments remaining.

    I would like to say this that the government seems to urge that they would accept the philosophy that in a routine ruling the writ should not issue, they have not advised the Court what they consider to be a routine ruling.

    They have suggested that what should be accepted is this civil case test citing Schlagenhauf versus Holder, and La Buy versus Howes Leather Company, if the Court overlooks the dichotomy between civil and criminal cases and if the Court does not feel that the All Writs Act is restrictive by virtue of appellate jurisdiction philosophy, then we submit that even under the civil test of Schlagenhauf and La Buy which when reduced to their ultimate is not – are nothing more than a question of whether there was a clear abuse of discretion that under that test, this Court, Judge Will did not clearly abuse his discretion.

    He had the jurisdiction and it’s not contested that he has jurisdiction to enter an order requiring a disclosure of bill of particulars.

    In this particular case, the Court should remember that the nature of the offense, that is a violation of 72061 is in effect a written perjury, making and subscribing a false tax return under penalties of perjury where he did not believe everything to be true.

    The nature of the bill of particulars was statements made that the government is going to rely upon made to third persons and who are those third persons?

    Now it would appear from Judge Will’s finding and his specific ruling here that in the nature of this case, in the nature of these circumstances the defendant was entitled to and was required to receive this information to prevent undue surprise and prepare his defense.

    Therefore we suggest under any of these tests, the dichotomy, the use of the All Writ, writ section or finally under the civil case test that Judge Will exercised his discretion clearly within this jurisdiction and properly.

    Hugo L. Black:

    May I ask you that [Inaudible] — what question was it that the government declined down?

    Harvey M. Silets:

    The government declined to furnish the names and addresses of persons to whom or in whose presence the defendant made statements, which would be relied upon by the government in its case.

    Hugo L. Black:

    In other words —

    Harvey M. Silets:

    — not the substance but just their names.

    Hugo L. Black:

    Ask them to give the names of witnesses that the government intended to use to show he had made a statement?

    Harvey M. Silets:

    Not all witnesses Justice Black just some potential witnesses.

    There wasn’t nothing which would imply that they had to be witnesses or that there would not be other persons who might be witnesses but —

    Hugo L. Black:

    What ultimate, extreme damage would that have done to the government?

    Harvey M. Silets:

    We submit none, no damage to the government at all.

    Hugo L. Black:

    That’s all it was to it.

    Harvey M. Silets:

    That’s all it was to it.

    Earl Warren:

    Mr. Posner?

    Richard A. Posner:

    Mr. Chief Justice and may it please the Court.

    In the few moments that remain, I’d like to address myself briefly to the jurisdictional issue here, which has to do with the scope of the power of Court of Appeals to issue writs of mandamus in federal, criminal cases at the behest of the government.

    We sense some ambiguity, some contradiction in the argument that petitioner has made here.

    On the one hand, he suggests that because the government ordinarily cannot appeal an adverse judgment in a criminal case, therefore for the government to seek mandamus is not a — not properly to invoke the appellate jurisdiction of the Court of Appeals.

    Now just two terms ago on the Dean Foods case, in 384 U.S, the Court made quite clear that even in a situation where the only right of appeal is that of a private individual that was a case of a respondent before the Federal Trade Commission, the government may still in an appropriate case ask for mandamus.

    So the test of whether a writ is appropriately in aid of appellate jurisdiction is whether some party to the proceeding at some point has a right of appeal. Now while making this argument, petitioner at the same time appears to concede the validity of a series of cases in this Court, the ex parte United States cases and two others, in which the government in criminal cases was allowed to obtain a writ of mandamus.

    Richard A. Posner:

    The test petitioner suggests is that, that is perhaps proper where it is necessary to enable the government to place the man on trial or to impose a sentence, but were denied the power in every other case.

    This seems to us to lead to highly anomalous results and an example may make this clear.

    Suppose that Judge Will adopted the practice in his courtroom of permitting the defendant to subpoena and depose all government witnesses routinely just as in a civil case, it’s quite clear that the federal criminal rules do not afford the same discovery powers as the federal civil rules, and that indeed this Court in revising these criminal rules from time to time has declined to assimilate the civil and criminal proceeding in this respect.

    Though — now the logic of petitioner’s position is that however patent and extreme —

    Abe Fortas:

    Well we haven’t done it.

    Richard A. Posner:


    Abe Fortas:

    We haven’t done it.

    That’s different from saying we have declined to do it, isn’t it?

    Richard A. Posner:

    I think when the Court is urged as it has been urged to broaden —

    Abe Fortas:

    You mean when the committees have been urged.

    Richard A. Posner:

    It is the Court that promulgates the —

    Abe Fortas:

    I understand that.

    Richard A. Posner:

    — the rules and I assume approves the work of the committee when it adopts —

    Abe Fortas:

    Well, it’s alright.

    I do think there is an important shade of difference between what the situation is on the standing and what is reflected by your word, “decline.”

    Richard A. Posner:

    I agree, perhaps I should not say it was the Court that declined, but whoever should take responsibility for the federal criminal rules, they do impose, they do define federal district judge’s power in criminal cases.

    It seems to us that in cases where federal district judges persistently or blatantly ignore these rules there must be a remedy for assuring compliance.

    The rules are promulgated to have uniform application throughout the federal court systems and it seems to us intolerable that every federal judge could be a law unto himself in these procedural questions.

    Again, I sense an element of contradiction here in petitioner’s argument because he recognizes that there are cases where the U.S. Attorney might simply refuse to comply with the district court’s order and the district judge would adjudge him in contempt and an appeal would then lie.

    So he does recognize the contempt proceedings at least as an escape valve by which the Courts of Appeals can review district judge’s procedural rulings.

    It seems to us furthermore orderly procedure to recognize a mandamus remedy in this class of cases.

    We don’t suggest that this is all cases or most cases where the government feels there is error in a district court ruling, but only those unusual cases, which either present a novel issue or show a clear case of persistent refusal to comply by the district court with these requirements.

    Abe Fortas:

    Well what’s — does that have any role in this case?

    Is this case brought by the government, over and part because the District Judge has a bad record?

    Richard A. Posner:

    Well the district judge as he stated in one of the colloquies in this case at page, I believe at page 95 — page 75 of the record, admits that it is his consistent practice in all criminal cases to require this list of witnesses.

    Abe Fortas:

    I understand, but when you get around your argument I’d like to know why the government in this particular case deemed that, sufficiently consequential to decline to obey the order of the judge and turn over this information that the judge ordered them to turn over to the defendant and that to me is a material fact.

    Richard A. Posner:

    Well I would say —

    Abe Fortas:

    I doubt very much that even the judge’s statement or matters that are not in this case or in this record with respect to this judge’s practice or what wasn’t his practice, play, play or maybe allowed to play a part here?

    Richard A. Posner:

    Well, I don’t, I can’t agree with that.

    I think it is certainly relevant if a judge has not once but persistently adopted a practice which appears to be in conflict with the rules.

    Richard A. Posner:

    Mandamus is an extraordinary remedy.

    It is far more appropriately employed, it seems to us, where there is a consistent pattern applying to many cases and not simply what could be viewed as isolated error.

    Abe Fortas:

    Does that also go for private litigant?

    You’re not suggesting that the Department of Justice has available to it, mandamus as a measure for disciplining judges, are you?

    Richard A. Posner:

    Mandamus has been viewed, I don’t know that I would use the word discipline, but in a private case like the La Buy case, when this Court said that Judge La Buy — issued a writ of mandamus against Judge La Buy because he was referring cases to masters in circumstances which —

    Abe Fortas:

    Well that was based on that particular case?

    Richard A. Posner:

    No, no, but the Court stated that judge, that in the district in question, this had been a frequent practice and the court viewed this as distinctly relevant to the propriety of the — of intervening in district court procedures.

    The fact that there has been a consistent non-compliance with the rules.

    Abe Fortas:

    Oh, I think I understand your position now and I’m not sure at all I that I agree with it?

    Richard A. Posner:

    I don’t suggest that the sole reason why the government declined to comply with the judge’s order was that he had issued similar orders in the past.

    I think it’s also felt that there is an important principle here as to the scope of discovery a criminal case, which is appropriately decided by the appellate courts rather than by Judge Will’s and when I resume tomorrow I will consider what it is about this practice that in our view requires correction.

    Earl Warren:

    We’ll recess now.