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


Media for Will v. United States

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.