WILL v. UNITED STATES

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Argument of Richard A. Posner

Chief Justice Earl Warren: Number 36, Hubert L. Will, Judge, United States district court for the Northern District of Illinois, petitioner versus the United States.

Mr. Posner, you may continue with your argument.

Mr. Richard A. Posner: Mr. Chief Justice, may it please the Court.

Yesterday afternoon the discussion centered on the jurisdictional issue relating to the powers of the Courts of Appeals to issue writs of mandamus at the behest of the government in criminal cases.

And unless there are further questions on that phase of the case, I'd like to turn my attention to the issue on the merits, and that is the propriety of Judge Will's ruling in this case that the government must turn over to the defense, a list of the names and addresses of all individuals to whom the defendant had made statements relating to the crime.

Justice John M. Harlan: I'd like to ask you a question.

Did I understand you to say that the indictment in this case has been dismissed by the Judge [Inaudible] there would have been no appeal by the government?

Mr. Richard A. Posner: I didn't -- I didn't address myself to that question.

Petitioner's counsel mentioned the Apex case, which does -- a Ninth Circuit case I believe, which holds that the only, the government may only appeal the dismissal of an indictment when the reason for the dismissal has to do with the validity of the indictment.

While the issue has not been authoritatively resolved by, has not been addressed by this Court, I think the government at least tacitly accepts the Apex principle and would not attempt to appeal a dismissal for failure to comply with the judge's order.

Justice William J. Brennan: [Inaudible]

Mr. Richard A. Posner: Correct, yes.

Justice William J. Brennan: That kind of dismissal would not come within the expediting items?

Mr. Richard A. Posner: You mean in terms of direct appeal to this Court?

Justice William J. Brennan: Yeah.

Mr. Richard A. Posner: No, that would only be where the issues are of statutory construction.

Justice William J. Brennan: -- it would have to be the Court of Appeals.

Mr. Richard A. Posner: Yes, but even there the, there is this view that no appeal lies unless the validity of the indictment itself is questioned.

Now, to us the essential point as to the propriety of the Judge Will's ruling is that the Federal Criminal Rule simply do not contain any authority for this kind of disclosure of the government's case.

Now, two years ago when the federal rules were extensively revised in this area of discovery, it was urged upon the revisers that many of the principles of civil discovery be carried into the criminal sphere, and specifically that a list of witnesses that the government intended to call be furnished to the defense in advance of trial and the revisers declined to make that change and you will find --

Justice Abe Fortas: Well, Mr. Posner wasn't that proposal in terms of mandatory provision that the judge shouldn't make that available unless the witness is available with some exceptions for security reasons or accepting --

excluding instances where the judge had some affirmative reason for not turning over particular names that is to say the proposal was not in terms of granting or denying the judge's discretion, am I -- is my recollection correct?

Mr. Richard A. Posner: I think I believe that's how it read, but I think that Judge Will has adopted a policy of routinely making this information available to the defense rather than requiring any showing of particular need on the part of the defense.

Justice Abe Fortas: Are you suggesting that the issue before us is not whether it was ever to order a disclosure in this case, but whether Judge Will is wrong in what is alleged to be a routine practice of disclosing names?

Can we pass on anything other than the order of disclosure in this particular case?

Mr. Richard A. Posner: We contend that the order is erroneous insofar as it does reflect a practice of routinely making -- ordering these disclosures without regard to the circumstances of the particular case.

Had Judge Will found something special in the facts here, had the defense argued that there was something special in the facts here, which required disclosure of this information that would be a different case.

Justice Abe Fortas: Well may I suggest that your argument maybe that the record here fails to disclose an adequate reason for the order of disclosure in this particular case.

I must say to you, as I indicated yesterday, that I have the greatest difficulty in considering statements to the effect that judge ought to be -- we ought to use mandamus really to discipline a Judge with respect to a general practice, the details and the circumstances of which we don't have before us in the sense that they're not in this record and I think it's a very serious thing, it's a very drastic thing that you're asking us to do in the absence of what I would regard as adequate information?

Mr. Richard A. Posner: Well, without reopening that issue completely, I note that in the La Buy case in 352 United States, a major statement of this Court as to the function of mandamus, the Court in noting that mandamus should be resorted to only in extreme cases went on to say, and I'm quoting the Supreme Court, “There is an end of patience and it clearly appears that the Court of Appeals has for years admonished the trial judges of the Seventh Circuit that the practice of making references does not commend itself.

And the court goes on to point out that in 1942 and subsequent occasions the court had rebuked, Court of Appeals had rebuked the district court.

It emphasizes the fact that the particular judge involved in that case had referred 11 cases to masters in the past six years.

Justice Abe Fortas: Are you suggesting that we have a comparable basis here?

Mr. Richard A. Posner: Well Judge Will himself --

Justice Abe Fortas: That the Court of Appeals -- has the Court of Appeals rebuked Judge Will in other cases?

Has Judge Will refused to comply with a directive or an indicated position by the Court of Appeals?

Mr. Richard A. Posner: Judge Will states in one of the colloquies in this case, and this is in the record that is, this is perhaps the 50th time in which he has had occasion to make this kind of order of disclosure, which the government views as unauthorized and we think --

Justice Abe Fortas: Well, the government views that but we don't have the circumstance before us, maybe in every one of those 50 cases, if we pass the jurisdictional point, beside that he has jurisdiction into this so far as we know maybe, in every one of those 50 cases he had an adequate and indeed compelling reason to do that?

Mr. Richard A. Posner: Yes, but I think the essential point is that in Judge Will's view of this area, he does not require that any special reason to be shown for this kind disclosure.

He regards this as a routine matter that anyone who has been present either at the commission of the crime or when the defendant was talking about the crime has a right to -- that all those names must be disclosed and as I say --

Justice Byron R. White: Mr. Posner, do you think it's contrary to the present criminal rules for a judge to say that I'm going to do this every time unless the government shows some special reason why it shouldn't be done?

Mr. Richard A. Posner: Yes, I believe it is contrary.

The only basis in the federal rules for disclosure of a witness' name is if it is necessary to comply with a proper request for a bill of particular.

There's no discovery mechanism as such by which --

Justice Byron R. White: What do you -- are you going to talk about what the -- what the case is around the Court of Appeals, the district courts -- what those cases hold in regard to the function of the bill of particulars with respect to the names of witnesses?

Mr. Richard A. Posner: Yes, the cases which petitioner cites, number of cases for the proposition that this a common practice almost invariably concern the situation that was presented in the Roviaro case where the crime itself has, the -- an essential participant in the crime has been a government informant.

Government informant has purchased the narcotics or has furnished the stolen property to the defendant.

In those circumstances where the informant, the government witnesses at the very center of the crime itself, many courts have made that name available to the defense.

Justice Byron R. White: What is the function of a bill of particular in the government's view?

Mr. Richard A. Posner: We view it as, apart from any function it may have with relation to the double jeopardy clause, its purpose is to enable the defense, to the defendant to prepare defense and present a defense without unfair surprise.

That has been held to require that if, for example, as in the Roviaro case, the indictment states that the crime is the sale of narcotics to John Doe, not otherwise identified the name of that witness, of that not necessarily witness, the name of that participant in the crime should be available to the defendant at least in some cases, so that he can prepare a defense.

Justice Byron R. White: Prepare a defense by talking to the fellow?

Mr. Richard A. Posner: Talking to him or interviewing him, or perhaps to find out what actual circumstances there were.

Justice Byron R. White: Well if the government is going to use a witness to whom the defendant has spoken at some time before the trial, why wouldn't the same reason apply in terms of the function of bill of particulars as applies in the Roviaro versus United States?

Mr. Richard A. Posner: Well, I think the Roviaro rule and other decisions, which have authorized disclosure, strike a balance between two significant interests.

One is the defendant's interest in preparing his case and the other, a very important interest in the government's view, is that of the confidentially of informants.

Now in this -- in a case like this the issue arises in this fashion, in intern--

Justice Byron R. White: No one suggested, if the government came in and said that that isn't involved in this case, but if the government came in and said, there is a special reason why we don't want to give the name of this person, why -- I suppose the judge could not make you give his name and of course if you are going to use him as a witness, you are going to surface him anyway.

Mr. Richard A. Posner: This is not, the problem here is not that of the informant that the government wants to keep confidential for use in subsequent cases nor is the problem a, the kind of problem which the government can ordinarily furnish special reason.

The problem is this in internal revenue case, that very often the government learns violations of the income tax laws through friends, or acquaintances, or former employees, or other associates of the defendant, who come forward with this information either out of public sense of public duty or because there is a bounty for this kind of information.

Now these people then will often furnish not only lease, but very important evidence of admissions at the trial, evidence which is highly material on the issue of willfulness.

If a person has been bragging to his friend or acquaintance that his skill in outwitting the internal revenue service, that individual's testimony of this admission will be highly material in adjudging the willfulness of the violation.

Now if the names of those individuals are available to the defendant, there is a danger which the service believes is a substantial one, that the defendant will appeal directly or indirectly to the friendship or sympathy of these individuals or in some cases there maybe elements of bribery involved to shade the testimony or to develop a lapse of memory when it comes to the trial or otherwise change their testimony.

This is a -- dangers of this sort are the historical reason why discovery in criminal cases has been very limited, the fear that--

Justice Abe Fortas: But then there is also the reason advanced against discovery in civil cases for years and years and over the years Mr. Posner--

Mr. Richard A. Posner: Yes.

Justice Abe Fortas: Would your argument apply equally to a criminal prosecution of somebody for a tax fraud or for Securities Act violation or that sort of thing?

There too the government takes the same position, doesn't it, against a --

Mr. Richard A. Posner: This is a tax fraud case.

Justice Abe Fortas: This is a tax fraud case, that's right.

Well is this – you'd make no distinction between this and an organized crime case?

Mr. Richard A. Posner: The danger of which I am speaking here is not the danger of rubbing out witnesses, that is a danger in another areas, the narcotics area, it is a danger of distortion and fabrication --

Justice Abe Fortas: Well, isn't it true that in criminal cases, the defendant and his counsel generally know some of the witnesses anyway or have a pretty good idea as to who some of the witnesses will be.

Now has the department reason to suspect if there is a widespread subordination of perjury in this country or widespread rubbing out of witnesses or whatever--?

Mr. Richard A. Posner: No, I am talking rubbing out in –

Justice Abe Fortas: Well, whatever you are talking about—

Mr. Richard A. Posner: --the tax context I am talking of--

Justice Abe Fortas: Okay, now the other reason to believe that presently anything of that sort is going on despite the obvious fact that defendants and their counsel will be aware of most of the witnesses and most of the probable witnesses without any disclosure on your part?

Mr. Richard A. Posner: They are not likely to be aware of what -- assuming that the defendant has made statements, admissions to a number of people, he will not know whether they are going to testify against him, whether they turned state's evidence or anything of that sort.

Now the distinction has been urged, continues to be urged between civil and criminal cases in this regard on the basis of the greater stakes from the defendant standpoint in a criminal case.

But I don't mean to suggest that this is a correct view, that it should be paramount to the defendant's right to prepare a defense.

But all these issues were laid before the revisers of the criminal rules two years ago, the same argument I am suggesting here was made and the Court or the advisory committee in Congress declined to establish any broad rule of discovery.

And to us that suggests that if a defendant is to obtain the names of perspective witnesses, he must make some special showing that that is necessary to help him prepare his defense.

He is not routinely entitled to that information because it does expose the witnesses to potential harassment --

Justice Byron R. White: But again going back to the bill of particulars Mr. Postner, isn't it, rather easy to articulate this kind of a rule that Judge Will has in terms of the function of the bill of particulars?

Mr. Richard A. Posner: Well, since the function of bill of particulars is to enable the defendant to prepare his defense without fear of undue surprise.

Justice Byron R. White: I would think it's rather important for him to know, in preparing his defense what the critical testimony will be against him?

Mr. Richard A. Posner: That rationale would permit the courts, permit a district court under the rubric of bill of particular to compel complete discovery, the purpose of discovery.

Justice Byron R. White: It maybe one thing to say that we are only going to have depositions, compulsory depositions in limited -- in some circumstances, but another thing is they would -- that the defendant should have the opportunity at least to talk to them, witnesses don't need to talk to defendants, they don't want to, do they?

Mr. Richard A. Posner: No.

Well, I think it could be defended as a legitimate extension of the existing rules, but I think the court has declined to make those -- I note in this respect -- I should point out that the advisory committee's note to the revised rule 7 (f), the bill of particulars note, mentions what it calls a wise use of the district judge's discretion in granting bills of particulars by Mr. Justice Whittaker then a district judge in the Smith case and there Judge Whittaker while disclosing -- while directing government to disclose various facets of its case, declined to direct the furnishing of a list of witnesses.

And again the champions of liberalized criminal discovery during the period of this rule's revision urged the revisers to make avail -- to require or authorize a witness list, again to allow the defendant to talk to the witnesses even if not perhaps to depose again it was rejected.

Justice Byron R. White: Don't you agree that bill of particulars has a different function in criminal cases and in civil?

Mr. Richard A. Posner: Yes, I think the bill of particular, in a system in which you have no discovery or a very limited discovery, a bill of particulars is necessary to--

Justice Byron R. White: I mean it's not just to clarify what the charge is, what the indictment --

Mr. Richard A. Posner: Right it is to furnish some additional information to enable them to -- here I mention--

Justice Byron R. White: You concede -- the government concedes this function of the bill of particulars in our system under our rules under our system?

Mr. Richard A. Posner: To furnish necessary information beyond the indictment --

Justice Byron R. White: To prepare a defense?

Mr. Richard A. Posner: To prepare a defense, correct.

I mentioned that in this case the government did disclose in answer to the request for particulars, a very large amount of information, including for example the specific items of receipt, which the government contends were fraudulently not reported on the income tax return and the names of customers who will testify that their payments to the defendant were not reported.

Justice Byron R. White: Did Judge Will's order go beyond those people whom you were going to use as witnesses, it did, isn't it?

Mr. Richard A. Posner: Yes.

Justice Byron R. White: So that required you to name people whom you didn't intend to use as witnesses perhaps for some other reason?

Mr. Richard A. Posner: Yes, any individual.

Justice Byron R. White: I don't – do you make some special objection to that, that would cover your any kind of an informant whether he wanted to keep them secret or not?

Mr. Richard A. Posner: That that the breadth of that is certainly an additional distressing factor.

I don't know whether in this particular case, there's such an individual, an informant we would want to be using in the future.

Again our position mean that the burden of showing the special circumstances is the defendant's rather than the government's.

Chief Justice Earl Warren: Mr. Posner, if we decide with the government in this case, would it be a question for the government that having an authority to have an appeal whenever it disagrees with an order of discovery or an order for a bill of particulars.

Mr. Richard A. Posner: No, not at all.

Chief Justice Earl Warren: Would you tell me why please?

Mr. Richard A. Posner: In the civil sphere --

Chief Justice Earl Warren: Well, I'm talking about the criminal.

Mr. Richard A. Posner: Right, yes I was going to suggest that in both areas, mandamus has been regarded as proper only in exceptional circumstances, and the circumstances here that we view as exceptional --

Chief Justice Earl Warren: Yes, but you would claim, you could claim it was exceptional and cause the delay to a trial that was caused in this one.

I notice in this case that the court -- the trial court made its order on the October 3 and this order of the Court of Appeals and mandamus came on October 4, 1966, 10 months later and the trial, there were no action in the trial between those dates.

Mr. Richard A. Posner: I think the Judge's order was in March, the actual --

Chief Justice Earl Warren: I thought the --

Mr. Richard A. Posner: The initial order to grant particulars was in October --

Chief Justice Earl Warren: The initial order --

Mr. Richard A. Posner: -- then proceedings in the district court concerning this --

Chief Justice Earl Warren: The initial order that the government objected to as I read the briefs --

Mr. Richard A. Posner: Yeah.

Chief Justice Earl Warren: -- is in -- was in October 1965, is that right?

Mr. Richard A. Posner: Yes, I'm just suggesting after --

Chief Justice Earl Warren: There's no action in the trial after that and here the order of mandamus was October 4, 1966 and now what I'm trying to find out is that if we decide with the government in this case, is that procedure open to the government anytime the government wants to allege that the order of the trial court in discovery or for a bill of particulars were beyond his jurisdiction.

Mr. Richard A. Posner: Well, I assume that if the government brought a mandamus proceeding that had no reasonable foundation and that it was a tactic of delay that the Court of Appeals and the trial court would prevent the government from thereafter going forward with the trial.

There are I think ample protective devices to prevent tactics of delay.

In the government's view, these mandamus proceedings are appropriate only in very unusual cases.

Chief Justice Earl Warren: Yeah, but you'd allege it was unusual in the case --

Mr. Richard A. Posner: Yes, but Mr. Chief Justice if we alleged, if we made such an -- if we brought a frivolous mandamus proceeding, I should think it would be fully appropriate for the district court to dismiss the indictment for failure to prosecute or for denial of the Sixth Amendment right to a speedy trial.

I don't think there's, I don't think there is a danger that the government were still minded would be permitted to abuse this device in order to delay criminal trials.

The number of cases --

Chief Justice Earl Warren: We'd have to review the discretion of the trial court in dismissing it, would we or do you say --?

Mr. Richard A. Posner: Of course there are ways that that --

Chief Justice Earl Warren: Or do you say that there's no appeal from that?

Mr. Richard A. Posner: In answer to Mr. Justice Harlan I suggested that probably there is no appeal from a dismissal of an indictment that does not, is not, does not rest on the invalidity of the indictment.

Chief Justice Earl Warren: Mr. Silets?

Argument of Harvey M. Silets

Mr. Harvey M. Silets: Mr. Chief Justice, may it please the Court.

First in response to the inquiry by the -- Mr. Chief Justice, the petitioner would agree that in every instance where the government in good faith felt that the order of the district court, an interlocutory order was improper that they could effectively cause a delay by seeking the extraordinary writ of mandamus.

We don't suggest that in this case that the government was acting in bad faith.

Chief Justice Earl Warren: No, nor did I.

Mr. Harvey M. Silets: No, but the net effect what has happened is that is going to be at least two years before the case can go to the merits.

Now I suggested yesterday what would happen in the situation if the defendant were imprisoned or waiting in his trial.

The government has acted in good faith here.

We don't suggest to the contrary, but we believe that if this court fails to set forth some standards that in a criminal case what would happen would be the opening of the floodgates as was stated last term in the Switzerland Cheese case.

Chief Justice Earl Warren: I've intended to ask Mr. Posner, but I forgot it, I'll ask you.

What is there in this case that enables us to say from the opinion of the Court of Appeals that this was an extraordinary case that would invoke jurisdiction?

Mr. Harvey M. Silets: First, Mr. Chief Justice, there was no opinion.

Chief Justice Earl Warren: That's right.

Mr. Harvey M. Silets: We don't know what prompted the Court of Appeals to act as it did.

Secondly, we suggest that this was not extraordinary at all.

This Court has consistently said that the extraordinary writ should be reserved for really extraordinary situations.

One can hardly think of a more common place situation than the granting of the bill of particulars.

And moreover the type of particulars that were granted here that is the disclosure of the names of some potential witnesses is also a commonplace situation.

This Court in at least two cases has indicated that the bill of particulars was a method by which potential witnesses could be disclosed.

As a matter of fact in the Roviaro case, this Court said that the name of the informant could be obtained by the use of the bill of particulars and if the government didn't want to furnish it, the recourse of the court would be to dismiss the indictment.

Justice Abe Fortas: If the government did voluntarily give you the names of some persons who have knowledge of the facts, is that --?

Mr. Harvey M. Silets: Not, voluntarily Mr. Justice Fortas, but by order of the court under the bill of particulars but it's --

Justice Abe Fortas: Well, I suppose then I'd have to take the position that they did it voluntarily, they did it because they wanted to, not because they thought they were under legal compulsion?

Mr. Harvey M. Silets: Well, in light of this proceeding where they feel that they don't have to take the -- and I would agree.

Justice Abe Fortas: Yes, so what it come, what it may come down to is that the government says the government as prosecutor can decide which names it will give you, but that the trial judge as judge does not have that power?

Mr. Harvey M. Silets: Precisely.

Justice Abe Fortas: -- that or that, the second line is that in this particular case that was wrongly exercised, so I understand they're arguing both.

Mr. Harvey M. Silets: I would agree that what they're suggesting here is that the ultimate decision of whether the particulars will be answered lies with the government and not with the court.

Chief Justice Earl Warren: I'm wondering if in view of the facts of this case where on the original hearing in the Court of Appeals, the same panel decided in favor of the trial judge and then on a motion for rehearing without any hearing of any kind reversed itself and granted the writ of mandamus without any opinion if we have any fair opportunity here to appraise the facts that lead to that and I'm wondering if the proper thing in this case wouldn't be to vacate the judgment, send it back to the Court of Appeals, and ask them to make the necessary findings and set the standards or what would constitute proper action in mandamus.

Mr. Harvey M. Silets: That is a possibility Mr. Chief Justice, but we suggest that even in the framework of the record as it stands now, the nature of the particular offense charged that is that this is not a charge of income tax evasion, this is a charge of willfully making a false return under the penalties of perjury, not believing the contents of that return to be true.

It's in the nature of a written perjury.

The government is frank to admit now that here are admissions by the defendant concerning this willfulness reflecting upon the proposition of whether in fact he had perjured himself.

We can't think of any clear situation where a court would say that this – the names of people to whom he's made those statements in the framework of this kind of case is not appropriate.

This is the most appropriate situation in terms of this bill of particulars, if I may have one more minute Mr. Chief Justice.

Chief Justice Earl Warren: Yes.

Mr. Harvey M. Silets: In response to the inquiry by Mr. Justice Fortas, we suggest that he's correct that the mere fact that there is what the government suggests a routine here, which we don't concede, by Mr. – by Judge Will to furnish these of kind or particulars is not the basis for this Court to rule in this case.

This Court must rule within the framework of these facts in this case.

This is precisely what the Court took some pains to do in La Buy case.

In La Buy, this Court went in precise details about the exceptional circumstances in the case that came before this Court.

We suggest in the ultimate, if it please the Court, that if the government is permitted to use the extraordinary writ in the situation that the floodgates would open, that the entire trial of cases and criminal cases would be open to speculation, the defendants would be hard-put to proceed, that the government would have it within its power whether the grant of -- to answer a bill of particulars or not.

And then finally on the merits of this particular case that Judge Will was within his discretion, within his jurisdiction to grant the particulars in question.

Thank you.