Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

United States v. Will

U.S. COURT OF APPEALS, 7TH CIRCUIT


March 15, 1966

UNITED STATES OF AMERICA, PETITIONER
v.
HONORABLE HUBERT L. WILL, JUDGE, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,RESPONDENT.

Author: Swygert

Upon consideration of the emergency petition of the United States of America for a stay order pending filing of a petition for mandamus, It is Ordered that said stay be granted and all proceedings in Case No. 65 CR 432, United States v. Simmie S. Horwitz, and in Case No. 65 C 464, United States v. Simmie S. Horwitz, pending before Honorable Hubert L. Will, Judge of the United States District Court for the Northern District of Illinois, be stayed until further order of this Court.

And, It is Further Ordered that the United States of America, Petitioner, be granted leave to file its petition for mandamus to vacate the order directing petitioner to answer Item 25(a), (b), (c), (e), (f) and (g) of the Bill of Particulars by Monday, March 21, 1966.

Rule to Show Cause (3/24/66)

Hon. JOHN S. HASTINGS, Chief Judge, Hon. F. RYAN DUFFY, Circuit Judge, Hon. LUTHER M. SWYGERT, Circuit Judge. On June 15, 1965, indictment No. 65 Cr 432 was returned to the District Court for the Northern District of Illinois, charging Simmie S. Horwitz with a violation of Title 26 U.S. Code § 7206(1);

On June 29, 1965, indictment No. 65 Cr 464 was returned to the District Court for the Northern District of Illinois, charging Simmie S. Horwitz with a similar but distinct violation of Title 26 U.S. Code, § 7206(1). At subsequent proceedings, these two indictments have been considered on a consolidated basis;

On September 7, 1965, defendant filed a motion in the alternative for a bill of particulars. Thereafter, the Government filed an answer in opposition to defendant's motion for a bill of particulars;

On November 29, 1965, the District Court entered an order granting defendant's motion for a bill of particulars except as to 4 and 29(b);

On December 3, 1965, the Government filed a motion to vacate the Court's order of November 29, 1965, with respect to particulars 7, 14, 25, 28 and 29(a). This motion was denied, and the Government has filed answer to all questions contained in defendant's bill of particulars as directed by the Court except questions 25(a)(b)(c)(e)(f) and (g);

On March 15, 1966, on petition of the Government, this Court granted a stay of all proceedings until further order of the Court and granted the government leave to file its petition for mandamus to vacate the District Court's order directing the Government to answer certain items of the bill of particulars by March 21, 1966;

Petitioner, United States of America, citing Bowman Dairy v. United States, 341 U.S. 214, Atlass v. Miner, 7 Cir., 265 F.2d 312, 319 and Miner v. Atlass, 363 U.S. 461, and claiming the District Court has attempted to extend criminal discovery beyond the provisions of the Federal Rules of Criminal Procedure and the law, and protesting that under established law, the Government need not disclose a list of its witnesses to the defendant in advance of trial, has requested this Court to issue a writ of mandamus directed to Honorable Hubert L. Will, Judge of the United States District Court for the Northern District of Illinois, who signed the orders hereinbefore described;

And the Court being fully advised;

It Is Ordered, that the said Honorable Hubert L. Will, Judge of the United States District Court for the Northern District of Illinois, show cause within twenty (20) days of the date of this order, why a writ of mandamus should not issue from this Court ordering the said Honorable Hubert L. Will to vacate the Court order signed by him directing the Government to answer question 25 contained in defendant's motion for a bill of particulars; and

It Is Further Ordered, that pending the decision of this Court on the issues hereinbefore stated, the United States of America need not answer Question 25 contained in defendant's motion for a bill of particulars.

Petition for Writ of Mandamus (7/12/66.)

Order

Hon. ELMER J. SCHNACKENBERG, Circuit Judge, Hon. WIN G. KNOCH, Circuit Judge, Hon. ROGER J. KILEY, Circuit Judge. This is a petition by the government for writ of mandamus to compel respondent, a district court judge, to vacate his order which effectually directs the government in a criminal cause to give the defendant names and addresses of persons to whom defendant in said cause made oral statements to support the charges in the indictments. Briefs have been filed in this court by both parties. The court has considered the briefs and is fully informed of the points made and the positions of the parties with respect to the issue, and

The court finds that the order subject of the petition is not an appealable order, and a review of it would offend the policy against piecemeal appeals in criminal cases, Cobbledick v. United States, 309 U.S. 323; that mandamus may not be used as a means of reviewing the non-appealable order, Roche v. Evaporated Milk Association, 319 U.S. 21; 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, Roche v. Evaporated Milk Association; that the district judge's order upon the government to furnish names and addresses of witnesses to a defendant may be erroneous, a question we do not decide, but the ruling itself was within the court's jurisdiction, Roche v. Evaporated Milk Association; that the ruling can be reviewed on appeal from a final judgment; and that there is no question here that the district judge refused to exercise his proper jurisdiction.

It Is Therefore Ordered that the petition for writ of mandamus be and it is hereby denied.

Petition for Writ of Mandamus (8/16/66.)

Order

Hon. ELMER J. SCHNACKENBERG, Circuit Judge, Hon. WIN G. KNOCH, Circuit Judge, Hon. ROGER J. KILEY, Circuit Judge. This cause came on to be heard upon the government's Petition For Reconsideration of the Order of July 12, 1966, and for a hearing on the merits, and upon the opposition of respondent to the granting of the petition; and the court being fully advised has reconsidered its order of July 12, 1966:

The court finds that in the circumstances of this particular case the court should consider the merits of the ruling of the district court challenged by the government, rather than to remit the government to a radical alternative appealable judgment available to the trial judge upon the government's persistent refusal to comply;

It is therefore ordered that the order of this court of July 12, 1966, be and it is hereby vacated, and the cause is taken by the court upon the petition for the writ, the briefs of both parties and the record.

Petition for Stay (10/4/66.)

Hon. ELMER J. SCHNACKENBERG, Circuit Judge, Hon. WIN G. KNOCH, Circuit Judge, Hon. ROGER J. KILEY, Circuit Judge. This cause came on to be heard upon the Government's petition for writ of mandamus ordering respondent to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars, which question sought, among other things, the names and addresses of persons to whom defendant made oral statements supporting the indictment charging wilfull evasion of income tax, and which statements the Government would rely upon at the trial; upon the rule issued upon respondent to show cause why the writ should not issue; upon the brief of respondent answering the rule, and the brief of the Government; and upon the record.

And the Court having on August 16, 1966 vacated its July 12, 1966 order denying the writ, and having reconsidered the question.

It Is Ordered that a writ of mandamus issue as prayed in the Government's petition directing respondent to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars.

Petition for Stay (12/5/66.)

Hon. JOHN S. HASTINGS, Chief Judge, Hon. ELMER J. SCHNACKENBERG, Circuit Judge, Hon. WIN G. KNOCH, Circuit Judge, Hon. LATHAM CASTLE, Circuit Judge, Hon. ROGER J. KILEY, Circuit Judge, Hon. LUTHER M. SWYGERT, Circuit Judge, Hon. THOMAS E. FAIRCHILD, Circuit Judge, Hon. WALTER J. CUMMINGS, JR., Circuit Judge. It Is Ordered by the Court that the petition for a rehearing en banc of this cause be, and the same is hereby DENIED.

(Cummings, C.J. voted to grant petition for rehearing en banc).

19660315

© 1998 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.