UNITED STATES OF AMERICA, PETITIONER V. STEPHEN A. GONSALVES No. 82-1944 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-23a) is reported at 691 F.2d 1310. The district court's order granting respondent's motion to dismiss the indictment (App. B, infra, 24a-26a) is unreported. The 1976 oral opinion of the district court granting motions for "acquittal" filed by three other defendants charged along with respondent in the indictment (App. C, infra, 27a-41a), upon which the court relied in dismissing the indictment as to respondent, is likewise unreported. JURISDICTION The judgment of the court of appeals (App. D, infra, 42a) was entered on November 9, 1982, and a timely petition for rehearing was denied on February 28, 1982 (App. E, infra, 43a). On April 23, 1983, Justice Rehnquist extended the time in which to file a petition for a writ of certiorari until May 29, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 18 U.S.C. 3231 provides in pertinent part: The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. QUESTION PRESENTED Whether the district court correctly invoked "supervisory power" to dismiss the indictment on the ground that conducting a trial would impose an undue burden upon the court. STATEMENT On March 25, 1976, respondent and 12 other defendants were charged in a two-count indictment returned by the federal grand jury in the District of Nevada with conspiracy to import hashish, a controlled substance, into the United States, in violation of 21 U.S.C. 952(a), 960(a)(1) and 963, and conspiracy to possess that contraband with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 846. Respondent was a fugitive for several years after the return of that indictment. See United States v. Gonsalves, 675 F.2d 1050, 1051-1052 (9th Cir. 1982). He surrendered to federal authorities in Las Vegas on August 28, 1980, and his case was set for trial. On September 28, 1980, respondent moved to dismiss the indictment on the grounds that previously had been stated by the district court in 1976 in entering judgments of acquittal as to three of the other defendants charged in the indictment. On December 17, 1980, the district court (Foley, J.), invoking "discretionary supervisory powers," dismissed the indictment as to respondent. The court stated that the indictment was "a complex monstrosity," and that dismissal was warranted for the "reasons articulated in this Court's (prior) order and judgment of acquittal" as to the three defendants previously prosecuted (App. B, infra, 26a). The court of appeals affirmed. 1.a. In December 1975 a grand jury sitting in Nevada returned a three-count indictment, Cr. LV 75-198, charging respondent and 15 other individuals with conspiracy to import hashish and conspiracy to possess hashish with intent to distribute, (Count I), importation of hashish (Count II), and possession thereof with intent to distribute (Count III). /1/ Only three of the defendants, Richard Kenneth Brown, Robert David Work, and Kent Giles Snyder, were apprehended at the time. The others were citizens of other countries and nonextraditable, or (like respondent) fugitives. After the government voluntarily dismissed the two non-conspiracy counts pursuant to Fed. R. Crim. P. 48(a), a motion was filed to dismiss the remaining count on the ground that it charged two separate (albeit related) offenses without separating them into counts, in violation of Fed. R. Crim. P. 8(a). On February 26, 1976, the district court granted that motion without prejudice to reindictment. The district court also took the occasion to complain about other aspects of the case presented to him: Count I of the indictment now dismissed names 16 defendants. Ten of the defendants are citizens of other countries and not amenable to the process of this Court, and according to the Government, there is no way they can be compelled to appear before this Court pursuant to treaty between the United States and the countries of which they are citizens. Of the 6 defendants that are citizens of the United States, only 3 are before the Court, the other 3 are fugitives and the Government cannot assure the Court as to whether or not pending bench warrants will ever be served upon them. The indictment names some 14 co-conspirators who are not defendants and alleges 93 separate overt acts alleged to have taken place in the United States and many foreign countries. The district court concluded: The Court hopes that in representing the matter to the Grand Jury United States Attorney Lawrence Semenza will make some effort at least to comply with the requirements of Rule 7(c)(1) /2/ and, in addition, to give the Court a case that is manageable for trial. Count I of the indictment now dismissed is, to say the least, a monstrosity. b. Less than a month later, on March 25, 1976, the grand jury returned another indictment, Cr. LV 76-39, based upon the scheme previously charged. /3/ The two-count indictment charged 13 defendants, including respondent, Brown, Work, and Snyder, with conspiracy to import a controlled substance (hashish), in violation of 21 U.S.C. 952(a), 960(a)(1) and 963 (Count I) and conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 846 (Count II). The twin conspiracies charged each spanned the period March 4, 1973 to June 1, 1974. Ten overt acts were enumerated, and 17 unindicted co-conspirators were named. The indictment charged that defendants repeatedly imported large quantities of hashish. As ultimately elaborated in the government's trial memorandum submitted in connection with the scheduled trial of defendants Brown, Work, and Snyder, five successive episodes of importation were involved. Each episode entailed shipment of specially constructed oversized stereo speaker cabinets to a location in Europe, transfer of large amounts of cash from central figures in the United States to operatives in various European cities who purchased the hashish, insertion of the contraband into plastic inserts which were in turn installed in the stereo speaker cabinets, shipment of the speaker cabinets to various United States cities by air freight, and claiming of the cabinets and removal of their illicit contents. The last of these shipments was destined for Las Vegas but was intercepted by federal agents, triggering the investigation that produced the 1975 and 1976 indictments. The case was ready for trial in the fall of 1976. Defendants Brown, Work, and Snyder were still the only ones who could be located for trial. The court allowed the motions that had previously been filed attacking the earlier indictment to be refiled in this case but did not act upon them before impaneling a jury and entertaining opening statements on September 21, 1976. /4/ The next morning, however, rather than proceeding with the government's case as scheduled, the district court invited the defendants to move for judgments of acquittal based on the government's opening statement and trial memorandum (App. C, infra, 30a). Observing that "I read the trial memorandum last night, I hadn't read it before" (App. C, infra, 29a), the district judge went on to explain at considerable length that he was unwilling to proceed with trial (id. at 30a-41a). His remarks made three interrelated points: (1) that the government should have charged each of the major episodes described in the government's trial memorandum as a separate conspiracy (id. at 31a-34a, 38a, 41a); (2) that if the charges had been so divided venue would not lie in Nevada as to several of the sub-offenses that could have been charged (id. at 31a, 38a, 41a); and (3) that the case was, in any event, too complex and unmanageable to try, and the indictment would accordingly be dismissed under the inherent supervisory power the court believed it possessed (id. at 34a-35a, 38a-40a). The latter theme was dominant in the court's remarks. Also interspersed throughout the court's remarks were comments reflecting strained relations between the individual district judge presiding and United States Attorney Lawrence Semenza. Because of the extraordinary nature of the district court's explanation of its ruling, we review these comments in some detail. The district court commenced (App. C, infra, 30a): (I)n the Alice in Wonderland mind of Lawrence Semenza, who is United States Attorney for Nevada, we have conjured up here a massive conspiracy. This isn't the first time Mr. Semenza, in his own inimitable way, has conjured up a massive conspiracy. Back in 1974, I spent a whole summer, missed the Judicial Conference, trying one of Larry Semenza's dreams * * *. The district court recounted this prior experience in trying an elaborate multi-defendant drug case. The court singled out repetitive cross-examination and the rudeness of the defendants' counsel as the signal difficulties of the earlier trial (ibid). The court stated (ibid.), "Mr. Semenza sat in that chair and smiled. I think he likes to concoct this type of monstrosity." The court then proceeded to review the sequence of events laid out in the government's trial memorandum, suggesting at intervals how they could have been divided into separate conspiracies for purposes of prosecution (in some instances in other judicial districts), noting the unavailability of many of the defendants for trial, and continuing its criticism of the United States Attorney (App. C, infra, 31a-34a). /5/ Concluding this review, the court stated (id. at 34a): I haven't done any research, but I am going to grant the motion (to acquit) based on the, and it is so ordered that it is granted, based on the opening statements and the trial brief, on the grounds that the court had no jurisdiction. And on the further ground that this type of a monstrosity, unmanageable monstrosity, does not have to be tried by Federal Judges. /6/ The district court continued (id. at 35a): (T)his type of conspiracy is unmanageable trialwise. I don't know if there is any case law to support me, I think that a trial judge is not an umpire and courts have said this. A Federal trial Judge can participate to the extent it is necessary to bring order out of chaos, and to the extent that it is necessary to a fair trial and comment on the evidence and so forth. He has management powers, he is not an umpire calling all the balls and strikes as some of our poor state courts. And when something like this comes in, the court has the inherent authority I am going to hold * * * to dispose of this kind of thing. It is quite apart from jurisdiction. Foreseeing the likelihood of a government appeal from its action, the district court was vague about the legal ground for the ruling (ibid.): I will allow counsel to think about it and read what the government says in their brief if they do take it to appeal and then leave open any other reasons to support me. But it is the kind of thing that should not be tried or allowed. In view of its criticism of the United States Attorney, the court stated to the Assistant United States Attorneys prosecuting the case (App. A, infra, 36a): "I don't expect a response from government counsel, you have got to be loyal to the man you are working for." The prosecutors nevertheless sought leave to go forward with their evidence, arguing that they would be able to establish the existence of a single overall conspiracy, and observing that if the government failed to sustain its burden in this regard a motion for acquittal could be granted at the close of the government's case. The court declined to consider this procedure, stating (ibid.), "I am not going to waste two or three weeks. I have got other things to do and so have you and the other counsel." The court appeared to acknowledge that whether the acts charged were part of a single conspiracy was a factual question (id. at 37a-38a). The court insisted, however (id. at 38a): You are misunderstanding, I am not saying there is no theory * * * for this. I say it is a monstrosity, it is unmanageable, it is not the kind of thing that a court has to put up with and it should be broken down. After advising the prosecutors in considerable detail as to how the prosecution should have been handled (App. C, infra, 38a), the court again refused to allow the government an opportunity to prove that the overall conspiracy charged had occurred, making clear that it was unwilling to try the case in any event (id. at 39a): You are not going to offer any evidence. If the Court of Appeals reverses this finding and sends it back for trial, I won't try it. I will find some young Judge that has got more patience and energy than I have, to come in and try it. The district court never explained what it was that would make the trial of Brown, Work, and Snyder on the conspiracy indictment returned by the 1976 grand jury unmanageable. In discussing a prior experience with a multi-defendant drug conspiracy trial, the court made clear that it preferred that the case be tried elsewhere (App. C, infra, 40a). The court appears, moreover, to have lost sight of the fact that there were only three defendants before it for trial (id. at 39a): THE COURT: * * * I don't think that the court has to sit carte blanche -- let's suppose that somewhat like the (earlier) case that all the defendants were found here and they all had different lawyers. Have you ever been through one of those? Mr. Sheridan (counsel) for defendant Snyder), I know you better than those other gentlemen. Have you ever seen one of those tried? MR. SHERIDAN: Yes, your honor. THE COURT: They are horrible. They are unmanageable. You've got how many defendants, eleven? MR. SHERIDAN: Thirteen. I think and seventeen unindicted co-conspirators. THE COURT: You have got eleven cross-examiners for each witness. * * * The court acknowledged (App. C, infra, 39a) that massive conspiracies do exist, and did not explain why the three defendants before it should not go to trial upon the indictment. Instead, the court again suggested that the case should have been prosecuted elsewhere, renewed its sharp criticism of the United States, and finished with a suggestion that it commence general supervision of the prosecutorial decisions of the United States Attorney (id. at 40a): (N)o, you see they all came from Las Vegas and that is how I got (this case). Another one of Mr. Semenza's Alice in Wonderland dreams. And they are that. They are ridiculous in concept. I don't know what the matter is, I don't know how he thinks. I think he has some kind of sense of delight in conjuring these things up, creating these massive puzzles and saying, "Let's see how Judge Foley can handle that." I don't know what is going on, but I will tell you this much, I'm not going to put up with it any more. Please God, we'll have a change of administration and he'll be gone. /7/ I don't know about that either, but I'm not going to put up with Semenza any more. So I won't try this. If the Court of Appeals should say that I am wrong, I don't think they are going to, and this case comes back, I won't try it. And I won't try any more of Larry Semenza's cases that are this ill. I'm going to have to work out some system when I get copies of the indictment where I can demand in advance a trial brief so I can see what we are into before we go through all the time and energy, the motion stage and impanelling the jury and so forth. The motions for acquittal was granted (id. at 41a). c. The government took an appeal from the judgments of acquittal, arguing that there would be no Double Jeopardy bar to further proceedings after the "acquittal" because the grounds for acquittal had no bearing on the question of guilt or innocence, and the "trial" had been a sham. On May 4, 1977, however, the court of appeals dismissed the government's appeal on double jeopardy grounds (see App. A, infra, 9a). /8/ 2.a. As previously noted, proceedings directly involving respondent commenced when he surrendered to federal authorities in August 1980. Respondent moved to dismiss the indictment for the reasons given by the district court in acquitting Brown, Work, and Snyder in 1976. Respondent also argued that the trial would be protracted, with many government witnesses and an extensive defense case, and that such a prosecution was unwarranted given what he characterized as his minor role in the alleged conspiracy. Finally, respondent urged that the government was collaterally estopped from opposing dismissal by the order entered in the earlier prosecution. The district court granted the motion to dismiss on December 17, 1980 (App. B, infra, 24a-26a). The court declined to rely upon collateral estoppel (id. at 25a) and appears to have eschewed any suggestion that the indictment charged multiple conspiracies or that venue was improper, relying exclusively upon the supervisory power rationale for dismissal asserted in 1976 (id. at 26a; citations omitted): This court is well aware that a conspiracy prosecution may be brought in any district in which any act in furtherance of the conspiracy was committed by any of the conspirators, even though some of them were never physically present there. * * * And the actions in Las Vegas of Ernest Franz Combs, Jr., an indicted coconspirator, could be used to establish the necessary overt act within this district. However, the problem in Brown (the prosecution of Brown, Work and Snyder) was that the indictment was such a complex monstrosity that this Court decided that it should have been broken down into several smaller more manageable indictments. There was simply no good reason for those defendants to be indicted in this district given their alleged roles in the government's conspiracy theory. This Court is confronted with that same problem with the indictment against Gonsalves. Therefore, for the reasons articulated in this Court's September 21, 1976 order and judgment of acquittal as to defendants Brown, Work and Snyder, this Court hereby exercises its discretionary supervisory powers and dismisses the indictment as against Gonsalves. /9/ b. The government appealed and, nearly two years later, the court of appeals affirmed. It stated: "Our task is to determine whether the dismissal of the indictment was a proper exercise of supervisory power by the district court" (App. A, infra, 10a). The court of appeals recognized that the dismissal of the indictment in this case did not rest upon any infringement of respondent's legal rights (id. at 10a, 13a, 14a). Nevertheless, the court espoused a broad doctrine of supervisory authority vested in the district courts "to do justice in particular fact situations" (id. at 11a). Recognizing that dismissal of an indictment absent legal grounds for doing so may "encroach on the prosecutor's prerogatives" (id. at 12a) and implicate separation of powers concerns (id. at 14a), the court invoked a principle of "checks and balances," said to be implicit in the Constitution, as a source of supervening authority (id. at 15a-16a). Citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the court stated (id. at 16a): "It is clear that Article III authorizes the judicial branch to review the operations of the executive and legislative branches" and concluded (ibid.): The judiciary therefore should use its supervisory power to maintain its own institutional integrity, including the ability to administer an effective criminal justice system * * * Turning to the particular case presented, the court of appeals stated: "The District Court in this case had ample factual and legal basis upon which to conclude that the indictment pursued by the prosecutor constituted a serious intrusion into the judiciary's interest in the fair administration of the criminal justice system" (id. at 19a). It suggested that the transcript of the district court's 1976 oral ruling acquitting defendants Brown, Work, and Snyder reflected the judge's experience with the problems of managing "massive conspiracy trials" (id. at 18a). The court also invoked Second Circuit decisions noting the risks of appellate reversal created by use of broad conspiracy indictments (id. at 18a-19a). The court of appeals explained its conclusion that dismissal was warranted here only in the most general terms (App. A, infra, 19a-20a; footnote omitted): Our own review of the record, and indeed our mere recitation of the elaborate facts of the conspiracy outlined in the indictment * * * show that the facts here justified the conclusion that to allow prosecution on this indictment would "gravely impair the basic function of" the District Court. The court was not required to ignore the practical considerations attendant to a trial of the size and complexity, e.g., the innumerable pretrial motions, the occupation of weeks of the court's busy calendar, the superhuman tasks facing the jury and the likelihood of a mistrial. On the facts of this case the judge had a solid basis upon which to find the prospect of these horrors real and the resulting disruption of the judicial process great. Purporting to apply a balancing test weighing these considerations against the value of prosecutorial discretion (id. at 20a), the court of appeals concluded that "the degree of encroachment upon the prerogatives of the prosecutor that a dismissal entails in this case is minimal" because the dismissal was without prejudice and left the prosecutor free to seek reindictment upon terms charging separate conspiracies of less global scope in other venues (id. at 20a & n.13). REASONS FOR GRANTING THE PETITION The dismissal of the indictment in this case was not based on any finding that it failed to state an offense triable in the United States District Court for the District of Nevada or that trial on the indictment would violate any right of respondent's. Rather, it was based on vaguely identified "supervisory powers" and considerations of judicial convenience. By upholding the dismissal, the decision of the court of appeals effects an unprecedented shift of authority to determine whether and against whom criminal charges should be brought, and the nature of those charges, from the Executive Branch (and the grand jury), where it has heretofore resided, to the district courts. This transfer finds no support in the decisions of this Court identifying the limits and purposes of the supervisory power and is contrary to this Court's teaching that "(t)he supervisory power merely permits federal courts to supervise "the administration of criminal justice' among the parties before the bar." United States v. Payner, 447 U.S. 727, 735 n.7 (1980), quoting McNabb v. United States, 318 U.S. 332, 340 (1943). Nor has any decision of any other court of appeals purported to arrogate a similar authority to the judiciary. The court of appeals' decision is also contrary to other fundamental principles established by this Court's decisions. First, the court of appeals' decision disregards the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976); see also England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415 (1964). Second, the court of appeals' reasoning that dismissal of the indictment was permissible because different charges could still be proffered in other venues ignores the fundamental rule of prosecutorial discretion: In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Accordingly, the district courts do not possess authority -- however it may be labeled -- to determine that trial of defendants upon legally valid charges pressed by the prosecutor and the grand jury would impose an undue burden upon the courts. Even if such authority were available in extraordinary circumstances, the record of this case provides no basis for its application. It is inconceivable that the trial of a single defendant upon a two-count indictment could present an unmanageable task for the district court. Indeed, neither the district court nor the court of appeals identified any basis in the record of this case for concluding that the trial would entail unusual difficulties. Moreover, the record reveals with painful clarity that the true basis for the district court's ruling was its view that the prosecutorial practices of the government generally should be subject to its control, together with the individual trial judge's disapproval of the United States Attorney's prosecutorial policies. 1.a. There is no precedent for the exercise of supervisory power sanctioned by the court of appeals in this case. It is established that supervisory power does not arm "the federal judiciary (with) a 'chancellor's foot' veto over (prosecutorial) practices of which it d(oes) not approve" (United States v. Russell, 411 U.S. 423, 435 (1973)). As the Court stated in Russell (ibid.): The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of Government, subject to applicable, constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations. /10/ As the Court cautioned in Payner, supra, 447 U.S. at 735 n.7, quoting McNabb v. United States, supra, 318 U.S. at 332, "(t)he supervisory power merely permits federal courts to supervise 'the administration of criminal justice' among the parties before the bar." There is no suggestion in this Court's decisions (or those of the other courts of appeals) that supervisory authority exists to determine which parties should be prosecuted or to determine (other than by reference to the pertinent legal rights of defendants) what the charges against them should be. /11/ That the decision of the court of appeals overstepped the confines of the supervisory power doctrine is confirmed by this Court's recent decision in United States v. Hasting, No. 81-1463 (May 23, 1983). There the Court described the supervisory power as allowing federal courts "within limits, (to) formulate procedural rules not specifically required by the Constitution or the Congress" (slip op. 6). Of course, the dismissal of a legally valid indictment, sanctioned by the court of appeals in this case, rests not upon some rule governing the conduct of proceedings before a court, but upon the district court's view that trial of the case itself does not comport with the public interest. That such a determination overreaches the boundaries of the courts' supervisory authority is evident from consideration of the purposes of the supervisory power doctrine identified by the Court in Hasting (slip op. 6; citations omitted): The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights * * *; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury * * *; and finally, as a remedy designed to deter illegal conduct * * *. None of these purposes is served by the dismissal of this case. The courts below did not purport to identify any violation of respondent's rights that would result from bringing him to trial upon the indictment in this case. And the rationale of the court of appeals for sanctioning dismissal bears only a semantic resemblance to the judicial integrity concerns recognized in Hasting, for neither court below identified any consideration that would have been improperly presented to the jury simply because respondent was to be tried upon the pending indictment. Finally, there is no suggestion whatsoever that the prosecution of this case involves illegal conduct by prosecutors or other law enforcement personnel. b. The court of appeals' premise that supervisory power may be employed to dismiss indictments where trial would impose burdens upon a district court that are, in that court's judgment, unwarranted, distorts the role of the federal courts in our constitutional system. It does not denigrate the role of the judiciary to remember that the function of the federal courts is "to say what the law is" with respect to the cases before it, Marbury v. Madison, supra, 5 U.S. (1 Cranch) at 177, and to apply the law thus determined to the facts of those cases as they are found to be. In United States v. Nixon, 418 U.S. 683, 707 (1974), the Court recognized "the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions." This duty plainly cannot be fulfilled by refusal to try cases that the courts determine to be unduly time consuming. On the contrary, the obligation of the federal courts to exercise the jurisdiction given them is "virtually unflagging." Colorado River Water Conservation District v. United States, supra, 424 U.S. at 817. /12/ Here, moreover, the jurisdiction of the district court is exclusive and absolute. 18 U.S.C. 3231 provides in pertinent part: The district courts of the United States shall have original jurisdiction, exclusive of the courts of the states, of all offenses against the laws of the United States. The dismissal of the indictment in this case is accordingly "at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction upon the federal courts, and with the principle that 'When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.'" England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415 (1964), quoting Willcox v. Consolidated Gas Co., 212 U.S. 19, 40 (1909). The court of appeals grounded its decision upon the assertion that "Article III authorizes the judicial branch to review the operations of the executive and legislative branches" (App. A, infra, 16a). This fundamental premise is erroneous. Article III empowers the federal courts to decide only cases or controversies. In doing so, the courts are authorized "to say what the law is," Marbury v. Madison, supra, 5 U.S. (1 Cranch) at 177, and thus to declare that an Act of Congress is unconstitutional, or that an executive act is unauthorized by Constitution or statute, as in Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S. at 585-589, or is otherwise contrary to law. But neither these cases, upon which the court of appeals relied (App. A, infra, 16a), nor any other authority of which we are aware, suggests that the courts are established to oversee the functions of the Executive or Legislative Branches generally, or specifically to review the prosecutorial discretion of the United States Attorneys. /13/ Nor does the principle of "checks and balances" that the court of appeals invoked as a counterweight to the doctrine of separation of power (ibid.) support such general supervision of the prosecution by the district court. That concept is merely descriptive of the arrangements embodied in our Constitution. It has been applied, inter alia, to describe the function of judicial review. It may also plausibly be applied to describe the exercise of the courts' powers under the Constitution and various statutes and rules that govern criminal proceedings -- and in that special sense to check the power of the Executive as prosecutor and to hold Congress to constitutional limits in defining offenses. But the structural principle of checks and balances said to be embodied in our Constitution plainly cannot form an independent source of authority for any branch to exercise discretionary control over the activities of another branch, lest the actual allocation of authority in the Constitution be disrupted. c. The court of appeals reasoned that the district court's dismissal of the indictment in this case does not seriously impair the prerogatives of the prosecutor because the government remains free to indict on charges differently framed, in other venues (App. A, infra, 20a & n.13). The court of appeals' reasoning fails, however, to recognize that the constitutional authority of the Executive, exercised through the prosecutor in conjunction with the grand jury, extends not only to deciding whether to prosecute, but also to the "select(ion) (of) the charges against the accused." United States v. Goodwin, No. 80-2195 (June 18, 1982), slip op. 11 n.11. As the Court explained in Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978): In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. See also United States v. Batchelder, 442 U.S. 114, 124 (1979); United States v. Nixon, supra, 418 U.S. at 693, citing with approval United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965); cf. Confiscation Cases, 74 U.S. (7 Wall.) 454, 457-459 (1869). The decision of the court of appeals thus cuts to the heart of the prosecutor's constitutional independence. It also undercuts the constitutional role of the grand jury in determining what offenses are to be charged. The decisions of other courts of appeals recognize that the prosecutor's charging decisions are not subject to judicial oversight -- no matter what the procedural device by which it is sought. United States v. Brown, 481 F.2d 1035, 1043 (8th Cir. 1973) (sua sponte dismissal of indictment); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973) (civil action to compel federal prosecution); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967) (appeal from conviction based upon prosecutor's acceptance of co-defendant's guilty plea to lesser offenses); Smith v. United States, 375 F.2d 243, 247 (5th Cir. 1967) (Federal Tort Claims Act suit); Powell v. Ketzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965) (mandamus to compel prosecution); United States v. Cox, supra (order directing United States Attorney to draft and sign indictment). Each of these cases reflects an understanding of the respective roles of court and prosecutor that is at odds with the view of the Ninth Circuit in this case. d. In addition to the limitations upon the scope of the supervisory power previously addressed, that power is limited by the paramount authority of Congress to establish, within constitutional limitations, practices and procedures and substantive rules to govern proceedings in federal courts. See, e.g., Palermo v. United States, 360 U.S. 343, 353 n.11 (1959). The decision of the court of appeals, however, effectively overrides the pertinent provisions of federal law that establish grounds for dismissal of an indictment and related procedures in managing a criminal trial. As previously noted, the discretionary power of dismissal (unrelated to rights of the defendant) announced by the courts below is inconsistent with 18 U.S.C. 3231, which vests the district courts with jurisdiction over all offenses against the United States. Absent specific legal grounds for dismissal of an indictment, such as failure to state an offense, the assumption of vaguely defined "supervisory power" to dismiss the indictment here is contrary to that grant of jurisdiction, as well as to the substantive provisions that define the offenses charged, and the statutory provisions punishing conspiracy to commit those offenses, 21 U.S.C. 846 and 963. In addition, the supervisory authority claimed by the district court effectively circumvents the provisions of the Federal Rules of Criminal Procedure that govern the contents of indictments (Rule 7), the joinder and severance of offenses and defendants (Rules 8 and 14), and permissible venues for prosecution (Rule 18; see also 18 U.S.C. 3237). Neither the district court nor the court of appeals identified any legal defect under these provisions or other previously recognized legal principles that would warrant dismissal of the indictment. Thus, the decision of the courts below "confer(s) on the judiciary discretionary power to disregard the considered limitations of the law that it is charged with enforcing." United States v. Payner, supra, 447 U.S. at 737. "(T)he supervisory power does not extend so far." Ibid. e. The decision of the court of appeals proceeds upon the erroneous supposition that the supervisory power claimed by the district court must be made available to ensure that federal prosecutors do not destroy the courts' "ability to administer an effective criminal justice system" by initiating unmanageable prosecutions (App. A, infra, 16a). There is no warrant for this remarkable assumption. On the contrary, the Department of Justice and the United States Attorneys have every incentive to ensure that complex indictments are not obtained except to the extent necessary and appropriate in carrying out their constitutional duty to "take Care that the Laws be faithfully executed" (Art. II, Section 3). The resources and personnel of federal prosecutors, like those of the judicial branch, are limited. /14/ Given these limited resources, federal prosecutors, confronted by the lash of the Speedy Trial Act, have powerful reasons to be selective about the matters presented to a grand jury. /15/ Even apart from constitutional considerations, it is the prosecutor who is best situated to make necessary decisions about the relative priority of various cases and to determine whether the public interest in effective administration of the criminal justice system as a whole will be served by going to trial upon a particular indictment. See United States v. Lovasco, 431 U.S. 783, 792-795 (1977). Conspicuous by contrast is the "lack of judicially discoverable and manageable standards" (Baker v. Carr, 369 U.S. 186, 217 (1962)) by which courts can make these decisions. The court of appeals noted that the hazards of going to trial upon the indictment in this case include the possibility of juror confusion and the likelihood of a mistrial (App. A, infra, 20a & n.12). Neither of these outcomes serves the prosecutor's interest. If the evidence does not support conviction of one or more defendants in a multiple defendant conspiracy case, appellate reversal will follow. See, e.g., United States v. Bertolotti, supra. A mistrial also leads to wasteful expenditure of scarce prosecutorial resources. There is no reason to believe that federal prosecutors are so insensitive to these hazards, and to the other incentives for selectivity in prosecution that confront them, that it is necessary to invent a wholly unprecedented supervisory power to prevent the filing of unnecessarily complex indictments. 2.a. Even if supervisory power were available in appropriate cases to dismiss indictments determined to impose undue burdens upon judicial resources, there was no basis whatsoever in the record of this case for that extreme measure. Neither the court of appeals' opinion nor the district court's oral ruling identifies any satisfactory basis for dismissal of the indictment. The court of appeals noted (App. A, infra, 20a; footnote omitted) the following "practical considerations attendant to a trial of this size and complexity": innumerable pretrial motions, the occupation of weeks of the court's busy calendar, the superhuman tasks facing the jury, and the likelihood of mistrial. But the court of appeals did not explain why this case, more than any other conspiracy charge, entails these hazards. It plainly cannot be the law that those who commit complex offenses are immune from prosecution for the full scope of their criminal activity. Moreover, the indictment in this case is not in fact unusually complex, given the nature of the offenses found by the grand jury to have probably been committed. The court of appeals, however, gave no consideration to the nature of those offenses and the typically elaborate patterns of international drug trafficking in upholding dismissal of the indictment. There are no special factors in this case that suggest an unusually complex or difficult motion practice. And while we do not minimize the burden of a major trial upon a busy court's calendar, it is the role of the courts to shoulder this burden. /16/ We are particularly puzzled by the court's invocation of the problem of juror confusion and the likelihood of mistrial. Both courts below appear to have lost sight entirely of the fact that respondent was to be the only defendant at his trial. /17/ Even if there had been multiple defendants, there would be no basis to question the district court's ability to instruct the jury carefully as to the need properly to determine the guilt of each individual defendant in a conspiracy case, an everyday occurrence in the federal courts. Accordingly, the court of appeals utterly failed to identify any consideration that sets this case apart from a host of cases that are regularly tried by the district courts. Nor did the district court identify any special considerations that warranted its refusal to try this case when it granted "acquittals" to defendants Brown, Work and Snyder in 1976. Insofar as the court commented on this subject at all, it pointed to particular difficulties experienced in other cases that do not reflect any problem of inherent unmanageability, especially on the facts of the present case. The court singled out the problem of repetitive cross-examination (see pages 8-9, supra), but that had relatively little bearing on the trial of Brown, Work and Snyder, and has no bearing on the present case. In any event, the federal courts possess authority to limit repetitive cross-examination. /18/ Contrary to the district court's suggestion (see page 7, supra), the availability of such authority to manage the proceedings before the court undercuts the claimed authority simply to dismiss cases presenting management difficulties. See United States v. Hasting, supra, slip op. 6-7 & n.5; United States v. Morrison, 449 U.S. 361 (1981). b. The district court's recitation of grounds for invocation of supervisory authority to dismiss the indictment in this case raises concerns that go beyond its failure to identify special circumstances that would warrant that extraordinary relief under the court of appeals' analysis. The district court's announced intention to commence general supervision of the contents of indictments (App. C, infra, 40a) is utterly inconsistent with the constitutional independence of the prosecutor. And it is perfectly clear from the district court's remarks (id. at 31a, 38a, 41a) that the court intended to impose upon the prosecutor its own notion of good prosecutorial practice. Equally disturbing are the repeated statements by the district court that reflect its personal disapproval of the individual United States Attorney's prosecutorial policies. These considerations, which appear to have influenced the district court's ruling, have no place in the exercise of judicial authority. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General JOHN FITCHTER DE PUE Attorney MAY 1983 /1/ Respondent was not charged in Counts II and III. /2/ Fed. R. Crim. P. 7(c)(1) provides, in pertinent part: The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. /3/ Indictment Cr. LV 76-39 is reproduced as Appendix F, 44a-51a, infra. /4/ It appears that the district court intended by its failure to act to deny those motions (see App. C, infra, 34a). /5/ See, e.g., App. C, infra, 31a: Most prosecutors, ninety-nine out of a hundred lawyers that have any logic in their mind would have said, "Okay, that is one charge." * * * That is just the beginning of Mr. Semenza's dream. The court added (ibid.): "I really wish the press were here, perhaps that is just as well." See also App. C, infra, 34a: The theory, of course, in this mind of Mr. Semenza's "Yes, that they are working for Combs" (the "mastermind" of the conspiracy charged). Well Combs might have a hundred and fifty other people working for him, importing, I don't know, it could be a half dozen other things not only involving controlled substances. * * * But, if you follow the logic, the illogic of the mind of our United States Attorney, that is all one great conspiracy. It is ridiculous. * * * I fell for it once. Damn near had a nervous breakdown with that trial. It should have taken two or three weeks and I let one Los Angeles lawyer voir dire the jury and three days later, we are still trying to get a jury. I remember that very well. /6/ At this juncture the court complained about what it regarded as the subservience of grand juries to prosecutors and the rendition of indictments based on hearsay evidence (App. C, infra, 34a). In the latter connection the court acknowledged this Court's decision in Costello v. United States, 350 U.S. 359 (1956), but commented (App. C, infra, 34a): "It's going to change, it's going to have to." /7/ These proceedings occurred shortly before the 1976 presidential election. /8/ The court of appeals, of course, acted without the benefit of United States v. Scott, 437 U.S. 82 (1978). /9/ Only a minute order records the 1976 disposition. Accordingly, the court must have intended to invoke its oral ruling. /10/ The Court's comments in Russell were made in the course of rejecting the suggestion that it give extra-constitutional, extra-statutory scope to the entrapment defense -- in other words, that it invoke a supervisory power. /11/ To the extent the court of appeals relied (App. A, infra, 18a-19a) upon the Second Circuit's decisions in United States v. Sperling, 506 F.2d 1323, 1340-1341 (1974), cert. denied, 420 U.S. 962 (1975), and United States v. Bertolotti, 529 F.2d 149 (1975), that reliance was misplaced. In Sperling the court of appeals merely cautioned the prosecutor that whenever the link between episodes of a larger conspiracy is tenuous, there is a risk of appellate reversal of convictions secured upon the global conspiracy charge. 506 F.2d at 1340-1341. And in Bertolotti convictions were reversed because the court of appeals found "no evidence linking (the illegal transactions charged) together in a single overall conspiracy." 529 F.2d at 155. The Second Circuit did not suggest on either occasion that the district court possessed supervisory authority to prevent the government from seeking to prove its case, which is what the district court did here. /12/ To be sure, the holding of Colorado River Water Conservation District was that the district court had properly declined to exercise its jurisdiction in favor of concurrent proceedings in state court. But the Court stressed that the circumstances presented were "exceptional." 424 U.S. at 818. More importantly, the issue was whether the water rights involved would be adjudicated in state or federal proceedings; there was no suggestion that a federal court might decline to exercise its jurisdiction when the result would be to preclude altogether a determination of rights or liabilities. /13/ We note that the court of appeals' analysis in this aspect rests primarily upon a student law review note, A Separation of Powers Approach to the Supervisory Power of the Federal Courts, 34 Stan. L. Rev. 427 (1982), the burden of which is that United States v. Payner, supra, was wrongly decided by this Court. 34 Stan. L. Rev. at 449-451, 452. /14/ It bears mentioning that the alternatives to a complex, multi-defendant indictment as a means of prosecuting a large-scale conspiracy are either to refrain from indicting many persons believed to have committed serious crimes or to break up the offense into a number of separate indictments, each to be separately tried (as the district court apparently would have preferred here). It is far from obvious, to say the least, that multiple trials requiring many of the same witnesses to testify about the same core events would realize the goal of economic allocation of scarce criminal justice resources. /15/ Significantly, 18 U.S.C. 3161(h)(8)(C) makes clear that trial delay attributable to calendar congestion is not excludable from Speedy Trial Act reckoning. /16/ There is no suggestion in the record that the district court was actually unable to find time to try this case. We note, in any event, that Congress has made provision for the temporary reassignment of judicial personnel within the federal system whenever that is necessary to ensure that judicial business is accomplished. See 28 U.S.C. (& Supp. V) 291(b), 292(b) and (d), and 294. /17/ See, e.g., App. A, infra, 18a: Of course, this problem -- of the Government attempting to force as many defendants as possible to trial in the same proceeding on the claim of a single conspiracy * * * is one not faced by judges in this circuit alone. /18/ Rule 611(a), Fed. R. Evid., gives the district courts broad discretion to regulate "the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (and) (2) avoid needless consumption of time * * *." The courts of appeals have repeatedly held that it is within a trial judge's discretion to bar unnecessary duplicative cross-examination of government witnesses as multi-defendant trials. See, e.g., United States v. Coven, 662 F.2d 162, 170 (2d Cir. 1981), cert. denied, 456 U.S. 916 (1982); United States v. Praetorius, 622 F.2d 1054, 1061 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980); United States v. Miller 463 F.2d 600, 601 (1st Cir.), cert. denied, 409 U.S. 956 (1972); Amsler v. United States, 381 F.2d 37, 51 (9th Cir. 1967). See also 3 J. Wigmore, Wigmore on Evidence Section 782, at 183 (Chadbourn rev. 1970). Appendix Omitted