author: FEINBERG, Circuit Judge: MULLIGAN, Circuit Judge TIMBERS, Circuit Judge

text:
    SECURITIES AND EXCHANGE COMMISSION, Petitioner, v. Charles E. STEWART, Jr., United States District Judge, Respondent.
    Nos. 759, 760, Docket 73-1250, 73-1251.
    United States Court of Appeals, Second Circuit.
    Argued March 5, 1973.
    Decided March 16, 1973.
    David Ferber, Solicitor, SEC, Washington, D. C. (Richard E. Nathan, Asst. Gen. Counsel, Richard L. Jaeger, Spec. Counsel, and William H. Kuehnle, Atty., SEC, Washington, D. C., on the brief), for petitioner.
    Arthur L. Liman, New York City (Paul, Weiss, Rif kind, Wharton & Garrison, Jack C. Auspitz, New York City, Leonard H. Becker, Washington, D. C., Warren M. Green, New York City, on the brief), for respondent Yesco.
    John S. Martin, Jr., New York City (Martin & Obermaier, New York City, on the brief) for respondent Straub.
    Martin Menseh, New York City (Dornbush Menseh, Mandelstam & Schwartz, New York City, Frederic J. Gruder, Yonkers, N. Y., on the brief), for respondents Clay and Beatty.
    Neal M. Goldman, New York City (Squadron, Gartenberg, Ellenoff & Pie-sent, Theodore Ellenoff, New York City on the brief), for respondent Graze.
    James P. O’Neill, New York City, (Palmer & Serles, New York City, Raichle, Banning, Weiss & Halpern, Frank G. Raichle, Buffalo, N. Y., on the brief), for defendant Meissner.
    Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges.
   FEINBERG, Circuit Judge:

The Securities and Exchange Commission petitions this court for a writ of mandamus directing Charles E. Stewart, Jr., judge of the United States District Court for the Southern District of New York, to vacate an order preventing the Commission from obtaining pre-trial discovery of Robert L. Vesco, Gilbert R. J. Straub, Frank G. Beatty, Richard E. Clay, Stanley Graze and Laurence B. Richardson, Jr., unless the Government grants them immunity pursuant to 18 U.S.C. §§ 6002, 6003. The order was entered in the course of a proceeding that commenced on November 27, 1972 when the Commission brought a civil complaint against 42 defendants, including the persons named above, charging them with having engaged, and continuing to engage, in acts and practices which constitute a “scheme to defraud” in violation of section 10(b) of the Exchange Act of 1934 and Rule 10b-5 thereunder. The complaint alleges a scheme to transfer investments held by International Controls Corp. in IOS Ltd. and its related companies to shell companies controlled by defendant Vesco and his group. The complaint seeks broad equitable relief, including the appointment of a receiver, return of securities, an injunction and an accounting. The order complained of was entered at the request of the six defendants, over the objection of the Commission, on the ground that since criminal charges were in the offing their fifth amendment rights might otherwise be violated.

At the outset, it must be remembered that the first question before us is not whether Judge Stewart’s pre-trial discovery order was a correct exercise of his discretion but whether this situation is an appropriate instance for use of the extraordinary writ of mandamus. While such an issue may seem technical, it is not, for it raises grave questions of the continued strength of the salutary final judgment rule in the federal courts and the propriety of appellate interference with the trial process at an early stage of the proceedings in an obviously massive litigation. From the papers before us, from the representations at oral argument, and from subsequent events of public record of which we are now cognizant, certain facts are now clear. Not surprisingly, the Commission stated in open court that it has no intention of granting use immunity under 18 U.S.C. §§ 6002, 6003 to any of the five defendants now resisting the mandamus petition. See note 1 supra. The Commission expressed its belief in the trial court, and reiterated it to us, that it has sufficient evidence of fraudulent activities to present a prima facie case on a motion for a preliminary injunction. While that motion, for reasons which were sufficient for the respective parties, was originally bypassed, it appears that the Commission has now determined to seek preliminary relief, and that proceedings on the preliminary injunction are scheduled to commence before Judge Stewart on March 19, 1973. In addition, counsel for the principal defendant (Vesco) stated to us in open court that his client will not testify unless he is granted immunity and that as to him, the Commission may get the benefit of any inferences to which it therefore might be entitled, should Judge Stewart decide to draw them. Vesco is now apparently out of the country.

Thus, in considering the propriety of mandamus here, the following factors must be noted. While we fully appreciate the grave danger of ongoing violations, to which the Commission and our dissenting brother refer, the Commission is now seeking preliminary relief to correct these and anticipates success without deposition testimony. Should it be unsuccessful, then from any denial of preliminary injunctive relief, the Commission will have an appeal of right under 28 U.S.C. § 1292(a)(1), at which time it could and would undoubtedly challenge the propriety of the order now before us on petition for mandamus. Moreover, that order does not threaten to compel the Commission to grant immunity and jeopardize any future criminal proceedings involving these defendants, since the Commission refuses to do so. Thus, whatever damage might result if the condition imposed by Judge Stewart were applied in other cases, its only effect in this case is to prevent the depositions of these defendants. Even as to that, it is important to define the precise harm allegedly resulting from Judge Stewart’s order. The Commission argues that failure to depose these defendants prior to trial will deprive it of the benefit of negative inferences from defendants’ failure to testify on fifth amendment grounds; if Judge Stewart’s order were withdrawn, at least Vesco and possibly others would be required to invoke their fifth amendment privilege at any deposition, from which unfavorable inferences might be drawn. But if these defendants fail to testify in their own behalf either at the evidentiary hearing on preliminary relief or at trial, nothing in Judge Stewart’s order prevents the judge from drawing any proper inference from that. . Under these circumstances, the possible immediate harm to the Government and the precise underlying legal dispute are both narrow indeed. The question is whether Judge Stewart, at the preliminary hearing or at trial, might be barred from drawing the additional adverse inference flowing from invocation by these defendants of a fifth amendment privilege.

On this record, we do not think that a compelling case has been made for the issuance of the extraordinary writ of mandamus to decide such a narrow issue. At the hearing on preliminary relief or at trial, the Commission may suffer no immediate harm at all because its case would be sufficiently strong to justify granting the relief requested. If the Commission fails, it has an immediate right to appeal, as already indicated, which in a proper case can be expedited. Of course, that an error committed in the trial court will ultimately be reviewable does not absolutely foreclose a petition for mandamus, but access to immediate appellate correction of error, if any, surely counsels against mandamus. See Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). It is argued that should the Commission prevail in the civil proceedings, the correctness of the order would not be litigated on appeal and would survive as an unfortunate precedent. Neither proposition necessarily follows. If the Commission prevails, one or all of the losing parties would likely prosecute an appeal; we do not believe that this court would ignore the issue of the propriety of Judge Stewart’s order in an • appeal already properly before it, if the Commission as appellee stressed its significance. Moreover, two judges of this panel have today gone on record as disapproving, on the merits, the action taken by Judge Stewart. But the fact that the order may have been improper does not change our position as to the propriety of granting the writ. Extraordinary writs do not serve the function of merely correcting error, Will v. United States, 389 U.S. 90, 103-104, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), however tempting that course may be when the order appealed from appears, as it does to our dissenting brother, to be gross error. See United States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972).

The arguments raised in dissent do not justify ignoring the clear policy of denying mandamus except in the rarest situations. In United States v. Kordel, 397 U.S. 1, 9, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970), the Supreme Court alluded to the possibility of a protective order postponing civil discovery until termination of a criminal action, when failure to do so appreciably threatened the fifth amendment rights of a civil litigant. In view of that, it is hard to see how Judge Stewart lacked the power to do something less. See also Gordon v. Federal Deposit Insurance Corp., 1238 U.S.App. D.C. 308, 427 F.2d 578, 580 (1970). Nor do we believe that the order raises issues suitable for resolution through “supervisory” mandamus. See generally Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv. L.Rev. 595 (1973). The competing rights of the Government and of individuals, who are faced with parallel civil and criminal proceedings or the threat of them, hardly raise questions of first impression. See United States v. Kordel, supra; Gordon v. Federal Deposit Insurance Corp., supra; United States v. Simon, 373 F.2d 649 (2d Cir.), cert. granted sub nom. Simon v. Wharton, 386 U.S. 1030, 87 S.Ct. 1485, 18 L.Ed.2d 591, vacated as moot, 389 U.S. 425, 88 S.Ct. 577, 19 L.Ed.2d 653 (1967). Nor is the problem one which is subject to resolution by general guidelines applicable to an entire class of cases; individualized facts in each case of this sort will generally be dispositive. See Note, supra, at 619. Finally, most of the cases cited by the dissent to support mandamus hepe prove the general rule that use of the writ to review discovery orders should rarely be allowed.

In sum, we believe that the observations of Mr. Justice Holmes in Northern Securities Co. v. United States, 193 U.S. 197, 400-401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904) (dissenting opinion), should be kept in mind:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

There is no doubt that this is a “big” ease, with attendant publicity. But the extraordinary writ of mandamus is reserved for extraordinary situations in which the early intervention of an appellate court is necessary. We conclude that this attempt to obtain review of a pre-trial discovery order is not one of them.

Petition for writ of mandamus denied.

MULLIGAN, Circuit Judge

(concurring) :

I concur in the opinion of Judge Feinberg holding that the extraordinary remedy of mandamus is not appropriate to review these interlocutory discovery orders. In view of the circumstances set forth in his opinion, I find no compelling reason to make any exception to the sound policy of refusing to review intermediate orders by appeal or by mandamus. There is no reason to review the authority for this which is fully set forth in his opinion.

At the same time I believe that the court below committed error. Rule 26(c), Fed.R.Civ.P. gives a trial court broad authority to protect parties or other witnesses during the pre-trial discovery process. In light of 18 U.S.C. §§ 6001-05, it is clear, however, that such authority does not extend to conditioning all discovery upon a blanket grant of use immunity by the Government pursuant to § 6002. The House Report accompanying the immunity provisions of the Organized Crime Control Act of 1970, expresses the Congressional intent that a witness must specifically claim his privilege to receive immunity. The statute does not contemplate an “immunity bath” H.R.Rep. No. 91-1549, 91st Cong., 2d Sess., in 1970 U.S.Code, Cong. & Ad.News, pp. 4007, 4017.

Moreover § 6003 which sets forth the procedure to be followed in court, explicitly provides that the United States Attorney, with the approval of the Attorney General’s office, must request the court to grant immunity. I agree therefore with Judge Timbers that the initiator of the immunity provided by the statute is the Government and not the Court. In my view therefore the orders below are violative of both the spirit and the letter of the Congressional enactment.

TIMBERS, Circuit Judge

(dissenting) :

If ever there were a case that cries out for mandamus, this is it.

The district court — acting conscientiously and undoubtedly with the best of intentions — nevertheless has committed serious error. Two members of this panel (Judges Mulligan and Timbers) expressly agree that Judge Stewart’s orders were egregiously wrong; and the third member of the panel (Judge Feinberg) does “not suggest in the slightest degree that [he] necessarily disagree [s]” with the other two that the orders below were erroneous.

The error committed strikes at the jugular vein of the entire enforcement program, civil and criminal, of the Securities and Exchange Commission. By conditioning the SEC’s right to take depositions of defendants in a civil injunction enforcement action upon the grant of use immunity to those defendants in a prospective criminal action, the district court has emasculated a key provision of the Securities Exchange Act of 1934. It has done so by an upside-down application of the use immunity provisions in Title II of the Organized Crime Control Act of 1970 — an application that could hardly be further from the remotest intent of Congress.

In the teeth of the erroneous decision below, the SEC is being required — in this ease involving charges of a continuing fraudulent scheme of monumental proportions—to carry out its statutory duties with at least one hand, and perhaps both, tied behind its back. Aside from the impact of such a decision upon the instant ease, its terribly damaging precedential effect is bound to cause untold mischief with the Commission’s entire enforcement program, not only in other court actions, but in its investigations as well.

And the radiations of this decision will have their impact upon the enforcement programs of every federal agency to which Congress has entrusted similar two-fold civil and criminal enforcement responsibilities.

In short, this is precisely that truly extraordinary case for which the extraordinary remedy of mandamus is reserved. For the reasons more fully stated below, I therefore respectfully but most emphatically dissent from the majority’s denial of the petitions for mandamus.

I.

The crux of what the SEC seeks in this civil injunction enforcement proceeding is to take the depositions of the defendants, subject of course .to their privilege to refuse to answer specific questions which they reasonably believe will incriminate them or will lead to incriminating evidence. The SEC in essence believes that it is entitled to preserve the two specific, non-exclusive courses of action granted to it by Congress in Section 21(e) of the 1934 Act: (1) to institute a civil injunction enforcement proceeding; and (2) if the evidence warrants, to transmit a criminal reference report to the Attorney General leading to possible criminal proceedings. It seeks to require the defendants either to answer deposition questions or to invoke their Fifth Amendment privilege not to do so. If they invoke the Fifth Amendment, the trier of the facts would be permitted to draw an adverse inference from such silence. If they choose to testify, the evidence obtained would be available for use in the civil proceeding and, additionally, would constitute part of “such evidence as may be available concerning such acts and practices” which would form the basis for a possible criminal reference report. Section 21(e) of the 1934 Act, last sentence.

There is not the slightest question — • even in the mind of the district court below — -that before enactment of the use immunity statute, 18 U.S.C. §§ 6001-05 (1970), the SEC would have been entitled to precisely what it seeks in the district court, as stated above.

In United States v. Kordel, 397 U.S. 1 (1970), the FDA brought a civil in rent, action against two products and shortly thereafter announced that a criminal proceeding would be initiated against the corporation and certain corporate employees. When the FDA submitted interrogatories to the corporation, it moved to stay further proceedings in the civil action until after disposition of any criminal proceeding. The district court denied the motion and the interrogatories were answered. No one associated with the corporation asserted his privilege against self-incrimination. Individual defendants who had answered the interrogatories were convicted on the criminal charges. The Supreme Court upheld the convictions essentially on the ground that those individuals who answered the interrogatories could have asserted their Fifth Amendment privilege but failed to do so.

We upheld essentially the same principle in United States v. Simon, 373 F.2d 649 (2 Cir.), cert. granted, 386 U.S. 1030, vacated as moot sub nom. Simon v. Wharton, 389 U.S. 425 (1967). There a trustee in bankruptcy sought to take the depositions of certain persons as witnesses in preparation for a hearing in a bankruptcy proceeding. When an indictment was returned against those witnesses, on the basis of conduct with regard to which the trustee sought to question them, the witnesses moved to enjoin the taking of their depositions until after the criminal trial. They urged that, as accountants, they would lose their professional standing if forced to invoke their Fifth Amendment privilege. We held that the public interest in the speedy progress of the bankruptcy action clearly outweighed the witnesses’ interest in withholding their testimony until after the criminal trial without invoking their privilege against self-incrimination. See also United States v. Parrott, 425 F.2d 972, 976 (2 Cir. 1970), cert. denied, 400 U.S. 824 (1970).

In Gellis v. Casey, 338 F.Supp. 651 (S.D.N.Y.1972), the plaintiff moved for a preliminary injunction to enjoin the SEC from proceeding against him in an administrative hearing where he was a defendant, he having been warned that the transactions involved in the administrative proceeding had been called to the attention of the United States Attorney for possible presentation to a grand jury. The court denied the motion principally on the grounds that the plaintiff could invoke his Fifth Amendment privilege and there was no certainty of a criminal prosecution.

While none of these decisions is dis-positive of the basic, undecided question raised by the decision of the district court below, they do point strongly toward the correctness of the SEC’s position. They establish that a civil proceeding will not be deferred until after a criminal proceeding in order to relieve a person from the decision whether to testify in the civil proceeding or to invoke his Fifth Amendment privilege. Such a person must make a decision; and, as Kordel holds, if he chooses to testify, his testimony may be used against him in a subsequent criminal prosecution.

It is not disputed that the orders of the district court below are inconsistent with the above decisions and effectively emasculate the SEC’s two-prong enforcement duties under a statutory pattern that has been on the books for nearly four decades. By conditioning the SEC’s discovery upon the grant of use immunity, the court has presented the SEC with a Hobson’s choice. If the SEC decides to forego discovery, it risks losing its case for permanent equitable relief. If it grants use immunity, it most assuredly will be scuttling any prospective criminal proceeding. Use immunity does not preclude the government from bringing a criminal action against the defendants for conduct related to the deposition testimony given in the civil action. But the government would have the burden of proving that the evidence introduced at the criminal trial was not derived from the immunized testimony. Kastigar v. United States, 406 U.S. 441, 456-62 (1972). This burden would be impossible to meet in a complex case such as the instant one, where evidence is being obtained from many different sources.

Of chief significance, however, the court’s utilization of the immunity statute to undercut the SEC’s statutory powers as they had stood for nearly four decades before the immunity statute was enacted clearly is not supported by the text or purpose of that statute. The use immunity statute was enacted to enable the government at its option to secure information which it previously would have been unable to obtain because of a witness’ Fifth Amendment privilege. It was designed to increase the effectiveness of the government’s enforcement powers. The utilization of the statute by the district court below, however, effectively impairs the enforcement powers of the SEC by forcing it to select between two previously nonexclusive enforcement courses. The district court clearly was not empowered to use the statute in this manner.

Additionally, there is no justification for distinguishing between a stay of the SEC proceeding and what the district court has done here. The harmful effect of either type of order on the public interest is equal in magnitude although different in nature. Limiting the SEC to a civil or criminal proceeding, when in its judgment it is necessary to bring both proceedings, adversely affects the public interest not a whit less than delaying a civil action until the completion of a criminal trial. As the Supreme Court said in United States v. Kordel, supra, 397 U.S. at 11, in a different but analogous situation:

“It would stultify enforcement of federal law to require a governmental agency . . . invariably to choose either to forego recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial.”

While the issue presented by the decision of the district court below is one of first impression, it is clear that the court committed egregious error.

II.

My disagreement with the majority centers upon the issue whether this is an appropriate case for issuance of a writ of mandamus. The majority characterizes the district court’s action as an “exercise of discretion”. It concludes that, even if such discretion were abused, a “compelling case” has not been made for “early intervention” by an appellate court. In my opinion, sufficiently extraordinary circumstances have been shown to justify granting the writ.

The district court clearly acted in excess of its authority in applying the immunity statute for the sole and exclusive benefit of the defendants to enable them to avoid invoking their Fifth Amendment privilege. The immunity statute was designed to be invoked by the government to obtain information privileged under the Fifth Amendment. It was not contemplated that defendants would be able to use it as a sword against the government. Here the “usurpation of power” by the district court was sufficiently extraordinary and compelling of itself to call for issuance of the writ. See De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212 (1945).

There are additional substantial reasons why review of the district court’s orders should not be postponed. First, whether the government’s civil discovery can be conditioned upon a grant of use immunity where parallel, civil and criminal proceedings are anticipated is an issue of first impression and of such exceptional importance that we should undertake review immediately under our supervisory mandamus power. See La-Buy v. Howes Leather Co., 352 U.S. 249 (1957); Schlagenhauf v. Holder, 379 U.S. 104 (1964). See generally Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595 (1973). The district court’s application of the immunity statute in the instant case cuts to the core of many government enforcement schemes since it may seriously impair the ability of agencies to bring both civil and criminal proceedings. The SEC is not the only agency concerned. The Antitrust Division of the Department of Justice, for example, is empowered to bring both civil and criminal proceedings under the antitrust laws on the basis of the same conduct. For its authority to institute civil proceedings, see, e. g., 18 U.S.C. §§ 4, 9 (1970), authorizing United States attorneys to institute proceedings in equity to prevent violations of the antitrust laws. This issue certainly is as important as the issues that have prompted other courts to issue the writ pursuant to the supervisory mandamus doctrine. See United States v. United States District Court, 444 F.2d 651 (6 Cir. 1971), aff’d, 407 U.S. 297 (1972) (question whether Department of Justice’s “national security” wiretapping at issue was constitutional); In re Ellsberg, 446 F.2d 954 (1 Cir. 1971) (question whether defendant had standing in a removal proceeding to force the government to reveal whether grand jury indictment had been based on illegal wiretap evidence); United States v. Hughes, 413 F.2d 1244 (5 Cir. 1969), vacated as moot sub nom. United States v. Gifford-Hill-American, Inc., 397 U.S. 93 (1970) (question whether new Rule 16 of the Federal Rules of Criminal Procedure authorized defendant’s discovery of statements made to a grand jury).

As far as I know, this is the first case in which the important issue raised by the district court’s decision has arisen. In my view, a matter of first impression which is as important as this is should receive the immediate attention of this Court. See Investment Properties International, Ltd. v. IOS, Ltd., 459 F.2d 705, 707-08 (2 Cir. 1972). If we do not rule on the issue now, we may lose the opportunity to do so until after the district courts have had to rule on the issue numerous times without our guidance. If the SEC wins in the present civil proceeding, there will be no occasion for it to appeal. Since the district court’s ruling was incorrect, and since the issue is of extraordinary significance, it strikes me as especially inadvisable for us to pass up this opportunity to rule on the issue.

Second, review on appeal probably would be an inadequate remedy under the circumstances. The SEC has alleged a continuing fraud of immense proportions. The district court granted a temporary restraining order which provided some relief but not all that the SEC had requested as necessary to prevent continuing injury pending trial. Hearings on the SEC’s motion for a preliminary injunction and other relief are scheduled to begin on March 19, 1973. As the majority here states, the SEC may be successful on its preliminary injunction motion despite the district court’s shackling discovery order. On the other hand, the SEC may lose because of the absence of inferences adverse to defendants. Such a loss also might well be attributable to the fact that the SEC was not given the opportunity to adduce unprivileged testimony from defendants. No one has claimed that all the defendants would invoke their Fifth Amendment privilege with regard to all the SEC’s questions. And while it cannot be said to a certainty that the SEC will lose its preliminary injunction motion because of the district court’s order, the magnitude of the potential harm from such a loss emphasizes its importance. Under these circumstances, we should not expose the SEC to the risk of having to go through more than one proceeding to obtain effective relief. The situation clearly calls for early intervention by our Court. Cf. Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7 Cir. 1970), aff’d mem. by an equally divided court, 400 U.S. 348 (1971); United States v. Hemphill, 369 F.2d 539, 543 (4 Cir. 1966).

I agree with the majority’s view regarding the wisdom of the final judgment rule. Nevertheless, if inexorably applied, the final judgment rule at times may work an injustice. We have recognized that certain unusual and compelling cases call for immediate review by mandamus despite the lack of a final judgment. See, e. g., United States v. Lasker, _ F.2d _ (2 Cir. 1973); Hilbert v. Dooling, 476 F.2d 355, 362 (2 Cir. 1973), (March 12, 1973); Grace Lines, Inc. v. Motley, 439 F.2d 1028, 1031 n. 2 (2 Cir. 1971); United States v. Dooling, 406 F.2d 192, 198-99 (2 Cir. 1969), cert. denied sub nom. Persico v. United States, 395 U.S. 911 (1969); Miller v. United States, 403 F.2d 77, 80-81 (2 Cir. 1968); United States v. Nebbia, 357 F. 2d 303, 305 (2 Cir. 1966); Robine v. Ryan, 310 F.2d 797 (2 Cir. 1962).

Our practice has been to balance the policy underlying the final judgment rule against the claim in an individual case that justice and the effective administration of our courts demands immediate review. Grace Lines, Inc. v. Motley, supra, 439 F.2d at 1031 n. 2. Having in mind the effect that postponed review may have here on those investors the SEC seeks to protect, and considering the adverse impact the district court’s order will have on the effectiveness of all government enforcement agencies — including the SEC — sound administration of justice seems to me to require that the final judgment rule yield in this extraordinary case to the extraordinary remedy of mandamus. Distinguished commentators recently have observed that “[rjeview by mandamus should indeed be restricted to the exceptional, unusual case, but such cases do arise, and the courts should be alert to respond to them.” 9 Moore’s Federal Practice ¶ 110.26, at 286 (2d ed. 1972). The instant case certainly is an “exceptional, unusual case” and the majority has failed to be “alert to respond”.

Finally, we cannot ignore developments in the district court in this case since the argument before us on the mandamus petitions on March 5, of which we take judicial notice. Nor can we blind ourselves to reports in the public press, see, e. g., New York Times, March 11, 1973, § 4, at 3, col. 6, relating to the SEC’s investigation of this very case. The overtones of such reports, if the charges are proven, strike at the very foundations of government. And specifically they reflect the commendable swiftness with which the SEC reported to the Department of Justice an obvious attempt to interfere with the Commission’s investigation of this case. This serves further to confirm the extraordinary character of this case.

I would issue the extraordinary writ of mandamus in this truly extraordinary case forthwith. By so doing we would demonstrate that this- Court is not powerless to cut the shackles which have been clamped upon the SEC and permit it to proceed without further impairment to discharge the awesome responsibilities entrusted to it by Congress.

       There are actually two petitions for mandamus before us apparently involving two orders of Judge Stewart. For convenience, we refer to one petition and one order.

      . We are told that one of these defendants, Laurence B. Richardson, is now cooperating with the Commission and has himself brought a motion to compel appointment of a receiver for one or more of the corporate defendants.

      . We say “might” because Vesco’s counsel, as indicated above, appears to have conceded that Vesco should be regarded as though he had specifically invoked the fifth amendment at a deposition.

      . While the Commission argues that the order prevents it from properly preparing for trial, its statement as to the strength of its case at a preliminary hearing undercuts this argument. If the Commission’s real concern is that it may be taken by surprise if some or all of these defendants suddenly decide to testify, Judge Stewart can deal with that situation if it arises. Obviously, defendants cannot have relief both ways.

      . I do not suggest in the slightest degree that I necessarily disagree, but on my view of the case, we need not reach, and I therefore express no view with regard to, the merits.

      . E. g., in American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 284 (2d Cir. 1967), we stated the general rule and denied the writ; in Investment Properties International Ltd. v. IOS, Ltd., 459 F.2d 705 (2d Cir. 1972), the discovery order went to the jurisdiction of the district court to hear the case, hardly the situation here.
      The dissent also refers to Financial Services, Inc. v. Ferrandina, 933 F.2d 73 (2d Cir. 1973), where we suggested that, but for the peculiar facts there present, mandamus might have been appropriate. The underlying issue involved, however, was the constitutionality of New York’s attachment statute in light of very recent Supreme Court decisions; the problem was subject to complete resolution and was not otherwise reviewable in the usual ways.

      . As must be obvious to all, references in this opinion to abuse of discretion and usurpation of power on the part of the district judge are not to be taken as any reflection by the author of this opinion upon the district judge personally. Such terms simply express the judicial standards to be invoked in determining whether the writ of mandamus should issue. My colleagues and I hold Judge Stewart in the highest esteem. The benchmark of a truly competent district judge — as with Judge Stewart in the instant case — is his capacity to insure that the record demonstrates with crystal clarity the basis of his exercise of discretion or assertion of power, so that a reviewing court can determine abuse of discretion or usurpation of power, or the absence thereof.

      . It is charged that the fraudulent scheme involved, among other things, the looting of mutual funds to the extent of some $224 million of United States blue chip securities.

      . Section 21(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u(e) (1970), provides:
      “Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this chapter, or of any rule or regulation thereunder, it may in its discretion bring an action in the proper district court of the United States or the United States Courts of any Territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond. The Commission may transmit such evidence as may be available concerning such acts or practices to the Attorney General, who may, in his discretion, institute the necessary criminal proceedings under this chapter.”
      Section 20(b) of the Securities Act of 1933, 15 U.S.C. § 77t(b) (1970), is substantially identical.

      . The above decisions must be considered in the light of cases such as Malloy v. Hogan, 378 U.S. 1 (1963), and Spevack v. Klein, 385 U.S. 511 (1966). In Malloy
        and Spevack, the Court held that a person cannot be subjected to severe deprivations (imprisonment for contempt and disbarment, respectively), as a consequence of invoking his Fifth Amendment privilege. These cases indicate that, where a civil proceeding might result in a severe deprivation, it would be improper for the court to draw an adverse inference from the defendant’s silence. Indeed, under extreme circumstances the court in a criminal case might rule that the defendant’s testimony in a civil proceeding was so essential to his defense that it was “coerced” and thus inadmissible at his criminal trial. See Melson v. Sard, 402 F.2d 653 (D.C.Cir. 1968) (parole revocation proceeding).
      Clearly none of these unusual circumstances is present here. The relief sought by the SBC is prophylactic rather than punitive. It does not affect the basic interests of these defendants. No unfair consequences would be visited upon them as a result of their refusal to testify on Fifth Amendment grounds.

      . The relevant sections of the use immunity statute, 18 U.S.C. §§ 6002 and 6003 (1970), provide as follows :
      “§ 6002. Immunity generally
      Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
      (1) a court or grand jury of the United States,
      (2) an agency of the United States, or
      (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
      and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”
      “§ 6003. Court and grand jury proceedings
      (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be . held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.

        (b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment—
      (lj the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.”

      . See S.Rep.No. 91-617, 91st Cong., 1st Sess. 55 (1969); H.R.Rep.No. 91-1549, 91st Cong., 2d Sess. 32 (1970), the latter quoted in 2 U.S.Code, Cong. & Ad.News 4007, 4008 (1970). See also Kastigar v. United States, 406 U.S. 441, 443-48 (1972) (“[I]mmunity statutes [are] essential to the effective enforcement of various criminal statutes”. Id. at 447).

      . The supervisory mandamus doctrine apparently originated with the following language in LaBuy: “We believe that supervisory control of the District Courts is necessary to proper judicial administration in the federal system.” 352 U.S. at 259-60. The doctrine was reinforced by the decision in Schlagenhauf where the Court upheld the power of courts of appeal to review by mandamus a “basic, undecided question,” and “to settle new and important problems.” 379 U.S. at 110-11.
      Professors Moore and Ward have interpreted these decisions to mean that courts of appeal “may review immediately questions of unusual importance the determination of which are necessary to orderly, even and efficient administration.” 9 Moore’s Federal Practice ¶ 110.28, at 312-13, and authorities cited at n. 58 (2d ed. 1972).

      . We have recognized that, in precisely such areas as discovery, supervisory mandamus would be expected to have its greatest value:
      “When a discovery question is of extraordinary significance or there is extreme need for reversal of the district court’s mandate before the case goes to judgment, there are escape hatches from the finality rule: ... an extraordinary writ.” American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 282 (2 Cir. 1967).
      For decisions in this Court granting the writ with respect to discovery orders, see Investment Properties International, Ltd. v. IOS, Ltd., supra, 459 F.2d at 707-08; Madison-Lewis, Inc. v. MacMahon, 299 F.2d 256 (2 Cir. 1962).
      Immediate review of discovery orders by means of mandamus has been granted in other circuits. Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8 Cir. 1972); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7 Cir. 1970), aff’d mem. by an equally divided court, 400 U.S. 348 (1971); Texaco, Inc. v. Borda, 383 F.2d 607, 608 (3 Cir. 1967); United States v. Hemphill, 369 F.2d 539, 543 (4 Cir. 1966); Continental Oil Co. v. United States, 330 F.2d 347, 349 (9 Cir. 1964); Hartley Pen Co. v. United States District Court, 287 F.2d 324, 328-30 (9 Cir. 1961).

      . The SEC sought preliminary relief against further violations of the anti-fraud, reporting, and proxy provisions of the 1933 and 1934 Acts, an order that certain false and misleading reports be corrected, and the appointment of receivers. It also sought a temporary restraining order restricting the transfer of cash or other assets from certain funds. On November 28, the court refused to grant the temporary restraining order. On November 30, the court granted a limited temporary restraining order prohibiting the mutual funds from making any new investment commitments except in prescribed circumstances. This order was extended on December 10 for an additional 10 days. On December 20, the court combined this limited relief, which it continued in effect, with an order for an expedited consolidated trial on preliminary and permanent relief. Subsequently, the court amended its order because of “changed circumstances” and directed that the motion for a preliminary injunction be heard separately, in advance of trial, beginning March 19.

      . Professors Moore and Ward also have observed that “[wjitli respect to the demands of justice made by individual cases, it seems clear that discretionary review by mandamus is to be preferred to enlarging by judicial interpretation the categories of interlocutory orders that are appealable of right.” 9 Moore’s Federal Practice ¶ 110.26, at 286 (2d ed. 1972), quoted in Financial Services, Inc. v. Ferrandina, 474 F.2d 743, 746 n. 7 (2 Cir. 1973).


source: Caselaw Access Project

author: MANSFIELD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Petitioner-Appellee, v. Walter SECOR, Respondent-Appellant.
    No. 476, Docket 72-2161.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 26, 1973.
    Decided April 4, 1973.

      Joseph I. Stone, New York City, for respondent-appellant.
    Dennis J. Helms, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., of counsel), for petioner-appellee.
    Before KAUFMAN, ANDERSON and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Upon this appeal from a judgment of contempt for failure to comply with two orders of the United States District Court for the Southern District of New York directing appellant, Walter Secor, to comply with a summons issued by the Internal Revenue Service (“IRS”) pursuant to 26 U.S.C. § 7602, the sole error claimed by Secor is that the summons directing him to appear at the IRS offices and to turn over certain records violated his Fifth Amendment privilege against self-incrimination. That issue, however, had been raised earlier in a proceeding instituted in the district court pursuant to 26 U.S.C. §§ 7402(b) and 7604(a) to enforce compliance with the IRS summons and had been adjudicated against Secor by a decision and order of the district court from which no appeal had been taken within the time prescribed by law. Accordingly, since Secor is barred by the doctrine of res judicata from raising the issue, we affirm the judgment of the district court.

The history of the government’s efforts to interrogate Secor and of the legal proceedings which followed is undisputed. Pursuant to § 7602 the IRS on June 9, 1971, served upon Secor a summons directing him to appear at its offices on June 30, 1971, to testify regarding his tax liability for the year ended December 31, 1968, and to bring with him specified books and records. The Revenue Agent in charge of the matter, Charles Paletty, was informed by Secor’s attorney that he had advised Secor, who failed to appear, to invoke his constitutional privilege against self-incrimination and not to answer any questions.

On December 13, 1971, the district court, acting upon a petition of the IRS, issued to Secor an Order to Show Cause why he should not be compelled to comply with the IRS summons served upon him in June. On December 30, 1971, Secor appeared in court and furnished an affidavit of the same date prepared by his counsel, which reiterated his refusal to testify in response to the summons, stating that he was contesting IRS assessments against him for the years 1964-1967, that a tax deficiency had been assessed against him for the year 1968 after he had refused to answer questions with respect to earlier orders, and that he had been convicted in 1966 for failure to register and pay the federal wagering tax. The conviction was set aside pursuant to the subsequent decision in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L. Ed.2d 889 (1968), which held unconstitutional the wagering tax as violative of the Fifth Amendment. Seeor’s affidavit requested that he be permitted the right to invoke his constitutional privilege against self-incrimination, that the order to show cause be dismissed, and that the summons issued by the IRS be cancelled.

With the issue thus joined, Judge Pierce in a memorandum opinion entered on February 10, 1972, denied Secor’s application, stating “The Court is not aware that anyone has suggested criminal prosecution of respondent based on any alleged gambling activities. . . . If such a situation eventuates, respondent may then urge that his constitutional claims be measured against the Marchetti case.” Secor was ordered by the court “to obey the mandate contained in the Internal Revenue Service summons which had been served upon him.”

Secor neither obeyed the court’s order nor took an appeal therefrom. On June 27, 1972, the court, upon the written application of the United States Attorney, a copy of which was served on Secor’s attorney, issued a second order directing Secor to comply with the IRS summons by appearing at the IRS offices, this time on July 10, 1972, and by producing the documents and records referred to in the summons. Again Secor neither- obeyed the court’s order nor took an appeal.

On August 22, 1972, the government moved pursuant to 26 U.S.C. § 7604(b) for an order holding Secor in contempt because of his failure to obey the court’s two earlier orders. An evidentiary hearing was held in which the only witness called by Secor was Revenue Agent Faletty; Secor also offered a limited amount of documentary evidence. Secor’s position was that he was not guilty of contempt because he had been justified in refusing to obey the summons on the ground that interrogation pursuant to it would violate his Fifth Amendment rights.

By decision dated September 13, 1972, Judge Pierce adjudged Secor to be in contempt for his refusal to obey the orders of the court. Imposition of sentence was suspended and Secor was fined $25 per day thenceforth for each day upon which he should fail to comply with the IRS summons. Pending appeal the sentence was stayed. On September 18, 1972, Secor filed a notice of appeal from the district court’s judgment holding him in contempt.

Upon this appeal Secor asks us to reverse the judgment of contempt on the ground that interrogation of him pursuant to the IRS summons would violate his Fifth Amendment rights. However, we must first determine whether we are precluded from determination of that issue, interesting though it may be, by Secor’s failure to take a timely appeal from the district court’s earlier orders directing him to comply with the IRS summons. The government urges that when his time to appeal from the February 10, 1972 order expired the district court’s decision in this proceeding became res judicata as to the sole issue which he now seeks to raise and that that order cannot now be collaterally attacked. We agree.

The final and appealable nature of a district court’s order enforcing an IRS summons in a proceeding instituted pursuant to 26 U.S.C. §§ 7402(b) and 7604 (a) was firmly established by the Supreme Court in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964). There the Court, affirming the denial of declaratory and injunctive relief sought by attorneys for the taxpayers against an IRS summons issued under § 7602, held that the taxpayers’ constitutional rights were fully protected for the reason that in order to enforce the IRS summons the government would be required to institute an adversary proceeding in the district court (as it did here) for an order enforcing the summons, in which the taxpayer could assert and litigate his constitutional rights and appeal as a matter of right from an adverse decision and enforcement order.

“If the Secretary or his delegate wishes to enforce the summons, he must proceed under § 7402(b), which grants the District Courts of the United States jurisdiction ‘by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.’
“Any enforcement action under this section would be an adversary proceeding affording a judicial determination of the challenges to the summons and giving complete protection to the witness.
* * * *- * *
“Furthermore, we hold that in any of these procedures either before the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States [8 Cir.] 228 F.2d 682. Finally, we hold that such orders are appealable. See O’Connor v. O’Connell, 253 F.2d 365 (C.A. 1st Cir.); In re Albert Lindley Lee Memorial Hospital, [209 F.2d 122 (C.A. 2d Cir.)]; Falsone v. United States, [205 F.2d 734 (C.A. 5th Cir.)]; Bouschor v. United States, 316 F.2d 451 (C.A. 8th Cir.); Martin v. Chandis Securities Co., 128 F.2d 731 (C.A. 9th Cir.); D. I. Operating Co. v. United States, 321 F.2d 586 (C.A. 9th Cir.). Contra, Application of Davis, 303 F.2d 601 (C.A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons.” Reisman v. Caplin, 375 U.S. at 445-446, 449, 84 S.Ct. at 512-513.

Accord, Daly v. United States, 393 F.2d 873, 876 (8th Cir. 1968) (“The order of the trial court in enforcing the summons of the revenue agent became an appeal-able order upon its proper entry. . . . [t]he order entered was similar to a final judgment in any other case”); see McGarry’s Inc. v. Rose, 344 F.2d 416 (1st Cir. 1965); Tillotson v. Boughner, 327 F.2d 982 (7th Cir. 1963).

Since the district court’s February 10, 1972, decision and enforcement order represented a final adjudication of Se-cor’s Fifth Amendment defense, he cannot now turn back the hands of the clock and retry an issue that was litigated on the merits in an adversary proceeding where due process requirements were fully observed. To permit such a collateral attack would be to make a mockery of the well settled doctrine of res judicata. See Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419 (1929); Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931); Durfee v. Duke, 375 U.S. 106, 83 S.Ct. 509, 9 L.Ed.2d 496 (1963); Daly v. United States, 393 F.2d 873 (8th Cir. 1968). The situation here is in all legally significant respects the same as that before the Supreme Court in Oriel, supra, where it held, in a contempt proceeding for violation of a bankruptcy court turnover order, that the bankrupt was precluded from relitigating defenses raised and tried in the earlier turn-over proceeding itself, resulting in a final order from which no appeal had been taken.

“It would be a disservice to the law if we were to depart from the longstanding rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court’s order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience. Every precaution should be taken that orders issue, in turnover as in other proceedings, only after legal grounds are shown and only when it appears that obedience is within the power of the party being coerced by the order. But when it has become final, disobedience cannot be justified by re-trying the issues as to whether the order should have issued in the first place.” Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct. 401, 408, 92 L.Ed. 476 (1948). See also 9 J. Moore, Federal Practice ¶ 110.-13 [4] at 168-69 (2d ed. 1972).

These principles apply with equal force here, where we are not confronted with any contention that Secor was denied due process in the enforcement proceeding or that he was barred from raising his Fifth Amendment claims on a question-by-question basis before the IRS. The latter procedure might have represented at least an effort to furnish non-incriminatory information to the IRS and have permitted the court to rule on specific questions claimed to be incriminatory. But Secor simply refused on Fifth Amendment grounds to submit to any interrogation.

Since Secor is thus barred by res judicata from raising again the issue of whether he properly invoked his privilege against self-incrimination, we need not consider on the merits his claim that enforcement of the IRS summons would violate the Fifth Amendment.

Although Secor does not raise the issue, we note that there was ample evidence in the record to support the district court’s finding of contempt. His conduct in refusing to comply with the district court’s February 10, 1972 enforcement order was not free of contumacy. Upon the entry of that order he faced the choice of complying or taking an appeal. Instead of following either course, he deliberately defied the order. Four months later, when the court entered its second enforcement order in the hope that Secor might comply, he adhered to his course of disobedience. The order holding him in contempt was fully justified and is affirmed.

      . 26 U.S.C. § 7602 provides:
      “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized—
      “(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
      “(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of aceourt containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
      “(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.”

      . 26 U.S.C. § 7402(b) provides:
      “(b) To enforce summons. — -If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.”
      26 U.S.C. § 7604(a) provides:
      “(a) Jurisdiction of district court.— If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data.”

      . 26 U.S.C. § 7604(b) provides:
      “(b) Enforcement — Whenever any person summoned under section 6420 (e)(2), 6421(f)(2), 6424(d)(2), or 7602 neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the Secretary or his delegate may apply to the judge of the district court or to a United States commissioner for the district within which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the judge or commissioner to hear the application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, and upon his being brought before him to proceed to a hearing of the case; and upon such hearing the judge or the United States commissioner shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons and to punish such person for . his default or disobedience.”

      . On this issue we do note that claims of self-incrimination in IRS civil investigatory proceedings have been approached differently by different courts. Compare United States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969), with United States v. White, 301 F.Supp. 1129, 1131 (D.R.I.1969). See also United States v. Hatch, 31 AFTR2d ¶ 73-465 (D.C. Idaho, Civ. No. 472-16, June 28, 1972); United States v. Runte, 1973 CCH U.S. Tax Cases ¶ 9265 (W.D.La., Civ. No. 18514, Jan. 18, 1973). United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed. 2d 1 (1970), relied on by Secor, did not rule upon the issue which he seeks to raise on this appeal. There the Supreme Court held that where a defendant did not invoke his privilege against self-incrimination in a civil condemnation proceeding instituted by the government, testimony given by him in that proceeding could be used against him in a subsequent criminal prosecution. To the extent that the Court implied that the defendant could have invoked his privilege in the civil proceeding it should be noted that, unlike the present case, the criminal prosecution was not only contemplated at the time of the civil proceeding but was “nearly contemporaneous” with it.
      We, of course, intimate no views at this time on the question whether the pendency of a criminal prosecution is an essential prerequisite for invocation of the Fifth Amendment privilege in a civil proceeding.


author: MARIS, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Micha WILLIAMS, Appellant. GOVERNMENT OF the VIRGIN ISLANDS v. Angel De JESUS, Appellant.
    Nos. 72-1374, 72-1389.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 1, 1973.
    Decided March 28, 1973.

      Edgar D. Ross, Christiansted, St. Croix, V. I., for appellants.
    Joel D. Sacks, U. S. Atty., Julio A. Brady, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellees.
    Before MARIS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

These are appeals by the defendants, Micha Williams, at our docket No. 72-1374, and Angel De Jesus, at our docket No. 72-1389, from judgments entered in the District Court of the Virgin Islands on jury verdicts of guilty in narcotics cases. The defendant Williams was charged with and found guilty of the crime of distributing marihuana in violation of 19 V.I.C. § 604(a); the defendant De Jesus was charged with and found guilty of distributing heroin in violation of 19 V.I.C. § 604(a). In each case, prior to the empanelling of the trial jury, the defendant had moved to quash the array of jurors on the ground that the selection of jurors from that array would deprive him of a fair trial because some of them had served as jurors in prior narcotics cases tried within the previous month in which they had heard the testimony of certain prosecution witnesses, including a government informer, whom the government planned to call to testify at the defendant’s trial. In each case the court denied the motion to quash the array. The denial of the motion in each case is asserted as error on these appeals.

We are satisfied that the court did not commit error in this regard. For it has been settled from early times that a challenge to the array of jurors goes only to the form and manner of making up the jury panel and must, therefore, be based on some ground affecting the validity of the whole panel or array of jurors. The disqualification of an individual juror for any cause is not a ground for challenge to the array, since it may later be raised on a challenge to the polls for cause. United States v. Callender, C.C.Va.1800, F.Cas. No. 14,709; Frazier v. United States, 1949, 335 U.S. 497, 510, 511, 69 S.Ct. 201, 93 L.Ed. 187; United States v. Gordon, 7 Cir. 1958, 253 F.2d 177; State v. Lundgren, 1913, 124 Minn. 162, 144 N. W. 752; Smith v. State, 1954, 219 Miss. 741, 69 So.2d 837; State v. Taylor, 1959, Mo., 324 S.W.2d 643, 76 A.L.R.2d 671, and annotation thereto, 76 A.L.R.2d 678, 679; 47 Am.Jur.2d Jury § 229; 50 C.J.S. Juries § 262.

Here, admittedly, the grounds alleged — prior service in narcotics cases involving the same government witnesses — applied to less than all of the jurors in the array and were, if valid, grounds for later individual challenges. They were, therefore, insufficient to support the defendants’ challenges to the array. Those challenges were accordingly rightly denied by the court.

In the ease of the defendant De Jesus, however, later challenges for cause were made to the polls in the cases of certain individual jurors. These individual challenges were based on the same grounds, namely, that the challenged jurors must be presumed to be partial as a matter of law and were, therefore, disqualified because they had served as jurors in the trial of other narcotics cases within the preceding month, which had resulted in convictions and at which prosecution witnesses, including a government informer, who were scheduled to testify in De Jesus’ case, had testified. De Jesus actually challenged for this cause five of the jurors selected for his case. Three of them had served in three prior narcotics eases and the court, in the exercise of its discretion, sustained his challenges as to them. The other two challenged jurors had served in only two prior eases and as to them De Jesus’ challenges were overruled. The jury, which included these two jurors, found De Jesus guilty, as we have seen. On his appeal from his conviction, De Jesus asserts that the court should have held the two jurors to be disqualified for partiality and should have sustained his challenges of them for that cause. The failure of the court to do so he asserts as the second ground of error which, as he contends, entitles him to a new trial. We do not agree.

The federal courts have uniformly held that, absent some evidence of actual partiality, a juror is not disqualified merely because he previously sat in a similar case arising out of a separate and distinct set of circumstances even though . the offenses charged in the cases are similar and some of the same prosecution witnesses testify in each case. United States v. Haynes, 2 Cir. 1968, 398 F.2d 980, 984, 985, cert. den. 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124; United States v. Ragland, 2 Cir. 1967, 375 F.2d 471, 476, fn. 2; United States v. Cooper, 3 Cir. 1964, 332 F.2d 790; Casias v. United States, 10 Cir. 1963, 315 F.2d 614, 615, 618, cert. den. 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065; Cwach v. United States, 8 Cir. 1954, 212 F.2d 520, 529; Belvin v. United States, 4 Cir. 1926, 12 F.2d 548, 550; Haussener v. United States, 8 Cir. 1925, 4 F.2d 884, 886, 887; Wilkes v. United States, 6 Cir. 1923, 291 F. 988, 990, cert. den. 263 U.S. 719, 44 S.Ct. 181, 68 L.Ed. 523. See, also, United States v. Stevens, 6 Cir. 1971, 444 F.2d 630, 631, 632.

In Ward v. Union Barge Line Corporation, 1971, 443 F.2d 565, 570, this court stated “It is clear that jurors are not disqualified merely because they have sat in cases involving similar issues.” Casias v. United States, 10 Cir. 1963, 315 F.2d 614, cert. den. 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065, was a case in which an evenly divided court of appeals in banc affirmed the conviction of the defendant by a jury of which most of the members had sat in prior similar cases and in which the same prosecution witnesses, who were called upon to testify in Casias’ ease, had testified. In that case, Judge Breitenstein, speaking for the three members of the court who favored affirmance, observed that the “general rule is that a juror is not disqualified to sit in a criminal case because he previously sat on a similar case arising out of a separate, distinct, and independent transaction.” 315 F.2d at 615.

De Jesus relies upon the views of Chief Judge Murrah speaking for the three judges who favored reversal in the Casias case. Those views, however, have never found favor with any federal court, so far as we are aware, nor do we accept them here. Moreover, even Chief Judge Murrah’s opinion states that “Not every prospective juror who has sat on another similar case with the same government witnesses is ipso facto debarred from the jury box. His qualifications may very well rest on voir dire. Prejudice should be implied in law only when the accumulative effect of the extrinsic evidence of guilt is clear and convincing.” 315 F.2d at 621.

We think that this rule is particularly appropriate for the Virgin Islands in which the number of persons available for jury duty is limited by the comparatively small population of the territory. For there is an ever-increasing likelihood that the district court will in the future be called upon to try even larger numbers of criminal cases .rising out of similar circumstances, such as narcotics violations, in which some of the same government witnesses are necessarily involved. It might well, therefore, seriously impede the prompt administration of criminal justice in the territory as well as deny to accused persons the speedy trial to which they are entitled under section 3 of the Revised Organic Act, 48 U.S.O.A. § 1561, if jurors should be conclusively presumed to be partial and, therefore, disqualified from sitting in the trial of a criminal case merely because they had sat in a prior similar case involving some of the same government witnesses and without any regard for their actual states of mind and ability to try the case fairly.

Since a juror who is regularly drawn and selected is presumed, in the absence of some showing to the contrary, to be unbiased and otherwise qualified and competent to serve and since, as we have seen, the mere fact of service in previous similar cases involving some of the same witnesses does not of itself amount to such a showing, it necessarily follows that a defendant challenging a juror on that ground must show by some evidence, normally obtained on voir dire, the probability of the actual existence of bias. Haussener v. United States, 8 Cir. 1925, 4 F.2d 884. In the Haussener case the court said, pp. 886-887:

“Five jurors who sat in this case had theretofore sat in other cases, against other persons, charged with some violation of the Volstead Act, wherein one or both of the government prohibition agents testifying in this case had also been witnesses. Touching the qualifications of these jurors it developed upon their voir dire examination that some of them had formed and still had a certain opinion as to the credibility of these prohibition agents; but these jurors said, in substance, that they could try the case in the same fair state of mind as they could have done if these witnesses had been strangers, and if they had never heard them testifying in other cases.
“. . . it is too plain for argument that no such procedure ought to be held reversible error, unless in the presence of an examination which shows that the attitude of the jurors is such as to preclude a fair and impartial trial, beyond cavil or question. This is so, because in the very nature of the situation practically all prosecutions for violations of the Volstead Act . . . must be bottomed upon the testimony of prohibition agents.
“We are not saying that, if the jurors had by their answers disclosed a state of opinion that would have prevented a fair and impartial trial, or an unprejudiced consideration of all of the evidence offered, that they would have been competent jurors; but it will be observed that no such state of mind is shown by the voir dire examination. The ingrafting into the criminal procedure of a novel practice like that here disclosed ought not be permitted, except in the face of a situation clearly showing the bias, prejudice, and lack of impartiality of the juror. In this the record fails. }}

The following statements of the Supreme Court in Irvin v. Dowd, 1961, 366 U.S. 717, pp. 722-724, 81 S.Ct. 1639, pp. 1642-1643, 6 L.Ed.2d 751, are significant in this connection:

“It is not required, however, that the jurors be totally ignorant of the facts and issues involved To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
“The adoption of such a rule, however, ‘cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner’s life or liberty without due process of law’ ... As stated in Reynolds [98 U.S. 145, 25 L. Ed. 244,], the test is ‘whether the nature and strength of the opinion formed are such as in law necessarily raise the presumption of partiality. The question thus presented is one of mixed law and fact .’ At page 156. ‘The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside . . . If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed.’ At page 157. As was stated in Brown v. Allen, 344 U.S. 443, 507 [73 S.Ct. 397, 446, 97 L.Ed. 469], the ‘so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge’.
“The rule was established in Reynolds that ‘[t]he finding of the trial court upon that issue [the force of a prospective juror’s opinion] ought not be set aside by a reviewing court, unless the error is manifest.’ 98 U.S., at 156. In later cases this Court revisited Reynolds, citing it in each instance for the proposition that findings of impartiality should be set aside only where prejudice is ‘manifest’.”

It is clear from the decisions that broad discretion and duty reside in the court to determine from the evidence and demeanor of the jurors on voir dire and from any other evidence available to it that the jury as finally selected is subject to no solid basis of objection on the ground of partiality. Frazier v. United States, 1948, 335 U.S. 497, 69 S. Ct. 201, 98 L.Ed. 187. It is equally clear that the decision of the court on a challenge for cause on that ground will be reversed only if an abuse of that discretion is manifest.

Implicitly recognizing the authority of the cited cases, De Jesus argues that the totality of facts in his case established the partiality of the two jurors in question and that the court should, therefore, have excluded them. We see no merit in this contention. The unsatisfactory nature of the retrospective application of such a case by case approach, which Judge Breitenstein pointed out in his opinion for the three judges who favored affirmance in the Casias case, 315 F.2d at p. 617, is manifest. In any event the “totality of facts” upon which De Jesus relies is stated in his brief on appeal merely as “(a) the use by the government of the same two key witnesses in all three (3) trials; (b) the frequency of the service of the challenged jurors; and (e) the fact that the informant’s credibility must have of necessity been at issue in all the trials.” He does not rely on any facts brought out on voir dire or on any other evidence on the question of the actual partiality of the two jurors in question. Thus De Jesus’ “totality of facts” turns out to be nothing more than the one fact on which he has relied throughout, namely, the service of these two jurors on prior cases in which the accused were convicted of similar offenses on the testimony of the same two government witnesses, inter alia. As we have already seen this fact, standing alone, was not sufficient to raise even a presumption of partiality. Under these circumstances, the rejection of the challenges was wholly within the discretion of the court.

The judgments of the district court will be affirmed.


author: VAN DUSEN, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Valdemar HENDRICKS, Appellant.
    No. 72-1911.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 31, 1973.
    Decided April 3, 1973.

      John B. Nichols, Nichols & Silver-light, Christiansted, St. Croix, V. I., for appellant.
    Julio A. Brady, Asst. U. S. Atty., Christiansted, St. Croix, V. I., for appellee.
    Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Defendant Hendricks was convicted of both of two counts of selling heroin in violation of 19 V.I.C. § 604(a) and was sentenced to ten-to-fifteen years on each count, to be served consecutively. He asserts here that the district court erred in regard to jury selection, jury instructions, and sentencing. We affirm.

The circumstances of the two sales are essentially the same. The police employed one Carlos Encarnación to purchase the drugs. According to the testimony of the police and Encarnación, on October 14, 1971, and again on October 19, 1971, the police searched Encarnación, gave him money, and told him to buy drugs from defendant. Encarnación sought out defendant and, as he stated, purchased heroin from him. Then Encarnación returned to the police, who searched him and found in his possession heroin but no money. On both occasions the police officers had trailed Encarnación. On October 14 they witnessed an exchange between Encarnación and defendant. On October 19, however, they saw only that Encarnación and defendant entered an apartment house together; the police officers did not observe the alleged sale itself.

Encarnación was similarly employed to obtain evidence against a number of other suspected drug pushers. Four of these individuals were brought to trial before defendant Hendricks was, and, as a result, the jury array from which defendant’s jury was selected contained jurors who had sat on some of such earlier cases and had heard Encarnación testify during such cases. Defendant challenged the entire array, and, after that challenge was rejected, requested that the district court ask certain questions designed to elicit whether jurors who had sat on such earlier cases had formed an impression about the credibility of Encarnación or of the police officers involved in defendant’s case. The district court declined to ask the requested questions, but did determine which jurors had sat on such earlier cases and did inquire of these persons whether they were able to confine themselves solely to the evidence which would be presented. The district court denied defendant’s motion to strike such jurors for cause.

While we acknowledge that the credibility of Encarnacion’s testimony was crucial to this case, we adhere to the view that the mere fact that a juror has sat on a prior case involving similar issues and some of the same witnesses does not, absent some showing of resulting prejudice, disqualify the juror. See Government of Virgin Islands v. Williams, 476 F.2d 771 (3d Cir.1973). We note that of the nine jurors who had sat on such earlier cases, eight had sat on one such case and one had sat on two such cases. Consequently, we reject defendant’s claim that the district court erred in the above-mentioned rulings.

Defendant requested two instructions involving the credibility of Encarnación, one relating to his being a drug addict and the other to his being paid by the Government. The district court refused to give the former on the ground that there was no evidence in the record to show that Encarnación was an addict as of the time of the trial, February 15, 1972. The district court did give the latter, but with significant modification. Defendant took exception to the refusal to give the proffered instruction on addicts, but he did not make any objection to the instructions eventually given by the court.

It is undisputed that, inter alia, Encarnación was an addict at the time he allegedly bought drugs from defendant, that he was to be paid $2,000 by the Government for obtaining evidence and then testifying against from 10 to 20 persons, that he had been convicted of forgery and was still subject to sentencing for this conviction, and that he had pending against him a number of felony charges. The questions before this court are whether, under these circumstances, the district court should have given defendant’s instruction that “a drug addict is inherently a perjurer” and, if not, whether the district court’s instructions were plain error, see F.R. Crim.P. 30.

Defendant took this “inherently a perjurer” language from Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321, 322 (1946). While the court-in Fletcher was concerned with the reliability of an addict-informer, the court’s decision was to allow such testimony but to require that a cautionary instruction be given. To suggest that the cautionary instruction should contain the words “inherently a perjurer” is to misread Fletcher, for such an instruction would in effect make the testimony incompetent altogether. The district court was correct in not giving the proposed instruction.

One recent case has held outright that it is plain error for a district court not to instruct the jury sua sponte about the unreliability of an addict-informer’s testimony when that testimony is corroborated only in minor details. United States v. Griffin, 382 F.2d 823 (6th Cir. 1967). Griffin, however, is easily distinguishable on its facts. In Griffin there were two co-defendants, Griffin and a woman. The woman made two sales to an addict-informer; Griffin was not present at the first sale and was only seen in the vicinity of the second. While there was corroboration by police officers as to the woman’s guilt, only the word of the addict-informer connected Griffin with the crimes. In the present case, on the other hand, police witnessed one transaction and provided significant corroboration for Encarnacion’s testimony about the other transaction, even though they did not witness the sale itself. Moreover, the district court did instruct the jury that because Encarnación was an informer his testimony had to “be scrutinized with care and received with caution.” In these circumstances, we decline to hold that there was plain error.

We do not, however, mean to suggest that, if it is requested, a special cautionary instruction is not proper when a witness is in the Government’s pay and either is an addict at the time of trial or was an addict at the time of the events concerning which testimony has been given. Similar scrutiny must be used in weighing the testimony of a present or former addict who recognizes, or may recognize, the possibility of being rewarded by the Government. Examples of possible rewards are the dropping of charges presently pending against the witness and the recommending of a lighter sentence for a crime of which the witness has already been convicted. An instruction would be appropriate whether or not it is shown that the Government intends to reward the witness. It would be especially useful when the testimony of such a witness is uncorroborated as to a material fact.

While the precise formulation of the instruction is up to the trial court, it should set out the rationale for examining the testimony of such a witness with special caution. As United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566, 570-571 (1972), points out, an addict-informer faces the immediate threat of being jailed and thereby kept from access to the drugs to which he is addicted, as well as the prospect of a long term prison sentence and possible retaliation from various persons in the drug trade. These factors substantially increase the danger that the addict-informer may color his testimony so as to place guilt on the defendant.

Defendant Hendricks’ final contention is that the sentence he received —two consecutive terms of ten-to-fifteen years — was excessive. Although this is a very long sentence, it is within the statutory limits, and, therefore, not subject to review here. Government of Virgin Islands v. Venzen, 424 F.2d 521 (3d Cir. 1970). See Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. Frank, 245 F.2d 284, 288 (3d Cir. 1957). Cf. generally ABA Project on Minimum Standards for Criminal Justice (Approved 1968), Standards Relating to Appellate Review of Sentences, including Appendix 3, pp. 86-90. We note, however, that defendant may apply under F.R.Crim.P. 35 for a reduction of sentence after the issuance of this court’s mandate.

The March 10, 1972, judgment and commitment will be affirmed.

      . Motion of February 9, 1972.

      . Supplemental Proposed Questions to the Jury on Voir Dire, questions Nos. 28-33, filed February 9, 1972.

      . The judge addressed the jury as a group. At various times during the court’s questioning of the group, jurors responded. When the district court asked the jurors if they would be prejudiced because the defendant was charged with a narcotics violation, one juror raised his hand and, when questioned, said he would be prejudiced in such a case. AVhen the jurors were asked if they knew Encarnación, one raised her hand and stated that she was his cousin.
      The district court began its discussion of the earlier cases in which Encarnación had testified by asking the jurors who sat on Government of the Virgin Islands v. Ventura to identify themselves. The court then asked, as a group, the five who raised their hands whether they would be able to “judge the credibility of the witnesses entirely upon the evidence adduced at this trial? ” Transcript of Voir Dire at 17. No juror indicated any inability to do so. The district court repeated this procedure for each of the other three such cases. Transcript of voir dire at 17-22. The district court then addressed all such jurors together, as follows:
      “You heard the testimony of the witnesses in those cases and you obviously formed some impression as to their credibility in those cases; would you be able to form an opinion as to the credibility of those same witnesses in this case based entirely upon their testimony in this case even to the point where you would change your opinion as to their credibility which you had in the prior case?
      “(No response.)
      “Is there anyone who would not be able to do so?
      “(No response.)”

        Id. at 24.
      In light of these extended inquiries, we believe that the voir dire was adequate.
      AVe note that, under appropriate circumstances, it may be desirable for the district court, in conducting a voir dire examination of jurors, to require an audible response to important questions.

      . Id. at 26-27. Defendant apparently exhausted all peremptory challenges.

      . “I instruct you that a drug addict is inherently a perjurer where his own interests are concerned and therefore the testimony of a drug addict should be carefully scrutinized and received with caution.” Defendant’s Proposed Jury Instructions, filed January 7, 1972.

      . “I instruct you that the testimony of a paid informer must be scrutinized with care and received with caution. This is because there is a serious question of credibility inherent in the use of such a witness by the government and his usefulness is dependent wholly upon his ability to make out a case in favor of the government.” Id.

      . “AVe have a rule that the testimony of an informer must be scrutinized with care and received with caution. And it is within your exclusive province to determine the weight to be given the testimony of an informer.” N.T. 2.124. The court deleted the second sentence of defendant’s proposed instruction quoted in the preceding footnote because the court found that Encarnación was to be paid whether or not convictions were obtained.

      . N.T. 2.91.

      . N.T. 2.130.

      . Encarnación himself so testified. N.T. 2.35-.38. At N.T. 2.91, the district court stated, “The Court recognizes that the informant was a drug addict prior to November, 1971. . . . ”

      . Another case, United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 560 (1972), disregarded defendants’ failure to object to the instructions given, see id. at 583 (Adams, J., dissenting). However, the holding of Kinnard is that a trial court must give a cautionary instruction in these circumstances, tut only upon request.. Hence, the failure to give such an instruction could not be plain error.

      . See United States v. Bailey, 451 F.2d 181,183-184 (3d Cir. 1971).


author: PER CURIAM:

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Angel Luis VENTURA, Appellant.
    No. 72-1397.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 2, 1973.
    Decided April 4, 1973.

      Edward J. Ocean, Christiansted, St. Croix, V. I., for appellant.
    Julio A. Brady, Asst. U. S. Atty., Christiansted, St. Croix, V. I., for appellee.
    Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Defendant was convicted by a jury of two counts of having sold heroin in violation of 19 V.I.C. § 604(a), and was sen-fenced to a term of ten to fifteen years on each count, to be served consecutively. He appeals this sentence. The principal witness against defendant was Carlos Encarnación, a former addict turned informer, who testified that he made the purchases from defendant on October 9 and 10, 1971. Police officers testified that on two occasions they had searched Encarnación, given him money, followed him to building 38 in the DeChabert Project, had seen him enter and later leave, searched him again, and found heroin. The police did not, however, witness the sales themselves, which Encarnación testified took place in apartment 242.

After close examination of the record and consideration of the briefs and oral arguments of counsel, we reject the defendant’s contentions (1) that the Government should have endorsed the names of three persons on the information and produced at trial such three persons whom Encarnación said were present at one or the other sale, and, at the least, should have informed defendant of the witnesses it intended to call and not to call, (2) that the Government’s cross-examination of the defendant as to prior drug usage was improper, (3) that the district court erred in admitting into evidence prior consistent statements of Encarnación, (4) that the district court erred in not allowing Encarnación to be recalled by defendant solely for impeachment purposes, (5) that the Government did not challenge statements of Encarnación as to whether he had had a drug overdose, which the Government allegedly knew to be false, (6) that Encarnacion’s testimony was incompetent, (7) that the trial court should have given sua sponte a stronger cautionary instruction regarding Encarnacion’s testimony than the instruction given, (8) that the evidence was insufficient to establish guilt beyond a reasonable doubt, and (9) that the defendant's sentence constituted cruel and unusual punishment.5

The judgment and commitment of January 28, 1972, will be affirmed.

      . The Federal Rules of Criminal Procedure apply to the District Court of the Virgin Islands, see Rule 54(a), and these rules do not adopt the practice of some states to require the prosecution to endorse on the information and produce witnesses. It does not appear in the record that defendant requested a bill of particulars pursuant to Rule 7; and, even if he had, he would not have been entitled to a list of the Government’s witnesses. See United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1972).
      We also note that Encarnación was the first witness to testify on the second day of trial. It does not appear that defendant made any attempt to effect compulsory process under F.R.Crim.P. 17 to secure the persons Encarnación testified were present during the purchases or requested a continuance to permit him to do so. It is further noted that two of such persons named by Encarnación were cousins of the defendant, see N.T. 2.23.

      . The Government offered these statements to rebut a suggestion of defense counsel during the trial that they had been altered, see N.T. 2.69. When the Government offered them, defense counsel said, “No objection.” N.T. 2.70.

      . In his opening statement, the Government prosecutor stated that Encarnación had been convicted of forgery and had been a drug addict. Transcript of Opening Statements at 6. On direct examination of Encarnación, the Government brought out that he had been an addict for four years and had stolen in order to pay for his $60.00-$70.00 a day habit. N.T. 2.4-8. Moreover, defense counsel repeatedly referred to testimony at the earlier trial of Angel DeJesus, when it had been developed that Encarnación had been hospitalized for an overdose sometime in November 1971. See, e. g., N.T. 1.39, 1.54, 2.32-.33, 2.82. Although Encarnacion’s testimony in this case about the overdose was at best evasive, see N.T. 2.32-.33, under these circumstances we cannot say that the Government intended to conceal information about the overdose or had any reason to believe that defense counsel was unaware of such information.

      . For a discussion of the treatment by the fact-finder of the testimony of an addict-informer, see this court’s recent opinion in Government of the Virgin Islands v. Hendricks, 476 F.2d 776, (3d Cir. 1973).