UNITED STATES OF AMERICA, PETITIONER V. STEPHEN A. GONSALVES

   No. 82-1944

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-23a) is
reported at 691 F.2d 1310.  The district court's order granting
respondent's motion to dismiss the indictment (App. B, infra, 24a-26a)
is unreported.  The 1976 oral opinion of the district court granting
motions for "acquittal" filed by three other defendants charged along
with respondent in the indictment (App. C, infra, 27a-41a), upon which
the court relied in dismissing the indictment as to respondent, is
likewise unreported.

                             JURISDICTION

   The judgment of the court of appeals (App. D, infra, 42a) was
entered on November 9, 1982, and a timely petition for rehearing was
denied on February 28, 1982 (App. E, infra, 43a).  On April 23, 1983,
Justice Rehnquist extended the time in which to file a petition for a
writ of certiorari until May 29, 1983.  The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

                           STATUTE INVOLVED

   18 U.S.C. 3231 provides in pertinent part:

         The district courts of the United States shall have original
      jurisdiction, exclusive of the courts of the States, of all
      offenses against the laws of the United States.

                          QUESTION PRESENTED

   Whether the district court correctly invoked "supervisory power" to
dismiss the indictment on the ground that conducting a trial would
impose an undue burden upon the court.

                               STATEMENT

   On March 25, 1976, respondent and 12 other defendants were charged
in a two-count indictment returned by the federal grand jury in the
District of Nevada with conspiracy to import hashish, a controlled
substance, into the United States, in violation of 21 U.S.C. 952(a),
960(a)(1) and 963, and conspiracy to possess that contraband with
intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 846.
Respondent was a fugitive for several years after the return of that
indictment.  See United States v. Gonsalves, 675 F.2d 1050, 1051-1052
(9th Cir. 1982).  He surrendered to federal authorities in Las Vegas
on August 28, 1980, and his case was set for trial.  On September 28,
1980, respondent moved to dismiss the indictment on the grounds that
previously had been stated by the district court in 1976 in entering
judgments of acquittal as to three of the other defendants charged in
the indictment.  On December 17, 1980, the district court (Foley, J.),
invoking "discretionary supervisory powers," dismissed the indictment
as to respondent.  The court stated that the indictment was "a complex
monstrosity," and that dismissal was warranted for the "reasons
articulated in this Court's (prior) order and judgment of acquittal"
as to the three defendants previously prosecuted (App. B, infra, 26a).
 The court of appeals affirmed.

   1.a. In December 1975 a grand jury sitting in Nevada returned a
three-count indictment, Cr. LV 75-198, charging respondent and 15
other individuals with conspiracy to import hashish and conspiracy to
possess hashish with intent to distribute, (Count I), importation of
hashish (Count II), and possession thereof with intent to distribute
(Count III).  /1/ Only three of the defendants, Richard Kenneth Brown,
Robert David Work, and Kent Giles Snyder, were apprehended at the
time.  The others were citizens of other countries and
nonextraditable, or (like respondent) fugitives.  After the government
voluntarily dismissed the two non-conspiracy counts pursuant to Fed.
R. Crim. P. 48(a), a motion was filed to dismiss the remaining count
on the ground that it charged two separate (albeit related) offenses
without separating them into counts, in violation of Fed. R. Crim. P.
8(a).  On February 26, 1976, the district court granted that motion
without prejudice to reindictment.  The district court also took the
occasion to complain about other aspects of the case presented to him:

         Count I of the indictment now dismissed names 16 defendants.
      Ten of the defendants are citizens of other countries and not
      amenable to the process of this Court, and according to the
      Government, there is no way they can be compelled to appear
      before this Court pursuant to treaty between the United States
      and the countries of which they are citizens.  Of the 6
      defendants that are citizens of the United States, only 3 are
      before the Court, the other 3 are fugitives and the Government
      cannot assure the Court as to whether or not pending bench
      warrants will ever be served upon them.  The indictment names
      some 14 co-conspirators who are not defendants and alleges 93
      separate overt acts alleged to have taken place in the United
      States and many foreign countries.

   The district court concluded:

      The Court hopes that in representing the matter to the Grand
      Jury United States Attorney Lawrence Semenza will make some
      effort at least to comply with the requirements of Rule 7(c)(1)
      /2/ and, in addition, to give the Court a case that is
      manageable for trial.  Count I of the indictment now dismissed
      is, to say the least, a monstrosity.

   b. Less than a month later, on March 25, 1976, the grand jury
returned another indictment, Cr. LV 76-39, based upon the scheme
previously charged.  /3/ The two-count indictment charged 13
defendants, including respondent, Brown, Work, and Snyder, with
conspiracy to import a controlled substance (hashish), in violation of
21 U.S.C. 952(a), 960(a)(1) and 963 (Count I) and conspiracy to
possess a controlled substance with intent to distribute, in violation
of 21 U.S.C. 841(a)(1) and 846 (Count II).  The twin conspiracies
charged each spanned the period March 4, 1973 to June 1, 1974.  Ten
overt acts were enumerated, and 17 unindicted co-conspirators were
named.

   The indictment charged that defendants repeatedly imported large
quantities of hashish.  As ultimately elaborated in the government's
trial memorandum submitted in connection with the scheduled trial of
defendants Brown, Work, and Snyder, five successive episodes of
importation were involved.  Each episode entailed shipment of
specially constructed oversized stereo speaker cabinets to a location
in Europe, transfer of large amounts of cash from central figures in
the United States to operatives in various European cities who
purchased the hashish, insertion of the contraband into plastic
inserts which were in turn installed in the stereo speaker cabinets,
shipment of the speaker cabinets to various United States cities by
air freight, and claiming of the cabinets and removal of their illicit
contents.  The last of these shipments was destined for Las Vegas but
was intercepted by federal agents, triggering the investigation that
produced the 1975 and 1976 indictments.

   The case was ready for trial in the fall of 1976.  Defendants
Brown, Work, and Snyder were still the only ones who could be located
for trial.  The court allowed the motions that had previously been
filed attacking the earlier indictment to be refiled in this case but
did not act upon them before impaneling a jury and entertaining
opening statements on September 21, 1976.  /4/ The next morning,
however, rather than proceeding with the government's case as
scheduled, the district court invited the defendants to move for
judgments of acquittal based on the government's opening statement and
trial memorandum (App. C, infra, 30a).

   Observing that "I read the trial memorandum last night, I hadn't
read it before" (App. C, infra, 29a), the district judge went on to
explain at considerable length that he was unwilling to proceed with
trial (id. at 30a-41a).  His remarks made three interrelated points:
(1) that the government should have charged each of the major episodes
described in the government's trial memorandum as a separate
conspiracy (id. at 31a-34a, 38a, 41a);  (2) that if the charges had
been so divided venue would not lie in Nevada as to several of the
sub-offenses that could have been charged (id. at 31a, 38a, 41a);  and
(3) that the case was, in any event, too complex and unmanageable to
try, and the indictment would accordingly be dismissed under the
inherent supervisory power the court believed it possessed (id. at
34a-35a, 38a-40a).  The latter theme was dominant in the court's
remarks.  Also interspersed throughout the court's remarks were
comments reflecting strained relations between the individual district
judge presiding and United States Attorney Lawrence Semenza.

   Because of the extraordinary nature of the district court's
explanation of its ruling, we review these comments in some detail.

   The district court commenced (App. C, infra, 30a):

      (I)n the Alice in Wonderland mind of Lawrence Semenza, who is
      United States Attorney for Nevada, we have conjured up here a
      massive conspiracy.  This isn't the first time Mr. Semenza, in
      his own inimitable way, has conjured up a massive conspiracy.
      Back in 1974, I spent a whole summer, missed the Judicial
      Conference, trying one of Larry Semenza's dreams * * *.

   The district court recounted this prior experience in trying an
elaborate multi-defendant drug case.  The court singled out repetitive
cross-examination and the rudeness of the defendants' counsel as the
signal difficulties of the earlier trial (ibid).  The court stated
(ibid.), "Mr. Semenza sat in that chair and smiled.  I think he likes
to concoct this type of monstrosity."

   The court then proceeded to review the sequence of events laid out
in the government's trial memorandum, suggesting at intervals how they
could have been divided into separate conspiracies for purposes of
prosecution (in some instances in other judicial districts), noting
the unavailability of many of the defendants for trial, and continuing
its criticism of the United States Attorney (App. C, infra, 31a-34a).
/5/ Concluding this review, the court stated (id. at 34a):

      I haven't done any research, but I am going to grant the motion
      (to acquit) based on the, and it is so ordered that it is
      granted, based on the opening statements and the trial brief, on
      the grounds that the court had no jurisdiction.  And on the
      further ground that this type of a monstrosity, unmanageable
      monstrosity, does not have to be tried by Federal Judges.  /6/

   The district court continued (id. at 35a):

         (T)his type of conspiracy is unmanageable trialwise.  I don't
      know if there is any case law to support me, I think that a
      trial judge is not an umpire and courts have said this.  A
      Federal trial Judge can participate to the extent it is
      necessary to bring order out of chaos, and to the extent that it
      is necessary to a fair trial and comment on the evidence and so
      forth.  He has management powers, he is not an umpire calling
      all the balls and strikes as some of our poor state courts.

         And when something like this comes in, the court has the
      inherent authority I am going to hold * * * to dispose of this
      kind of thing.  It is quite apart from jurisdiction.

   Foreseeing the likelihood of a government appeal from its action,
the district court was vague about the legal ground for the ruling
(ibid.):

      I will allow counsel to think about it and read what the
      government says in their brief if they do take it to appeal and
      then leave open any other reasons to support me.  But it is the
      kind of thing that should not be tried or allowed.

   In view of its criticism of the United States Attorney, the court
stated to the Assistant United States Attorneys prosecuting the case
(App. A, infra, 36a):  "I don't expect a response from government
counsel, you have got to be loyal to the man you are working for." The
prosecutors nevertheless sought leave to go forward with their
evidence, arguing that they would be able to establish the existence
of a single overall conspiracy, and observing that if the government
failed to sustain its burden in this regard a motion for acquittal
could be granted at the close of the government's case.  The court
declined to consider this procedure, stating (ibid.), "I am not going
to waste two or three weeks.  I have got other things to do and so
have you and the other counsel." The court appeared to acknowledge
that whether the acts charged were part of a single conspiracy was a
factual question (id. at 37a-38a).  The court insisted, however (id.
at 38a):

      You are misunderstanding, I am not saying there is no theory * *
      * for this.  I say it is a monstrosity, it is unmanageable, it
      is not the kind of thing that a court has to put up with and it
      should be broken down.

   After advising the prosecutors in considerable detail as to how the
prosecution should have been handled (App. C, infra, 38a), the court
again refused to allow the government an opportunity to prove that the
overall conspiracy charged had occurred, making clear that it was
unwilling to try the case in any event (id. at 39a):

      You are not going to offer any evidence.  If the Court of
      Appeals reverses this finding and sends it back for trial, I
      won't try it.  I will find some young Judge that has got more
      patience and energy than I have, to come in and try it.

   The district court never explained what it was that would make the
trial of Brown, Work, and Snyder on the conspiracy indictment returned
by the 1976 grand jury unmanageable.  In discussing a prior experience
with a multi-defendant drug conspiracy trial, the court made clear
that it preferred that the case be tried elsewhere (App. C, infra,
40a).  The court appears, moreover, to have lost sight of the fact
that there were only three defendants before it for trial (id. at
39a):

         THE COURT:  * * * I don't think that the court has to sit
      carte blanche -- let's suppose that somewhat like the (earlier)
      case that all the defendants were found here and they all had
      different lawyers.  Have you ever been through one of those?
      Mr. Sheridan (counsel) for defendant Snyder), I know you better
      than those other gentlemen.  Have you ever seen one of those
      tried?

         MR. SHERIDAN:  Yes, your honor.

         THE COURT:  They are horrible.  They are unmanageable.
      You've got how many defendants, eleven?

         MR. SHERIDAN:  Thirteen.  I think and seventeen unindicted
      co-conspirators.

         THE COURT:  You have got eleven cross-examiners for each
      witness.  * * *

   The court acknowledged (App. C, infra, 39a) that massive
conspiracies do exist, and did not explain why the three defendants
before it should not go to trial upon the indictment.  Instead, the
court again suggested that the case should have been prosecuted
elsewhere, renewed its sharp criticism of the United States, and
finished with a suggestion that it commence general supervision of the
prosecutorial decisions of the United States Attorney (id. at 40a):

         (N)o, you see they all came from Las Vegas and that is how I
      got (this case).  Another one of Mr. Semenza's Alice in
      Wonderland dreams.  And they are that.  They are ridiculous in
      concept.  I don't know what the matter is, I don't know how he
      thinks.  I think he has some kind of sense of delight in
      conjuring these things up, creating these massive puzzles and
      saying, "Let's see how Judge Foley can handle that." I don't
      know what is going on, but I will tell you this much, I'm not
      going to put up with it any more.  Please God, we'll have a
      change of administration and he'll be gone.  /7/ I don't know
      about that either, but I'm not going to put up with Semenza any
      more.

         So I won't try this.  If the Court of Appeals should say that
      I am wrong, I don't think they are going to, and this case comes
      back, I won't try it.  And I won't try any more of Larry
      Semenza's cases that are this ill.  I'm going to have to work
      out some system when I get copies of the indictment where I can
      demand in advance a trial brief so I can see what we are into
      before we go through all the time and energy, the motion stage
      and impanelling the jury and so forth.

   The motions for acquittal was granted (id. at 41a).

   c. The government took an appeal from the judgments of acquittal,
arguing that there would be no Double Jeopardy bar to further
proceedings after the "acquittal" because the grounds for acquittal
had no bearing on the question of guilt or innocence, and the "trial"
had been a sham.  On May 4, 1977, however, the court of appeals
dismissed the government's appeal on double jeopardy grounds (see App.
A, infra, 9a).  /8/

   2.a. As previously noted, proceedings directly involving respondent
commenced when he surrendered to federal authorities in August 1980.
Respondent moved to dismiss the indictment for the reasons given by
the district court in acquitting Brown, Work, and Snyder in 1976.
Respondent also argued that the trial would be protracted, with many
government witnesses and an extensive defense case, and that such a
prosecution was unwarranted given what he characterized as his minor
role in the alleged conspiracy.  Finally, respondent urged that the
government was collaterally estopped from opposing dismissal by the
order entered in the earlier prosecution.

   The district court granted the motion to dismiss on December 17,
1980 (App. B, infra, 24a-26a).  The court declined to rely upon
collateral estoppel (id. at 25a) and appears to have eschewed any
suggestion that the indictment charged multiple conspiracies or that
venue was improper, relying exclusively upon the supervisory power
rationale for dismissal asserted in 1976 (id. at 26a;  citations
omitted):

         This court is well aware that a conspiracy prosecution may be
      brought in any district in which any act in furtherance of the
      conspiracy was committed by any of the conspirators, even though
      some of them were never physically present there.  * * * And the
      actions in Las Vegas of Ernest Franz Combs, Jr., an indicted
      coconspirator, could be used to establish the necessary overt
      act within this district.  However, the problem in Brown (the
      prosecution of Brown, Work and Snyder) was that the indictment
      was such a complex monstrosity that this Court decided that it
      should have been broken down into several smaller more
      manageable indictments.  There was simply no good reason for
      those defendants to be indicted in this district given their
      alleged roles in the government's conspiracy theory.  This Court
      is confronted with that same problem with the indictment against
      Gonsalves.

         Therefore, for the reasons articulated in this Court's
      September 21, 1976 order and judgment of acquittal as to
      defendants Brown, Work and Snyder, this Court hereby exercises
      its discretionary supervisory powers and dismisses the
      indictment as against Gonsalves.  /9/

   b. The government appealed and, nearly two years later, the court
of appeals affirmed.  It stated:  "Our task is to determine whether
the dismissal of the indictment was a proper exercise of supervisory
power by the district court" (App. A, infra, 10a).  The court of
appeals recognized that the dismissal of the indictment in this case
did not rest upon any infringement of respondent's legal rights (id.
at 10a, 13a, 14a).  Nevertheless, the court espoused a broad doctrine
of supervisory authority vested in the district courts "to do justice
in particular fact situations" (id. at 11a).  Recognizing that
dismissal of an indictment absent legal grounds for doing so may
"encroach on the prosecutor's prerogatives" (id. at 12a) and implicate
separation of powers concerns (id. at 14a), the court invoked a
principle of "checks and balances," said to be implicit in the
Constitution, as a source of supervening authority (id. at 15a-16a).
Citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the court
stated (id. at 16a):  "It is clear that Article III authorizes the
judicial branch to review the operations of the executive and
legislative branches" and concluded (ibid.):

      The judiciary therefore should use its supervisory power to
      maintain its own institutional integrity, including the ability
      to administer an effective criminal justice system * * *

   Turning to the particular case presented, the court of appeals
stated:  "The District Court in this case had ample factual and legal
basis upon which to conclude that the indictment pursued by the
prosecutor constituted a serious intrusion into the judiciary's
interest in the fair administration of the criminal justice system"
(id. at 19a).  It suggested that the transcript of the district
court's 1976 oral ruling acquitting defendants Brown, Work, and Snyder
reflected the judge's experience with the problems of managing
"massive conspiracy trials" (id. at 18a).  The court also invoked
Second Circuit decisions noting the risks of appellate reversal
created by use of broad conspiracy indictments (id. at 18a-19a).

   The court of appeals explained its conclusion that dismissal was
warranted here only in the most general terms (App. A, infra, 19a-20a;
 footnote omitted):

         Our own review of the record, and indeed our mere recitation
      of the elaborate facts of the conspiracy outlined in the
      indictment * * * show that the facts here justified the
      conclusion that to allow prosecution on this indictment would
      "gravely impair the basic function of" the District Court.

         The court was not required to ignore the practical
      considerations attendant to a trial of the size and complexity,
      e.g., the innumerable pretrial motions, the occupation of weeks
      of the court's busy calendar, the superhuman tasks facing the
      jury and the likelihood of a mistrial.  On the facts of this
      case the judge had a solid basis upon which to find the prospect
      of these horrors real and the resulting disruption of the
      judicial process great.

Purporting to apply a balancing test weighing these considerations
against the value of prosecutorial discretion (id. at 20a), the court
of appeals concluded that "the degree of encroachment upon the
prerogatives of the prosecutor that a dismissal entails in this case
is minimal" because the dismissal was without prejudice and left the
prosecutor free to seek reindictment upon terms charging separate
conspiracies of less global scope in other venues (id. at 20a & n.13).

                   REASONS FOR GRANTING THE PETITION

   The dismissal of the indictment in this case was not based on any
finding that it failed to state an offense triable in the United
States District Court for the District of Nevada or that trial on the
indictment would violate any right of respondent's.  Rather, it was
based on vaguely identified "supervisory powers" and considerations of
judicial convenience.  By upholding the dismissal, the decision of the
court of appeals effects an unprecedented shift of authority to
determine whether and against whom criminal charges should be brought,
and the nature of those charges, from the Executive Branch (and the
grand jury), where it has heretofore resided, to the district courts.
This transfer finds no support in the decisions of this Court
identifying the limits and purposes of the supervisory power and is
contrary to this Court's teaching that "(t)he supervisory power merely
permits federal courts to supervise "the administration of criminal
justice' among the parties before the bar." United States v. Payner,
447 U.S. 727, 735 n.7 (1980), quoting McNabb v. United States, 318
U.S. 332, 340 (1943).  Nor has any decision of any other court of
appeals purported to arrogate a similar authority to the judiciary.

   The court of appeals' decision is also contrary to other
fundamental principles established by this Court's decisions.  First,
the court of appeals' decision disregards the "virtually unflagging
obligation of the federal courts to exercise the jurisdiction given
them." Colorado River Water Conservation District v. United States,
424 U.S. 800, 817 (1976);  see also England v. Louisiana State Board
of Medical Examiners, 375 U.S. 411, 415 (1964).  Second, the court of
appeals' reasoning that dismissal of the indictment was permissible
because different charges could still be proffered in other venues
ignores the fundamental rule of prosecutorial discretion:

      In our system, so long as the prosecutor has probable cause to
      believe that the accused committed an offense defined by
      statute, the decision whether or not to prosecute, and what
      charge to file or bring before a grand jury, generally rests
      entirely in his discretion.

   Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).  Accordingly, the
district courts do not possess authority -- however it may be labeled
-- to determine that trial of defendants upon legally valid charges
pressed by the prosecutor and the grand jury would impose an undue
burden upon the courts.

   Even if such authority were available in extraordinary
circumstances, the record of this case provides no basis for its
application.  It is inconceivable that the trial of a single defendant
upon a two-count indictment could present an unmanageable task for the
district court.  Indeed, neither the district court nor the court of
appeals identified any basis in the record of this case for concluding
that the trial would entail unusual difficulties.  Moreover, the
record reveals with painful clarity that the true basis for the
district court's ruling was its view that the prosecutorial practices
of the government generally should be subject to its control, together
with the individual trial judge's disapproval of the United States
Attorney's prosecutorial policies.

   1.a. There is no precedent for the exercise of supervisory power
sanctioned by the court of appeals in this case.  It is established
that supervisory power does not arm "the federal judiciary (with) a
'chancellor's foot' veto over (prosecutorial) practices of which it
d(oes) not approve" (United States v. Russell, 411 U.S. 423, 435
(1973)).  As the Court stated in Russell (ibid.):

      The execution of the federal laws under our Constitution is
      confided primarily to the Executive Branch of Government,
      subject to applicable, constitutional and statutory limitations
      and to judicially fashioned rules to enforce those limitations.
      /10/

   As the Court cautioned in Payner, supra, 447 U.S. at 735 n.7,
quoting McNabb v. United States, supra, 318 U.S. at 332, "(t)he
supervisory power merely permits federal courts to supervise 'the
administration of criminal justice' among the parties before the bar."
There is no suggestion in this Court's decisions (or those of the
other courts of appeals) that supervisory authority exists to
determine which parties should be prosecuted or to determine (other
than by reference to the pertinent legal rights of defendants) what
the charges against them should be.  /11/

   That the decision of the court of appeals overstepped the confines
of the supervisory power doctrine is confirmed by this Court's recent
decision in United States v. Hasting, No. 81-1463 (May 23, 1983).
There the Court described the supervisory power as allowing federal
courts "within limits, (to) formulate procedural rules not
specifically required by the Constitution or the Congress" (slip op.
6).  Of course, the dismissal of a legally valid indictment,
sanctioned by the court of appeals in this case, rests not upon some
rule governing the conduct of proceedings before a court, but upon the
district court's view that trial of the case itself does not comport
with the public interest.  That such a determination overreaches the
boundaries of the courts' supervisory authority is evident from
consideration of the purposes of the supervisory power doctrine
identified by the Court in Hasting (slip op. 6;  citations omitted):

      The purposes underlying use of the supervisory powers are
      threefold:  to implement a remedy for violation of recognized
      rights * * *;  to preserve judicial integrity by ensuring that a
      conviction rests on appropriate considerations validly before
      the jury * * *;  and finally, as a remedy designed to deter
      illegal conduct * * *.

   None of these purposes is served by the dismissal of this case.
The courts below did not purport to identify any violation of
respondent's rights that would result from bringing him to trial upon
the indictment in this case.  And the rationale of the court of
appeals for sanctioning dismissal bears only a semantic resemblance to
the judicial integrity concerns recognized in Hasting, for neither
court below identified any consideration that would have been
improperly presented to the jury simply because respondent was to be
tried upon the pending indictment.  Finally, there is no suggestion
whatsoever that the prosecution of this case involves illegal conduct
by prosecutors or other law enforcement personnel.

   b. The court of appeals' premise that supervisory power may be
employed to dismiss indictments where trial would impose burdens upon
a district court that are, in that court's judgment, unwarranted,
distorts the role of the federal courts in our constitutional system.
It does not denigrate the role of the judiciary to remember that the
function of the federal courts is "to say what the law is" with
respect to the cases before it, Marbury v. Madison, supra, 5 U.S. (1
Cranch) at 177, and to apply the law thus determined to the facts of
those cases as they are found to be.  In United States v. Nixon, 418
U.S. 683, 707 (1974), the Court recognized "the primary constitutional
duty of the Judicial Branch to do justice in criminal prosecutions."
This duty plainly cannot be fulfilled by refusal to try cases that the
courts determine to be unduly time consuming.  On the contrary, the
obligation of the federal courts to exercise the jurisdiction given
them is "virtually unflagging." Colorado River Water Conservation
District v. United States, supra, 424 U.S. at 817.  /12/ Here,
moreover, the jurisdiction of the district court is exclusive and
absolute.  18 U.S.C. 3231 provides in pertinent part:

         The district courts of the United States shall have original
      jurisdiction, exclusive of the courts of the states, of all
      offenses against the laws of the United States.

   The dismissal of the indictment in this case is accordingly "at war
with the unqualified terms in which Congress, pursuant to
constitutional authorization, has conferred specific categories of
jurisdiction upon the federal courts, and with the principle that
'When a Federal court is properly appealed to in a case over which it
has by law jurisdiction, it is its duty to take such jurisdiction.'"
England v. Louisiana State Board of Medical Examiners, 375 U.S. 411,
415 (1964), quoting Willcox v. Consolidated Gas Co., 212 U.S. 19, 40
(1909).

   The court of appeals grounded its decision upon the assertion that
"Article III authorizes the judicial branch to review the operations
of the executive and legislative branches" (App. A, infra, 16a).  This
fundamental premise is erroneous.  Article III empowers the federal
courts to decide only cases or controversies.  In doing so, the courts
are authorized "to say what the law is," Marbury v. Madison, supra, 5
U.S. (1 Cranch) at 177, and thus to declare that an Act of Congress is
unconstitutional, or that an executive act is unauthorized by
Constitution or statute, as in Youngstown Sheet & Tube Co. v. Sawyer,
supra, 343 U.S. at 585-589, or is otherwise contrary to law.  But
neither these cases, upon which the court of appeals relied (App. A,
infra, 16a), nor any other authority of which we are aware, suggests
that the courts are established to oversee the functions of the
Executive or Legislative Branches generally, or specifically to review
the prosecutorial discretion of the United States Attorneys.  /13/ Nor
does the principle of "checks and balances" that the court of appeals
invoked as a counterweight to the doctrine of separation of power
(ibid.) support such general supervision of the prosecution by the
district court.  That concept is merely descriptive of the
arrangements embodied in our Constitution.  It has been applied, inter
alia, to describe the function of judicial review.  It may also
plausibly be applied to describe the exercise of the courts' powers
under the Constitution and various statutes and rules that govern
criminal proceedings -- and in that special sense to check the power
of the Executive as prosecutor and to hold Congress to constitutional
limits in defining offenses.  But the structural principle of checks
and balances said to be embodied in our Constitution plainly cannot
form an independent source of authority for any branch to exercise
discretionary control over the activities of another branch, lest the
actual allocation of authority in the Constitution be disrupted.

   c. The court of appeals reasoned that the district court's
dismissal of the indictment in this case does not seriously impair the
prerogatives of the prosecutor because the government remains free to
indict on charges differently framed, in other venues (App. A, infra,
20a & n.13).  The court of appeals' reasoning fails, however, to
recognize that the constitutional authority of the Executive,
exercised through the prosecutor in conjunction with the grand jury,
extends not only to deciding whether to prosecute, but also to the
"select(ion) (of) the charges against the accused." United States v.
Goodwin, No. 80-2195 (June 18, 1982), slip op. 11 n.11.  As the Court
explained in Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978):

      In our system, so long as the prosecutor has probable cause to
      believe that the accused committed an offense defined by statute
      the decision whether or not to prosecute, and what charge to
      file or bring before a grand jury, generally rests entirely in
      his discretion.

   See also United States v. Batchelder, 442 U.S. 114, 124 (1979);
United States v. Nixon, supra, 418 U.S. at 693, citing with approval
United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381
U.S. 935 (1965);  cf. Confiscation Cases, 74 U.S. (7 Wall.) 454,
457-459 (1869).  The decision of the court of appeals thus cuts to the
heart of the prosecutor's constitutional independence.  It also
undercuts the constitutional role of the grand jury in determining
what offenses are to be charged.

   The decisions of other courts of appeals recognize that the
prosecutor's charging decisions are not subject to judicial oversight
-- no matter what the procedural device by which it is sought.  United
States v. Brown, 481 F.2d 1035, 1043 (8th Cir. 1973) (sua sponte
dismissal of indictment);  Inmates of Attica Correctional Facility v.
Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973) (civil action to compel
federal prosecution);  Newman v. United States, 382 F.2d 479 (D.C.
Cir. 1967) (appeal from conviction based upon prosecutor's acceptance
of co-defendant's guilty plea to lesser offenses);  Smith v. United
States, 375 F.2d 243, 247 (5th Cir. 1967) (Federal Tort Claims Act
suit);  Powell v. Ketzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965)
(mandamus to compel prosecution);  United States v. Cox, supra (order
directing United States Attorney to draft and sign indictment).  Each
of these cases reflects an understanding of the respective roles of
court and prosecutor that is at odds with the view of the Ninth
Circuit in this case.

   d. In addition to the limitations upon the scope of the supervisory
power previously addressed, that power is limited by the paramount
authority of Congress to establish, within constitutional limitations,
practices and procedures and substantive rules to govern proceedings
in federal courts.  See, e.g., Palermo v. United States, 360 U.S. 343,
353 n.11 (1959).  The decision of the court of appeals, however,
effectively overrides the pertinent provisions of federal law that
establish grounds for dismissal of an indictment and related
procedures in managing a criminal trial.  As previously noted, the
discretionary power of dismissal (unrelated to rights of the
defendant) announced by the courts below is inconsistent with 18
U.S.C. 3231, which vests the district courts with jurisdiction over
all offenses against the United States.  Absent specific legal grounds
for dismissal of an indictment, such as failure to state an offense,
the assumption of vaguely defined "supervisory power" to dismiss the
indictment here is contrary to that grant of jurisdiction, as well as
to the substantive provisions that define the offenses charged, and
the statutory provisions punishing conspiracy to commit those
offenses, 21 U.S.C. 846 and 963.

   In addition, the supervisory authority claimed by the district
court effectively circumvents the provisions of the Federal Rules of
Criminal Procedure that govern the contents of indictments (Rule 7),
the joinder and severance of offenses and defendants (Rules 8 and 14),
and permissible venues for prosecution (Rule 18;  see also 18 U.S.C.
3237).  Neither the district court nor the court of appeals identified
any legal defect under these provisions or other previously recognized
legal principles that would warrant dismissal of the indictment.
Thus, the decision of the courts below "confer(s) on the judiciary
discretionary power to disregard the considered limitations of the law
that it is charged with enforcing." United States v. Payner, supra,
447 U.S. at 737.  "(T)he supervisory power does not extend so far."
Ibid.

   e. The decision of the court of appeals proceeds upon the erroneous
supposition that the supervisory power claimed by the district court
must be made available to ensure that federal prosecutors do not
destroy the courts' "ability to administer an effective criminal
justice system" by initiating unmanageable prosecutions (App. A,
infra, 16a).  There is no warrant for this remarkable assumption.  On
the contrary, the Department of Justice and the United States
Attorneys have every incentive to ensure that complex indictments are
not obtained except to the extent necessary and appropriate in
carrying out their constitutional duty to "take Care that the Laws be
faithfully executed" (Art. II, Section 3).  The resources and
personnel of federal prosecutors, like those of the judicial branch,
are limited.  /14/ Given these limited resources, federal prosecutors,
confronted by the lash of the Speedy Trial Act, have powerful reasons
to be selective about the matters presented to a grand jury.  /15/
Even apart from constitutional considerations, it is the prosecutor
who is best situated to make necessary decisions about the relative
priority of various cases and to determine whether the public interest
in effective administration of the criminal justice system as a whole
will be served by going to trial upon a particular indictment.  See
United States v. Lovasco, 431 U.S. 783, 792-795 (1977).  Conspicuous
by contrast is the "lack of judicially discoverable and manageable
standards" (Baker v. Carr, 369 U.S. 186, 217 (1962)) by which courts
can make these decisions.

   The court of appeals noted that the hazards of going to trial upon
the indictment in this case include the possibility of juror confusion
and the likelihood of a mistrial (App. A, infra, 20a & n.12).  Neither
of these outcomes serves the prosecutor's interest.  If the evidence
does not support conviction of one or more defendants in a multiple
defendant conspiracy case, appellate reversal will follow.  See, e.g.,
United States v. Bertolotti, supra.  A mistrial also leads to wasteful
expenditure of scarce prosecutorial resources.  There is no reason to
believe that federal prosecutors are so insensitive to these hazards,
and to the other incentives for selectivity in prosecution that
confront them, that it is necessary to invent a wholly unprecedented
supervisory power to prevent the filing of unnecessarily complex
indictments.

   2.a. Even if supervisory power were available in appropriate cases
to dismiss indictments determined to impose undue burdens upon
judicial resources, there was no basis whatsoever in the record of
this case for that extreme measure.  Neither the court of appeals'
opinion nor the district court's oral ruling identifies any
satisfactory basis for dismissal of the indictment.  The court of
appeals noted (App. A, infra, 20a;  footnote omitted) the following
"practical considerations attendant to a trial of this size and
complexity":

      innumerable pretrial motions, the occupation of weeks of the
      court's busy calendar, the superhuman tasks facing the jury, and
      the likelihood of mistrial.

   But the court of appeals did not explain why this case, more than
any other conspiracy charge, entails these hazards.  It plainly cannot
be the law that those who commit complex offenses are immune from
prosecution for the full scope of their criminal activity.  Moreover,
the indictment in this case is not in fact unusually complex, given
the nature of the offenses found by the grand jury to have probably
been committed.  The court of appeals, however, gave no consideration
to the nature of those offenses and the typically elaborate patterns
of international drug trafficking in upholding dismissal of the
indictment.

   There are no special factors in this case that suggest an unusually
complex or difficult motion practice.  And while we do not minimize
the burden of a major trial upon a busy court's calendar, it is the
role of the courts to shoulder this burden.  /16/ We are particularly
puzzled by the court's invocation of the problem of juror confusion
and the likelihood of mistrial.  Both courts below appear to have lost
sight entirely of the fact that respondent was to be the only
defendant at his trial.  /17/ Even if there had been multiple
defendants, there would be no basis to question the district court's
ability to instruct the jury carefully as to the need properly to
determine the guilt of each individual defendant in a conspiracy case,
an everyday occurrence in the federal courts.  Accordingly, the court
of appeals utterly failed to identify any consideration that sets this
case apart from a host of cases that are regularly tried by the
district courts.

   Nor did the district court identify any special considerations that
warranted its refusal to try this case when it granted "acquittals" to
defendants Brown, Work and Snyder in 1976.  Insofar as the court
commented on this subject at all, it pointed to particular
difficulties experienced in other cases that do not reflect any
problem of inherent unmanageability, especially on the facts of the
present case.  The court singled out the problem of repetitive
cross-examination (see pages 8-9, supra), but that had relatively
little bearing on the trial of Brown, Work and Snyder, and has no
bearing on the present case.  In any event, the federal courts possess
authority to limit repetitive cross-examination.  /18/ Contrary to the
district court's suggestion (see page 7, supra), the availability of
such authority to manage the proceedings before the court undercuts
the claimed authority simply to dismiss cases presenting management
difficulties.  See United States v. Hasting, supra, slip op. 6-7 &
n.5;  United States v. Morrison, 449 U.S. 361 (1981).

   b. The district court's recitation of grounds for invocation of
supervisory authority to dismiss the indictment in this case raises
concerns that go beyond its failure to identify special circumstances
that would warrant that extraordinary relief under the court of
appeals' analysis.  The district court's announced intention to
commence general supervision of the contents of indictments (App. C,
infra, 40a) is utterly inconsistent with the constitutional
independence of the prosecutor.  And it is perfectly clear from the
district court's remarks (id. at 31a, 38a, 41a) that the court
intended to impose upon the prosecutor its own notion of good
prosecutorial practice.  Equally disturbing are the repeated
statements by the district court that reflect its personal disapproval
of the individual United States Attorney's prosecutorial policies.
These considerations, which appear to have influenced the district
court's ruling, have no place in the exercise of judicial authority.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   JOSHUA I. SCHWARTZ

      Assistant to the Solicitor General

   JOHN FITCHTER DE PUE

      Attorney

   MAY 1983

   /1/ Respondent was not charged in Counts II and III.

   /2/ Fed. R. Crim. P. 7(c)(1) provides, in pertinent part:

      The indictment * * * shall be a plain, concise and definite
      written statement of the essential facts constituting the
      offense charged.

   /3/ Indictment Cr. LV 76-39 is reproduced as Appendix F, 44a-51a,
infra.

   /4/ It appears that the district court intended by its failure to
act to deny those motions (see App. C, infra, 34a).

   /5/ See, e.g., App. C, infra, 31a:

         Most prosecutors, ninety-nine out of a hundred lawyers that
      have any logic in their mind would have said, "Okay, that is one
      charge." * * * That is just the beginning of Mr. Semenza's
      dream.

   The court added (ibid.):  "I really wish the press were here,
perhaps that is just as well."

   See also App. C, infra, 34a:

         The theory, of course, in this mind of Mr. Semenza's "Yes,
      that they are working for Combs" (the "mastermind" of the
      conspiracy charged).  Well Combs might have a hundred and fifty
      other people working for him, importing, I don't know, it could
      be a half dozen other things not only involving controlled
      substances.  * * * But, if you follow the logic, the illogic of
      the mind of our United States Attorney, that is all one great
      conspiracy.  It is ridiculous.  * * * I fell for it once.  Damn
      near had a nervous breakdown with that trial.  It should have
      taken two or three weeks and I let one Los Angeles lawyer voir
      dire the jury and three days later, we are still trying to get a
      jury.  I remember that very well.

   /6/ At this juncture the court complained about what it regarded as
the subservience of grand juries to prosecutors and the rendition of
indictments based on hearsay evidence (App. C, infra, 34a).  In the
latter connection the court acknowledged this Court's decision in
Costello v. United States, 350 U.S. 359 (1956), but commented (App. C,
infra, 34a):  "It's going to change, it's going to have to."

   /7/ These proceedings occurred shortly before the 1976 presidential
election.

   /8/ The court of appeals, of course, acted without the benefit of
United States v. Scott, 437 U.S. 82 (1978).

   /9/ Only a minute order records the 1976 disposition.  Accordingly,
the court must have intended to invoke its oral ruling.

   /10/ The Court's comments in Russell were made in the course of
rejecting the suggestion that it give extra-constitutional,
extra-statutory scope to the entrapment defense -- in other words,
that it invoke a supervisory power.

   /11/ To the extent the court of appeals relied (App. A, infra,
18a-19a) upon the Second Circuit's decisions in United States v.
Sperling, 506 F.2d 1323, 1340-1341 (1974), cert. denied, 420 U.S. 962
(1975), and United States v. Bertolotti, 529 F.2d 149 (1975), that
reliance was misplaced.  In Sperling the court of appeals merely
cautioned the prosecutor that whenever the link between episodes of a
larger conspiracy is tenuous, there is a risk of appellate reversal of
convictions secured upon the global conspiracy charge.  506 F.2d at
1340-1341.  And in Bertolotti convictions were reversed because the
court of appeals found "no evidence linking (the illegal transactions
charged) together in a single overall conspiracy." 529 F.2d at 155.
The Second Circuit did not suggest on either occasion that the
district court possessed supervisory authority to prevent the
government from seeking to prove its case, which is what the district
court did here.

   /12/ To be sure, the holding of Colorado River Water Conservation
District was that the district court had properly declined to exercise
its jurisdiction in favor of concurrent proceedings in state court.
But the Court stressed that the circumstances presented were
"exceptional." 424 U.S. at 818.  More importantly, the issue was
whether the water rights involved would be adjudicated in state or
federal proceedings;  there was no suggestion that a federal court
might decline to exercise its jurisdiction when the result would be to
preclude altogether a determination of rights or liabilities.

   /13/ We note that the court of appeals' analysis in this aspect
rests primarily upon a student law review note, A Separation of Powers
Approach to the Supervisory Power of the Federal Courts, 34 Stan. L.
Rev. 427 (1982), the burden of which is that United States v. Payner,
supra, was wrongly decided by this Court.  34 Stan. L. Rev. at
449-451, 452.

   /14/ It bears mentioning that the alternatives to a complex,
multi-defendant indictment as a means of prosecuting a large-scale
conspiracy are either to refrain from indicting many persons believed
to have committed serious crimes or to break up the offense into a
number of separate indictments, each to be separately tried (as the
district court apparently would have preferred here).  It is far from
obvious, to say the least, that multiple trials requiring many of the
same witnesses to testify about the same core events would realize the
goal of economic allocation of scarce criminal justice resources.

   /15/ Significantly, 18 U.S.C. 3161(h)(8)(C) makes clear that trial
delay attributable to calendar congestion is not excludable from
Speedy Trial Act reckoning.

   /16/ There is no suggestion in the record that the district court
was actually unable to find time to try this case.  We note, in any
event, that Congress has made provision for the temporary reassignment
of judicial personnel within the federal system whenever that is
necessary to ensure that judicial business is accomplished.  See 28
U.S.C. (& Supp. V) 291(b), 292(b) and (d), and 294.

   /17/ See, e.g., App. A, infra, 18a:

      Of course, this problem -- of the Government attempting to force
      as many defendants as possible to trial in the same proceeding
      on the claim of a single conspiracy * * * is one not faced by
      judges in this circuit alone.

   /18/ Rule 611(a), Fed. R. Evid., gives the district courts broad
discretion to regulate "the mode and order of interrogating witnesses
and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (and) (2)
avoid needless consumption of time * * *." The courts of appeals have
repeatedly held that it is within a trial judge's discretion to bar
unnecessary duplicative cross-examination of government witnesses as
multi-defendant trials.  See, e.g., United States v. Coven, 662 F.2d
162, 170 (2d Cir. 1981), cert. denied, 456 U.S. 916 (1982);  United
States v. Praetorius, 622 F.2d 1054, 1061 (2d Cir. 1979), cert.
denied, 449 U.S. 860 (1980);  United States v. Miller 463 F.2d 600,
601 (1st Cir.), cert. denied, 409 U.S. 956 (1972);  Amsler v. United
States, 381 F.2d 37, 51 (9th Cir. 1967).  See also 3 J. Wigmore,
Wigmore on Evidence Section 782, at 183 (Chadbourn rev. 1970).

   Appendix Omitted