*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-30409

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL J. BOWLER;

WALTER L. SENTENN, JR.,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(CR-93-332-C)

_________________________________________________________________

(July 19, 1995)

Before KING, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Michael Bowler and Walter Sentenn appeal from the district

court's denial of their petition for a writ of habeas corpus.

Having reviewed the arguments, we remand to the district court with

instructions to vacate its order of denial and to dismiss their

petition.
 

1 The McCarran-Ferguson Act provides in the following

relevant part:

No Act of Congress shall be construed to invalidate,

impair, or supersede any law enacted by any State for

the purpose of regulating the business of insurance . .

. unless such Act specifically relates to the business

of insurance . . . .

15 U.S.C. § 1012(b).

2

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 17, 1993, Bowler and Sentenn were indicted on one

count of conspiracy to commit mail fraud and fourteen counts of

mail fraud pursuant to federal statutes. The indictment alleged

that Bowler and Sentenn created the fraudulent appearance of

solvency for their insurance company, Pelican State Mutual

Insurance Company, when Pelican was in fact insolvent. By

maintaining this misrepresentation of solvency, the indictment

alleged that Bowler and Sentenn obtained salaries, expense

accounts, rental cars, health insurance, and other monetary

benefits for their personal gain.

On October 12, 1993, Bowler and Sentenn filed a motion to

dismiss the indictment on the grounds that the district court

lacked jurisdiction to prosecute them for their allegedly illegal

conduct in operating an insurance company. Bowler and Sentenn

relied on the McCarran-Ferguson Act,1 see 15 U.S.C. §§ 1011 et

seq., to argue that the federal district court lacked subject

matter jurisdiction over the underlying indictment and the criminal

trial. On January 19, 1994, the district court denied the motion.
 

2 There is no certificate of probable cause ("CPC") in

the record, and neither the district court nor the parties

mention the need for a CPC or the absence of a CPC. We assume,

without deciding, that denials of habeas petitions filed pursuant

to § 2241 require a CPC to appeal. Construing Bowler's and

Sentenn's notice of appeal as an application for a CPC, we grant

the application and allow the appeal to proceed.

3

On March 23, 1995, Bowler and Sentenn filed a pre-trial

"Petition for Writ of Habeas Corpus" pursuant to 28 U.S.C. §

2241(c)(1) and (2). The district court denied the petition, noting

that the issue presented was whether federal charges could be

brought in light of the McCarran-Ferguson Act, and stating that:

[n]otwithstanding the protestations of petitioners to the

contrary, this issue was squarely raised in a previously

filed motion to dismiss and was squarely addressed by

Judge McNamara in January 1994 when he found that "the

mail fraud prosecution against Bowler and Sentenn does

not interfere with, impair, supersede or invalidate any

state law regulating the business of insurance" and

denied the motion.

Bowler and Sentenn appeal from this determination.2

II. STANDARD OF REVIEW

In a federal habeas corpus proceeding, we review the district

court's legal determinations de novo. See, e.g., Johnson v.

Puckett, 929 F.2d 1067, 1070 (5th Cir. 1991).

III. ANALYSIS AND DISCUSSION

Bowler and Sentenn argue that their pre-trial writ of habeas

corpus was improperly dismissed. As they maintain, the petition

involved serious questions "of the separation of powers and the

effect of the Tenth Amendment." They contend that the appeal is

properly before us, and their petition once again emphasizes that
4

the government's attempts to prosecute them are pre-empted by the

McCarran-Ferguson Act.

A pre-trial writ of habeas corpus is only available to a

defendant in extraordinary circumstances. In Johnson v. Hoy, 227

U.S. 245, 247 (1913), the Supreme Court made the following

observation:

The writ of habeas corpus is not intended to serve the

office of a writ of error even after verdict; and, for

still stronger reasons, it is not available to a

defendant before trial, except in rare and exceptional

cases . . . . This [case] is an effort to nullify that

rule, and to depart from the regular course of criminal

proceedings by securing from this court, in advance, a

decision on an issue of law which the defendant can raise

in the district court, with the right, if convicted, to

a writ of error on any ruling adverse to his contention.

That the orderly course of a trial must be pursued and

the usual remedies exhausted, even where the petitioner

attacks on habeas corpus the constitutionality of the

statute under which he was indicted, was decided in

Glasgow v. Moyer. That and other similar decisions have

so definitively established the general principle as to

leave no room for further discussion.

(emphasis added) (citations omitted). In the later case of Stack

v. Boyle, 342 U.S. 1 (1951), the Supreme Court reiterated its

position:

In this case, however, petitioners did not take an appeal

from the order of the District Court denying their motion

for reduction of bail. Instead, they presented their

claims under the Eighth Amendment in applications for

writs of habeas corpus. While habeas corpus is an

appropriate remedy for one held in custody in violation

of the Constitution, the District Court should withhold

relief in this collateral habeas corpus action where an

adequate remedy available in the criminal proceeding has

not been exhausted.

Id. at 6-7 (citations omitted). 

We have adopted this position in our circuit as well. In

United States v. Saegert, 251 F.2d 59 (5th Cir. 1957), we noted
 

3 By way of example, the Ninth Circuit was faced with

such a "rare and exceptional" case. In Mannes v. Gillespie, 967

F.2d 1310, 1312 (9th Cir. 1992), the court made the following

observation:

The Fifth Amendment's protection against double

jeopardy -- "nor shall any person be subject for the

same offense to be twice put in jeopardy of life and

limb" -- is not against being twice punished, but

against being twice put in jeopardy. Because full

vindication of the right necessarily requires

intervention before trial, federal courts will

entertain pre-trial habeas petitions that raise a

colorable claim of double jeopardy.

(citations omitted) (internal quotation omitted).

5

"the settled principle that a writ of habeas corpus may not be used

. . . as a substitute for the ordinary proceedings of a trial

court." Id. at 60. In addition, we made the following

observation:

"[T]he writ is not intended as a substitute for the

functions of a trial court. . . . Habeas Corpus is not

ordinarily available in advance of trial to test the

constitutionality of a statute under which the petitioner

was indicted, or even to determine every jurisdictional

question which may arise."

Id. at 60 n.2 (quoting 25 Am. Jur. Habeas Corpus §§ 17, 21)

(collecting cases); see also Warner v. Zent, 997 F.2d 116, 131 (6th

Cir. 1993) ("`Habeas corpus is not intended as a substitute for

appeal . . . . '") (quoting Wright v. West, 112 S. Ct. 2482, 2490

(1992)); cf. Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993)

("A § 2255 petition may not be used as a substitute for direct

appeal.").

The instant case is not a "rare and exceptional" situation3

that requires us to consider a pre-trial writ of habeas corpus.
6

Bowler and Sentenn are clearly asserting that the McCarran-Ferguson

Act pre-empts the federal charges against them, and they contend

that the allegations are "a matter of Louisiana law, to be

determined in accordance with the standards established by that

law." Even though the district court denied relief on these

grounds, Bowler and Sentenn can proceed to trial and can raise this

argument again on direct appeal. There is simply no exigency,

urgency, or any other reason for us to allow the habeas petition as

a substitute for direct appeal in this matter. Instead, we

conclude that the merits of Bowler's and Sentenn's arguments should

be presented and reached "in the orderly administration of

justice." Saegert, 251 F.2d at 61.

IV. CONCLUSION

Following the lead of the Supreme Court in Stack, 342 U.S. at

7, and of our own decision in Saegert, 251 F.2d at 60-61, we REMAND

to the district court with instructions to VACATE its order denying

Bowler's and Sentenn's petition for a writ of habeas corpus and to

DISMISS the petition without prejudice.