Stans v. Gagliardi, 326
| Decision Date | 11 September 1973 |
| Docket Number | 73-2293.,327,No. 326,Dockets 73-2291,326 |
| Citation | 485 F.2d 1290 |
| Parties | Maurice STANS and John N. Mitchell, Petitioners, v. Hon. Lee P. GAGLIARDI, United States District Judge, and United States of America, Respondents. UNITED STATES of America, Appellee, v. John N. MITCHELL and Maurice Stans, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Walter J. Bonner, Edward C. O'Connell, John P. Diuguid, Paul R. Dean, Richard W. Boone, Washington, D. C. (Greenhill & Speyer, New York City, Carr, Bonner, O'Connell, Kaplan, Thompson & Diuguid, and Wilkinson, Cragun & Barker, Washington, D. C., of counsel), for petitioner-appellant Stans.
Curtis, Mallet-Prevost, Colt & Mosle, New York City (Peter Fleming, Jr., and John E. Sprizzo, New York City, of counsel), for petitioner-appellant Mitchell.
Paul J. Curran, U. S. Atty., S. D. N. Y. (John R. Wing, James W. Rayhill, John A. Lowe, Kenneth R. Feinberg, John D. Gordon, III, Asst. U. S. Attys., of counsel), for the United States.
Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
John N. Mitchell and Maurice H. Stans, defendants to an indictment in the District Court for the Southern District of New York, ask us to vacate, by way either of appeal or of mandamus, a ruling of Judge Gagliardi, which refused to postpone the beginning of the trial from September 11 to a later day. Although counsel had indicated willingness to proceed on October 4, they urged that a later date, say in early November after conclusion of the Senate Watergate hearings, would be preferable.
Defense counsel represents that although the Government turned over many documents on July 16, these were not comprehensible until an explanation given by the Government on July 27; that discovery by the Government was not completed until August 29 (or, indeed, later), only thirteen days before the beginning of trial; that more time is needed to analyze this data; that an amended bill of particulars was filed only yesterday; that much of the time of counsel has had to be devoted to the preparation and argument of motions; and that it has been impossible to interview many potential witnesses. Even more impressively, they urge that much of the attention of the defendants since the return of the indictment has had to be devoted to inquiries by the Senate Committee and the special prosecutor arising out of the Watergate incident, to testifying before the Senate Committee, and to matters relating to a multitude of civil suits and other proceedings, and that all this has made serious inroads into the time available to the defendants for consultation with counsel in preparing their defense to this indictment. Indeed, counsel tell us that if the case should go to trial this afternoon as scheduled, they will be obliged to answer "Not ready." We are convinced this representation is made in complete good faith.
Had we been in the position of the trial judge, we would have granted at least the three-week extension to October 4 that was requested. The indictment was returned only on May 10, 1973, and a trial beginning October 4 would have been well within the six months period fixed by the district court's speedy trial rules even for cases not presenting exceptional circumstances. To be sure, the six months are a maximum (except as otherwise provided in the rules) and an even speedier trial is desirable if this is consistent with proper preparation on both sides. Moreover, as we made clear in announcing the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases in May, 1971, the policy of speedy trial of criminal cases, as distinguished from the constitutional requirement, is a matter of public interest as well as of the interest of defendants. On the other hand, these considerations must be carefully weighed against a defendant's claim of need for a short delay to permit proper preparation and the risk that overruling such a claim may undermine a conviction obtained after many weeks of trial.
It should scarcely be decisive against defendants' contentions that, as Judge Gagliardi observed, this is his oldest criminal case. Although the judge is to be commended for being abreast of his criminal docket, this success has no bearing on the crucial issue whether defendants can be properly prepared for a trial on September 11. Also we cannot agree with the judge's view that trial of this 46-page, 16-count indictment, one a conspiracy count, supplemented by a 60-page bill of particulars, "is a very simple case." The only reason adduced for proceeding on September 11 rather than a somewhat later date which we find at all persuasive is the desire to select a jury in the interval before resumption of the Senate Committee hearings. However, this is somewhat counterbalanced by the fact that if the trial begins before completion of the Senate hearings, now scheduled for early November, the jury will be sequestered as the Government has requested.
In a prosecution of this sort which will receive nationwide attention, it is peculiarly important that justice not only should be done but should seem to be done. A postponement of trial for a few weeks would be a small price to pay for stilling complaints, even if they were unjustified, that these defendants had not been given a fair opportunity to prepare their case and for avoiding an issue which will almost certainly continue during the trial and will be presented on appeal if defendants should be convicted. While the high positions formerly occupied by the defendants entitle them to no more consideration than is accorded the ordinary citizen, they deserve no less.
We have thought it proper to state these views so that Judge Gagliardi may again consider the matter as we hope he will. However, Judge Feinberg and I do not believe we have the power to enforce them. So far as defendants are concerned, our jurisdiction by way of appeal in...
To continue reading
Request your trial
-
U.S. v. Lester, s. 83-1242
...1510 are mutually exclusive. See United States v. Mitchell, 372 F.Supp. 1239, 1251 (S.D.N.Y.), appeal dismissed sub nom. Stans v. Gagliardi, 485 F.2d 1290 (2d Cir.1973). We Admittedly, Congress enacted section 1510 "to plug a loophole in the protection the Government can provide to its own ......
-
United States v. Slawik
...and 11. Accord, United States v. Mitchell, 372 F.Supp. 1239, 1255-1256 n. 26 (S.D.N.Y.1973), appeal dismissed sub. nom. Stans v. Gagliardi, 485 F.2d 1290 (C.A.2, 1973); United States v. Daddano, 432 F.2d 1119, 1125 (C.A.7, 1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (19......
-
Kaufman v. Edelstein
...States v. DiStefano, 464 F.2d 845 (2 Cir. 1972), where Judge Mulligan and the writer constituted the majority, and in Stans v. Gagliardi, 485 F.2d 1290 (2 Cir. 1973), where Judge Feinberg and the writer were the majority.11 The inner quote contains the words of Lord Hardwicke. See 8 Wigmore......
-
United States v. Bonnell
...draw the analogy by citing United States v. Mitchell, 372 F.Supp. 1239 (S.D.N.Y.1973), appeal dismissed sub nom. Stans v. Gagliardi, 485 F.2d 1290 (2d Cir. 1973), for the proposition that the fruits of privileged communications should be suppressed. In Mitchell, Kenneth Parkinson, attorney ......