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August 16, 1972

Nicholas DiSTEFANO et al., Defendants

Metzner, District Judge.

The opinion of the court was delivered by: METZNER

METZNER, District Judge:

The government moves to reinstate an indictment which was dismissed by this court on January 24, 1972, for failure to prosecute.

 The indictment was originally filed on December 8, 1970, and charged defendants Nicholas DiStefano, Wilfredo Moreno, Edmund Rosner and Frank Russo with subornation of perjury and conspiracy to suborn perjury. The offenses charged allegedly arose out of the criminal trial of one Pedro Hernandez in March of 1967. Hernandez was convicted of violating the federal narcotics laws, and the government claims that the alibi defense which he entered at trial was manufactured by his lawyer, defendant Rosner with the aid of defendants DiStefano, Moreno and Russo.

 On January 25, 1971, Rosner filed a motion to dismiss for delay in bringing the indictment. This motion was denied by the court on March 22, 1971, and at the same time various motions by the defendants for discovery and bills of particulars were disposed of.

 On March 24, 1971, a pretrial conference was held to set a trial date. The government represented that it was ready to go to trial in April or May, but because of the trial commitments detailed by the four defense counsel the court set Monday, November 1, 1971, as the trial date. Counsel were advised at the time that there would be no adjournments of this date. In fact, this court refused requests from several judges in October to adjourn the trial so as to release one or another of defense counsel.

 On Wednesday, October 27, 1971, a conference of all counsel was scheduled at the government's request, at which time the government applied for an adjournment on the ground that it was unable to locate two of its witnesses. The government for the first time informed the court that it had been unsuccessfully attempting to locate the witnesses since August of 1971. In fact, the government, in an affidavit subsequently filed in this matter, stated that it had begun looking for the witnesses in July.

 The court inquired what would happen if the government's request was granted and the witnesses were still unavailable on the adjourned date. The Assistant United States Attorney responded: "Well, if I could suggest an adjournment to sometime early next year, the government will just have to put up or shut up with the case at that point, your Honor." This statement was understood by everyone present as a commitment by the government to proceed on the adjourned date even if it had not located the witnesses. The government further stated to the court that "if we were to have a January [trial] date . . . I think by then we would have enough time to locate these witnesses."

 The court, over strenuous objection by defense counsel, set January 4, 1972, as the new trial date. The government's response to the new date was "Fine, your Honor." The court impressed upon both sides that there would be no further adjournments, and that if the government was not prepared to go to trial on January 4 the indictment would be dismissed.

 When the case was called for trial on January 4, 1972, the government requested "that this case be adjourned for a short period of time," stating that it had found one witness but was still missing one. The government stated that it did not "see any prejudice to the defendants, again, if there is a short adjournment of this case." The missing witness, Pedro Hernandez, was the defendant in the 1967 case, and the government felt that it could not proceed to trial without him. Although the defendants strongly objected and moved for a dismissal, the court stated that it was willing, under the circumstances, to give the government an additional reasonable adjournment of three weeks. In granting the adjournment, the court relied on the government's representation that it had leads as to Hernandez's whereabouts and on the government's concession that, if after seven months of searching it had not found the missing witness, he never would be found. The following colloquy occurred between the court and the Assistant United States Attorney in charge of the case:

"The Court: I'll rely on [Mr. Phillips'] representation, if he makes it, that they are on the trial of Mr. Hernandez and if they don't have him by January 24, they are never going to have him.
"Mr. Phillips: I think that is a fair statement, your Honor."

 Further on in the discussion that morning, the court paraphrased the government's position as follows:

"In this case, Hernandez is very important to us. If we can't get him, we'll go to trial with the two of them, but we want three more weeks to get him because we ...

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