The opinion of the court was delivered by: CARTER
ROBERT L. CARTER, District Judge.
The government moves by order to show cause, to be permitted to take the deposition of Ronald C. Kinsey and Albert Waldman, pursuant to Title 18, U.S.C. § 3503. The defendants are charged with conspiracy to defraud the government, accepting and giving bribes, conflict of interest, conspiracy to give false statements and giving false statements to the FBI, and perjury.
The court is advised by affidavit of government counsel that Kinsey, who resides in Seattle, Washington, suffered a severe heart attack on December 20, 1973; that he was hospitalized until January 4, 1973 and is now at home recuperating. Dr. John L. Petersen, Kinsey's physician, advises that Kinsey will not be able to travel before the end of March or early April; that the attack was nearly fatal; and that the earliest that Kinsey could possibly submit to oral interrogation is late January.
Mr. Kinsey was interviewed by the FBI on November 11 and 12, 1971 and gave a signed statement. He testified on May 3, 1973 before the grand jury. His testimony is alleged to concern contacts by defendants Bertram L. Podell and Martin Miller with the Civil Aeronautics Board and to be critical to proof of the counts of conspiracy to defraud, bribery and conflict of interest.
Albert Waldman is 76 years old. He lives in Brooklyn. He has suffered two heart attacks and is fitted with a pacemaker. Waldman's physician, Dr. Harold S. Bard, has advised government counsel that his patient is in very precarious physical health. Waldman was interviewed by government counsel and was then placed under oath. His statement was reduced to writing in question and answer form and thereafter reviewed with him. His testimony is alleged to concern the procuring of false statements and is said to be critical to proof of the charge that defendant Herbert S. Podell participated in the preparation and signing of false statements.
I find that the unavailability of Kinsey and Waldman to testify has been adequately demonstrated.
Their precarious health, and in addition Waldman's age, render their presence in New York to testify at trial very doubtful, and indeed, early deposition may be the only insurance the government has to preserve the testimony of these two key witnesses.
In addition, it cannot be contended that the need to invoke Section 3503 results from any fault, failure, neglect or lack of diligence on the government's part. The government announced ready for trial in November, 1973, and the court was prepared to proceed with the trial at that time. The trial date of January 14, 1974, postponed to January 21, 1974, was set at the request and to suit the convenience of defense counsel. Thus, the threshold tests enunciated by the United States Supreme Court in California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 and held by our Court of Appeals in United States v. Singleton, 460 F.2d 1148, 1152 (2d Cir. 1972) to be applicable in deciding a motion brought pursuant to Section 3503 have been met.
The right of the government to preserve a witness' testimony by deposition in a criminal proceeding is authorized under Section 3503(a) "whenever due to exceptional circumstances it is in the interest of justice."
The broad sweep of the majority holding in Singleton has rendered unpersuasive defendants' argument that the government's motion must be denied as a violation of defendants' Sixth Amendment rights of confrontation. As I read the majority opinion in Singleton, all doubt concerning the constitutionality of Section 3503 and the right of the government to use the deposition of a witness in a criminal trial have been resolved in favor of the validity of the statute and the admissibility of such testimony.
These considerations, however, do not settle the instant problem. The troublesome question for me concerns the certification. The statute requires that the government's motion be supported by a "certification by the Attorney General or his designee that the legal proceeding is against a person who is believed to have participated in organized criminal activity". Henry Petersen, Assistant Attorney General, has, in letters dated January 8, 1974, certified that this case "is a legal proceeding against a person who is believed to have participated in organized criminal activity." The Court in Singleton rejected the defendant's argument that the government must be required to establish to the trial court's satisfaction probable cause that the case is a proceeding against a person believed to have participated in organized criminal activity. Singleton admonishes that such a determination is the sole province of the Attorney General and trial courts are not empowered to make a de novo inquiry as to that issue, but it does hold that it is appropriate for the trial judge to decide whether the certification has been made in good faith. I take that to mean that where a challenge of the good faith certification is made, as here, and there is nothing either in the nature of the crime, the background of the defendants or evidentiary support for the certification in the record, that the trial court is empowered to require more than the mere pro forma certification before the government's motion can be granted. A showing of bad faith entitles the court, as I read Singleton, to evaluate the certification.
The government certification, unlike that in Singleton, is not supported by any evidentiary showing that defendants have been engaged in criminal activities continuously over a long period; nor is there any representation that any of the defendants has been previously arrested or convicted of crime. Finally, and perhaps more critically, neither the crimes charged nor defendants' backgrounds would appear to meet the criteria which would empower the government to invoke the provisions of Section 3503.
Section 3503 does not constitute a blanket withdrawal of the Sixth Amendment right of confrontation before judge and jury in all criminal cases. Otherwise the required certification would be meaningless surplusage.
The provision was enacted as a part of the Organized Crime Control Act of 1970. Public Law 91-452; 84 Stat. 922. The purpose of the statute is defined as seeking "the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." The latter is described as "a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud and corruption." It is said to derive power through money "obtained from . . . syndicated gambling, loan sharking, the theft and fencing of ...