Petition by the United States Attorney for a writ of mandamus directing Hon. Robert L. Carter, United States District Judge for the Southern District of New York, to grant the Government's motion to take the deposition of a prospective Government witness pursuant to 18 U.S.C. § 3503. Petition granted.
Waterman, Mulligan, Circuit Judges; Bryan, District Judge.*fn* Waterman, Circuit Judge (concurring in the result).
On January 14, 1974, Hon. Robert L. Carter, United States District Judge for the Southern District of New York, filed an opinion and order denying the motion of the United States to take the deposition of a prospective Government witness, Ronald C. Kinsey, in Seattle, Washington, pursuant to 18 U.S.C. § 3503.*fn1 The United States Attorney for the Southern District of New York now petitions us for a writ of mandamus directing Judge Carter to issue an order granting the motion of the United States. Petition granted.
The indictment in this case, containing ten counts, was filed on July 12, 1973 and charges the defendants, Bertram L. Podell, a United States Congressman, Herbert S. Podell and Martin Miller, with conspiracy to defraud the United States (counts 1 and 7), bribery (counts 2, 3 and 4) and conflict of interest (counts 5 and 6), in violation of 18 U.S.C. §§ 371, 201 and 203. The defendants Bertram and Herbert Podell are also charged with making false statements (counts 8 and 9) and Bertram L. Podell is charged with perjury (count 10), in violation of 18 U.S.C. §§ 1001 and 1623.
The defendant Miller, President of the Florida Atlantic Airlines' parent company, is charged with having asked Congressman Podell to use his official position to cause the Civil Aeronautics Board to approve the application of the airline to fly a regularly scheduled route from Florida to the Bahamas. The indictment charges that Congressman Podell agreed to use such influence in return for substantial payments of money in the form of fees and contributions to his own re-election committee. Congressman Podell is alleged to have attempted to influence various federal agencies and Bahamian officials to obtain the route. It is further charged that the defendants were engaged in a conspiracy to commit perjury, to obstruct justice and to make false statements in connection with these services. On July 23, 1973, the defendants pleaded not guilty.
On December 27, 1973, the Assistant United States Attorney in charge of the prosecution of this case, prepared a subpoena for a retired official of the C.A.B., Ronald C. Kinsey, who had appeared before the Grand Jury and who had previously given information to the F.B.I. The Government maintains that Kinsey's testimony is critical to the Government's proof of the charges of conspiracy to defraud, bribery and conflict of interest and this does not appear to be controverted. The trial was set for January 14, 1974, but, at the request of counsel for Bertram Podell on January 2, 1974, trial was adjourned for one week to January 21, 1974. On January 3, 1974, the Assistant United States Attorney learned that Kinsey had suffered a severe heart attack on December 20, 1973, and was hospitalized in Seattle. Kinsey's physician, a certified cardiologist and internist practicing at the Seattle Heart Clinic, advised the Government that Kinsey's attack had been almost fatal, and that on the assumption that he suffered no further setbacks, he would not be able to come to New York to testify before the end of March or early April, 1974. The physician indicated that a deposition would not be advisable until the end of January, 1974 at the earliest.
On January 8, 1974, Henry E. Petersen, Assistant Attorney General of the United States, issued the following certification pursuant to 18 U.S.C. § 3503:
Pursuant to your request to obtain an order granting the taking of a deposition from Ronald C. Kinsey, I hereby certify, pursuant to the authority conferred upon me by 28 C.F.R. § 0.59(b), that the case of United States v. Bertram Podell, et al, is a legal proceeding against a ...