Hays and Mansfield, Circuit Judges, and Bauman, District Judge.*fn*
Frank Gavino, a resident of Tucson, Arizona, and one of five defendants named in an indictment filed in the Northern District of New York charging violation of the narcotics laws, 21 U.S.C. §§ 841(a) (1) and 846, has petitioned us for a writ of prohibition and mandamus directed to Judge Lloyd F. MacMahon, sitting by designation in the Northern District of New York, to stay an order issued by him in open court on June 7, 1974, revoking Gavino's bail and directing all defendants to proceed to trial before him on June 17, 1974, even though the indictment had been filed in April, 1974, and the defendants had been arraigned in May 1974 (one as late as May 20). The petition is granted.
On April 10, 1974, a federal grand jury sitting in Albany, New York, filed an indictment charging Frank Gavino, Harvey Lawrence, Allen Smith, Kenneth Adler, and William Barber with conspiracy to violate § 841(a) (1) and defendants Barber and Lawrence with possession of narcotics with intent to distribute in violation of that section. Gavino was thereafter arrested in Tucson, Arizona, and held in custody after he was unable to furnish bail in the sum of $150,000. On May 6, 1974, Gavino, appearing with his counsel, Sanford M. Katz, Esq., was arraigned before Chief Judge James T. Foley, who reduced Gavino's bail to $2,000, which was posted. May 20th was fixed as the date for filing of motions. However, Adler was not arraigned until May 20. All parties were then given until June 3d to file motions. The Clerk was further directed to put the case on the Auburn, New York, calendar for trial before Judge MacMahon, to whom it had been assigned, during the June term.
On June 3, 1974, in response to defense motions for pretrial discovery, including bills of particulars and electronic surveillance, and for dismissal, severance and other relief, the government made available to the defendants extensive discovery material. At the same time, after ruling on all other motions, Chief Judge Foley advised counsel that Judge MacMahon had set the case for trial on June 17. In response to requests for postponement defense counsel were advised to move before Judge MacMahon in Auburn, New York. Motion papers seeking a continuance were hastily prepared by counsel for Gavino, Adler and Barber, advising of the need for additional time.
On June 7, 1974, Judge MacMahon heard the motions for continuance of trial, which were joined in orally by counsel for the defendant Lawrence. Gavino's counsel confirmed that he was presently engaged in the trial of a murder case in the New York County Supreme Court, which would last for at least two weeks. He further advised that based upon his interview of Gavino and the discovery material that had been turned over by the United States Attorney on June 3d it would be necessary for him as part of his preparation for trial to proceed to New Mexico and Mexico to interview prospective witnesses. The Assistant United States Attorney in charge of the case advised the court and ourselves that he had no objection to a continuance of the trial. Before being cut off by Judge MacMahon he further sought -- wisely in our view -- to advise the court (as he has advised us by affidavit) "that if the continuance were denied it may [lead] to a subsequent appeal based on the rationale of lack of effective counsel, with respect to the defendant Gavino, due to the remoteness of counsel from his client, and counsel's statement that he has only conferred with his client on one occasion and [that] due to other responsibilities [he] would not be able to confer with his client until trial."
The scene which ensued is disclosed by the following portion of the transcript:
"The Court: All right. I am revoking the bail, I want to appoint other counsel, this lawyer is too busy to handle this case.
"Mr. Katz: Your Honor, the trial date --
"The Court: I am removing you from the case, sir, you are not ready to go on adequate notice, you have more business than you can handle. This court's business cannot wait to suit your convenience.
"Mr. Katz: Sir, it was never anticipated that we would proceed to trial within one month of arraignment and --
"The Court: The United States Judicial Conference has had a resolution requiring all criminal cases to be tried within sixty days. Get with it. Here is an April indictment --
"Mr. Katz: April of 1974.
"The Court: I have ruled, counsel, if you are not here, revoke the bail, issue a warrant, get him back to this district to appear before me forthwith as soon as he can.
"Mr. Katz: Well, if Your Honor please, there is no basis for it, the trial date is June ...