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In re Sutter

decided as amended.: October 20, 1976.

IN RE JOHN JOSEPH SUTTER, ESQ., APPELLANT


Appeal from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, assessing costs of $1,500 against appellant for causing a three-day delay in the start of a trial.

Smith, Oakes and Meskill, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

We are asked to review a district judge's application of Rule 8(b) of the Individual Assignment and Calendar Rules of the United States District Court for the Eastern District of New York. Rule 8(b) authorizes district judges in the Eastern District to "assess reasonable costs directly against counsel whose action has obstructed the effective administration of the court's business." Pursuant to this rule, Judge Platt assessed costs of $1,500 against John J. Sutter, Esq., for causing a three-day delay in the start of a trial.*fn1

Mr. Sutter is a lawyer with an active trial practice in both the federal and New York State courts. On March 5, 1975, Philip Rastelli, Louis Rastelli, Anthony DeStefano, Carl Gary Petrole and the Workmen's Mobile Lunch Association, Inc., were indicted on racketeering charges, and shortly thereafter Mr. Sutter undertook the representation of Philip Rastelli. The case was adjourned several times, and on January 5, 1976, the government and defense counsel agreed to try the case on Monday, March 29, 1976.*fn2 All counsel, including Mr. Sutter, were issued Certificates of Engagement for that date.

On February 28, 1976, Mr. Sutter was retained to try the case of New York v. Gregory Charmont in Nassau County Court before Judge Alfred F. Samenga. Charmont was accused of the attempted murder of two police officers, and his family sought Mr. Sutter's services after Charmont's original lawyer became "unavailable" on the eve of trial for some reason not clear in the record. Judge Samenga ordered the Charmont trial to commence on Monday, March 8, 1976, apparently because the state's principal witness was suffering from cancer and his condition was deteriorating. Both Judge Samenga and the prosecutor estimated that the trial, which was to be conducted without a jury, would require no more than two weeks. Assuming that the Charmont trial would take, at most, three weeks instead of two, Mr. Sutter determined that the trial would finish no later than Friday, March 26th, and that he would have time to be ready for the Rastelli trial before Judge Platt on Monday, March 29th. Apparently, Mr. Sutter did not consider the possibility that his trial schedules would conflict to be sufficient reason either to inform Judge Platt that he had begun another trial or to display his Certificate of Engagement to Judge Samenga.

Mr. Sutter's conduct of the Charmont trial was both diligent and skillful. He worked day and night to prepare for the trial, and he won an acquittal for Mr. Charmont on the attempted murder charges. Unfortunately, that trial lasted six weeks instead of two. Thus, the conflict in trial schedules that appeared unlikely to Mr. Sutter prior to March 8th became a reality on March 29th.

Sometime prior to March 18, 1976, Stephen L. Wilson, Esq., an associate of Mr. Sutter's, told Assistant United States Attorney Carl Bronstein that Mr. Sutter might be engaged on March 29th. Mr. Bronstein told Mr. Wilson that he would call the court, and he did so.*fn3 Upon being informed that Mr. Sutter might not be ready to start the trial on March 29th, Judge Platt scheduled a pre-trial conference for March 19th, to inform counsel that there would be no further adjournments.

On March 19, 1976, Mr. Wilson appeared for Mr. Sutter, and Michael Rosen, Esq. appeared for the law firm of Saxe, Bacon & Bolan. Messrs. Wilson and Rosen asked Judge Platt to permit the Saxe firm to be substituted for Mr. Sutter. Mr. Wilson told Judge Platt that Mr. Sutter was engaged in a trial in Nassau County Court, but he did not make it clear that Mr. Sutter would be so engaged on March 29th. The principal reason he gave for requesting the substitution was lack of preparation for trial. Mr. Rosen asked for an adjournment of thirty days. Judge Platt said he would agree to the substitution only if the Saxe firm would agree to begin the trial on March 29th. When the conference ended, the matter had not been resolved.

On March 24, 1976, a second conference was held. The government, reconsidering the requests for substitution and adjournment, expressed concern that Mr. Sutter's client would appear to be inadequately represented. The government joined with Roy Cohn, Esq., of the Saxe firm in seeking a one-week adjournment. This request was based in part upon the fact that, since one co-defendant had been severed, the trial was expected to be shortened by two weeks. Judge Platt denied the request, saying,

The government has no say in this matter. The Court is not going to grant any adjournment. Mr. Philip Rastelli has had in my book one of the best law firms in Suffolk County. Mr. Sutter is a well known, and as I understand it, a very competent attorney. I don't for one minute believe that Mr. Sutter is not capable of trying this case.

That response is significant for it indicates that as late as March 24, 1976, Judge Platt had not yet been fully apprised of the situation regarding Mr. Sutter's engagement in the Nassau County Court. The focus of both counsel and the Court was upon Mr. Sutter's alleged lack of preparation. The imminent conflict between the schedules of the two trials that Mr. Sutter had undertaken to conduct was not even mentioned.

On March 26, 1976, the Saxe firm sought a writ of mandamus from this Court. We denied the petition on March 29, 1976, on the ground that, under Stans v. Gagliardi, 485 F.2d 1290 (2d Cir. 1973), we lacked the power to hear the matter. Rastelli v. Platt, 534 F.2d 1011 (2d Cir. 1976) (Per Curiam). This Court earnestly requested, however, that Judge Platt reconsider his decision.

Also on March 26, 1976, Mr. Sutter filed an affidavit with Judge Platt which explained fully the circumstances surrounding his engagement in Nassau. Judge Platt telephoned Judge Samenga and confirmed what had been said in the affidavit. Judge Platt asked Judge Samenga whether he had been told of Mr. Sutter's prior engagement. Judge Samenga said ...


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