United States v. Sol C. Schwartz, Abe Chapman, and Frank C. Marolda

The United States appeals from the district court’s order excluding the testimony of former co-defendant Raymond F. Lane from the trial of Sol C. Schwartz, Frank C. Marolda and Abe Chapman on charges of violating 18 U.S.C. § 1954 (1982) (offer, acceptance or solicitation to influence operations of employee benefit plan). The government contends that the district court lacked authority to exclude Lane’s testimony absent a violation of the court’s pretrial discovery order. We agree, and we reverse the district court’s exclusionary order.

FACTS AND PROCEEDINGS BELOW

In United States v. Schwartz, 785 F.2d 673, 679-82 (9th Cir.), cert. denied, 479 U.S. 890 , 107 S.Ct. 290 , 93 L.Ed.2d 264 (1986), this court reversed the pretrial dismissal of two counts of a 15-count indictment against Schwartz, Lane, Marolda and Chapman and remanded the case to the district court for trial. 1 On March 29, 1988, during pretrial proceedings on remand, the district court filed its “Guidelines for Criminal Pretrial Preparation,” setting June 20, 1988, as the date for trial, and directing the parties to exchange and file witness lists by three days before the pretrial conference, scheduled for June 8. At…

Concurring:

I agree with Judge Poole’s opinion that the result in this case is controlled by United States v. Gatto, 763 F.2d 1040 (9th Cir.1985). I write separately to protest the holding in Gatto .

When a major criminal case, such as this one, goes to trial, the trial court must take significant action affecting other cases. Civil cases standing in the way must be continued or the trial setting thereof must be delayed. Other criminal cases must be transferred to the colleagues of the district judge, thus disrupting their calendars also. Extra potential jurors must be assembled; here a special order of over a hundred jurors were assembled at short notice and were waiting when the problem described in the opinion manifested itself. In addition, the consequences for the parties and counsel are significant. Preparation for the trial of a major criminal case is intensive and consuming of counsel’s time. Hundreds or thousands of exhibits must be reviewed, listed, and their admissibility prepared. Witnesses must be interviewed and subpoenaed, and cross-examination must be prepared for foreseeable opposing witnesses. Trial memoranda, motions, and jury instructions must be prepared. If…

857 F.2d 655 UNITED STATES of America, Plaintiff-Appellant, v. Sol C. SCHWARTZ, Abe Chapman, and Frank C. Marolda, Defendants-Appellees. No. 88-1252. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 12, 1988. Order Aug. 12, 1988. Amended Aug. 31, 1988. Decided Sept. 19, 1988. Rory K. Little, Special Attorney, Dept. of Justice, San Francisco, Cal., for plaintiff-appellant. Doron Weinberg, Larson & Weinberg, and Karen Snell, Riordan & Rosenthal, San Francisco, Cal., for defendant-appellee Schwartz. Manton L. Selby, II, San Francisco, Cal., for defendant-appellee Chapman. Allen Ruby, Morgan, Ruby, et al., San Jose, Cal., for defendant-appellee Marolda. Appeal from the United States District Court for the Northern District of California. Before WRIGHT and POOLE, Circuit Judges, and HUPP, District Judge. * POOLE, Circuit Judge: The United States appeals from the district court's order excluding the testimony of former co-defendant Raymond F. Lane from the trial of Sol C. Schwartz, Frank C. Marolda and Abe Chapman on charges of violating 18 U.S.C. Sec. 1954 (1982) (offer, acceptance or solicitation to influence operations of employee benefit plan). The…