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 the case must be continued at the last moment, significant resources are substantially lost, and preparation must be done in large part again when the case again is set for trial.

These consequences are significant in the administration of justice.. They are to be avoided if at all possible.

The district judge here was faced with two alternatives, each of which was undesirable. One was to continue the case which he thought necessary to allow preparation for cross-examination of the new witness necessary because thousands of hours of tape recordings needed to be collated and organized. In addition, the district judge believed it necessary to allow a substitution of counsel for one of the defendants, also requiring a continuance. The other alternative was to say that the government could not call its newly acquired witness, a witness the government had been prepared to do without.

The Gatto case lays down an inflexible rule — the government has an absolute right to call its lately acquired witness whatever the consequences to the administration of justice in other respects. To be sure, preventing a witness from being called is an undesirable step, but so was continuing the trial with all of its consequences. There should be no absolute rule; the trial judge should have discretion to consider all of the factors and make his or her best judgment as to which undesirable alternative least impacts the interests of the administration of justice.

The Gatto case attributes as its reason for acceptance of the government’s absolutist position the doctrine of separation of powers, pointing out that the judicial branch should not be able to tell the executive branch what witnesses to call (Gatto, supra, at pg. 1046 ). In my opinion, this is not tenable; the judicial branch of government should be in charge of what steps are necessary to protect the interests of justice in a trial situation like this, and there should be no absolute rights when the interests of justice are harmed no matter which course is taken. If the doctrine of separation of powers applies at all, it should work in reverse; the executive branch must operate in such a way that the judicial branch may function in an effective manner. The trial judge should be able to weigh and decide which undesirable solution is least undesirable. The experienced trial judge here, obviously with much soul searching, made his “call,” and it is supported by the considerations outlined above. But for the government’s “absolute” right to call a witness whatever the other consequences to the administration of justice, this discretionary decision would not be interfered with.

One other procedural point should be noted. The motions panel of this court called *661 off the trial as jury selection was going on. While our decision vindicates that ruling by reason of the controlling authority, we should be slow to act where a stay order brings about the very evil sought to be avoided.

I concur by reason of binding precedent.