Gavino v. Macmahon

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.