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UNITED STATES v. DOOLING

No. 311, Docket 33019.

406 F.2d 192 (1969)

UNITED STATES of America, Petitioner, v. Honorable John F. DOOLING, Jr., United States District Judge for the Eastern District of New York, Respondent. UNITED STATES of America, v. Carmine PERSICO, Salvatore Albanese, Ralph Spero, Hugh McIntosh, Defendants.

United States Court of Appeals Second Circuit.

Decided January 21, 1969.

Attorney(s) appearing for the Case

Victor C. Woerheide and Robert M. Ornstein, Charles F. C. Ruff, Sp. Attys., Dept. of Justice, for petitioner.

Maurice Edelbaum, New York City, for defendant Persico.

Robert Kasanof, New York City, for defendant Albanese.

Frances T. Wolf, New York City, for defendant Spero.

Edmund A. Rosner, New York City, for defendant McIntosh.

Before LUMBARD, Chief Judge, and MOORE, Circuit Judge and RYAN, District Judge.

LUMBARD, Chief Judge:

The government's petition for a writ of mandamus and/or prohibition raises the novel question whether a district judge has the power to dismiss an indictment, after a jury has returned a verdict of guilty, on the ground that there has been a "transgression of due process," even though the trial itself was fair and the evidence supports the verdict.

We find that the district judge lacks the power to dismiss the indictment for the reasons...

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