In the Matter of the Petition of John William Powell, Sylviacampbell Powell, and Julian Schuman, for Writ Ofmandamus or Prohibition, 260 F.2d 159 (9th Cir. 1958)

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US Court of Appeals for the Ninth Circuit - 260 F.2d 159 (9th Cir. 1958) July 14, 1958

Bertram Edises, Oakland, Cal., Doris Brin Walker, San Francisco, Cal., A. L. Wirin, Los Angeles, Cal., for petitioner.

Lloyd H. Burke, U.S. Atty., San Francisco, Cal., for appellee.

Before FEE, BARNES and HAMLEY, Circuit Judges.


It Appearing to the Court from the Petition for a writ of mandamus directed to the United States District Court for the Nothern District of California, Southern Division, and to The Honorable Louis E. Goodman, Chief Judge, commanding said Court and Judge to grant motion of petitioners to dismiss or, in the alternative, to abate the criminal proceedings in said Court entitled United States v. Powell, and prohibiting said Court and Judge from proceeding further in this criminal prosecution; and

It Further Appearing that the District Court has entered an order denying a motion for dismissal of the indictment and for abatement of the proceedings on the ground that the failure of defendants, due to circumstances beyond their control, to produce foreign witnesses or their depositions was not ground for the relief sought by petitioners; and

It Further Appearing that the matter of dismissing or abating the proceeding is entirely within the control of the presiding judge of the District Court and that this Court has no power to control his action with regard to setting a case for trial; and

It Further Appearing that, if defendants are convicted, there will be a remedy by appeal if any error has been committed; now, therefore, it is

Ordered that the motion for leave to file petition for writ of mandamus or prohibition be and same is hereby denied.