(dissenting) :
I dissent. I would grant the petition for writ of mandamus and direct the district court to vacate its order of dismissal and proceed promptly to trial of the indictment. The action of the district court was, in several respects, a gross abuse of discretion. The record shows an extraordinary situation which calls for and, in my view, fully justifies our intervention by mandamus.
As to the appealability of the orders of January 24 and April 18, 1972, I reluctantly agree with Chief Judge Friendly’s conclusion that the orders are not appeal-able. While the views expressed by Judge Pope in his concurring opinion in United States v. Apex Distributing Co., 270 F.2d 747, 757 (9th Cir. 1959) persuade me as to the more sensible view of the meaning of the statute, too much water has since gone over the dam. Thus I turn to consideration of the record and whether the errors of the district court justify our exercise of mandamus.
The indictment, returned December 8, 1970, charged Edmund Rosner, an attorney admitted to practice in the Southern District, and in this court, and three others, with conspiring to suborn and suborning perjury on behalf of Pedro Hernandez at his trial on narcotics charges in the Southern District in 1965 before Judge Tyler. The testimony was that Hernandez was in Miami, Florida at a time when government evidence placed him in New York selling heroin. The jury convicted Hernandez.
Following arraignment of all defendants, at a conference before Judge Metzner, on March 24, 1971, the government stated its readiness to proceed in April or May. When the defense counsel alleged various engagements through the summer, the court set November 1 for trial, apparently because no one claimed any other engagement at that time. Although the government did not object to this, it seems to me that the public interest required á prompt trial of so serious a charge as the suborning of perjury in a federal criminal trial by an attorney continuously practicing in the federal courts. The trial of these charges should have taken precedence over all other engagements of every defense counsel.
Secondly, having granted so long a continuance at the behest of the defense attorneys, I think the government was entitled to more equal treatment than it received when the government represented to the court, first that two important witnesses were missing and later, in January 1972, that Hernandez was still missing.
It is true that in March 1971, when Judge Metzner granted the defense an adjournment of over seven months, our Rules for the Prompt Disposition of Criminal Cases were not yet in effect. Announced on January 5, 1971 they took effect six months later. Thus by November 1971 these Rules were in effect. The Rules emphasize that the paramount interest in the prompt disposition of criminal cases is the public interest. The Rules recognize that numerous eventualities may justify delay beyond the six months readiness requirement. They particularly note in Rule 5(c) (i) that the trial court may grant a continuance at request of the government where evidence is unavailable despite due diligence to make it so, and there is reason to believe that such evidence will be available within a reasonable time. In addition Rule 5(h) provides that continuance may be granted for delay occasioned by “exceptional circumstances.”
In my opinion, the government should have been allowed additional time to find Hernandez. In view of the adjournment of more than seven months at the behest of defense counsel, it is difficult to understand by what logic or arithmetic the district court could ration the government to less than three months to find the principal witness. Even though January 24, 1972 had been set as the trial date, the government had clearly made *852out a case for further adjournment.1 Meanwhile the government had actually located the other missing witness.
On so much of the record, I think the government has shown such an exceptional situation that mandamus should issue. But this is not all.
We were advised, after the argument, that the government had filed an affidavit with the district judge, in camera, on January 9, 1972 which set forth specific information regarding recent efforts by some of the defendants to obstruct justice in this case. Judge Metzner thereupon advised us, by letter to the Chief Judge, that he did not consider the affidavit in reaching his decision.
As the grand jury has since filed an indictment, on July 5, 1972, which more specifically details the charges of obstructing justice, there is no longer any reason to keep this affidavit of January 19, 1972 under seal.2 Sworn to by Assistant United States Attorney Walter M. Phillips, on his own knowledge and on information received from two colleagues, the affidavit referred to an investigation in which a New York City Police Department detective was working in an undercover capacity. It alleged in the third paragraph:
“3. During the course of these investigations, the undercover detective met with two of the defendants in this ease, Nicholas DiStefano and Edmund Rosner. During the course of these meetings, Rosner stated that he would be willing to pay a sum of money to obtain copies of written statements and grand jury testimony of Government witnesses who were to testify against him in the present case. An agreement was reached, and copies of these statements and grand jury testimony were given to Rosner, who paid money in return. The meetings between Rosner, DiStefano and the detective were recorded and the government has tape recordings of these meetings.”
The affidavit then recited that the investigation was continuing and pointed out the need to avoid public disclosure of the matters reported to the court. It asked adjournment of the trial until June 1972 when it was anticipated that the investigation would have been completed. In his letter to Chief Judge Friendly of June 21, 1972, Judge Metzner stated that “in view of the fact that defense counsel were not advised that an affidavit was to be submitted to me in camera,” he had not considered this affidavit in passing on the motion to dismiss. The district judge’s excuse is wholly without merit. His duty was to protect the public interest, not to fault the government. The district judge had available several alternatives to protect the rights of the defendants and at the same time to give the January 19 affidavit the. consideration to which it was clearly entitled; instead, he chose to ignore the affidavit and to dismiss the indictment.
In March 1972 Hernandez was finally located in Mexico City and in April he was turned over to the F.B.I. The government then moved, on April 18, for reconsideration of the order of dismissal. Judge Metzner promptly denied this motion whereupon the government filed its petition for mandamus.
Undoubtedly the district judge spent considerable time and effort in contacting other judges, state and federal, between November 1971 and January 24, 1972 in an effort to see that all the defense attorneys would be free to start trial on January 24, 1972. No doubt a further adjournment would have been a source of some embarrassment in view of these efforts. But the paramount public interest, because of the nature of the charges and the information presented to the district court in support of *853the government’s request for more time, made further adjournment imperative.
The writ of mandamus has long been recognized as the means whereby the federal appellate courts may reach out to correct errors in those extraordinary situations where the normal appellate process is not available. It is used sparingly and reluctantly. The party seeking mandamus has “the burden of showing that its right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). In the last analysis it depends not on any technical analysis as to whether the error to be corrected involves exercise of a non-existent power or whether it constitutes merely an abuse of discretion; its use depends on the importance the reviewing judges place upon the need for corrective action, and how serious they view the effect of their failure to act.
I can find nothing in Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), which bars mandamus in the situation presented here. After Chief Justice Warren had enumerated situations where the writ has issued and where it has not, he wrote “But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal. We need not consider under what circumstances, if any, such a use of mandamus would be appropriate.” Here, of course, we are dealing with a dismissal.
Mr. Justice Black wrote a brief concurrence in the Will case, the purpose of which was to emphasize that whether the writ should issue depends on the “extraordinary circumstances” of the particular case and not on any set formula or rule. He wrote:
“I agree that mandamus is an extraordinary remedy which should not be issued except in extraordinary circumstances. And I also realize that sometimes the granting of mandamus may bring about the review of a case as would an appeal. Yet this does not deprive a court of its power to issue the writ. Where there are extraordinary circumstances, mandamus may be used to review an interlocutory order which is by no means ‘final’ and thus appeal-able under federal statutes. Finality, then, while relevant to the right of appeal, is not determinative of the question when to issue mandamus. Rather than hinging on this abstruse and infinitely uncertain term, the issuance of the writ of mandamus is proper where a court finds exceptional circumstances to support such an order.” 389 U.S. at 108, 88 S.Ct. at 280.
In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the Supreme Court upheld the appellate court’s issuance of mandamus when the district court had abused its power under Rule 53(b) of the Federal Rules of Civil Procedure. That case clearly points out the propriety of issuing the writ in exceptional circumstances to correct a clear abuse of discretion. The Court said, “We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here.” Id. at 259-260, 77 S.Ct. at 315. I believe that the circumstances of the case before us are likewise sufficiently “exceptional” to warrant the issuance of mandamus.
In In re United States, 286 F.2d 556 (1st Cir. 1961), the appellate court issued the writ to vacate an order of acquittal entered by the district court in the middle of .the government’s presentation of evidence. The court of appeals said that mandamus will lie to correct “usurpation of power” by the district judge, whose actions amounted to “a refusal to permit enforcement of the criminal law,” id. at 564. The Supreme Court reversed, Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), but solely on double jeopardy grounds, without challenge to the appel*854late court’s views as to its power to issue the writ.
This court has not hesitated to use the writ where it has found the exceptional circumstances which it felt required action. In United States v. Dooling, 406 F.2d 192 (2d Cir.), cert. denied sub nom. Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969), we issued the writ when the district judge had dismissed an indictment after the jury had returned a guilty verdict. We said:
“Certainly the restrictions placed upon the government’s right to appeal do reflect important policy judgments by Congress, at their core protecting the right against double jeopardy, which must not be undermined by casual resort to mandamus. But circumstances can arise which present a compelling need for the issuance of mandamus in order to further important countervailing interests. Here we find this need in our responsibility for preventing gross disruption in the administration of criminal justice, and we act pursuant to our supervisory power over the district courts.” 406 F.2d at 198.
We also said that we found the action taken by the district judge “so highly improper and undesirable” as to amount to the “ ‘extraordinary circumstances’ which require and justify the exercise of our power to issue the writ,” id. at 199. The dismissal of the indictment in that case was “highly deleterious to the sound administration of criminal justice,” and we felt accordingly compelled to“‘make a clear and unequivocal response to 'the first example of such a dismissal to come before us,” id. Judge Metzner’s dismissal of the indictment in the circumstances of the instant case is no less striking a disregard for the sound administration of criminal justice, and we should be no less hesitant in the exercise of our supervisory power to correct it. See also Grace Lines, Inc. v. Motley, 439 F.2d 1028, 1031 n. 2 (2d Cir. 1971), where the writ issued and it was said that mandamus will lie to correct a clear abuse of discretion by the district court. In a concurring opinion I noted that mandamus was required since it was “the only way in which the appellate court can correct the egregious error of the district court,” id. at 1034 (Lumbard, C. J., concurring). Likewise the error of the district court in the case before us warrants the “vital corrective and didactic function”3 of the extraordinary writ of mandamus.
The federal appellate courts are charged with the responsibility of supervising the administration of criminal justice in their circuits. Whether they act through the Circuit Council by enacting Rules for the Prompt Disposition of Criminal Cases, or through a panel of the court by passing upon petitions for mandamus, it is a responsibility which they must discharge.
Subornation of perjury poisons the life blood of the administration of justice, doubly so in a criminal prosecution for the sale of heroin. Here one of those charged is a member of the bar. The government’s principal witness is found missing. What reason can there possibly be for not allowing the government a reasonable amount of time to find that witness? Here the early march of events has shown how improvident was the impatient refusal of the district judge and his dismissal of the charges. Yet the district judge persisted in his stubborn and unreasonable refusal to allow the government further time. The witness has been found and returned; and two of the defendants are the subject of charges of obstructing justice in the case so hastily dismissed. If ever there were a situation which cried out for the exercise of the writ of mandamus, this is such a case.
I would grant the petition for writ of mandamus, and direct the district court to vacate its order of dismissal and proceed to try this case at the earliest date which can be arranged upon suitable notice, the trial to be consolidated with that of the indictment returned on July 5, 1972, if the government so elects.
. Cf. Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 32 L.Ed.2d 101 (1972) (“[A] valid reason, such as a missing witness, should serve to justify appropriate delay.”).
. The eight count indictment charges that Rosner, DiStefano, and a third defendant paid the undercover policeman $2,-850 for the government documents, in payments of $400, $100, $1,150, $850 and $350 on October 4, 8, 12, 13, and 19, 1971.
. Will v. United States, supra, 389 U.S. at 107, 88 S.Ct. 269.