proved a Section 846 narcotics conspiracy as a predicate act and substantive offense. In light of a recent submission by one of the Trial One defendants, however, we shall set aside our reluctance to so interpret Andrews III.
Defendant Noah Robinson has filed a "response" to our Andrews III order in which he protests our assertion that the defendants would appear to have waived any double jeopardy concerns that might have been created by the severance plan. Robinson contends that he has not waived a defense of double jeopardy. Nevertheless, he apparently does not want to take his chances with that argument at a future date and instead has requested that should Trial One include drug-related evidence, then he should in fact be tried for the charges relating to the evidence that would be submitted to the jury. Although for the reasons we set forth in Andrews III we do not see much merit to Robinson's waiver point, see also Federal Rule of Criminal Procedure 12, we shall, in an abundance of caution, grant him the benefit of the doubt in this instance, particularly since his interest now relatively coincides with that of the government.
Accordingly, we shall permit the government to place Racketeering Act 31 and corresponding Count III before the jury. We again admonish the government, however, to heed the concerns we expressed in Andrews III, 754 F. Supp. at 1208. The fact that these charges will be presented as part of the government's case at Trial One does not change the considerations that will ultimately dictate the Rule 403 rulings that we have reserved for the time of trial.
Although the severance chapter of these proceedings is now closed, the problems we have faced are neither unique to this case nor are they sure to go away any time soon. The Federal Courts Study Committee has recently voiced its concern that since 1979 the number of criminal trials lasting over twenty days has more than doubled, and those lasting over forty days has grown four-fold. Report of the Federal Courts Study Committee, 106-07 (Apr. 2, 1990). The proposed length of the trial of this case both in its unsevered and severed form far surpasses the periods of time that gave the Committee concern. But this case presents additional problems of equal or even greater significance. The presentation and consideration of the severance issues, occasioned both by the return of an indictment that was untriable in its original form and an initial lack of government cooperation, has occupied an inordinate period of pretrial time and effort. In addition, the demands of this case, as originally indicted, have greatly exacerbated the task of securing and coordinating appointed counsel. Further, having severed the case, we nevertheless still face a scheduling dilemma for which there exists no perfect solution, and which has the potential to present very serious statutory and constitutional concerns with respect to the length of pretrial detention. None of these problems has arisen discretely; they all are interrelated. And by no means is this list inclusive. Although the Federal Courts Study Committee was not able to give the matter of "mega-trials" full consideration, the Committee proposed that the Attorney General should convene a conference of prosecutors and defense lawyers to consider the problems of complex criminal trials. Id. The recommendation is a sound one, and reflects what we believe is the proper view that the indicting authority is best situated to stem the tide and resulting problems of mega-trials. In Andrews I, however, we observed that several reasons compelled the conclusion that it is "unlikely that the recent increase in mega-trials will soon be curbed at the initiative of the prosecution." Andrews I, 754 F. Supp. at 1180. We can only hope that the Executive Branch, perhaps with this District taking the lead, will responsibly act upon the Committee's proposal and ultimately prove our assessment wrong. It is so ordered.