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UNITED STATES v. MALIZIA

September 19, 1977

UNITED STATES of America
v.
Ernest MALIZIA, Defendant



The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

 Defendant Malizia has moved pursuant to Rule 33 of the Federal Rules of Criminal Procedure for an order vacating and setting aside the judgment entered against him and granting a new trial. For the reasons set forth below, the motion is denied in its entirety.

 Following a jury trial of eleven days, defendant was found guilty of conspiring to distribute narcotic drug controlled substances in violation of Title 21, U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). On June 15, 1977, we sentenced Malizia to 15 years imprisonment to run consecutively with any other sentences imposed upon him anywhere prior to that date, *fn1" and in addition a $25,000 committed fine; we included special parole of six (6) years.

 The proof at trial revealed defendant to be an active member of an involved heroin distribution network in the New York metropolitan area during 1973-74. He was a middleman in this massive conspiracy to distribute heroin in return for hundreds of thousands of dollars in cash. As we stated at the time sentence was imposed:

 
We have presided over trials involving the sale of substantial quantities of narcotics. Never, however, on a scale as extraordinary as this with its enormous quantities of heroin bought and sold on an almost daily basis. The activities of this group emphasize the overlords and regimental tiers of operation, all governed by tight maneuvers and bold enough to successfully avoid governmental detection of which they were constantly apprehensive and aware. Nor have the important operational details of their cruel enterprise come to light even at this late date.
 
Let's face it. So inhuman, ruthless and cold blooded was their approach to the execution of their nefarious schemes that we sat aghast at the unfolding of the enormity of their horrifying indifference to life's values.
 
The holocaust of misery, the dreadful terminus of life for legions following the vast narcotic operations revealed herein too horrifying even to contemplate. [ USA v. Malizia, sentencing minutes at pp. 46-47, June 15, 1977]

 Defendant's instant motion is premised on two grounds: selective prosecution and denial of his right of self-representation. As readily appears, both grounds are without merit.

 In United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974), our Circuit had occasion to examine the issue of selective or discriminatory prosecution:

 
To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.

 Defense counsel asserts that "defendant has been a victim of selective and discriminatory prosecution by the United States Attorney for the Southern District of New York." [Affidavit of J. Jeffrey Weisenfeld, Esq., sworn to June 17, 1977, par. 5] He further states that "there is a policy of the United States Attorney or the Department of Justice not to prosecute an individual on charges where there has been a prior disposition in a state court or other jurisdiction concerning the same facts or circumstances." [Affid., par. 7] Accordingly, counsel reasons that from the fact that defendant pleaded guilty to state narcotics charges "involving acts that were a part of the conspiracy . . . herein" [par. 8], he is a victim of selective or discriminatory prosecution. This argument is without merit.

 In the first place, we are informed that it is not the policy of either the United States Attorney for the Southern District of New York or of the Department of Justice to dispense with prosecution upon a disposition against a defendant in state court on similar charges. [Affidavit of Assistant U.S. Attorney Federico E. Virella, Jr., sworn to August 8, 1977, pars. 3, 5, 6] The actual and correct policy statement is that:

 
No Federal case should be tried when there has been a state prosecution for substantially the same act or acts without a recommendation having been made to the Assistant Attorney General demonstrating compelling Federal interests for prosecution. No such recommendation may be approved by the Assistant Attorney General without having it first brought to the attention of the Attorney General. . . . Note that approval of the action of the United States Attorney subsequent to the dual prosecution constitutes compliance. [United States Attorney Manual, 9-2.142 (January 10, 1977)]

 The facts of the present case indicate that the Government did indeed conform with the above-stated policy: Approval for the prosecution of this defendant was sought on June 24, 1977 and the Attorney General and Assistant Attorney General approved the request on August 8, 1977. [Virella affid., par. 5] Therefore, defendant has failed to satisfy the first requirement of ...


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