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UNITED STATES v. AJLOUNY

September 24, 1979

UNITED STATES of America
v.
Bulus A. AJLOUNY aka Paul Ajlouny, Defendant.



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

Defendant, Paul Ajlouny ("Ajlouny"), is charged in a 137 count indictment. Count One charges a violation of 18 U.S.C. § 2314. It alleges that Ajlouny transported stolen telecommunications equipment in foreign commerce. Counts Two through One Hundred Thirty-seven charge violations of 18 U.S.C. § 1343. They allege that Ajlouny used a "blue box" to make telephone calls in order to defraud the New York Telephone Company for the use of such services. He now makes the following motions with respect to the indictment:

 
(1) to dismiss the indictment for a violation of the Speedy Trial Act, 18 U.S.C. § 3161 Et seq.;
 
(2) to dismiss the indictment for failing to present evidence in an unbiased way to the grand jury;
 
(3) to sever Count One from the remaining Counts in the indictment;
 
(4) to suppress the seizure of a blue box;
 
(5) to suppress evidence derived from illegal electronic surveillance;
 
(6) to suppress evidence seized from a shipping container;
 
(7) to suppress statements made to the Government;
 
and
 
(8) for discovery.

 The court held an extensive hearing on the fourth, sixth and seventh points. The court found that an evidentiary hearing was unnecessary on the first, second, third and fifth points, but heard oral argument. The court also inspected In camera the minutes of the grand jury with regard to point 2, and considered additional documentation relative to point 5. The parties resolved point 8.

 After considering the voluminous record before the court, the court finds that it must deny defendant's motions to sever, dismiss and suppress, on the basis of fact and law relative to those contentions. The court will now discuss the points raised, and the facts relative to each, Seriatim.

 I. THE SPEEDY TRIAL CONTENTION

 Ajlouny was arrested on April 18, 1978 pursuant to a criminal complaint filed against him. Under the then applicable Speedy Trial Plan for the Eastern District of New York ("Plan"), the Government was required to indict Ajlouny within 45 days from the date of his arrest. Plan Rule 3(a)(2). The time limit was extended for 25 days to June 27, 1978 because of a defense motion for a continuance. 18 U.S.C. § 3161(h)(8)(A). On June 26, 1978, one day prior to the expiration of the time limit, the Government voluntarily dismissed the complaint. The Government wanted to investigate Mr. Ajlouny's actions further in order to present the evidence to a Grand Jury for a possible indictment. (Government Affidavit in Opposition). On September 5, 1978 Ajlouny was indicted.

 Ajlouny contends that the delay between June 26 and September 5 violated the Plan and requires the dismissal of the indictment as a result. In United States v. Hillegas, 578 F.2d 453 (2d Cir. 1978), the court was faced with a similar problem and held that the time between the dismissal of the complaint and the subsequent indictment was excludable time. The court rejected the contention that the delay required the dismissal of the indictment. Since this court finds the decision in Hillegas to be controlling, it rejects Ajlouny's contentions. See also 18 U.S.C. § 3161(h)(6); Plan § 5(d)(3); Plan § 9(a)(6); United States v. McClean, 528 F.2d 1250 (2d Cir. 1976) (5 1/2 month delay); United States v. Flores, 501 F.2d 1356 (2d Cir. 1974); United States v. Sebastian, 428 F. Supp. 967 (W.D.N.Y.1977), Aff'd, 562 F.2d 211 (2d Cir. 1977). Moreover, even a technical violation of the Plan would not require a dismissal of the indictment. See Plan § 10(e); United States v. Carini, 562 F.2d 144 (2d Cir. 1977).

 Ajlouny also sought a hearing to determine the reason for the Government's dismissal of the complaint. The court denied the request. Here, the Government stated that it intended to present documentary evidence to a grand jury. Based on the Assistant United States Attorney's representations, in his affidavit and in court, the court is satisfied that the Government had a good faith basis for the initial dismissal of the complaint. Under these circumstances, and in light of the clear legal rule of Hillegas, supra, the court found no need for a hearing on this issue. See United States v. Elsbery, 602 F.2d 1054 (2d Cir. 1979). Accordingly, Ajlouny's motion to dismiss the indictment is denied.

 II. THE GRAND JURY CONTENTIONS

 Ajlouny contends that the Grand Jury heard inflammatory and irrelevant references concerning his relationship to the Palestine Liberation Organization ("PLO"), and that the prejudice which resulted requires the dismissal of the indictment. In response to this claim, the court held an In camera inspection to determine the nature and scope of any reference to the PLO during the presentation of evidence to the Grand Jury. An examination of the minutes revealed minimal references to the PLO, which in the context of the proceedings were not inflammatory, if not completely innocuous. Moreover, according to the Government's stated theory of its case, Ajlouny's alleged connection to the PLO appears to be relevant to the Government's inquiry in any event. Since the indictment appears valid on its face, and the presentation to the grand jury was made in a good faith effort to provide material and relevant facts during the investigative stage of the proceedings, the court finds no basis for dismissing the indictment. *fn1" See United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972).

 Ajlouny also contends that the Government's failure to record the prosecutor's colloquies with the grand jury requires the dismissal of the indictment. While recording of the prosecutor's remarks may be the better practice, the failure to record is not a basis for dismissing the indictment. United States v. Rubin, 559 F.2d 975 (5th Cir. 1977); United States v. Peden, 472 F.2d 583 (2d Cir. 1973); United States v. Greater Syracuse Bd. ...


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