The opinion of the court was delivered by: DUFFY
The defendants Russell Bufalino and Michael Rizzitello are charged in a two count superceding indictment with conspiring to violate the civil rights of a federal witness under 18 U.S.C. § 241. Bufalino alone is charged with obstruction of justice under 18 U.S.C. § 1503. Simply stated, the indictment accuses the defendants of plotting to kill Jack Napoli. At the time of this alleged plot, Napoli was a government witness who was prepared to testify against Bufalino on extortion charges in another criminal case in the Southern District of New York.
Both defendants now move to dismiss the indictment on several grounds. First, they argue that the government purposely waited an inordinate amount of time before obtaining the indictment in order to gain a tactical advantage over the defendants. Defendants assert that this delay resulted in actual prejudice to them and violated their rights to a fair trial. Second, they argue that the superceding indictment, which contains crimes with harsher penalties than those in the original indictment, was the result of government vindictiveness. Third, the defendants submit that Count I of the indictment does not describe an offense for conspiracy to violate one's civil rights, and if anything, the acts contained in the indictment describe a violation of a more specific statute such as 18 U.S.C. § 1503 (obstruction of justice) or 18 U.S.C. § 371 (conspiracy to obstruct justice). Finally, Bufalino argues that Count II of the indictment alleges facts insufficient to support a charge of obstruction of justice. For the reasons that follow, none of defendants' arguments justify dismissal of this indictment.
The defendants assert that the government waited several years after it had obtained the information now relied upon in the instant indictment before prosecuting this case. The principal source of the information relied upon by the government is the testimony of James Fratianno, who is also known as the "Weasel." Fratianno is now in the Federal Witness Protection Program and has a cooperation agreement with the government which was entered into on or about March 30, 1978. Since that time, Mr. Fratianno has testified numerous times resulting in indictments and convictions of many organized crime figures.
The government first became aware of Bufalino's alleged plot to kill Napoli during an FBI interview with Fratianno on March 22, 1978. At this interview, Fratianno stated that he and defendant Rizzitello travelled to New York City sometime in late 1976 and met with defendant Bufalino at Vesuvio's Restaurant. At the restaurant, Bufalino told Fratianno and Rizzitello that Jack Napoli, who was another participant in the Federal Witness Protection Program, was prepared to testify against Bufalino in an upcoming federal trial in New York on charges of extorting money from Jack Napoli. Bufalino explained that Napoli was living in Walnut Creek, California under an assumed name and was operating a "pork store." Bufalino purportedly asked Fratianno and Rizzitello to locate and kill Napoli in Walnut Creek in order to prevent Napoli from testifying.
According to Rizzitello's attorney, Mr. Napoli knew as early as October, 1976, that Bufalino had a "contract" out to kill him. In September, 1976, Rizzitello was arrested on unrelated charges by state authorities near Walnut Creek, California, which is far away from his home in Los Angeles. On Rizzitello's person was found several documents containing information about Jack Napoli, several telephone numbers and the initials of Russell Bufalino. In August, 1977, Jack Napoli testified at Bufalino's trial concerning attempts of Bufalino to collect a debt from him by threats and extortion. Bufalino was convicted soon thereafter.
In December, 1980, Fratianno's account of these events was presented to a grand jury. This led to the original indictment against the defendants. On December 31, 1980, Rizzitello was arrested in California. At that time, he was awaiting a sentence in the Central District of California on a conviction for three crimes each involving a maximum penalty of twenty years. Believing that Rizzitello planned to flee, the government made an application before me to raise Rizzitello's bail pending his sentence. I refused this application because of the government's failure to bring this to the attention of the judge in California. Rizzitello was subsequently sentenced to five years but remained on a $ 50,000 personal recognizance bond pending appeal.
On April 2, 1981, the government brought a superceding indictment which replaced the count of the indictment against Rizzitello involving conspiracy to obstruct justice under 18 U.S.C. § 1503 with conspiracy to violate a citizen's civil rights, 18 U.S.C. § 241. Section 241 contains a harsher penalty than Section 1503. The government represents that the reason for bringing the superceding indictment is the dearth of evidence going to Rizzitello's awareness of Napoli's status as a federal witness. Proof of such an awareness is a necessary element under 18 U.S.C. § 1503, but not an element under 18 U.S.C. § 241.
The defendants argue that the government waited nearly four years from the date the conspiracy first became known to the government before bringing this indictment. As a result, according to the defendants, it has become impossible to present any alibis. Several witnesses to the alleged meeting at the Vesuvio's Restaurant have since died, others are either no longer available or their memories are blurred. Also, the defendants assert that the delay has prevented the government from specifying the exact dates and times of the events charged in the indictment.
For pre-indictment delay to result in a due process violation, there must be actual prejudice to the defendants' right to a fair trial and unjustifiable government conduct. See United States v. Elsbery, 602 F.2d 1054 (2d Cir. 1979), cert. denied, 444 U.S. 994, 100 S. Ct. 529, 62 L. Ed. 2d 425 (1980).
The defendants have not met their burden of showing that there was any misconduct by the government or any attempt by it to gain a tactical advantage over the defendants. Although Fratianno's testimony was made available to the FBI more than two years before the first indictment was brought, the government did not obtain corroborative testimony until approximately six months prior to the indictment. It appears from the record before me that the government was justified in waiting for such additional evidence before presenting the case to the Grand Jury.
Even if the delay by the government was unwarranted, the defendants have also failed to demonstrate actual prejudice caused by the delay. The defendant Rizzitello asserts that a prior inconsistent statement regarding the whereabouts of his meeting with Bufalino was made by Fratianno in a book entitled "The Last Mafioso," which is Fratianno's life story as told to the author, Ovid Demaris. In the book, the meeting between Fratianno and Bufalino supposedly took place at the Rainbow Room, not Vesuvio's Restaurant, and moreover, Rizzitello was not present. Defendant Rizzitello now claims that several witnesses present in the Rainbow Room are now unavailable to corroborate the book's version of events.
This evidence does not suffice to demonstrate actual prejudice to Rizzitello. There is no indication that any of these potential witnesses in the Rainbow Room were privy to the contents of the meeting, which the book describes as being between Fratianno and Bufalino only. In addition, no explanation is offered by defendants as to why these witnesses are unavailable and what efforts have been made to locate them. Also, the mere assertion that some witnesses' recollections may be impaired as a ...