The opinion of the court was delivered by: SIFTON
Defendant has moved to dismiss the indictment in this case, which charges him with the receipt in the period July through December 1976 of 550 boxes of Haviland china said to have been stolen from a shipment originating in Limoges, France, and destined for New York. The grounds for the motion are (1) that the Government has, in connection with this case, violated a previous plea agreement pursuant to which the defendant pleaded guilty in 1978 to receipt of cosmetics stolen from an interstate shipment in 1977; and (2) that the delay from December 1976 to August 1981 in indicting the defendant for receiving the stolen china violates his fifth amendment right of due process. For the reasons set forth below, defendant's motion must be granted on the first ground urged.
In December 1977 the defendant was arrested, along with five others, and charged in a complaint with possession of a large quantity of cosmetics alleged to have been stolen from an interstate shipment. The FBI agent placed in charge of the case was Ronald W. Kosednar, who was assigned at the time to the hijacking unit of the Manhattan office of the FBI. After the arrest and arraignment of the defendants, on December 27, 1977, Kosednar prepared and submitted an "Indices Search Slip" to the New York FBI regional office central files to determine if any of the persons arrested, including Puma, were the subject of any other active FBI investigations.
The indices search slip was returned to Agent Kosednar in early January 1981. With respect to defendant Puma the report indicated that Puma was under investigation in connection with a number of other cases involving property stolen from interstate shipment. One of those cases was the theft of china which forms the basis for the indictment in the present case.
Agent Kosednar requested and examined the files with regard to the other active cases involving the defendant listed in the indices check report to determine if the files in fact related to Puma, indicating that he had done so by placing a letter "I" next to the number of the files he requested and examined and determined to involve the identical person. For reasons that the agent was unable to explain at the hearing held on the instant motion, no mark was made next to the file with regard to the theft of the Haviland china, and the agent was unable to recall whether or not he requested and examined the FBI's file with regard to that theft or not.
No indictment in connection with the cosmetics theft was filed until the summer of 1978. Hearings with regard to suppression motions were thereafter conducted before the undersigned on September 28 and 29 of that year. Prior to and during the course of these hearings, plea discussions were held, without the Court's participation, between counsel for defendant Puma, Mark Landsman, and counsel for the Government, Assistant United States Attorney Michael Soroka. According to the testimony of both participants at the hearing, Mr. Landsman's primary concerns were (1) to secure an agreement that, in return for his client's plea to a charge of conspiracy to possess stolen property, his client would not be prosecuted in connection with the underlying theft of the cosmetics, and (2) to determine that there were no other active FBI investigations of Puma for possession of stolen property.
In connection with the first of Landsman's two objectives, Soroka agreed to determine if Puma would be prosecuted for any involvement in the theft of the cosmetics which were the subject of the pending charges. In connection with Landsman's second objective, Soroka asked either Kosednar or another agent assigned to the case, Patrick F. Colgan, whether there were any current investigations pending against Puma. In response Soroka was told by Kosednar that there were none. In fact, the investigation of Puma in connection with the china theft was still open and active on the FBI's central indices files and remained so until the indictment in this case.
This flat misstatement was, I find, inadvertent. Rather than checking the central indices file or even his own case file which contained the results of the December 27, 1977 inquiry, Agent Kosednar simply relied on his own general awareness of the active cases being handled by himself and others in his unit of the Manhattan office of the FBI. Unfortunately, the case involving Puma's possession of the Haviland china had originated in the New Rochelle office of the FBI and was being conducted with unusual precautions because of the involvement of a confidential informant, Joseph Cantalupo. In all events, the Assistant United States Attorney thereafter entered into an agreement with defense counsel that Puma would not be prosecuted for the cosmetics theft and that there were no other pending investigations of him for receiving stolen property. In return, Puma agreed to plead guilty to conspiracy to receive the stolen cosmetics.
Thereafter, at the time of plea, in response to the undersigned's question: "What is the nature of the agreement between defendant and the Government which has led to this plea?", the Assistant United States Attorney Soroka made the following statement, inter alia :
"In addition, I will represent to the Court and to the defendants and their counsel that there is no current investigation of which I am aware with regard to any of these defendants concerning the theft of any other items from interstate shipment."
Puma then entered a plea of guilty to a charge of conspiracy to possess the stolen cosmetics and on December 1, 1978, was sentenced by the undersigned to three years' imprisonment. He was released from this sentence in August 1980, after serving 19 months.
Nine months after his release, in May 1981, defendant was arraigned on the present indictment. The Government explains this delay as having been occasioned by a need to protect the informant's confidentiality; by the commitments of the informant, Joseph Cantalupo, whose evidence is said to be necessary to establish defendant's guilt in this case, to the prosecution of other, more pressing cases; and by the commitment of the Special Attorney for the Organized Crime Strike Force, to whom all cases involving Cantalupo were assigned, to other, more serious investigations and trials.
I find no basis for dismissal of the indictment in this case for prosecutorial delay, even though it is undisputed that the indictment was filed on the eve of the expiration of the statute of limitations. There is no basis in the record, other than speculation, for concluding that, in this case, the Government "intentionally delayed to gain some tactical advantage ... or to harass." United States v. Marion, 404 U.S. 307, 325, 92 S. Ct. 455, 466, 30 L. Ed. 2d 468 (1971). On the contrary, the undisputed evidence submitted in connection with the motion, including the evidence submitted at the hearing, indicates that the delay in prosecuting this case results entirely ...