UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
January 21, 1982
UNITED STATES OF AMERICA,
DOMINICK NAPOLITANO, a/k/a "Sonny Black," BENJAMIN RUGGIERO, a/k/a "Lefty," JOHN CERASANI, a/k/a "Boobie," NICHOLAS SANTORA, a/k/a "Nicky," JAMES EPISCOPIA, a/k/a "Jimmy Legs," and ANTONIO J. TOMASULO, a/k/a "Boots," Defendants
The opinion of the court was delivered by: SWEET
The government moves for a deferral of discovery and a Speedy Trial Act continuance pursuant to the interest of justice provision, 18 U.S.C. § 3161(h)(8)(A). This is a six defendant, two count indictment charging violations of the Rico Statute, 18 U.S.C. § 1962 (c) & (d). The pattern of racketeering in the conspiracy and substantive counts is based on allegations of murder, armed robbery, narcotics, and gambling.
The procedural history relevant to this application starts with the arrest of defendant Ruggiero on August 29, 1981. On September 9, 1981, pursuant to 18 U.S.C. § 3161(h)(8), the government applied for and received a thirty day continuance, thereby postponing the date for a preliminary hearing or indictment. The government cited to the complex nature of the case, the need to protect an ongoing undercover investigation, and the extensive evidence, including electronic surveillance, which required analysis prior to indictment. On October 8, 1981, the government applied for and received an additional forty-five day delay of the date for a preliminary hearing or indictment on essentially the same basis as the initial motion and in addition, on the need to procure grants of immunity from Washington for several grand jury witnesses and to coordinate with investigations in the Southern District of Florida.
On November 23, 1981, the defendants were indicted. A pretrial conference was held on December 3, 1981, at which time it was determined that the government would complete its voluntary discovery by January 5, 1982, at which time another pretrial conference would be held, and a schedule for defense motions and trial would be fixed. On December 28, 1981, the government filed a notice of motion to submit a statement ex parte for the purpose of a deferral of discovery and a Speedy Trial Act continuance. On January 5, 1982, this court permitted the submission of an ex parte affidavit, which details the progress of the investigation underlying this case. Attached to this affidavit were the two prior ex parte affidavits which had been submitted by the government to obtain the two pre-indictment continuances totalling seventy-five days.
In essence, the government seeks to defer discovery of certain body consent tapes, Title III recorded statements, and videotaping relating to the Florida proceedings as well as to this action until January 31, 1982, for purposes of coordination. Additionally, the government seeks to defer discovery of certain other Title III interceptions for ninety days. The government again cites the unusual and complex nature of the action, the requirements of coordinating with proceedings in Florida and the real possibility that these matters may result in a superseding indictment. It is appropriate to consider these factors in light of 18 U.S.C. § 3161(h)(8) and the particular facts presented.
Section 3161(h)(8)(A) provides that a judge may grant a "continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." Whether injustice would result from the failure to grant a continuance, whether the case is so complex due to the nature of the prosecution, and whether effective preparation would be denied by the failure to grant a continuance, are all factors to be considered in deciding the government's motion. 18 U.S.C. § 3161(h)(8)(B).
The government's request to withhold the material based on the Florida investigation is granted. In view of the severity of the charges and the complexities of coordinating investigations, the interest of justice requires that the government be granted a deferral of this discovery until January 31, 1982. This time will be excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(8).
The government's request for the deferral of discovery relating to certain additional interceptions warrants separate consideration. Despite the complexity of the evidence and the lengthy undercover investigations requiring detailed analysis and presentation, the material is not new and indeed, has formed the basis of the government's second request for a pre-indictment continuance of forty-five days.
To deny the continuance would mandate disclosure of materials which would impede an ongoing significant investigation. Confronted with a similar, but less complicated situation in United States v. Mannino, 480 F. Supp. 1182, 1188 (S.D.N.Y. 1979), this court granted the government's request to permit a comprehensive analysis of evidence betokening serious criminal charges, recognizing a public interest in such an analysis. Requiring the government either to disclose the materials, thereby adversely impacting on its present investigation, or to dismiss the current indictment and to reindict would jeopardize this interest, which predominates in this situation over the public's interest in prompt disposition of criminal cases and over defendants' interest in obtaining a speedy trial.
In light of these findings, I conclude that the ends of justice served by a continuance outweigh other interests protected by the Act. See United States v. Fielding, 645 F.2d 719, 721-22 (9th Cir. 1981). Therefore, the government's request to defer discovery of this additional material is granted to the extent that it may be withheld until February 24, 1982.
A pretrial conference will be held on February 24, 1982 at 4:30 p.m. in courtroom 302.
IT IS SO ORDERED.
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