The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendant Iliana Robinson moves to dismiss the indictment, or in the alternative for a severance. Robinson presents four grounds for dismissal of the indictment: (1) prosecutorial vindictiveness and abuse of discretion; (2) abuse of the grand jury; (3) duplicity of Count Nine of the indictment, and (4) insufficiency of the evidence. If none of these grounds warrant dismissal, defendant contends that severance is necessary to ensure a fair trial free of prejudicial spillover. Each of Robinson's claims will be dealt with seriatim.
I. Dismissal of the Indictment
A. Prosecutorial bad faith
The defendant vigorously contends that the government engaged in improper harassment in futile attempts to coerce her into testifying before the grand jury. This "harassment" began in April 1982, and continued up until her indictment on November 17, 1982. During this period of time, defendant alleges, agents of the Federal Bureau of Investigation ("FBI") came to Ms. Robinson's apartment on numerous occasions to interrogate her and her mother, maintained surveillance outside her apartment, notified her neighbors of the pending investigation, and used all possible methods to force her to cooperate with the grand jury.
Ms. Robinson was first served with a subpoena for testimony on April 14, 1982. This was withdrawn on April 20. In July, Robinson's attorney, Lawrence Stern, was informed by FBI agents and Assistant United States Attorney ("AUSA") Moritz that information gleaned from "wiretaps and bugs on the acupuncture clinic, and the village apartment, and from the informant, Kamau Bayette, implicated Ms. Robinson in the Brinks robbery and that she could be indicted." November 29, 1982 Affidavit of Lawrence Stern at 4. AUSA Moritz also informed Mr. Stern of the possibility for transactional immunity.
On July 2, Robinson accepted subpoenas for testimony, hair samples, photographs, and fingerprints. Later that same day, her car was searched. After adjournment of the return date of the subpoenas and continued assertions by the government that Robinson could be prosecuted in connection with the Brinks case, the defendant moved to quash the subpoena. On July 19, 1982, the government obtained an order conferring use immunity and requiring Robinson's testimony before the grand jury. Robinson refused to testify. Accordingly, Judge Sofaer held Robinson in civil contempt on September 8, and stayed execution pending appeal. On November 4, the Second Circuit affirmed the judgment of civil contempt and issued the mandate forthwith. Judge Sofaer denied an application for a stay and Ms. Robinson surrendered on November 23rd.
A petition for certiorari is currently pending.
The defendant alleges that the government's incessant efforts to secure her testimony amounted to prosecutorial vindictiveness. The fact pattern presented by Robinson, however, does not support her claim. The government has never denied that it sought her testimony and used the contempt proceedings as a prosecutorial tool in an attempt to force Robinson into testifying. The government also has never denied that it had sufficient evidence to indict the defendant long before the indictment was returned. The return of the indictment, after the mandate issued from the Second Circuit affirming the adjudication of civil contempt, does not amount to harassment warranting dismissal of the indictment.
The decision when and whether or not to prosecute rests entirely in the prosecutor's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978). The due process clause is violated only when the decision to prosecute is intended to punish a person for exercising one's legal rights. Id. at 363; United States v. Goodwin, 50 U.S.L.W. 4696, 4697, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982). In essence, the defendant argues that the indictment returned against her was a penalty for exercising her legal right to challenge the subpoena and its underlying basis. The "opportunity for vindictiveness" suggested by defendant does not constitute a due process violation. Goodwin, 50 U.S.L.W. at 4700, 457 U.S. at 384. Instead, there must be a "realistic possibility" that the increased punishment is a result of vindictiveness. Blackledge v. Perry, 417 U.S. 21, 27, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974).
The core of the defendant's argument is that Robinson was legally contesting her civil contempt adjudication at the time of her indictment. The District Court and the Court of Appeals held, however, that Robinson's refusal to testify was baseless. Furthermore, as of July 1982, Robinson was in violation of a court order compelling her testimony.
The government offered Ms. Robinson an avenue that would avoid prosecution. Her failure to avail herself of this opportunity and thus subject herself to indictment cannot form the basis of a claim of vindictiveness. This situation is analogous to the plea bargain situation, in which the prosecutor files additional charges against a defendant who refuses to plead guilty to lesser charges. Goodwin, 50 U.S.L.W. at 4699. Robinson's refusal to testify and thus ignore court orders allows the prosecutor then to decide to prosecute based on information it had compiled earlier. The allegations by defendant are thus insufficient to support dismissal of the indictment based on prosecutorial vindictiveness.
In a companion opinion, I denied the defendant's motion to dismiss the indictment for grand jury abuse. Robinson, in addition, charges that other government abuses of the grand jury warrant dismissal of the indictment: (1) improper use of grand jury subpoenas; (2) interrogation of Samuel Brown; and (3) improper electronic surveillance of conversations with attorneys. This third argument has already been found ...