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UNITED STATES v. BORELLO

October 4, 1985

UNITED STATES OF AMERICA, against RALPH BORELLO, Defendant


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 Defendant is charged with introducing "adult" films into the United States by means of false statements, in violation of 18 U.S.C. § 542, and smuggling the films into the United States, in violation of 18 U.S.C. § 545. He previously was convicted of both offenses after a jury trial in this district. On June 12, 1985, however, the Second Circuit reversed his conviction and ordered a new trial.

 Defendant now moves to dismiss and/or suppress evidence, asserting that (1) his immunized grand jury testimony taken after the verdict in his first trial bars a retrial; (2) the prosecutor failed to maintain a complete transcript of the grand jury proceedings, in violation of Fed. R. Crim. P. 6(e)(1); (3) the prosecutor improperly identified himself to the grand jury as a member of the Organized Crime Task Force; (4) the prosecutor failed to call certain witnesses before the grand jury; and (5) the delay in prosecuting the case violated defendant's due process rights. In addition, defendant moves to strike surplusage in the indictment. *fn1"

 On October 2, 1985, this Court ordered that an evidentiary hearing be held regarding defendant's claims of (a) pre-indictment delay and (b) intentional failure to transcribe grand jury proceedings. Accordingly, decision is reserved on those issues. *fn2"

 In all other respects, defendant's motions are denied.

 Facts

 On April 12, 1984, an indictment was filed charging defendant Borello with one count of attempting to introduce films into the commerce of the United States by means of false statements and fraudulent documents, 18 U.S.C. § 542, and one count of intentionally defrauding the United States government by smuggling films, 18 U.S.C. § 545. Defendant was arraigned on April 17, 1984.

 On July 24, 1984, the jury found Borello guilty on both counts. On October 12, 1984, the Honorable Henry Bramwell, United States District Judge, sentenced Borello to a five-year term of imprisonment and a fine of $5,000.

 On November 29, 1984, following his conviction, Borello was subpoenaed to testify before a federal grand jury, pursuant to an order of immunity under 18 U.S.C. §§ 6002 and 6003. Borello moved to quash the subpoena on the grounds that the grant of immunity was not sufficient to safeguard his rights against self-incrimination and was not coextensive with that privilege. The motion to quash was denied by the Honorable I. Leo Glasser, United States District Judge. Accordingly, Borello was compelled to testify concerning the events surrounding the importation of the films.

 Thereafter, on June 12, 1985, the Second Circuit reversed Borello's conviction and remanded the case for a new trial. Defendant filed this omnibus motion on August 23, 1985, and argument was heard on September 3, 1985.

 Discussion

 Grand Jury/Immunity

 Defendant moves for dismissal of the indictment, contending that his compelled grand jury testimony given under a formal grant of immunity bars his retrial for the offenses charged therein. In the alternative, he seeks an order either barring the United States Attorney's office for the Eastern District of New York from prosecuting the case, or erecting a "Chinese ...


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