The opinion of the court was delivered by: PLATT
The government has moved for an adjournment of the trial date of December 2, 1985, fixed by the Court on June 28, 1985, as a firm date in compliance with the request of the defendant Molina-Chacon (Molina) for as expeditious a trial as possible given the then-anticipated necessary pretrial work in this case and the commitments of counsel to other cases, particularly the commitment of Ivan Fisher, Esq., attorney for defendant Castelbuono, to the so-called "pizza connection" case currently on trial in the Southern District of New York before Judge Pierre Laval.
Prior to fixing of, and on, said date the government had moved for, and the Court had made, findings that the case qualified as a "complex" case under 18 U.S.C. § 3161(h)(8)(B)(ii) (a subdivision of the so-called Speedy Trial Act), which suspended the time requirements of such Act so as to enable all counsel to prepare for trial in this multi-defendant, international, drug smuggling and money laundering case
involving literally hundreds of reels of tapes in Spanish, English and Italian and other exhibits and witnesses located in Switzerland, Italy, Spain, Bermuda, Canada and various parts of this country and elsewhere.
With the exception of the defendant Molina, who has for some time now been asking for an immediate trial, there were no objections to the findings made by the Court in this respect.
Defendant Molina, who has been detained without bail since his arrest in March of this year, has made two motions to dismiss the indictment against him for failure to give him a speedy trial and to be released from custody pursuant to 18 U.S.C. § 3164, the first of which was predicated upon the Speedy Trial Act (the "Act") prior to the amendments made thereto in 1979 and then withdrawn and the second of which was served and filed on October 7, 1985 and was returnable on October 11, 1985.
On October 17, 1985, the government served and filed a memorandum of law in opposition to such motion. In connection with this second motion the government called the attention of counsel and the Court to 18 U.S.C. § 3161(h)(9), which it suggested should afford additional grounds to claim suspension of the time limits prescribed by the Act because it had been and still was required in this case to obtain testimony of foreign witnesses in foreign countries for use at the trial.
The government has argued since June of this year that "no time has expired on defendant Molina's speedy trial clock, because the speedy trial calculations applicable to co-defendant Messina govern, and the period of delay is a reasonable one." Government's Memorandum dated September 23, 1985 at 3.
The government points out that, while Mr. Molina was indicted on March 20, 1985 after first appearing before a federal magistrate on March 12, 1985, his counsel first requested time to serve and file pretrial motions on April 1, 1985, which suspended the time prescriptions of the Act pursuant to 18 U.S.C. § 3161(h)(1)(F). Thus, even if the case were proceeding against Mr. Molina alone, only ten days would have run on his speedy trial clock. However, his co-defendant Messina did not appear for arraignment on the original indictment herein until May 9, 1985, which means that the speedy trial clock as to Molina and all of the other then-named co-defendants did not commence to run until this latter date (18 U.S.C. § 3161(h)(7)), by which time the speedy trial clock had already been suspended by reason of the requests for and later filing of pretrial motions by Molina and various other co-defendants.
This part of the problem has been arguably further complicated by reason of the then pregnancy of the most recently added and arraigned (on September 30, 1985) defendant, Ms. Sheila Silvetti, who made her first motions in this unusual and complex case on November 25, 1985. Said defendant had then (i.e., in September) just given birth to a daughter fathered by co-defendant Castelbuono. The government forewent seeking an indictment against defendant Silvetti along with the remaining defendants last spring at the special instance and request of the defendant Castelbuono.
At a pretrial hearing at the end of June, the Court discussed with counsel the earliest date and the needed times for evidentiary hearings necessitated by the many pretrial motions which had been made and it was agreed by counsel for Castelbuono and Molina that the former's Kastigar2 and suppression hearings would be conducted and completed between August 27th and September 4th and that the latter's doctrine of specialty and suppression hearings would be conducted and completed between September 9th and 13th.
Mis-estimates of time requirements by attorneys are not an uncommon occurrence, but rarely on the scale or magnitude that occurred in this case. Notwithstanding daily
in-court sessions (with a two and one-half week recess for necessary out-of-country and out-of-State testimony and investigations in October) the Kastigar and suppression hearings, which were commenced on August 27th, were not completed until November 7th, and the doctrine of specialty hearings, which were adjourned until November 18th, were not completed until Thursday, November 21st.
In September, during the course of the Kastigar hearings, it became quite clear to the Court that this case required more than one person to prepare and prosecute the same if there were to be any chance of meeting the December 2nd date, and the Court orally advised Ms. Schachner to request additional assistance from her superiors. Apparently this request was granted at that time, at least to the extent that some assistance was provided to Ms. Schachner with respect to the research and briefing of the issues which were emerging in the Castelbuono Kastigar hearings.
Aware in mid-September of the fact that it was sitting on a number of motions until the facts of the case were at least partly disclosed in the course of the Kastigar hearings, the Court, before the October recess, called for oral argument on the recusal and severance motions made by Steven M. Del Vecchio, Esq., counsel for defendant Messina, for a severance or to remove Lawrence S. Goldman, Esq., counsel for defendant DiTommaso, because of Mr. Goldman's prior representation of Mr. Messina on another narcotics charge and trial before the undersigned in the early 1980's and of his motion for a severance from Mr. Castelbuono's trial on the ground that the latter had formerly represented Mr. Messina in civil matters,