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February 21, 1986


The opinion of the court was delivered by: BARTELS

BARTELS, District Judge


 Defendant Marat Balagula moves to dismiss the indictment against him, pursuant to § 3162(a)(2) of Title 18 of the

 United States Code, on the ground that he has not been tried within the time limits established by the Speedy Trial Act. 18 U.S.C. § 3161 et seq. The basis for this motion is that the judge to whom this case previously was assigned erred in excluding certain periods from the speedy trial clock.


 Balagula was arraigned on October 22, 1985, along with five others, on charges of credit card fraud, at which time the court scheduled a status conference for November 22, 1985, and set a trial date of December 9, 1985. At the November 22 status conference, counsel for two of Balagula's co-defendants, Nayfield and Zeltser, notified the court of a federal grand jury investigation pending at that time in Pennsylvania concerning "some of the same defendants" and involving "similar witnesses and in fact, just about the same transaction." (Transcript, Nov. 11, 1985 at p. 5). Counsel further indicated that, based on their discussions with the Assistant United States Attorney (AUSA) in the Pennsylvania case, "at least two of the defendants [in the New York case] will be indicted in Philadelphia" within two weeks. (Id. at p. 13). Zeltser and Nayfield therefore requested a continuance so that they could assess the impact of the Pennsylvania indictment on their case here and file motions in Pennsylvania for consolidation of the New York and Pennsylvania prosecutions pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure. The AUSA in New York confirmed, at the November 22 status conference, that a grand jury investigation was pending in Pennsylvania on related charges and that some action would be taken there within the next month. (Id. at p. 6).

 The court granted a continuance from November 22, 1985, to January 10, 1986, and further ordered that that period be deemed an excludable delay for speedy trial purposes in the interests of justice under 18 U.S.C. § 3161(h)(8). The court found, on the record, that the ends of justice outweighed the interests of the public and the defendants in a speedy trial as required by § 3161(h)(8)(A). This finding was based on (1) the fact that several defendants were involved in the Pennsylvania investigation concerning related fraudulent credit card transactions and were likely to be indicted there; (2) the need for those defendants in both cases to assess the impact of the Pennsylvania case; (3) the intention of two defendants to move in Pennsylvania for consolidation, as well as a statement by the AUSA here that he intended to discuss consolidation with his counter-part in Pennsylvania; (4) the waste of time and resources for the court and the defendants of trying both cases before resolving the issue of consolidation; (5) the likelihood that these concerns would not be resolved before the scheduled trial date of December 9, 1985; and (6) the fact that counsel for several of the defendants indicated that they had conflicts which made them unavailable for trial before the beginning of this year.

 With the exception of Balagula, all defendants and the government agreed to the continuance and order of excludable delay. Balagula objected to the continuance and the order of excludable delay, asserting that the reasons therefore were inapplicable to him and that he was ready to proceed to trial immediately. The court noted on the record that, unless Balagula moved for severance, the excludable delay applicable to his co-defendants would apply to him by virtue of § 3161(h)(7) which section provides for exclusion of "a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted." Balagula indicated his intention to file such a motion, but did not do so.

 On December 12, 1985, defendants Balagula, Zeltser and Nayfield were named, along with nine other persons, in a multicount indictment in Pennsylvania charging them with fraudulent credit card transactions. At a conference before the court on January 10, 1986, Zeltser and Nayfield indicated they would move in Pennsylvania for consolidation in the next week. Balagula, on the other hand, although now indicted in the Pennsylvania case, asserted his desire to proceed to trial immediately and that he would move for severance "by the end of next week." However, no such motion was made. The court, noting the absence at that time of any motions either before the New York or Pennsylvania court, refused to toll the speedy trial clock any further and set January 27, 1985, as a trial date, over Balagula's objection that he needed more time to review the evidence against him in the Pennsylvania case.

 On January 13, 1986, Balagula, by letter to the court, stated that he would not move for severance, and instead, on January 17, 1986, filed the present speedy trial motion. Defendants Zeltser and Nayfield filed motions to consolidate in Pennsylvania on January 17, 1986, which motions are scheduled to be heard on February 19, 1986.

 By the court's calculations, 46 days of the speedy trial clock had elapsed by November 22, 1985, when the court entered its order of excludable delay. If that order was in error with regard to Balagula, then the 70 day period within which Balagula should have been brought to trial expired on December 16, 1985 and the indictment against him must be dismissed. If, on the other hand, the November 22, 1985 to January 10, 1986 period was properly excluded, then Balagula's speedy trial clock was tolled at 46 days until January 10, 1986. Another 7 days of the total 70 days elapsed between January 10 and January 17, 1986, at which time Balagula filed this speedy trial motion and defendants Zeltser and Nayfield filed their motions to consolidate in Pennsylvania. It is undisputed by the parties that these latter motions currently toll the speedy trial clock pending their resolution by the court, under § 3161(h)(1)(G), following which there will remain 17 days on the speedy trial clock within which to try the defendants, barring any further exclusions of time.

 Balagula attacks the November 22, 1985 to January 10, 1986 order of excludable delay on several grounds. He asserts that (1) the court failed to weigh the relevant factors and make the appropriate findings on the record to support an "ends of justice" exclusion, as required by the statute; (2) even if the court properly created a record, its reasons did not support an ends of justice delay and thus the court abused its discretion in ordering the exclusion; and (3) even if such exclusion was proper with regard to Nayfield and Zeltser, it was unreasonable to apply it to Balagula.


 Under 18 U.S.C. § 3161(c)(1) a defendant must be tried within 70 days from the date of indictment or the defendant's first appearance, subject to certain exclusions of time as provided in § 3161(h). Section 3161(h)(8)(A), relied upon by the court to exclude the ...

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