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UNITED STATES v. BILOTTA

July 31, 1986

UNITED STATES OF AMERICA
v.
FRANCESCO BILOTTA, et al., Defendant



The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge

This is a motion to dismiss two counts of a three-count superseding indictment. Defendant Bilotta charges that his rights under the Speedy Trial Act were violated by the procedure employed by the government in arresting him, indicting him, and indicting him again. For the reasons stated below, the motion is granted.

 Facts

 Defendant Bilotta was arrested on or about November 2, 1984. The complaint upon which the arrest warrant was issued charged three crimes: 1) conspiring, in violation of 18 U.S.C. § 371, to violate 22 U.S.C. § 2778 by exporting without a license speech scramblers, space electronics and anti-"G" suits to the U.S.S.R. and military training equipment and patrol vessels to Libya; 2) conspiring, in violation of § 371, to violate 50 U.S.C. App. §§ 2401 et seq. by exporting electronic equipment to the U.S.S.R. and camouflage to Libya, knowing that the exports would be used for the benefit of those countries, to which exports are restricted; and 3) exporting camouflage to Libya, with the same knowledge, in violation of 50 U.S.C. App. § 2410(a)(1) and 18 U.S.C. § 2. The indictment, which was filed on November 14, 1984, charged only that defendant had exported camouflage in violation of 28 U.S.C. § 2778.

 On April 17, 1986, after delays occasioned by plea negotiations, motions and consensual adjournments, the government filed a three-count superseding indictment charging the defendant with: 1) violating § 371 by conspiring to violate 22 U.S.C. § 2778 by exporting to Libya without a license five Day Record Rangers with Combat Simulation Systems, two DBT-18sc Tank Target Systems, DBT-21c Gunfire Simulator and Smoke Scorer Systems, one hundred Super 1000 Car Telephones, six thirty-six foot SWC9L Sea Fox Class Craft, machine guns, camouflage material and missile target systems; 2) exporting camouflage material without a license in violation of 22 U.S.C. § 2778; and 3) conspiring to violate 22 U.S.C. § 2778 by acquiring and exporting to Russia without a license systems for codification and decoding for voice and speech scramblers. Defendant does not argue that Count Two, which merely restates the original indictment, violates the Speedy Trial Act. He is quite concerned, however, with the addition of the two conspiracy counts.

 Discussion

 The Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., provides in relevant part:

 Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

 Defendant argues that the superseding indictment filed on April 17, 1986 violated this thirty-day provision because he was arrested in connection with those charges on November 2, 1984. The government contends that the charges in the superseding indictment are different from those outlined in the complaint underlying defendant's arrest and that the thirty-days-to-indict rule therefore does not apply.

 The government is correct that section 3161(b) "bars prosecution . . . only for the charges alleged in the complaint," United States v. Napolitano, 761 F.2d 135, 137 (2d Cir.), cert. denied, 474 U.S. 842, 106 S. Ct. 129, 88 L. Ed. 2d 106 (1985); it does not prevent later prosecution for different crimes even if the "subsequent charges . . . arise from the same criminal episode as those specified in the original complaint or were known or reasonably should have been known at the time of the complaint," id. Where, however, the government indicts a defendant for the same conduct for which it had arrested him more than thirty days previously, the charge must be dismissed. See United States v. Gonzalez, 748 F.2d 74, 79 (2d Cir. 1984). Accordingly, resolution of this motion turns on the extent to which the new charges in the superseding indictment restate the charges in the complaint.

 An examination of the two sets of charges reveals that the superseding indictment is simply a more detailed version of the crimes described in the complaint; it is the completed canvas of the painting first etched in the complaint. Almost all the equipment that defendant is alleged in Counts One and Three of the superseding indictment to have conspired to export are mentioned either specifically or generically *fn1" in the conspiracy sections of the complaint.

 The government argues that the charges are different because there are a few items mentioned in the superseding indictment that are not mentioned in the complaint, and some items mentioned in the complaint as part of a conspiracy to violate 50 U.S.C. App. §§ 2401 et seq. are referred to in the indictment in the context of a conspiracy to violate 22 U.S.C. § 2778. *fn2" Those two statutes are similar, *fn3" however, and either charge is a § 371 conspiracy. In the complaint and the superseding indictment the same conduct is alleged to violate the same statute; the only changed allegation is the crime that that conduct is alleged to constitute a § 371 conspiracy to violate. *fn4"

 Even if these technical differences sufficed to satisfy the purposes of the Speedy Trial Act, see generally United States v. Stayton, 791 F.2d 17, 19-20 (2d Cir. 1986); United States v. Caparella, 716 F.2d 976, 981 (2d Cir. 1983), a common sense comparison of the two documents and the particular circumstances of this case militate against an interpretation of the statute that would permit the government to split hairs in this manner. The prosecution has not explained except in the most technical terms how the conspiracies alleged in the superseding indictment can be distinguished from those described in the complaint; it has not even attempted to demonstrate any practical distinction between the two supposedly different plots alleged. Nor has it made a claim that it has acquired additional evidence, or even devised a new legal theory, that would explain why it waited a year and a half to present the superseding indictment. Finally, its dilatory approach to this prosecution and its disregard of its obligations to the Court and the defendant *fn5" ...


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