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November 25, 1986;

Daniel UNGAR and Peter Giambalvo, Defendants.

The opinion of the court was delivered by: MALETZ


MALETZ, Senior Judge. *fn1"

 The defendant Peter Giambalvo, convicted on a conspiracy charge at his jury trial of August, 1986, moves for a judgment of acquittal on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt. He also moves to dismiss the indictment on the ground that preindictment delay prejudiced his defense, and for dismissal of the indictment or for a new trial on the ground that the government destroyed discoverable and potentially exculpatory material. His co-defendant Daniel Ungar joins these motions. For the reasons set forth below, the motions are denied.



 Giambalvo was previously a Supervisory Consumer Safety Inspector for the New York Import District of the United States Food and Drug Administration (FDA). As a supervisory inspector, he had responsibility for determining what goods imported into New York would be inspected. Daniel Ungar is a retired Chief of the FDA Import Section of the New York Import District. In January 1986, Giambalvo, Ungar, and other persons were indicted on a charge of conspiring, between June 1981 and July 1984, to defraud the United States government of the right to have the faithful and honest service of Giambalvo as an FDA employee and to have the laws and regulations of the FDA administered honestly and impartially. Giambalvo was also charged with bribery in connection with the inspection and release of foods entering the United States; Ungar was charged with aiding and abetting that bribery. Following a jury trial, Giambalvo and Ungar were convicted on the conspiracy charge and acquitted of the bribery charge.

 The members of the alleged conspiracy included Giambalvo, Ungar, Demetrius Christophides, a customs broker who became a government informant during the course of the conspiracy, and Mr. Kefaleas, an importer of figs. Pursuant to the conspiratorial agreement, Christophides received money from agents of Kefaleas in exchange for Christophides' agreement that figs imported by Kefaleas would not be inspected by the FDA. Such an assurance of non-inspection enabled Kefaleas to save money by removing the necessity of obtaining insurance against the possibility of FDA rejection of the figs, and by hastening the appearance of the figs on the market. Christophides represented that he had connections at the FDA who would ensure that the figs would be released without inspection. One of those connections was Giambalvo. The agreement was that Christophides would pay the money received from Kefaleas to Ungar, who in turn would pass the money to FDA inspectors, including Giambalvo.

 The FDA form used during the period in question to authorize the entry and release of imported goods, with or without inspection, consisted of four attached, identical forms separated by carbon paper inserts. The top form was numbered FDA form 701 (701 form). The second form was numbered FDA form 702 (702 form). After completion, the 701 form was kept by the FDA; the 702 form was kept by whatever customs broker was involved in the importation. On each of the identical forms was a box which included the words "This Importation May Proceed Without FDA Examination" (release box). The signature of an FDA inspector in the release box indicated that the goods referred to in the form had been admitted into the United States without inspection. A large majority of the goods entering the New York ports were not inspected, for legitimate reasons.

 Evidence at trial established that despite the fact that the 701 and 702 forms are identical forms of a single carbon set they may, after use, contain different information. When an FDA inspector decided that certain imported goods should be inspected, he would make a notation as to the nature of the inspection on the 701 form in a felt-tip pen that would not leave a mark on the lower copies of the forms. For example, an inspector might use the pen to write "insan" on the 701 form, indicating that the goods in question should be inspected for insanitation; the 702 copy would not show that notation.

 Even where an inspector had written in felt pen on a 701 form to request inspection, the goods in question would sometimes be released without inspection due to shortage of manpower or to other legitimate factors. An inspector would then ultimately sign the release box, using a regular pen that would show through onto the second, 702, copy. In consequence, a top, 701, form, might indicate that inspection of goods had initially been required, but the 702 copy of the form would show only that release had been authorized without inspection, with no indication that inspection had been originally requested.

 Key evidence in the government's case was a large number of 702 forms that the government obtained from customs broker Christophides. Those forms concerned importations of figs by Kefaleas between September and November 1983, and each form showed a signature in the release box by an FDA inspector, some of them by Giambalvo. The government did not introduce into evidence the top, 701, copies of the forms. The defense had requested the corresponding 701 forms but had been informed by the government that the forms had been destroyed by the FDA in the regular course of business. Trial testimony of Mr. Joseph Faline, District Director of the FDA, established that it is FDA practice to retain 701 forms for only six months. On this motion the government represents to the court that in November 1984 it subpoenaed all original release forms from the FDA and that the FDA indicated that the forms for 1983 had already been destroyed. The FDA did produce the 701 forms for 1984, which were turned over to the prosecutor and, subsequently, to the defense.

 Giambalvo at trial introduced into evidence the 701 forms for 1984 that had been obtained from the FDA. Those forms had felt pen markings showing that Giambalvo had requested inspection of 1984 shipments of figs by Kefaleas, although certain of the forms also had signatures in the release boxes indicating that the requested inspections had not in fact occurred. Defense counsel argued in summation that those requests for inspection made in 1984 indicated that Giambalvo had been requiring inspections of Kefaleas's figs, and that Giambalvo was therefore not party to the conspiracy to let the figs enter without inspection.


 Motion for Judgment of Acquittal

 Both Giambalvo and Ungar move for judgment of acquittal. Because neither defendant has met the heavy burden of showing an absence of evidence upon which a reasonable mind could conclude guilt beyond a reasonable doubt, the motions must be denied. ...

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