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July 19, 1991


The opinion of the court was delivered by: Conboy, District Judge:


The indictment charges the defendant with conspiracy to sell more than 100 grams of heroin and selling heroin on four separate occasions during the summer of 1986.

The Court has before it a number of motions filed by the defendant a) to dismiss the indictment because the prosecution is based upon prosecutorial vindictiveness b) to preclude the Government from introducing at trial evidence pursuant to Rule 404(b) and Rule 609(b) of the Federal Rules of Evidence c) to require the Government to produce one Harry Smith for an interview with defendant's counsel and d) to require the Government to furnish defendant with certain particulars about the charges in the indictment.

As we have indicated, the charges in this case deal with facts and events that occurred in 1986.

On or about June 2, 1986, a narcotics investigation of Harry Smith ("Smith") and his sources of supply was approved by the Acting Chief of Narcotics for the United States Attorney's Office for the Southern District of New York ("the Office"). After this approval was obtained, the Office was not involved in the investigation, arrests, and prosecution of the defendant and Smith later that summer and fall. The case was handled and supervised by the Office of Prosecution, Special Narcotics Courts of the State of New York, shortly after the first undercover meeting on June 2, 1986. Until late 1990, no criminal case had been opened or even considered by the Office against White for the offenses arising out of the 1986 conspiracy. (Aff. ¶ 2.)*fn*

After an investigation by the Drug Enforcement Administration ("DEA") during the summer of 1986 the defendant and Smith were arrested on September 4, 1986 by the DEA and charged in a New York State criminal complaint with having violated P.L. 220.21, Criminal Possession of a Controlled Substance in the First Degree. The defendant's Mercedes Benz car was seized by the DEA under federal forfeiture law and was subsequently administratively forfeited when the defendant did not respond to the notice of forfeiture. (Aff. ¶ 3.).

By late 1986 or early 1987, the charge in the criminal complaint against the defendant was dismissed by New York State. According to the Assistant District Attorney in charge of the case at the time, the charge was probably dismissed due to lack of admissible evidence under state law. There is no indication in the records of the state prosecutor or of the state court files that the dismissal of the criminal complaint charge was with prejudice. Regardless, the defendant was not subsequently charged by the state by complaint or indictment. The Office was not involved in the state's decision to dismiss the charge against White and was not informed of this action. (Aff. ¶ 4.)

On or about September 10, 1986, Smith was indicted in eleven counts by a New York State grand jury and charged with criminal sale of a controlled substance in the first, second, and third degrees, and criminal possession of a controlled substance in the first and third degrees, in violation of P.L. §§ 220.43, 220.41, 220.39, 220.21 and 220.16. Smith subsequently pleaded guilty in New York Supreme Court to criminal sale of a controlled substance in the second degree in violation of P.L. § 220.41 and received a sentence of three years to life. The Office was not involved in the prosecution or sentencing of Smith. (Aff. ¶ 5.)

In August 1990 the forfeiture case was then assigned to Assistant United States Attorney ("AUSA") Richard E. Signorelli, a member of the Criminal Division of the Office. After reviewing the case and making an independent determination that there was ample probable cause supporting the forfeiture of the car and that the Government should proceed with the forfeiture action, AUSA Signorelli filed, in December 1990, a verified complaint against the car pursuant to 21 U.S.C. § 881(a)(4) and (6). After receiving an extension from the Government, the defendant filed an answer to the complaint in January 1991. (Aff. ¶ 7).

On the basis of information obtained from a comprehensive review of the evidence in the forfeiture case, AUSA Signorelli also determined that there was probable cause to believe that the defendant had engaged in criminal conduct which had gone unprosecuted. Specifically, the admissible evidence in the case indicated that the defendant had in fact supplied Smith with the heroin which was sold to the undercover agent during the summer of 1986. (Aff. ¶ 8).

AUSA Signorelli reviewed the case in detail on several occasions with the Chief of Narcotics for the Office. He apprised her of all the relevant facts of the case. She subsequently approved the opening of a criminal case for the defendant's 1986 offenses and approved the presenting of the case to the grand jury. This was the only time that the Office had considered criminal charges against the defendant. (Aff. ¶ 9).

On March 14, 1991, the case was presented to the grand jury which returned a five-count indictment that day. The defendant was arrested on the indictment several days later. Immediately after his arrest, AUSA Signorelli notified the defendant's attorney in the forfeiture case, Stacy J. Haigney, that the defendant had been indicted and arrested. AUSA Signorelli requested a stay of the forfeiture action until the resolution of the criminal case. Such a stay was consented to by counsel and ordered by Judge Mukasey. The forfeiture action for the car, and for two properties owned by the defendant which were seized after the indictment pursuant to a verified complaint and filed as a related case, are currently in suspense and will be reactivated after the resolution of this criminal case. (Aff. ¶ 10-11).

Prior to the filing of the indictment, there were no discussions between anyone from the Office and counsel for the defendant, regarding the possible filing of criminal charges against the defendant. At no time, upon and after the filing of the indictment charging the defendant with his narcotics offenses, has anyone from the Office discussed with any of the defendant's criminal or civil attorneys the dropping or reducing of the criminal charges against the defendant in exchange for the dropping of the defendant's ...

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