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