(8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
(B) The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:
. . .
(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.
These provisions "do not permit unlimited delays, and the trial court has the responsibility to ensure that the length of an excludable continuance is reasonably related to the needs of the case." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1197 (2d Cir.) (citing United States v. LoFranco, 818 F.2d 276, 277 (2d Cir. 1987)), cert. denied, 493 U.S. 933 (1989). In the instant case, however, given the large number of defendants and counts charged in the indictment; the substantial proof expected to be offered at trial; the extensive pretrial motion practice in which various defendants have engaged; the effects of the Supreme Court's 1990 Grady v. Corbin decision on Double Jeopardy Clause jurisprudence in general and in this case in particular; and the Supreme Court's pending decision on the Government's certiorari petition from the Second Circuit's decision on Giuseppe Gambino's Double Jeopardy claims, the "ends of justice" will best be served by waiting until the Supreme Court finally disposes of the Government's certiorari petition before commencing the joint trial of the Group A defendants. Cf. United States v. DiTommaso, 817 F.2d 201, 210 (2d Cir. 1987) ("multidefendant, international drug smuggling and money-laundering case was sufficiently complex to warrant excludable time" under 18 U.S.C. 3161(h)(8)(B)(ii)). In the instant case, the alternative to granting a continuance would be two or more lengthy, complex trials of various Group A defendants, with a greater possibility of inconsistent verdicts and all of the unwelcome burdens on the judicial system of multiple separate trials, as opposed to one (albeit lengthy and complex) proceeding in which all of the charges contained in the indictment can be adjudicated. The moving defendants have therefore failed to establish that their rights under the Speedy Trial Act entitle them to an immediate trial.
Lastly, the Court notes that neither Inzerillo nor Mannino has alleged entitlement to an immediate trial under the Speedy Trial Clause of the Sixth Amendment, but even if they had made such a claim, that claim would fail. The Sixth Amendment provides in part that "in all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." "The principal purpose of the speedy trial clause is to protect the accused from unnecessary delay on the part of the government in bringing the accused to trial." United States v. Diacolios, 837 F.2d 79, 82 (2d Cir. 1988) (citations omitted). There are four factors that "must be considered in determining whether a defendant's sixth amendment right to a speedy trial has been violated: (i) the length of the delay, (ii) the reason for the delay, (iii) whether and how the defendant has asserted his speedy trial rights, (iv) resultant prejudice, if any." Garcia Montalvo v. United States, 862 F.2d 425, 426 (2d Cir. 1988) (per curiam) (citing Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972)). "No one of these factors, however, is 'either a necessary or sufficient condition to the finding of a deprivation of a right,' and courts still must engage in a sensitive balancing process whereby the conduct of both the prosecution and the defendant are weighed." Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (emphasis in original) (quoting Barker v. Wingo, 407 U.S. at 530), cert. denied, 488 U.S. 1032, 102 L. Ed. 2d 974, 109 S. Ct. 842 (1989).
An analysis of the Barker v. Wingo factors indicates that the delay between indictment and the expected date of trial of the Group A defendants easily passes muster under the Sixth Amendment. First, the time between the filing of the original indictment in this case, in which both Inzerillo and Mannino were charged -- December 14, 1988 -- and the expected date of trial, although lengthy, is not itself beyond the bounds of propriety under the Sixth Amendment. Cf. United States v. Vasquez, 918 F.2d at 338 ("delay of 24 months is 'considerably shorter than that of other cases in which no Sixth Amendment violation has been found'") (quoting United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980)).
Second, the reasons for the delay include the complexity of this multidefendant case, in which a conspiracy lasting approximately 15 years is charged; the extensive pretrial motion practice before this Court, the Second Circuit, and the Supreme Court, in which many of the defendants (including the moving defendants) have engaged; and the substantial uncertainty with respect to the prosecution of Counts One and Two against Giuseppe Gambino caused by the Supreme Court's 1990 Grady v. Corbin decision. These reasons all justify the delays encountered in this trial, and the Court is satisfied that the Government has been absolutely diligent in its prosecution of the case.
Third, the moving defendants did not advance their Speedy Trial claims until November 29, 1991 -- nearly three years after the original indictment was filed, which would "hardly render plausible their contention that an expeditious resolution of their cases was a matter of pressing constitutional importance for them." United States v. Vasquez, 918 F.2d at 338.
Fourth, the prejudice resulting to the moving defendants is slight. Inzerillo has remained free on bail while the charges contained in the indictment are pending. Although Mannino is currently incarcerated, and "incarceration in the pretrial period [is] a hardship and must be included in the assessment of 'prejudice,'" id., Mannino was only comparatively recently remanded into custody after the Court revoked his release conditions and his incarceration does not "'approach the prejudice suffered by defendants in cases where [the Second Circuit has] found a speedy-trial violation." Id. (quoting Flowers v. Warden, 853 F.2d 131, 133 (2d Cir.), cert. denied, 488 U.S. 995, 102 L. Ed. 2d 588, 109 S. Ct. 563 (1988)). Therefore, even if Inzerillo and Mannino had advanced a Speedy Trial claim under the Sixth Amendment, such a claim would fail.
For the reasons stated above, the moving defendants' motions for severance of their trials pursuant to Fed. R. Crim P. 14 and for immediate trial are denied in their entirety.
New York, New York
February 18, 1992
Peter K. Leisure