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September 30, 2004.


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


Defendant Thomas Carbonaro was indicted for, among other things, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Carbonaro brings this motion to dismiss one of the predicate RICO acts on the ground of prejudicial pretrial delay. For the following reasons, the motion is DENIED.


  As the Court has already recounted in detail the facts and procedural history of this case in its three previous decisions, it will not do so here. See United States v. Gotti, No. S5 02 Cr. 743 (RCC), 2004 WL 895529 (S.D.N.Y. Apr. 27, 2004); United States v. Gotti, No. S5 02 Cr. 743 (RCC), 2004 WL 602689 (S.D.N.Y. Mar. 26, 2004); United States v. Gotti, No. S4 02 Cr. 743 (RCC), 2004 WL 32858 (S.D.N.Y. Jan. 6, 2004). The Court includes only those facts pertinent to the instant motion.

  Carbonaro, an alleged associate and soldier in the Gambino Organized Crime Family, is charged with participating in a pattern of racketeering activity in violation of RICO. (Fifth Superseding Indict. ¶ 8(e).) Among the predicate crimes with which Carbonaro is charged is the murder of Edward Garofalo, which occurred on August 8, 1990. (Id. ¶ 14.) Carbonaro was first charged with the Garofalo murder in the fifth superseding indictment, returned on February 18, 2004. Carbonaro argues that the charge should be dismissed because he has been prejudiced as a result of the delay between Garofalo's murder and his indictment for it.

  Carbonaro contends that he was with an individual named Rico Magalhaes on the night of the murder. (Affidavit of Thomas Carbonaro ["Carbonaro Aff."] ¶¶ 4-6.) According to Carbonaro, he met with Magalhaes at a social club in Brooklyn from approximately 9 p.m. to shortly before 10:30 p.m. (Id. ¶ 4.) After their meeting, Carbonaro states that he drove Magalhaes to his girlfriend's house at approximately 10:30 p.m., and then began driving to a bagel store located at 86th Street and 17th Avenue in Brooklyn. (Id. ¶¶ 5-6.) Police officers stopped Carbonaro's vehicle on 14th Avenue at 83rd Street and wrote Carbonaro a ticket for driving through a red light. (Id. ¶ 6.) Magalhaes died on July 25, 2002. (Death Certificate of Rico Magalhaes, Ex. A to Carbonaro Mot.)

  Carbonaro argues that Magalhaes's testimony could have established that it would have been impossible for Carbonaro to have driven Magalhaes to his girlfriend's house and then participated in the murder, which occurred at approximately 10:30 p.m. outside Garofalo's home on 83rd Street in Brooklyn. Carbonaro maintains that the delay between the murder and the indictment resulted in the loss of exculpatory evidence and thus unduly prejudiced him in violation of his Fifth Amendment right to due process.


  The Supreme Court has held that "the Due Process Clause has a limited role to play in protecting against oppressive [preindictment] delay." United States v. Lovasco, 431 U.S. 783, 789 (1977). For Carbonaro to succeed on this motion, he "bears the `heavy burden' of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose." United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999). Even assuming that Carbonaro has shown actual prejudice, he has not even attempted to demonstrate that the Government's conduct was for an improper purpose. Proof of prejudice alone is insufficient to establish a due process violation because "the inquiry focuses not only on prejudice to the accused but also on the reasons for the claimed oppressive delay." United States v. Birney, 686 F.2d 102, 105 (2d Cir. 1982). Thus, the Fifth Amendment's limited role is to guard against culpable delay by the Government that actually prejudices a defendant. Therefore, Carbonaro's motion fails.

  Carbonaro contends that Salvatore Gravano provided the Government with information in 1990 and 1991 that may have inculpated Carbonaro in the Garofalo murder. Despite this alleged information, the Government did not indict Carbonaro at that time. Instead, according to Carbonaro, the Government chose to act on information provided by a cooperating witness in 2003 (which was purportedly the same information that Gravano had given more than ten years earlier), after Magalhaes had died. Carbonaro asserts that the Government did so for its "own strategic and tactical reasons." (Affirmation of Martin Geduldig Supporting Mot. to Dismiss ¶ 7.)

  Carbonaro supplies no evidence that the delay was the result of an improper motive. Carbonaro does not specify what tactical goal the Government was pursuing. He does not assert that he ever informed the Government or the investigating authorities that Magalhaes would provide an alibi. In fact, Carbonaro's affidavit suggests that he never informed police that he was with Magalhaes on the night of the murder because he refused to speak with police without an attorney present. (Carbonaro Aff. ¶ 3; see also id. ¶ 7 ("I asked Rico [Magalhaes] if he would be willing to tell the police we had been together [on the night of the murder]. . . . Rico Magalhaes said he was willing to talk with the police and would appear in court as an alibi witness if necessary. I advised Rico that I would keep him informed of events, but I never again was contacted by police or prosecutors.").) Instead, Carbonaro rests on conclusory allegations that (1) a cooperating witness in 2003 provided the Government with the same evidence against Carbonaro that Gravano had in the early 1990s, and (2) the Government chose to indict Carbonaro after it had this information and not in the early 1990s for strategic reasons. A defendant cannot merely rely on "an `unavoidable deduction' of deliberate delay," United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990), but bears the burden of establishing that the delay was a "an intentional device to gain a tactical advantage" over him, United States v. Marion, 404 U.S. 307, 324-25 (1971). When no such intent can be established, it is the applicable statute of limitations, and not the Fifth Amendment, that protects criminal defendants against prosecution for distant acts. See id. at 323-24.

  Carbonaro improperly relies on United States v. Morrison, 518 F. Supp. 917 (S.D.N.Y. 1981), and United States v. Sabath, 990 F. Supp. 1007 (N.D. Ill. 1998). In Morrison, the court dismissed the indictment charging the defendant for assaulting a Bureau of Prisons employee because the Government waited six months to prosecute and failed to preserve the list of the inmates present in the wing of the prison at the time of the assault. See 518 F. Supp. at 918. The court concluded that the delay made it impossible for the defendant to locate potential witnesses and that the Government was grossly negligent in failing to safeguard the list. Id. Although the court in Morrison found that the Government acted with gross negligence rather than intent, there was proof of Government misconduct which contributed to actual prejudice suffered by the defendant.

  Similarly, the court in Sabath, drawing from dicta in Lovasco, held that a showing of prosecutorial recklessness, combined with actual prejudice, could establish a due process violation. See 990 F. Supp. at 1017. The Supreme Court in Lovasco had noted that the Government conceded at oral argument that "a due process violation might also be made out upon a showing of prosecutorial delay incurred in reckless disregard of circumstances known to the prosecution suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense." 431 U.S. at 795 n. 17. In the words of the Sabath court, its reading of Lovasco and Seventh Circuit precedent "compels the conclusion that a showing of a substantial, actual, and compound prejudice, such as Defendant established here, when coupled with the government's recklessness and lack of legitimate investigatory justification for the delay, violates the Constitution." Id. (emphasis added).

  Even if the Second Circuit had also read Lovasco to permit findings of due process violations when government culpability only amounts to recklessness or negligence,*fn1 Carbonaro makes no such showing here. Carbonaro urges this Court to find a violation of a constitutional right by applying what amounts to a strict-liability standard.*fn2 If strict liability were the rule, the Due Process Clause would play much more than a limited role in defending against preindictment delay. Under Carbonaro's interpretation, any time a defendant lost arguably exculpatory evidence during preindictment delay, there would be a due process violation. The Supreme Court expressly rejected this contention in Lovasco. See 431 U.S. at 789-90 (rejecting contention that due process is violated whenever a defendant suffers prejudice due to preindictment delay). It is only those prosecutorial actions that infringe "fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community's sense of fair play and decency" that violate due process. Id. (internal quotation marks and citations omitted). These fundamental ...

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