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September 28, 2005.


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


Defendant Salvatore Scala, who stands indicted for extortion, conspiracy to commit extortion, and federal income tax evasion, moves to dismiss Counts One through Five of the indictment on the ground that the government's delay in bringing the indictment substantially has prejudiced his ability to present his defense.*fn1 In the alternative, he requests a "due process hearing" to explore the reasons behind the delay in bringing the indictment.

  Thomas Sassano, who was indicted for extortion and conspiracy to commit extortion, moves to suppress evidence obtained through electronic surveillance on the grounds that the applications for authorization to conduct the surveillance failed to state probable cause and failed to support a finding that other investigative procedures had been tried and failed. He moves also for a Franks hearing based on his allegation that the applications contained materially false and misleading omissions.

  I. Scala's Motion

  A. Facts

  On June 20, 2000, Scala was arrested on racketeering and extortion charges filed in the Eastern District of New York. After a jury trial, he was convicted on May 22, 2001 of conspiring to extort Cherry's Video, an adult entertainment club on Long Island. He was sentenced on November 2, 2001 to a term of sixty-three months' imprisonment, which he now is serving.

  On January 26, 2004, the government presented evidence of Scala's extortion of a Manhattan business, the V.I.P. Club, to a grand jury sitting in the Southern District of New York. The grand jury indicted Scala that same day, but that initial indictment was filed under seal. After continuing its investigation, the government presented additional evidence to the grand jury, which then returned the current six count superseding indictment against Scala on March 23, 2005.

  According to Scala, the V.I.P. Club's operations were overseen by two men: Frank Marchello, the club's owner and manager, and John Vargo, both of whom were involved in the club's day-to-day business and thus would have been aware of any extortion of the club by Scala. Mr. Marchello died of cancer on January 31, 2002, after Scala was sentenced for the Cherry's Video extortion conspiracy, but before he was charged by either the initial or superseding V.I.P. Club indictment. Mr. Vargo died approximately seven months ago, before Scala was charged by the superseding V.I.P. Club indictment.

  B. Discussion

  Scala argues that the government's delay in bringing the indictment violated his right to due process in two ways. He claims that he has lost the ability to present exculpatory evidence relating to Counts One and Two due to the deaths of Messrs. Marchello and Vargo. He argues also that had the V.I.P. Club indictment been brought against him at the same time as the Cherry's Video indictment, he would have received lesser and/or concurrent sentences in the event of conviction on both. This, he argues, prejudices him with respect to Counts One through Five.

  As the Supreme Court has stated, the statute of limitations is "`the primary guarantee against bringing overly stale criminal charges.'"*fn2 Accordingly, criminal prosecutions brought within the statute of limitations have a "strong presumption of validity" and are "only rarely dismissed."*fn3 However, a timely indictment may violate a defendant's right to due process if pre-indictment delay has caused "`substantial prejudice' to the defendant's ability to present [a] defense and `the delay was an intentional device to gain [a] tactical advantage over the accused.'"*fn4 The defendant bears the "`heavy burden' of proving both that [he or she] 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."*fn5

  1. Actual Prejudice

  Scala has failed to demonstrate actual prejudice to his ability to present his defense. He broadly states that Messrs. Marchello and Vargo would have exculpated him entirely on Counts One and Two. But the only support offered for that claim is assertions in Scala's memoranda of law as to the beliefs of two unnamed individuals of the attitudes of Messrs. Marchello and Vargo toward Scala.*fn6 Proof of actual prejudice must be definite and specific.*fn7 Counsel's unsworn assertions as to vague generalities that allegedly lead unnamed persons to speculate that Messrs. Marchello and Vargo, if alive, would give testimony helpful to Scala do not show that Scala's ability to present a defense has been substantially and actually prejudiced.

  At oral argument, Scala was given a second chance to submit affidavits from these anonymous witnesses as to their recollections of Messrs. Marchello and Vargo and their predictions of how the deceased club managers would have testified. However, Scala again declined to submit affidavits from either the witnesses or counsel.*fn8 Accordingly, there is no evidence before the Court as to what Messrs. Marchello and Vargo would have testified, much less specific evidence of how losing that testimony has caused Scala actual prejudice. "Were the mere assertion that another person is making a contention as to materiality sufficient to establish the materiality of [unavailable evidence], the requirement of proof of actual prejudice would be a nullity."*fn9 Scala's argument that he has been prejudiced with respect to sentencing also is without merit. Pre-indictment delay may violate a defendant's right to due process where it causes substantial prejudice "to the defendant's ability to present [a] defense,"*fn10 but there is no basis for concluding that the loss of an opportunity for a concurrent sentence implicates constitutional concerns.*fn11 Moreover, the alleged prejudice again is too speculative. The conduct alleged in the V.I.P. Club indictment is distinct from the Cherry's Video extortion conspiracy and is alleged to have continued after Scala was convicted of that conspiracy, decreasing the ...

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