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United States of America v. Christian Gerold

April 19, 2013

UNITED STATES OF AMERICA,
v.
CHRISTIAN GEROLD TARANTINO, DEFENDANT.



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

MEMORANDUM & ORDER

Currently pending before the Court is Defendant Christian Gerold Tarantino's ("Defendant") motion to dismiss his September 23, 2008 Indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Also pending before the Court is a request by the United States (the "Government") that the Court order Defendant to comply with the previous Order dated December 13, 2010 (the "December 2010 Order") requiring Defendant to return all copies of Jencks Act or Section 3500 material to the Government, and Defendant's motion to amend the December 2010 Order. For the following reasons, Defendant's motion to dismiss the Indictment is DENIED, the Government's motion regarding the December 2010 Order is DENIED, and Defendant's motion to amend the December 2010 Order is GRANTED.

BACKGROUND

Defendant's current motion is the latest in a series of motions challenging Defendant's ultimate convictions and seeking dismissal in some form prior to Defendant's sentencing. Accordingly, the Court has repeatedly outlined the facts of this case in various Orders, with which the Court presumes familiarity. (See, e.g., Docket Entries 404, 420.) Briefly, on September 23, 2008, a four-count Indictment charged Defendant with: (1) the 1994 murder of armored car guard Julius Baumgardt; (2) the 1994 murder of Louis Dorval; (3) Conspiracy to Commit the Obstruction-of-Justice Murder of Vincent Gargiulo; and (4) the 2003 murder of Vincent Gargiulo.

A jury trial commenced before this Court on March 28, 2011. On May 23, 2011, a jury convicted Defendant of the Baumgardt and Dorval murders, but did not reach a verdict on Counts Three and Four of the Indictment. This Court held a re-trial on the two remaining counts beginning on April 23, 2012. A jury subsequently convicted Defendant of Conspiracy to Commit the Obstruction of Justice Murder of Vincent Gargiulo and acquitted Defendant on the Obstruction-of-Justice Murder of Vincent Gargiulo.

For various reasons, this Court has postponed sentencing. Currently, Defendant is to be sentenced before this Court on April 24, 2013.

On April 2, 2013, Defendant filed the pending motion to dismiss the Indictment for lack of jurisdiction. According to Defendant, the Government withheld FBI case agent Robert Schelhorn's testimony before the regular grand jury in 2005 and 2006 from the defense in violation of the Jencks Act, 18 U.S.C. § 3500 ("Section 3500"). Moreover, Defendant asserts that Agent Schelhorn's testimony before the grand jury in 2005 suggests that the grand jury served for nearly three years and that the September 23, 2008 Indictment therefore failed to invoke the Court's jurisdiction. The Government disputes Defendant's claims and further requests that this Court order Defendant to comply with the December 2010 Order requiring Defendant to return all copies of Jencks Act or Section 3500 material to the Government.

DISCUSSION

The Court will first address Defendant's assertion that the Government violated the Jencks Act before turning to Defendant's argument that the Indictment be dismissed for lack of jurisdiction and the issues regarding the December 2010 Order.

I. The Jencks Act

The Court can dispense of this argument quickly. The Jencks Act, 18 U.S.C. § 3500, provides that after a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as herein defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

18 U.S.C. § 3500(b). Defendant maintains that the grand jury testimony of Agent Schelhorn in 2005 and 2006 is Section 3500 material, and that the Government withheld said testimony.

Defendant, however, appears to make this argument from whole cloth, and the Government has produced more than ample proof that Defendant's assertion is completely without merit. For example, Docket Entry 166 in this case is a letter to the Court from the Government dated January 13, 2011. In it, the Government outlines efforts by former defense counsel, Mr. Michael Rosen, Esq., to obtain the 2005 and 2006 grand jury transcripts. After repeatedly asserting that such materials were not 3500 materials, the letter notes that the Government disclosed the transcripts. (Docket Entry 166 ("Again, the government has, earlier today, marked and disclosed these transcripts although again, in the government's view they fall outside of the Court's order regarding early 3500 production and certainly well outside of the definitions set forth in 18 U.S.C. ยง 3500.").) Moreover, as the Government notes in its opposition to Defendant's current motion, minutes from the Mastrangelo hearing reveal that former defense counsel used ...


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