476 F.Supp. 995 (E.D.N.Y. 1979), 78 CR 491, United States v. Ajlouny
|Docket Nº:||78 CR 491.|
|Citation:||476 F.Supp. 995|
|Party Name:||UNITED STATES of America v. Bulus A. AJLOUNY aka Paul Ajlouny, Defendant.|
|Case Date:||September 24, 1979|
|Court:||United States District Courts, 2nd Circuit|
[Copyrighted Material Omitted]
Edward R. Korman, U.S. Atty., by Steven G. Nelson, Asst. U.S. Atty., Eastern District of New York, Brooklyn, N. Y., for the Government.
Weil, Gotschal & Manges by John R. Wing, New York City, for defendant.
MEMORANDUM OF DECISION AND ORDER
COSTANTINO, District Judge.
Defendant, Paul Ajlouny ("Ajlouny"), is charged in a 137 count indictment. Count One charges a violation of 18 U.S.C. s 2314. It alleges that Ajlouny transported stolen telecommunications equipment in foreign commerce. Counts Two through One Hundred Thirty-seven charge violations of 18 U.S.C. s 1343. They allege that Ajlouny used a "blue box" to make telephone calls in order to defraud the New York Telephone
Company for the use of such services. He now makes the following motions with respect to the indictment:
(1) to dismiss the indictment for a violation of the Speedy Trial Act, 18 U.S.C. s 3161 Et seq.;
(2) to dismiss the indictment for failing to present evidence in an unbiased way to the grand jury;
(3) to sever Count One from the remaining Counts in the indictment;
(4) to suppress the seizure of a blue box;
(5) to suppress evidence derived from illegal electronic surveillance;
(6) to suppress evidence seized from a shipping container;
(7) to suppress statements made to the Government;
(8) for discovery.
The court held an extensive hearing on the fourth, sixth and seventh points. The court found that an evidentiary hearing was unnecessary on the first, second, third and fifth points, but heard oral argument. The court also inspected In camera the minutes of the grand jury with regard to point 2, and considered additional documentation relative to point 5. The parties resolved point 8.
After considering the voluminous record before the court, the court finds that it must deny defendant's motions to sever, dismiss and suppress, on the basis of fact and law relative to those contentions. The court will now discuss the points raised, and the facts relative to each, Seriatim.
I. THE SPEEDY TRIAL CONTENTION
Ajlouny was arrested on April 18, 1978 pursuant to a criminal complaint filed against him. Under the then applicable Speedy Trial Plan for the Eastern District of New York ("Plan"), the Government was required to indict Ajlouny within 45 days from the date of his arrest. Plan Rule 3(a)(2). The time limit was extended for 25 days to June 27, 1978 because of a defense motion for a continuance. 18 U.S.C. s 3161(h)(8)(A). On June 26, 1978, one day prior to the expiration of the time limit, the Government voluntarily dismissed the complaint. The Government wanted to investigate Mr. Ajlouny's actions further in order to present the evidence to a Grand Jury for a possible indictment. (Government Affidavit in Opposition). On September 5, 1978 Ajlouny was indicted.
Ajlouny contends that the delay between June 26 and September 5 violated the Plan and requires the dismissal of the indictment as a result. In United States v. Hillegas, 578 F.2d 453 (2d Cir. 1978), the court was faced with a similar problem and held that the time between the dismissal of the complaint and the subsequent indictment was excludable time. The court rejected the contention that the delay required the dismissal of the indictment. Since this court finds the decision in Hillegas to be controlling, it rejects Ajlouny's contentions. See also 18 U.S.C. s 3161(h)(6); Plan s 5(d)(3); Plan s 9(a)(6); United States v. McClean, 528 F.2d 1250 (2d Cir. 1976) (5 1/2 month delay); United States v. Flores, 501 F.2d 1356 (2d Cir. 1974); United States v. Sebastian, 428 F.Supp. 967 (W.D.N.Y.1977), Aff'd, 562 F.2d 211 (2d Cir. 1977). Moreover, even a technical violation of the Plan would not require a dismissal of the indictment. See Plan s 10(e); United States v. Carini, 562 F.2d 144 (2d Cir. 1977).
Ajlouny also sought a hearing to determine the reason for the Government's dismissal of the complaint. The court denied the request. Here, the Government stated that it intended to present documentary evidence to a grand jury. Based on the Assistant United States Attorney's representations, in his affidavit and in court, the court is satisfied that the Government had a good faith basis for the initial dismissal of the complaint. Under these circumstances, and in light of the clear legal rule of Hillegas, supra, the court found no need for a hearing on this issue. See United States v. Elsbery, 602 F.2d 1055 (2d Cir. 1979). Accordingly, Ajlouny's motion to dismiss the indictment is denied.
II. THE GRAND JURY CONTENTIONS
Ajlouny contends that the Grand Jury heard inflammatory and irrelevant
references concerning his relationship to the Palestine Liberation Organization ("PLO"), and that the prejudice which resulted requires the dismissal of the indictment. In response to this claim, the court held an In camera inspection to determine the nature and scope of any reference to the PLO during the presentation of evidence to the Grand Jury. An examination of the minutes revealed minimal references to the PLO, which in the context of the proceedings were not inflammatory, if not completely innocuous. Moreover, according to the Government's stated theory of its case, Ajlouny's alleged connection to the PLO appears to be relevant to the Government's inquiry in any event. Since the indictment appears valid on its face, and the presentation to the grand jury was made in a good faith effort to provide material and relevant facts during the investigative stage of the proceedings, the court finds no basis for dismissing the indictment. 1 See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).
Ajlouny also contends that the Government's failure to record the prosecutor's colloquies with the grand jury requires the dismissal of the indictment. While recording of the prosecutor's remarks may be the better practice, the failure to record is not a basis for dismissing the indictment. United States v. Rubin, 559 F.2d 975 (5th Cir. 1977); United States v. Peden, 472 F.2d 583 (2d Cir. 1973); United States v. Greater Syracuse Bd. of Realtors, Inc., 449 F.Supp. 887 (N.D.N.Y.1978); United States v. Daneals, 370 F.Supp. 1289 (W.D.N.Y.1974).
Accordingly, the motion to dismiss on these grounds is denied.
III. SUPPRESSION OF THE FRUITS OF ELECTRONIC SURVEILLANCE
Ajlouny moves to suppress any evidence derived from illegal electronic surveillance. At the court's request, the Government checked with all of its agencies to determine the existence of any electronic surveillance. The check produced negative results. 2 The court is satisfied with the representations made in court by the Assistant United States Attorney, and finds no need for a further inquiry. See United States v. Van Orsdell, 521 F.2d 1323 (2d Cir. 1975). Accordingly, there is no basis for defendant's motion and it must be denied. 3
Ajlouny moves, pursuant to Fed.R.Crim.P. 8 and 14, to sever Count One from
the remaining counts of the indictment. He contends that the stolen property count is unrelated to the blue box counts, and that the joint trial of those counts will severely prejudice his right to a fair trial.
The Government contends that these allegations must fail in light of its theory of the case. It claims that the stolen property count and the blue box counts were properly joined because they represent transactions constituting a common scheme or plan under Fed.R.Crim.P. 8. See United States v. Halper, 590 F.2d 422 (2d Cir. 1978). Specifically, the Government contends that it will seek to prove that the stolen communications equipment was stolen as part of a scheme to aid the PLO in establishing a telecommunications system. It further contends that the blue box counts relate to this scheme because some of the phone calls listed in those counts were placed to locations in the Middle East having a connection to the stolen property count. The communications equipment was being shipped to the Ocean Trading Company in Qatar. It was listed as being air conditioning equipment, and not communications equipment. Ajlouny allegedly called both the PLO headquarters in the Middle East and the Ocean Trading Company with the aid of the blue box. From these and other factors more fully presented in the record before the court, the Government alleges that the connection between the two sets of counts is clear.
The court finds that there is a logical connection between Count One and the remaining counts. The Government's contentions amply demonstrate the inferences and evidence connecting the crimes. It is not speculative to attempt to show that Ajlouny's purpose in making the blue box calls was to facilitate the theft and shipments of the communications equipment. If the Government's theory is correct, and supported by proof at trial, then it is clear that the plan for the theft and shipment of stolen property would be accomplished quietly. Thus, it would be logical to conclude that the clandestine blue box calls were an appropriate vehicle for facilitating the plan. Significantly, the container was destined for the Ocean Trading Company in Qatar an address which the Government contends is traceable through one of the phone calls placed by Ajlouny on the blue box. Thus, the testimony relating to the blue box calls will have a logical bearing on the proof in the stolen property count...
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