U.S. v. Kiszewski

• Decision Date: 13 June 1989
• Docket Number: No. 1044,D,1044
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert KISZEWSKI, Defendant-Appellant. ocket 89-1005.
• Court: U.S. Court of Appeals — Second Circuit

Page 210

877 F.2d 210

UNITED STATES of America, Plaintiff-Appellee, v. Robert KISZEWSKI, Defendant-Appellant.

No. 1044, Docket 89-1005.

United States Court of Appeals Second Circuit.

Argued May 2, 1989.

Decided June 13, 1989.

James J. Duane, Buffalo, N.Y. (Connors & Vilardo, of counsel), for defendant-appellant.

Anthony M. Bruce, Buffalo, N.Y., Sp. Atty., U.S. Dept. of Justice, Organized Crime and Racketeering Section, Buffalo Strike Force (Dennis C. Vacco, Buffalo, N.Y., U.S. Atty., W.D.N.Y., of counsel), for plaintiff-appellee.

Before LUMBARD, FEINBERG and NEWMAN, Circuit Judges.

FEINBERG, Circuit Judge:

Robert Kiszewski appeals from a judgment of conviction on five counts for making false statements to two grand juries and a trial jury, 18 U.S.C. Sec. 1623, before which he testified during an extortion prosecution of two other persons. Appellant was tried before a jury and then-Chief Judge John T. Curtin in the United States District Court for the Western District of New York, and received a five-year sentence on each count, to run concurrently. Kiszewski argues on appeal that (1) the district court erred in dismissing the original indictment against him without prejudice, rather than with prejudice, for violations of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., (2) he was denied a fair trial and (3) the district judge erred in his materiality rulings. For reasons set forth below, with one exception we affirm the rulings of the district court. The exception concerns a ruling denying in camera inspection of the personnel files of one witness, and as to that we remand for a further hearing.

I. Background

In April 1985, Kiszewski contacted the office of the Federal Bureau of Investigation (FBI) in Buffalo and met with Special Agent John P. Culhane, Jr. to discuss Kiszewski's betting activities with a bookmaker. Kiszewski said that he owed the bookmaker a substantial sum and that the latter had been threatening Kiszewski in order to get him to pay his debt. The FBI thereafter began an investigation into the activities of Nicholas A. "Sonny" Mauro and Dennis Okun, on which Kiszewski worked as an undercover informant for the government, taping phone conversations and meetings with Mauro and Okun. At some of these meetings, Agent Culhane accompanied Kiszewski.

In July 1985, Kiszewski testified before a grand jury that indicted Mauro and Okun shortly thereafter for, among other things, using extortionate means to collect an extension of credit, in violation of 18 U.S.C. Sec. 894. Kiszewski told the grand jury that he had originally placed the bets on his own and that later Okun started to threaten and scare him, which led to his contacting the FBI. In December 1985, after a falling out with the FBI, Kiszewski gave a recorded statement to Mauro's and Okun's attorneys, describing the events in a manner that created an inference of entrapment. Thereafter, they gave the transcript of the statement to the government. Kiszewski was therefore called before another grand jury in March 1986, at which time he testified that the FBI was involved during the entire time that he was betting, not just after he received threats. Mauro and Okun were reindicted, and when they were tried, Kiszewski testified for the defense. Mauro and Okun raised the defense of entrapment and were acquitted on all counts in June 1986. Kiszewski's changed testimony as to the sequence of events obviously benefitted the defense.

In October 1986, Kiszewski was indicted on the false statement charges that led to this appeal. However, shortly before the case came to trial, Kiszewski moved to dismiss the indictment for violation of the Speedy Trial Act. In May 1988, Judge Curtin granted the motion and dismissed the indictment without prejudice. In the following month, Kiszewski was reindicted on the same counts, for testifying falsely before the second grand jury on March 6, 1988 (counts one and two), for testifying falsely at the Mauro and Okun trial (counts three and four) and for giving inconsistent testimony before the two grand juries (count five). At Kiszewski's trial, the two FBI agents implicated in the alleged entrapment by Kiszewski's testimony at the Mauro and Okun trial, Agent Culhane, and his supervisor, Special Agent Dean G. Naum, testified for the prosecution. Their testimony tended to show that the FBI was not involved in the Mauro and Okun investigation prior to the time when Kiszewski reported to the FBI that he had run up gambling debts and was being threatened.

The government offered no testimony as to count five, but merely introduced the allegedly contradictory transcripts of the two grand jury proceedings. Kiszewski testified in his own defense, and his testimony contradicted the agents' testimony and closely paralleled his testimony at the Mauro and Okun trial. The jury found Kiszewski guilty on all five counts. This appeal followed.

II. Discussion

A. Speedy Trial

Appellant's principal claim is that the district court abused its discretion in allowing the government to reprosecute him after the first indictment against him had been dismissed for violation of the Speedy Trial Act. He argues that the judge either failed to consider or improperly weighed the factors in 18 U.S.C. Sec. 3162 when deciding whether or not to dismiss the indictment with prejudice.

The Speedy Trial Act requires that an indictment be dismissed if defendant is not brought to trial within the time limits specified in 18 U.S.C. Sec. 3161. 18 U.S.C. Sec. 3162(a)(2). Section 3161(c) allowed the government 70 days of nonexcludable time to commence trial after Kiszewski was arraigned on the first indictment in October 1986. In moving to dismiss that indictment, Kiszewski calculated 200 days of nonexcludable time, a calculation that the government does not now dispute. Some of this time was delay that the government had successfully urged the magistrate to exclude after the period had passed, contrary to the law of this circuit, which prohibits a court from granting an ends-of-justice exclusion unless it balances the factors specified in Sec. 3161(h)(8) of the Act at the outset of the period to be excluded. United States v. Tunnessen, 763 F.2d 74, 78 (2d Cir.1985), see also United States v. Nixon, 779 F.2d 126, 132 n. 2 (2d Cir.1985). Judge Curtin, in accordance with the Act and governing case law, correctly dismissed the indictment. The dismissal, however, was without prejudice, and the issue that remains is whether the district court should have dismissed the case with prejudice.

In passing the Speedy Trial Act, Congress left it to the district courts to decide whether to dismiss an indictment with or without prejudice to reprosecution, instructing courts to "consider, among others ... the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Act] and on the administration of justice." 18 U.S.C. Sec. 3162(a)(2). This language is obviously broad and the listed factors, as the statute indicates, are not exclusive. This gives a district court considerable discretion. A recent Supreme Court decision makes clear, however, that this discretion is not unbounded. In United States v. Taylor, --- U.S. ----, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988), the Court stated that "when the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed." Id. at 2420. The role of the appellate court is to decide whether the district court abused its discretion in light of the purposes of the Act. Id. at 2419. In Taylor, the Court reversed a district court's dismissal of an indictment with prejudice, which had been affirmed by the Ninth Circuit Court of Appeals, because the district court failed to consider all of the statutory factors and the factors it did rely on were unsupported by factual findings or evidence in the record. Id. at 2423.

When the indictment was dismissed in May 1988, Judge Curtin did explain why the dismissal was without prejudice. He pointed out that the offense charged was a serious one, which weighs against dismissal with prejudice. See, e.g., United States v. Simmons, 786 F.2d 479, 485 (2d Cir.1986). He also noted that confusion concerning whether defendant's prior attorney should have been in the case was the reason for the delay and that there had not been improper conduct by the prosecutor, thus describing "the facts and circumstances" leading to dismissal. He also stated that defendant had not urged or shown that he suffered any prejudice, a factor not mentioned in the statute, but stressed as relevant in the legislative history. See 120 Cong.Rec. 41794-95 (1974) (statement of Rep. Conyers), reprinted in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 221-22 (1980).

The order of dismissal preceded the Court's decision in Taylor by about six weeks. After Taylor was handed down, Kiszewski requested the district court to reconsider its decision to dismiss the indictment without prejudice. In denying the motion for reconsideration, the district court addressed the statutory factors directly First, the seriousness of the charges contained in the indictment weighs heavily in favor of dismissing without prejudice, since perjury strikes at the heart of the integrity of the judicial system. Second, there is no evidence of either bad faith or a pattern of neglect by the United States Attorney. Moreover, the length of the delay attributable to the government was extremely short, and the defendant has not even alleged that he was prejudiced in any way by the delay. Third, allowing the government an opportunity to reprosecute the defendant would, on balance, have a favorable impact on the administration of justice. As noted above, perjury is an...