U.S. v. Scala
| Decision Date | 28 September 2005 |
| Docket Number | No. S1 04 Crim. 0070(LAK).,S1 04 Crim. 0070(LAK). |
| Citation | 388 F.Supp.2d 396 |
| Parties | UNITED STATES of America, v. Salvatore SCALA and Thomas Sassano, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Bruce A. Barket, The Law Offices of Bruce A. Barket, P.C., for Defendant Salvatore Scala.
Ronald Rubenstein, Rubenstein & Corozzo, LLP, for Defendant Thomas Sassano.
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.1 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.
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.
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.'"2 Accordingly, criminal prosecutions brought within the statute of limitations have a "strong presumption of validity" and are "only rarely dismissed."3 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.'"4 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."5
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.6
Proof of actual prejudice must be definite and specific.7 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.8 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."9
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,"10 but there is no basis for concluding that the loss of an opportunity for a concurrent sentence implicates constitutional concerns.11 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 likelihood that a concurrent sentence would have been imposed in a hypothetical earlier V.I.P. Club conviction. "It is impossible to describe [such a] claim of prejudice as `definite and not speculative.'"12 Accordingly, Scala has not shown the pre-indictment delay has caused him actual prejudice. This failure alone is fatal to his motion to dismiss.
Even had Scala shown actual prejudice, he has not demonstrated that the pre-indictment delay "was a course intentionally pursued by the government for an improper purpose,"13 or an "intentional device to gain [a] tactical advantage over"14 him.
Scala asserts that the V.I.P. Club extortion underlying Counts One and Two is alleged to have begun long before he became the subject of government scrutiny that resulted in the Cherry's Video charges. Accordingly, he argues, the government must have been aware of the alleged V.I.P. Club extortion activity during its earlier investigation and prosecution, and therefore must intentionally have delayed filing the current indictment in order to "`keep a card up its sleeve' in the event of an unsuccessful outcome" to the Cherry's Video prosecution.15
Scala provides no facts on which to base this conclusion, only speculation as to the government's motives.16 Such reliance on "`an unavoidable deduction' of deliberate delay" does not suffice,17 particularly where, as here, the government has responded with a specific rebuttal describing the reasons for the length of its investigation.18 "[T]he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment."19 Accordingly, Scala's speculation as to government motives is insufficient to show that the government had an improper purpose in delaying the V.I.P. Club indictment or, for that matter, to warrant a hearing.
Scala's motion is denied.
In an order dated April 19, 2002, the Supreme Court of the State of New York authorized, for thirty days, the interception of communications on a cellular telephone used by Sassano. The state court renewed this order for another thirty days on May 20, 2002, and expanded the order to include Sassano's home telephone and conversations inside his car. Sassano moves to suppress the conversations intercepted under these orders on a variety of grounds.
Sassano seeks to suppress first on the ground that there was no probable cause for the issuance of the initial order.
As an initial matter, the state court's determination that probable cause existed for the interceptions is entitled to substantial deference.20 Sassano's argument must be rejected, therefore, if the state court had a substantial basis for its finding of probable cause. Moreover, any doubt about the existence of probable cause must be resolved against the challenge.21
Probable cause is not a particularly demanding standard. "It is clear that `[o]nly the probability, and not the prima facie showing, of criminal activity is the standard of probable cause.'"22 In considering the proof presented by the government, the court must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband...
To continue reading
Request your trial
-
United States v. Known
...delay and that such delay was a course intentionally pursued by the government for an improper purpose.'" United States v. Scala, 388 F. Supp. 2d 396, 399 (S.D.N.Y. 2005) (quoting Cornielle, 171 F.3d at 752 (emphasis in original)). Additionally, "the proof of prejudice must be definite and ......
-
U.S.A v. Dupree
...personal knowledge or otherwise reliable witness statements. (ECF No. 100, Govt. Seizure Opp., at 22-24 ( citing United States v. Scala, 388 F. Supp. 2d 396, 405 (S.D.N.Y. 2005) (quoting Franks, 483 U.S. at 171-72). As set forth below, the court finds that defendants are not entitled to a F......
-
U.S. v. Solomonyan
...only the probability, and not the prima facie showing, of criminal activity is the standard of probable cause: " United States v. Scala, 388 F.Supp.2d 396, 401 (S.D.N.Y.2005) (quoting Gates, 462 U.S. at 235, 103 S.Ct. 2317 (internal quotation marks omitted)). Moreover, the issuing court's d......
-
U.S. v. Dupree
...knowledge or otherwise reliable witness statements. (ECF No. 100, Govt. Seizure Opp., at 22–24) ( citing United States v. Scala, 388 F.Supp.2d 396, 405 (S.D.N.Y.2005)) ( quoting Franks, 438 U.S. at 171–72, 98 S.Ct. 2674). As set forth below, the court finds that defendants are not entitled ......