United States v. Napolitano

• Decision Date: 15 July 1982
• Docket Number: No. 81 Cr. 803 (RWS).,81 Cr. 803 (RWS).
• Citation: 552 F. Supp. 465
• Parties: UNITED STATES of America, v. Dominick NAPOLITANO, a/k/a "Sonny Black," Benjamin Ruggiero, a/k/a "Lefty," John Cerasani, a/k/a "Boobie," Nicholas Santora, a/k/a "Nicky," James Episcopia, a/k/a "Jimmy Legs," and Antonio J. Tomasulo, a/k/a "Boots," Defendants.
• Court: U.S. District Court — Southern District of New York

552 F. Supp. 465

UNITED STATES of America, v. Dominick NAPOLITANO, a/k/a "Sonny Black," Benjamin Ruggiero, a/k/a "Lefty," John Cerasani, a/k/a "Boobie," Nicholas Santora, a/k/a "Nicky," James Episcopia, a/k/a "Jimmy Legs," and Antonio J. Tomasulo, a/k/a "Boots," Defendants.

No. 81 Cr. 803 (RWS).

United States District Court, S.D. New York.

January 19, 1982.

On Motion to Reduce Bail March 27, 1982.

On Motion to Dismiss Indictment May 18, 1982.

On Motion to Suppress June 10, 1982.

On Motion for Severance June 25, 1982.

On Motion to Dismiss and to Reduce Bail July 7, 1982.

On Motion to Prohibit Trial In Absentia July 15, 1982.

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John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, for U.S.; Barbara S. Jones, Asst. U.S. Atty., New York City, of counsel.

Robert Koppelman, New York City, for defendant Ruggiero.

David Breitbart, New York City, for defendant Cerasani.

Lewis Cohen, Brooklyn, N.Y., for defendant Santora.

Irwin Klein, New York City, for defendant Tomasulo.

Meyer, Light, London & Lopez, Brooklyn, N.Y., for defendant Episcopia; Frank A. Lopez, Brooklyn, N.Y., of counsel.

Paul P. Rao, Jr., New York City, for defendant Rabito.

Joseph Klempner, New York City, for defendant Mulligan.

Barry Slotnick, New York City, for defendant Piteo.

OPINION

SWEET, District Judge.

The government moves for a deferral of discovery and a Speedy Trial Act continuance pursuant to the interest of justice provision, 18 U.S.C. § 3161(h)(8)(A). This is a six defendant, two count indictment charging violations of the Rico Statute, 18 U.S.C. § 1962(c) & (d). The pattern of racketeering in the conspiracy and substantive counts is based on allegations of murder, armed robbery, narcotics, and gambling.

The procedural history relevant to this application starts with the arrest of defendant Ruggiero on August 29, 1981. On September 9, 1981, pursuant to 18 U.S.C. § 3161(h)(8), the government applied for and received a thirty day continuance, thereby postponing the date for a preliminary hearing or indictment. The government cited to the complex nature of the case, the need to protect an ongoing undercover investigation, and the extensive evidence, including electronic surveillance, which required analysis prior to indictment. On October 8, 1981, the government applied for and received an additional forty-five day delay of the date for a preliminary hearing or indictment on essentially the same basis as the initial motion and in addition, on the need to procure grants of immunity from Washington for several grand jury witnesses and to coordinate with investigations in the Southern District of Florida.

On November 23, 1981, the defendants were indicted. A pretrial conference was held on December 3, 1981, at which time it was determined that the government would complete its voluntary discovery by January 5, 1982, at which time another pretrial conference would be held, and a schedule for defense motions and trial would be fixed. On December 28, 1981, the government filed a notice of motion to submit a statement ex parte for the purpose of a deferral of discovery and a Speedy Trial Act continuance. On January 5, 1982, this court permitted the submission of an ex parte affidavit, which details the progress of the investigation underlying this case. Attached to this affidavit were the two prior ex parte affidavits which had been submitted by the government to obtain the two pre-indictment continuances totalling seventy-five days.

In essence, the government seeks to defer discovery of certain body consent tapes, Title III recorded statements, and videotaping relating to the Florida proceedings as well as to this action until January 31, 1982, for purposes of coordination. Additionally, the government seeks to defer discovery of certain other Title III interceptions for ninety days. The government again cites the unusual and complex nature of the action, the requirements of coordinating with proceedings in Florida and the real possibility that these matters may result in a superseding indictment. It is appropriate to consider these factors in light of 18 U.S.C. § 3161(h)(8) and the particular facts presented.

Section 3161(h)(8)(A) provides that a judge may grant a "continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." Whether injustice would result from the failure to grant a continuance, whether the case is so complex due to the nature of the prosecution, and whether effective preparation would be denied by the failure to grant a continuance, are all factors to be considered in deciding the government's motion. 18 U.S.C. § 3161(h)(8)(B).

The government's request to withhold the material based on the Florida investigation is granted. In view of the severity of the charges and the complexities of coordinating investigations, the interest of justice requires that the government be granted a deferral of this discovery until January 31, 1982. This time will be excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(8).

The government's request for the deferral of discovery relating to certain additional interceptions warrants separate consideration. Despite the complexity of the evidence and the lengthy undercover investigations requiring detailed analysis and presentation, the material is not new and indeed, has formed the basis of the government's second request for a pre-indictment continuance of forty-five days.

To deny the continuance would mandate disclosure of materials which would impede an ongoing significant investigation. Confronted with a similar, but less complicated situation in United States v. Mannino, 480 F.Supp. 1182, 1188 (S.D.N.Y.1979), this court granted the government's request to permit a comprehensive analysis of evidence betokening serious criminal charges, recognizing a public interest in such an analysis. Requiring the government either to disclose the materials, thereby adversely impacting on its present investigation, or to dismiss the current indictment and to reindict would jeopardize this interest, which predominates in this situation over the public's interest in prompt disposition of criminal cases and over defendants' interest in obtaining a speedy trial.

In light of these findings, I conclude that the ends of justice served by a continuance outweigh other interests protected by the Act. See United States v. Fielding, 645 F.2d 719, 721-22 (9th Cir.1981). Therefore, the government's request to defer discovery of this additional material is granted to the extent that it may be withheld until February 24, 1982.

A pretrial conference will be held on February 24, 1982 at 4:30 p.m. in courtroom 302.

IT IS SO ORDERED.

ON MOTION TO REDUCE BAIL

The February 24, 1982 letter of counsel having been treated as a motion to reduce bail previously set for defendant Benjamin Ruggiero ("Ruggiero") is denied.

Ruggiero was arrested on August 29, 1981. According to his counsel, Ruggiero had been advised some time previously by an undercover agent that serious charges would be brought against him. An indictment charging him with a pattern of racketeering in violation of 18 U.S.C. § 1962 was filed on November 23, 1981. For reasons previously set forth, the time for discovery, pretrial motions and the trial have been extended. These motions will be heard on April 30 and May 28, 1982, and it is hoped that the trial can be set within a month of the disposition of the anticipated motions. Clearly the case is complicated, and the evidence is claimed by the Government to be extensive. Ruggiero is also under indictment in Milwaukee for racketeering in violation of 18 U.S.C. § 1951. Although there may be some evidentiary overlap on the New York and Milwaukee cases, except as set forth below, the decisions relating to the instant case have been made independently of the other proceedings in which Ruggiero may be involved.

On December 3, 1981, after the action had been assigned to me, an application was made to reduce the bail which was granted, and bail was fixed in New York at $150,000 cash or surety. Bail in Milwaukee remained at $150,000 cash or surety. Thereafter Ruggiero sought certain medical treatment which gave rise to a number of applications which included requests to reduce bail which were denied.

Then after consultation with the District Court of the Eastern District of Wisconsin, bail conditions were modified to $200,000 personal recognizance bond in Milwaukee and $200,000 cash or surety in New York.

Ruggiero asserts a stable family, the need for continuing medical care, the opportunity for employment, and the ability to prepare his defense as the principal reasons for eliminating the cash or surety provisions of the current bail. He points out without contradiction from the Government that despite knowledge of the pendency of these charges he did not flee the jurisdiction though he had ample opportunity to do so.

The Government in opposing the application points out the seriousness of the charges, the pendency of other serious charges elsewhere, and notes the absence of Dominick Napolitano, who is currently a fugitive to underscore the possibility of such a course of action. The Government also places heavy emphasis on its information that Ruggiero is the subject of a "contract" and that he would be killed if released on bail. Assuming the information concerning the threat to Ruggiero's life to be accurate, I decline to reach the question whether or not to deny bail in order to insure his presence at trial in the face of these alleged threats. The information is, of course, relevant on the question of flight, and it is for that reason that knowledge of this threat is advanced by the Government.

Obviously, decisions as to the amount and form of bail are difficult and...