US v. Durrani

• Decision Date: 12 March 1987
• Docket Number: Crim. No. B-86-59 (TFGD).
• Citation: 659 F. Supp. 1177
• Parties: UNITED STATES of America, v. Arif DURRANI.
• Court: U.S. District Court — District of Connecticut

659 F. Supp. 1177

UNITED STATES of America, v. Arif DURRANI.

Crim. No. B-86-59 (TFGD).

United States District Court, D. Connecticut.

March 12, 1987.

Holly B. Fitzsimmons, Dennis King, Asst. U.S. Attys., Stanley A. Twardy, Jr., U.S. Atty., D. Conn., Bridgeport, Conn., for plaintiff.

Ira Grudberg, William M. Bloss, Jacobs Grudberg Belt & Dow, P.C., New Haven, Conn., for defendant.

RULING ON PRETRIAL MOTIONS

DALY, Chief Judge.

The defendant, Arif Durrani, was charged in October, 1986 with violating provisions of the Arms Export Control Act, 18 U.S.C. § 2778. The indictment, which contained one count, has since been superseded by a three-count indictment which charges two additional violations of the same Act. The Court has already ruled on the motions that pertain to the initial indictment. What follows is a ruling on the motions submitted in relation to the supersedeas.

The initial indictment, returned October 8, 1986, charged the defendant with a single violation of the Arms Export Control Act, 22 U.S.C. § 2778 and related regulatory provisions found in Chapter 22, Code of Federal Regulations (the one count also charged a violation of the aiding and abetting statute, 18 U.S.C. § 2). The event(s) upon which the allegation is based, the unlicensed exportation of certain munitions components to Belgium and Iran, occurred between August 27-30, 1986. On February 18, 1987, the grand jury returned a superseding indictment that contains three counts. Count One remains essentially unchanged. Count Two is patterned after Count One, but relates to an event(s) that allegedly occurred on or about October 2-3, 1986. Count Three alleges that the defendant engaged in the business of exporting defense articles without the requisite registration, a violation of a separate provision of the Arms Export Control Act.

Since his arrest, the defendant has remained incarcerated pursuant to a preventive detention Order. That Order has been upheld on appeal, and the Court has denied subsequent defense motions to reconsider the Order. As early as the initial detention hearings before the Magistrate, the defendant was put on notice of the intention of the prosecution to seek a superseding indictment. In fact, the defendant now concedes that "the allegations on which the new counts are based were raised by the government in the detention hearings." (Def. brief at 1.) See also Affidavit of Special Agent Arruda, October 3, 1986.

On several occasions since the initial indictment the defendant has waived his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and upon either motion of a party or order of the Court, the trial has been continued. It was during one of these continuances that the superseding indictment was returned. Trial on that indictment had been scheduled for March 9, 1987, but has again been continued until March 16, 1987 for the disposition of these defense motions and a government motion to quash defense subpoenae. The only trial continuance the defendant has sought since the filing of the supersedeas is one contingent upon his release from preventive detention.

I. Motion to dismiss for Pre-Indictment delay

The defendant moves the Court to dismiss Counts Two and Three of the superseding indictment on the grounds that the prosecution's excessive intentional or reckless delay in filing the superseding indictment violated his due process rights guaranteed by the Fifth Amendment.

Although the primary guarantees against excessive preindictment delay and the prosecution of overly stale criminal charges are the statutes of limitations for criminal offenses, see, e.g., United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971)¹, the Due Process Clause has been recognized as having a "limited role to play in protecting against oppressive delay." Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. In this Circuit it is clear that "pre-indictment delay transgresses due process limits only when there is a showing of actual prejudice and a showing of unjustifiable government conduct," United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir), cert. denied 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979), such as would occur if the prosecutor used the delay to gain a tactical advantage. United States v. Rubin, 609 F.2d 51, 66 (2d Cir.1979), aff'd, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981); see, e.g., Lovasco, 431 U.S. at 795, 97 S.Ct. at 2051; United States v. Snyder, 668 F.2d 686, 689 (2d Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982); United States v. Mejias, 552 F.2d 435, 443 (2d Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977); United States v. Eucker, 532 F.2d 249, 255 (2d Cir.), cert. denied, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976).

To prove actual prejudice the defendant bears a heavy burden, and the proof must be definite and not speculative. United States v. Birney, 686 F.2d 102, 105-06 (2d Cir.1982), see also Elsbery, 602 F.2d at 1059. Not until that burden is met is the due process claim "concrete and ripe for adjudication." Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048; see Marion 404 U.S. at 326, 92 S.Ct. at 466. Similarly, a showing of unjustifiable government conduct is not a low hurdle to surmount. At the very least it requires a showing that the prosecution "deviated from `fundamental conceptions of justice,'" Id. 431 U.S. at 790-91, 97 S.Ct. at 2049, quoting, Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935), or violated the "community's sense of fair play and decency." Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049, quoting, Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952). For several reasons, courts have been reluctant to prescribe any time period in which the government must seek a particular indictment. See Lovasco, 431 U.S. at 790-95, 97 S.Ct. at 2048-51.

The defendant contends that "the plain interest of the superseding indictment is to hinder the defense unfairly." (Def. brief at 3.) Implicit in this argument is the advantage gained by the government in having the defendant detained instead of being available to prepare for the trial. However, the supersedeas has not delayed anything; rather, the record discloses that trial on the original indictment was delayed for other reasons. His bare assertions simply fail to meet his burden of establishing prejudice beyond mere conjecture, and circumstances that would indicate the government has created a tactical advantage by way of "contrived procrastination." Eucker, 532 F.2d at 255. This is especially true where, as here, the defendant had been given notice of the charges, and the superseding indictment was reasonably to be anticipated. Cf. United States v. Persico, 621 F.Supp. 842, 874 (S.D.N.Y.1985) (no unjustified government conduct in naming defendant in the superseding, rather than the initial indictment), aff'd. sub nom, United States v. Langella, 804 F.2d 185 (2d Cir.1986).

Were the Court to construe this motion as one challenging the timing of the supersedeas for violating his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., that too would fail. The Act provides, inter alia, that a defendant not be tried until at least thirty days have passed from the time of his first appearance with counsel. 18 U.S.C. § 3161(c)(2). The filing of a superseding indictment, however, does not cause the thirty day period to run anew. United States v. Rojas-Contreras, 474 U.S. 231, 106 S.Ct. 555, 557, 558, 88 L.Ed.2d 537 (1985); United States v. Guzman, 754 F.2d 482, 486 (2d Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 788, 88 L.Ed.2d 766 (1986). Rather, upon a defendant's motion, the Court may exercise its discretion to grant an "ends of justice" continuance should the Court be persuaded that a superseding indictment "operates to prejudice a defendant." Rojas-Contreras, 106 S.Ct. at 558; Guzman, 754 F.2d at 486; 18 U.S.C. § 3161(h)(8). The Court is not persuaded that such a continuance is necessary here. See United States v. Shandell, 800 F.2d 322, 324 (2d Cir.1986) (anticipated superseding indictment did not require continuance); United States v. Fesler, 781 F.2d 384, 392 (5th Cir.1986) (superseding indictment charging additional counts did not require continuance), reh. en banc denied 783 F.2d 1063 (5th Cir.), cert. denied ___ U.S. ___, 106 S.Ct. 1977, 90 L.Ed.2d 661 (1986); United States v. Todisco, 667 F.2d 255, 260 (2d Cir.1981) (no abuse of discretion for refusal to grant continuance where charges in the superseding indictment were substantially the same and substantial discovery had taken place), cert. denied, 455 U.S. 906, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982); Word v. United States, 616 F.Supp. 695, 698 (S.D.N.Y.1985) (no grant of continuance of trial twenty-five days after superseding indictment charged a conspiracy broader than that in the initial indictment); but see Guzman, 754 F.2d at 486 (abuse of discretion to fail to grant continuance where superseding indictment expanded conspiracy from two days to two years).

In any case, however, the defendant has failed to make the appropriate motion. He suggests that he would like a continuance but only contingent upon his release on bail. The Court has remained firm on the Detention Order throughout this litigation. His illusory request is viewed as a nullity.

Accordingly, the motion to dismiss for pre-indictment delay is DENIED.

II. Motion to Dismiss Count Three for Vagueness, Multiplicity, and Improper Venue

Durrani moves to dismiss Count Three of the indictment on the grounds of vagueness, multiplicity, and improper venue. The Court shall rule on these claims seriatim.

A. Vagueness

Count Three charges the defendant with "engaging in the business of exporting defense articles designated by and on the United States Munitions list ... including...