US v. Kraselnick, Crim. No. 88-16 (SSB).

• Decision Date: 22 December 1988
• Docket Number: Crim. No. 88-16 (SSB).
• Parties: UNITED STATES of America v. Mordechai KRASELNICK, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

702 F. Supp. 489

UNITED STATES of America v. Mordechai KRASELNICK, et al., Defendants.

Crim. No. 88-16 (SSB).

United States District Court, D. New Jersey.

December 22, 1988.

Kevin McNulty, Asst. U.S. Atty., Newark, N.J., for U.S.

Fleming, Merrill, Roth & Russell by Cathy Fleming, Newark, N.J., for defendant Bart.

Frederick W. Klepp, Cherry Hill, N.J., for defendant Kraselnick.

OPINION

BROTMAN, District Judge.

Presently before the court are the motions of defendants Mordechai Kraselnick and Allan M. Bart to dismiss their indictment for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. For the reasons discussed below, defendants' motions are denied.

I. FACTS AND PROCEDURE

On January 22, 1988, a federal grand jury returned a five-count indictment against defendants Kraselnick and Bart as well as against the Village Bank and John Bjerke, Executive Vice President and Senior Loan Officer of the Bank. Count One charged defendants with conspiring to fail and causing the Bank to fail to file CTRs for cash transactions in excess of $10,000, in violation of 18 U.S.C. § 371. Counts Two through Five charged defendants with concealing and causing to be concealed reportable transactions in cash from the Internal Revenue Service, in violation of 18 U.S.C. §§ 2 and 1001.

Defendants were arraigned before this court on February 19, 1988, and trial was set for April 18, 1988. At the arraignment the court set a 30-day limit for the filing of pre-trial motions, a limit which was extended three times at the request of defense counsel. On March 30, 1988, defendant Kraselnick filed motions to dismiss the indictment and to compel disclosure of grand jury testimony. On April 7, 1988, defendant Bart filed motions (1) to dismiss the indictment because each count allegedly failed to charge an offense; (2) to dismiss the indictment because the underlying statute and regulations are unconstitutionally vague; (3) to dismiss the indictment because the prosecution withheld substantial exculpatory evidence; (4) to dismiss the indictment for unconstitutional preaccusation delay; (5) to redact all references in the indictment to "Columbian" persons and corporations; (6) to require the government to comply with discovery requests; and (7) to allow the defendant to make further pretrial motions. On April 14, 1988, defendant Kraselnick joined in Bart's pretrial motions and filed supplemental papers in support of each of the motions. The government filed its response to defendants' motions on April 18, 1988, and oral argument was scheduled for May 6, 1988.

At oral argument on May 6, 1988, the court granted three of defendants' motions but reserved decision on the others, including the several motions to dismiss the indictment. On June 13, before a decision had been rendered on the reserved motions, the Third Circuit handed down its decision in United States v. Mastronardo, 849 F.2d 799 (3d Cir.1988), a decision of which this court was first made aware on June 23, 1988. On June 17, 1988, the government filed pretrial motions (a) for reciprocal discovery; (b) to preclude defendant Bart from making any Bruton motions; and (c) requiring defendants to produce Jencks material.

On July 8, 1988, the court directed the parties to prepare additional briefing on the defendants' motions to dismiss, focusing on the Third Circuit's decision in Mastronardo. These submissions, as well as defendants' responses to the government's motions, were complete on July 21, 1988. The court scheduled oral argument on the outstanding motions for September 16, 1988, but on August 30, 1988, counsel for defendant Kraselnick notified the court that he would be unable to attend the September 16 hearing. As a result, the court — with the consent of all parties — rescheduled oral argument for October 14, 1988.

Oral argument was held on October 14, 1988, and the court issued a lengthy opinion on December 1, 1988, which, inter alia, denied all of defendants' motions to dismiss, 702 F.Supp. 480. Trial was scheduled for December 12, 1988, but defendant Kraselnick brought his motion to dismiss the indictment for violation of the Speedy Trial Act on December 6, 1988, with defendant Bart following suit on December 12, 1988. According to both defendants, under their "most charitable" interpretation, the Speedy Trial time had expired on November 28, 1988.

II. DISCUSSION

The Speedy Trial Act, 18 U.S.C. § 3161 et seq., states, in pertinent part:

(c)(1) In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1) (emphasis added). However, the statute and the case law interpreting the statute provide for certain "excludable" periods of time which are not counted in computing the seventy-day limit. For example, § 3161(h)(1)(F) excludes any period of delay "resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." The Supreme Court, in its seminal decision on the Speedy Trial Act, has unequivocally delineated the boundaries of § 3161(h)(1)(F):

We instead hold that Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is "reasonably necessary."

Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986). Furthermore, § 3161(h)(1)(J) excludes any period of delay "reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." In Henderson, however, the Supreme Court held that § 3161(h)(1)(F) effectively trumps § 3161(h)(1)(J) when a court has held a hearing on a motion but is still unprepared to decide it:

The provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion. District courts often find it impossible to resolve motions on which hearings have been held until the parties have submitted posthearing briefs or additional factual materials, especially where the motion presents complicated issues.... We therefore hold that subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion.

476 U.S. at 331, 106 S.Ct. at 1877 (citations omitted). Some additional excludable periods, read into the statute by our sister courts, are also relevant to this case.

First, the trigger date (either indictment or arraignment) is not counted in the 70-day calculation; "day 1" is the day after the trigger event. See United States v. Severdija, 723 F.2d 791 (11th Cir.1984); United States v. Haiges, 688 F.2d 1273 (9th Cir.1982). In addition, both the date on which a motion is filed or an excludable event occurs and the date on which the court disposes of a motion are excluded. See United States v. Yunis, 723 F.2d 795 (11th Cir.1984); United States v. Campbell, 706 F.2d 1138 (11th Cir.1983).

Second, and more important, several courts have held, and this court agrees, that the 30-day "under advisement" limitation of § 3161(h)(1)(J) was not intended by Congress to apply to cases where the court has taken numerous motions of various defendants under advisement. Indeed, the Seventh Circuit recently noted the imprudence of requiring a court to decide a plethora of motions within the same time allowed for deciding only one motion:

We are unwilling to impute to Congress a purpose, nowhere stated or even hinted at by it, to require a judge to decide a collection of pretrial motions within 30 days, no matter how many there are. Defendant filed seven pretrial motions; but he could have filed 10, or 50, or 100 ... and the logic of his argument is that, however many he filed, the court still had only 30 days in which to decide them unless it granted a continuance meeting the requirements of section 3161(h)(8).

United States v. Tibboel, 753 F.2d 608, 612 (7th Cir.1985); see also United States v. Anello, 765 F.2d 253, 257 (1st Cir.) ("As a practical matter, it may be impossible for a court to decide 10 or 100 motions, all within the same thirty-day period."), cert. denied, 474 U.S. 996, 106 S.Ct. 411, 88 L.Ed.2d 361 (1985); United States v. Latham, 754 F.2d 747 (7th Cir.1985).¹

It seems clear that a slight delay while a court carefully considers and decides a legion of pretrial motions is preferable to the court deciding the motions with one eye — or perhaps both eyes — on the clock. As the Tibboel court stated:

Bearing in mind that ... criminal defendants will be ill-served by a procedure that compels the district judge (unless he grants a section 3161(h)(8) continuance within the 30-day period) to decide their pretrial motions, however numerous, within a short, fixed period of time, we hold that in a case of multiple pretrial motions the limitation is not 30 days, but reasonable promptness, as under F.

753 F.2d at 612.

With the above exposition of Speedy Trial law in mind, the court now calculates the number of nonexcludable days before defendants' trial.² The defendants were arraigned on February 19, 1988. Therefore, the first day of the 70-day Speedy Trial period was February 20, 1988. The next excludable day was March 30, 1988, the day that defendant Kraselnick filed his pretrial motions.³ Therefore, the number of non-excludable days between — but not including — February 19 and March 30, 1988, is thirty-nine (39) (the court notes that February 1988...