US v. Oliver

• Decision Date: 05 April 1988
• Docket Number: No. CR 87-00770.,CR 87-00770.
• Citation: 683 F. Supp. 35
• Parties: UNITED STATES of America, Plaintiff, v. William OLIVER, Carl Moore and James Scibelli, Defendants.
• Court: U.S. District Court — Eastern District of New York

683 F. Supp. 35

UNITED STATES of America, Plaintiff, v. William OLIVER, Carl Moore and James Scibelli, Defendants.

No. CR 87-00770.

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

April 5, 1988.

Andrew J. Maloney, U.S. Atty. by Dennis Milton, Asst. U.S. Atty., Brooklyn, N.Y., for plaintiff.

Martin M. Massel, Jr., Mineola, N.Y., for defendant Oliver.

Stephen P. Scaring, Mineola, N.Y., for defendant Scibelli.

Edward P. Jenks, Mineola, N.Y., for defendant Moore.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Defendants, recently indicted on charges stemming from their arrest pursuant to a criminal complaint filed in December of 1982, move to dismiss the pending indictment. Defendants' arguments are predicated on an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161(b) and the Due Process Clause of the Fifth Amendment to the United States Constitution. Notwithstanding the questionable conduct of the original Assistant United States Attorney assigned to this case, the Court holds that dismissal is not warranted by either ground urged by defendants. Accordingly, the motions to dismiss are denied.

I. BACKGROUND

A. The 1982 Complaints and Arrests

In December of 1982 defendants were arrested pursuant to criminal complaints dated December 15, 1982. The complaint against defendant Scibelli (the "Scibelli Complaint") charged him with knowingly and unlawfully possessing counterfeit currency in violation of 18 U.S.C. § 472. The Scibelli Complaint referred to and incorporated a second complaint against defendants Oliver and Moore (the "Oliver/Moore Complaint"). Like the Scibelli Complaint, the Oliver/Moore Complaint charged the defendants named therein with the knowing and unlawful possession of counterfeit currency in violation of 18 U.S.C. § 472. In addition, Oliver and Moore were charged with the manufacturing of counterfeit currency in violation of 18 U.S.C. § 471. The Complaints alleged that defendants were involved in a counterfeiting operation that resulted in the manufacturing of approximately 1.7 million dollars in counterfeit currency.

One day after their arrests, defendants were arraigned and pled not guilty before the Honorable A. Simon Chrein, United States Magistrate. On August 17, 1983 defendant Scibelli moved to dismiss the complaint on both speedy trial and due process grounds. The basis for the motion was the government's failure to timely indict. On September 12, 1983 Magistrate Chrein issued a memorandum and order requiring the government to respond to Scibelli's motion by September 20, 1983. When the government failed to respond by the date set by the Magistrate a second order was issued. That memorandum, dated October 27, 1983, ordered dismissal with prejudice of the Scibelli Complaint unless the government submitted a memorandum by October 31, 1983 "indicating why the interests of justice would be strongly disserviced by dismissal." No such responsive memoranda was ever submitted and, as far as Scibelli and his codefendants were concerned, the government's case against them lay dormant for approximately the next four years.

B. The 1987 Indictment

On November 30, 1987, just prior to the running of the applicable statute of limitations, a grand jury returned an indictment naming Scibelli, Moore and Oliver as participants in a counterfeiting operation. The time period of the alleged scheme is the same time period charged in the 1982 complaints, i.e., November 18, 1982 through December 15, 1982. In terms of the crimes charged, however, the 1987 indictment differs from the 1982 complaints. Specifically, the present indictment contains five counts. Four of the five counts (counts one, two, four and five) name all defendants. Count three names only defendants Oliver and Moore.

Count One charges all three defendants with conspiracy, in violation of 18 U.S.C. § 371, to commit various counterfeit-related offenses including: the uttering and publishing of counterfeit currency, the possession of counterfeit currency, the buying, selling, exchange and transfer of counterfeit currency and the making and possession of a plate for use in the making of counterfeit currency. Count Two charges all three defendants with the making of false currency in violation of 18 U.S.C. § 471. Count Four charges all defendants with the wilful making of a plate with the intent that it be used to print counterfeit currency and Count Five charges all defendants with the knowing and unlawful possession of such plate in violation of 18 U.S.C. § 474. In Count Three defendants Oliver and Moore are charged with the knowing possession of counterfeit currency in violation of 18 U.S.C. § 472.¹

C. The Pending Motion

Each defendant has moved for dismissal of the complaint. In support of their motions, defendants cite both the Speedy Trial Act as well as the Due Process Clause of the Fifth Amendment to the Constitution. Each ground is discussed below in turn.

II. DISCUSSION

A. Speedy Trial Act

Section 3161(b) of the Speedy Trial Act (the "Act") requires that an information or indictment charging an individual with the commission of an offense be filed "within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges...." 18 U.S.C. § 3161(b). The Act further provides that if no indictment or information is filed within the thirty-day period the criminal charge is to be "dismissed or otherwise dropped." 18 U.S.C. § 3161(d)(1). Although the Act sets forth several circumstances that extend the time in which the indictment or information must be filed, see 18 U.S.C. § 3161(h), none of those enumerated exclusions are at issue here.

Instead, the crux of this case lies in the specific language of the Act that requires only that such charge against the individual in such complaint be dropped. According to defendants, the charges set forth in the 1987 Indictment are the same, for Speedy Trial Act purposes, as those set forth in the 1982 Complaints. Defendants go on to argue that the failure of the government to file the indictment within thirty days of defendants' arrest on December 15, 1982 has violated the Act. Although defendants concede, as they must, that the 1987 Indictment charges the commission of crimes different from those set forth in the 1982 Complaints, defendants argue that the 1987 Indictment merely "gilds" the original charge and is thus subject to dismissal.

In addition to accepting written memoranda, the Court has twice held oral argument on this motion to probe further the issue of whether this case falls within defendants' gilding argument. The government has been unable to cite a case that defines the concept of gilding and has been able only to refer the Court to the definition found in Webster's Collegiate Dictionary. That definition states that gilding is "unnecessary ornamentation" — a definition that the government vehemently denies is applicable in this case.

In support of their position defendants cite several cases, including the leading case in this Circuit, i.e., United States v. Napolitano, 761 F.2d 135 (2d Cir.1985). While these cases refer to the gilding of an earlier charge, none actually hold that an indictment was, because of gilding, subject to dismissal. See Napolitano, 761 F.2d at 138 (refusing to find gilding where indictment charged larceny of bank funds and complaint charged making of false application for a bank account); United States v. Nixon, 634 F.2d 306, 309 (5th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981) (refusing to find gilding where indictment was for perjury arising out of alleged false testimony to grand jury in connection with earlier counterfeit complaint); United States v. DeTienne, 468 F.2d 151 (7th Cir.1972), cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973) (refusing to find gilding where initial complaint related to arrest on state charges).²

As the foregoing discussion makes clear, defendants have not cited, and the Court has not unearthed, a case that describes adequately the concept of gilding. The Court returns, therefore, to the leading case in this Circuit on the issue that has been raised—United States v. Napolitano.

In Napolitano, defendant was arrested on September 23, 1982. The next day the government filed a criminal complaint charging Napolitano with applying for a bank account under a false name, address and bank reference in violation of 18 U.S.C. § 1014. The thirty-day period during which the government was required to file an information or indictment came and went without the government taking the appropriate action. In September of 1984, the government filed its indictment (the "1984 Indictment"). That indictment charged Napolitano with bank larceny, in violation of 18 U.S.C. § 2113(b), and with conspiracy to commit that offense.

Arguing that the 1984 Indictment was based on the same activity that gave rise to the filing of the September 1982 complaint, Napolitano moved to dismiss on Speedy Trial Act grounds. Both the District Judge and the Court of Appeals rejected defendant's argument and held that the prosecution could go forward. To reach this result, the Court of Appeals examined the plain language as well as the legislative history of the Act. Specifically, the Court noted that the Act required dismissal only of "such charges ... contained in such complaint." Napolitano, 761 F.2d at 137 (emphasis in original). Thus, the Court noted that the language in the Act lends support to the notion that only the specific crimes set forth in the complaint must be dismissed if they are later charged in an untimely indictment.

The Second Circuit Court of Appeals also pointed out that the legislative history of the Act reveals that Congress rejected a construction of the Act that focuses on the nature of the activity for which the defendant was arrested. Thus, the Court noted that "Congress considered and rejected the suggestion that the Act's...