US v. White, 91 CR. 214 (KC).
| Decision Date | 19 July 1991 |
| Docket Number | No. 91 CR. 214 (KC).,91 CR. 214 (KC). |
| Citation | 768 F. Supp. 447 |
| Parties | UNITED STATES of America v. John WHITE, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Richard Signorelli, Asst. U.S. Atty., U.S. Atty.'s Office, New York City, for plaintiff.
Michael Milner, Burnstein & Milner, New York City, for defendant.
The indictment charges the defendant with conspiracy to sell more than 100 grams of heroin and selling heroin on four separate occasions during the summer of 1986.
The Court has before it a number of motions filed by the defendant a) to dismiss the indictment because the prosecution is based upon prosecutorial vindictiveness b) to preclude the Government from introducing at trial evidence pursuant to Rule 404(b) and Rule 609(b) of the Federal Rules of Evidence c) to require the Government to produce one Harry Smith for an interview with defendant's counsel and d) to require the Government to furnish defendant with certain particulars about the charges in the indictment.
As we have indicated, the charges in this case deal with facts and events that occurred in 1986.
On or about June 2, 1986, a narcotics investigation of Harry Smith ("Smith") and his sources of supply was approved by the Acting Chief of Narcotics for the United States Attorney's Office for the Southern District of New York ("the Office"). After this approval was obtained, the Office was not involved in the investigation, arrests, and prosecution of the defendant and Smith later that summer and fall. The case was handled and supervised by the Office of Prosecution, Special Narcotics Courts of the State of New York, shortly after the first undercover meeting on June 2, 1986. Until late 1990, no criminal case had been opened or even considered by the Office against White for the offenses arising out of the 1986 conspiracy. (Aff. ¶ 2.)*
After an investigation by the Drug Enforcement Administration ("DEA") during the summer of 1986 the defendant and Smith were arrested on September 4, 1986 by the DEA and charged in a New York State criminal complaint with having violated P.L. 220.21, Criminal Possession of a Controlled Substance in the First Degree. The defendant's Mercedes Benz car was seized by the DEA under federal forfeiture law and was subsequently administratively forfeited when the defendant did not respond to the notice of forfeiture. (Aff. ¶ 3.).
By late 1986 or early 1987, the charge in the criminal complaint against the defendant was dismissed by New York State. According to the Assistant District Attorney in charge of the case at the time, the charge was probably dismissed due to lack of admissible evidence under state law. There is no indication in the records of the state prosecutor or of the state court files that the dismissal of the criminal complaint charge was with prejudice. Regardless, the defendant was not subsequently charged by the state by complaint or indictment. The Office was not involved in the state's decision to dismiss the charge against White and was not informed of this action. (Aff. ¶ 4.)
On or about September 10, 1986, Smith was indicted in eleven counts by a New York State grand jury and charged with criminal sale of a controlled substance in the first, second, and third degrees, and criminal possession of a controlled substance in the first and third degrees, in violation of P.L. §§ 220.43, 220.41, 220.39, 220.21 and 220.16. Smith subsequently pleaded guilty in New York Supreme Court to criminal sale of a controlled substance in the second degree in violation of P.L. § 220.41 and received a sentence of three years to life. The Office was not involved in the prosecution or sentencing of Smith. (Aff. ¶ 5.)
In September 1988, the defendant initiated a lawsuit against the United States in United States Claims Court in Washington, D.C. regarding the forfeiture of his car. He claimed that he had not received notice of forfeiture. This lawsuit was transferred to the United States District Court for the Southern District of New York in March 1989. This civil action was assigned to an Assistant United States Attorney who only handles civil cases. This was the first time that the Office became involved in a case relating to White's involvement in the 1986 narcotics conspiracy. In part because the Government could not prove that it had sent proper notice to the defendant, the Honorable Michael B. Mukasey, directed the Government in or about May 1990 to commence a forfeiture action in district court. (Aff. ¶ 6).
In August 1990 the forfeiture case was then assigned to Assistant United States Attorney ("AUSA") Richard E. Signorelli, a member of the Criminal Division of the Office. After reviewing the case and making an independent determination that there was ample probable cause supporting the forfeiture of the car and that the Government should proceed with the forfeiture action, AUSA Signorelli filed, in December 1990, a verified complaint against the car pursuant to 21 U.S.C. § 881(a)(4) and (6). After receiving an extension from the Government, the defendant filed an answer to the complaint in January 1991. (Aff. ¶ 7).
On the basis of information obtained from a comprehensive review of the evidence in the forfeiture case, AUSA Signorelli also determined that there was probable cause to believe that the defendant had engaged in criminal conduct which had gone unprosecuted. Specifically, the admissible evidence in the case indicated that the defendant had in fact supplied Smith with the heroin which was sold to the undercover agent during the summer of 1986. (Aff. ¶ 8).
AUSA Signorelli reviewed the case in detail on several occasions with the Chief of Narcotics for the Office. He apprised her of all the relevant facts of the case. She subsequently approved the opening of a criminal case for the defendant's 1986 offenses and approved the presenting of the case to the grand jury. This was the only time that the Office had considered criminal charges against the defendant. (Aff. ¶ 9).
On March 14, 1991, the case was presented to the grand jury which returned a five-count indictment that day. The defendant was arrested on the indictment several days later. Immediately after his arrest, AUSA Signorelli notified the defendant's attorney in the forfeiture case, Stacy J. Haigney, that the defendant had been indicted and arrested. AUSA Signorelli requested a stay of the forfeiture action until the resolution of the criminal case. Such a stay was consented to by counsel and ordered by Judge Mukasey. The forfeiture action for the car, and for two properties owned by the defendant which were seized after the indictment pursuant to a verified complaint and filed as a related case, are currently in suspense and will be reactivated after the resolution of this criminal case. (Aff. ¶ 10-11).
Prior to the filing of the indictment, there were no discussions between anyone from the Office and counsel for the defendant, regarding the possible filing of criminal charges against the defendant. At no time, upon and after the filing of the indictment charging the defendant with his narcotics offenses, has anyone from the Office discussed with any of the defendant's criminal or civil attorneys the dropping or reducing of the criminal charges against the defendant in exchange for the dropping of the defendant's claim against the car. The forfeiture case, now in suspense, will proceed after the resolution of the criminal case. (Aff. ¶ 12).
The defendant asserts that only after he began his challenge to the forfeiture of his vehicle, did federal agents approach Smith to obtain his testimony against the defendant, a process leading to the filing of this indictment in this case. The defense argues that the aforementioned facts "form a prima facie basis for believing that the government had no intent to prosecute Mr. White for the crimes charged ... until he began his prolonged attempt to recover his vehicle." Defendant's Memorandum of Law dated July 3, 1991, P.3 ("Def.Mem."). According to the defendant, the record demonstrates that "the Government's prime, if not sole, motive in bringing the instant charges is to retaliate against Mr. White for challenging the forfeiture of his vehicle and the statutory notice procedures." Id. This, the defendant argues, constitutes a vindictive prosecution, and requires dismissal of the indictment.
The defendant relies principally upon two decisions from the United States Supreme Court. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Court set aside a heavier sentence imposed upon a defendant after he had successfully obtained a reversal of his first conviction. The only issue before the Court in Pearce concerned the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial. The Court held that neither the double jeopardy provision nor the equal protection clause imposes an absolute bar to a more severe sentence upon reconviction, but that the due process clause could bar a harsher sentence if vindictiveness on the part of the sentencing judge played a role in the second, heavier sentence. Accordingly, the Court imposed an obligation upon sentencing judges, where imposing a greater sentence after retrial, to place on the record the objective, factual basis for doing so. In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court considered whether a defendant who was appealing a conviction for a misdemeanor in the North Carolina State Courts could be indicted for a felony in North Carolina based upon the same conduct. The Court held that the indictment on the felony charge contravened the due process clause, since a defendant convicted for a misdemeanor had a right under state law to a trial de novo without apprehension that the State would retaliate by substituting a more serious charge for the original one and thus subject him to a...
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U.S. v. White
...that the district court erred: in denying his motion to dismiss the indictment on the grounds of vindictive or selective prosecution, 768 F.Supp. 447; in denying his motion for a new trial based on newly discovered evidence that the Government's key witness perjured himself; and, in sentenc......