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UNITED STATES v. PELINI

August 25, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
GUIDO CICERO PELINI and, JAMES VINCENT MOCCIO, SR., Defendants.



The opinion of the court was delivered by: JAMES H. ALESIA

 Defendant James Vincent Moccio in his Motion to Dismiss Superseding Indictment raises several arguments for dismissing Counts One and Three of the Superseding Indictment.

 I. STATUTE OF LIMITATIONS ON CONSPIRACY CHARGE

 Defendant first argues that the original Indictment in this case, sealed by then-Chief Judge Moran and now dismissed on the government's motion, cannot serve to toll certain charges that would be time-barred if the only indictment were the Superseding Indictment. Defendant argues that the Superseding Indictment broadens or substantially amends the original charges, and therefore the original Indictment in this case will not operate to save stale claims. Defendant's memorandum on this point cites no controlling authority. (See Memorandum in Support of Motion to Dismiss Superseding Indictment at 10-12.) The government's position is that the original Indictment is irrelevant for these purposes, because Count One in the Superseding Indictment on its own withstands the statute of limitations attack.

 Count One charges that defendants

 (Superseding Indictment P 1.) The charge is a violation of 18 U.S.C. § 371, which prohibits two or more persons from conspiring to defraud the United States or any agency thereof in any manner or for any purpose. The statute of limitations, as the government argues, is six years here. 26 U.S.C. § 6531(1), (8). The breakdown of statutes of limitations regarding the various overt acts are irrelevant, as the Eleventh Circuit discussed in United States v. Waldman, 941 F.2d 1544, 1548-49 (11th Cir. 1991), cert. denied, 504 U.S. 972, 112 S. Ct. 2938, 119 L. Ed. 2d 563 (1992).

 The statute of limitations for a conspiracy "runs from the last overt act in furtherance of that conspiracy." United States v. Curley, 55 F.3d 254, 257 (7th Cir. 1995), pet. for cert. filed, 1995 U.S. LEXIS 4884, 64 U.S.L.W. 3103, No. 95-216, (Aug. 7, 1995). The government's position is that the last overt act of the conspiracy occurred about April 10, 1991. (United States' Response at 6 n.5; Superseding Indictment at 39.) Defendant Moccio himself's last charged act was about June 25, 1990. (United States' Response at 6 n.5; Superseding Indictment at 24.) Both these dates meet the statute of limitations; the Superseding Indictment was returned and filed April 13, 1995.

 Moccio, however, has a theory for dismissal based on there being no overt acts occurring after April 15, 1988, "which in any way relate to Moccio's 'agreement' to fail to file returns for the years 1986 and 1987." (Defendant Moccio's Reply at 1.) But the government argues that the charge is conspiracy to defraud the government in two regards -- collection of revenue and collection of information. In the end, the government is correct if there is one overall conspiracy. Defendant later argues that Count One should be dismissed for duplicity because of its arguably dual charge of tax evasion and reporting-requirement evasion. That will be considered below. But assuming for the moment that Count One has no duplicity, the government is correct that under elementary conspiracy law the statute of limitations argument fails.

 II. MISJOINDER IN ORIGINAL INDICTMENT

 Defendant here argues that the statute of limitations on any count cannot be tolled by the original Indictment because it was not valid, due to misjoinder. The government's most direct argument here is that were there misjoinder, dismissal would not be the remedy, severance would. See United States v. Pacente, 490 F.2d 661, 665 (7th Cir. 1973). ("When joinder is improper, severance is the appropriate remedy ...."), cert. denied, 419 U.S. 1048, 95 S. Ct. 623, 42 L. Ed. 2d 642 (1974). The misjoinder argument defeats no part of the Superseding Indictment.

 III. DELAY IN VIOLATION OF SIXTH AMENDMENT

 Defendant next argues that to the government's failure to promptly bring him to trial on the original Indictment was in violation of his Sixth Amendment speedy trial rights, which warrants dismissal of the Superseding Indictment. The original Indictment was returned April 7, 1994, and it was sealed. Approximately a year later, on April 13, 1995, the Superseding Indictment was returned. Also cited is the delay of more than one year between the sealing of the original Indictment and Moccio's arrest. By the time defendant replies to the government's response, he is only urging dismissal of Count III, which was part of the original Indictment. In analyzing Sixth Amendment delay questions, the court weighs (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the speedy trial right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972) . These are weighed on a case-by-case basis.

 The court finds that, given the complexities of the prosecution (apparent from the face of the Superseding Indictment and the government's description) the length of the delay was not onerous, and even any presumptive prejudice is outweighed. As the Barker court noted, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Id. at 531, 92 S. Ct. at 2192. And the prejudice to defendant is minimal here, especially since preparing to defend Count One ...


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