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January 12, 1998


The opinion of the court was delivered by: CASTILLO

 This is a highly unusual criminal case. The defendant Stuart Sabath ("Defendant") is charged with burning down his own former place of business on July 31, 1991. Unfortunately, the charge is not what is extraordinary about this case. In the usual criminal prosecution, any blunders in the investigating agents' initial investigation are ameliorated by the prosecuting attorney. What happens when deficiencies in the initial investigation are instead prejudicially aggravated by the prosecuting attorney's needless delay in securing an indictment? That is the situation in this peculiar case, where the government recklessly delayed in bringing highly circumstantial arson and related mail fraud charges against Defendant until February 19, 1997--even though by the government's own admission the investigation was completed over four years earlier.

 Relevant Facts1

 On February 19, 1997, a grand jury returned a four-count indictment against Defendant charging arson and related mail fraud counts stemming from a fire that destroyed Defendant's place of business on August 1, 1991. On March 6, 1997, Defendant entered a not guilty plea to all four counts. On April 1, 1997, the Court set an initial trial date of May 19, 1997.

 On April 16, 1997, defendant's original counsel filed a motion to dismiss the indictment for prejudicial preindictment delay, and a separate motion to dismiss Count IV of the indictment on statute of limitations grounds. On May 28, 1997, the Court denied both of these motions. The Court concluded that Count IV of the indictment was within the outer boundaries of the applicable statute of limitations. (See 5/28/97 Tr.. pp. 2-5). *fn2" Defendant's motion to dismiss for prejudicial preindictment delay was dismissed without prejudice to its future renewal because of counsel's failure to specify the prejudice Defendant had suffered. (See 5/28/97 Tr., pp. 2-5).

 At Defendant's request, his trial was continued on two occasions so that he could adequately prepare for trial and because of his counsel's serious illness. On August 22, 1997, defendant's new and present counsel filed an appearance and began to prepare for trial. Because of the complexity of this circumstantial for-profit arson case, the Court reset it for trial on January 5, 1998, to allow defendant's new counsel adequate preparation time and to accommodate all of the attorneys' schedules.

 On December 10, 1997, Defendant renewed his motion to dismiss for prejudicial preindictment delay. This Court orally granted the motion on January 5, 1998, after receiving extensive oral and written submissions from the parties and holding an evidentiary hearing. This opinion will set forth the reasons for the Court's dismissal of the indictment.

 Defendant's Renewed Motion To Dismiss Indictment For Prejudicial Preindictment Delay

 The difference between the earlier motion to dismiss for preindictment delay, which the Court dismissed without prejudice, and the renewed motion is like the difference between night and day. Unfortunately, despite this Court's express warnings, the government continued to treat the renewed motion as inconsequential and overlooked its seriousness. (See 12/17/97 Tr. pp. 4-5, 12). *fn3"

 Defendant's renewed motion expressly and vividly details the extreme and compound prejudice Defendant suffered because of the government's unexplained delay in securing an indictment. This renewed motion outlines the following uncontested facts. Immediately after the fire at Stuart Eddy Imports on July 21, 1991, Bureau of Alcohol, Tobacco & Firearms ("ATF") Special Agent Mirocha and some state agents interviewed the only persons known to be on the premises, Defendant, who was fifty-seven years old, his seventy-eight-year-old father, Eddy Sabath, and an employee named David Hen. By August 1991, the government's investigation had progressed rapidly. The government had obtained a signed statement and sworn grand jury testimony from its primary fact witness, David Hen; executed at Defendant's residence a search warrant that uncovered documentary evidence the government planned to use at trial; put together a physical and scientific cause and origin evaluation concluding that the fire was intentionally set using an accelerant; and secured statements of other potential witnesses. By March 1992, the government also had obtained Defendant's extensive sworn statement given to an insurance company attorney.

 This factually uncontested motion established severe, substantial and actual prejudice to Defendant. In the first instance, not surprisingly, the memory of the key fact witness David Hen had faded considerably. Other than Defendant and his father, Hen was the last person at the scene of the fire. By the time the government got around to bringing an indictment, David Hen had voluntarily moved from the United States to the Netherlands. Since he apparently was a reluctant witness, the Court granted the government's motion to proceed with his deposition to preserve his testimony over the objection of Defendant. On the eve of trial, the government moved to admit portions of his deposition because of his unavailability. The Court's review of Mr. Hen's deposition reveals his diminished memory on many key circumstantial facts.

 Second, the government lost crucial evidence. After the fire, ATF Investigators apparently found a gallon can containing some liquid in the service area of the dealership--the apparent point of the fire's origin. The can was chemically tested and determined to contain certain liquids that could have been accelerant. It is uncertain whether the government could have recovered fingerprints. In any event, Defendant successfully obtained a court order to inspect and test the can. Inexplicably, however, the can is missing and not available for Defendant's inspection or testing. This Court tried to eliminate the prejudice to Defendant by granting his motion in limine to bar any reference to the can. The government requested the Court to reconsider this ruling despite the fact that it continues to rely on the ruling to assert that Defendant suffered no prejudice. But excluding reference to the can would not eliminate all the prejudice because merely excluding any reference to the can does not allow Defendant to test it.

 The can is only one among many items of evidence lost during the government's delay. Prints and negatives of the photographs of the fire, as well as a videotape of the fire's progress, are lost. In most criminal cases this would not be severely prejudicial; however, in a close circumstantial arson case these are key pieces of evidence.

 Finally, not one, but a total of three important witnesses have died during the government's delay in indicting this case. Not surprisingly, even given today's longer life spans, Defendant's father--the only person with Defendant right before the fire--died of natural causes on January 13, 1994, at the age of 80. Eddy Sabath had suffered from a heart condition for many years, a fact that is documented in the government's investigative case report dated November 12, 1992. (See Ex. 5 from 12/31/97 hearing).

 When Defendant's original counsel raised the issue of the Eddy Sabath's death as a per se reason justifying dismissal because his testimony "would be of critical importance," the Court denied the motion without prejudice on the grounds that defendant had not met his burden of establishing: (a) what Eddy Sabath's testimony would have been; and (b) that the testimony would not be admissible at trial. (See 5/28/97 Tr. pp. 2-5).

 The pleadings accompanying Defendant's renewed motion remedied these deficiencies. In support of his renewed motion, Defendant submitted recently discovered statements of his father, as well as his own affidavit, which summarized his father's potential testimony. Unfortunately, the written statements of Eddy Sabath leave a great deal to be desired from an investigative, truth-seeking standpoint. None of the statements discloses what Defendant and his father were doing during the critical time period when the fire was presumably set. (See 12/31/97 Tr., Exs. 1-3 ). The only relevant facts on this critical issue are contained in two short paragraphs:

[Eddy] Sabath states that on the night of the fire there were no other employees working at the dealership. This also included any porters or office help.
Sabath stated that he checked the back service area at around 8:45 p.m. and that everything appeared in order. Shortly after, he was near the door leading into the service area when the door was blown open knocking him down. He also said there was also a "crazy noise," and agreed that it sounded like "whooshing". Sabath then stated although being knocked down and hearing the noise that came from the service area, he did not attempt to investigate its source.

 (12/31/97 Tr., Ex. 1). The report then abruptly changes topics and fails to mention any further relevant information about either of the Sabaths' activities on the night of the fire. (Id.)

 Over persistent objections by the government, this Court attempted to explore the possibility of curing the prejudice from Eddy Sabath's death by admitting his statements under the catch-all hearsay exception clause. See Fed. R. Evid. 804(5). However, it is evident to the Court that the poor quality of all the written statements taken from Eddy Sabath on July 31, 1991 are severely flawed, making these statements totally useless to Defendant.

 The second critical deceased witness is Emmanuel Brunious, an employee of Stuart Eddy Imports who was working on the day of the fire. He also died in June 1997, from cancer, after his illness became aggravated in February 1997. At the scheduled trial, the government was prepared to assert that Defendant purposely sent Brunious home early on the night of the fire. But ATF's interview of the late Mr. Brunious provides a legitimate explanation for his early departure on the night of the fire. Mr. Brunious indicated that he decided to begin work early on his own accord; to compensate, he went home earlier than usual. The government would also have tried to establish through Brunious a financial motive for Defendant to burn down his own business. But Brunious told an insurance investigator on August 5, 1991 that Defendant's business had been good at times and was on an upward trend. (Def's. Renewed Mot., Exs. 5, 6 and 7). The Court concludes that Defendant irretrievably lost this favorable testimony as a result of the government's unreasonable delay when Mr. Brunious became critically ill in the early part of 1997. The Court also finds that Mr. Brunious' testimony would have been credible and potentially dispositive in this close case.

 The last deceased witness critical to Defendant's defense was the ATF case agent assigned to this case, Special Agent Jack Stieman. He took Mr. Brunious' statement on November 14, 1991, as well as the statements of numerous other witnesses, and authored the case report dated November 12, 1992. (12/31/97 Tr., Ex. 5). But Agent Stieman is no longer available to be called as an adverse witness to establish any of the numerous facts concerning the adequacy of the government's initial investigation. Given Special Agent Mirocha's poor memory and his deference to Stieman as the case agent, the loss of Special Agent Stieman is significant. (12/31/97 Tr., pp. 13, 54). The Court's experience with these cases indicates that juries often find admissions by investigating agents to be dispositive in close cases.

 The Government's Response To The Defendant's Renewed Motion

 On December 19, 1997, the government filed its response to Defendant's renewed motion to dismiss the indictment for prejudicial preindictment delay. The government's response conceded that it could have indicted this case sooner, but argued that Defendant had not established prejudice. The government asserted that Eddy Sabath would not have appeared credible because he was attempting to shield himself from criminal culpability. The government also asserted that Mr. Brunious' testimony was lost because of Defendant's continuance of the earlier May 1997 trial date, not preindictment delay. This Court squarely rejects the government's attempt to blame Defendant for the prejudice caused by its long, unexplained delay in indicting this case.

 Pivotal on this point is the fact that the government conceded that its "investigation of this case was complete by June 1992" and that it had received "the case file [report] in December 1992." *fn4" (Govt's Resp. to Renewed Mot., p. 9). Yet the government asserted that because it did not intentionally delay ...

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