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UNITED STATES v. MORDECHAI KRASELNICK

December 22, 1988

UNITED STATES OF AMERICA
v.
MORDECHAI KRASELNICK, et al., Defendants



The opinion of the court was delivered by: BROTMAN

 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. 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:

 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, 90 L. Ed. 2d 299, 106 S. Ct. 1871 (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 ...


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