United States v. Russell Bufalino

Citations: 683 F.2d 639; 1982 U.S. App. LEXIS 18338Docket: 846

Court: Court of Appeals for the Second Circuit; June 15, 1982; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Russell Bufalino appeals his November 1981 conviction for extortion and conspiracy in the United States Court of Appeals, Second Circuit, asserting a violation of his statutory right to a speedy trial. The events leading to the appeal include Bufalino's 1976 attempt to collect a $25,000 debt from Jack Napoli through threats, which Napoli recorded and subsequently used to testify against Bufalino, leading to an initial conviction in 1977. While incarcerated, Bufalino attempted to have Napoli killed, resulting in a 1980 indictment for obstruction of justice. This was followed by a 1981 superseding indictment for conspiracy to violate civil rights and obstruct justice.

During the trial, key testimonies were provided by Fratianno and Fox, both associated with the Witness Protection Program. Bufalino testified, denying intent to kill Napoli, and presented witnesses to contradict the prosecution. However, the government introduced the tape recording of his threat as rebuttal evidence. The jury convicted Bufalino on both counts, sentencing him to ten years for the civil rights violation and five years for obstruction, with fines applied.

Bufalino's appeal primarily hinges on the alleged denial of a speedy trial, as 283 days elapsed between his arraignment and trial, exceeding the 70-day limit set by the Speedy Trial Act, 18 U.S.C. 3161. The court must determine if 213 of those days are excludable under the Act's provisions. The appeal, including claims of inadmissible testimony and erroneous jury instructions, is ultimately found to be without merit, leading to the affirmation of the conviction.

The government proposes a calculation for excludable periods in Bufalino's prosecution, arguing for the exclusion of one day for a co-defendant's bail hearing, two days for the preceding weekend, and 210 days for motion practice. This calculation is based on excluding the time frame from January 20 to July 28 for motion considerations, plus additional time from September 11 to September 30 related to a specific evidentiary motion. The appellant contests this calculation primarily by arguing that under subsection 3161(h)(1)(J), only 30 days can be excluded for the court's consideration of pretrial motions. According to the appellant, two rounds of motions submitted by March 24 and May 26 only justify excluding 60 out of 126 days. The government counters, asserting that subsection (F) applies without numerical limits and that (J) pertains to different proceedings. The document notes that the application of (J) to pretrial motions is a novel issue in this circuit. Historical context from the 1974 Speedy Trial Act is provided, indicating that the legislative intent for the predecessor subsections limited exclusions to specific periods related to motion hearings and subsequent advisement, suggesting that the government’s broader interpretation may not align with legislative history.

Section 3161(h)(1)(g) allows for the exclusion of time when a defendant's proceeding is under advisement, with a new amendment limiting this period to 30 days. This amendment, proposed by Detroit defense attorney Mr. Barris, aims to provide a reasonable timeframe for district judges to decide on matters after all oral arguments and briefs are submitted, preventing indefinite delays that could undermine the bill's intent. The Committee supports this view and aligns with Alaska's speedy trial rules, which also stipulate a 30-day limit for pre-trial motions. However, the court retains the authority to extend case continuances when necessary due to complexity, as outlined in section 3161(h)(8).

By 1979, Congress reviewed the Act based on judicial experience, finding subsection (G) effective without issues, while subsection (E) faced controversy, prompting rewording for clarity. Legislative intent emphasized that delays related to pretrial motions should not only account for the hearing duration but encompass the entire process from filing through resolution, aiming to prevent misuse of this exclusion. The revised language also clarifies that the exclusion period ends upon the conclusion of hearings or prompt disposition of motions, ensuring the 30-day advisement limit is not circumvented by routine motions decided without hearings, which should require less than 30 days for advisement.

The term "proceeding" in subsection (J) of the Speedy Trial Act is intended to include pretrial motions, supported by administrative guidelines from the Administrative Office of the United States Courts. These guidelines clarify that the time required for a court to consider a motion is excludable, limited to a maximum of thirty days. The starting date for this exclusion is the day after the court has received all necessary materials from the parties, while the ending date is the earliest of the judge's decision filing, an oral decision, or the thirty-day limit. The 1979 Plan for Prompt Disposition of Criminal Appeals underscores the importance of recognizing when a motion is under advisement to initiate the excludable time frame.

Although some circuit court decisions have been cited by the government to argue that the thirty-day limit is inapplicable, they do not directly address the issue. For instance, in United States v. Brim, the pretrial motions were continuously pending due to overlapping filings, and no single motion was under advisement for more than thirty days. Conversely, in United States v. Raineri, the Seventh Circuit ruled that it was reasonable to exclude thirty days for motions that were under advisement for 88 days, agreeing with the interpretation that supports the excludable period.

The court rejects the government's assertion that the 30-day limitation in subsection (J) does not apply, acknowledging that this interpretation requires district judges to make swift decisions on motions. However, the court maintains that this interpretation aligns with the Act's intent and allows judges to grant continuances if necessary under subsection 3161(h)(8). The government further contends that the defendants' lack of response to a sequestration motion, filed on March 27, should render the period until trial excludable under subsection (F). The court notes that during a pretrial conference on September 30, the judge expressed reservations about sequestration and required defense counsel's agreement to proceed. On October 19, the trial's commencement date, the court reiterated its stance on sequestration, indicating that the defendants’ non-objection implied consent. The court finds merit in the government's argument, suggesting that if either defendant had opposed sequestration, the motion might have been denied. The court also highlights the challenges posed by the Speedy Trial Act, noting that the Southern District faces an overwhelming number of cases, making it impractical to expect clerks and judges to ascertain parties' positions on motions without clear communication. Ultimately, the court suggests that Bufalino had an obligation to actively respond to the government's motion rather than remain passive, as doing so could have impacted the dismissal of the indictment based on speedy trial grounds.

The court ruled that the exclusion period under subsection (F) applies from the government's sequestration motion filing, clarifying that the appellant's failure to respond does not constitute a waiver of rights. The government bears the responsibility for prosecution, and defendants are not obligated to expedite their trials. However, to ensure the court can effectively manage the proceedings, defendants must respond to motions, as failure to do so could lead to dismissals based on technicalities. The court emphasized that the government must actively pursue cases and report a defendant's lack of response to motions in a timely manner.

The entire period from March 27 to October 19 was deemed excludable under subsection (F), allowing a trial held 59 days after arraignment to comply with the Speedy Trial Act. The court also dismissed the appellant’s claims regarding evidence introduced at trial, particularly concerning cross-examination about his connections to La Cosa Nostra. The cross-examination was deemed proper as it was relevant to impeaching the appellant's testimony about his relationship with Fratianno, thereby supporting the government’s theory of the case. The trial judge was found to have appropriately exercised discretion in allowing this evidence, underlining the importance of truthful testimony from defendants.

Bufalino's objection to the admission of a tape recording of an extortion threat centers on its alleged prejudicial nature. Under Federal Rule of Evidence 404(b), evidence of "other crimes" is generally inadmissible to prove a person's character but can be used for impeachment, or to demonstrate motive or intent. The tape served to refute Bufalino's claim of not instructing anyone to kill Napoli while also establishing his motive for the threat. Judge Duffy provided the jury with curative instructions, directing them to disregard inappropriate language and clarifying that the tape should only be considered in relation to Bufalino's intent, which mitigated concerns of improper use. Consequently, the admission of the tape was not deemed a reversible error.

Bufalino also contested the court's failure to provide an accomplice instruction regarding the credibility of key witnesses Fratianno and Fox, who received significant benefits from the government. While the judge's instruction acknowledged that the jury should consider the witnesses' interests in the case outcome, it was criticized for being vague and not sufficiently emphasizing the need for scrutiny of their testimonies. However, the court concluded that this potential inadequacy did not warrant reversal of Bufalino's conviction, as the jury had sufficient information to assess the credibility of the witnesses.

The defense characterized Fratianno as a "chronic pathological liar" and noted the government’s payment of $200,000 to him, suggesting it was an attempt to buy false testimony. The judgment of conviction against Bufalino is affirmed. Michael Rizzitello was indicted alongside Bufalino for conspiracy to obstruct justice, but later charges included conspiracy to violate Napoli's civil rights, with Rizzitello being acquitted. A particularly damaging tape recording featured Bufalino threatening violence. Bufalino was arraigned through counsel on January 9, 1981, and the parties agreed that the speedy trial clock would start from that arraignment date, despite his later personal appearance. Under Section 3162(a)(2), if a defendant is not tried within the specified time limits, they may seek dismissal of the indictment, with the burden of proof resting on the defendant. The court considers factors like the seriousness of the offense and the impact of reprosecution when deciding on dismissal with or without prejudice. Since the conviction is affirmed, the court does not evaluate whether dismissal with prejudice would have been warranted. Section 3161(h) outlines exclusions to the trial timeline, including delays from pretrial motions and court advisement periods. The government’s reliance on United States v. Regilio is noted, but it remains unclear whether the court exceeded the allowable 30-day advisement period. Bufalino argued that pretrial motions were not formally scheduled until January 22 and suggested that the time exclusion should only begin from actual motion filings, which occurred on March 9.

The court addressed a motion to sequester the jury during a September 30 colloquy, where it was confirmed that both attorneys for Rizzitello and Bufalino had no objections to the sequestering. The court expressed its reluctance to sequester the jury unless all parties agreed, highlighting concerns that such action might imply a threat to the jury's safety. The attorneys planned to discuss their positions further after the hearing.

Additionally, the government contended that the speedy trial clock should not commence until Bufalino's in-person appearance on May 8. It argued that excludable time should start from January 9, when pretrial motions were anticipated, and asserted that Bufalino's motion for a continuance on September 30 waived his speedy trial rights. The government also claimed that the period from October 5 to October 19 should be excluded due to Judge Duffy's involvement in another case, suggesting that a finding of "ends of justice" could be made retroactively. This interpretation would count the time from January 9 to March 9 toward the 70-day statutory limit. Bufalino's prior conviction related to his involvement in a La Cosa Nostra convention was noted, having been reversed by the court in a previous case.