Case 3:08-cr-00230-CSH Document 397 Filed 10/08/10 Page 1 of 7

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA : CRIM NO. 3:08CR230(CSH)

:
V. :
:
:
JAMES BOTTI : October 8, 2010

MOTION FOR ORDER OF DISMISSAL OF COUNTS ONE AND

TWO OF THE INDICTMENT WITHOUT PREJUDICE

On September 17, 2010, the Court imposed a sentence of 72

months imprisonment on Count Three (honest services mail fraud)

of the original Indictment Criminal No. 3:08CR230(CSH)(hereafter

“Indictment”) in the above captioned matter. On that same day,

the Court imposed concurrent 60 month sentences on Count Four

(conspiracy to structure) and Count Five (structuring) of the

Indictment. On September 23, 2010, defendant James Botti filed a

Notice of Appeal indicating that he was appealing the “conviction

and sentence.” Docket No. 389.

The Court has asked whether the Government intends to retry

defendant on the counts upon which the jury hung - - Count One

(conspiracy to commit mail fraud), Count Two (bribery) and Count

Three (the prong charging money or property mail fraud). So long

as the convictions on Counts Three, Four and Five of the

Indictment and the sentences imposed on defendant on those counts

remain in full force, the Government does not believe that a

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retrial on Counts One and Two, or on the money or property prong

of Count Three, is in the best interest of justice. In the event

that the convictions on either of Counts Three, Four or Five, or

the sentences imposed thereon are disturbed or modified on appeal

or in a subsequent collateral attack, the Government does believe

that it may be necessary to retry Counts One, Two and the money

or property prong of Count Three. Thus, the Government believes

that a dismissal of Counts One and Two without prejudice to the

reinstatement of those charges is the proper course of action at

this time.1 See, e.g., United States v. McDonough, 56 F.3d 381,

384 (2d Cir. 1995) (where defendant was convicted on some but not

all counts, court notes that “district court dismissed without

prejudice all of the undecided counts”).

Pursuant to Rule 48(a) of the Federal Rules of Criminal

Procedure and with leave of Court, the Acting United States

Attorney for the District of Connecticut hereby moves to dismiss

Counts One and Two of the Indictment, returned on November 6,

2008 against defendant James Botti, which Indictment charges the

defendant with violations of Title 18, United States Code,

Sections 371, 666 and 2, for the reason that defendant was

convicted on Counts Three, Four and Five of the Indictment and

1
Since the jury convicted defendant on Count Three, the
Government is not seeking to dismiss Count Three. In the event
the conviction on Count Three is disturbed or reversed, the
Government would request to retry defendant on both prongs of
Count Three.

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has been sentenced on those charges. It is requested that the

Court grant the Government’s motion to dismiss Counts One and Two

without prejudice to the reinstatement of those charges if

defendant’s convictions on the other counts or sentences imposed

on those counts is disturbed or modified. See United States v.

Giambrone, 920 F.2d 176, 179 (2d Cir. 1990) (“A dismissal

‘without prejudice’ means in principle that a second suit on the

same ground is permissible”) (citations omitted).

In United States v. Stansfield, 171 F.3d 806 (3d Cir. 1999),

a defendant was convicted on certain counts of an indictment and

the jury deadlocked on other counts. After the defendant was

sentenced on the counts of conviction, the Government moved to

dismiss the deadlocked counts “without prejudice to their

refiling in the event a new trial is ordered by this or any other

Court on any count of conviction.” Id. at 807-09. The district

court granted the motion to dismiss without prejudice. After the

appellate court reversed one of the counts of conviction, the

Government retried the defendant on the deadlocked counts. After

the defendant was convicted at a retrial on the deadlocked

counts, defendant sought to set aside his conviction by claiming

that the Government should not have been permitted to retry him

on counts that were dismissed. The Third Circuit Court of

Appeals rejected defendants claim and upheld the conviction on

the deadlocked counts with one exception. The appellate court

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reversed one arson count because the statute of limitations had

expired on that one count. With respect to the other counts, the

appellate court affirmed the convictions holding that the

deadlocked counts were dismissed without prejudice to the

Government’s ability to reinstate or refile the charges.

Therefore, like the Government in the Stansfield case, the

Government here moves to dismiss Counts One and Two without

prejudice to its ability to reinstate the charges in the event

that defendant’s conviction and sentence is disturbed or modified

on appeal or in a collateral attack. Thus, it is respectfully

requested that the Court enter a dismissal order of Counts One

and Two without prejudice to the Government’s ability to

reinstate the charges if the convictions or sentences imposed on

defendant are subsequently disturbed or modified.

The Government believes that if the Court dismisses Counts

One and Two without prejudice to the Government’s ability to

reinstate the charges, time under the Speedy Trial Act will not

be running as of the date of the Court’s entry of the dismissal

order. See 18 U.S.C. § 3161(h)(5)(excluding time if indictment

is dismissed upon Government motion); see also United States v.

Giambrone, 920 F.2d at 179 (suggesting in dicta that un-excluded

Speedy Trial Act time is carried over to a re-prosecution). The

provisions of the Speedy Trial Act also provide that in the event

that any one of defendant’s convictions or sentences is disturbed

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or modified on appeal or in a collateral attack, and a retrial

becomes necessary, the Speedy Trial clock will begin to run when

the dismissed charges are reinstated (18 U.S.C. § 3161(d)(2)) or

when the “action occasioning the retrial becomes final.” 18

U.S.C. § 3161(e).2

2
In the event the Court concludes that the Speedy Trial
clock is running despite the Court’s entry of a dismissal order
without prejudice, the Court can enter a continuance order in the
interests of justice excluding the time it takes defendant to
perfect his appeal and to obtain a ruling from the Second Circuit
Court of Appeals. 18 U.S.C. § 3161(h)(7)(A).

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Conclusion

For the reasons set forth herein, the Government

respectfully requests that the Court enter a dismissal order of

Counts One and Two of Indictment Criminal No. 3:08CR230(CSH)

without prejudice to the Government’s ability to reinstate the

charges if the convictions or sentence imposed on defendant is

subsequently disturbed or modified on appeal or in a collateral

attack.

Respectfully submitted,

NORA R. DANNEHY
ACTING UNITED STATES ATTORNEY

/S/
RICHARD J. SCHECHTER
SENIOR LITIGATION COUNSEL
United States Attorney’s Office
915 Lafayette Boulevard
Bridgeport, Connecticut 06604
(203)696-3000
Federal Bar No. CT24238

/S/
RAHUL KALE
ASSISTANT U.S. ATTORNEY
United States Attorney’s Office
915 Lafayette Boulevard
Bridgeport, Connecticut 06604
(203)696-3000
Federal Bar No. phv0256

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CERTIFICATE OF SERVICE

I hereby certify that on October 8, 2010 a copy of the

foregoing Government’s Motion for Order of Dismissal of Counts
One and Two of the Indictment Without Prejudice was filed
electronically and served by mail on anyone unable to accept
electronic filing. Notice of this filing will be sent by email
to all parties by operation of the Court’s electronic filing
system or by mail to anyone unable to accept electronic filing as
indicated on the Notice of Electronic Filing. Parties may access
this filing through the Court’s CM/ECF System.

/S/_____________________
Richard J. Schechter