United States District Court
for the District of Massachusetts

UNITED STATES,      )
- vs - )   Criminal Docket
  )   #98-10079-REK
JOHN F. SWEENEY, JR.,)
Defendant.                    )


        MOTION TO DISMISS FOR
VIOLATION OF RIGHT TO SPEEDY TRIAL
        COMES NOW JOHN F. SWEENEY, JR., ("Mr. Sweeney") made defendant herein, and pursuant to Fed.R.Crim.P. 12(a) respectfully moves this Honorable Court to dismiss this cause, with prejudice, for violation of his right to: (1) due process protected by the Fifth Amendment to the US Constitution; (2) speedy trial protected by the Sixth Amendment to the US Constitution and by the Speedy Trial Act, 18 U.S.C. §§ 3161-3174; and (3)speedy trial and to fair and impartial justice protected by Article XI, Part the First, of the Constitution of the Commonwealth of Massachusetts. The Defendant anticipates that this Motion will be given a full evidentiary hearing on March 3, 1998, as currently scheduled in the Court's calendar, however, in the alternative, the Defendant requests an evidentiary hearing on this motion. In support, the Defendant submits herewith his Memorandum of Law in Support and shows:
        1. As of February 19, 1999, 338 days have passed since the day following Mr. Sweeney's indictment in this cause, 18 U.S.C. §§ 3161(c)(1). Excluding the time from Feb. 19 (date of filing these motions) until hearing on Mar. 3, and continuing to count to the trial date set for March 19, 1999, the time will be 354 days.
        2. Pursuant to 18 U.S.C. §§ 3161(c)(1), discharge is mandatory, because 77 non-excluded days have passed (at a minimum, but see #3, below) as of Feb. 19, with a trial date set for March 19, 1999 by which time 93 non-excluded days will have passed without Mr. Sweeney being brought to trial. Time was computed as follows:

        A. EXCLUDED TIME (through 2/19):


        February 2-June 8* (#13, #16)
        June 16-December 17, 1998 (#28)

        B. NOT EXCLUDED (through 2/19):

        June 9-21, 1998 . . . . . . . . . . . . . . . . . . . .13 days
        December 18 to February 19, 1999 . . . . . 64 days
        Total days................................................77 days

        C. After 2/19/99, exclude 2/19/99 to 3/3/99 for pending motions, and then add 16 more days from 3/3 to 3/19/99 trial date as more days outside the speedy trial date, totalling 93 days.

        3. DELAYS WHICH SHOULD BE ATTRIBUTED TO THE UNITED STATES:
        The government has already exceeded the mandatory speedy trial discharge time of 70 days, 18 U.S.C. §§ 3161(c)(1). Nonetheless, much of the time which was excluded from calculating the speedy trial date, should not rightly have been excluded, because the pre-trial delays were caused by the government. The requests for extensions of time requested by the Defendant were primarily for the purpose of preparing a Motion to Dismiss (as submitted herewith) which could not be prepared without access to or an inventory of, the items that were seized from Mr. Sweeney's homes. The government had variously claimed that it had not and did not control the items, and that no inventory existed. The resulting delays and the inability of the Defendant or his counsel to be able to view these items or obtain an inventory, were the direct result of these misrepresentations by the government.
[The excerpts from the August 20, 1998 pre-trial hearing, and the letters from AUSA Sheila Sawyer of Sept. 8 [Exh. 9] and Nov. 9, 1998 [Exh. 10], are appended to the Exhibits Filed in

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        *The docket entry (#13) states the time from March 18 through June 10 was excluded, but the Court's order and the docket entry for that order (#16) reads through "June 8, 1998." This two-day discrepancy does not change the outcome either way. Additionally, the government waived the issue by failing to object at anytime in the intervening eight months.


Support of Feb. 19, 1999 Motions, incorporated by reference herein, together with Motion and Memorandum of law in support.]
        A. Misrepresentations that Marshals Never Seized nor Controlled the Household Goods from the Meyer Lane and Bay Road Homes:
        The government has continuously represented to the Defendant, his counsel, and to the Court, that the U.S. "never had dominion and control" over the household contents of Mr. Sweeney's two multi-story, large homes. These two homes contained mountains of material, exculpatory and possibly exculpatory evidence, including photographs, audio tape recordings, videotapes, contemporaneous notes, court files and transcripts, and more than 100 boxes of files accumulated over the 12 year history in the civil litigation. This evidence had been seized by US Marshals both the day before and the day of Mr. Sweeney's warrantless arrest inside the Meyer Lane home on February 28, 1998.
        At the April 20, 1998 pre-trial hearing (Docket Entry #13) AUSA Timothy Feely misrepresented to the Court on April 20, 1998, that the United States never had dominion and control over the property, and further represented that a private company, over whom the government had no influence, had Mr. Sweeney's household goods which had been removed from the house to two semi-trailers. [Transcript of April 20, 1998 hearing, page 12, lines 10-12, "MR. FEELEY: Your Honor, the Department of Justice never took possession, control or exercised any dominion or control over tose items." ]
        As shown by the government's response to the Defendant's Motion to Preserve Exculpatory Evidence (Entry #24), the US again represented that it never had control of the contents of the two houses (Meyer Lane and Bay Road) and that there was no inventory. This misrepresentation is then reflected in the Court's order of September 8, 1998, where the court found the government had no duty to obtain evidence that was not in its control.
        As a result, the Defendant and his counsel were never able to view the contents of the trailers nor obtain the release of materials therein. On information and belief, the entire contents (more than $2 million in goods) were sold for $500.00 in September, 1998.
        As shown by a letter of November 9, 1998 1 from AUSA Sheila Sawyer to William Korman (an associate of Defendant's counsel John McBride), Sheila Sawyer represented that the government never "seized" (nor had control of) these household goods.
        In fact, the US Marshals Service seized the entire property except the house on Meyer Lane on February 27, 1998, without a warrant. The Marshals seized and occupied this property, which includes all the acreage, the house on Bay Road and all possessions therein beginning on February 27, at 9:30 p.m., as set forth in the sworn affidavit of US Marshal AnthonyVisalli in support of the original complaint in this cause (Entry #1). The US Marshal's service maintained continuous control of the aforesaid property until Mr. Sweeney's arrest on February 28, 1998, at approximately 5:15 p.m. At that time, the U.S. Marshal's Service also seized the house on Meyer Lane and all its contents. These facts, too, may be noted from US Marshal Anthony Visalli's sworn affidavit appended to the original complaint in this cause.
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1 RE: Nov. 9, 1998 letter: The videotape itself also shows that representations by AUSA Sheila Sawyer in her Nov. 9, 1998 letter were just wholly fabricated, sensationalistic claims, intended to be inflammatory and prejudicial, if introduced (as they have been here) for Brady purposes, and intended to impair Mr. Sweeney's right to effective assistance of counsel by slandering him to his attorney. AUSA Sheila Sawyer said that Marshals had seized "a couple of 'smoke sticks' which your client apparently contemplated using as an accelerant, and two gas cans located in the basement which appeared to have been rigged to disseminate gas around the perimeter of Sweeney's house," The "gas cans" are ordinary propane tanks, the size used for charcoal grills and indoor propane heat. Shown nearby are two hookups to hoses that go to fireplaces inside the house. The fireplaces themselves, with ashes in them (in the dead of winter), are also clearly shown throughout the videotape. These were part of the ordinary equipment in the house and they were not connected to anything nor "rigged" to dissiminate anything whatsoever, as can plainly be seen in the videotape.
        In other words, the US Marshal's Service had possession and control of the Bay Road house, its contents, all the grounds, and several cars on the grounds, from February 27, 1998. Marshals
physically occupied the Bay Road house and used the telephones, furnitur, and bathroom facilities from February 27 to at least February 28. The Marshals then seized the Meyer Lane house on February 28, at the time Mr. Sweeney was arrested (approximately 5:15 p.m.). Since it was too dark to videotape anything at that time, the US Marshals doubtlessly continued to control the property until at least the next day, March 1, 1998, since the videotape was made during daylight hours. [This is substantiated by third party accounts, see, e.g. Suffolk County Storage Non-Commercial Storage - Notice of Claim, dated 7/24/98 which states that the goods were left with the storage company by a Deputy U.S. Marshal on March 1, 1998, appended as an exhibit to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and incorporated by reference herein as if fully set forth.]
        B. Misrepresentations that there was no inventory of the household goods made and then, that the inventory wasn't made by the government:
        The government had represented to Defendant's counsel and to the court, e.g., see government's response to the Defendant's Motion to Preserve Exculpatory Evidence (Docket Entries 23 and 24) that no inventory had been made and this was based on the government's knowingly false assertion that the US Marshals never had dominion and control over the property or contents (household goods). Not only was this "lack of dominion and control" a knowingly false statement, the only way the US Marshals could not have known that probative, relevant, likely exculpatory and provably exculpatory material, mountains of it, existed, was to selectively and purposefully pretend not to notice it while they were working, searching, and standing in the middle of it..
        In September, 1998, unbeknownst to the Defendant, AUSA Sheila Sawyer advised the storage company's attorney by letter that she understood the storage company intended to dispose of all the property immediately and that it was "of no relevance whatsoever to the pending criminal contempt case." The US attorney's office did not merely "fail to produce" or "fail to look for" evidence that was in the government's control from February 27, 1998 to March 1, 1998, when it had a clear, known legal duty to preserve this evidence, but it then took the position of "it's out of our hands" for months when it turned the property over to a government-contracted storage company, and then actively promoted the destruction of these goods by informing the storage company that it had no relevance to the pending proceeding!
[See the September 8, 1998 letter from AUSA Sheila Sawyer to Richard Connors, Exh. 9, appended as an exhibit to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and incorporated by reference herein as if fully set forth.]
        AUSA Sheila Sawyer, in a subsequent letter on Nov. 9, 1998 letter [Exh. 10], represented that US Marshal Anthony Visalli had informed her that a videotape inventory that had been made by "an independent contractor" would be forthcoming. Nearly 3 months later, it was produced.
        Until then, the government had represented repeatedly that there was no inventory; additionally, the government failed to produce any inventory in response to standard discovery.
        As can be seen from the Affidavit of James Granitas [Exh. 6], September 15, 1998, the owner of the storage company to whom the US Marshals released Mr. Sweeney's household goods and all the evidence, Granitas himself asserts that the US Marshals and FDIC made the videotape. (As also shown by the September 8, 1998 letter mentioned above from AUSA Sawyer to Granitas' attorney, telling them, in writing, that the government says the property has no relevance whatsoever to this case, the government and Granitas were in close contact with one another).
        Granitas' affidavit is appended as Exhibit 6 to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and incorporated by reference herein as if fully set forth.
        In late January 1999, the US government finally produced the videotape inventory of the properties and contents seized by the US Marshals. This video tape itself is exculpatory and it also proves that facially, openly and obviously, there was extensive exculpatory, probative, relevant, and probably exculpatory evidence seized by the US Marshals that was not preserved and which the US government purposely aided in seeing that it was destroyed.
        The videotape inventory itself, which had not been produced for nearly a year, was vital to the preparation of the Motion to Dismiss for Loss and Destruction of and Failure to Produce Exculpatory Evidence. It was also vital to the proof needed by the Defendant, back in April, 1998, in support of the Defendant's Motions to Preserve Exculpatory Evidence that was denied (and contributed to the total loss of more than $2 million in Mr. Sweeney's household goods unlawfully seized without a warrant and without probable cause by the government).
        The failure to produce this videotape prevented the Defendant from proving the mountains of exculpatory and possibly exculpatory material evidence that was in the possession and control of the US Marshals from February 27, 1998 to March 1, 1998, even existed.
        This was the property the government claimed originally had been relinquished "without inventory"2 to the possession and control of the US FDIC.
         This is more fully set forth in the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, incorporated by reference herein.

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        2 Despite the representations by AUSA Sheila Sawyer that US Marshal Anthony Visalli represented that "an independent contractor" (implying it was the moving contractor) had made the videotape inventory, that is not supported by the manner the items in the videotape were filmed, nor by the contractor himself, in an affidavit, as referenced above. Additionally, the person making the film can be seen plainly in a mirror at 16:50 minutes into the videotape and on information and belief, he is an agent of the US government.


        Because of this wholly bad faith conduct by the US government, the delays requested to prepare a Motion to Dismiss, from April 20, through December 17, 1998, should not be attributed to the Defendant. At a minimum, the Defendant should not be charged with the inordinate delay from April 20, 1998, when Timothy Feely represented that the US never had dominion and control over the household items, until approximately January 31, 1999, when the government surrendered the videotape inventory.


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        WHEREFORE JOHN. F. SWEENEY, JR. respectfully moves this Honorable Court pursuant to Fed.R.Crim.P. 12(a) to dismiss this cause, with prejudice, for violation of his right to: (1) due process protected by the Fifth Amendment to the US Constitution; (2) speedy trial protected by the Sixth Amendment to the US Constitution and by the Speedy Trial Act, 18 U.S.C. §§ 3161-3174; and (3) speedy trial and to fair and impartial justice protected by Article XI, Part the First, of the Constitution of the Commonwealth of Massachusetts, and for all other relief just or equitable in the premises.