A man charged with bid-rigging has convinced a federal judge to throw out the indictment against him after a four-year gap in written correspondence between his attorneys and prosecutors. “While the delay was not designed to gain a tactical advantage for the government, the delay nevertheless demonstrates a lackadaisical attitude towards prosecution that cannot be tolerated under our system of justice,” Eastern District Judge Arthur Spatt (See Profile), sitting in Central Islip, wrote in United States v. Montecalvo, 05-cr-924, on May 21, dismissing the indictment with prejudice.
John Montecalvo was indicted in December 2005 on two counts of mail fraud conspiracy for his role in an alleged scheme to artificially inflate prices for two Long Island repaving projects. Throughout 2006, Montecalvo’s attorney negotiated with the Eastern District U.S. Attorney’s Office on a plea. In December 2006, the government sent a proposed cooperation agreement to Montecalvo’s attorney, who returned proposed modifications. The prosecutor then responded the revisions needed to be reviewed by other prosecutors. Montecalvo said he got no further response over the next four years.
The government disputes it stayed silent, saying there were “sporadic communications” between the sides. All conversations, however, occurred over the phone. In December 2010, Montecalvo’s attorney, Patricia A. Pileggi of Schiff Hardin, contacted prosecutors seeking consent to a dismissal of the indictment, which was refused.
Spatt acknowledged that Montecalvo did not try to expedite consideration of his case during the four-year period. Moreover, he said that the evidence against Montecalvo, in the form of audio recordings and documents, was still available. “Nevertheless, the practical prejudice Montecalvo has suffered, in addition to the sheer length of the delay, weigh substantially in the Court’s analysis in favor of dismissal with prejudice,” Spatt wrote.
A spokesman for the Eastern District U.S. Attorney’s Office said it is reviewing the decision. Four other individual defendants were each incarcerated for eight months and ordered to pay more than $300,000, with the last sentencing occurring in October 2009. Four corporate defendants forfeited $2.3 million, representing the sum of the awarded contracts.