The opinion of the court was delivered by: BONSAL
In an indictment filed August 4, 1975, (S75 Cr. 772), defendant Virgil Alessi is charged in five substantive counts with the transportation, distribution and possession of large amounts of heroin in violation of 21 U.S.C. §§ 173, 174, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. Alessi is also named as an unindicted coconspirator in Count 1 of the indictment which charges Lawrence Iarossi and 12 others with a conspiracy to violate the federal narcotics laws between January 1, 1968 and June 1973.
In November 1975, Alessi moved to dismiss the indictment against him on the ground that the prosecution would amount to a denial of due process for the reason that it would violate the terms of a plea-bargain agreement with the U.S. Attorney's Office in the Eastern District of New York under which he pled guilty on October 2, 1972 to an Information charging a conspiracy to violate the narcotics laws between April 1, 1969 and December 18, 1971. According to Alessi, the plea-bargain agreement provided that Alessi would not be prosecuted with respect to any overt acts committed during the course of the Eastern District conspiracy which might constitute a substantive violation of the narcotics laws. Alessi contends that the present indictment violates the plea-bargain agreement and that his prosecution would therefore amount to a denial of due process.
In an Endorsement filed December 29, 1975, this Court reserved decision on Alessi's motion to dismiss the indictment until the conclusion of the trial, on the ground that the evidence at trial might be of help in determining whether the matters set forth in the indictment were included in Alessi's alleged plea-bargain agreement and whether the evidence demonstrates that Alessi is entitled to claim double jeopardy.
Alessi appealed, and on January 19, 1976, the day before the trial was to commence, the Court of Appeals heard oral argument and in a ruling from the bench treated Alessi's application as a petition for a writ of mandamus.
The Court of Appeals directed that the district court either conduct an evidentiary hearing before trial to decide whether the further prosecution of Alessi would deny him due process because it would violate the terms of the 1972 plea-bargain agreement, or grant a severance of Alessi and proceed to trial with the other defendants and decide Alessi's motion at a later date.
On January 19, 1976, Alessi was severed and the trial of the remaining seven defendants commenced on January 21, 1976.
(Hereinafter referred to as the " Iarossi " trial).
The Court held an evidentiary hearing on Alessi's motion on February 11, 1976, at which Alessi and the Government stipulated that they would rely on the record made of an evidentiary hearing on similar issues in the case of United States v. Papa, et al., 74 Cr. 1082, conducted by Judge Brieant on January 16, 1975,
and on the record made at a hearing on Indictment 75 Cr. 687 before Judge Judd in the Eastern District on October 17, 1975. Both parties stated that they would file supplemental memoranda of law.
Alessi's position is that the plea-bargain agreement worked out between Vincent Papa, Alessi's coconspirator in the Eastern District indictment, and Special Strike Force Attorney James O. Druker extended equally to Alessi, and that he pled guilty to Information 72 Cr. 1133 in the Eastern District in reliance on the promises and representations made by Druker, so that the Government is estopped from proceeding to trial on the present indictment.
On the other hand, the Government contends that Druker's promises in the plea-bargain agreement with Papa did not extend to Alessi, that Alessi did not plead guilty to the Information in reliance on such promises and, in any event, that the plea-bargain agreement in the Eastern District did not cover the indictment in the Southern District of New York. Furthermore, the Government contends that Alessi's alleged narcotics violations in Counts 5, 7, 15, 16 and 17 of the Southern District indictment are separate and apart from the Eastern District conspiracy.
It appears that the major issues raised by Alessi's motion are, first, the scope and extent of the 1972 plea-bargain agreement, and second, the makeup of the two alleged conspiracies, one being the conspiracy in the Eastern District Indictment 72 Cr. 473 and the other being the conspiracy covered in the Southern District Indictment 75 Cr. 772. Alessi's claim of double jeopardy rests, in part, upon his contention that the two conspiracies charged in the two separate indictments are one and the same; that the substantive counts in the Southern District indictment in which he is named arise out of overt acts in the Eastern District indictment; and that prosecution on the present indictment would be a violation of his constitutional rights.
In view of the stipulation of the parties at the evidentiary hearing, the record before the Court consists of the two indictments, sworn affidavits from Assistant United States Attorneys, memoranda of law, the record of the evidentiary hearing before Judge Brieant on January 16, 1975, the record of the hearing before Judge Judd on October 17, 1975, and the evidence produced at the Iarossi trial.
The Eastern District Conspiracy
On January 24, 1972, Indictment 72 Cr. 88 was filed in the Eastern District charging Alessi, Vincent Papa, Anthony Passero, Anthony Loria and others with conspiracy to violate the federal narcotics laws between April 1, 1967 and August 6, 1971. This indictment was ...