Appeal from an order of the District Court for the Southern District of New York, Dudley B. Bonsal, Judge, which, after an evidentiary hearing directed by this court, again denied appellant's motion to dismiss an indictment against him on the ground that prosecution would violate a plea-bargaining agreement made in the Eastern District of New York. Affirmed.
Before: FRIENDLY, FEINBERG and VAN GRAAFEILAND, Circuit Judges.
On or about June 30, 1972, a witness disappeared. The ensuing events have come to plague the district courts for the Eastern and Southern Districts of New York and this court as well. We now have the third case this year in which this court must consider the bearing of what then happened.
The witness was a central figure in the case developed by Eastern District Strike Force Attorney James Druker to prove the allegations embodied in Eastern District indictment 72 Cr. 473. That indictment charged, among other matters, a conspiracy to violate the federal narcotics laws encompassing appellant, Virgil Alessi, and Vincent Papa, Anthony Passero, Frank D'Amato, Anthony Loria, Sr., and others; and also charged the just-named defendants with engaging in a continuing criminal enterprise as defined in 21 U.S.C. § 848. At the time of the disappearance, Druker was in the midst of plea bargaining the charges; the "package" he proposed to achieve had been written down and apparently cleared with his superiors in Washington.With his prime witness lost, Druker's case was greatly weakened, and he proceeded, over the next two months, to negotiate a bargain more favorable to the defendants. Agreement between Druker and the several attorneys who represented Vincent Papa, one of whom also represented appellant Alessi, was finally reached on August 18, 1972. No contemporaneous written evidence of the terms of the bargain exists; what they in fact were is a matter best deferred for the moment.
Sometime between August 18 and September 5, Druker learned of information that had been supplied to the Eastern District Strike Force by Joseph Ragusa, which potentially implicated Papa in yet further illegal narcotics activities. Papa was not informed of this, and ignorant of it he pleaded guilty, on September 5, 1972, to the conspiracy charge and also to a pending tax evasion information.
On October 2, 1972, Virgil Alessi waived indictment and he, too, pleaded guilty - to a one count conspiracy charge contained in a superseding information; 72 Cr. 473 was dismissed as to him. Appellant's counsel contends that this format was used so that it would be clear that this plea acted to bar a pending prosecution in Nassau County. Appellant also waived his pre-sentence report, and was sentenced at the time of his plea. Before accepting the plea, the district court asked Alessi if anyone had promised him anything to induce it; Alessi answered that no one had. However, when the judge indicated that he would be willing to sentence Alessi to "15 years without batting an eye," it rapidly became evident that the truth was otherwise. The upshot was that, on Druker's recommendation, Alessi received a five-year suspended sentence with a mandatory three-year special parole. Appellant now claims that the consideration for his plea included certain representations by Druker, which, it is contended, prevent the prosecution in the present case from going forward.
On two previous occasions we have considered these promises of the summer of 1972. The first case, decided on April 2 of this year, was United States v. Papa, 533 F.2d 815, an appeal from Papa's convictions in the Southern District of New York for conspiracy to violate and a substantive violation of the narcotics laws. Papa's most important contentions were that the "Southern District conspiracy" was the same as the "Eastern District conspiracy" to which he had previously pleaded, and therefore that the Southern District prosecution on that charge was violative of his right not to be twice placed in jeopardy; and that the Southern District case, based in good part on the testimony of Joseph Ragusa, violated the bargain. This court affirmed the convictions, holding as to the first point that after all the facts were in, Papa had failed to show the claimed identity of the conspiracies; and as to the second point that even if the Eastern District U.S. Attorney's Office would have been bound not to prosecute crimes discovered by use of Ragusa's information, the bargain did not reach so far as to preclude the Southern District prosecution which had been developed entirely independently.
The second case, even more recently decided, was United States v. Alessi, 536 F.2d 978, slip op. 3881 (2d Cir. 1976) (Alessi I), which involved the same appellant as the present case. That appeal, like this one, was from a pre-trial order; the challenge was to a district court decision denying Alessi's claim that the 1972 promises were broad enough to prevent an Eastern District prosecution for tax evasion during the years in which the "Eastern District conspiracy" had been in operation. This court affirmed, holding that the pre-trial order was appealable but that whatever crimes were covered by the bargain, a crime as distant from the conspiracy as tax evasion was not.
We come now to this case. By indictment filed on August 4, 1975, Anthony Passero, Lawrence Iarossi, and others were indicted by a grand jury in the Southern District of New York for conspiracy to violate the narcotics laws; Vincent Papa, Virgil Alessi, and Frank D'Amato were among the named but unindicted co-conspirators. Alessi was indicted on five substantive counts which, as supplemented by the bill of particulars, all charge him as an aider and abettor for delivering, at locations in Long Island City, and others parts of Queens, various quantities of heroin to one Anthony Manfredonia, which Manfredonia then took to the Southern District for distribution to others. The Government states that if this case does finally come to trial, it will introduce evidence showing that Alessi "was well aware" that the heroin "was being transported to and concealed, possessed and distributed to others in the Southern District of New York." The Government also contends, and appellant offers nothing in refutation, that insofar as the indictment names Alessi it is based on information supplied by Manfredonia, a witness developed entirely by the Southern District, and, as Druker stated in an affidavit, unknown to him in 1972. Its brief states that "[no] witness or evidence used in the obtaining of this indictment was obtained from prosecutors in the Eastern District." Finally, the Government contends, although this point is indeed disputed, that Druker's representations were by their own terms not binding on the Southern District.
The essence of appellant's claim, which is based on Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), was succinctly stated by the trial court as follows:
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.
Trial was scheduled to begin on January 20, 1976. In November 1975, appellant moved to dismiss the indictment on the ground just indicated. Judge Bonsal, on December 29, reserved decision until the conclusion of the trial, when he would have the benefit of the evidence that had been introduced as to the true nature of the crimes charged and would conduct an evidentiary hearing. Alessi appealed, and the Government moved to dismiss the appeal. Without deciding the question of appealability, a panel of this court, on January 19, issued a writ of mandamus (Alessi II) disrecting the trial court either to sever Alessi from the trial and await its evidence, or to hold an evidentiary hearing and determine the motion prior to trial; a short unprinted opinion was filed the next day. Following issuance of the writ, also on January 19, a brief hearing was held before Judge Bonsal. Appellant's counsel urged a severance, in part on the ground that the district court should await the results of the appeal in Papa, which had been argued but not yet decided. Appellant also agreed to waive any claim of denial of a speedy trial that might arise out of the attendant delay. Judge Bonsal, apparently impressed by these points and also by the fact that Alessi was not a defendant to the conspiracy count, granted the severance.
Trial as to seven of the other defendants, under the title United States v. Iarossi, began on January 20 and ended on February 4, with a verdict against all defendants on all counts.A notice of appeal was filed, and the case is now docketed in our court, #76-1132, with argument presently scheduled to be heard in the middle of September.
Meanwhile the pretrial proceedings regarding defendant Alessi went on. On February 11, 1976, Judge Bonsal held another short hearing. Appellant's counsel and the prosecutor agreed that there was no further factual material to be introduced; the issue was submitted on the basis of the record developed in Papa, in yet another case concerning Papa and Alessi that had come before the Eastern District in October, 1975, and in Iarossi. Four days after our decision in Papa, on April 6, 1976, Judge Bonsal denied the motion to dismiss the indictment. He supported his decision on two grounds: first, the conspiracy charged in the current indictment was not the same as that charged and pleaded to in the Eastern District, and therefore the substantive crimes with which Alessi was charged were not "overt acts" of that conspiracy; and second, the plea bargain was not intended to cover crimes developed by independent investigations undertaken by U.S. Attorney's Offices outside of the Eastern District. Alessi appealed from this decision on April 13, 1976.
Shortly thereafter, Alessi's trial was scheduled for May 4. On April 29, he petitioned for yet a second writ of mandamus, to halt the trial pending determination of the appeal. On May 3, a temporary stay was issued, and on May 6 a writ followed, staying the trial and setting an expedited briefing schedule. We heard oral argument on June 9.*fn1
Understandably distressed that it is now in this court for the second time, with Alessi's trial severed from that of his co-defendants and delayed for many months and with another appeal in prospect if he is tried and convicted (in which he might argue that developments at trial had demonstrated that our decision on the merits here was wrong), the Government naturally wonders how all this is consistent with Cobbledick v. United States, 309 U.S. 323, 325, 84 L. Ed. 783, 60 S. Ct. 540 (1940). In an opinion by Mr. Justice Frankfurter, the Court there said among other things that Congress from the very beginning has, by forbidding "piecemeal disposition on appeal of what for practical purposes is a single controversy," "set itself against enfeebling judicial administration"; that "[to] be effective, judicial administration must not be leaden-footed"; and that "[these] considerations of policy are especially compelling in the administration of criminal justice," since "encouragement of delay is fatal to the vindication of the criminal law." See also DiBella v. United States, 369 U.S. 121, 124, 126, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962); Kerr v. U.S. District Court, 426 U.S. 394, 96 S. Ct. 2119, 48 L. Ed. 2d 725, 44 U.S.L.W. 4838, 4841 (U.S. June 14, 1976). Alarmed at what has happened by the recent advance of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), into the criminal field under the seductive guise that a defendant is entitled under some circumstances to be protected from an unlawful trial and not simply from an unlawful conviction, and fearful that still worse may befall in the future, the Government asks that we reconsider our interpretation of the "final decision" rule of 28 U.S.C. § 1291 in United States v. Beckerman, 516 F.2d 905, 906-07 (2 Cir. 1975), or at least limit the damage to the precise situation there presented - a second trial admittedly for the same offense following one alleged to have been unlawfully aborted by the trial judge, and to decline to follow the recent decision on another of Alessi's due process appeals, United States v. Alessi I, supra. Since, as in Beckerman and Alessi I, we agree with the Government on the merits and there is a fair possibility that the issue may soon be settled, Abney v. United States, No. 75-6521, certiorari granted, 44 U.S.L.W. 3719 (U.S. June 14, 1976); see also Barket v. United States, No 75-1280, petition for certiorari pending,*fn2 we think it would be more useful instead of seeking en banc reconsideration of Beckerman and/or Alessi I,*fn3 to make our own analysis but not now to challenge prior precedent in this court. Such an analysis is particularly desirable because the Government has recently called to our attention two Supreme Court decisions, Rankin v. The State, 78 U.S. (11 Wall.) 380, 20 L. Ed. 175 (1870), and Heike v. United States, 217 U.S. 423, 433, 54 L. Ed. 821, 30 S. Ct. 539 (1910), seemingly favorable to it, only the latter of which it cited in Beckerman, and there only in summary fashion, and neither of which was cited to the Fourth Circuit in United States v. Lansdown, 460 F.2d 164 (1972), on which Beckerman heavily relied. On the other hand, neither party has cited more recent Supreme Court decisions which might seem to look the other way, although we conclude they in fact do not.
In Rankin v. The State, supra, a defendant, charged with murder in the courts of Tennessee, pleaded in bar an acquittal by a general court-martial for the same crime. After the lower court had sustained the plea and entered a judgment of acquittal, the Supreme Court of Tennessee reversed and remanded for a trial on the merits. The Supreme Court dismissed the writ of error on the ground that the state court judgment was not final.*fn4
Next came Heike v. United States, 217 U.S. 423, 54 L. Ed. 821, 30 S. Ct. 539 (1910). Charged with violations of the customs laws and with a conspiracy to defraud the United States of its revenues, Heike filed a plea in bar claiming immunity from prosecution because he had been compelled to testify on the same subject matter before a grand jury. After the trial court had directed the jury to deny the plea, it permitted Heike to plead over, and set a date for trial. A Justice of the Supreme Court allowed a writ of error to review the denial of the plea in bar, and the United States moved to dismiss the writ. The Court held the writ was not within § 5 of the Court of Appeals Act of 1891, 26 Stat. 826, 827-28, allowing direct appeal to the Supreme Court, "In any case that involves the construction or application of the Constitution of the United States." Construing this provision as embodying the final judgment rule, the Court, 217 U.S. at 429, deemed it certain that the judgment below did "not dispose of the whole matter litigated in this proceeding...." The Court continued, 217 U.S. at 430:
As the case now stands, upon the plea of not guilty, upon which the issue raised must be tried to a jury, certainly the whole matter has not been disposed of. It may be that upon trial the defendant will be acquitted on the merits. It may happen that for some reason the trial will never take place. In either of these events there can be no conclusive judgment against the defendant in the case. It is true that in a certain sense an order concerning a controlling question of law made in a case is, as to that question, final. Many interlocutory rulings and orders effectually dispose of some matters in controversy, but that is not the test of finality for the purposes of appeal or writ of error. The purpose of the statute is to give a review in one proceeding after final judgment of matters in controversy in any given case. Any contrary construction of the Court of Appeals Act may involve the necessity of examining successive appeals or writs of error in the same case, instead of awaiting, as has been the practice since the beginning of the Government, for one review after a final judgment, disposing of all controversies in that case between the parties.
Turning to Heike's contention that the immunity statute provided that "No person shall be prosecuted or be subjected to any penalty or forfeiture" (emphasis supplied) and that the Government would not be keeping its promise if it proceeded beyond indictment, the Court said, 217 U.S. at 431:
But we are of opinion that the statute does not intend to secure to a person making such a plea immunity from prosecution, but to provide him with a shield against successful prosecution, available to him as a defense, and that when this defense is improperly overruled it may be a basis for the reversal of a final judgment against him. Such promise of immunity has not changed the Federal system of appellate procedure, which is not affected by ...