The opinion of the court was delivered by: MOTLEY
Defendant was charged in the instant indictment, filed in this court on June 20, 1974, with conspiracy to distribute heroin and with distributing one-half a kilogram of heroin on each of two separate occasions in March of 1974.
The indictment alleged that he received a total of $27,000 for these two sales. The indictment remained sealed until May 1, 1975 when it was unsealed and assigned to this judge for all purposes. Trial of the indictment was scheduled for November 10, 1975.
On March 28, 1974, prior to the federal indictment, defendant had been indicted by a New York State grand jury, which charged him with violations of the state's narcotics laws with respect to the same transactions. Immediately upon his arrest on the state charges on April 1, 1974, defendant agreed to cooperate with both state and federal authorities. About 18 months later, the authorities became dissatisfied with defendant's cooperation. A superseding indictment was returned in the state court on October 3, 1975 charging the same substantive violations but widening the scope of the conspiracy charged. Defendant moved to dismiss the state charges on the ground that he had been promised that in return for his cooperation the state charges would be dismissed and he would be permitted to plead to the federal indictment. The state court held a hearing on the motion in early November 1975.
Defendant appeared on November 10, 1975, the date set for trial of the instant indictment without his counsel and advised the court clerk that he opposed the Government's motion to dismiss the instant indictment. The Government had advised the clerk that it desired to nolle "prosequi" the indictment. The trial could not proceed on November 10, as scheduled, since this judge was involved in the trial of another criminal case at that time. Defendant was advised to return with his lawyer.
On November 12, 1975 defendant appeared with his counsel, Jack Cohen, who advised that defendant desired to withdraw his previously entered pleas of not guilty to Counts 2 and 3 of the indictment and plead guilty.
The Government advised that it desired to nolle "prosequi" the entire indictment that day.
Addressing the court the Government counsel said:
"The background on this case is that in June of 1974 Mr. Robin was indicted here in three counts. About that time he was also indicted by a State Grand Jury for similar crimes. Mr. Robin was indicted by both the State and the Federal Grand Juries and we wanted to give him an opportunity, if he cooperated in good faith, to plead to the Federal charges and the State charges thereupon would have been dismissed.
"Mr. Robin has not cooperated in good faith with the Federal Government and with the State authorities with respect to narcotic matters about which he has knowledge and based on the failure to cooperate with us in full and in good faith, we at this time ask your Honor's permission to grant the Government the right to nolle this indictment so that Mr. Robin may go to trial on November 24 of this year before the State Court, before one of the State Court Judges in connection with a narcotics conspiracy and substantive counts and that is our position in substance."
In addition, the Government's counsel charged that defendant was a major heroin violator.
Defense counsel disputed the Government's claim that defendant was a major violator and vigorously opposed the motion to dismiss. He requested a factual and legal hearing which was granted.
The Government's counsel then inquired what defense counsel intended to do about Count 1, since it was the Government's intention to try defendant on Count 1 and other charges, even if the plea to Counts 2 and 3 be accepted.
In reply defense counsel said: "I would say to the Government through the Court if they withdraw their application to nolle pros and permit us to plead we would plead guilty to all three counts."
To this the Government replied: "We do not withdraw our application to dismiss this indictment."
Each side was allowed 10 days to file briefs and formal motions.
Defense counsel thereafter filed a motion for leave to enter a plea of guilty to all counts of the instant indictment. In connection therewith defendant filed a 48 page brief. A large envelope, containing the following documents, was submitted and designated Appendix to Brief:
(a) State vs. Ray, indictment no. N529-129-74.
(b) United States of America vs. Raymond Robin, indictment no. 74 Cr. 622.
(c) State vs. Robin, indictment no. N1161-594/75.
(d) Federal waiver of speedy arraignment, dated April 1, 1974.
(e) State waiver of speedy arraignment, undated.
(f) United States Attorney's notice of readiness for trial.
(g) Investigation reports, Drug Enforcement Administration, United States Department of Justice.
(h) Transcript of testimony on 'Huntley Hearing', October 27, 1975, State vs. Ray Robin, before Honorable Richard G. Denzer, J.S.C.
(i) State vs. Ray Robin, Defendant's Memorandum of Law in Support of Motion to Dismiss State Indictment.
(j) United States of America vs. Raymond Robin, transcript of proceedings, November 12, 1975 before the Honorable Constance Baker Motley.
All of these documents were filed in Chambers rather than the Clerk's office apparently because the Clerk's office was closed on Saturday at 5:00 P.M. on November 22, 1975, the time when briefs from both sides were due.
The Government's counsel submitted an affidavit, sworn to November 21, 1975. No brief was submitted. However, the affidavit, in addition to alleging that the Government regarded defendant as a major heroin dealer, contained the Government's argument and citation of authorities. In its affidavit, the Government argued that defendant's cooperation with the authorities was not in good faith (at p. 2). The Government also argued that "[defendant's] true purpose in attempting to plead guilty in federal court is to thereby preclude the state prosecution against him as a disposition in federal court of narcotics criminal charges identical with then pending state charges is, as a matter of New York State law, a bar to a subsequent state prosecution on those charges." (at p. 4).
In his brief defendant argued that the only reason for the Government's desire to dismiss the instant indictment was "a joint decision by federal and state authorities to expose the defendant to a far harsher state penalty scheme which is available under the so-called Rockefeller drug program in New York State."
The brief continued: "In this highly unusual situation, there is no clear precedent to guide the Court. As a matter of sound policy the law would seem, however, to favor guilty pleas over dismissals as alternative ways of terminating proceedings initiated by a federal grand jury with the then full support of the United States Attorney's offices."
The court held a hearing on the motion on November 25, 1975. In addition to permitting Mr. Cohen to argue on behalf of defendant, the court permitted Steven Givis, the author of defendant's thorough and able brief to argue on behalf of defendant. The argument lasted almost 1 1/2 hours.
The court then recessed to consider the matter. It decided to accept the plea. The court rendered a brief oral opinion.
It concluded that defendant had the right to plead to all counts of the indictment pending against him and that denial of the offer to plead to the entire indictment by granting the Government's motion to dismiss would serve no criminal law objective other than to expose defendant to what the Government conceived to be a more severe sentence possibility than defendant's maximum possible exposure in this case.
The Government agreed that the defendant's maximum exposure here was 45 years in prison with a minimum mandatory parole period of at least three years following imprisonment and $75,000 in fines. If convicted in the state court, the judge would have been required to sentence defendant to 15-25 years to life in prison.
Defendant had argued that before dismissal of the indictment, defendant should be entitled to a full plenary hearing so that his interests in opposing the dismissal would be protected and the facts explored; but if the court accepted defendant's guilty plea on the papers submitted, no further hearing of the motion then before the court would be required beyond the normal Rule 11 hearing for the tender of a guilty plea.
The hearing on defendant's plea lasted approximately one hour and fifteen minutes. The plea was taken shortly after the hearing on the Government's motion to dismiss and defendant's motion to plead guilty.
During the course of the voir dire of defendant, the court addressed defendant, in part, as follows:
"Q And how much education have you had?
Q Where did you go to college?
Q And when did you finish college?
A I believe it was in 1951.
Q You spent two years at New York University, here in the City of New York?
Q Where did you go to high school?
A DeWitt Clinton, and I went to Taft High School, in the Bronx.
Q When did you finish high school?
A In 1948. When I finished Service. I went into the Service in 1944. I left high school prior to graduating and went into the Service, and when I came back I went to Theodore Roosevelt High School and finished at night.
Q Were you born in New York City?
Q And reared in New York City?
Q And you say you are forty-eight now?
Q Now, have you read the indictment in this case against you?
Q Now, tell me in your own words what you are charged with in Count 1 of this indictment. I will let you look at it so you can read it.
A That I conspired with other people to distribute heroin.
Q Now, look at the next count, Count 2. Tell me in your own words what you understand you have been charged with in Count 2.
A That I did help to sell some drugs on March the 19th, 1974.
Q And what does it charge you with? Read it. (The defendant read Count 2 of the indictment.)
Q And what are you charged with there?
A The sale of half a kilo.
Q Do you understand that you are charged with possessing a half a kilo of heroin with intent to distribute it?
Q And what are you charged with in Count 3?
A The same thing, your Honor, on a different date, on the 25th of March.
Q And in Count 1, you are charged with what?
A With conspiracy to distribute drugs.
Q Conspiring with others to possess heroin with intent to distribute. Do you understand the charge in that count?
A Yes, your Honor. (at pp. 2-4.)
Q Do you understand that by pleading guilty to the first count in the indictment, the conspiracy count, the Court might sentence you to a term of imprisonment of up to fifteen years?
Q And, in addition, may impose a fine of up to $25,000?
Q Do you understand that by pleading guilty to the second count in this indictment, the Court might impose a term of imprisonment of another fifteen years?
Q And, in addition, may impose another fine of up to $25,000?
Q You understand that by pleading guilty to Count 3 of this indictment, the Court might impose a third term of up to fifteen years?
Q And, in addition, may impose a third fine of up to $25,000?
Q Making a total of forty-five years in prison?
Q And fines totaling up to $75,000? Do you understand that?
A Yes, your Honor. (at pp. 5-6)
Q Now, you know that the Government desired to have your indictment here dismissed so that you could stand trial in the State Court?
A I am fully aware of that, your Honor.
Q You were here while we discussed that matter, weren't you?
A Yes, I was, your Honor.
Q You understand that it is the Government's view that if you stood trial in the State Court and you were convicted on these same charges which are pending against you there, that you would receive a greater sentence because of the mandatory nature of the State penalty there, than you would receive in this Court?
A I heard that, your Honor.
Q Did you hear the Government say that?
Q Now, are you pleading guilty here simply because you think you would be treated more severely in State Court than you would be here?
A I am pleading guilty because I am guilty, your Honor.
Q Well, did you hear me say to the United States Attorney that in my view the penalty, the maximum possible penalty which you faced here was equal to that which you face in the State Court? Did you hear me tell him that?
Q And you understand that you face a maximum possible penalty here of forty-five years?
Q And in the State Court, the U.S. Attorney has said, the Judge, if you were convicted there, would be required to sentence you to a term of imprisonment of at least fifteen years?
Q And that the sentence could be fifteen years to life?
Q And did he say the sentences would be concurrent?
MR. AMOROSA: I think if he were convicted on more than one count, the sentences would have to run concurrently.
THE COURT: Under State law?
THE COURT: So that if you were convicted in the State Court, you would on all these charges be sentenced mandatorily to a term of fifteen years to life. Do you understand that?
THE DEFENDANT: Yes, your Honor.
MR. AMOROSA: Judge, I believe that's fifteen to twenty-five to life.
THE COURT: Fifteen to twenty-five to life.
Q Do you understand that?
Q Well, if you got forty-five years here, that would be greater than the State Court penalty or equal to it, wouldn't it?
A Yes, your Honor, it would.
Q And, understanding that, you still want to plead guilty here?
A Yes, your Honor." (at pp. 18-20.)
Defendant was then asked to tell the court in his own words what he did which would show that he was, in fact, guilty of each of the charges to which he was offering to plead guilty.
The following colloquy ensued:
"Q (Continuing) Now, tell me in your own words what you did which shows that you are in fact guilty of conspiring with Charles Daniels and two women, I gather, in here, and others, to distribute and possess with intent to distribute Schedule I and Schedule II narcotic drug controlled substances.
A Well, one James Culhane came to me and asked me if I could help him get some drugs. I did so. I brought him in contact with Charles Daniels, who in fact got some drugs from another person, named Alex Pulpus. I took the money so that Alex Pulpus would be assured of getting paid.
Q How much was the money?
A What it says here. As best I can remember, it was the same money as listed here.
Q How much was the money?
A Ten thousand on one occasion, forty-five hundred on another and twelve thousand, five hundred on another.
Q And you said Charles Daniels was involved?
Q And were there other people involved?
A Alex Pulpus, your Honor.
Q And what was the name of the man you said approached you?
Q And what did he want from you?
A He wanted to buy some drugs.
A Anything that I could produce, but the people were able to produce heroin for him.
Q Did he want heroin when he approached you?
Q And you agreed to help him get it?
Q And you talked to Charles Daniels about it, you say?
A I talked to Charles Daniels and Alex Pulpus.
Q And then you went somewhere with him, you say?
A Well, I took him on one occasion to Charles Daniels, the first occasion. Before that, I told Alex that this was a good way; I knew he had gotten some drugs from an Anthony Verzino, and I told him this was a good way to get money to pay Anthony Verzino the money he owed him.
Q All right. Now, Count 2.
(The Court read Count 2 of the indictment.)
Q (Continuing) Were you also known as 'Railroad'?
A Not until they told me I was, your Honor.
Q Were you also known as 'Rail'?
A Not until they told me.