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UNITED STATES v. SCHIAFFINO

July 14, 1977

UNITED STATES of America
v.
Joseph SCHIAFFINO, Defendant


Bramwell, District Judge.


The opinion of the court was delivered by: BRAMWELL

FINDING OF FACT, CONCLUSIONS OF LAW AND ORDER

BRAMWELL, District Judge.

 FACTUAL BACKGROUND

 This matter comes before the Court on the motion of the defendant Joseph Schiaffino, to dismiss the instant indictment, 76 CR 521, *fn1" which charges him with one count of criminal contempt for refusing to answer questions posed to him as a witness in the trial of United States v. John Caputo, 74 CR 641, after having received a grant of immunity pursuant to 18 U.S.C. §§ 6002, 6003. *fn2" On May 5, 1976, Mr. Schiaffino was held in civil contempt by this Court for his refusal to so answer pursuant to 28 U.S.C. § 1826. *fn3" Thereafter, on August 18, 1976, a Federal Grand Jury sitting in the Eastern District of New York handed up indictment 76 CR 521 based on the aforementioned conduct of Mr. Schiaffino.

 Mr. Schiaffino contends that the indictment should be dismissed on the following grounds: first, that the Government failed to honor an alleged promise that Mr. Schiaffino would not be required to testify and that this claimed breach of promise constituted prosecutorial misconduct; and second, that the grant of immunity was defective in that the original immunity grant had somehow lapsed, that a new order should have been obtained, and that accordingly, the original order of immunity was invalid at the time the defendant was alleged to be in contempt for his refusal to testify at the Caputo trial. *fn4"

 In 1973, Denis E. Dillon, then Attorney in Charge of the United States Department of Justice, Brooklyn Strike Force, was conducting an investigation into bribery allegations involving a Special Agent of the Federal Bureau of Investigation.

 Mr. Schiaffino, who had personal knowledge of the subject matter of the investigation, claims, by sworn affidavit submitted in support of his motion to dismiss, that in 1973 Schiaffino was promised by Dillon that he "would never be called to testify about anything [he] was about to say to [Dillon about the bribe]." (Schiaffino Affidavit at 2). *fn5"

 More specifically, Mr. Schiaffino alleges that he had agreed to meet with the Federal prosecutor only after he had been asked to do so by Special Agent George Moresco, a longtime friend who was then assigned to the New York Office of the Federal Bureau of Investigation. Schiaffino alleges that Agent Moresco had assured him that "Dillon had promised him [Moresco] that any conversation with me [Schiaffino] would not be a matter of record and there would be no grand jury involvement." (Schiaffino Affidavit at 2). Mr. Schiaffino claims that he then met Mr. Dillon "[somewhat] reluctantly" and the following conversations and events transpired:

 
[at] first I expressed my apprehension with regard to discussing the matters in question with Mr. Dillon. Before we discussed anything of substance Dillon stated to me that our discussion would be "strictly off the record" and that I would never be called to testify about anything I was about to say to him. He informed me that he was not interested in prosecuting the suspect FBI Agent or anyone else and was only interested in forcing his resignation. Based upon these assurances, I told Mr. Dillon what I knew concerning the bribe . . . [Mr. Dillon thereafter] excused himself from the room and returned a short while afterwards. He thereupon informed me that he had discussed my information with . . . Richard Shanley (another Special Attorney) and that they had agreed that I should be taken before a grand jury to testify that very morning. I immediately protested, reminding Dillon of his promise to me. He then turned to me and asked me how many years I had been a cop. In response I told him this was my twenty-second year on the job. Dillon then stated that I had no choice, that I didn't have my pension yet and that I would have to testify before the Grand Jury. If I refused, he threatened to report my activity to my superiors in the police department. However, if I agreed to testify Dillon stated he would not contact the New York City Polict (sic) Department and would permit me to file my retirement papers.
 
I was ushered into the Grand Jury believing that Dillon was right in that he was giving me no choice in the matter. If I didn't agree to testify voluntarily, he threatened me with the dishonorable loss of my job and the loss of a substantial pension. On the way to the grand jury room I turned to Dillon and said "I want to see a lawyer before I do anything." Dillon replied that I did not need an attorney since I was only a witness and not a principal and once again insisted that I appear before the Grand Jury immediately. Reluctantly, out of fear and ignorance without the benefit of counsel I appeared and testified before the Grand Jury.
 
(Schiaffino Affidavit at 2).

 The Government has presented, in opposition to the defendant's motion to dismiss the indictment, the sworn affidavit of Denis E. Dillon, now the District Attorney of Nassau County. Therein, Mr. Dillon states that "[at] no time did [he] . . . tell Mr. Moresco that there would be no 'grand jury involvement.'" (Dillon Affidavit at 1). Dillon also avers that although he had sometimes conducted "off the record" interviews, he had "no recollection of such a representation" in this case, but that if he had made such a promise he would "not go forward with any on the record interviews or grand jury appearances without the consent of the interviewed." Indeed, Mr. Dillon "[recalls] that, in this case, Mr. Schiaffino, after initially indicating reluctance to testify for the above stated reasons [concerning his Police Department pension rights], then agreed to testify and testified voluntarily." (Dillon Affidavit at 2). Dillon denies Mr. Schiaffino's allegations that he had threatened to report Schiaffino's activities to his superiors in the Police Department or that he had informed Schiaffino that the latter had no choice but to testify. (Dillon Affidavit at 2).

 As previously indicated, the defendant also contends that the immunity order dated February 20, 1975, was defective in that it had expired by the time of the May, 1976 Caputo trial. *fn6" Mr. Schiaffino argues that due to the lapse of time, the prosecutor should have sought authorization from the Attorney General for a second immunity order.

 In order to resolve the factual issues raised by Mr. Schiaffino's allegations, this Court conducted an evidentiary hearing on January 14, 18, 1977 at which the United States presented the testimony of the following witnesses: Denis E. Dillon, now District Attorney, Nassau County; David G. Trager, United States Attorney for the Eastern District of New York; Richard Shanley, then Special Attorney, United States Department of Justice, Brooklyn Strike Force; and Russell T. Pennington, Deputy United States Marshal, Eastern District of New York. Mr. Schiaffino testified in his own behalf and called ...


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