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UNITED STATES v. SCHIAFFINO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


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 Special Agent George Moresco, Federal Bureau of Investigation, as a defense witness. Various documents were also introduced into evidence by both sides.

 The following constitutes this Court's formal Findings of Fact, Conclusions of Law, and Order with respect to the evidentiary hearing.

 FINDINGS OF FACT

 1. In June, 1973, a Grand Jury sitting in the Eastern District of New York was conducting an investigation into an alleged violation of 18 U.S.C. § 202, concerning a bribe allegedly paid in 1971 by one John Caputo to Special Agent John Stabile of the Federal Bureau of Investigation and to Sergeant Eugene Statile of the New York City Police Department, the alleged purpose of which was to obtain the dismissal of then-pending federal gambling charges. Defendant Schiaffino, as he has testified before the Grand Jury, had first-hand knowledge of the incident. (Hearing Exhibit No. 5 at 2-5).

 2. Approximately eight or ten months prior to June, 1973, Schiaffino, then a Detective with the New York City Police Department, *fn7" had met informally with Special Agent George Moresco of the Federal Bureau of Investigation, whom he had known professionally for approximately fifteen to twenty years. (Hearing Minutes, 1/18/77 at 156 (Moresco)). At this time, Schiaffino advised Moresco that he had information relating to a payment of $15,000 by Caputo to an FBI Agent and a New York City Police Sergeant. (Hearing Minutes, 1/18/77 at 105-106 (Schiaffino); Hearing Minutes, 1/18/77 at 158 (Moresco)). Thereafter, Special Agent Moresco, who had learned that Dillon was investigating the incident, advised Dillon about the information he had received from Schiaffino and sought to keep this information "off the record." (Hearing Minutes, 1/18/77 at 166-167 (Moresco)). Upon receipt of this information and in the weeks preceding Schiaffino's actual appearance at Dillon's office, Dillon made efforts to have Moresco convince Schiaffino to come to the federal prosecutor's office to discuss the alleged bribe. (Hearing Minutes at 11, 13-14, 25-26 (Dillon)).

 3. On June 11, 1973, after Mr. Schiaffino had not come to Dillon's office, a subpoena was issued commanding him to appear before a grand jury on June 18, 1973 at 10:00 A.M. (Hearing Minutes, 1/14/77 at 11 (Dillon); Hearing Exhibit No. 1). Deputy U.S. Marshal Russell T. Pennington personally served this subpoena upon Mr. Schiaffino at his home located at 45 Esther-Depugh Street, Staten Island, New York, on Thursday evening, June 14, 1973. (Hearing Minutes, 1/18/77 at 186-187, 189 (Pennington)).

 4. On Sunday, June 17, 1973, Mr. Schiaffino went to Agent Moresco's home for the purpose of discussing Schiaffino's receipt of the subpoena. Schiaffino did not tell Moresco that he would not appear before the Federal Grand Jury. However, Schiaffino was reluctant to testify and asked if he could appear off the record in Dillon's office. Moresco, acting as an intermediary, made a telephone call to Dillon and requested that Schiaffino be permitted to talk off the record. Dillon indicated that Schiaffino could come in and talk off the record; however, he did not promise Moresco that Schiaffino would not be required to testify before the Grand Jury. (Hearing Minutes, 1/18/77 at 167, 170-173 (Moresco); (Dillon Affidavit at 1); cf. Hearing Minutes, 1/14/77 at 28 (Dillon)).

 5. On June 18, 1973, pursuant to the subpoena which directed him to appear that morning, Mr. Schiaffino appeared at the United States Courthouse in Brooklyn, New York. Schiaffino proceeded to Dillon's office where he met with Dillon for approximately one-half hour. During this meeting, he advised Dillon that he was concerned about discussing his knowledge regarding the alleged bribe. Mr. Schiaffino indicated that there were two bases for his concern: first, the bribe had been given by John Caputo, an old friend of Schiaffino's father, and accordingly, he was embarrassed because of his father's relationship with Caputo; and second, he was worried that if the New York City Police Department learned that he had testified before a Federal Grand Jury that this would adversely affect his pension since he was eligible for and had already applied for retirement from the Police Department. (Hearing Minutes, 1/14/77 at 14-15, 19-20 (Dillon)). With respect to the first basis of Mr. Schiaffino's concern, to wit, his father's friendship with Caputo, Dillon "reminded . . . Schiaffino that he was a police officer and that such consideration of friendship would be improper for an officer of the law." (Dillon Affidavit at 1). With respect to the second basis of Mr. Schiaffino's concern, to wit, his apprehensions regarding placing his pension in jeopardy, Dillon promised Schiaffino that he "would not do anything with . . . the grand jury testimony" until Schiaffino had retired from the Police Department. (Hearing Minutes, 1/14/77 at 17, 29 (Dillon)). Dillon did not promise Schiaffino that he would not have to appear before the Grand Jury on June 18, 1973. (Id. at 28; see Dillon Affidavit at 1).

 6. Thereafter, on June 18, 1973, Mr. Schiaffino, an experienced New York City Police Officer, who was fully familiar with grand jury proceedings, testified before the Grand Jury and recounted his knowledge of the events concerning the alleged $15,000 payment by John Caputo to Agent Stabile and Police Sergeant Statile. (Hearing Exhibit No. 5; Hearing Minutes, 1/18/77 at 122 (Schiaffino)). *fn8" After this initial appearance before the Grand Jury, Schiaffino volunteered additional information to Dillon relevant to the alleged bribe. (Hearing Minutes, 1/14/77 at 21-22 (Dillon)). At the time of this initial appearance before the Grand Jury, Mr. Schiaffino did not believe that he had committed a crime or that he was, in any manner, involved in criminal activity. Rather, Mr. Schiaffino believed, as indeed Mr. Dillon had informed him, that he was only testifying as a witness. (Hearing Minutes, 1/18/77 at 118-119 (Schiaffino)).

 7. Mr. Schiaffino retired with his pension from the New York City Police Department on July 13, 1973. (Hearing Minutes, 1/18/77 at 133 (Schiaffino)).

 8. On November 21, 1973, pursuant to a grand jury subpoena (Hearing Minutes, 1/18/77 at 114 (Schiaffino)), Mr. Schiaffino testified for a second time before a grand jury sitting in the Eastern District of New York concerning his knowledge of the alleged $15,000 payment by Caputo to Stabile and Statile, as well as to other matters. (Shanley Affidavit at 2; Government Exhibit No. 6). *fn9" It was at this second appearance before the Grand Jury that Mr. Schiaffino asserted for the first time (and only when the Special Attorney questioning him sought to refresh his recollection by reading from the transcript of his earlier appearance) that on the previous occasion he had been told that he "wasn't going before the grand jury and I ended up before the grand jury." (Government's Exhibit No. 6 at 19). *fn10" Although Mr. Schiaffino, on this occasion, repeated this claim or a species thereof (Id. at 49, 51, 54, 57, 58, 61), at no time, during this or the earlier appearance before the Grand Jury, did he assert, as he now does, that Dillon had promised him "that I would never be called to testify about anything that I was about to say to him." (Schiaffino Affidavit at 2).

 9. On February 13, 1975, David G. Trager, United States Attorney for the Eastern District of New York, personally approved a request to the Attorney General of the United States for authorization to seek an order, pursuant to 18 U.S.C. §§ 6002, 6003, requiring Mr. Schiaffino to testify in the trial of United States v. John Caputo, in the Eastern District of New York (Government's Exhibit No. 2; Hearing Minutes, 1/14/77 at 92 (Trager)). The requisite authorization was obtained (Government's Exhibit No. 2) and by order of this Court dated February 20, 1975, Mr. Schiaffino was ordered to testify in the Caputo trial (Government's Exhibit No. 3).

 10. In May, 1976, following an earlier mistrial on November 3, 1975, the Caputo trial began. On May 5, 1976, Mr. Schiaffino was called as a Government witness and, upon his refusal to testify, was granted immunity pursuant to the February 20, 1975 immunity order. Mr. Schiaffino based his refusal to testify on two grounds: The Fifth Amendment, and his father's friendship with Caputo. At this time, Schiaffino did not claim that there had been a breach of any promise made by Dillon. (Hearing Minutes, 1/18/77 at 135-136 (Schiaffino)). As previously stated, Mr. Schiaffino persisted in his refusal to testify at the Caputo trial, was held in civil contempt, and the instant indictment, 76 CR 521, followed.

 CONCLUSIONS OF LAW

 1. It is well recognized that absent a valid constitutional, common law, or statutory privilege, the Court has "a right to every man's evidence." Branzburg v. Hayes, 408 U.S. 665, 688, 92 S. Ct. 2646, 2660, 33 L. Ed. 2d 626 (1972). As previously stated, this Court finds that Mr. Dillon did not promise defendant Schiaffino that he would not have to testify concerning the bribe allegedly paid by Caputo. Accordingly, the legal question of whether a prosecutor, absent statutory authority, has the power to make such a binding promise need not be decided in order to rule on this motion. We note, however, that, in appropriate circumstances, the Government has been held to an unauthorized promise albeit in connection with a plea bargain. E.g., Palermo v. Warden, Greenhaven State Prison, 545 F.2d 286 (2d Cir. 1976).

 2. Mr. Schiaffino's appearance before the Grand Jury on July 18, 1973, was likewise not procured by any threats made or coercion exercised by Mr. Dillon. Indeed, Schiaffino's appearance before the Grand Jury was not the product of any prosecutorial misconduct, but rather was pursuant to a lawfully issued and properly served subpoena to testify. Rule 17, Federal Rules of Criminal Procedure. The only promise that was made to Mr. Schiaffino by Mr. Dillon was that the fact of Schiaffino's appearance before the Grand Jury would not be disclosed to the New York City Police Department until Schiaffino was effectively retired from the Police Department. This promise was not breached. Mr. Dillon and his office fully complied with their obligations pursuant to this promise.

 3. Since there has been no prosecutorial misconduct, there clearly has been no violation of Mr. Schiaffino's due process rights, or of any of Mr. Schiaffino's other rights, be they constitutional, statutory, or decisional.

 4. The procedures used in seeking the immunity order were in full accord with the "wiser course" suggested by the Second Circuit in In re Di Bella, 499 F.2d 1175 (2d Cir. 1974), i.e., the United States Attorney personally approved the application for the order.

 5. Finally, there is no requirement that the Government must seek a new order of immunity in the event of a retrial. This Court holds that once an order has been obtained for a particular proceeding before a United States District Court, that order remains valid and in full force and effect until the termination of that proceeding. Sections 6002 and 6003 of Title 18 of the United States Code do not require otherwise. Clearly, until final disposition of indictment 74 CR 641, it is disingenuous to contend that the proceedings had been terminated.

 SUMMARY OF THE COURT'S DETERMINATION AND ORDER

 In sum, this Court finds, after careful consideration of the affidavits submitted by the United States and the defendant, the testimony of the witnesses, and the documentary evidence adduced at the evidentiary hearing, that the defendant Schiaffino was not promised that he would not have to testify concerning his knowledge of the bribe incident. It is concluded that his testimony on June 18, 1973 was voluntary and not the result of any prosecutorial promise or misconduct. It is further concluded that the grant of immunity was lawfully and properly obtained. Finally, it is concluded that the immunity order relied upon by the Government at the second trial, was a valid instrument which remained in full force and effect until the termination of that proceeding.

 In reaching these conclusions, the Court has credited the testimony of Denis E. Dillon, David G. Trager, Richard L. Shanley, and Russell T. Pennington, as well as the Government Exhibits introduced into evidence during the hearing. This Court has also credited the affidavits submitted by Denis E. Dillon and Richard L. Shanley. The Court has discredited the testimony of George Moresco and Joseph Schiaffino, except to the extent noted above.

 Accordingly, the defendant's motion to dismiss the instant indictment on grounds of prosecutorial misconduct and on grounds of a defective immunity grant is hereby denied.

 It is SO ORDERED.


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