The opinion of the court was delivered by: Tenney, District Judge.
Dominick Pilotti petitions this court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (1988). Pilotti was
convicted of murder in the second degree, N.Y. Penal Law §
125.25 (McKinney 1987), after a jury trial in the Supreme Court
of New York, Bronx County (Schackman, J.). He was sentenced to
a term of imprisonment of twenty years to life. The Appellate
Division affirmed the conviction without opinion, People v.
Pilotti, 93 A.D.2d 1005, 461 N.Y.S.2d 663 (1st Dep't 1983),
and the New York State Court of Appeals denied Pilotti's
application for leave to appeal. People v. Pilotti, 60 N.Y.2d 593,
467 N.Y.S.2d 1039, 454 N.E.2d 134 (1983). Pilotti later
moved, unsuccessfully, in the trial court to vacate the
judgment of conviction pursuant to N.Y. C.P.L. § 440.10
(McKinney 1983). The denial of his motion was upheld on appeal.
People v. Pilotti, 148 A.D.2d 323, 538 N.Y.S.2d 889 (1st
Dep't 1989), leave to appeal denied, 74 N.Y.2d 850, 546 N.Y.
So.2d 1015, 546 N.E.2d 198 (1989).
Pilotti argues that 1) his right to testify on his own behalf
was "chilled" by the prosecutor's threat to impeach him with a
fraudulently obtained guilty plea in a prior case; 2) his right
to due process was violated in that there was insufficient
evidence to support his conviction; 3) his right to due process
was violated by the prosecutor's use of pre-indictment delay as
an "intentional device to gain [a] tactical advantage;" and 4)
his right to be free from double jeopardy was violated by his
being tried for murder. For the reasons set forth below, the
petition is granted.
On April 9, 1977, at approximately 9:00 or 9:30 A.M., Jose
Melendez was murdered while he was sitting in his car at a
traffic light. He was shot in the head by the occupants of a
Pontiac station wagon which had stopped alongside his car. T.
66, 99, 128.*fn1 James Correa — a witness who was stopped
directly behind the Pontiac at the light — observed three or
four people in the Pontiac and saw two hands with guns
protruding from the vehicle's window.*fn2 T. 67. When the
light turned green, Melendez's car crashed into a truck and the
Pontiac sped away. T. 67-68, 80, 83. Correa was able to observe
and write down the Pontiac's license plate number. T. 69-70,
73-74, 76, 81, 83-84.
Upon arriving at the scene, the police obtained the license
plate number and traced its owner to an address on Radcliffe
Avenue in the Bronx. T. 87, 100-01, 128-29. Shortly thereafter,
police officers Douglas Pace and Frank Longo proceeded to the
Radcliffe Avenue address — a three story, five family apartment
building — directly in front of which the assailants' Pontiac
was parked. T. 101-02, 129, 259. The officers then parked their
patrol car down the street so that — from inside the car — they
could observe both the Pontiac and
the entrance to the building. T. 101-02, 129.
No one was seen either entering or leaving the building for
approximately forty-five minutes. T. 103. Then, at 10:30 AM,
the officers observed three men — Pilotti, Louis Giongetti, and
Alfred Peruso — exit the building. T. 104-30. Pilotti, who was
clean shaven and formally dressed in a black suit or tuxedo and
carrying a white fur coat, walked directly to a taxicab which
was waiting outside the building. T. 105, 118-19, 140. The
other two, dressed casually, walked down the street in the
other direction. T. 131-32, 146. The officers pulled their car
in front of the taxicab, blocking its departure. T. 105-06,
Longo went to the cab and Pace approached Giongetti and Peruso
on the street. Longo opened the door to the cab and asked
Pilotti to get out. Pilotti asked if he could get his coat
which was on the back seat. Longo directed him to leave the
coat and again ordered him out of the cab. Pilotti complied,
without resisting, at which time Longo patted him down, finding
no weapons. T. 107. After leaving Pilotti with a backup officer
who had arrived at the scene, Longo went back to the cab to get
Pilotti's coat, beneath which he discovered a loaded .357
Magnum Colt revolver wrapped in a towel. T. 107-08, 110.
Pilotti, Giongetti, and Peruso were arrested and taken to the
police station. T. 107.
At the station, two .38 caliber shell casings — later found to
have been fired from the gun found under Pilotti's coat — were
recovered from Giongetti's pants pocket. T. 135-36. Pilotti was
booked for both possession of a weapon and attempted
murder.*fn3 At that time, however, the district attorney's
office sought and obtained an indictment only for possession of
a weapon ("the gun case"). T. 694-95.
During pre-trial discovery on the gun case, the prosecutor
provided defense counsel with two ballistics reports, both of
which indicated that the gun was not linked to the Melendez
murder. Further, the prosecutor assured Pilotti that no such
link had been established. People v. Pilotti, 127 A.D.2d 23,
30, 511 N.Y.S.2d 248, 253 (1st Dep't 1987).
On February 28, 1978, following the denial of his suppression
motion, Pilotti pled guilty to possession of a weapon in the
third degree. N.Y. Penal Law § 265.02 (McKinney 1989). During
his plea allocution, Pilotti admitted that he had possessed the
loaded gun in the taxi. Id. at 24-25, 511 N.Y.S.2d at 249. As
promised, he was sentenced to a term of imprisonment of two and
one-half to five years, which was to run concurrently with a
previously imposed sentence for an unrelated offense. Thus, by
accepting the plea, Pilotti assured himself of no additional
jail time. Pilotti, 127 A.D.2d at 24-25, 511 N.Y.S.2d at 249.
Pilotti then unsuccessfully appealed his gun conviction,
challenging the denial of his motion to suppress the gun.
People v. Pilotti, 73 A.D.2d 846, 423 N.Y.S.2d 358 (1st Dep't
1979), leave to appeal denied, 49 N.Y.2d 895, 427 N.Y.S.2d
1033, 405 N.E.2d 243, cert. denied, 449 U.S. 870, 101 S.Ct.
209, 66 L.Ed.2d 90 (1980).
On December 21, 1979 — just one day after the Appellate
Division affirmed Pilotti's gun conviction — Pilotti and
Giongetti were indicted for the Melendez murder. At the murder
trial, the prosecution produced a third ballistics report,
dated June 2, 1977, which concluded that the bullet from the
deceased "matched" the gun recovered from Pilotti. The contents
of this critical report were never disclosed to defense counsel
prior to Pilotti pleading guilty to the gun possession charge.
Pilotti, 127 A.D.2d at 31, 511 N.Y.S.2d at 253.
Prior to trial of the murder charge, Pilotti moved to preclude
the use of his gun plea against him on the ground that, inter
alia, the prosecution had withheld the June 2 ballistics
report. Omnibus Motion Ind. No. 2775/79, Exh. 11 to
Respondent's Affidavit and Memorandum of Law in Opposition
("Memo in Opposition"). The motion was denied. Order, April 4,
1980, Exh. 12 to Memo in Opposition. During the trial,
Pilotti's attorney further argued that permitting impeachment
with the gun plea —
which was later vacated — effectively precluded Pilotti from
taking the stand on his own behalf and denying that he
possessed the gun. T. 687-93. In response, the prosecutor
stipulated that he would not impeach Pilotti with the gun
conviction if Pilotti took the stand at trial. However, he did
threaten to impeach Pilotti with the factual admissions he had
made during the gun plea allocution if he were to testify that
he never possessed the gun. T. 695-97. Pilotti chose not to
testify on his own behalf and was convicted of murder in the
second degree. It is this conviction for which Pilotti brings
the present habeas corpus petition.
Pilotti then moved in the Supreme Court of New York to vacate
his gun conviction pursuant to N.Y. C.P.L. § 440.10 (McKinney
1983), on the ground that the prosecutor had fraudulently
induced him to accept the gun plea by failing to disclose the
June 2 ballistics report linking the gun to the Melendez
homicide. The court ordered a hearing on the motion, during
which an internal memorandum from Sean Walsh, the Assistant
District Attorney in charge of the gun case, to William Quinn,
the chief of the homicide bureau, surfaced. In the memorandum,
Walsh acknowledged the significance of the plea to the gun
charge by noting that an acquittal would "collaterally have
stopped us from introducing [the gun at a homicide trial]".
Memorandum from Sean Walsh to William Quinn, dated March 2,
1978, at 2, Exh. 2 to Memo in Opposition. Further, Walsh noted
that "the argument that we attempted to prove the homicide by
bootstrapping the gun charge may very well be a case of first
impression in this State." Id. After ...