The opinion of the court was delivered by: NEAL P. MCCURN
MEMORANDUM-DECISION AND ORDER
On December 14, 17, and 21, 1992, the court conducted a suppression hearing to determine whether the Government could use the articles recovered during a search of defendant Michael Andrello's residence against him at trial. Prior to this hearing, the court appointed Mr. Walsh to represent Mr. Andrello. After the hearing, Mr. Andrello notified the court that he was dissatisfied with Mr. Walsh's representation and wished to represent himself at trial. Although the court recognized that a defendant in a criminal action has the right to proceed pro se, it advised Mr. Andrello against this course of action. Mr. Andrello, however, was not dissuaded and insisted on representing himself. Nevertheless, in the interest of ensuring that Mr. Andrello's rights were protected, the court retained Mr. Walsh to attend Mr. Andrello in an advisory capacity. During the trial, Mr. Andrello was actively involved in his defense. He did, however, allow Mr. Walsh to make opening and closing statements on his behalf and to help him with the direct and cross-examination of witnesses. On January 4, 1993, following a one week trial, Mr. Andrello was found guilty of three counts relating to his unlawful possession of a silencer and ammunition on August 1, 1991.
By means of post-trial motions, Mr. Andrello now argues that the indictment should be dismissed and that the judgment of conviction should be vacated on the grounds that the Government obtained them, either directly or indirectly, by using his immunized testimony. In addition, Mr. Andrello moves to have this court reconsider or reopen the suppression hearing and to release him pending sentencing. The court will address each of these motions seriatim.
It is uncontroverted that in 1987 the Organized Crime Strike Force in the Northern District of New York was investigating racketeering activities in the Utica area. This lengthy investigation eventually culminated in an indictment against five persons. A trial based upon this indictment was conducted in Syracuse during May and June 1990. The acts of racketeering which were the subject of this trial included murder, extortion, bookmaking, loan sharking and interstate transportation of stolen property. The subject matter of this RICO investigation, however, did not include either burglary or unlawful possession of ammunition or silencers.
Mr. Andrello agreed to cooperate with the Government in its RICO investigation and to testify as a witness before the grand jury and at the trial of this matter. In this regard, he signed a cooperation/immunity agreement.
According to the Government, this is the only cooperation/immunity agreement that ever existed between Mr. Andrello and either the United States Attorney's Office or the Organized Crime and Racketeering Section Strike Force. See Government's Memorandum of Law at 3.
The testimony which Mr. Andrello provided pursuant to this agreement primarily concerned his building of a bomb which one of the defendants used in an attempted murder. During the course of his testimony, however, Mr. Andrello's extensive criminal history was brought to light. Mr. Andrello now contends that the Government breached the August 1987 cooperation agreement by using this immunized testimony, either directly or indirectly, against him both before the grand jury which indicted him as well as during the trial of this case.
A. The Indictment Is Not Subject to Dismissal
In his motion papers, Mr. Andrello seeks dismissal of the indictment "upon the grounds that all the evidence presented to the grand jury . . . was obtained directly or indirectly from immunized testimony and information received from the defendant Michael Andrello from 1978 through 1991." See Defendant's Notice of Motion at 1 (emphasis added). Despite this bold assertion, however, Mr. Andrello fails to direct the court's attention to any allegedly immunized evidence which was presented to the grand jury.
Moreover, even if Mr. Andrello had presented evidence sufficient to support this claim, he still would not be entitled to a dismissal of the indictment under the circumstances of this case. Federal Rule of Criminal Procedure 12 provides, in pertinent part, that
(b) any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. . . . The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution; or
(2) Defenses and objections based on defects in the indictment . . .
(f) Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, . . . , shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.
Fed. R. Crim. P. 12 (1991 Rev. Ed.) (emphasis added).
The Advisory Committee Notes concerning subdivisions (b)(1) and (b)(2) identify the types of issues which are to be raised by such motions:
these two paragraphs classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. In the other group are defenses and objections which at the defendant's option may be raised by motion, failure to do so, however, not constituting a waiver. . . . In [this latter] group of objections and defenses, which the defendant at his option may raise by motion before trial, are included all defenses ...