The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
On January 21, 1993, a United States Postal Service truck driven by Guillermo Gonzalez was robbed and Gonzalez killed. Alfredo Gallego pleaded guilty later that year to a four count indictment charging him with various offenses connected to the incident, although not to murder. Earlier this year, the grand jury charged Gallego with, among other things, murdering and conspiring to murder Gonzalez. Gallego now moves to moves to dismiss the murder and conspiracy to murder counts on the ground that they violate his rights under the Double Jeopardy Clause of the Fifth Amendment.
Alfredo Gallego was arrested by New Jersey authorities, allegedly after fleeing from the postal truck containing Gonzalez's dead body. On February 16, 1993, a grand jury in this district returned an indictment (93 Cr. 103) charging Gallego with conspiracy to rob and assault, robbery of a postal service employee, assault with a dangerous weapon, and carrying a firearm to commit a crime. (Vigeland Aff. Ex. A) The government did not charge murder or conspiracy to murder in 1993 because it believed it could not prove those charges beyond a reasonable doubt given the evidence available and the law as the government understood it.
In the spring of 1993, Gallego's counsel opened plea discussions with the government, which advised Gallego in writing that the government, regardless of any plea, would charge Gallego with more serious crimes, such as conspiracy to murder, in the event the investigation yielded additional evidence. (Vigeland Aff. P 8 & Ex. B) Nevertheless, Gallego pleaded guilty to all four counts of the indictment on May 7, 1993. During the allocution, he acknowledged that the government had no plea agreement with him and had made no promises. (Id. P 9 & Ex. C)
On September 21, 1993, while Gallego was awaiting sentencing, the grand jury returned an indictment charging Giovanni Rosado with conspiracy to rob, robbery, and related charges arising out of the same events. (Id. P 13 & Ex. E) Again, these were the most serious charges the government thought it could bring. (Id. P 17)
Gallego was sentenced by Judge Sand on June 8, 1994. The government obtained an upward departure from the robbery guideline range based on Gonzalez's death. (Id. PP 10, 16 & Ex. H) Gallego was sentenced to 17 1/2 years of incarceration.
Rosado then went to trial in September 1994, a trial that resulted in a hung jury. (Id. P 17) Subsequently, however, Rosado entered into a cooperation agreement and provided information that led to significant incriminating evidence against Gallego and others allegedly involved. (Id.)
Rosado's cooperation led the government to begin presenting evidence to a new grand jury in the spring of 1995. At that point, however, Gallego could not have been prosecuted, consistent with the Double Jeopardy Clause, because the Second Circuit's decision in United States v. McCormick, 992 F.2d 437 (2d Cir. 1992), would have precluded prosecution on the basis of the enhancement of Gallego's sentence in consequence of Gonzalez's death. The grand jury, however, on April 10, 1995 indicted Gallego's brother, George Gallego, and Steven Martinez for murder, conspiracy to murder, robbery, and conspiracy to rob. (95 Cr. 284)