Petition — Alessi v. United States

IN THE

Supreme Court of the United States

October Term, 1976

VIRGIL ALESSI,

Petitioner,

—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

NANCY ROSNER, EsQ.

401 Broadway

New York, New York 10013

(212) 925-8844

Attorney for Petitioner

ee

as ae

TABLE OF CONTENTS

PAGE

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Constitutional Provision Involved ................ 2

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Reasons for Granting the Writ ................. 8

1. The decision below raises important questions

concerning the integrity of the plea bargain-

ing system in Federal Court and the fair

interpretation of plea bargain agreements .. 8

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APPENDIX—Opinion of the Second Circuit Court of

BEE bic edeeudenseneducdeekeucatbeciues la

TABLE OF CASES

Adams v. United States, 220 F.2d 297 (5th Cir.

DD cedicdcacdeehacdLsvnechasustanaerneds 10

United States v. Moses, 220 F.2d 166 (3d Cir.

RR eee be ea eee 10

United States v. Papa, 583 F.2d 815 (2d Cir. 1976) 6

United States v. Sawyer, 210 F.2d 169 (8d Cir.

a a al ee 10

ii

STATUTES CITED

PAGE

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IN THE

Supreme Court of the United States

October Term, 1976

Ny uel

VIRGIL ALESSI,

Petitioner,

— |

UNITED STATES OF AMERICA,

Respondent.

ee oe

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner Virgil Alessi prays that a writ of

certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Second Circuit

entered on July 7, 1976.

Opinion Below

The opinion below, not yet officially reported, appears

in the appendix, infra, at pp. la-33a.

Jurisdiction

The jurisdiction of the Court is invoked under 28

U.S.C. § 1254(1).

2

Question Raised

Whether a promise made by the United States At-

torney’s Office for the Eastern District of New York not

to prosecute the petitioner for any overt act which might

constitute a substantive offense, in return for his plea of

guilty to a charge of conspiracy, precluded his

prosecution in the Southern District of New York for

substantive offenses which are overt acts of the same

conspiracy, where the theory of the prosecution is that

the petitioner, whose acts were confined exclusively to

the Eastern District of New York, aided and abetted

subsequent offenses in the Southern District of New York

to which he was not a party. <<

Constitutional Provisions Involved

United States Constitution, Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless un a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

Statutes Involved

United States Code, Title 21, § 173

It is unlawful to import or bring any narcotic drug

into the United States or any territory under its control

3

or jurisdiction; except that such amounts of crude opium

and coca leaves as the Commissioner of Narcotics finds to

be necessary to provide for medical and legitimate uses

only may be imported and brought into the United States

or such territory under such regulations as the Com-

missioner of Narcotics shall prescribe, but no crude

cpium may be imported or brought in for the purpose of

manufacturing heroin. All narcotic drugs imported

under such regulations shall be subject to the duties

which are now or may hereafter be imposed upon such

drugs when imported.

Any narcotic drug imported or brought into the

United States or any territory under its control or

jurisdiction, contrary to law, shall (1) if smoking opium

or opium prepared for smoking, be seized and summarily

forfeited to the United States Government without the

necessity of instituting forfeiture proceedings of any

characer; or (2) if any other narcotic drug be seized

and forfeited to the United States Government, without

regard to its value, in the manner provided by sections

514 and 515 of Title 19, or the provisions of law here-

after enacted which are amendatory of, or in substitution

for, such sections. Any narcotic drug which is forfeited

in a proceeding for condemnation or not claimed under

such sections, or which is summarily forfeited as pro-

vided in this subdivision, shall be placed in the custody

of the Commissioner of Narcotics and in his discretion

be destroyed or delivered to some agency of the United

States Govenrment for use for medical or scientific

purposes.

United States Code, Title 21, § 174

Whoever fraudulently or knowingly imports or brings

any narcotic drug into the United States or any territory

under its control or jurisdiction, contrary to law, or

4d

receives, conceals, buys, sells, or in any manner facilitates

the transportattion, concealment, or sale of any such

narcotic drug after being imported or brought in, know-

ing the same to have been imported or brought into the

United States contrary to law, or conspires to commit

any such acts in violation of the laws of the United

States, shall be imprisoned not less than five or more

than twenty years and, in addition, may be fined not

more than $20,000. For a second or subsequent offense

(as determined under section 7237(c) of the Internal

Revenue Code of 1954), the offender shall be imprisoned

not less than ten or more than forty years and, in addi-

tion, may be fined not more than $20,000.

Whenever on trial for a violation of this section the

defendant is shown to have or to have had possession of

the narcotic drug, such possession shall be deemed suf-

ficient evidence to authorize conviction unless the de-

fendant explains the possession to the satisfaction of

the jury.

United States Code, Title 21, § 841

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or pos-

sess with intent to manufacture, distribute, or dispense,

a controlled substance.

(b) Except as otherwise provided in section 845 of

this title, any person who violates subsection (a) of this

section shall be sentenced as follows:

(1) (A) In the case of a controlled substance in

schedule I or II which is a narcotic drug, such person

shall be sentenced to a term of imprisonment of not

5

more than 15 years, a fine of not more than $25,000, or

both. If any person commits such a violation after one

or more prior convictions of him for an offense punish-

able under this paragraph or for a felony under any

other provision of this subchapter or subchapter II of

this chapter or other law of the United States relating

to narcotic drugs, marihuana, or depressant or stimulant

substances, have become final, such person shall be

sentenced to a term of imprisonment of not more than

30 years, a fine of not more than $50,000, or both. Any

sentence imposing a term of imprisonment under this

paragraph shall, in the absence of such a prior conviction,

impose a special parole term of at least 3 years in addi-

tion to such term of imprisonment and shall, if there was

such a prior conviction, impose a special parole term of

at least 6 years in addition to such term of imprisonment.

United States Code, Title 21, § 846

Any person who attempts or conspires to commit any

offense defined in this subchapter is punishable by im-

prisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the

commission of which was the subject of the attempt or

conspiracy.

Statement of the Case

On August 4, 1975, an indictment was returned in

the Southern District of New York charging Alessi and

thirteen others with narcotics offenses. Predictably, the

format of the indictment included a conspiracy count and

various substantive offenses. Surprisingly, Alessi was

not charged in the conspiracy count though named as an

unindicted co-conspirator. He pled not guilty and was

released on a $50,000.00 personal recognizance bond. He

is presently at liberty on the same bail.

6

Thereafter, he moved to dismiss the indictment be-

cause it violated the terms of an agreement between

Alessi and the government made in exchange for his plea

of guilty to an information charging him with conspiracy

to violate the narcotics laws in the Eastern District of

New York in October, 1972. That agreement is the

subject of the Second Circuit’s recent opinion in United

States v. Papa, 5383 F.2d 815 (2d Cir. 1976).

After receiving briefs from both sides, the District

Court entered an order on December 29, 1975 declining

to decide petitioner’s application until after the conclusion

of the trial, then scheduled for January 20, 1976. A

timely notice of appeal was filed. The government moved

to dismiss the appeal. The Second Circuit treated appel-

lant’s answering papers as a petition for a writ of

mandamus and granted the writ on January 19, 1976.

The Second Circuit directed the trial court to

decide Alessi’s motions pretrial. As a result Alessi was

severed and the trial commenced as to the remaining

deefndants two days later.

On February 11, 1976 the District Court heard oral

argument on the motion. On April 6, 1976 the District

Court denied the motion to dismiss. A notice of appeal

was filed April 13, 1976. During the pendency of this

appeal, the Disirict Court scheduled the trial to com-

mence on May 4, 1976. To stay the trial until the

decision in this appeal, a second mandamus proceeding

was filed in the Second Circuit on April 29, 1976 and

on May 6, 1976, a second writ of mandamus issued direct-

ing that the trial of Virgil Alessi on indictment No. 75

Cr. 772 be stayed pending the determination of the

appeal.

Virgil Alessi was a co-defendant in a series of three

indictments filed in the Eastern District of New York

~s ere re

7

over a four month period in early 1972. The final

Eastern District indictment, 72 Cr. 473, filed May 1,

1972, was a consolidation of the earlier two indictments,

72 Cr. 88 and 72 Cr. 433. The May indictment charged

Alessi and others with conspiracy to violate the federal

narcotics laws from on or about April 1 1967, to De-

cember 18, 1971. In addition, Alessi was charged with

violating 21 U.S.C. § 848.

In August, 1972, Vincent Papa, a co-defendant with

Alessi in 72 Cr. 473, began plea negotiations wtih

Eastern District Strike Force Attorney James Druker.

In September, 1972, Papa pleaded guilty to 72 Cr. 473

and was sentenced to a term of five years imprisonment.

On October 2, 1972, Virgil Alessi pleaded guilty to

73 Cr. 1133, an information, which charged him with

participating in a conspiracy in violation of 21 U.S.C.

§ 841(a) (1); 21 U.S.C. § 841(b) (1) (a) and 21 U.S.C.

§ 846. The same day, Virgil Alessi was sentenced by

Hon. Anthony J. Travia, U.S.D.J., E.D.N.Y. to a five

year suspended sentence and a three year special parole.

The three outstanding indictments (72 Cr. 88, 72 Cr.

433 and 72 Cr. 473) were then dismissed as part of the

plea bargain agreement. The other part of that agree-

ment provided that Virgil Alessi would not be prosecuted

for any overt act committed during the course of the

conspiracy charged in 72 Cr. 473. The currently pending

indictment, S 75 Cr. 772, the subject of this petition,

violates the government’s promise.

On July 7, 1976, the Second Circuit affirmed the

Distirect Court’s denial of the petitioner’s motion to

dismiss finding that the promise made by the Strike

Force Attorney did not extend to the Southern District

of New York:

8

“We can only conclude that insofar as the plea

bargain can be understood to confer an immunity

from narcotics law prosecutions greater than that

given by the double jeopardy clause, it was not

in the comtemplation of either side that anyone

outside of the Eastern District United States

Attorney’s or Strike Force Offices was bound.”

United States v. Alessi, supra, (slip op. at 4813).

Reasons for Granting the Writ

1. The decision below raises important questions

concerning the integrity of the plea bargaining

system in Federal Court and the fair interpre-

tation of plea bargain agreements.

Certain things are not in issue for the purposes of

this petition. They are succinctly stated in the Second

Circuit’s Opinion:

The terms of the plea bargain struck on

August 18, 1972, covered defendant Alessi as

well as defendant Papa. The bargain included,

among other matters, an agreement not to prose-

cute, as a substantive crime, anything which could

have been included as an overt act in the Eastern

District conspiracy alleged in 72 Cr. 473. How-

ever, the argument runs, the conspiracy charged

in the present Southern District indictment is

the same conspiracy as that previously alleged in

the Eastern District, and the substantive crimes

with which appellant is taxed are the “overt acts”

or “pieces” of the Southern District conspiracy,

Therefore the crimes presently charged fall within

the scope of the bargain. Furthermore, appellant

9

contends, the plea bargain, as here relevant, was

intended to extend as far as the Southern District

U.S. Attorney’s Office, and, as a matter of law,

the Eastern District had the power to bind the

Southern district in this fashion even though no

approval from the Southern District had been

sought or received. Since Alessi’s plea to the

superseding information was intended to give

him the same protection as if he had pleaded to

the Eastern District indictment, and since he

pleaded in reliance on the promises here sought

to be enforced, appellant concludes that the present

indictment, as to him, should be dismissed.

Thus, the issue presented in the Second Circuit, and

sought to be reviewed here, is the legal effect of the

bargain struck. It should also be clearly understood that

there are no disputed factual contentions. The issue is

a pure question of law concerning the legal effect of the

words concededly spoken by the prosecutor which con-

stitutes the plea promise.

As with many plea bargains in federal court prior

to the amendment of Rule 11, Federal Rules of Criminal

Procedure, the parties’ agreement was not disclosed on

the face of the record and indeed the transcript of the

proceeding belied the existence of a motivating promise.

Nevertheless, the promise had been made. Proof of its

contents and terms was adduced at a hearing in the

United States District Court from two sources: an

attorney for the defense who had participated in the

negotiations and the Strike Force Attorney, James

Druker, who had made the commitment. No issue is

raised here nor was there below, concerning the truth-

fulness of Mr. Druker’s testimony. (The relevant por-

tions of his testimony are set out in the appendix).

10

Thus the only issue presented is the legal effect of the

words concededly spoken. This Court is no less capable

than the Second Circuit of applying that language to

the present case.

As stated above, the indictment presently pending

against the petitioner in the Southern District of New

York charges him with five substantive violations of

the narcotics laws. He is not charged in the conspiracy

count of the indictment. Each of the substantive viola-

tions is an overt act of the conspiracy involved in the

Eastern District plea agreement and thus could not be

presented in the Eastern District of New York, by the

terms of the plea bargain.

The theory of each substantive offense is identical.

The government alleges that the petitioner transferred

narcotics to one Manfredonia in the Eastern District of

New York, which Manfredonia subsequently transferred

to someone in the Southern District of New York. Thus

the crime charged is Manfredonia’s “receiving” * in the

Southern District of New York, consisting of Manfre-

donia’s sale to his customer. Petitioner is allegedly his

* The choice of wording in the indictment bears noting. While

21 U.S.C. § 174 includes the terms buy and sell, Manfredonia’s acts

are not characterized as a sale seemingly in recognition of the

cases holding that appellant, as a seller, could not be charged with

aiding and abetting Manfredonia as a purchaser. Adams v. United

States, 220 F.2d 297 (5th Cir. 1955); United States v. Moses, 220

F.2d 166 (3d Cir. 1955); United States v. Sawy:*, 210 F.2d 169

(3d Cir. 1955). Rather, the government has strained to char-

acterize Manfredonia’s conduct as “receiving” in the Southern

District of New York when a common sense view of the evidence

shows that Manfredonia “received” in the Eastern District of

New York. The evidence referred to emanates from the trial of

appellant’s co-defendants on this indictment. The bill of par-

ticulars, which is annexed as an exhibit, enunciates the same

theory.

I a ce ae

11

aider and abettor because of petitioner’s earlier transfer

to Manfredonia in the Eastern District of New York.

Since the aiding and abetting occurred in one district

and the principal offense in another, venue lies in either.

The petitioner did no act in the Southern District of

New York and did not participate in any way in the

Southern District offense.

The government cannot circumvent its promise not

to prosecute petitioner for his acts in the Eastern District

of New York by electing venue in the Southern District

of New York on the theory of aiding and abetting a

subsequent transfer there.

With this understanding of the government’s theory

of prosecution here, the absurd lack of fairness in the

Second Circuit’s construction of the government’s promise

becomes apparent. Mr. Druker never specifically stated

that the promise he was making was only good in

Brooklyn and was a nullity one-half mile away in the

federal court in Manhattan. Indeed, his language was

broad and could only have been interpreted to cover all

prosecutions arising out of the same conspiracy:

“IT advised Mr. Papa’s lawyers that he was

covered as far as this conspiracy went. I told

him that the state of law afforded him this; that

if it should subsequently turn up next month or

next year that a witness came to us with evidence

against Mr. Papa on another piece of this same

conspiracy, that he was covered on that. I fur-

ther made clear to them that should a witness

pop up who gave us evidence of unrelated criimnal

activities on Mr. Papa’s part, even though it was

during the same period of the conspiracy, that he

was not covered on that.

Q. Now, you used the word “covered’ here.

Is that the word you used then, if you can recall?

12

A. No. What I would have said then is that

he is covered on this conspiracy and he won’t be

indicted for reindicted or rearrested for any piece

of this conspiracy. I think I went into a little

more elaboration. I advised, for example, that

if somewhere down the chain of the ladder it

turned out that Mr. Loria had been selling heroin

to five or six people who were not named in my

conspiracy but that it developed or became clear

that this was as a result of the same chain from

Mr. Papa on up, that he would be covered on this.

Anything to do with that conspiracy.

Q. That conspiracy or crimes going out of that

conspiracy were covered?

A. That conspiracy or any of the overt acts

contained in that conspiracy .. .”

“A. I remember I said we are not going to

pluck out an overt act out of this conspiracy and

and then turn around and reindict him on it.

Q. So that Mr. Papa was promised as well,

then, in return for his plea, overt acts in further-

ance of this conspiracy would not give rise to

subsequent individual prosecutions?”

Thus, this prosecution of petitioner for overt acts

plucked out of that conspiracy is exactly what the govern-

ment promised not to do. To compound the fundamental

unfairnes of the breach of its promise, the petitioner

never set foot in the Southern District of New York.

This Court has a duty to intervene, not merely be-

cause of the overreaching which so crucially affects

petitioner’s life but because plea agreements and their

fair implementation are literally indispensable to the

criminal justice system as we know it. In a time when

the public’s faith in the integrity of its government is

at a pitiful ebb, this manifest injustice must not be

allowed to pass.

13

CONCLUSION

For these reasons certiorari should be granted

and the judgment below reversed.

Respectfully submitted,

NANCY ROSNER, Esq.

401 Broadway

New York, New York .0013

(212) 925-8844

Attorney for Petitioner

14

Certification

I hereby certify that on this 6th day of August, 1976

three copies of the Petition for Writ of Certiorari were

mailed, postage prepaid, to the Solicitor General, Depart-

ment of Justice, Washington, D.C. 20530, Counsel for

the Respondent. I further certify that al! parties re-

quired to be served have been served.

NANCY ROSNER

401 Broadway

New York, New York 10013

—-* ee ee ee ee ee ee ee

OPINION OF THE UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS

For tHe Seconp Ciacuir

+o

' Nos. 1197, 1198—September Term, 1975.

(Argued June 9, 1976 Decided July 7, 1976.)

Docket Nos. 76-1189, 76-3025

~+-o-r—

Unitep States or AMERICA,

Appellee,

v.

Vrecit ALEgsst,

Defendant-A ppellant.

Before:

FRIENDLY, Fzrnperc and VAN GRAAFEILAND,

Circuit Judges.

—+or

Appeal from an order of the District Court for the

Southern District of New York, Dudley B. Bonsal, Judge,

which, after an evidentiary hearing directed by this court,

again denied appellant’s motion to dismiss an indictment

against him on the ground that prosecution would violate

a plea-bargaining agreement made in the Eastern District

of New York.

Affirmed,

4781

3a

2a Opinion of the United States Court of Appeals

Opinion of the United States Court of Appeals

Nancy Rosner, Esq., New York, N.Y., for Ap-

pellant.

James P. Lavin, Assistant United States Attor-

ney (Robert B. Fiske, Jr., United States At-

torney, Southern District of New York, and

Frederick T. Davis, Assistant United States

Attorney, of Counsel), for Appellee.

-—_ =

“—

Frienpiy, Circuit Judge:

On or about June 30, 1972, a witness disappeared. The

ensuing events have come to plague the district courts for

the Eastern and Southern Districts of New York and this

court as well. We now have the third case this year in

which this court must consider the bearing of what then

happened.

The witness was a central figure in the case developed by

Eastern District Strike Foree Attorney James Druker to

prove the allegations embodied in Eastern District indict-

ment 72 Cr. 473. That indictment charged, among other

matters, a conspiracy to violate the federal narcotics laws

encompassing appellant, Virgil Alessi, and Vincent Papa,

Anthony Passero, Frank D’Amato, Anthony Loria, Sr., and

others; and also charged the just-named defendants with

engaging in a continuing criminal enterprise as defined in

“1 U.S.C. § 848. At the time of the disappearance, Druker

was in the midst of plea bargaining the charges; the “pack-

age” he proposed to achieve had heen written down and

apparently eleared with his superiors in Washington, With

his prime witness lost, Druker’s case was greatly weak-

ened, and he proceeded, over the next two months, to nego-

tiate a hargain more favorable to the defendants. Agree-

ment between Druker and the several attorneys who repre-

sented Vincent Papa, one of whom also represented ap-

4782

pellant Alessi, was finally reached on August 18, 1972.

No contemporaneous written evidence of the terms of

the bargain exists; what they in fact were is a matter best

deferred for the moment.

Sometime between August 18 and September 5, Druker

learned of information that had been supplied to the East-

ern District Strike Force by Joseph Ragusa, which poten-

tially implicated Papa in yet further illegal narcotics activ-

ities. Papa was not informed of this, and ignorant of it

he pleaded guilty, on September 5, 1972, to the conspiracy

charge and also to a pending tax evasion information.

On October 2, 1972, Virgil Alessi waived indictment and

he, too, pleaded guilty—to a one count conspiracy charge

contained in a superseding information; 72 Cr. 473 was

dismissed as to him. Appellant’s counsel contends that

this format was used so that it would be clear that this

plea acted to bar a pending prosecution in Nassau County.

Appellant also waived his pre-sentence report, and was

sentenced at the time of his plea. Before accepting the

plea, the district court asked Alessi if anyone had prom-

ised him anything to induce it; Alessi answered that no

one had. However, when the judge indicated that he would

be willing to sentence Alessi to “15 years without batting

an eye,” it rapidly became evident that the truth was other-

wise. The upshot was that, on Druker’s «ecommendation,

Alessi received a five-year suspended sentence with a man-

datory three-year special parole. Appellant now claims

that the consideration for his plea included certain repre-

sentations by Druker, which, it is contended, prevent the

prosecution in the present case from going forward.

On two previous occasions we have considered these

promises of the summer of 1972. The first case, decided

on April 2 of this year, was United States v. Papa, ——

F. 2d ——,, slip op. 2977, an appeal from Papa’s convic-

tions in the Southern District of New York for conspiracy

4783

4a

Opinion of the United States Court of Appeals

to violate and a substantive violation of the narcotics

laws. Papa’s most important contentions were that the

“Southern District conspiracy” was the same as the “Kast-

ern District conspiracy” to which he had previously

pleaded, and therefore that the Southern District prose-

cution on that charge was violative of his right not to be

twice placed in jeopardy; and that the Southern District

ease, based in good part on the testimony of Joseph

Ragusa, violated the bargain. This court affirmed the con-

victions, holding as to the first point that after all the

facts were in, Papa had failed to show the claimed iden-

tity of the conspiracies; and as to the second point that

even if the Eastern District U.S. Attorney’s Office would

have been bound not to prosecute crimes discovered by

use of Ragusa’s information, the bargain did not reach

so far as to preclude the Southern District prosecution

which had been developed entirely independently.

The second case, even more recently decided, was United

States v. Alessi, —— F.2d ——, slip op. 3881 (May 26,

1976) (Alessi I), which involved the same appellant as the

present case. That appeal, like this one, was from a pre-

trial order; the challenge was to a district court decision

denying Alessi’s claim that the 1972 promises were broad

enough to prevent an Eastern District prosecution for tax

evasion during the years in which the “Eastern District

conspiracy” had heen in operation. This court affirmed,

holding that the pre-trial order was appealable but that

whatever crimes were covered by the bargain, a crime as

distant from the conspiracy as tax evasion was not.

We come now to this case. By indictment filed on August

4, 1975, Anthony Passero, Lawrence Iarossi, and others

were indicted by a grand jury in the Southern District of

New York for conspiracy to violate the narcotics laws;

Vincent Papa, Virgil Alessi, and Frank D’Amato were

among the named but unindicted co-conspirators. Alessi

4784

ee ee

5a

Opinion of the United States Court of Appeals

was indicted on five substantive counts which, as supple-

mented by the bill of particulars, all charge him as an

aider and abettor for delivering, at locations in Long

Island City, and others parts of Queens, various quanti-

ties of heroin to one Anthony Manfredonia, which Man-

fredonia then took to the Southern District for distribu-

tion to others. The Government states that if this case

does finally come to trial, it will introduce evidence show-

ing that Alessi “was well aware” that the heroin “was

being transported to and concealed, possessed and dis-

tributed to others in the Southern District of New York.”

The Government also contends, and appellant offers noth-

ing in refutation, that insofar as the indictment names

Alessi it is based on information supplied by Manfredonia,

a witness developed entirely by the Southern District, and,

as Druker stated in an affidavit, unknown to him in 1972.

Its brief states that “[n]o witness or evidence used in the

obtaining of this indictment was obtained from prosecu-

tors in the Eastern District.” Finally, the Government

contends, although this point is indeed disputed, that

Druker’s representations were by their own terms not

binding on the Southern District.

The essence of appellant’s claim, which is based on

Santobello v. New York, 404 U.S. 257 (1971), was suc-

cinetly stated by the trial court as follows:

According to Alessi, the plea-bargain agreement pro-

vided that Alessi would not be prcsecuted with respect

to any overt acts committed during the course of the

Eastern District conspiracy which might constitute a

substantive violation of the narcotics laws. Alessi

contends that the present indictment violates the plea-

bargain agreement and that his prosecution would

therefore amount to a denial of due process.

4785

6a

Opinion of the United States Court of Appeals

Trial was scheduled to begin on January 20, 1976. In

November 1975, appellant moved to dismiss the indictment

on the ground just indicated. Judge Bonsal, on December

29, reserved decision until the conclusion of the trial, when

he would have the benefit of the evidence that had been

introduced as to the true nature of the crimes charged

and would conduct an evidentiary hearing. Alessi appealed,

and the Government moved to dismiss the appeal. Without

deciding the question of appealability, a panel of this court,

on January 19, issued a writ of mandamus (Alessi II) di-

recting the trial court either to sever Alessi from the trial

and await its evidence, or to hold an evidentiary hearing

and determine the motion prior to trial; a short unprinted

opinion was filed the next day. Following issuance of the

writ, also on January 19, a brief hearing was held before

Judge Bonsal. Appellant’s counsel urged a severance, in

part on the ground that the district court should await the

results of the appeal in Papa, which had been argued but

not yet decided. Appellant also agreed to waive any claim

of denial of a speedy trial that might arise out of the

attendant delay. Judge Bonsal, apparently impressed by

these points and also by the fact that Alessi was not a

defendant to the conspiracy count, granted the severance.

Trial as to seven of the other defendants, under the title

United States v. larossi, began on January 20 and ended

on February 4, with a verdict against all defendants on

all counts. A notice of appeal was filed, and the case is

now docketed in our court, #76-1132, with argument pres-

ently scheduled to be heard in the middle of September.

Meanwhile the pretrial proceedings regarding defendant

Alessi went on. On February 11, 1976, Judge Bonsal held

another short hearing. Appellant’s counsel and the prose-

eutor agreed that there was no further factual material

to be introduced; the issue was submitted on the basis of

4786

Sten ~~ wae

7a

Opinion of the United States Court of Appeals

the record developed in Papa, in yet another case concern-

ing Papa and Alessi that had come before the Eastern

District in October, 1975, and in Jarossi. Four days after

our decision in Papa, on April 6, 1976, Judge Bonsal de-

nied the motion to dismiss the indictment. He supported

his decision on two grounds: first, the conspiracy charged

in the current indictment was not the same as that charged

and pleaded to in the Eastern District, and therefore the

substantive crimes with which Alessi was charged were

not “overt acts” of that conspiracy; and second, the plea

bargain was not intended to cover crimes developed by

independent investigations undertaken by U.S. Attorney’s

Offices outside of the Eastern District. Alessi appealed

from this decision on April 13, 1976.

Shortly thereafter, Alessi’s trial was scheduled for May

4. On April 29, he petitioned for yet a second writ of man-

damus, to halt the trial pending determination of the ap-

peal. On May 3, a temporary stay was issued, and on May

6 a writ followed, staying the trial and setting an expedited

briefing schedule. We heard oral argument on June 9."

I. Appealability

Understandably distressed that it is now in this court

for the second time, with Alessi’s trial severed from that

of his co-defendants and delayed for many months and

with another appeal in prospect if he is tried and con-

victed (in which he might argue that developments at trial

1 This case came to us docketed under the dual caption “Virgil Alessi

v. Honorable Dudley B. Bonsal” and “United States of America v.

Virgil Alessi.” As we understand it, Alessi is presently pursuing only

an appeal, and is not seeking to invoke the extraordinary writ for yet

a third time; apparently the first caption is the result of the April 29

request for relief and is not now applicable. In any event we would

decline to issue mandamus under the principle announced in Kaufman

and Withington v. Edelstein, —— ¥.24 —— (2 Cir. 1976), slip opinions

8287, 3298-99.

4787

8a

Opinion of the United States Court of Appeals

had demonstrated that our decision on the merits here was

wrong), the Government naturally wonders how all this is

consistent with Cobbledick v. United States, 309 U.S. 323,

325 (1940). In an opinion by Mr. Justice Frankfurter, the

Court there said among other things that Congress from

the very beginning has, by forbidding “piecemeal disposi-

tion on appeal of what for practical purposes is a single

controversy,” “set itself against enfeebling judicial admin-

istration”; that “[t]o be effective, judicial administration

must not be leaden-footed”; and that “[t]hese considera-

tions of policy are especially compelling in the adminis-

tration of criminal justice,” since “encouragement of delay

is fatal to the vindication of the criminal law.” See also

DiBella v. United States, 369 U.S. 121, 124, 126 (1962);

Kerr v. U.S. District Court, 44 U.S.L.W. 4838, 4841 (U.S.

June 14, 1976). Alarmed at what has happened by the

recent advance of Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949), into the criminal field under

the seductive guise that a defendant is entitled under some

circumstances to be protected from an unlawful trial and

not simply from an unlawful conviction, and fearful that

still worse may befall in the future, the Government asks

that we reconsider our interpretation of the “final decision”

rule of 28 U.S.C. § 1291 in United States v. Beckermam, 516

F.2d 905, 906-07 (2 Cir. 1975), or at least limit the damage

to the precise situation there presented—a second trial

admittedly for the same offense following one alleged to

have been unlawfully aborted by the trial judge, and to

decline to follow the recent decision on another of Alessi’s

due process appeals, United States v. Alessi I, supra.

Since, as in Beckerman and Alessi 1, we agree with the

Government on the merits and there is a fair possibility

that the issue may soon be settled, Abney v. United States,

No. 75-6521, certiorari granted, 44 U.S.L.W. 3719 (US.

June 14, 1976); see also Barket v. United States, No. 75-

4788

OO ra er en ey ee ee

na: bi tdi:

ae nn a

ee a re

NT ae re le 6B ee

- pabvtibndihnte.

A —s we

9a

Opinion of the United States Court of Appeals

1280, petition for certiorari pending, we think it would

be more useful instead of seeking en banc reconsideration

of Beckerman and/or Alessi I, to make our own analysis

but not now to challenge prior precedent in this court.

Such an analysis is particularly desirable because the Gov-

ernment has recently called to our attention two Supreme

Court decisions, Rankin v. The State, 78 U.S. (11 Wall.)

380 (1870), and Heike v. United States, 217 U.S. 423, 433

(1910), seemingly favorable to it, only the latter of which

it cited in Beckerman, and there only in summary fashion,

and neither of which was cited to the Fourth Circuit in

United States v. Lansdown, 460 F.2d 164 (1972), on which

Beckerman heavily relied. On the other hand, neither

party has cited more recent Supreme Court decisions which

might seem to look the other way, although we conclude

they in fact do not.

; In Rankin v. The State, supra, a defendant, charged

with murder in the courts of Tennessee, pleaded in bar an

2 These petitions were brought by defendants to review decisions of the

Eighth Cireuvit in United States v. Barket, 530 F.2d 181 (1975), and

of the Third Cireuit in United States v. Abney (unprinted judgment

order), which entertained defendants’ pretrial appeals on the ground

of double jeopardy but ruled for the Government on the merits. In

both cases the Government has urged that the defendants’ petitions be

granted in order to have the Court resolve the question of appealability.

In Beckerman and Alessi I in this circuit, the Government also pre-

vailed on the merits and therefore was not in a position to seek certiorari

from the ruling as to appealability. Perhaps for the same reason it did

not seek consideration of the appealability issue en banc, as we would

have to do if we followed its suggestion.

8 We do not agree with the statement in Alesat I, slip op. ut 3884, that

the appealability of an order refusing to dismiss an indictment as vi-

olating a plea bargain was “implicitly” affirmed by the first issuance

of mandamus in this case. Apart from the possible effect of this court's

rule $0.23 that disposition by summary order “shall not be cited or

otherwise used in unrelated cases before this or any other court,” the

ped, one 3 mandamus held only that Alessi was entitled to an evi-

ent g—not that he was enti appeal

decision rendered thereafter. st —

4789

10a

Opinion of the United States Court of Appeals

acquittal by a general court-martial for the same crime.

After the lower court had sustained the plea and entered

a judgment of acquittal, the Supreme Court of Tennessee

reversed and remanded for a trial on the merits. The

Supreme Court dismissed the writ of error on the ground

that the state court judgment was not final.‘

Next came Heike v. United States, 217 U.S. 423 (1910).

Charged with violations of the customs laws and with a

conspiracy to defraud the United States of its revenues,

Heike filed a plea in bar claiming immunity from prose-

cution because he had been compelled to testify on the

same subject matter before a grand jury. After the trial

court had directed the jury to deny the plea, it permitted

Heike to plead over, and set a date for trial. A Justice of

the Supreme Court allowed a writ of error to review the

denial of the plea in bar, and the United States moved to

dismiss the writ. The Court held the writ was not within

§5 of the Court of Appeals Act of 1891, 26 Stat. 826,

827-28, allowing direct appeal to the Supreme Court, “In

4 Mr. Justice Bradley's opinion is short enough to be quoted in full:

The difficulty with the case, as brought before us, is that the

judgment was not a final one in the case. This court, under the

25th section of the Judiciary Act, can only take cognizance of final

judgments of the State courts. And although the court has been

liberal in its construction of the statute as to what judgments are

final, yet the judgment in this case cannot be deemed such by any

reasonable stretch of construction. It is a rule in criminal law

in favorem vitae, in capital cases, that when a special plea ia bar

is found against the prisoner, either upon issue tried by a jury, or

upon a point of law decided by the court, he shall not be concluded

or convicted thereon, but shall have judgment of respondeat ouster,

and may plead over to the felony the general issue, not guilty.*

And this is the effect of the judgment of reversal rendered by the

Supreme Court of Tennessee in this case; so that in no sense can

that judgment be deemed a fival one. The case must go back and

be tried upon ity merits, and final judgment must be rendered before

this court can take jurisdiction. If after that it should be brought

here for review, we can then examine the defendant's plea and

decide upon its sufficiency. Writ of error dismissed.

4790

ei med ow ee eee ee ees — we “

lla

Opinion of the United States Courg of Appeals

any case that involves the construction or application of

the Constitution of the United States.” Construing this

provision as embodying the final judgment rule, the Court,

217 U.S. at 429, deemed it certain that the judgment below

did “not dispose of the whole matter litigated in this pro-

ceeding. .. .” The Court continued, 217 U.S. at 430:

As the case now stands, upon the plea of not guilty,

upon which the issue raised must be tried to a jury,

certainly the whole matter has not been disposed of.

It may be that upon trial the defendant will be ac-

quitted on the merits. It may happen that for some

reason the tr‘al will never take place. In either of

these events there can be no conclusive judgment

against the defendant in the case. It is true that in a

certain sense an order concerning a controlling ques-

tion of law made in a case is, as to that question, final.

Many interlocutory rulings and orders effectually dis-

pose of some matters in controversy, but that is not

the test of finality for the purposes of appeal or writ

of error. The purpose of the statute is to give a re-

view in one proceeding after final judgment of matters

in controversy in any given case. Any contrary con-

struction of the Court of Appeals Act may involve

the necessity of examining successive appeals or writs

of error in the same case, instead of awaiting, as has

been the practice since the beginning of the Govern-

ment, for one review after a final judgment, disposing

of all controversies in that case between the parties.

Turning to Heike’s contention that the immunity statute

provided that “No person shall be prosecuted or be sub-

jected to any penalty or forfeiture” (emphasis supplied)

and that the Government would not be keeping its promise

if it proceeded beyond indictment, the Court said, 217

U.S. at 431:

4791

12a

Opinion of the United States Court of Appeals

But we are of opinion that the statute does not in-

tend to secure to a person making such a plea im-

munity from prosecution, but to provide him with a

shield against successful prosecution, available to him

as a defense, and that when this defense is improperly

overruled it may be a basis for the reversal of a final

judgment against him. Such promise of immunity has

not changed the Federal system of appellate proce-

dure, which is not affected by the immunity statute,

nor does the immunity operate to give a right of re-

view upon any other than final judgments.

Still more to the point, the Court said, by way of support-

ing argument, 217 U.S. at 432:

The Constitution of the United States provides that

no person shall be twice placed in jeopardy of life and

limb for the same offense, yet the overruling of a plea

of former conviction or acquittal has never been held,

so far as we know, to give a right of review before

final judgment.

The Court then went on to refer to and quote from Rankin

v. The State, supra. All this is especially significant in

that the statement in United States v. Ball that “The pro-

hibition fof the double jeopardy clause] is not against be-

ing twice punished, but against being twice put in jeop-

ardy”, 163 U.S. 662, 669 (1896)—the cornerstone of our

recent decision in Beckerman upholding review before the

second trial—must have been fully as well known to the

members of the Heike court, several of whom had par-

ticipated in Ball, as it is to judges of the 1970's.

The arrival of Cohen on the scene would not seem, at

first blush, to affect the holding or the considered dictum

in IIeike. For the cornerstone of the Cohen decision was

4792

13a.

Opinion of the United States Court of Appeals

that the order of the district court refusing to apply New

Jersey’s statute requiring security for costs in stockhold-

ers’ derivative actions

did not make any step toward final disposition of the

merits of the case and will not be merged in final

judgment. When that time comes, it will be too late

effectively to review the present order, and the rights

conferred by the statute, if it is applicable, will have

been lost, probably irreparably.

337 U.S. at 546. An order denying a plea of double

jeopardy, or denying a claim that an indictment violates

the terms of a plea bargain, is merged in the final judg-

ment and can be reviewed on an appeal therefrom—

except on the view that the purposes of the double jeop-

ardy and due process clauses can only be served by pre-

venting prosecution (beyond the stage of indictment)

rather than conviction, a view rejected by Heike by its

holding with respect to the immunity statute and by dic-

tum with respect to double jeopardy.

The Court’s first, long its only, application of Cohen in

a criminal case, Stack v. Boyle, 342 U.S. 1 (1951), did not

presage any significant impairment of the final judgment

rule. The order there held to have been appealable under

Cohen was a refusal to reduce bail pending trial. The

rationale was thus explained in the concurring opinion of

Mr. Justice Jackson, who should have known the meaning

of Cohen if anyone did, 342 U.S. at 12:

While only a sentence constitutes a final judgment in

a criminal case, Berman v. United States, 302 U.S. 211,

212, it is a final decision that Congress has made re-

viewable. 28 U. 8. C. § 1291. While a final judgment

always is a final decision, there are instances in which

a final decision is not a final judgment. The purpose

4793

14a

Opinion of the United States Court of Appeals

of the finality requirement is to avoid piecemeal dis-

position of the basic controversy in a single case

“where the result of review will be ‘to halt in the

orderly progress of a cause and consider incidentally

a question which has happened to cross the path of

such litigation ... .’” Cobbledick v. United States,

309 U.S. 323, 326. But an order fixing bail can be

reviewed without halting the main trial—its issues are

entirely independent of the issues to be tried—and

unless it can be reviewed before sentence, it never

can be reviewed at all. The relation of an order fix-

ing hail to final judgment in a criminal case is analo-

gous to an order determining the right to security in

a civil proceeding. Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, or other interlocutory orders re-

viewable under 28 U. S. C. § 1292.

Strain began to appear with Parr v. United States, 351

U.S. 513 (1956). A defendant indicted for federal income

tax evasion secured a transfer of his case to another divi-

sion of the same district because of local prejudice. Be-

fore trial began, the Government reindicted the defendant

in another district and moved to dismiss the initia] indict-

ment, which motion was granted. A bare majority of the

Supreme Court held the dismissal was not appealable;

any review had to await the trial and verdict on the second

indictment.

Mr. Justice Harlan, writing for the Court, offered two

complementary rationales. If the initial indictment was

“viewed in isolation” from the second indictment, then ap-

peal was unava‘lable because the defendant was not ag-

grieved hy dismissal of the first indictment. If instead

the two indictments were considered as part of the same

prosecution, then the second indictment was “as it were a

superseding indictment, [and] petitioner has not yet been

4794

| _ a

Opinion of the United States Court of Appeals

tried, much less convicted and sentenced.” 351 US. at

518. Parr had not succeeded in bringing himself within

the Cohen exception. The appeal did not concern matters

“outside the stream of the main action,” or matters which

would “not be subject to effective review as part of the

final judgment.” The burden of a possibly needless trial

was not sufficient reason for instant appeaiability.

True, the petitioner will have to hazard a trial under

the [second] indictment before he can get a review of

whether he should have been tried in Laredo under

the [first] indictment, but “bearing the discomfiture

and cost of a prosecution for crime even by an inno-

cent person is one of the painful obligations of citizen-

ship.” Cobbledick v. United States [809 U.S. at 325].

351 U.S. at 519-20.

All this was in full conformity with Heike which the

majority cited with approval, 351 U.S. at 517. The strain

was manifested by the opinion of the Chief Justice speak-

ing for four Ju tices in dissent:

We countenance plain harassment if we require Parr

to be tried under what may turn out to be an invalid

indictment at Austin before he can obtain appellate

review of dismissal of the Laredo case. Should this

occur, Parr would have been required to undergo two

trials, one at Austin and another at Laredo. Section

1291 should not be construed so as to bring about such

a result.

351 U.S. at 523.

Passing the cases denying review of decisions to sup-

press or not to suppress evidence at trial, Carroll v. United

States, 354 U.S. 394 (1957), and DiBella v. United States,

supra, 369 U.S. 121, we arrive at the cryptic footnote to

4795

16a

Opinion of the United;States Court of Appeals 17a

Opinion of the United States Court of Appeals

Mr. Justice Douglas’ opinion in Brady v. Maryland, 373

U.S. 83, 85 n.1 (1963). Because of the prosecution’s sup-

pression of material favorable to the defense, the Supreme

Court of Maryland had reversed the judgment convicting

Brady and remanded for a new trial limited, however, to

the issue of punishment. The discussion of the Supreme

Court’s appellate jurisdiction was as follows:

Neither party suggests that the decision below is not

a “final judgment” within the meaning of 28 U. S. C.

§ 1257 (3), and no attack on the reviewability of the

lower court’s judgment could be successfully main-

tained. For the general rule that “Final judgment in

a criminal case means sentence. The sentence is the

judgment” (Berman v. United States, 302 U. 8S. 211,

212) cannot be applied here. If in fact the Fourteenth

Amendment entitles petitioner to a new trial on the is-

sue of guilt as well as punishment the ruling below has

seriously prejudiced him. It is the right to a trial on

the issue of guilt “that presents a serious and unsettled

question” (Cohen v. Beneficial Loan Corp., 337 U. S.

541, 547) that “is fundamental to the further conduct

of the case” (United States v. General Motors Corp.,

323 U. S. 373, 377). This question is “independent of,

and unaffected by” (Radio Station WOW v. Johnson,

326 U.S. 120, 126) what may transpire in a trial at

which petitioner can receive only a life imprisonment

or death sentence. It cannot be mooted by such a pro-

ceeding. See Largent v. Texas, 318 U. S. 418, 421-422.

(f. Local No. 488 v. Curry, 371 U. S. 542, 549.

373 U.S. at 85 n.1.

Next came Mills v. Alabama, 384 U.S. 214 (1966). Mills

had been charged with violating an Alahaina statute which

forbade clectioneering on election day, by publishing an

4796

editorial. The trial court sustained a demurrer based on

First Amendment grounds, the Supreme Court of Ala-

bama reversed and remanded for trial, and Mills appealed

to the Supreme Court. Mr. Justice Black denied the State’s

motion to dismiss for want of a final judgmgent, saying,

384 U.S. at 217-18:

This argument has a surface plausibility, since it is

true the judgment of the State Supreme Court did not

literally end the case. It did, however, render a judg-

ment binding upon the trial court that it must convict

Mills under this state statute if he wrote and published

the editorial. Mills concedes that he did, and he there-

fore has no defense in the Alabama trial court. Thus

if the case goes back to the trial court, the trial, so far

as this record shows, would be no more than a few

formal gestures leading inexorably towards a convic-

tion, and then another appeal to the Alabama Supreme

Court for it formally to repeat its rejection of Mills’

constitutional contentions whereupon the case could

then once more wind its weary way back to us as a

judgment unquestionably final and appealable. Such a

roundabout process would not only be an inexcusable

delay of the benef*» Congress intended to grant by

providing for appeal to this Court, but it would also

result in a completely unnecessary waste of time and

energy in judicial systems already troubled by delays

due to congested dockets. (Footnote omitted.)

In California v. Stewart, 384 U.S. 436 (1966), one of the

four cases decided under the title of Miranda v. Arizona,

the State had obtained certiorari from a judgment of its

Supreme Court which had reversed a conviction because

of the admission of a confession allegedly taken in viola-

tion of Escobedo v. Illinois, 378 U.S. 478 (1964). Stewart’s

4797

18a

Opinion of the United States Court of Appeals

motion to dismiss for lack of a final judgment was denied;

a footnote, 384 U.S. at 498 n.71, stated:

After certiorari was granted in this case, respondent

moved to dismiss on the ground that there was no

final judgment from which the State could appeal since

the judgment below directed that he be retried. In

the event respondent was successful in obtaining an

acquittal on retrial, however, under California law the

State would have no appeal.’ Satisfied that in these

circumstances the decision below constituted a final

judgment under 28 U.S.C. §1257(3) (1964 ed.), we

denied the motion. 383 U.S. 903.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975),

Mr. Justice White endeavored to rationalize where these

decisions and similar ones in civil cases had left the final

judgment rule of 28 U.S.C. § 1257. He began with a general

statement:

[A]s the cases have unfolded, the Court has recur-

ringly encountered situations in which the highest

court of a State has finally determined the federal

issue present in a particular case, but in which there

are further proceedings in the lower state courts to

come. There ere now at least four categories of such

eases in which the Court has treated the decision on

the federal issue as a final judgment for the purposes

of 28 U.S.C. § 1257 and has taken jurisdiction without

awaiting the completion of the additional proceedings

anticipated in the lower state courts. In most, if not

all, of the cases in these categories, these additional

—

5 Hart & Wechsler, The Federal Courts and the Federal System (1978

ed.), rnise the question, p. 628:

Is this not so in every criminal case in which a state appellate

court orders a new trial on federa) grounds?

4798

19a

Opinion of the United States Court of Appeals

proceedings would not require the decision of other

federal questions that might also require review by

the Court at a later date, and immediate rather than

delayed review would be the best way to avoid “the

mischief of economic waste and of delayed justice,”

Radio Station WOW, Inc. v. Johnson, [326 U.S. 120]

at 124, as well as precipitate interference with state

litigation.

420 U.S. at 477-78 (footnotes omitted). He then fitted the

cases into four categories. The first category, of which

Mills was cited as an example, consisted of cases “in which

there are further proceedings—even entire trials—yet to

occur in the state courts but where for one reason or

another the federal issue is conclusive or the outcome of

further proceedings preordained. In these circumstances,

because the case is for all practical purposes concluded,

the judgment of the state court on the federal issue is

deemed final.” 420 U.S. at 479. The second category, of

which Brady was an example, consisted of cases “in which

the federal issue, finally decided by the highest court in

the State, will survive and require decision regardless of

the outcome of future state court proceedings.” 420 U.S.

at 480. A third category, of which Stewart was an example,

included cases “where the federal claim has heen finally de-

cided, . . . but in which later review of the federal issue can-

not be had, whatever thé ultimate outcome of the case... .

[I]n these cases, if the party seeking interim review ulti-

mately prevails [on remand] on the merits, the federal

issue will be mooted; if he were to lose on the merits, how-

ever, the governing state law would not permit him again

to present his federal claims for review.” 420 U.S. at 481.

The fourth category consisted of

those situations where the federal issue has been finally

decided in the state courts with further proceedings

4799

20a

Opinion of the United States Court of Appeals

pending in which the party seeking review here might

prevail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal issue by

this Court, and where reversal of the state court on

the federal issue would be preclusive of any further

litigation on the relevant cause of action rather than

merely controlling the nature and character of, or de-

termining the admissibility of evidence in, the state

proceedings still to come. In these circumstances, if

a refusal immediate'y to review the state court deci-

sion might seriously erode federal policy, the Court

has entertained and decided the federal issue, which

itself has been finally determined by the state courts

for purposes of the state litigation.

420 U.S. at 482-83. It was this fourth category in which

Cox Broadcasting Corp. apparently was deemed to fall.

Finality was found not simply because “if the Georgia

court erroneously upheld the statute, there should be no

trial at all” but because even if the defendant prevailed at

trial on non-federal grounds, “there would remain in effect

the unreviewed decision of the State Supreme Court that

a civil action for publishing the name of a rape victim dis-

closed in a public judicial proceeding may go forward

despite the First and Fourteenth Amendments.” 420 U.S.

at 485.

There is one characteristic common to all four categories

of these § 1257 cases which is missing in appeals to a

federal court of appeals from an order of a district court.

This is that, as said in Mr. Justice White’s general state-

ment, supra, 420 U.S. at 477-78 “[i]n most, if not all, of

the cases in these categories, these additional proceedings

fon remand] would not require the decision of other fed-

eral questions that might also require review by the Court

at a later date... .” In Brady, Mills and Stewart, the

4800

21a

Opinion of the United States Court of Appeals

Supreme Court was presented with the opportunity to re-

view, albeit at a formally interlocutory stage, the only

question ever likely to be put to it, whatever the stage

of the proceedings.’ It is the one-time character of Su-

preme Court review of state cases that seems critical to

all four of Justice White’s categories. The situation is

quite different with respect to federal criminal prosecu-

tions, where the entire law defining the offense and the

trial procedures is federal. If the trial occurs, it is likely

that a number of “federal” questions will later be pre-

sented to the court of appeals for review—even perhaps

the identical question with additional factual background

—so there is not the same convenience in an appellate

court’s addressing any single federal question before pass-

ing upon all. Also, when acting under § 1257 with respect

to cases that have been remanded for trial by a state su-

preme court, the Court is dealing with cases which have

already passed once through the state hierarchy and can

reach the Supreme Court after the remand only by again

passing through a state trial court and one appellate court

or often two. In contrast, dismissal of an appeal from a

pretrial order of a federal district court simply means

that the trial will occur and, unless the appellant wins, the

court of appeals will then hear a multi-faceted appeal by

him in any event. In short we conclude that the Brady-

Mills-Stewart line of cases and their civil counterparts

under 28 U.S.C. § 1257 rest on considerations peculiar to

Supreme Court review of final judgments of state courts

and are not authoritative on the application of Cohen to

a court of appeals review of a pretrial order of a district

court in a federal criminal case.’ In addition to the dif-

6 This clearly was true in Brady and Mille—not quite so clearly but

probably true in Stewart.

7 In saying this we have not overlooked what might be taken as a

suggestion in Mr. Justice Jackson’s concurring opinion in Stack v. Boyle,

4801

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Opinion of the United States Court of Appeals

ferentiating considerations apparent in Mr. Justice White’s

discussion in Cox Broadcasting Corp. and those we have

noted, a court of appeals has the opportunity of utilizing

“supervisory” or “advisory” mandamus to correct any

truly egregious error of a district court, see La Buy v.

Howes Leather Co., Inc., 352 U.S. 249 (1957); Schlagen-

hauf v. Holder, 379 U.S. 104, 110 (1964); Kerr v. U.S.

District Court, supra, 44 U.S.L.W. at 4841; American Ex-

press Warehousing, Ltd. v. Transmerica Ins. Co., 380 F.2d

277, 282-83 (2 Cir. 1967); Kaufman and Withington v.

Edelstein, supra note 1, at 3298-99; Note, Supervisory and

Advisory Mandamus under the All Writs Act, 86 Harv.

L. Rev. 595 (1973). This resource, usable on a selective

basis, also dictates against broad indentation of the final

decision rule, especially in criminal cases.

The decisions of the courts of appeals present a varied

picture. This court’s first encounter with a problem similar

to that here presented was United States v. Ford, 237 F.2d

57, 67 (2 Cir. 1956), vacated as moot, 355 U.S. 38 (1957).

Ford was a tax evasion case with separate counts for each

supra, 342 U.S. at 12, that the words “final judgment” may call for

more than the words “final decision.” We think all the Justice was

saying was that it is not fatal to an appeal under 28 U.S.C. § 1291

that a judgment is not formally final, a condition which in a criminal

case would be met only by the sentence, see Berman v. United States,

302 U.S. 211, 212 (1937), if the other requirements of Cohen were

satisfied. In Parr v. United States, supra, 351 U.8. at 518, Mr. Justice

Harlan treated the two terms “judgment” and “decision” as inter-

changeable. As pointed out by Mr. Justice Rehnquist in Coz Broad-

casting Corp. v. Cohen, supra, 420 U.8. 502-03 n.3, statutes providing

for review of decisions of federal courts had used the term “final judg-

ment or decree” until the Evarts Act of March 3, 1891, creating the

courts of appeals, 26 Stat. 826, and the legislative history affords no

explanation for the Senate’s changing these words, which were in the

House bill, to “final decision.”

8 Whether or not the Ali Writs statute, 28 U.8.C. § 1651, empowers

the Supreme Court to issue mandamus to a state court, such power has

been most sparingly used. See Hart & Wechsler, supra, at 298, 458.

4802

23a

Opinion of the United States Court of Appeals

of five years. The jury found Ford guilty for 1948, 1949

and 1950 and not guilty for 1951. It was unable to agree

as to 1947; the trial judge first directed a verdict of ac-

quittal and then vacated this. After affirming the convic-

tions, the court dealt briefly with the claim that a retrial

on the 1947 count would constitute double jeopardy. Judge

Hincks, speaking also for Chief Judge Clark and Judge

Frank, said, 237 F.2d at 67:

Since the order [vacating the directed verdict of ac-

quittal] is interlocutory and the defendant has not yet

been placed in jeopardy thereunder, the issue is not

currently appealable and the pending appeal as to

Count 1 must accordingly be dismissed.’

Next came the decision of the Fifth Circuit in Gilmore

v. United States, 264 F.2d 44, cert. denied, 359 U.S. 994

(1959). There a defendant, after reversal of his convic-

tion on a first trial, went through a second trial resulting

in a hung jury, and then sought to appeal a denial of

his motion for acquittal on the ground that the evidence

had been insufficient for submission to the jury. The court

dismissed the appeal for lack of jurisdiction. Writing for

a panel that included Chief Judge Hutcheson and Judge

Wisdom, Judge John R. Brown, after recounting the argu-

ment of Gilmore’s counsel, which relied on the statement

9 Along with the Government we are unable to agree with the state-

ment in United States v. Beckerman, supra, 516 F.2d at 906, that Ford’s

“precedential authority has been undermined since the opinion was later

vacated as moot” as a result of Ford’s subsequent death. In so vacating

a judgment the Supreme Court refrains from passing on ita merits,

Durham v. United States, 401 U.S. 481, 483 n. (1971) (per curiam) ;

the judgment lones ite status as res judicata but not its persuasive power

as 2 precedent in this court. We likewise fail to see the basis for the

statement in Beckerman that the issue was “only obliquely considcred”

in Ford, although review of the briefs does indicate that the court did

not have the benefit of thorough briefing, with no party discussing the

effect of Cohen.

4803

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Opinion of the United States Court of Appeals

in United States v. Ball, supra, 163 U.S. at 669, to which

we have previously referred, and commenting on the bear-

ing of Bryan v. United States, 338 U.S. 552 (1950), had

this to say:

[E]ven if it were assumed that the second trial was

forbidden as double jeopardy, that does not invest us

with jurisdiction to vindicate such right. The Consti-

tution does not guarantee an appeal. That comes

wholly from the statute. There are many instances

in which it is ultimately determined that constitutional

rigiits have been violated. But the nature of the as-

serted right, ie., a constitutional one, does not dis-

tinguish appellate review of any such question from

the assertion of other rights, whether statutory or

common law, or from a procedural rule. At least so

long as a criminal case is pending, review of such

inatters, as for example, unlawful search and seizure,

unlawful arrest, unlawful detention, unlawful indict-

ment, unlawful confession, must await the trial and its

outcome. This is so even though, at the end of that

trial, or an appeal from the judgment of conviction,

it is ultimately determined’ that the violation of the

constitutional right compels an acquittal. When that

is the outcome, the individual accnsed may claim in a

very real sense to have been subjected to a trial that

ought never to have taken place. Congress might, as

it has recently done in a very limited way for civil

matters, 28 U.S.C.A. § 1292(b), provide for interlocu-

tory appeals to test such questions prior to trial and

a final judgment in the traditional sense. Until Con-

eress does so, the individual affected is witness to the

fact that, “Bearing the discomfiture and cost of a

proseeution for crime even by an innocent person is

one of the painful obligations of citizenship.” Cobble-

4804

5a

Opinion of the United States Court opf Appeals

dick v. United States, 1940, 309 U.S. 323, 325, 60 S.Ct.

540, 541, 84 L.Ed. 783.

The Constitutional right, or the asserted violation

of it, does not bridge the gap of appellate statutory

jurisdiction. Nor, for like reasons, does it, through

some reverse process, expand the term “final decision”

into something which, contrary to a long-settled Con-

gressional policy, amounts in actuality to piecemeal

review.

264 F.2d at 46-47 (footnote omitted).

Movement in the opposite direction began with the

Fourth Cireuit’s decision in United States v. Lansdown,

supra, 460 F.2d 164. The case afforded about as strong an

inducement for allowing appeal from an interlocutory

order, under Cohen’s exception to the finality rule, as could

be imagined. The court apparently thought the Govern-

ment’s case had been weak and the defendant’s strong and

that the jury ultimately would have reached a verdict of

acquittal. After having decided that the judge improperly

ended the jury’s long deliberations, the court considered

the question of appealability and held Cohen to be appli-

cable. Starting with the much quoted statement in United

States v. Ball, supra, it reasoned, 460 F.2d at 171:

Even if an appellate court reverses the conviction in

a second trial on the grounds of double jeopardy, a de-

fendant has still not been afforded the full protection

of the fifth amendment since he has been subjected to

the embarrassment, expense, anxiety and insecurity

involved in the second trial. If an individual is to be

provided the full protection of the double jeopardy

clause, a final determination of whether jeopardy has

attached to the previous trial must, where possible, be

determined prior to any retrial. (Footnotes omitted).

4805

26a

Opinion of the United States Court of Appeals

Even so, the court added in a footnote, 460 F.2d at 171 n.8:

Our holding is limited to the narrow facts and circum-

stances of this ease. Where the charges in the first and

second trial differ and a double jeopardy argument

rests on a claim that certain facts required for a con-

viction in the second trial were previously determined

in an earlier trial, review must wait until the comple-

tion of the second trial.’®

In addition to United States v. Beckerman, supra, 516 F.2d

at 906-07, Lansdown has attracted two more adherents,

United States v. DiSilvio, 520 F.2d 247, 248 n.2a (3 Cir.),

cert. denied, 96 8. Ct. 447 (1975); United States v. Barket,

530 F.2d 181 (8 Cir. 1975), cert. pending, No. 75-1280.

The Fifth Cireuit, however, has remained unconvinced.

United States v. Bailey, 512 F.2d 833 (5 Cir.), cert. dis-

missed under Rule 60, 96 S. Ct. 578 (1975), was an appeal

from denial of a motion to dismiss an indictment after a

trial claimed to have been illegally aborted by the judge.

Dismissing the appeal, the court repeated Judge (now

Chief Judge) Brown’s analysis in Gilmore and expressly

rejected the reasoning of Lansdown.

Subsequent cases demonstrate the impracticability of

cabining Landsdown and Beckerman to the precise facts

there presented. In United States v. Alessi I, supra, this

court found that the rationale of Beckerman necessarily

comprehended a due process claim of failure “to fulfill an

earlier promise not to proseeute” for other crimes made in

consideration of a guilty plea. The opinion did not explain

why the case stood differently from the immunity from

10 The Lansdown court did not say whether ita decision would apply in

another variation of double jeopardy, namely, a case whero the defen-

dant clnims but the prosecution denies that the second prosecution in

for the same offense.

4806

27a

Opinion of the United States Court of Appeals

prosecution promised in Heike. Perhaps the panel con-

cluded that Heike had been eviscerated by Cohen, but Mr.

Justice Harlan did not think so, even as late as l’nited

States v. Parr, supra, 351 U.S. at 517, 519. The further

onrush of Cohen in the criminal area is illustrated by

United States v. MacDonald, 531 F.2d 196 (4 Cir. 1976),

where the Lansdown rationale was extended to a claim of

denial of speedy trial.‘ Indeed if Lansdown were sound,

why not? Here too the constitutional guarantee is not

solely against conviction but against the trauma of having

to await or undergo a trial long after arrest. See Klopfer

v. North Carolina, 386 U.S. 213 (1967). Yet the consistent

practice in this circuit has heer that denials of motions to

dismiss indictments for lack of a speedy trial are reviewed

on appeal from convictions, if these should occur.'* We

have little doubt that, as the Government argues, once

Cohen is construed to have created a “right not to he tried”

exception to the final decision rule in criminal cases, it

will be hard to limit the claims for such review which coun-

sel will advance.** This is not just an “alarming specter,”

11 Once again in MacDonald, as before in Lansdown, supra, 460 F.2d

at 171 n.8, the Fourth Circuit panel characterized its holding as having

a narrow effect, 531 F.2d at 199:

Not every speedy trial claim, however, merits an interlocutory ap-

peal. Generally, this defense should be reviewed after final judg- -

ment. It is the extraordinary nature of MacDonald’s case that

persuaded us to allow an interlocutory appeal.

This would seem to us to be rather a reason for effecting pretrial review

by mandamus; we find nothing in Cohen that conditions its applicability

on the merit of a particular appeal.

12 Decisions such as Lansdown, Beckerman, Alessi I and MacDonald also

raise the question whether a defendant must appenl within 10 days of

the order by which he is aggrieved rather than await the outcome of

the trial. See Hart & Wechsler, The Federal Courts and the Federal

System (2d ed. 1973) 1554-1555, see also 629.

13 One that readily comes to mind is a claim of too speedy a trial, com-

pare Stans v. Gagliardi, 485 F.2d 1290 (2 Cir. 1973). If an appeal

4807

28a

Opinion of the United States Court of Appeals

as the Government put it in Lansdown, 460 F.2d at 172;

in four short years the “specter” has acquired a number of

earthly embodiments. If the point were open in this cir-

cuit, we would cast our lot in favor of the continuing

vitality of Heike v. United States, supra, 217 U.S. 423,

and the final decision rule in criminal cases as applied in

the Fifth Cireuit, and would dismiss this appeal for want

of jurisdiction. However, we are constrained hy contrary

preecdent in this cireuit and, hecause of the possibility of

a decision at the next term of the Supreme Court, will not

seek en banc reconsideration.

II. The Merits

Appellant’s argument that this prosecution should be

halted runs as follows: [The terms of the plea bargain

struck on August 18, 1972, covered defendant Alessi as

well as defendant Papa. The bargain included, among other

matters, an agreement not to prosecute, as a substantive

crime, anything which could have been included as an overt

act in the Eastern District conspiracy alleged in 72 Cr.

473. However, the argument runs, the conspiracy charged

in the present Southern District indictment is the same

conspiracy as that previously alleged in the Eastern Dis-

trict, and the substantive crimes with which appellant is

taxed are the “overt acts” or “pieces” of the Southern

District conspiracy. Therefore the crimes presently charged

fall within the scope of the bargain. Furthermore, appel-

lant contends, the plea bargain, as here relevant, was in-

tended to extend as far as the Southern District U.S. At-

torney’s Office, and, as a matter of law, the Fastern Dis-

lies from an order directing a trial for which a defendant has become

unprepared because too much time has elapsed, why not from an order

directing a trial for which the defendant has not had enough time to

prepare? Why not also in the many cases where a defendant claims

he is being unconstitutionally forced to trial in the absence of counsel

of his own choosing?

4808

29a

Opinion of the United States Court of Appeals

trict had the power to bind the Southern District in this

fashion even though no approval from the Southern Dis-

trict had been sought or received. Since Alessi’s plea to

the superseding information was intended to give him the

same protection as if he had pleaded to the Eastern Dis-

trict indictment, and since he pleaded in reliance on the

promises here sought to be enforced, appellant concludes

that the present indictment, as to him, should be dis-

missed

While not necessarily conceding the other matters, the

Government, on appeal, has joined issue primarily on two

of these points. The Government’s main position is that

the plea bargain should not be construed to prevent the

Southern District U.S. Attorney’s Office from prose-

euting any crime, other than those that would fall under

a double jeopardy ban, so long as the prosecution was in-

dependently developed. In the alternative, the Govern-

ment contends that Druker could not, by his independent

actions, bind the Southern District.

14 Appellant's brief also raises a direct double jeopardy claim, although

the point was not pressed at oral argument. The contention apparently

is that Alessi is being charged as an aider and abettor not because he

“actually knew of Manfredonia’s subsequent transfers” but because they

were “the reasonably foreseeable consequences of his act”; that this

theory of liability is the same as that used to hold a conspirator for

the acta of his co-conspirators; and that, accordingly, on this view of

intent aiding and abetting is the same crime as conspiracy. We have no

need to consider the legal merits of this argument because the factual

predicate is lacking. The Government states that it will prove that

Alossi “knew some of Manfredonia’s customers” and that Alessi had

“a continuing, active stake” in the sales. The Government is, of course,

quite right in stating that appellant cannot assume that the evidence

against him will he identical to that introduced against the alrendy-

tried defendants in Jaroasi. The Government's offer of proof seoms

sufficient to support a conviction for aiding and abetting which is dis-

tinct from the crime of conspiracy, see, e.g., United States v. Bommarito,

524 F.2d 140, 145 (2 Cir. 1975). In any case it seems that if there

is a question here, it is an issue whether the evidence will be sufficient

to prove the crime charged—something which of course cannot now be

considered—and not a matter of double jeopardy.

4809

30a «oe

Opinion of the United States Court of Appeals

We find it unnecessary to go further than the terms of

the bargain. In developing this, both sides rely almost

entirely on the evidence introduced in a hearing held by

the district court in United States v. Papa, supra, where

two witnesses testified: Druker and one of Papa’s attor-

neys. Indeed, the Government contends that the issue on

the merits has already been decided by the interpretation

of this evidence given in the Papa opinion, and cites the

following language, —— F.2d ——, slip op. at 2995-96:

The representations made by Druker related expressly

and by necessary implication exclusively to Eastern

District investigations and prosecutions. The terms of

the bargain did not extend to matters under investi-

gation elsewhere. Papa’s attorneys’ principal concern

was to ensure that their client would not be re-indicted

on “pieces” of the Eastern District conspiracy. Druker

promised that the bargain immunized Papa from any

further prosecution on the basis of any future in-

formation he received related to the Eastern District

conspiracy. Papa’s attorneys secured a promise from

Druker that there would be no additional prosecution

stemming from matters presently under investigation

in the Eastern District. Druker specifically refused to

grant appellant “carte blanche” immunity as to all his

past criminal conduct, and carefully noted that Papa

was still subject to prosecution on any unrelated crim-

inal activity. Never once was Druker asked to inquire

about investigations in the Southern District nor was

he asked to include Southern District crimes in the

plea negotiations. Indeed, when Druker was queried

by Papa’s attorneys as to the money seized from Papa

in February, 1972, he responded: “It’s in the Southern

District’s bailiwick and I don’t know what if anything

they are going to do with it.”

4810

3la

Opinion of the United States Court of Appeals

Appellant’s counsel argues that, when read in context,

this language does not settle the matter. Her contention

is that Druker made two separate promises: first, “that

there would be no additional prosecution stemming from

matters presently under investigation in the Eastern Dis-

trict”; second, that Papa and Alessi “would not be re-

indicted on ‘pieces’ of the Eastern District conspiracy.”

Only the first of these promises, it is claimed, was limited

to prosecutions developed or carried out by the Eastern

District; the second one, the promise applicable to this

case, was intended to bind the Government as a whole.

The Papa opinion, it is said, is not to the contrary because

what was being decided was whether Ragusa, whose exis-

tence was known to Druker before the plea was entered,

could subsequently be used as a witness in the Southern

District trial for crimes arising from a distinct conspiracy,

given that he had been located by means of an independent

investigation. As the court stated in the sentence immedi-

ately following the portion just quoted, “[a]lthough the

Ragusa matter did not relate to a ‘piece’ of the Eastern

District conspiracy, it did concern a matter under investi-

gation in the Eastern District at the time the plea was

entered.”

While the quoted portions of the Papa opinion could be

read in this fashion, we are not persuaded that they were

so intended. The blanket statement that “[{t]he repre-

sentations made by Druker related expressly and by

necessary implication exclusively to Eastern District in-

vestigations and prosecutions” is most naturally read as

relating to the discussion of the entire consideration of-

fered by Druker, including both of what appellant claims

were two distinct promises. Insofar as the opinion does

draw the distinction appellant wishes to make, it does not

do so until after the whole bargain has been described and

characterized. Tlowever, even though appellant’s counsel

4811

32a ‘y 1 segs ’ boat

tates Court of Appeals

' Opinion of the United $

indicated her desire, in the court below, to have Alessi’s

case await the results of the then-upcoming decision in

Papa, we would not hold that opinion’s construction of the

bargain to be conclusive against appellant, were we not

convinced that the underlying testimony supports the in-

terpretation of the bargain for which the Government

contends.

It is true that there are segments of Druker’s testimony

which, read in isolation, appear to support appellant’s

contention that one of the promises was not limited to

Eastern District prosecutions. For example:

Q. [Papa’s Attorney] So that Mr. Papa was prom-

ised as well, then, in return for his plea, overt

acts in furtherance of this conspiracy would not

give rise to subsequent individual prosecutions?

A. [Druker] That’s correct.

Or, to be a bit more concrete, Druker said:

I advised, for example, that if somewhere down the

chain of the ladder it turned out that Mr. Loria had

been selling heroin to five or six people who were not

named in my conspiracy but that it developed or be-

came clear that this was as a result of the same chain

from Mr. Papa on up, that he would be covered on

this. Anything to do with that conspiracy.

Ilowever, in context these statements must fairly be read

to delineate only the seope of the crimes covered. Druker

never onee directly testified that the promise or promises

le had made were intended to cover any prosecution by

other than the Eastern District Office; nor did Papa’s

attorney. To the contrary, Druker testified, as the Papa

opinion points out, that he never checked with the Southern

District as to their investigations; that he never asked

4812

33a

Opinion of the United States Court of Appeals

the Southern District to join in the bargain: that he was

never asked by Papa’s lawyers to check with the Southern

District; and that this was true even though Papa’s attor-

neys had been told that the nearly $1 million seized from

Papa at the time of his arrest in the Bronx was in the

“Southern District’s bailiwick” and, for all Druker knew,

was the subject of investigation there. We can only con-

clude that insofar as the plea bargain can be understood

to confer an immunity from narcotics law prosecutions

greater than that given by the double jeopardy clause, it

was not in the contemplation of either side that anyone

outside of the Eastern District U.S. Attorney’s or Strike

Force Offices was bound. While this gave the defendants

less than complete protection, their attorneys were doubt-

less more interested in nailing down the substantial con-

cessions they had already achieved than in having further

inquiry made. From Druker’s point of view the limita-

tion is certainly intelligible; he had good cause for not

wanting to bind another Office which he had not consulted.

We would, of course, have a different case if there were

evidence to show that the Eastern District was attempting

to evade its own obligations by transferring a prosecution

across the East River; but there is none. Since we find

nothing in this prosecution that offends the plea bargain,

the order below is

Affirmed.

+o

Feinnera, Circuit Judge (concurring) :

On the appealability issue, I concur in the result. On

the merits, T join in the majority opinion.

4813