Petition — Warden v. Palermo

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7671016

In THE « |

1977

Supreme Court, U. S,

~EFILED

JAN 24

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1976

Warpven, Green Haven Stare Prison,

Petitioner,

against

Tuomas PALARNMoO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Louis J. LET ROwIrZ

Attorney General of the

State of New York

Attorney for Petitioner

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No. 488-4178

Samvue. A. HmSHOwrrz

First Assistant Attorney General

Rates L. McMurry

Assistant Attorney General

of Counsel

TABLE OF CONTENTS

PAGE

c 1

, d 2

Questions Presented ................. e 2

rener. .. nene. ee 2

%%% ̃ͤ . ³·˙ Q 2

B. State Court Proceedings .................. 7

C. Federal Court Proceedings ................ 7

1. Decision of the District Court .......... 8

2. Decision of the Court of Appeals ........ 9

Reasons Why Certiorari Should Be Granted ....... 10

A. A “plea bargain” in which stolen property is

a primary consideration is not a valid en-

forceable plea bargain within the meaning of

Santobello v. New York, 404 U.S. 257 (1971) 10

B. A ‘‘plea bargain” in which a prosecutor’s ultra

vires promise is a primary consideration and

which usurps the prerogatives and powers of

independent governmental agencies and ju-

risdictions is not a valid enforceable plea

bargain within the meaning of Santobello v.

New York, 404 U.S. 257 (1971) ............ 11

ii TABLE OF CONTENTS

TABLE or CasEs PAGE

Brady v. United States, 397 U.S. 742 (1970) ...... 14

Correale v. United States, 479 F. 2d 944 (Ist Cir.

EE Lt dui elede suena ves T 13

Geisser v. United States, 513 F. 2d 862 (5th Cir. —

. CCT 12, 13

Harris v. Superintendent, Va. State Penitentiary, 518

eee yk Py. 14

People v. Campbell, 35 N Y 2d 227, 360 N.Y.S. 2d

r ² ˙⸗öͤ ee err Pe 12

People v. Dorsey, 176 Mise 2d 932, 29 N.Y.S. 2d 637

SE, GU ED 6

Santobello v. New York, 404 U.S. 257 (1971) ...2,8,9, 10,

11, 12,14

United States v. Bridgeman, 523 F. 2d 1099 (D.C.

r ͥͤr . ˙ ˙˙—:ñ'! .. 11

United States v. Carter, 454 F. 2d 426 (4th Cir. 1972)

(en banc), cert. den. 417 U.S. 933. 12, 13

United States v. Gorham, 523 F. 2d 1088 (D.C. Cir.

D. ssn ekcans 11, 12, 13

United States v. 1.H. Hammerman II, 528 F. 2d 326

r . ss 14

United States v. Long, 511 F. 2d 878 (7th Cir.), cert.

I 12

Statutes Crrep

New York Correction Law 5 210, 212, 213, 214

(McKinney’s Supp. 1975-1976) ................ 6, 7

New York County Law 570001) (McKinney’s 1972) 6

New York Criminal Procedure Law 20.40 (McKin-

TABLE OF CONTENTS

, ˙ Sigel oeaeckaeveie sess deecess

New York Penal Law, 4$§ 205.50(1)(4)(5), 205.55,

205.60 (McKinney’s 1975) ....................

New York Personal Property Law § 252 (McKinney’s

1976)

“ee „„ „ „ „ „% „% „% „% „% „% „% % —»-— „% „% %„„%„„ „ eee

PAGE

In THE

Supreme Court of the United States

OCTOBER TERM, 1976

Wanpen, Green Haven Strate Paison,

Petitioner,

against

Tnouas PALERMO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES 1

FOR THE SECOND CIR

Petitioner, the Warden of Green Haven State Prison,

Stormville, New York, prays that a writ of certiorari issue

to review a decision of the United States Court of Appeals

for the Second Circuit in the case of Thomas Palermo,

et ano. v. Warden, Green Haven State Prison, et al., which

granted respondent a writ of habeas corpus.

Opinions Below

The decision of the Court of Appeals is not yet reported

and was dated November 1, 1976. The opinion of the Court

of Appeals is reproduced as Appendix “A’’. The final de-

cision of the District Court, which was affirmed by the

Court of Appeals, is reported at 412 F. Supp. 935. The

opinion of the District Court is reproduced as Appendix

“B”. An earlier decision of the District Court is reported

at 323 F. Supp. 478 and is reproduced as Appendix C“.

1 2

jurisdicti

The jurisdiction of this Court rests on 28 U.S.C.

§ 1254(1). The decision of the Court of Appeals was

handed down on November 1, 1976.

Questions Presented

1. Whether a plea bargain in which stolen property is

a primary consideration is a valid and enforceable plea

bargain within the meaning of Santobello v. New York,

404 U.S. 257 (1971)?

2. Whether a local state prosecutor’s lira vines romise

made in plea bargaining, which promise Nad and usurps

the prerogatives and powers of other — govern-

mental agencies and jurisdictions, can form the basis of a

valid specifically enforceable plea bargain within the mean-

ing of Santobello v. New York, 404 U.S. 257 (1971)?

Statement of the Case

A. Facts J

Respondent Thomas Palermo was scheduled to stand

trial in Richmond County, New Vork on February 17, 1969,

for an armed robbery that had occurred in Richmond

County. Mr. Palermo and his co-defendant, who were out

on bail, arrived late for trial. The same morning, in

Queens County, New York, an armed robbery of the

Provident Loan Society occurred in which some $4,000,000

worth of jewels were stolen.

Palermo and his co-defendant, Mr. Saltzman, were found

guilty in the Richmond County robbery in February, 1969,

after a jury trial. They remained in custody pending

sentence in that case.

Both Palermo and his co-defendant soon thereafter

became suspects in the robbery of the Provident Loan

— — eoterene~ am nea

Society in Queens County. They were arrested for the

crime in May, 1969, while still awaiting sentence on the

Richmond County conviction.

Around this time a long series of negotiations began for

the return of the jewelry. The principal participants in

the negotiations were Mr. Palermo, his lawyers, members

of the Queens County District Attorney’s office, and several

lawyers from a law firm which represented the interests of

the victim Provident Loan Society and its insurer. In the

negotiations, Palermo sought to withhold or conceal the

$4,000,000 worth of stolen jewels in exchange for numerous

considerations involving primarily a substantial reward for

Palermo and favorable dispositions on Palermo’s criminal

cases in three separate counties, in particular Palermo’s

judgment of conviction and sentence in Richmond County.

Palermo and his co-defendant were sentenced in Rich-

mond County on June 27, 1969. Palermo received a sen-

tence of zero to twenty-five years and Mr. Saltzman re-

ceived a sentence of zero to fifteen years.

The negotiations, meanwhile, continued. Eventually a

final “deal” was reached on October 24, 1969. The precise

terms of the deal were subsequently disputed by the parties.

According to Palermo, in exchange for his cooperation in

returning the jewels the Queens County District Attorney

promised him (1) parole on his twenty-five year Richmond

County sentence after one year in jail; (2) a suspended

sentence or unconditional discharge following a plea of

guilty to the Queens County jewel robbery charge; (3)

dismissal of an unrelated assault case pending against

Palermo in Queens County; and (4) an unconditional dis-

charge or suspended sentence following a plea to a mis-

demeanor in a case pending agains t Palermo in Oneida

County, New York. A provision — a $100,000 reward for

Palermo was dropped at the last minute; Palermo was

later to claim that he had been “defrauded” out of the

stolen jewelry which was rightfully his.

According to one of Mr. Palermo’s former attorneys,

Jacob Evseroff, a representative of the Queens District

Attorney’s office, Mr. Ludwig, promised Evseroff, inter

alia, to make a recommendation to the Parole Board for

early parole for Palermo on the Richmond County sentence.

Mr. Ludwig told Evseroff that Palermo would have to do

at least one year on the sentence before parole. At the

time Mr. Evseroff did not even represent Palermo, having

been previously discharged.

According to Palermo, the attorney who replaced Mr.

Evseroff, one Mr. Edward Bobick, told Palermo that

Evseroff in giving his version of the deal had been lying.

Palermo subsequently called Evseroff back for an explana-

tion and Evseroff told Palermo that in fact it was Bobick

who was lying. Palermo eventually decided to keep his

faith in Bobick, who represented him throughout the final

negotiations.

According to the Queens District Attorney and its repre-

sentative, that office promised only to reeommend leniency

for Palermo before the Parole Board and did not guarantee

parole after any specific period of time. The Queens

District Attorney’s office also promised to recommend

favorable dispositions in Palermo’s other criminal cases,

including the Queens jewel robbery case itself.

Shortly before the final agreement was reached on

October 24, 1969, several lawyers representing the in-

surer-victim and a representative of the Queens District

Attorney’s office met with a member of the State Board of

Parole, Mr. Howard Jones. The purpose was to discuss the

possibility of early parole for Mr. Palermo on his twenty-

five year Richmond County sentence. Mr. Jones made no

commitment on behalf of the Board at this meeting. None-

theless, Mr. Bobick sent Palermo a ‘‘congratulations”

telegram saying that the meeting had been successful and

that a commitment had been obtained from the Parole

Board to parole Palermo after one year. Bobick, however,

was not present at this meeting with parole commissioner

Jones.

After the conclusion of the alleged piea bargain, Palermo

made several telephone calls to his wife. Shortly there-

after, a considerable portion of the stolen jewels was

recovered from the trunk of a car in Manhattan. The car

belonged to Palermo’s wife. Approximately $1,000,000

worth of stolen jewels were missing and have never been

returned.

Following the return of some of the jewelry, Palermo’s

lawyer, Mr. Bobick, received $25,000 from the insurer of

the jewels for services rendered in effecting the jewelry

return.

On April 16, 1970, Palermo entered a plea of guilty in

the third degree in connection with the Provident jewel

robbery. Palermo admitted in his plea participating in the

jewel robbery. At all other times, however, Palermo has

denied that he was involved in the robbery.

Palermo eventually received an unconditional discharge

on the charge in Oneida- County; the assault charge

against Palermo in Queens County was dismissed.

With respect to parole on the twenty-five year Richmond

County sentence, Queens District Attorney Thomas Mackell

wrote a letter in April, 1970, to the Chairman of the Board

of Parole recommending leniency for Palermo and included

with the letter an exhibit describing the importance to the

community of the jewel recovery. According to the Queens

District Attorney, such a letter from him was a rare occa-

sion and constituted a great effort on his part.

According to the Queens District Attorney, inquiries

were made concerning a personal appearance before the

Board. That office was informed that no personal appear-

ances were permitted.

According to an investigator for the State Parole Board,

a representative of the Queens District Attorney’s office

told him by telephone in December, 1969, that in his opinion

Palermo deserved no leniency. This was followed, how-

ever, by the Queens District Attorney’s formal recom-

mendation for leniency to the Parole Board in April. 1970.

On June 3, 1970, Palermo and his co-defendant appeared

before the New York State Board of Parole for a mini-

mum period of imprisonment hearing in accordance with

New York law.* Palermo and his co-defendant were both

told that while persons outside the parole board may

make recommendations, the Board was not bound by them

and made decisions on the merits of each case.

Palermo and Saltzman were given minimum periods of

imprisonment of six and five years, respectively.

In August, 1970, Palermo and Saltzman were scheduled

to be released on parole according to their version of the

„deal. In view of the minimum periods of imprisonment

established by the Parole Board, however, they remained

incarcerated. Saltzman was eventually released on parole

in 1974. Palermo was never found suitable for parole.

It is undisputed that the consent of the Richmond County

Supreme Court or the Richmond County District Attorney

was never obtained concerning the proposed parole after

one year on Palermo’s judgment of conviction and sentence

of twenty-five years imposed in Richmond County. Indeed,

it is apparent that no official in Richmond County was ever

consulted. Under New York law, the Queens County Dis-

trict Attorney operates within specified geographic bound-

aries and has no authority to proscribe the authority, ob-

ligations, or prerogatives of the Richmond County District

Attorney or Richmond County Supreme Court.*

* Correction Law §212. The Parole Board is empowered

tto establish a minimum period of imprisonment when this has

not been done by the sentencing court.

New York County Law §700(1) (McKinney's, 1972); New

York Criminal Procedure Law 20.40 8 j 8, 1971); People

8 176 Mise. 2d 932, 29 N. V. S. 2d 637 (Queens Co. Ct.,

1941).

It is also undisputed that the advance consent of the

State Board of Parole was never obtained concerning the

proposed parole after one year on Palermo’s twenty-five

year Richmond County sentence. Under New York law,

the State Board of Parole is the sole body charged with

determining who among inmates shall be released on parole

and under what conditions.“

B. State Court Proceedings

Palermo moved in Queens County Supreme Court to

withdraw his guilty plea to the Queens robbery. In his

moving papers, Palermo alleged that his lawyer Edward

Bobick may have lied to him and inadequately represented

him concerning the negotiations with the Queens Dis-

trict Attorney’s office. In one of his moving papers,

Palermo described the commitment by the Queens District

Attorney on the parole question as a commitment to

strongly endeavor to obtain a mitigation of the time which

your deponent (Palermo) would have to serve to satisfy

the parole commission”.

Following a hearing, the motion to withdraw the plea

was denied and both Palermo and Saltzman received

sentences of an unconditional discharge on robbery con-

vietions involving the theft of $4,000,000 in jewels. The

state court found that representations had been made by

the District Attorney to Palermo that he would receive an

unconditional] discharge.

C. Federal Court Proceedings

Plaintiff Thomas Palermo filed an action in federal court

in 1970 against numerous defendants, including various

members of the Queens District Attorney’s office and the

Parole Board. The complaint was dismissed as against all

save three named defendants in 1971 (Mansrrexp, J.) in an

opinion reported at 323 F. Supp. 478 (S.D.N.Y. 1971).

% New York Correction Law §§ 210, 213, 214 (McKinney's

Supp. 1975-1976).

The three individuals who remained in the action as de-

fendants were Russell Oswald, Chairman of the Board of

Parole at the time; Howard Jones, a parole commissioner

at the time; and Captain O’Conner, a police officer at the

time.

Palermo amended his complaint but the District Court

(MansrrIELp, J.) adhered to its decision on July 26, 1971.

Palermo made some attempt at an appeal pro se, but

the proceeding was ultimately dismissed. Counsel was

obtained for Palermo several years ago.

The case came to trial and hearing in April, 1976. The

District Court conducted a combined habeas corpus

evidentiary hearing and jury trial on the liability and dam-

ages issue as to the three remaining § 1983 defendants.“

The material evidence adduced was essentially that recited

in the statement of “Facts”, Part A, supra, p. 2.

1. Decision of the District Court

At the close of the hearing on April 22, 1976, without

benefits of briefs or argument and clearly in excess of its

habeas jurisdiction, the District Court ordered Palermo’s

immediate release from all custody on both the Richmond

County and Queens County convictions and sentence. In

its subsequent opinion at 412 F. Supp. 935, the District

Court rested its decision on Santobello v. New York, 404

U.S. 271. The District Court found, inter alia, that

Palermo and Saltzman had been promised parole after one

year in prison on the twenty-five year sentence in Richmond

County. The promise came from the Queens District At-

torney.** The District Court further found that, although

The complaint was dismissed as against these individuals at

the close of Palermo’s case for failure to put forth a prima facie

case.

It should be noted that Edward Bobick, the lawyer who

negotiated the final ‘‘deal’’, was never called to testify by Palermo.

(footnote continued on following page)

Queens District Attorney M»<keil had written a letter to

the Parole Board asking that leniency be shown Palermo,

such letter was ambiguous and insufficient. The District

Court failed to discuss in its decision the effect of either

the ultra vires nature of the District Attorney’s alleged

promise of parole or the legality of Palermo’s consideration

of the return of stolen jewels.

2. Decision of the Court of Appeals

The United States Court of Appeals, in a two to one

decision, affirmed the decision of the District Court. The

Court of Appeals found that the District Court’s findings

of fact were not clearly erroneous. The Court also con-

eluded that Santobello required specific performance of the

prosecutor’s ultra vires promise of parole. In addition,

the Court concluded that stolen jewelry was not an un-

lawful consideration primarily because Palermo claimed

he was innocent of the jewel robbery and the Queens Dis-

trict Attorney’s office had initiated the negotiations.

Judge Bartels dissented, pointing out that (1) the

the prosecutor’s ultra vires promise of parole usurped the

prerogatives of an independent government agency, the

New York Board of Parole and emasculated a judgment

of conviction imposed in another county and independent

jurisdiction without the consent of any official in that

jurisdiction, and (2) the withholding of the jewels which

Palermo had no right to withhold* subjected the Queens

(footnote continued from preceding page)

No attempt to find him was made until four days before trial. To

the extent the District Court’s findings turned on the versions of

the deal given by Bobick as recounted by Palermo, those findings

are indefensibly on hearsay. Mr. Bobick received $25,000 for

his services from the insurer victim, although Bobick’s client was

supposedly the accused and convicted perpetrator.

* New York Personal Property Law, § 252 (McKinney’s 1976) ;

New York Penal Law, §§ 195.05, 155.00, 155.05, 155.35, 205.50(1),

(4), (5), 205.55 and 205.60 (McKinney’s 1975).

County District Attorne | i

y to duress. Under these circum-

stances, the dissent considered the specific — one

the bargain to be inappropriate.

Reasons Why Certiorari Should Be Granted

This Court should determine whether a plea bargain is

valid and specifically enforceable within the meaning of

Santobello v. New York, 404 U.S. 257 (1971), where the

primary considerations in the plea bargain are the return

of stolen property by the defendant and an ultra vires

promise by & prosecutor which usurps the prerogatives and

powers of independent governmental jurisdictions and

agencies. These questions raise important issues of publie

policy. The decisions of the courts below violate the letter

and spirit of this Court’s decision in Santobello and con-

flict with the decisions of other Circuit Courts of Appeal

in similar circumstances. The rationale below can be read

as an invitation to every criminal who steals pro rty

to require specific performance. 1

In ruling that the withholding and concealment of stolen

Property was a lawful consideration in a plea bargain, the

courts below reached a result completely contrary to the

— and spirit of this Court's decision in Santobello v

ew York, 404 U.S. 257 (1971), wholly contrary to the

result of at least one other Cireuit Court of Appeal, and

completely contrary to the basic purpose of law

Santobello involved a simple and standard ple i

in which each side relinquished to the — a de

which it was entitled to possess and was not otherwise

obliged to surrender. No such plea bargain existed in

this case. Since Palermo obviously had no right to con-

ceal the whereabouts of stolen property, he could not use

his control or knowledge of such stolen property as a law-

ful consideration in any purported plea bargain. Clearly,

this “plea bargain” was not a true plea bargain within the

meaning of Santobello.

At least one other Circuit Court of Appeals has reached

a different result in a “plea bargain” involving an unlawful

consideration. In United States v. Gorham, 523 F. 2d 1088

(D.C. Cir. 1975), the Court found that a promise of im-

munity from a federal judge and a Corrections Commis-

sioner made to inmates who were holding the Commissioner

hostage was not binding on the United States Attorney.

Part of the holding was grounded on the theory that the

case was not a Santobello situation because there was no

lawful consideration and because the bargain involved the

performance of a pre-existing duty. Although this case

does not involve hostages, clearly the same principles are

applicable. Stolen jewelry was not a valid consideration

with which Palermo could bargain and he was under a

clear pre-existing duty not to conceal or retain stolen

See also United States v. Bridgeman, 523 F. 2d

1099 (D.C. Cir. 1975).

In addition to departing from fundamental principles

of plea bargaining, the decisions of the courts below defied

the basic purpose of law by sanctifying the return of stolen

loot and by giving legal sanction to what was in effect

ransom and extortion. “Plea bargaining” was never meant

to work such a result.

B. A plea bargain in which a prosecutor’s ultra vires prom-

ise is a primary consideration and which usurps the

prerogatives and powers of independent governmental

agencies and jurisdictions is not a valid enforceable

plea bargin within the meaning of Santobello v. New

York, 404 U.S. 257 (1971).

In awarding specific performance to the Queens County

prosecutor’s ultra vires plea bargain promise, a promise

a a a

which usurped the powers and prerogatives of the inde-

pendent New York Board of Parole and which invaded the

jurisdiction of the courts and prosecutor of another county,

the decisions of the courts below reached a result which is

completely contrary to results reached by other Courts of

Appeal in similar circumstances, completely inconsistent

with this Court’s decision in Santobello, and wholly incon-

sistent with basic principles of public policy.

A plea bargain in which one of the considerations is an

ultra vires promise is not a valid plea bargain at all within

the meaning of Santobello. As noted above, Santobello in-

volved a simple and standard plea bargain in which each

side relinquished to the other side rights which it was le-

gally entitled to possess and was not otherwise obliged to

surrender. No such plea bargain exists in this case. The

ulra vires nature of the promise in this case fully distin-

guishes the instant case from Santobello. The promise in

Gorham, supra, in addition to involving no true considera-

tion, was also ultra vires and for that reason unenforce-

able. Gorham, supra at 1096-1098. Similarly, in United

States v. Long, 511 F. 2d 878 (7th Cir.), cert. den. 423 US.

895 (1975), a state agent’s ultra vires promise of immunity

from federal prosecution was held non-binding on the

United States. Although the decision in Long turned on

the fact that no agency existed between the state and fed-

eral government, the promise was nonetheless for that very

reason ultra vires and the court specifically found Santo-

bello to be inapplicable. See also People v. Campbell, 35

N Y 2d 227, 241, 360 N.Y.S. 2d 623, 636 (1974).

In holding that the instant non-fulfillable plea bargain

promise by prosecutors must be specifically enforced, the

Second Cireuit Court of Appeals relied on cases such as

United States v. Carter, 454 F. 2d 426 (4th Cir. 1972)

(en banc), cert. den. 417 U.S. 933, and Geisser v. United

States, 513 F. 2d 862 (5th Cir. 1975).

The Circuit Court in Carter held that a federal prosecu-

tor’s promise of immunity from federal prosecution outside

his jurisdiction must be upheld. In Geisser, the Justice

Department breached a plea bargain in which the De-

partment had promised the defendant parole after three

years imprisonment, a promise which the Department

had no power or authority to make. The Court of Ap-

peals was reluctant to interfere with integrity of the

parole process and declined to put its stamp of approval

on the District Court’s order of specific performance.

Instead, the Court remanded to the governmental units

involved for further consideration.

To the extent that Carter or Geisser support the deci-

sion of the Second Circuit Court of Appeals, in this case,*

those cases are incorrectly decided and conflict with the nil

effect given to ultra vires promises by the District of

Columbia Cireuit and Seventh Circuit in Gorham and

Long, respectively.

Specific performance of this ultra vires promise grossly

interfered with the lawful administration of justice in New

York State. As Judge Bartels noted in his dissent, the

ultra vires promise in this case was significant in that it

usurped the prerogatives and powers of (a) the New York

State Board of Parole, an agency completely independent

under New York law, and (b) the Richmond County prose-

eutor and Richmond County Court, neither of whom were

ever consulted in the plea bargain which was to so dras-

* Carter is inapposite to this case since it does not involve the

usurpation of jurisdiction and prerogatives of one independent unit

by another. The Court in Carter viewed the problem there as one

of poor internal management within the Department of Justice

rather than ultra vires promise. The Court in Geisser did not con-

elude that it could or would specifically enforce the promise. See

also Correale v. United States, 479 F. 2d 944 (Ist Cir. 1973)

(remedy for prosecutor’s recommendation of illegal sentence was

resentencing to specific term).

tically affect the judgment imposed in their jurisdiction.

The specific enforcement of such a promise obviously raises

grave questions of public policy, questions which received

no attention from either the majority in the Court of Ap-

peals or the District Court. The sovereign and its people

have an absolute right to have the administration of justice

conducted strictly in accordance with the law. The specific

enforcement of this purported promise destroys this right,

and, as the dissent notes, disrupts * 2 state administration

of justice.“

* Clearly, if any relief was warranted at all in this case, the

only correct course in the cireumstances was to remand the

to the state courts to determine the appropriate relief or attempt

an equitable solution. Indeed, such a remand is required by this

Court’s decision in Santobelio, and the failure of the courts below

to remand to the state courts was clear error. The error was

especially egregious in the circumstances of this case, since me oop

ing specific performance the courts below imposed an ac

have been left to the state courts to impose any illegal act on the

State. The state courts should be permitted to devise a solution

consistent with both ends of justice and the integrity of state law.

In the alternative, the courts below should have vacated the Queens

County guilty plea, as has been done in other cases involving ultra

vires plea bargain cases, e.g. United States v. 1.H. Hammerman II,

528 F. 2d 326 (4th Cir. 1975); Harris v. Superintendent, Va. State

Penitentiary, 518 F. 2d 1173 (4th Cir. 1975); and has been sug-

gested as the proper solution by this Court in Brady v. United

States, 397 U.S. 742, 755 (1970).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: New York, New York

January 13, 1977

Respectfully submitted,

Louis J. Lerxow1rz

Attorney General of the

State of New York

Attorney for Petitioner

Samus. A. HissHowrrz

First Assistant Attorney General

Ralrn L. McMurry

Assistant Attorney General

of Counsel

Appendix “A”.

UNITED STATES COURT OF APPEALS

For tHe Seconp Crcurr

Nos. 1341, 1342, 1343— September Term, 1975.

(Argued July 22, 1976 Decided November 1, 1976.)

Docket Nos. 76-2055, 76-2060, 76-2063

Tomas Patermo and SHetpon SaLtTzMan,

Petitioners-Appellees,

Wann, Green Haven Srarte Prison,

Respondent-A ppellant,

and

Russett Oswald, E. K. Jones, Jonn Don,

Ricuarp Roz, Joun O Cox xon,

Defendants-Appellants.

Before: 0

Warzeman and Mrszul, Circuit Judges, and

Bartets, District Judge.“

Appeal from a judgment of the United States Distriet

Court for the Southern District of New York, Griesa, J.,

granting a writ of habeas corpus because of prosecutoria!

nonfulfillment of a plea bargain and cross-appeal from the

earlier dismissal of a complaint against two other defend-

* Of the Eastern District of New York, sitting by designation.

Appendix 4

ants by the United States Distriet Court for the Southern

District of New York, Mansfield, J.

Affirmed.

Nancy Rosner, New York, New York, for

Appellee Palermo.

Harry L. Simmons, New York, New York, for

Appellee Saltzman.

Ralrn McMurry, Assistant Attorney General,

State of New York (Louis J. Lefkowitz,

Attorney General of the State of New York,

of counsel), for State Appellants.

Mrsxull, Circuit Judge:

In 1970, Thomas Palermo and Sheldon Saltzman, both

New York State prisoners, brought suit against a multitude

of officials seeking, inter alia, damages for alleged non-

fulfillment of a negotiated plea agreement and immediate

release from prison under 42 U.S.C. §§ 1983, 1985. Judge

Mansfield, then a district judge, held that the complaint

stated a valid claim against Parole Commissioners Russell

Oswald and Howard Jones and other parole commissioners

named as John Doe defendants, and against New York City

Police Detective John O’Connor. The district court dis-

missed the complaint as to Queens District Attorney

Thomas Mackell and Chief Assistant District Attorney

Frederick Ludwig for failure to allege sufficiently justifica-

tions to abrogate prosecutorial immunity. Palermo v.

Rockefeller, 323 F.Supp. 478 (S.D.N.Y. 1971).“ No final

judgment was entered as to the dismissed defendants. Five

? Plaintiffs then filed an amended complaint against these de-

fendants, which Judge Mansfield dismissed on July 26, 1971. The

case thus was left in the same posture as after the decision.

A ppendia 4

years later, on April 19, 1976, trial commenced on

Palermo’s habeas claim before Judge Griesa and on the

damage claim by both plaintiffs against the parole com-

missioners and Detective O’Connor before a jury. Upon

the trial’s conclusion on August 22, 1976, Judge Griesa held

that there was insufficient evidence to submit any of the

damage claims to the jury and dismissed the case against

Oswald, Jones and O'Connor.“ Granting Palermo’s appli-

cation for a writ of habeas corpus, the district court con-

cluded that the prosecuting authorities negotiated a plea

bargain in bad faith and failed to fulfill the promises made.

The court ordered Palermo’s unconditional release without

parole as the only meaningful form of relief.

On appeal, the State raises seven claims of error: (1)

that the findings of the district court that Palermo was

induced to plead guilty by representations not carried

out were clearly erroneous; (2) that the return of stolen

property was unlawful consideration which could not

support a plea bargain; (3) that Palermo materially

*In the interim, pursuant to the Supreme Court’s decision in

Preiser v. Rodriguez, 411 U.S. 475 (1973), plaintiffs’ § 1983 claim

for injunctive relief in the form of release from prison was treated

as a habeas corpus petition. The Attorney General of the State

tion, as a party defendant, of the Warden of Green Haven 8

Prison, where Palermo was incarcerated when the trial began.

* Plaintiffs consented to the dismissal against Oswald and Jones.

The district court also dismissed the action against all the John Doe

and Richard Roe defendants, the anonymous parole commissioners.

Appendix 4

breached his obligations by failing to return all of the

stolen property; (4) that any parole promises made were

ultra vires and not binding on the State; (5) that the relief

afforded was unlawful and inappropriate; (6) that the

dismissal in favor of Mackell, Ludwig and others should

have been entered nunc pro tunc; and (7) that the district

court abused its discretion in denying defendants Jones

and Oswald costs and attorney’s fees. In addition, Palermo

and Saltzman appeal from the 1971 dismissal of the dam-

age claim against Mackell and Ludwig. For the reasons

stated below, we affirm.

I. The District Court’s Findings.

The State contends that the findings of the district court

are clearly erroneous because it failed to consider critical

facts, primarily the extraordinary role played by Palermo’s

attorneys, and because it “chose to believe all plaintiffs’

witnesses and none of respondent’s witnesses.” The basic

chronology of events is not in dispute. On the morning

of February 17, 1969, several men robbed the Provident

Loan Society (“Provident”) in Queens County of several

millions of dollars worth of jewelry which had been pledged

by more than 2,000 Queens residents to the Provident as

collateral for loans. That same morning, Palermo and

Saltzman were scheduled for trial for an armed robbery

which previously had occurred in Richmond County. The

two men did not appear for trial until mid-day. In late

February, 1969, both men were found guilty of the Rich-

mond robbery, after a jury trial, and remanded to custody

pending sentencing in that case. After several adjourn-

ments, they still awaited sentence in May, 1969, by which

time they also had been arrested for the Provident robbery.

Saltzman admitted his role in the Provident robbery while

Palermo maintained he did not participate in that robbery.

Evidently, although there were various negotiations be-

Appendia 4

tween the Queens prosecutors and Palermo and Saltzman,‘

no agreement was reached before the Richmond County

sentence was imposed on June 27, 1969, at which time

Palermo received an indeterminate sentence with a maxi-

mum of twenty-five years and Saltzman received an inde-

terminate term with a fifteen year maximum. On July 6,

1969 Palermo and Saltzman began their term of incarcera-

tion in Sing Sing State Prison. On July 17, 1969, the two

inmates were brought from Sing Sing to the Queens House

of Detention for discussions about the Provident robbery

and the related charges against them pending in Queens

County.

At this point, to better assess the district court’s find-

ings, we turn to the testimonial evidence adduced at trial.

Palermo testified shortly after his return from Sing Sing,

* Palermo testified that there were three “deals” offered before

sentence was imposed in the Richmond County robbery. The first

offer, made at a meeting atiended by O’Connor, Queens Assistant

District Attorney os, Jacob Evseroff (Palermo’s attorney at

that time), William Smith (Saltzman’s attorney) and Palermo

and Saltzman, was for a ten year sentence in exchange for return

of the Queens County jewelry. Palermo’s reply was that he knew

nothing about that crime. Evseroff confirmed that such a meeting

was held. The Richmond Assistant District Attorney then ob-

tained an adjournment of the sentencing scheduled for that day.

On the next date set for sentencing, Evseroff communicated a

second offer of a seven year sentence for Palermo and five years

for Saltzman in exchange for the jewelry. Again Palermo ex-

eee SS ee eee Oe tee See eee

By the time of the third offer, Palermo had been arrested for the

Provident robbery and had learned that Saltzman was a partici-

t. Evseroff was no longer his attorney, having been replaced

Edward Bobick. Palermo accepted a deal which would entail

a five sentence for him, three years for Saltzman, a $100,000

from the Provident’s insurers and no prosecution for the

Provident robbery. This deal was not consummated when Queens

Assistant District Attorney Gaudelli, who had replaced Demakos

at the sentencing, to consent to leas than a seven year

term for Palermo, which Palermo would not accept.

Appendia “A”.

attorney Bobick' conveyed an offer, allegedly from Mack-

ell’s office, for reducing the Richmond robbery sentence to

seven years for Palermo and five years for Saltzman, with

parole after one year from the time they arrived in Sing

Sing, and a $100,000 reward from the Provident’s insurers

for return of the jewels. In additition, Palermo and Saltz-

man were to plead guilty to the Provident robbery and

receive suspended sentences or unconditional discharges.

Palermo indicated that this arrangement was acceptable to

him.

A few days later, Palermo received a visit from Detective

O’Connor, acting as liaison between Mackell’s office and the

inmates, and attorney Evseroff.° Evseroff stated that

Bobick had misrepresented the situation, since there could

be no resentencing in the Richmond case. Also claiming to

be the bearer of a deal from the prosecutor’s office, Ev-

seroff offered the following terms: no reduction of the

Richmond robbery sentence but parole in 18 months (from

the time of the original incarceration in February, 1969)

due to prosecutorial intercession with the Parole Board; a

suspended sentence or unconditional discharge on the Prov-

ident robbery charge; dismissal or unconditonal discharge

after a plea of guilty to a lesser offense for a pending

charge in Oneida County (the “Utica offense”) and dis-

missal of the Utica charge against two co-defendants; and

dismissal of an assault charge pending in Queens. Palermo

testified that he specifically asked O’Connor to determine

how the district attorney’s office planned to handle inter-

> Bobick represented both Palermo and Saltzman in the Provi-

dent — sg The law firm representing the Provident and

its insurer had promised Bobick a $25,000 fee if his aid resulted

in return of the jewelry.

0 roff had resented Palermo in the ichmond robbery

„ . to effect a return of tl jewelry because

of a $50,000 fee from the Provident’s insurer if the jewels were

returned.

Appendiz 664”

action with the Parole Board and the Oneida County au-

thorities. He received assurances from O'Connor that

Ludwig had made the proper contacts. Evseroff confirmed

in his testimony that Ludwig told him that the Parole

Board would arrange an early parole for Palermo if Lud-

wig so recommended ; according to Evseroff, “early parole”

meant parole after one year in Sing Sing. Palermo con-

ferred again with Bobick, who reaffirmed his bargain and

told Palermo to check it out with Norman Rein, an attorney

with the law firm of Rein, Mound & Cotton, which firm had

been retained by the Provident and its insurer. On October

10, 1969, two members of the Rein firm, Arthur Brook and

Eugene Leiman, and Detective Caparell, representing the

Queens District Attorney’s Office, met with Parole Com-

missioner Jones. While the specifics of that conversation

are unclear, it appears that, at the least, Commissioner

Jones indicated that the Parole Board would consider the

request for early parole, although no commitment could

be made. On October 24, 1969, at a meeting attended by

O’Connor, Rein, and Bobick, Palermo testified that he

accepted a deal with the following terms: parole on the

Richmond sentence after one year, a $100,000 reward from

the insurers; a suspended sentence or unconditional dis-

charge after a plea of guilty to the Provident robbery;

dismissal of the assault charge in Queens; disposition of

the Utica charge by Palermo’s plea of guilty to a misde-

meanor, and dismissal as to two co-defendants. Later that

afternoon, Bobick, Rein and O’Connor returned to tell

Palermo that Mackell would not consent to the $100,000

payoff by the insurer. Palermo said that he then accepted

the deal without the reward.

Once released, Palermo was taken to Ludwig’s office; he

testified that the Chief Assistant then personally confirmed

the above described terms. Palermo made several phone

calls and took detectives to a parked car where $4,000,000

Appendic 4

worth of jewelry was found. After the recovery of the

jewelry, Mackell issued a press release describing the

“largest recovery of stolen property in the history of law

enforcement” as a result of “painstaking negotiations by

his office. On April 16, 1970, Palermo entered a guilty plea

to the Provident robbery. He also pleaded guilty to a mis-

demeanor in the Utica case, receiving an unconditional

discharge. The Queens assault charge ultimately was dis-

missed. After one postponement, on June 3, 1970, Palermo

appeared before the Parole Board for his minimum period

of imprisonment hearing. Mackell had written a letter to

Russell Oswald, Chairman of the Parole Board, the perti-

nent part of which stated:

Solely because of the cooperation of [Palermo], prac-

tically all of the property taken in that robbery was

recovered. In negotiating the return of this property,

my office firmly committed itself to use all means law-

fully possible to assure lenient treatment to the of-

fender.

Norman Rein also wrote a letter to the Parole Board which

stated in pertinent part:

Without the active assistance of Thomas Palermo,

the recovery of this enormous amount of property. . .

could not have been effected. On the day of the re-

covery, Mr. Mackell asserted that he would do every-

thing within his power to bring to the attention of the

Board of Parole the help that Palermo had given

in effecting this recovery and, since that time, Mr.

Mackell has repeated that promise.

For Palermo’s efforts I most earnestly and re-

spectfully urge that the Board grant Palermo the ut-

most consideration and leniency when he appears

before it. I would call to your attention the fact that

Appendix s

Palermo has received no money or reward of any

kind for his part in the recovery. He has received,

however, the promise of Mr. Mackell and myself that

we would urge your Board to fix the minimum possible

time that Palermo will have to serve in jail.

Prior to this apparent support from Mackell, however,

on December 15, 1969, John J. MeCarthy of the Bureau of

Special Services, whose duties ineluded investigations of

serious offenders under the aegis of the division of parole,

testified that he received a telephone call from Ludwig

about the Palermo case. MeCarthy stated that he expressed

his opinion to Ludwig that Palermo did not merit con-

sideration of any type by any agency because of his serious

criminal record. According to McCarthy, Ludwig expressed

agreement with this viewpoint and analogized Palermo to

Murf the Surf, a recipient of lenient treatment after the

return of stolen property, who then committed a violent

crime. McCarthy’s memorandum summarizing this con-

versation was placed in several institutional files and circu-

lated to various Parole Board members. After the hearing,

the Parole Board set a six year minimum term of incarcera-

tion hefore Palermo’s case again would receive parole con-

sideration."

Chief Assistant District Attorney Ludwig testified that

there was an agreement reached about the Provident

robbery case, the terms of which were entrance of a plea to

a lesser charge and a recommendation of lenient treatment

to be made in open court. Although Ludwig stated that

he indicated that in all probability this recommendation

* Similarly Saltzman’s minimum term was set at five years. On

September 30, 1970, still before imposition of sentence in the Provi-

dent case, Palermo moved to withdra w his guilty plea in state

10a

Appendiz ‘‘A’’.

would be followed, he did not guarantee the outcome. In-

sofar as parole was concerned, Ludwig testified that his

office promised to use its best efforts to obtain maximum

leniency from the Parole Board. District Attorney Mackell

stated that no one from his staff was authorized to com-

municate an affirmative commitment from Justice Farrell

to impose a suspended sentence in the Provident case. He

acknowledeged that he had promised to make a great effort

and “career” of getting Palermo utmost lenience from the

Parole Board. He noted that the letter he wrote on behalf

of Palermo constituted extraordinary intercession on his

part, since he took such action only twice a year at most.

Eugene A. Leiman, an attorney with the Rein firm, also

actively participated in the plea negotiations. Regarding

the negotiations about the Utica charge, Leiman testified

that he became increasingly distressed because he kept

getting different versions of the same conversations from

negotiators from the prosecutor’s office. He expressed a

similar reaction to discussions about the Provident robbery

charge. Finally, he spoke to Ludwig privately about

whether there was any commitment for a suspended

sentence in the Provident case from Justice Farrell. Lud-

wig replied that he had spoken to the judge privately and

was dead sure. Leiman then spoke to Assistant District

Attorney Demakos who said that, as far as he knew, there

was no commitment in hand. Leiman attempted to clarify

the situation by drafting a letter to go directly to Mackell.*

* This letter, signed by Norman Rein and sent to Mackell on

April 3, 1970, reads as follows in pertinent part:

Dear Mr. District Attorney :

Because of the sensitive nature of the contents of this letter,

I am—perhaps out of excessive caution—having it delivered

“for your eyes only.”

(footnote continued on following page)

lla

Appendiz ‘‘A’’.

In a memorandum dated March 30, 1970, Leiman sum-

marized his negotiating relationship with the prosecutors

about the Provident plea and sentence as follows:

(footnote continued from preceding page)

You will also remember that, in return, Palermo was as-

sured of and promised certain specific assistance and considera-

tion in connection with particular criminal charges.

The first of these concerns Palermo’s conviction and sen-

tence for robbery in Richmond County, as a result of which

he was sentenced to an indeterminate term in State Prison not

to exceed 25 years. With respect to this, you forthrightly

stated several times, to me, to my partner, Arthur N. Brook,

and to Palermo’s attorney, Edward Bobick, that you would

“make it a career” to see that Palermo would serve the mini-

mum possible sentence and that, to that end, you would ap-

pear before the State Parole Board when Palermo first “met”

the Board, and make a strong recommendation to that effect

in his favor. I restated this to Palermo, the last time on the

very day when the recovery was effevted. We understand that

Palermo is scheduled 1. appear before the Parole Board when

it meets in Sing Sing Prison on April 28-30, 1970, and I there-

fore assume I can rest easy that this commitment will be ful-

filled to the letter.

The second area of concern is the disposition of the still

open indictment pending in Queens County against Palermo

as a result of the Provident Loan Jamaica Branch robbery.

As you know, Palermo was given assurance by your good

office that his charge would be “taken care of” if the property

in question were returned. Just how this indictment would be

“taken care of” was the subject of many conversations be-

tween your Chief Assistant, Mr. Frederick J. Ludwig, and my

partner, Eugene A. Leiman, an old colleague of Mr. Ludwig

in District Attorney Frank Hogan’s office. It was our under-

standing that Palermo’s case was before Judge Farrell, that

Judge Farrell had advised Mr. Ludwig that, if the District

Attorney would so recommend, he would impose a sentence,

upon Palermo’s plea of guilty, that was either ed or

would be “time served” so that, in no event wo Palermo

have to serve anz more time than that fixed the Parole

Board. Mr. Ludwig advised Mr. Leiman that had made

such a recommendation to Judge Farrell, in an informal “off

the record” discussion of the matter with the Judge and that,

(footnote continued on following page)

12a

Appendiz ‘‘A’’.

The difficult [sic] is that even if I get a commitment

by telephone on one day, everybody in the Queens

D.A.’s office conveniently forgets it the next. I have

gotten to the point where I simply do not believe any

oral statements emanating from that office.

After hearing the evidence, the district court concluded

that Palermo and Saltzman were induced to plead guilty

to the Provident robbery charge by representations made

to them by Ludwig and O’Connor that they would receive

parole after one year in prison; that Mackell knew of the

(footnote continued from preceding page)

therefore, were Palermo to plead guilty, he would have “noth-

ing to worry about”.

Recently, however, your Mr. Thomas Demakos who, strictly

speaking, has jurisdiction over Palermo’s case, has advised us

that, so far as he Judge Farrell has indicated no more

than that any sentence he may im on Palermo would run

“concurrent” with the Richmond ty sentence—which is,

of course, a far cry from what we were led to believe would

actually hap

Without being in the slightest sense critical of either Mr.

Ludwig or Mr. Demakos—both of whom we hold in the highest

esteem—it would seem that there is somewhat of a dichotomy

in the matter between them.

You alone ean resolve that apparent conflict in your staff

and, in line with your previously expressed attitude, can re-

solve it in favor of urging extreme consideration for Palermo.

Palermo’s case in your County has been adjourned to April 8,

when he will again appear before Ju Farrell. We under-

stand that if the type of sentence that Mr. Ludwig previously

recommended is then available, Palermo will make a disposi-

tion of his indictment.

I realize that you have many perhaps more important mat-

ters that make current d on your time and attention.

Yet, in the circumstances, I sincerely believe that this matter,

which involves no more than honoring a commitment to a

convicted robber for helping your office recover stolen prop-

erty ing to over 2,000 residents of your County is, con-

sonant with the way you have enhanced the dignity and pres-

tige of your office, still worthy of your personal attention and

consideration.

13a

Appendix 14

specific commitments made about parole; that Ludwig and

Mackell knew they had no such assurances from the Parole

Board; and that Mackell clearly violated his agreement to

take all possible steps to achieve an early parole for

Palermo and Saltzman. In short, the district court con-

cluded that the plea bargain was negotiated in bad faith

by the prosecutors and that it was not carried out.

Appellate review of findings of fact is limited to a

determination of whether those findings are ‘‘clearly

erroneous,” giving due regard . to the opportunity of

the trial court to judge of the credibility of the witnesses.

Fed. R. Civ. P. 52(a). ‘‘A finding is ‘clearly erroneous’

when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” United

States v. United States Gypsum Co., 333 U.S. 364, 395

(1948). Where findings relate to the design, motive and

intent behind human actions, they especially depend upon

the credibility assessment of witnesses by those who see

and hear them. United States v. Yellow Cab Co., 338 U.S.

338, 341 (1949); Caputo v. Henderson, slip op. 5357, 5367

(2d Cir. September 3, 1976) ; United States ex rel. Wissen-

feld v. Wilkins, 281 F.2d 707, 713 (2d Cir. 1960). Thus, an

appellate court, equipped only with a “cold” record, is

appropriately reluctant to reject the credibility evaluations

of the district court.

The State challenges the district court’s findings on the

ground that it failed to consider critical facts, primarily

the extraordinary role played by Palermo’s attorneys

Evseroff and Bobick. The State essentially contends that

because both men would receive a fee from the Provident’s

insurer if the jewels were returned, they had a clear motive

to make whatever representations would inspire Palermo

to return the jewels. In addition, the State argues that the

attorneys had a duty independently to verify the parole

14a

Appendiz “‘ 4

promise with the Parole Board itself. Finally, the State

asserts that “it is clear Palermo was hardly the most

credible witness’’ worthy of total belief by the district

court.

We conclude that there was substantial evidence to sup-

port the district court’s finding of prosecutorial bad faith

in negotiations and nonfulfillment of the plea bargain.

Whether or not there was a specific guarantee of parole

after one year, negotiations for the return of the jewels

certainly included achieving minimum incarceration for the

Richmond robbery through the intercession of the district

attorney’s office in parole proceedings ; minimum incarcera-

tion in this case would have constituted a one year term.

The evidence also showed that the prosecutor’s office did

not use even its best efforts to achieve utmost lenience

from the Parole Board for Palermo and Saltzman. John

McCarthy’s testimony about his conversation with Ludwig,

memorialized in a memorandum circulated to several

Parole Board members, certainly brings into question the

diligence with which the prosecutors intended to fulfill

their part of the bargain. Although Mackell did write a

letter to the Parole Board, the recommendation of ‘‘lenient

treatment” in that letter represented only a feeble effort

to fulfill Mackell’s commitment to make a “career” of

achieving utmost lenience, especially when compared to

Rein’s letter written for the same purpose. Notably, Rein

also offered to appear personally before the Board. While

the Board does not permit third parties to appear at the

hearing itself, special meetings can be scheduled upon

request. Commissioner Oswald testified that the Distr'et

Attorney’s office had never requested such a meeting. There

is also the testimony of Eugene Leiman, who participated

in the negotiation phase, which reflected his frustration

about the firmness of any oral commitment from the district

attorney’s office. Finally, there are the contradictions, too

numerous to mention, between testimony from the pros-

15a

Appendia 4

ecutors and related staff and from other witnesses.’ After

consideration of the entire record, we simply cannot fault

the credibility assessments made by the district court or

conclude that its findings were erroneous, much less clearly

erroneous.”

II. Enforcement of the Plea Bargain.

The State raises three arguments grounded in contract

law which dispute the validity of the negotiated agree-

ment. First, the State contends that stolen property can-

not serve as consideration for a bargain. The State also

asserts that Palermo materially breached the bargain by

failing to return all of the jewelry. Finally, the State

claims that any parole promise was outside the scope of

prosecutorial authority and not binding on the State.

Although we noted last term that principles of contract,

evolving as they do from the commercial world, are ‘‘in-

apposite to the ends of criminal justice,’’ United States

ex rel. Selikoff v. Com. of Corr., 524 F.°d 650, 654 (2d Cir.

1975), this Court has not previously examined the extent

to which the contractual defenses would be applied to plea

bargaining in the criminal justice system." Guiding our

* For example, Ludwig testified that he had not communicated

any commitment from Justice Farrell as to sentence in the Provi-

him

Bobick helps the State’s argument, since it might only raise a fur-

ther claim of ineffective assistance of counsel. We cannot condone

In United States v. Boulier, 359 F . 165 (E.D.N.Y. 1972),

af d. sub nom. United States v. Nathan, 476 F.2d 456 (2d Cir.),

(footnote continued on following page )

16a

Appendia 4

analysis is the Supreme Court's recognition of plea bar-

gaining as “an essential component of the administration

of justice. Properly administered, it is to be encouraged.”

Santobello v. New York, 404 U.S. 257, 260 (1971). The

Court further stated, however, that the plea bargaining

process must be “attended by safeguards to insure the

defendant what is reasonably due in the circumstances.’’

Id. at 262.

The first contractual defense raised is that the return

of the jewels is unlawful consideration because Palermo

had no legal right to conceal or withhold stolen property.

The State analogizes the instant agreement to one made

with kidnappers who hold hostages at the time the ransom

is negotiated. We believe the facts of this case render the

analogy inappropriate and that the State should be es-

topped from raising this defense at such a late date.

The State claims that the district court’s decision sancti-

fies the return of some of the stolen loot and defies the basic

purpose of law. We do not agree. It must be remembered

that Palermo claimed that he was innocent of the Provident

robbery throughout the bargaining. That bargaining was

(footnote continued from preceding page)

cert. denied, 414 U.S. 823 (1973), the district court denied the

defendant’s motion to dismiss an indictment for two reasons: the

defendant had failed to fulfill his part of a plea bargain and the

Assistant United States Attorney possessed the authority to bind

only his own district in plea agreements. On appeal, this Court

affirmed on the first ground and explicitly did not rule on the

authority of one United States Attorney to bind another or on

proper for a defendant who has been deceived. 476 F.2d

at 459. In United States ex rel. Selikoff v. Com. of Corr., supra,

we found that no unconditional sentencing promises had been made

process

remedied by repleading. Finally, in United States v. Papa, slip

op. 2977, 2993 (2d Cir. April 2, 1976) and United States v. Alessi,

slip op. 4781, 4810 (2d Cir. July 7, 1976), our decisions rested

upon the terms of the plea bargain involved, which we found did

not bar the contested prosecution.

17a

Appendix 4

initiated by the Queens prosecutors when Palermo and

Saltzman were in jail for an unrelated crime. Although

the parties extensively negotiated what benefits would ac-

crue to Palermo and Saltzman, the prosecutors’ objective

at all times was effecting the return of the jewels. In addi-

tion, it must be remembered that, as part of the bargain,

Palermo pleaded guilty to the Provident robbery and the

Utica charge. Furthermore, at no time during the negotia-

tions or after Palermo had achieved the return of the goods

did the prosecutors express any dissatisfaction with the

jewelry serving as consideration for the bargain. Indeed

that office widely publicized its success in ‘‘painstaking[ly]

negotiat[ing]” the return of the stolen property.

The cases cited by appellants to support their argument

are inapposite, involving bargains negotiated under extreme

duress, United States v. Gorham, 523 F.2d 1088 (D.C. Cir.

1975) (promise of immunity from prosecution given by

hostage being mistreated during prison riot), or civil law-

suits for specific performance of a contract solicited by a

wrongdoer, Stamatiou v. United States Gypsum Co., 400

F.Supp. 431 (N.D. III. 1975) civil suit for specific per-

formance by plaintiff who first committed theft under state

law and then proposed bargain with owner for return of

property). Thus, whether by notions of fundamental fair-

ness or contract principles of estoppel, we must reject

the State’s belated and rather disingenuous challenge to

the consideration used to support the bargain.

The State’s assertion that Palermo materially breached

the terms of the bargain by not returning all of the stolen

jewelry is equally unpersuasive. We first note that evi-

dently the amount and value of the property stolen was

*The equity doctrine of estoppel prevents disavowal of a con-

tract after one party in good faith relies to his own detriment on

the representations of the other. 1 S. Williston on Contracts,

§§ 139-140 (3d Ed. 1975 Supp.).

18a

Appendic 4

never precisely determined. Moreover, in both its press

release and its letter to the Parole Board, the distriet

attorney’s office indicated no dissatisfaction with the extent

of the recovery.

The State finally argues that, assuming the Queens

District Attorney did promise parole to Palermo on the

Richmond County sentence, this promise was ultra vires

and not binding on the State. Acknowledging the general

proposition that prosecutors must keep promises, the

State nevertheless contends that it can dissociate itself

from a promise if the prosecutor lacked the authority to

make the commitment in question. We disagree.

Santobello v. New York, supra, 404 U.S. at 262, estab-

lished that “when a plea rests in any significant degree on

a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such

promise must be fulfilled.” Resting on principles of fair-

ness in securing such an agreement and the adjudicative

element inherent in accepting a plea, Santobello focused

on an “appropriate recognition of the duties of the

prosecutor in relation to promises made” in plea negotia-

tions. Id. Neither the inadvertence of the breach nor its

possibly harmless effect“ obviated the need for remand to

the state court for appropriate relief.

Clearly, then, Santobello requires relief when the pros-

ecutor fails to fulfill promises within his power made in

negotiating a plea bargain. United States v. Brown, 500

F.2d 375 (4th Cir. 1974); United States v. Ewing, 480 F. 2d

1141 (5th Cir. 1973). We believe that the reasoning underly-

ing Santobello applies no less when the prosecutor makes

unfillable promises in negotiating a plea. Most impor-

tantly, the voluntariness of a plea induced by unfulfillable

promises is, of course, open to grave doubt. In Brady v.

The sentencing judge stated that he had not been influenced

by the prosecutor’s recommendations.

19a

A ppendia *

United States, 397 U.S. 742, 755 (1970), the Supreme Court

declared that a guilty plea induced by misrepresentation,

including unfulfilled or unfulfillable promises, could not

stand. Additionally, fundamental fairness and public

confidence in government officials require that prosecutors

be held to “meticulous standards of both promise and per-

formance.” Correale v. United States, 479 F.2d 944, 947

(Ist Cir. 1973). Thus, the courts have afforded relief where

prosecutors have made specific sentencing promises which

were unfulfillable, since sentencing lies totally within the

court's discretion, United States v. I. H. Hammerman II,

528 F. 2d 326 (4th Cir. 1975); Harris v. Superintendent, Va.

State Penitentiary, 518 F.2d 1173 (4th Cir. 1975); Correale

v. United States, swpra, or where one federal prosecutor

promised immunity from federal prosecution outside his

own jurisdiction, United States v. Carter, 454 F.2d 426

(4th Cir. 1972) (en banc), cert. denied, 417 U.S. 933

(1974).“ Geisser v. United States, 513 F.2d 862 (5th Cir.

1975) involved breach of a Department of Justice plea

bargain which entailed, in part, a promise of parole after

three years imprisonment. On appeal, the Department

argued that the district court usurped the exclusive power

of the Parole Board by ordering,release. The Court of

Appeals, although it remanded the case for a determination

of what the Parole Board would do when informed of the

bargain,” concluded that such a bargain “fits well within

the realm of enforceable constitutional rights 513

F. 2d at 869 n.11. We agree and hold that where a defend-

™ United States v. Long, 511 F.2d 878 (7th Cir.), cert. denied,

423 U.S. 895 (1975), considered a different issue. That case in-

volved promises of immunity from federal prosecution made by a

state agent. The issue on appeal was whether an agency relation-

ship existed so that the state agent bound the federal authorities.

In the instant case the Parole Board knew about the plea

bargain before determining the minimum period of incarceration.

20a

Appendir 4

ant pleads guilty because he reasonably relies on promises

by the prosecutors which are in fact unfulfillable, he has a

right to have those promises fulfilled.”

The district court determined that specific performance

of the plea bargain would constitute the only meaningful

relief in the context of this case. The court found that if

the agreement had been fulfilled, Palermo would have been

released from prison in August, 1970, and the five year

parole supervision period would have expired in 1975.

Since both of these time periods had passed, the court or-

dered Palermo’s unconditional release. The State argues

that the proper remedy would have been remand to the

state court for vacatur of the Provident robbery plea.

In Santobello, the Supreme Court listed the possible

remedies as either specific performance of the agreement

or vacatur of the plea, the choice to be a discretionary one

guided by the circumstances of each case. 404 U.S. at 263.

Where appropriate, the courts have not hesitated to man-

date specific performance of the agreement. Correale v.

United States, supra; Harris v. Superintendent, Va. State

Penitentiary, swpra. We cannot conclude that the district

court erred in determining that specific performance was

the proper remedy in this case. Palermo had already been

incarcerated for the entire promised prison sentence and

parole term. Remand for withdrawal of the guilty plea

would indeed have been meaningless, as the court below

found.

III. Other Claims.

Appellees contest the 1971 dismissal of the damage ac-

tion against prosecutors Mackell and Ludwig. We find

** Appellants cite a multitude of civil contract cases involving

an ultra vires defense, which cases rest on totally different policy

considerations than those which underlie plea bargaining in the

criminal justice system.

2la

Appendic 4

this case to fall within the purview of the Supreme Court's

recent decision in Imbler v. Pachtman, 424 U.S. 409 (1976)

and affirm the dismissal.

Finally, we cannot say that the district court abused its

discretion in denying attorney’s fees and costs to Jones and

Oswald. Fed. R. Civ. P. 54(d).

We affirm the decisions of the district court on both the

appeal and cross-appeal.

Barres, District Judge (dissenting) :

As stated by Chief Judge John R. Brown in Geisser v.

United States, 513 F.2d 862, 863 (5th Cir. 1975), „[t ]his

is an extraordinary case calling for extraordinary action.”

In this habeas corpus proceeding, originally instituted as

a 42 U.S.C. § 1983 action, the majority expands the juris-

diction of a district attorney of one county to (i) bind the

Board of Parole of the State of New York (ii) emasculate

an indeterminate sentence with a maximum of 25 years

previously imposed upon the petitioner, Palermo, by a

state court in another county, and (iii) substitute there-

for a one year sentence plus a five year period of parole

supervision. The predicate for this result is a breach of

a promise or commitment made by Queens County district

attorney Mackell and his chief assistant Ludwig to carry

out that part of a plea bargain promising Palermo early

parole on a Richmond County conviction which induced

him to plead guilty to a Queens jewelry theft and return

$4 million worth of stolen jewelry, over which Palermo

obviously had control. It was also provided in the agree-

ment that Palermo would receive a discharge or suspended

sentence for the Queens County plea of guilty, a dismissal

of an assault charge pending in Queens County, and a

disposition of an Oneida County charge which consisted

of a plea of guilty by Palermo and a dismissal as against

22a

Appendiz ‘‘A’’.

two codefendants. All parts of the agreement were per-

formed except the parole promised Palermo after one

year incarceration under the Richmond County sentence.

The facts are set forth in detail in the majority opinion,

which in turn is based upon the findings of the district

court. From these facts the precise nature of the pros-

ecutor’s commitment is unclear as to whether it was a

firm or “best efforts” commitment to obtain Palermo’s

parole. In all events, it is clear that neither the Parole

Board nor Parole Commissioner Jones made any commit-

ment to anyone other than to give consideration to a peti-

tion for early parole. By releasing Palermo who was

serving a sentence of up to 25 years imposed by the Rich-

mond County court, the majority enforces a promise by

Mackell for early parole even though it would seem ques-

tionable to the ordinary, reasonable man whether such a

promise when made was within the power, authority or

jurisdiction of the district attorney of Queens County.

Indeed, Paiermo himself, was suspicious and asked for

assurances that the parole promise would be performed.

In this frame of reference, I join in the majority’s

condemnation of the prosecutorial misconduct in making

commitments and representations that were knowingly

false in that Mackell and Ludwig had no assurance at

any time from the Parole Board regarding Palermo’s

parole. Courts prohibit such prosecutorial misconduct

from depriving a defendant of his constitutional rights

and accordingly order relief, if possible, in the nature of

specific performance of the prosecutor’s promise, or in the

alternative, the withdrawal of the defendant’s guilty plea.

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

Prosecutorial Promises Involving Other Jurisdictions

In a case of this kind, however, release of a defendant

under the guise of specific performance of an unauthor-

ized and in fact, an unfulfillable promise by the district

attorney disrupts the state administration of justice and

23a

Appendir 4

usurps governmental agencies outside of the jurisdiction

or authority of the prosecutor. See United States v. Long,

511 F.2d 878 (7th Cir.), cert. denied, 423 U.S. 895 (1975);

United States v. Boulier, 359 F. Supp. 165 (E.D.N.Y. 1972),

af d on other grounds sub nom. United States v. Nathan,

476 F.2d 456 (2d Cir.), cert. denied, 414 U.S. 823 (1973).

In this case it appears that streetwise Palermo, who knew

the whereabouts of several million dollars worth of stolen

jewelry, assuming that he is not guilty of the theft, was

able to extract from the prosecutor an unauthorized prom-

ise not binding upon other independent governmental

agencies or jurisdictions of the government, and thereby

obtain immediate release because those independent au-

thorities failed or refused to perform a promise they never

made. The dis.rict attorney of Queens County operates

within specified geographic jurisdictional boundaries,’ and

consequently he has no justification for proseribing the

authority and obligations of the district attorney elected’

in Richmond County, nor of the New York State Board

of Parole which is the sole body charged by law with de-

termining who shall be released among inmates serving

indeterminate sentences, and under what conditions.“

N. V. County Law § 700(1) (McKinney’s 1972); N.Y. Criminal

Procedure Law § 20.40 (McKinney’s 1971); People v. Dorsey, 176

Mise. 932, 29 N.Y.S.2d 637 (Queens Co. Ct. 1941); Nadjari, New

York State’s Office of the Special Prosecutor: A Creation Born of

Necessity, 2 Hofstra L.Rev. 97, 112-14 (1974).

2 N. V. Constitution Art. 13, §13(a) (MeKinney's Supp. 1975-

76).

N. V. Correction Law § 210 (Me Kinney's Supp. 1975-76); Peo-

ple ex rel. Washington v. La Fallee, 34 App. Div. 2d 603, 308

N. V. S. 2d 628 (3d Dep't), motion for leave to appeal denied, 27

N.Y.2d 481, 312 N.Y.S.2d 1025 (1970); People ex rel. Smith v.

Deegan, 32 App.Div.2d 940, 303 N.Y. 2d 789 (2d Dep’t 1969).

In order to parole a prisoner the Board of Parole must be of the

opinion that ‘‘there is reasonable probability that, if such prisoner

(footnote continued on following page)

Appendir 4“

Therefore, it would seem to me that instead of releasing

the defendant forthwith as though he had been placed on

parole, consideration must be given to fashioning a remedy

which is more in harmony with the fundamental struc

tures and principles of state and federal governments.

Here, the alternative of permitting Palermo to withdraw

his guilty plea is under the circumstances meaningless, and

moreover, under no circumstances could the prosecutor re-

turn to the thief or his accessory $4 million worth of

jewelry. Therefore, we are faced with the dilemma of be-

ing unable to effectuate a form of specific performance of

the proseentor’s promise or to place Palermo back in the

status quo, which to say the least was tainted with illegality.

Mackell, unlike prosecutors in the usual case whose in-

terest is to obtain testimony for pending prosecutions, was

acting under duress to retrieve the stolen jewelry deposited

as collateral for loans by thousands of Queens residents.

In exchange for his promise to return the jewelry Palermo

succeeded in extracting from Mackell ultra vires promises.

The majority, I believe, dismisses too quickly the reason-

ing in United States v. Gorham, 523 F.2d 1088 (D.C. Cir.

1975), in which a prison director held hostage by inmates

promised there would be no repisals or court action

against the inmates. The Gorham court stated that even

if the promise had been made with authority, it was void-

able since, among other reasons, it was induced by duress.

Palermo’s refusal to divulge the identity or location of

those who possessed the stolen jewelry violated the law“

(footnote continued from preceding page)

is released, he will live and remain at liberty without violating the

law, and that his release is not incompatible with the welfare of

society. N.Y. Correction Law § 213 (McKinney’s Supp. 1975-76).

Palermo was required to disgorge or divulge the whereabouts

of the jewelry prior to, and apart from any agreement with the

district attorney. N.Y. Personal Property Law § 252 (McKinney’s

1976); N.Y. Penal Law §§ 205.50(1), (4), (5), 205.55 & 205.60

(McKinney’s 1975).

25a

Appendic 4

and subjected the prosecutor to a form of duress, render-

ing the promise unenforceable at least as far as equitable

relief is concerned. Therefore, referring to specific per-

formance involving immediate release, he does not stand

in the same shoes as those, who, for instance, under a plea

bargain agree to cooperate and testify to assist the gov-

ernment in obtaining convictions of other defendants.

It is true that the courts do hold a prosecutor not only

to promises which may be fulfilled, but also to some of

those which are unfulfillable. But in all such cases the

unfulfillable promise was not specifically enforced retro-

actively against other independent agencies or jurisdic-

tions. The majority relies upon cases which I believe do

not support the relief of immediate release. Though Brady

v. United States, 397 U.S. 742, 755 (1970), does assert, in

dicta, the proposition that an unfulfillable promise by a

prosecutor which induces a plea of guilty constitutionally

taints that plea, the Court does not purport to distinguish

among the several categories of unfulfillable promises nor

does it specify the appropriate relief to be granted. Santo-

bello, supra, cited as authority for granting immediate

release in this case as specific performance, is inapposite

since Santobello concerned a direct appeal involving a

single criminal conviction in one jurisdiction. The Santo-

bello Court did not mandate the relief granted here where

the prerogatives and responsibilities of other agencies and

public officials are implicated by ex post facto interference

by a powerless district attorney making unauthorized

promises.

Similarly, I do not believe that United States v. Carter,

454 F.2d 426 (4th Cir. 1972) (en banc), cert. dented, 417

U.S. 933 (1974), is apposite. There, a federal prosecutor

in the District of Columbia allegedly promised that no

criminal charges would be brought in any jurisdiction

concerning a group of stolen checks other than a mis-

26a

Appendiæ .

demeanor charge for which the defendant was pleading

guilty. Nevertheless, a criminal indictment was later

brought in the Eastern District of Virginia, and the court

of appeals in that case, by its own decision, determined

that it would honor the promise by the prosecutor in the

District of Columbia. Here, however, the promise con-

cerned a previous conviction for an unrelated crime and

none of the concerned authorities who possessed the power

to grant the promised relief ever promised the relief.

Remedy

The question then is what is the appropriate relief under

the circumstances. Other courts in the past have faced

similar problems. In Geisser v. United States, supra, the

federal government entered into a plea bargain with the

defendant providing that if she pleaded guilty and pro-

vided indispensable evidence against others she would not

be confined for more than three years and the government

would use its best efforts“ to prevent her deportation to

Switzerland or France following incarceration. She then

sought habeas relief since there was an outstanding war-

rant for her deportation to Switzerland, and the federal

Board of Parole failed to honor the government’s commit-

ment concerning the three year limit of incarceration. The

Nepartment of State and the Board of Parole were not

informed of the bargain, and when the petitioner applied

for parole the Department of Justice disavowed the agree-

ment and actively opposed parole and the Board of Parole

denied the request. On the habeas petition, the district

court granted immediate release, and the court of appeals

vacated the lower court’s decision and remanded, stating

at 513 F.2d at 869:

»The court of appeals assumed a best efforts romise, though

> district court found an absolute commitment. 13 F. 2d at 869,

Appendix “A”.

We recognize that in a structure of independent quasi-

ad judicative agencies within an Executive department

there is and should be no hierarchical intrusion into

the exercise of administrative discretion. At the same

time, that agency needs to be advised in positive terms

of the agreements made, the consequences of which

were (i) rich in terms of the public interest and (ii)

of constitutional consequences to the bargainee if not

honored.

and again at page 871:

Sharing as we do the Government’s concern about

judicial intrusion into the parole process, we defer

until after remand whether we would put our stamp

of approval on the District Judge’s order which in

effect releases Bauer at the end of the reconstructed

three-year term.

The Geisser court ordered resubmission of the parole

request to the Board and then provided that if the peti-

tioner was not released on parole the district court “shall

conduct further hearings after allowing fullest discovery

on all issues and particularly on the question of just what

has been done with the promise ‘to use our best efforts’

and the reason why, if any, steps have not been taken or

why they have been ineffectual.” Jd. at 872.

In United States v. Carter, supra, Judge Boreman dis-

sented upon the ground that Carter was not entitled to

the relief sought under any theory, reasoning that “the

United States Attorney’s office for the District of Colum-

bia could not exter into a valid plea bargaining agreement

to bind the district court and the federal prosecutor in

another jurisdiction with respect to separate and wholly

different crimes committed outside the District of Colum-

bia.” Id. at 431. Among other things, Judge Boreman

stated that [the executive officials and courts of the

28a

Appendix 4

Eastern Distriet of Virginia should not be prevented from

seeking to punish crimes victimizing the people of that

district because an official elsewhere has overstepped the

limits of his power.” Id. He suggested as a remedy that

Carter move for a reduction of sentence in Virginia, or

else that he be considered for executive clemency.

For the reasons above indicated I do not believe that

our “zeal to right the wrongs of prosecutorial excess,”

Martin v. Merola, 532 F.2d 191, 198 (2d Cir. 1976) (sep-

arate statement of Gurfein, J.), should induce us to grant,

in effect, specific performance of an unauthorized and un-

fulfillable promise involving the intrusion into the exer-

cise of administrative discretion of a wholly independent

agency. For such excesses other remedies such as removal

of the prosecutor from office are available. N.Y. Consti-

tution Art. 13, §13(a) (MeKinney's Supp. 1975-76). Since

the stolen property cannot be returned to Palermo a form

of rescission is impossible. I am not too disturbed by this

fact since Palermo had no interest in the property and

had an obligation to return it in the first place. While a

completely equitable solution may not be possible under

the circumstances, I would do the next best thing by per-

mitting Palermo to withdraw his Queens County plea of

guilty if he so desires, for whatever it is worth, and at

the same time I would construe the promise made of early

parole as a “best efforts” promise. I would direct the

present Queens County district attorney to make every

effort on behalf of Palermo before the Parole Board to

obtain such early parole. This result would recognize the

sovereignty of the Board and probably grant Palermo a

significant chance of immediate release. If the Parole

Board fails to take action Palermo’s alternative would be

to petition for executive clemency.

I would affirm as to the cross-appeal concerning the dam-

age action against Mackell and Ludwig and also affirm the

denial of attorney’s fees and costs to Jones and Oswald.

Appendix “B”.

Thomas PALERMO and Sheldon

Saltzman, Plaintiffs,

Russell OSWALD et al., Defendants.

No. 70 Civ. 3705.

United States District Court,

S. D. New York.

April 22, 1976.

Elliot A. Taikeff, New York City, for plaintiff Palermo.

Harry L. Simmons, New York City, for plaintiff Saltz-

man.

Louis J. Lefkowitz, Atty. Gen. of State of N. Y., by

Ralph L. MeMurry, Robert G. Farrel, New York City, for

defendants Oswald, Jones, Doe and Roe.

Bernard Richland, Corp. Counsel, by William J. Walls,

New York City, for defendant O’Connor.

OPINION

GRIESA, District Judge.

This action was commenced in 1970 at a time when plain-

tiffs Palermo and Saltzman were both New York State

prisoners. They sued various defendants seeking damages

and an order that they be released from prison and certain

other relief.

The complaint was brought under 42 U.S.C., Sections

1983 and 1985, alleging violations of plaintiffs’ constitu-

tional rights. Basically, the allegation was that Queens

County District Attorney Mackell and other officials, in-

cluding members of the New York Parole Board, had par-

30a

Appendia B.

ticipated in making an agreement in October 1969 with

Palermo and Saltzman which induced these men to arrange

for the return of $4,000,000 in jewels stolen from the Provi-

dent Loan Society. The allegation in the complaint was

that this agreement also induced Palermo and Saltzman to

plead guilty to the Provident Loan Society robbery. The

complaint alleged that various considerations were agreed

to, the main ones being that Palermo and Saltzman would

receive suspended sentences or discharges by the Queens

County Court on the Provident Loan Society matter and

that they would be paroled in August 1970 on sentences

which they had received in Richmond County on another

case.

Shortly after the action was brought there were motions

made to dismiss the complaint. These motions were heard

by the then District Judge Mansfield who filed a decision

on January 15, 1971, which is reported at 323 F.Supp. 478.

Judge Mansfield stated, at page 485 of that decision:

. . . it is a fundamental prerequisite of the plea nego-

tiation process thatt the representations made to the

defendant be accurate, and that promises made to him

be kept .. .”

Judge Mansfield held that the complaint stated a valid

claim against Parole Commissioners Oswald and Jones and

other parole commissioners named as John Doe defendants,

in that the complaint alleged that the parole board mem-

bers had promised parole to Palermo and Saltzman on the

Richmond County charge and had failed to keep that prom-

ise. Judge Mansfield refused to dismiss the complaint as

to Oswald, Jones and other parole commissioners named

as John Doe defendants. Judge Mansfield also denied the

motion to dismiss the case as to a New York City detective

named John O’Connor, who had participated in the plea

negotiations. Judge Mansfield held that there was no im-

312

Appendix B'.

munity or other legal reason for dismissal as to O Connor.

However, the complaint was dismissed as against most

of the defendants for various legal reasons. Most of Judge

Maansfield’s discussion in this connection is irrelevant to

our present problems except that which deals with District

Attorney Mackell and Chief Assistant District Attorney of

Queens County Ludwig. Mackell and Ludwig were both

named as defendants in the original complaint. As to these

defendants Judge Mansfield stated, at page 485 of the

opinion:

“The present complaint, however, is limited to a gen-

eral charge that the defendants failed to fulfill the

commitments made, a failure that could have occurred

even though they used reasonable diligence, since the

power to grant parole rested with the Parole Board

and not with the prosecutorial defendants.“

However, Judge Mansfield also stated at the same page:

“Tf it were alleged that these prosecutorial defend-

ants had entered into the alleged agreement with

knowledge that the agreement would in all probability

not be performed, we would be inclined to uphold the

complaint on the ground that a compelling justification

exists for charging them with immunity, since both

agreements touch at the heart of such liberties as are

embodied in the presentation of innocence and the

right to a pretrial, and public policy accordingly dic-

tates that the conduct of officials entering into such

agreement be measured by a high standard of 77777

faithfulness and respect for constitutional rights.”

Judge Mansfield gave the plaintiffs thirty days to file an

amended complaint against any of the defendants dismissed

from the case, and an amended complaint was filed within

the thirty day period referred to by Judge Mansfield.

32a

Appendix “B”.

a There was a motion to dismiss the amended complaint

in response to which Judge Mansfield filed a decision July

26, 1971. Basically, Judge Mansfield left the case in the

same posture as in the first decision. The case was left

standing as against defendants Oswald, Jones, O'Connor

and the John Doe defendants. Although the amended com-

plaint attempted to allege causes of action against other

defendants including Mackell and Ludwig, Judge Mansfield

held that the amended complaint should be dismissed as

against these other defendants. At this time Palermo and

Saltzman were pro se. No final judgment was entered as

to the dismissed defendants, so that presumably any right

of appeal will accrue as of the time that final judgment is

entered following the present proceeding.

The case was dormant for a time. Then counel was ob-

tained for plaintiffs. Following a decision of the United

States Supreme Court in Preiser v. Rodriguez, 411 U.S.

475, 93 S. Ct. 1827, 36 L.Ed.2d 439, 1973, there were certain

motion proceedings in the present case. The Preiser deci-

sion held that a Section 1983 claim for injunctive relief in

the form of release from prison must be treated as a habeas

corpus petition with the attendant requirement of exhaus-

tion of state remedies.

The Attorney General of New York moved in the pres-

ent case to dismiss the injunction phase of the case, alleg-

ing that state remedies had not been exhausted.

It is conceded that Saltzman did noi exhaust his state

remedies. Also Saltzman was released on parole in July

1974. Therefore, there is no claim in the present case for

any injunctive or habeas corpus relief on the part of Saltz-

man. The only thing to which such a request for relief

could relate would be Saltzman’s present parole status, but

there is no claim for habeas relief in this case with respect

to Saltzman’s parole status.

As to Palermo, the State eventually withdrew its defense

of failure to exhaust state remedies. Indeed, the record

33a

Appendiz “BR”.

indicated that Palermo had made à strenuous effort to use

state remedies and had been met by @ bewildering array of

procedural difficulties. I am convinced that Palermo ex-

hausted his state remedies and that there is jurisdiction in

the present action to entertain Palermo’s habeas corpus

request. The State does not contend otherwise.

It was basically in this posture that the case finally came

on for trial. The claims for trial were, first, the damage

claims of both Palermo and Saltzman against former

Parole Commissioners Oswald and Jones.

It should also be noted that although certain other parole

commissioners or former parole commissioners were named

as John Doe defendants in the complaint, none of them was

ever served with process or brought in as parties. There-

fore, there has been no trial of any claims against any

present or former parole commissioner other than Oswald

and Jones. To the extent that the record needs to be cleared

on this point, the action is dismissed as against all the John

Doe and Richard Roe defendants, the anonymous parole

commissioners.

Now, continuing with the issues for trial, there was also

the damage claim against Detective O’Connor. In addi-

tion, as already noted, the habeas corpus claim of Palermo

needed to be determined by the trial. It should be noted

that Palermo was considered for parole in June 1975, but

parole was refused. He is supposed to be considered again

in January 1977. Palermo is incarcerated at the Green-

haven Correctional Facility.

In order to have a defendant subject to an appropriate

court order in the event the habeas petition of Palermo

were to be granted, the State consented to the joining of

the Warden of Greenhaven as a party defendant.

[1] The trial commenced April 19, 1976. A jury was

empaneled to try the damage claim. The habeas claim, of

course, was for determination by the Court without the

jury.

34a

Appendix “B”.

At the conclusion of all the evidence on April 21, I held

that there was insufficient evidence to submit any of the

damage claims, that is, the claims against Oswald, Jones

and O’Connor, to the jury and I dismissed the case as

against these defendants.

This leaves for determination the habeas corpus claim

of Palermo. The following are my findings of fact and

conclusions of law on this claim.

On February 17, 1969, Palermo and Saltzman were sched-

uled for trial on a robbery charge in Richmond County.

They were late for the trial. During the morning when

the trial was supposed to start the Jamaica branch of the

Provident Loan Society was robbed of several million dol-

lars in jewelry. Palermo and Saltzman appeared for trial

in Richmond County in mid-day of February 17, 1969.

Palermo and Saltzman were found guilty on the Rich-

mond County charge late in February, 1969.

The verdict in that case was followed by several appear-

ances in the next weeks by Palermo and Saltzman for sen-

tencing in Richmond County. The sentence was adjourned

several times. The apparent reason for these adjourn-

ments was to give time for the authorities to discuss with

Palermo and Saltzman cooperation in obtaining the return

of the Provident Loan Society jewelry stolen in Jamaica on

February 17th.

Palermo and Saltzman were suspected of guilt in connec-

tion with the Provident Loan Society robbery. Indeed,

Saltzman now firmly admits his participation in this rob-

bery. On the other hand, Palermo firmly denies any partic-

ipation in the Provident Loan Society robbery. In any

event, they were both suspects in this robbery in the spring

of 1969 and they were both arrested for this robbery in

May 1969. At the time of these arrests Palermo and Saltz-

man were being detained awaiting sentence on the Rich-

mond County conviction. There were various negotiations

before the Richmond County sentence occurred in late June

35a

Appendix B

1969, but no agreement was reached with respect to the re-

turn of the Provident Loan Society jewelry or any of the

relevant proceedings.

In late June 1969 Palermo was sentenced to an indeter-

minate term of zero to twenty-five years in the Richmond

County case and Saltzman was given an indeterminate

term of zero to fifteen years in that case.

On July 6, 1969 Palermo and Saltzman were sent to Sing

Sing. This was the commencement of their term of incar-

ceration in a State prison, as distinct from a county jail or

a house of detention. They had been incarcerated in the

Richmond County House of Detention or jail since Febru-

ary 1969.

I should note here that in the discussions with Palermo

and Saltzman relating to possible parole or an agreement

for parole in connection with the Richmond County con-

viction, there were various descriptions of the time for that

proposed parole. The testimony at times refers to a parole

in one year. At other times the testimony refers to a parole

in eighteen months. At other times the testimony refers to

parole in August 1970. In the context of this case all of

these different terminologies refer to the same thing.

It appears that for an indeterminate sentence, such as

was given to Palermo and Saltzman, the minimum time

which could be served in a state prison, as distinct from

a house of detention or a jail, was one year. This would

be one year commencing in July 1969, and apparently the

parties were under the impression that this would expire

in August 1970. The eighteen months refers to the eight-

een months starting with the commencement of incarcera-

tion in the Richmond County House of Detention or jail,

and that would also expire in about August 1970.

Getting back to the chronology, the next relevant event

is that on July 17, 1969 Palermo and Saltzman were brought

back from Sing Sing to the Queens House of Detention for

36a

Appendir B..

dis sussions regarding the Provident Loan Society robbery

and the charge against them for that robbery then pending

in Queens County.

It is clear that Queens County District Attorney Mackell

had an intense interest in obtaining the return of the jewels

taken from the Provident. The stolen jewels amounted to

several million dollars in value and had been pledged to the

Provident by over 2,000 Queens residents who had bor-

rowed money from the Provident on this jewelry. In addi-

tion, the Provident Loan Society and its insurer had a

similar intense interest in having the jewelry returned.

The law firm of Rein, Mound & Cotton was retained by

the Provident and its insurer. Lawyers for that firm were

active and instrumental in the plea bargaining negotiations

which occurred.

Shortly after Palermo and Saltzman returned to Queens

County from Sing Sing they were told of an offer. This

offer was conveyed to them by their attorney, Bobbick.

Bobbick said that Mackell and Mackell’s assistant, Ludwig,

offered the following terms. Palermo and Saltzman would

be re-sentenced in the Richmond Munty case to 7 years

and 5 years respectively. However, Halermo and Saltzman

would be paroled on that case in one year from the time

they arrived in Sing Sing in July 1969; a reward of $100,000

would be paid to Palermo and Saltzman for the return of

the jewels; Palermo and Saltzman would plead guilty to

the Queens County charge and receive suspended sentences

or discharges. Palermo and Saltzman indicated to Bobbiek

this arrangement was acceptable.

It appears that in general Saltzman desired to have

Palermo be the spokesman on behalf of the pair in the

negotiations, and indeed certain of the meetings were held

by Palermo without the presence of Saltzman. However,

when such meetings were held Palermo would relay the

offers or the information to Saltzman.

37a

Appendix B

A few days after the visit by Bobbick, which I described

above, Palermo received a visit from Detective O’Connor

and from an attorney named Evseroff. O’Connor was act-

ing on oceasion as a liaison between Mackell’s office and

Palermo and Saltzman. Evseroff had represented Palermo

at one stage of the Richmond County case. It is not com-

pletely clear why Evseroff appeared at this juncture in the

Queens negotiations, but he was there.

Evseroff stated that Bebbick had misrepresented the sit-

uation. Evseroff stated that there could be no re-sentenc-

ing in the Richmond County case and there could be no

reward of $100,000. But Evseroff said that there was a

new offer from the Queens District Attorney’s office, and

he proceeded to present this offer. Evseroff stated, in

O’Connor’s presence, with O’Connor doing some of the

talking apparently, that the present 25 and 15 year sen-

tences imposed in Richmond County would remain, but

that parole would occur in eighteen months from the time

of the original incarceration in February 1969. The result,

as I indicated earlier, would be that the parole would occur

in about August of 1970. Parole supervision would be the

minimum permiasible terms of five years. Evseroff and

O’Connor stated that if Palermo and Saltzman pleaded

guilty to the Provident Loan robbery in Queens County

they would receive suspended sentences there. Certain

other elements were discussed which are not necessary to

be described here.

Palermo asked how they could be assured regarding the

parole. At this point O'Connor and Evseroff went to see

Ludwig in the District Attorney’s office. They presented

the problem, at which time Ludwig retired into another

room. Shortly thereafter he came back and reported to

O’Connor and Evseroff, that he, Ludwig, had spoken to

the parole board and one or more representatives of the

parole board had indicated that upon the District Attor-

38a

Appendix “B”.

ney’s recommendation the board would extend early parole

to Palermo and Saltzman. This meant to Evseroff one

year from July, 1969, the minimum prison time which could

be served.

O’Connor and Evseroff reported this conversation to

Palermo and stated that Ludwig had spoken to a parole

commissioner and that Ludwig said that the parole com-

missioner thought that the parole board would accept the

recommendation of the Queens County District Attorney.

Palermo’s testimony indicates that the parole commissioner

referred to in the conversation as reported to him was

Commissioner Jones.

Following this meeting Bobbick re-entered the picture.

Bobbick and Norman Rein of the firm of Rein, Mount &

Cotton, visited Palermo two or three times. After some

initial confusion in these discussions, Bobbick and Rein

stated there could be no change in the 25 and 15 year Rich-

mond County sentences, but conveyed the offer for parole

on those sentences of one year from July 1969, and sus-

pended sentences on the Queens County robbery charge.

Apparently Bobbick and Rein were also indicating that a

reward of $100,000 might be paid. The testimony does not

explicitly indicate that there was a discussion of the five

year limit on the term of parole supervision. However, it

was either implicit or explicit that this was part of the

offer. Again, there were certain other considerations dis-

cussed which do not need to be described here.

About October 10, 1969, two members of the Rein firm,

namely Arthur Brook and Eugene Leiman, met with parole

board Commissioner Jones. Also present was Detective

Caparell representing the Queens District Attorney’s office

in that discussion. Leiman and Brook indicated that they

sought assurances from Jones that Palermo and Saltzman

would be paroled in eighteen months, namely, in August

1970. Exactly what Jones said is somewhat in doubt.

However, the gist of the testimony is that Jones indicated

39a

Appendix B

that the parole commissioners would consider the request

made for the parole in August 1970, but also indicated that

no commitment whatever would be made by the parole

board to any specific parole.

I should note that at some point before the October 10,

1969 meeting with Commissioner Jones, there was a private

conversation between O'Connor and Saltzman. This oc-

curred in the Queens House of Detention. At this time

O’Connor said that Palermo and Saltzman would never

get a better deal than the promised eighteen months in jail,

so that they would be home by next August. O’Connor

urged Saltzman to accept this deal.

Returning to the time of the meeting with Commissioner

Jones, I find that Palermo and Saltzman were never eau-

tioned in any way regarding the absence of a commitment

from the parole board. Indeed, Palermo and Saltzman

were led to believe that there was a firm understanding that

they would be paroled at the August 1970 time, after the

year or the eighteen months, however one calculates it.

Indeeed, Bobbick advised Palermo after the meeting with

Commissioner Jones that the meeting had been successful

and that there was a deal for parole at the requested time.

The final agreement was reached on October 24, 1969.

The first meeting that day occurred between Palermo and

O’Connor, Rein and Bobbick. The same offer as made be-

fore was reiterated, namely, the one year parole on the

Richmond County case, the suspended sentences or dis-

charges on the Queens County robbery case and other con-

siderations, including apparently, the $100,000 reward.

Again I find that plaintiffs were led to believe, either im-

plicitly or explicitly, that they would receive the minimum

parole supervision of five years following their release on

parole.

Palermo stated that the deal was acceptable. However,

later in the day O’Connor, Bobbick, and Rein returned to

Appendix B

see Palermo and stated that District Attorney Mackell

would not consent to the $100,000 reward.

Palermo stated that the deal was satisfactory without

the $100,000 reward. At this point Palermo was taken to

the office of Ludwig. Palermo asked to have Ludwig per-

sonally confirm the agreement. Ludwig stated that it was

agreed that Palermo and Saltzman would be released on

parole on the Richmond County charge in the year time

requested, and the Queens County robbery charge would

be dealt with by either discharges or suspended sentences,

Again I find that in addition plaintiffs were led to believe,

either expressly or implicitly, that they would also have

the benefit of the minimum five-year time for parole super-

vision after release on parole. The details of the October

24th negotiations were relayed to Saltzman and approved

by him. Of course, the consideration due from Palermo

and Saltzman in connection with the agreement and the

offers was to return the jewelry and to plead guilty to the

Queens County robbery.

Following the conference with Ludwig at which the

agreement was confirmed, Palermo made certain telephone

calls upon the instruction of Saltzman. Palermo then took

the authorities to 40th Street in Manhattan by the East

River. At that point $4,000,000 worth of the jewelry from

the Provident Loan Society robbery was recovered in a car

at that location.

During the discussions leading to the October 24th

agreement District Attorney Mackell had various meetings

with Bobbick and also with Rein and Rein’s partner Arthur

Brook. Mackell stated that he would “make it a career”

to see Palermo and Saltzman would serve the minimum

prison sentence, which would mean the one-year period,

and that Mackell would “break his back” to this end.

Following the return of the jewelry Mackell issued a press

release announcing the return of the jewelry. The release

Appendix B/.

stated twice that this was the largest recovery of stolen

propery in the history of law enforcement.

It appears that the $4,000,000 in jewelry was not all of

the jewels stolen from the Provident Loan Society. An es-

timate has been made that approximatley $1,000,000 worth

of jewelry was not returned. However, at no time did

District Attorney Mackell or anyone from his office regis-

ter any complaint to Palermo and Saltzman to the effect

that they had in any way breached the agreement or failed

to carry out their part of the agreement.

The evidence in this case has explored in some detail

numerous events occurring following October 24, 1969. Only

a few of them need to be mentioned here. One salient event

occurred about December 15, 1969. At that time it appears

that an employee of the parole board by the name of Mc-

Carthy telephoned Assistant District Attorney Ludwig and

discussed with him the attempt to have some arrangement

made for early parole of Palermo and Saltzman. Me-

Carthy took a very jaundiced view of any lenient treat-

ment of Palermo and Saltzman. McCarthy stated that

Palermo and Saltzman were not entitled to any considera-

tion of any type whatsoever by any agency.

Contrary to the express agreement made by Ludwig and

his superior, Mackell, that they would bend every conceiv-

able effort to carry out the agreement and to obtain the mini-

mum prison time and early parole for Palermo and Saltz-

man, Ludwig replied to McCarthy as follows. Ludwig ex-

pressed his agreement with the attitude of McCarthy and

added that the case reminded him of Murf the Surf, in-

volved in the robbery of the American Museum of Natural

History where leniency was granted after some restitution

of the stolen property and this was followed by a violent

crime by the person who had been treated leniently. This

volunteered opinion of Ludwig, as I say, clearly violated

the letter and spirit of the agreement made by Ludwig and

Mackell.

42a

Appendix B

. The comment of Ludwig was important enough to re-

cord in a lengthy memo prepared by McCarthy which was

circulated to various parole board officials and placed in

numerous files.

On April 16, 1970 Palermo and Saltzman entered guilty

pleas to the robbery charge in Queens County. The parole

hearings for Palermo and Saltzman were scheduled for the

end of April. The purpose of these hearings was to set the

minimum sentence to be served under the indeterminate 25

and 15 year sentences imposed in Richmond County. The

lowest minus um sentences which the parole board could set

were the one year terms from July 1969 which had been the

subject of the many discussions and had been purportedly

agreed upon by Mackell and Ludwig.

In preparation for the April hearings, Mackell wrote a

letter to Russell Oswald, Chairman of the Board of Parole,

which did indeed recite the cooperation of Palermo and

Saltzman in obtaining the return of the property, the stolen

jewelry. The letter enclosed the press release which had

been issued by Mackell at the time of the return of the

jewelry. However, Mackell’s letter made no reference to

the commitment by his office to the one-year term. Al-

though the letter stated that lenient treatment was re-

quested, the letter must be viewed as somewhat ambiguous

and less than the vigorous action which had been promised.

In light of Ludwig’s private statement to the parole board

through McCarthy, the letter is less than an effective repre-

sentation of the interests of Palermo and Saltzman in car-

rying out the agreement which Mackell and Ludwig had en-

tered into.

At the same time Norman Rein of the firm of Rein, Mound

& Cotton wrote a vigorous letter to the parole board rec-

ommending “extreme leniency” in the treatment of Palermo

and Saltzman.

For various reasons no hearing was held in April. How-

ever, parole hearings were held for both Palermo and Saltz-

43a

Appendia “B”.

man in June, 1970. The transcripts of these hearings are

in evidence. Both Palermo and Saltzman made fervent

pleas with respect to what they believed to have been agreed,

namely, that they would be paroled in the one year time.

The hearings were dealt with by a panel of three parole

commissioners, namely, Regan, Lewis and Gross. The com-

missioners advised Palermo and Saltzman that no commit-

ment whatever had been made by the parole board and

that they would treat the case entirely without respect for

any such commitment.

In the case of Palermo, the panel fixed the minimum term

of imprisonment as six years. In the case of Saltzman, the

minimum period of imprisonment was fixed at five years.

The decisions of the panel are not reviewable and were not

reviewed by other parole commissioners or the full parole

board of twelve persons.

It appears that some representative of the Queens Dis-

trict Attorney’s office requested to attend the parole hear-

ings at the prison. Who that was is not shown by the rec-

ord. The testimony about that is vague in the extreme.

However, it is perfectly clear, and the record so dem-

onstrates, that steps were open to District Attorney

Mackell’s office to take far more vigorous action to carry

out the agreement with Palermo and Saltzman than was

taken. Apparently the policy of the parole board is that

outsiders, such as representatives of a district attorney’s

office are not permitted to actually appear at the parole

hearings heid in the prison. However, it is perfectly per-

missible to have persons such as representatives of a dis-

trict attorney’s office meet with the panel of the parole

commissioners outside of the prison and present any views

which should be presented. No attempt at such a meeting

was made.

August 1970 passed and neither Palermo nor Saltzman

was released on parole.

44a

Appendia “B”

In the late fall of 1970 Palermo moved to withdraw his

— — — This

motion was denied. However, the Queens County sentenc-

— — — of the

sentence, which occurred January 11, 1971.

Now, let me summarize my conclusions.

[2] I find that Palermo and Saltzman were induced to

plead guilty to the Queens County robbery charge in con-

nection with the Provident Loan Society robbery and were

induced to return $4,000,000 in jewels, and that the induce-

ments consisted of promises and representations made to

them and to their attorneys by Ludwig and O’Connor that

Palermo and Saltzman would be paroled in the one year

period, namely in August 1970, in the Richmond County

ease, and that the period of time to be served on parole

supervision after such release would be five years.

As to District Attorney Mackell, I find that the pre-

ponderance of the evidence demonstrates that Mackell

knew of the representations of Ludwig, that is, the flat com-

mitments that parole on the Richmond County charge

would be in the one year time and that the period of super-

vision after such release would be five years. I cannot

believe that Mackell was oblivious to the fact that Palermo

and Saltzman were requiring some very specific commit-

ments in return for their assistance with respect to the

$4,000,000 in jewels and their guilty pleas.

I further find that Ludwig and Mackell knew that the

commitments and representations made to Palermo and

Saltzman about the August 1970 parole were false and

knew that they had no commitment or assurance from the

parole board regarding any parole time.

As to O’Connor, I find that there is no evidence that he

was more than a messenger and there is no evidence that

he knew of the falsity of the representations or commit-

ments he was conveying.

45a

Appendix

I further find that Mackell clearly violated his agree-

ment to take all possible steps to have Palermo and Saltz-

man paroled in August 1970.

Consequently, we have a situation where a plea bargain

was made, was made in bad faith on the part of the prose-

cuting authorities, and it was not carried out.

[3] The question arises as to what relief should be

granted. See Santobello v. New York, 404 U.S. 257, 263,

92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971). It is clear

to me that one possible alternative discussed in the cases

would be completely meaningless here, and that alternative

is the opportunity to withdraw a guilty plea. See United

States ex rel. Selikoff v. Commissioner of Correction of

State of New York, 524 F.2d 650 (2d Cir. 1975). Obvi-

ously, it would mean nothing whatever to permit a with-

drawal of the guilty pleas in Queens County.

With respect to the causes of action for damages, I

have already noted the fact that the causes of action

against Mackell and Ludwig were dismissed on the plead-

ings by Judge Mansfield. The defendants which Judge

Mansfield allowed to remain in the case subject to dam-

age claims have been dismissed by me because the evidence

did not substantiate such claims. Whether or not there

would be valid damage claims against Mackell and Lud-

wig, is a matter which I cannot decide at the present junc-

ture. Whether Judge Mansfield’s dismissal of the claims

against Mackell and Ludwig will be overturned on appeal

and whether the claims against them will be reinstated is

something that is a matter for the appellate process.

In the present circumstance the only meaningful and

reasonable way to grant relief is to order the release of

Palermo and grant the writ of habeas corpus.

For the reasons stated above I am directing that Pal-

ermo be immediately released from incarceration and that

he be released unconditionally, not subject to parole. If

46a

Appendia “B”.

the plea bargaining agreement had been carried out, he

would have been released in August 1970 and the five year

parole supervision time would have expired in 1975. All

of these time periods have expired.

The parties are directed to submit an appropriate judg-

ment.

47a

Appendix C“.

Thomas PALERMO and Sheldon Saltzman, Plaintiffs,

Nelson A. ROCKEFELLER, Russell Oswald, E. K. Jones,

John Doe, Richard Roe (Parole Board Commissioners),

Thomas Mackell, Fred Ludwig, Thomas Demaskos,

Arthur A. Darrigrand, John A. Braistead, Mr. Ralph

Dilorio, Peter T. Farrell, Michael Kern, John V. Lind-

say, Howard Leary, John O’Connors, Norman Rein, Esq.,

Jacob Esveroff, Esq., the Provident Loan Society, the

State of New York, the City of New York, Defendants.

No. 70 Civ. 3705.

United States District Court,

S. D. New York.

Jan. 15, 1971.

Thomas Palermo, pro se.

Sheldon Saltzman, pro se.

Louis J. Lefkowitz, Atty. Gen. of the State of New York,

New York City, for defendants Rockefeller, Oswald, Doe,

Roe, Mackell, Ludwig, Demaskos, Darrigrand, Braistead,

Dilorio, Farrell, Kern and State of New York; Stephen P.

Seligman and Frank I. Strom, II, Deputy Asst. Atty. Gen.,

of counsel.

J. Lee Rankin, Corp. Counsel, New York City, for de-

fendants Lindsay, Leary, O’Connors and City of New York;

John Wellekens, New York City, of counsel.

Rein, Mound & Cotton, New York City, for defendants

Norman S. Rein and Rein, Mound & Cotton; Eugene A.

Leiman and James S. Rowen, New York City, of counsel.

DeForest & Duer, New York City, for defendant Provi-

dent Loan Society of New York.

48a

Appendia C.

Mawsrizxp, District Judge.

This action brought under 42 U.S.C. $4 1983 and 1985 and

28 U.S.C. § 1343(3) and (4) involves alleged non-compliance

with the terms of an elaborate agreement allegedly worked

out between plaintiffs, who are now incarcerated at Sing

Sing Prison, and defendants, all of whom are alleged to

have been either directly or indirectly connected with the

agreement.

On February 17, 1969, when plaintiffs were scheduled to

appear for trial in the New York Supreme Court for Rich-

mond County on charges of robbery and grand larceny, a

robbery was committed in Queens County in which 2,000

pieces of jewelry valued at approximately $4,000,000 were

taken from the Provident Loan Society of New York

(“Provident”). On June 11, 1969, a grand jury in Queens

County indicted plaintiffs for the Provident robbery. On

June 27, 1969, plaintiffs were convicted by a jury in Rich-

mond County of robbery in the first degree, convictions

based on incidents unrelated to the Provident robbery.

Plaintiff Palermo was sentenced to imprisonment of 25

years on the robbery count and 7 years on the larceny

charge; plaintiff Saltzman was sentenced to 15 years and

5 years on the corresponding counts. All of the sentences

were to run concurrently.

In an effort to recover the jewelry taken in the Provident

robbery, negotiations were conducted, beginning during the

Richmond County trial, between the District Attorney for

Queens County, Thomas J. Mackell (“Mackell”), and plain-

tiffs who were represented by their attorney, Jacob R.

Esveroff (“Esveroff”). It also appears that a representa-

tive of the New York City Police Department, Mr. John

O’Connors (“O’Connors”), and an attorney for Provident,

Norman Rein (“Rein”), were present at and participated

in the negotiations to some extent. After some delibera-

tion, plaintiffs agreed to procure the return of the proceeds

49a

Appendia ‘‘C’’.

of the Provident robbery and to plead guilty to the charges

against them arising from it. Mackell agreed to appear at

plaintiffs’ sentencing on the foregoing guilty pleas in

Queens County Court, to intercede on behalf of plaintiffs

with the New York State Parole Board (“Parole Board”)

in an effort to secure plaintiffs’ release on parole after 18

months of their Richmond County sentences had been

served, to move to dismiss an assault charge then pending

against Palermo in Queens County, and to request the Dis-

trict Attorney of Oneida County to drop charges against

plaintiffs relating to possession of a stolen automobile.

Mackell rejected plaintiffs’ request for a reward of up to

$100,000 for return of the jewelry, but the other elements

of the agreement were substantialy as requested by plain-

tiffs through their attorney.

On or about October 24, 1969, most of the proceeds of the

Provident robbery were returned to Mackell’s representa-

tives. On April 16, 1970, plaintiffs pleaded guilty to the

erime of robbery in the third degree in Supreme Court,

Queens County, in connection with the Provident robbery.

On April 24, 1970, Mackell wrote to the Parole Board re-

questing consideration for plaintiffs on their Richmond

County sentences. This letter appears to have been unavail-

ing, however, as the Parole Board denied plaintiffs’ applica-

tion for release on parole. Mackell also communicated

with the Oneida County District Attorney regarding the

charge of possession of a stolen motor vehicle. That charge

is still pending against plaintiffs. On September 30, 1970,

an Assistant District Attorney appeared in Queens County

Supreme Court, in which plaintiffs were to be sentenced

upon their guilty pleas to inform the sentencing judge that

the proceeds of the robbery had been returned. At that

time, Palermo moved to withdraw his plea of guilty because

he had not been paroled as scheduled on August 17, 1970.

The sentencing of both plaintiffs for their part in the Provi-

‘et

50a

Appendir C.

dent robbery was adjourned pending the determination of

Palermo’s motion. Hearings on the motion are now in

progress in Queens County Supreme Court.

On August 25, 1970, plaintiffs commenced this action

against numerous defendants alleging non-compliance with

the agreement described above. They now seek uncondi-

tional release from custody, an injunction against the initi-

ation or continuance of further prosecutions against them,

an order for return of the jewelry which they returned to

Provident, damages in the amount of $1,000,000 plus $25

for each day spent in custody beyond August 17, 1970, the

date at which they allege they were to be released pursuant

to the agreement, and reimbursement for the costs of prose-

cating the action.

We deal now with motions made on behalf of each of the

22 defendants to dismiss the action. We shall deal with

the motions of the defendants as they fall into the follow-

ing categories, and in the following order: (1) the State

of New York and the City of New York, (2) New York

Supreme Court Justices Kern and Farrell, (3) Mayor Lind-

say, former Police Commissioner Leary, and Governor

Rockefeller, (4) attorneys Esveroff, Rein, and the firm of

Rein, Mound & Cotton, (5) Provident, (6) defendant Darri-

grand, Oneida County District Attorney, (7) various Parole

Board officials, (8) various District Attorneys and their

assistants in Richmond and Queens Counties, and (9)

O’Connor.

Section 1983 provides a federal remedy for the actions

of “persons.” It is settled law that a state is not a person

within the meaning of this section. Fear v. Commonwealth

of Pennsylvania, 413 F. 2d 88 (3d Cir. 1969) ; Israel v. City

Rent and Rebabilitation Administration of City of New

York, 285 F.Supp. 908 (S. D. N. V. 1968). The complaint is

therefore dismissed as to the State of New York.

As to the defendant City of New York, the mandate of

the Supreme Court is equally clear. “The response of the

51a

Appendic

Congress to the proposal to make municipalities liable for

certain actions being brought within federal purview by

[$1983] was so antagonistic that we cannot believe that

the word ‘person’ was used in this particular Act to include

them.” Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473,

486, 5 L.Ed.2d 492 (1961) (footnote omitted). Fisher v.

City of New York, 312 F.2d 890 (2d Cir.), cert. denied,

374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963). Al-

though this seemingly definitive pronouncement may not

bar a suit when only injunctive relief is sought, Schnell v.

City of Chicago, 407 F.2d 1084 36 (7th Cir. 1969) ; Adams

v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961), and

plaintiffs in this case seek an injunction among other things

[Compl. J 2(b)], plaintiffs primarily seek damages, recis-

sion, or specific performance of the agreement: the only

form of injunctive relief which might issue against the City

would be an injunction restraining further participation of

its employees and agents in this and other plea negotia-

tions, or perhaps merely restraining further breaches of

agreements reached in such negotiations. Viewing the al-

legations in the complaint in a light most favorable to plain-

tiffs, it appears that the only agent of the City who was

directly involved in the agreement to any extent was de-

fendant O’Connors, who participated in the discussions

leading to the agreement, personally received the jewelry,

and then conveyed the jewels to Provident. It is not alleged

that O’Connors has failed to comply with any promises that

he may allegedly have made to plaintiffs. On these facts,

an injunction against the City is unwarranted. The action

against the City is therefore dismissed in all respects.

We next consider the allegations concerning Michael Kern

and Peter T. Farrell, Justices of the Supreme Court of the

State of New York. These allegation relate to the part

which Justice Kern played in negotiations regarding the

Provident robbery, consisting of discussions before trial in

52a

Appendiz ‘‘C’’.

Richmond County, during trial, and prior to sentencing

there. Compl. J 50a) and (b). Plaintiffs allege that refer-

ences to those conferences are to be found in the trial min-

utes of the Richmond County case. Compl. J 5 (e), which

are not now before us. It is alleged that plaintiffs were

offered a maximum sentence of five years in the Richmond

County matter if they would arrange for the return of the

jewels, Compl. 7 50d), and that plaintiffs were told that

they would never be paroled if they did not arrange for the

return of the jewels, Compl. 7 5(d), but these assertions

are not attributed directly to either Judge Kern or Judge

Farrell. The complaint, indeed, does not even allege that

Judge Farrell participated in the plea negotiations.

[1] Seetion 1983 did not abolish the common law im-

munity of judges.

“It is a judge’s duty to decide all cases within his

jurisdiction that are brought before him, including

controversial cases that arouse the most intense feel-

ings in the litigants. His errors may be corrected on

appeal, but he should not have to fear that unsatisfied

litgants may hound him with litigation charging malice

or corruption. Imposing such a burden on judges

would contribute not to principled and fearless deci-

sion-making but to intimidation.” Pierson v. Ray, 386

V.. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288

(1967).

A judge is immune from suits, at least those seeking dam-

ages and not injunctive relief, ef. Law Students Civil Rights

Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 123

(S.D.N.Y.1969), arising from the performance of his duties

as long as he is acting within the judicial role on matters

that are within his jurisdiction, Bradford Audio Corp. v.

Pious, 392 F.2d 67, 73 (2d Cir. 1968); Fanale v. Sheehy,

385 F.2d 866 (2d Cir. 1967).

530

Appendir

Since the eriminal proceedings brought against plaintiffs

in Richmond and Queens Counties were clearly within the

jurisdiction of Justices Kern and Farrell, we need deal

only with the question of whether the actions of these

judges, assuming for purposes of the motion to dismiss that

the allegations concerning their actions are true, departed

sufficiently from the judicial role to justify depriving them

of immunity, cf. Brown v. Dunne, 409 F.2d 341, 343 (7th

Cir. 1969), clarifying Spires v. Bottorff, 317 F.2d 273 (7th

Cir. 1963).

The Canons of Judicial Ethics, Canon 4 (“Avoidance of

Impropriety”), has been construed to caution strongly

against the direct involvement of judges in arranging guilty

pleas:

“A judge should not be a party to advance arrange-

ments for the determination of sentence, whether as a

result of a guilty plea or a finding of guilt based on

proof.” American Bar Association, Opinions on Pro-

fessional Ethics 202 (1967) (Informal Opinion No.

779).

Cf. United States ex rel. Elksnis v. Gilligan, 256 F.Supp.

244, 255 (S.D.N.Y. 1966). Such involvement tends to de-

mean the role of the court and can lead to unfairness or

even to acceptance of a plea of guilty to a crime for which

the defendant may not in fact be guilty.

There has been an increasing tendency, however, toward

official recognition of the fact that plea negotiations be-

tween the prosecuting attorney and defense counsel are

widespread and that they can facilitate the administration

of justice under certain conditions. See, eg., American

Bar Association Project on Minimum Standards for Crim-

inal Justice, Pleas of Guilty, Tentative Draft, pp. 10-12

(Part III, Plea Discussions and Plea Agreements). For

instance, The Advisory Committee on Federal Rules of

54.

Appendia C.

Criminal Procedure has recently recommended the amend-

ment of Rule 11, F.R.Cr.P. to permit the court to accept

or reject a negotiated plea presented to it by counsel, pro-

vided the agreement is spread on the record and the court

reserves the right to reconsider its acceptance if it later

consistent with that disclosed by the parties at the time of

the plea. In the latter event the defendant’s not guilty plea

is reinstated and the record of the plea negotiation and

presentation is inadmissible at trial.

Some states would go even further in permitting the

court to become involved in plea agreements. A revised

rule recently proposed to the Supreme Court of Illinois

would, for instance, permit the trial judge to participate

in diseussion of the plea agreement at the request of the

defendant, Proposed Rule 402(d) (1) (“Pleas of Guilty’’).

The Illinois Committee Comments to the Proposed Rule,

dated January 16, 1970, indicate that the Committee be-

lieves that there is no reason for prohibiting such par-

ticipation when both the defendant and the judge consent.

{2} In light of the potential which plea agreements

have for enhancing the efficiency of the criminal process,

a particularly important consideration in a time of long

dockets and serious delays of trial, we cannot say that

participation of a trial judge in plea negotiations is a

per se deparature from the judicial role in which a judge

is immune from suit, ef. United States ex rel. Rosa v.

Follette, 395 F.2d 721 (2d Cir. 1968). Moreover, viewing

the facts as alleged in the complaint it does not appear

that plaintiffs have been damaged by any acts of these

1 alle fulgp eae toes

concerning the imposition of a five-year sentence in the

Richmond County matter. Therefore, the action against

55a

Appendia ‘‘C’’.

(3) Plaintiffs further allege (1) that as Mayor of the

City of New York and former Commissioner of its Police

liable under § 1983 for the actions of their agent, police

officer O’Connors, Compl. 1 5, and (2) that plaintiffs were

told that Lindsay, Leary, and defendant Rockefeller were

members of the Board of Directors of Provident and had

sanctioned the agreement, “leading plaintiffs to believe

that contract was valid” (Compl. och) J. Rockefeller’s

alleged connection with Provident appears to be plaintiffs’

only claim for relief against him. In the absence of any

allegation that these three defendants took affirmative

relief against Lindsay, Leary, and Rockefeller. Salazer v.

Dowd, 256 F.Supp. 220 (D.Colo.1966); Jordan v. Kelly,

223 F.Supp. 731 (W.D.Mo.1963).

Esveroff was counsel to Palermo but not to Saltzman

in the Richmond County trial. His alleged association

with the negotiations leading to the agreement was limited

to discussions of the Queens County robbery with repre-

sentatives of the Police Department, the Richmond County

District Attorney’s office, and Justice Kern ([Compl.

15(a)). Palermo discharged him as counsel after Palermo

had been convicted in the Richmond County trial but be-

fore he was sentenced there. (Esveroff Aff. p. 1). Rein

and his firm represented Provident in the negotiations

which led to the agreement (Bobick Aff. p. 1). Provident

was undisputedly the victim of the robbery.

14, 51 Federal jurisdiction under 42 U.S.C. § 1983 does

not extend to all controversies between individual citizens,

but only to deprivations of constitutiona) rights arising

56a

Appendiz ‘*C’’.

from the actions of persons acting under color of state

law, Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5

L.Ed.2d 492 (1961); United States v. Classic, 313 US.

299, 326, 64 S.Ct. 1031, 85 L.Ed. 1368 (1941). Since

Esveroff, Rein and Provident were not acting under color

of state law, jurisdiction under § 1983 is not properly in-

voked. Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969);

Rhodes v. Mayes, 225 F.Supp. 80, 93-94 (D.Neb.1963),

affd., 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S.

915, 85 S.Ct. 263, 38 L.Ed.2d 186; Pugliano v. Staziak, 231

F.Supp. 347, 351 n. 5 (W.D.Pa.1964), curiam,

345 F.2d 797 (3d 1965); Jackson v. Hader, 271 F.Supp.

920, 923 (D.M.1967); Pritt v. Johnson, 264 F.Supp. 167

(M.D.Pa.1967); Kregger v. Posner, 248 F.Supp. 804,

806 (E.D.Mich.1966). The motion of Esveroff, Rein and

Provident for dismissal are therefore granted.

District Attorney Darrigrand of Oneida County is not al-

leged to have entered into any agreement with plaintiffs re-

garding the criminal charge that was pending against them

in his county; it is only alleged that certain other defend-

ants would see to it that the charge was dropped (Bobick

Aff. p. 1). Darrigrand’s failure to drop the charge thus

does not give plaintiffs a claim for relief against him, and

as to him, the complaint is dismissed.

The portions of the complaint relating to defendants

Oswald, Jones, Doe and Roe (the latter two being members

of the Parole Board whose names are unknown to plain-

tiffs) are as follows:

“g) Plaintiffs were made to believe by Edward

Bobick, Esq., and by certain other Respondents that

conversations had been held between those Respond-

ents and Respondents Oswald, Jones and other mem-

bers of the New York State Parole Commission and

that said Oswald, et al, stated that Plaintiffs would

never be paroled at any time. in any case in New York

57a

Appendia ‘‘C’’.

State unless alleged proceeds of the alleged Queens

crime were recovered and further, that if proceeds were

recovered through Plaintiffs efforts, Plaintiffs would

be paroled after serving 18 months of their sentence.”

(Compl. 1 5(g))

“9) That contract was not fufilled by Respondents

in that Plaintiffs were not released on parole on 17

August 1970 which was the termination date of the 18

month period.” (Compl. 9)

[6-8] Members of the Parole Board act under color of

state law and thus may be sued under § 1983 for depriva-

tions of constitutional rights. Although we recognize that

in the usual case their decisions require a special compe-

tence quite unlike that appropriate in an adversary setting,

Menechino v. Oswald, 430 F. 2d 403 (2d Cir. 1970), and their

discretionary judgment should not be lightly overturned

by a court, parole boards are not immune from suit, United

States ex rel. Campbell v. Pate, 401 F. 2d 55 (7th Cir. 1968),

and when a clear-out deprivation of constitutional rights

is alleged, we must assume jurisdiction and, if the claim is

proved, not hesitate to act. When a parole board abandons

its statutory duty to make its decision on the basis of an

independent judgment as to whether release of the prisoner

will be in the best interests of the individual and of society,

N.Y. Correction Law, McKinney’s Consol Laws, e. 43,

210, 213, in order to further some other goal, as is al-

leged here, it no longer acts within the prescribed scope of

its duties or according to the procedures which it is by law

required to follow, and it cannot expect the same measure

of deference from the courts.

[9-11] In this case, taking plaintiffs allegations as true.

38a

Appendia O.

ing into an agreement pursuant to which they entered guilty

pleas and gave up their right to a jury trial, direct prom-

ises were made by the Parole Board to their attorney that,

in exchange for plaintiffs’ pleas and for the return of stolen

property, they would be released on parole after serving

18 months of their sentences. Following this alleged agree-

ment, the Parole Board refused to grant plaintiffs release

on parole at the promised time. Proof of such facts would

establish a violation of plaintiffs’ Due Process rights. While

a plea of guilty, if voluntarily and knowingly made, may

not be challenged on grounds which relate to the motivation

for the plea, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.

160, 27 L.Ed.2d 162 (1970) (desire to avoid a possible death

penalty); McMann v. Richardson, 397 U.S. 759, 90 S.Ct.

1441, 25 L.Ed.2d 763 (1970) (unavailability of constitu-

tional procedures for testing the admissibility of defend-

ant’s pretrial statements), it is a fundamental prerequisite

of the plea negotiation process that the representations

made to the defendant be accurate, and that promises made

to him be kept, United States ex rel. Elksnis v. Gilligan, 256

F.Supp. 244 (S.D.N.Y. 1966). The present case is not one

in which a defendant who has had the benefit of a plea

agreement later seeks to withdraw his guilty plea, ef. Shel-

ton v. United States, 246 F.2d 571 (5th Cir. 1957), but one

in which it is alleged that the defendant has kept his part

of the agreement and the state has not, cf. United States

ex rel. MeGrath v. LaVallee, 319 F.2d 308 (2d Cir. 1963),

348 F.2d 373 (2d Cir. 1965); United States ex rel. Elksnis

v. Gilligan, supra. In this respect, Parole Board members,

whose decisions can have such a significant impact on the

length of time an individual spe Js in actual custody, are

subject to the same standards f fair play that apply to

judges when they participate ir plea negotiations. In what

we assume to be the rare situation in which they promise

release on a certain date, as is alleged here, they cannot

Appendia “‘C’’.

breach such a promise with impunity, ef. United States ex

rel. Elksnis v. Gilligan, supra,

{12, 13] Turning to the defendants who were intimately

involved in the negotiations leading up to the agreement—

District Attorneys for Queens and Richmond Counties

(Mackell and Braistead) and Various Assistant District

Attorneys (Ludwig, Dilorio, Demaskos)—plaintiffs claim

generally that they failed to fulfill the plea agreement. Or-

dinarily, prosecutors acting in their official capacity are

entitled to immunity from civil suits, including actions un-

der the Civil Rights Act, based on nonmalicious conduct in

their official capacities and within their jurisdiction. Scol-

nick v. Lefkowitz, 329 F.2d 716 (2d Cir.), cert. denied, 379

U.S. 825, 85 S.Ct. 49, 13 L.Ed.2d 35 (1964); Simons v.

O’Connor, 187 F.Supp. 702, 704 (S.D.N.Y. 1960). Public

policy protects them against such suits, which might

dampen their fervor and inhibit them from zealous per-

formance of their duties. If it were alleged that these

prosecutorial defendants had entered into the alleged agree-

ment with knowledge that the agreement would in all prob-

ability not be performed, we would be inclined to uphold the

complaint on the ground that no compelling justification

exists for cloaking them with immunity, since plea agree-

ments touch at the heart of such liberties as are embodied

in the presumption of innocence and the right to a jury

trial, and public policy accordingly dictates that the con-

duct of officials entering into such agreements be measured

by a high standard of honor, faithfulness and respect for

constitutional rights. But see, e. g., Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949). The present complaint how-

ever, is limited to a general charge that the defendants

failed to fulfill the commitments made, a failure that could

have occurred even though they used reasonable diligence.

since the power to grant parole rested with the Parole Board

and not with the prosecutorial defendants. These allega-

60a

Appendix .

tions are insufficient to pierce the cloak of immunity. Ac-

cordingly the complaint is dismissed as to the defendants

Mackell, Ludwig, Demaskos, Braistead and Dilorio.

[14] As a member of the Police Department, defendant

O’Connors, if the charges against him were proved, could

be held liable under § 1983 for violation of plaintiffs’ con-

stitutional rights, Monroe v. Pape, supra, and he is not pro-

tected by the immunity extended to members of the judi-

ciary and public prosecutors.

Plaintiffs have painted their demand for relief with the

same broad brush that was used in naming defendants;

they seek release from prison, an injunction against fur-

ther state prosecution (at least as to offenses and charges

which were involved in the agreement), return to them of

the jewels, damages, etc. In effect, they are asking for the

benefits of the agreement which they have not received (i. e.,

specific performance) or recovery of the rights and prop-

erty which they gave up in hopes of obtaining those ben-

efits (i. e., rescission). Because issues as to the propriety

of certain forms of relief were raised in defendants’ briefs,

we now take up the elements of relief requested in the com-

plaint.

[15] We do not believe that plaintiffs are entitled to

return of the jewelry under any circumstances. While the

complaint refers repeatedly to the Provident robbery as

an “alleged” robbery [Compl. M4, 5(b), 5(e), 5(f), and

5(j)], plaintiffs admit that at the very least they made

contact with “the actual robbers” in order to secure return

of the jewelry to Provident [Compl. 6]. Thus we give no

weight to the contradictory assertion found in the follow-

ing paragraph [Compl. 17] that ownership of the jewelry

was vested in plaintiffs because proof was never made in

court that the jewelry had been stolen. As stolen goods,

the jewels were not the property of plaintiffs, and under

6la

Appendix C

New York law they are not entitled to employ legal pro-

ess to recover them, McConnell v. Commonwealth Pic-

tures Corp., 7 N.Y.2d 465, 199 N. V. S. 2d 483, 166 N.E.2d 494

(1960); Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139

N.E.2d 531 (1957).

In light of the foregoing, a complete recision, leaving the

parties in the status quo ante which prevailed before the

agreement, is not possible. Assuming plaintiffs proved

their claims, we would be faced with the question of whether

they should be limited to partial recision (that is, with-

drawal of their guilty plea and perhaps damages) or, in

view of the unavailability of complete recision, whether they

would be entitled to an order directing the remaining de-

fendants to comply fully with their part of the agreement.

In the latter case, as defendants point out, we would be

forced to consider whether adequate reason existed for

abandoning the traditional reluctance of federal courts to

enjoin pending state prosecution, compare Douglas v. City

of Jeanette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943)

with Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14

L.Ed.2d 22 (1965). However, any attempt at this time to

resolve the entire question of what relief plaintiffs may

finally be entitled to should they prevail would be prema-

ture.

On the eve of our filing the foregoing we received a let-

ter dated January 4, 1971, from plaintiff Palermo indicat-

ing doubt as to the sufficiency of his complaint and request-

ing a 30 to 60 day continuance to enable him to amend or

modify his claims. Since defendants’ motions to dismiss

were submitted for disposition more than two months ago

and it appears that no valid claim for relief under § 1983

could in any event be stated against certain defendants, we

grant the motions to dismiss as to defendants State of New

York, City of New York, Kern, Farrell, Lindsay, Leary,

Rockefeller, Esveroff, Rein, Rein, Mound & Cotton, Provi-

E A hn Be HE BI Op

62a

Appendia C

dent, Darrigrand, Mackell, Ludwig, Demaskos, Braistead

and Dilorio without prejudice to plaintiffs’ filing an

mended complaint within 30 days against such defend-

ants, if any, as to whom plaintiffs are advised, after con-

sultation with their legal counsel, that a valid claim for re-

lief can be stated. The motions of defendants Oswald,

Jones, Doe, Roe and O Connors to dismiss the claims agai

them are hereby denied. —

It is so ordered.

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