545 F.2d 286 (2nd Cir. 1976), 1341, Palermo v. Warden, Green Haven State Prison

Docket Nº:1341, 1342, 1343, Dockets 76-2055, 76-2060, 76-2063.
Citation:545 F.2d 286
Party Name:Thomas PALERMO and Sheldon Saltzman, Petitioners-Appellees, v. WARDEN, GREEN HAVEN STATE PRISON, Respondent-Appellant, and Russell Oswald et al., Defendants-Appellants.
Case Date:November 01, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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545 F.2d 286 (2nd Cir. 1976)

Thomas PALERMO and Sheldon Saltzman, Petitioners-Appellees,




Russell Oswald et al., Defendants-Appellants.

Nos. 1341, 1342, 1343, Dockets 76-2055, 76-2060, 76-2063.

United States Court of Appeals, Second Circuit

November 1, 1976

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[Copyrighted Material Omitted]

Argued July 22, 1976.

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Nancy Rosner, New York City (Elliot A. Taikeff, New York City, of counsel), for appellee Palermo.

Harry L. Simmons, New York City, for appellee Saltzman.

Ralph McMurry, Asst. Atty. Gen. of N. Y., New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, of counsel), for State appellants.

Before WATERMAN and MESKILL, Circuit Judges, and BARTELS, District Judge. [*]

MESKILL, 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 nonfulfillment 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 dismissed the complaint as to Queens District Attorney Thomas Mackell and Chief Assistant District Attorney Frederick Ludwig for failure sufficiently to allege justifications to abrogate prosecutorial immunity. Palermo v. Rockefeller, 323 F.Supp. 478 (S.D.N.Y.1971). 1 No final judgment was entered as to the dismissed defendants. Five years later, on April 19, 1976, 2 trial commenced on

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Palermo's habeas claim before Judge Griesa and on the damage claim by both plaintiffs against the parole commissioners and Detective O'Connor before a jury. Upon the trial's conclusion on April 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. 3 Granting Palermo's application for a writ of habeas corpus, the district court concluded 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 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 damage 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 Richmond robbery, after a jury trial, and remanded to custody pending sentencing in that case. After several adjournments, 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 between the Queens prosecutors and Palermo and Saltzman, 4 no agreement was

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reached before the Richmond County sentence was imposed on June 27, 1969, at which time Palermo received an indeterminate sentence with a maximum of twenty-five years and Saltzman received an indeterminate term with a fifteen year maximum. On July 6, 1969, Palermo and Saltzman began their terms of incarceration 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 findings, we turn to the testimonial evidence adduced at trial. Palermo testified that shortly after his return from Sing Sing, attorney Bobick 5 conveyed an offer, allegedly from Mackell'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 addition, Palermo and Saltzman 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. 6 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, Evseroff 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 Provident robbery charge; dismissal or unconditional discharge after a plea of guilty to a lesser offense for a pending charge in Oneida County (the "Utica offense") and dismissal 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 interaction with the Parole Board and the Oneida County authorities. 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 Ludwig so recommended; according to Evseroff, "early parole" meant parole after one year in Sing Sing. Palermo conferred 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 Commissioner Jones. While the specifics of that conversation are

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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 discharge 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 misdemeanor, 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 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 misdemeanor in the Utica case, receiving an unconditional discharge. The Queens assault charge ultimately was dismissed. 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 pertinent part of which stated:

Solely because of the cooperation of (Palermo), practically all of the property taken in that robbery was recovered. In negotiating the return of this property, my office...

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