State v. Barone
| Decision Date | 10 March 1997 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Richard A. BARONE, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Janet Flanagan, Deputy Attorney General, argued the cause for appellant (Peter G. Verniero, Attorney General of New Jersey, attorney).
J. Michael Blake, Assistant Deputy Public Defender, argued the cause for respondent (Susan L. Reisner, Public Defender, attorney).
The opinion of the Court was delivered by
The issue raised in this appeal is whether a determination by a federal district court judge that a good faith breach of a federal plea agreement resulting from Federal Bureau of Investigation ("FBI") agents disclosing to state law enforcement officials statements made by a defendant respecting his involvement in two casino thefts, requires dismissal of a state indictment on charges related to the casino thefts.
The Law Division conducted an evidentiary hearing to determine whether to dismiss the indictment. At the conclusion of that hearing the court denied defendant's motion, concluding that defendant had not disclosed the casino theft information to FBI agents, and that the State had obtained the evidence that led to the state indictment from sources wholly independent of defendant's disclosures to FBI agents.
Defendant was convicted by a jury of all of the offenses related to the casino thefts, conspiracy, and other offenses as well. The Appellate Division reversed defendant's casino theft and conspiracy convictions in a published opinion, holding that principles of fairness required the New Jersey Attorney General to participate in the federal hearing because it had knowledge of the hearing. 288 N.J.Super. 102, 671 A.2d 1096 (1996). We granted certification, 144 N.J. 589, 677 A.2d 762 (1996), and now reverse.
-A-
The facts giving rise to this appeal are somewhat bizarre. Defendant had an erratic romantic relationship with Pamela Costello. According to Costello, defendant coerced her into stealing approximately $22,495 from Harrah's at Trump Plaza Casino/Hotel, where she worked as a cage cashier, on November 17 1985, and approximately $24,818 from the Golden Nugget Hotel/Casino ("Golden Nugget"), where she held a similar position, on June 15, 1986. During the period between the thefts and November 1989, the New Jersey Division of Criminal Justice, Casino Protections Section, considered Costello the primary suspect in the casino thefts. The same authorities also suspected that defendant might have played some role in the thefts.
There is substantial evidence to support Costello's testimony that she did not report the thefts because she feared that defendant was involved in organized crime. The fear was reinforced on several occasions when defendant physically abused her, threatened to kill her, and threatened to physically harm members of Costello's family.
-B-
In an unrelated criminal proceeding, defendant and Joseph Merlino were indicted by a federal grand jury in the Eastern District of Pennsylvania for conspiracy, theft from an interstate shipment, and participating in a 1987 theft of money from an armored truck during an interstate shipment. On November 3, 1989, defendant entered into a written plea agreement with the federal prosecutor pursuant to Rule 11(e) of the Federal Rules of Criminal Procedure. In addition to agreeing to testify against Merlino, the plea agreement, in pertinent part, provided:
6.
. . . . .
(b) It is agreed, in exchange for promises set forth below, that the defendant will cooperate fully and truthfully with the Government as follows:
(1) The defendant agrees to be fully debriefed concerning his knowledge of, and participation in, the theft of currency from an armored truck on September 23, 1987 and any other crimes about which he has knowledge.
. . . . .
(6) The defendant agrees that since his acceptance of this agreement terminates all plea discussion with the government, any statements made by him after the date of his acceptance of this agreement are not governed by Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of Evidence 410.
(c)
. . . . .
(2)
. . . . .
(e) It is agreed that the government will bring no additional charges against the defendant for criminal conduct related to activity which he has disclosed during proffer sessions with federal agents prior to the entry of his guilty pleas.
In order for the government to evaluate whether the plea agreement was worth pursuing further, a meeting was held on November 2, 1989, one day before the plea agreement was signed. Defendant, his attorney, Assistant United States Attorney Robert Goldman, and FBI Agents Donald Rochon and Robert Bazin participated in that meeting which they identified as a proffer session. Following the proffer session, defendant entered guilty pleas to the conspiracy and theft charges, and agreed to cooperate fully and truthfully with the federal government. In exchange for the guilty pleas and defendant's cooperation under the agreement, the federal prosecutor agreed to dismiss the remaining count of the indictment, to "provide the defendant with the opportunity to apply for admission to the federal witness protection program," and to advise the sentencing court of defendant's good faith cooperation.
The extent of the information discussed at the proffer session is disputed. Defendant and his attorney assert that defendant disclosed information regarding the casino thefts. However, no official transcript of the proffer session was made, or at least no transcript is available to state courts or the parties to either verify or refute defendant's assertion. In any event, defendant was sentenced by the federal court to a custodial term of one year and one day for conspiracy and three years of probation for theft.
-C-
While defendant was serving his federal sentence, he was indicted in November 1990 on multiple counts by a New Jersey state grand jury for charges stemming from the casino thefts: one count of third-degree conspiracy to commit theft, a violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3; two counts of third-degree theft by unlawful taking, a violation of N.J.S.A. 2C:20-3; and two counts of third-degree criminal coercion, a violation of N.J.S.A. 2C:13-5a(1).
As a result of the state indictment, defendant's enrollment in the Federal Witness Protection Program was barred. Defendant then sought to gain admission to the program by filing a motion with the federal court, claiming that he had been barred from the program because the federal government had breached the federal plea agreement by providing information, disclosed during the proffer session, to the New Jersey authorities that led to the state indictment.
Defendant's application for relief was heard by the federal judge in the Eastern District of Pennsylvania who had accepted his plea and sentenced him. The federal court conducted an evidentiary hearing to determine whether the federal plea agreement had been breached. A New Jersey Deputy Attorney General attended a portion of the hearing but did not participate or otherwise seek to intervene. After conducting an in camera review of the FBI's files and hearing testimony in open court, the federal court found that defendant had disclosed his involvement in the casino thefts during the proffer session. United States v. Barone, 781 F.Supp. 1072, 1075 (E.D.Pa.1991). The court found that the federal government had breached the plea agreement by disclosing defendant's proffered testimony to New Jersey authorities. Id. at 1075-79. The court reasoned that the agreement implicitly provided that the federal government would not take actions likely to result in defendant's prosecution in other jurisdictions. Id. at 1074.
The federal court rested its finding of breach primarily on circumstantial evidence. The court noted that New Jersey's investigation of defendant had significantly intensified during the period from November 2, 1989, the date of defendant's proffer session, to January 10, 1990, the date defendant admitted participating in the casino thefts while testifying for the government in the federal trial against Joseph Merlino pursuant to the plea agreement. Id. at 1075-76. The court found that "[t]he FBI agents in Philadelphia who were privy to Mr. Barone's disclosures kept their fellow agents in southern New Jersey informed of the case developments." Id. at 1075.
The federal court found that retired FBI agent, Jack Tuttle, who was the director of surveillance for Bally's Grand Casino, the successor to the Golden Nugget, had made several inquiries regarding defendant's case between the time defendant had been arrested and the time he had testified against Merlino. Ibid. The court found that Tuttle had met with Investigator Carl Gravel of the New Jersey Division of Criminal Justice, Casino Protections Section, to review surveillance tapes recorded on the date of the Golden Nugget theft. Ibid. In addition, the court found that after defendant's testimony in the Merlino trial on January 10, 1990, Tuttle had received a telephone call from "a federal law enforcement agent concerning [defendant's] testimony," and that Tuttle shared the information with Investigator Gravel. Id. at 1076.
As a remedy for the breach, the court ordered the FBI and the United States Attorney's Office not to provide any further assistance to the New Jersey authorities with respect to the casino thefts. Id. at 1079. The court also ordered that defendant be afforded some form of witness protection at "an appropriate time." Ibid. The federal court acknowledged that it could not enjoin defendant's New Jersey criminal prosecution "without proof of bad faith or irreparable injury exceeding that attendant to every criminal prosecution." Ibid. (citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). It found that such proof did not exist. Ibid.
-D-
...
To continue reading
Request your trial
-
State v. Gadsden
...the fact-finding of a trial judge may not be disturbed if supported by sufficient, credible evidence in the record. State v. Barone, 147 N.J. 599, 615, 689 A.2d 132 (1997) (citing State v. Johnson, 42 N.J. 146, 161-62, 199 A.2d 809 (1964)). This court is obliged to accord special deference ......
-
State v. Pennington
... ... It also benefits defendants by reducing penal exposure. Barboza, supra, 115 N.J. at 420, 558 A.2d 1303; Taylor, supra, 80 N.J. at 361, 403 A.2d 889. A plea agreement is, however, governed by contract-law concepts. State v. Barone, 288 N.J.Super. 102, 118, 671 A.2d 1096 (App.Div.1996), rev'd on other grounds, 147 N.J. 599, 689 A.2d 132 (1997) (citing United States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir.1989)). If the plea bargain falls apart or is rejected, it has no value; it is as if the offer never existed. A ... ...
-
State v. Morton
...to depart from traditional appellate deference to the trial court's assessment of the credibility of witnesses. State v. Barone, 147 N.J. 599, 615, 689 A.2d 132 (1997). Defendant's allegations, moreover, consist of nothing more than bald assertions, which do not justify granting his request......
-
Bank of N.Y. Mellon v. Corradetti
...Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498, 945 A.2d 59 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615, 689 A.2d 132 (1997) ). Instead,[w]e give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned c......