U.S. v. Tantalo

• Decision Date: 03 June 1982
• Docket Number: D,No. 628,628
• Parties: UNITED STATES of America, Appellee, v. Albert TANTALO, Defendant-Appellant. ocket 81-1411.
• Court: U.S. Court of Appeals — Second Circuit

Page 903

680 F.2d 903

UNITED STATES of America, Appellee, v. Albert TANTALO, Defendant-Appellant.

No. 628, Docket 81-1411.

United States Court of Appeals, Second Circuit.

Argued Jan. 26, 1982.

Decided June 3, 1982.

Paul J. Cambria, Jr., Buffalo, N. Y. (Lipsitz, Green, Fahringer, Roll, Schuller & James, Barbara Davies Eberl, and Stanley J. Sliwa, Buffalo, N. Y., on the brief), for defendant-appellant.

Rosemary G. Roberts, Asst. U. S. Atty., W. D. N. Y. (Roger P. Williams, U. S. Atty., David Rothenberg, Asst. U. S. Atty., W. D. N. Y., Rochester, N. Y., of counsel), for appellee.

Before MESKILL and CARDAMONE, Circuit Judges, and HOLDEN, District Judge. ^*

HOLDEN, District Judge:

The defendant Albert Tantalo presents this appeal on two issues reserved in a negotiated plea agreement at the time he entered a plea of guilty on January 9, 1981 before the late Judge Harold P. Burke. The guilty plea to a single count superseding information which charged the defendant with simple possession of cocaine in violation of 21 U.S.C. § 844(a) was offered and accepted on October 1, 1979. The history of this prosecution from the time of the defendant's arrest as a fugitive on November 7, 1979 in the Eastern District of Virginia, to the date of his sentencing in the United States District Court for the Western District of New York by the Honorable John T. Curtin, Chief Judge, ¹ is extensive and complicated. The course of these proceedings has generated the two issues for review: the right of the defendant to freedom from self-incrimination and his right to a speedy trial.

History of the Proceedings

On October 31, 1979 a single count sealed indictment was filed in the United States District Court for the Western District of New York which charged the appellant and others with conspiracy to distribute cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846. ² Bail in the arresting district was reduced from $100,000 to $50,000, following the defendant's indication that he sought to cooperate with federal enforcement agencies, whereupon he was allowed to return voluntarily to the Western District of New York.

On November 13, 1979 the appellant and his attorney met with the Assistant United States Attorney at Rochester and the appellant agreed to cooperate with federal and state enforcement authorities. The terms of the agreement were confirmed in a letter written November 15, 1979 by Assistant United States Attorney David Rothenberg, directed to the appellant's counsel Werner Lomker, Esquire, who was retained at that time. ³ Briefly stated, the appellant agreed to provide complete and truthful cooperation concerning his knowledge of criminal activities then under investigation. He further agreed to forego his right to a prompt arraignment and trial under the Speedy Trial Act (18 U.S.C. § 3161) pending his cooperation, and to execute a waiver to this effect for a period of thirty days.

The Government on its part agreed that none of the appellant's statements made after November 8, 1979 and during the time of his cooperation, nor any evidence derived from his statements, would be used against him. The communication concludes: "He will, however, be prosecuted, as originally anticipated, by this office. No other promises whatsoever have been made."

On December 11, 1979 the Government attempted to have the appellant personally sign the written waiver of prompt arraignment and trial indicated in the letter of November 15, 1979 to his attorney. A written waiver was signed by defense counsel, but the appellant declined.

During the period that followed, the appellant extensively cooperated by testifying before the grand jury on December 19, 1979, providing information concerning drug traffic and corruption in the Rochester area and working undercover in a joint federal-state investigation which included consensually monitored telephone calls.

At the outset of the appellant's appearance before the federal grand jury on December 19, 1979, he was advised of his right to have his attorney present, outside the room where the grand jurors convened, for consultation during the course of his testimony. The appellant stated he did not want his attorney to be present. Counsel for the Government restated the sum and substance of its agreement with defense counsel, that Tantalo was named in the indictment and that he would be prosecuted although his testimony "in the Grand Jury cannot and will not be used against you in a court of law."

The appellant then testified that on October 1, 1979 he met with Michael Scott. Scott suggested he could repay money which he owed the appellant if Scott could obtain cocaine for resale to a proposed purchaser. The appellant agreed to obtain four ounces of cocaine for delivery to Scott. Accordingly, the appellant contacted Kenneth Allnutt, who arranged for the delivery of the cocaine by a courier named "Lisa" in the Village of Honeoye Falls. Scott and the appellant drove to the meeting place in the appellant's automobile. After meeting the courier, the appellant and Lisa went for a ride without Scott. Four ounces of cocaine were delivered to the appellant. The appellant cut the cocaine to make five and a half ounces.

The appellant returned to Scott's home in Rochester. Before Scott left the car, the appellant observed what he believed to be unmarked police cars nearby. He cautioned Scott about his observation and cautioned him not to go through with any deals. He later telephoned Scott to warn him again. Apparently Scott did not heed the warning. In any event, at a later time Scott delivered the money for the cocaine to the appellant.

The appellant then proceeded to testify concerning a later purchase of cocaine from Allnutt toward the end of October, 1979. When one of the grand jurors inquired of the appellant what he did with the ounce and a half of cocaine he retained, the appellant refused to answer, stating-"I'm not going to give you some other evidence that would also incriminate me, even though you say you're not going to use it."

The appellant was not arraigned on the original indictment until February 22, 1980. The arraignment was conducted in chambers and the record was sealed. ⁴

The same federal grand jury that returned the original indictment on October 31, 1979 returned a superseding six count indictment on March 5, 1980, which named six defendants, including Kenneth Allnutt, Michael Scott and the appellant. Tantalo was accused in counts 1 and 5. The first count alleged a conspiracy which was substantially the same as that charged in the original indictment. The fifth count charged the appellant, Allnutt, Scott and Lisa, a/k/a Lisa McNamee, with distribution of four ounces of cocaine on October 1, 1979, in violation of 21 U.S.C. § 841(a)(1).

The superseding indictment was sealed; it was unsealed on April 14, 1980, when Allnutt was arraigned. The appellant was not arraigned until May 16, 1980. The appellant pleaded not guilty to both counts 1 and 5. The Government moved on July 14 to set the case for trial. Owing to a two month criminal trial scheduled for September 15, 1980, the district court scheduled trial on the superseding indictment to start December 1, 1980.

In the interim, as shown in the margin, the appellant retained his present counsel. On November 3, 1980 the appellant filed an omnibus motion which included a request for dismissal based on a violation by the Government of its promise of immunity under the Fifth Amendment. The appellant also sought dismissal of the original and superseding indictment under the Speedy Trial Act. The movant requested that a hearing on the multiple motions be scheduled on November 10. At the hearing on November 10 the Government requested a continuance because of the length and complexity of the motion papers. The Government urged, and Judge Burke ruled, that the ends of justice outweighed the interests of the public and the defendant in a speedy trial and would be served by the adjournment. See 18 U.S.C. § 3161(h)(8)(A). The court continued the case to November 24, 1980.

The district court heard oral argument on the combined motions on November 24, 1980. Defense counsel contended that the Government intended to use the testimony of one of the indicted co-defendants against Tantalo; that the co-defendant was motivated to testify at Tantalo's trial and was inspired by Tantalo's testimony before the grand jury. Defense counsel urged that since the appellant had provided immunized testimony before the grand jury, the Government was called upon to present evidence to the court to establish not only an independent basis for the indictment, but also for the prosecution itself.

The Government responded by assuring the court and the appellant that the case would proceed to trial on the original rather than the superseding indictment. The Government undertook to meet its burden to prove a wholly independent basis for the prosecution, by filing an in camera affidavit of the prosecuting attorney dated November 13, 1980.

Defense counsel objected to an in camera affidavit being submitted to the court in an effort to discharge the burden of demonstrating there is no taint. By order of Judge Burke, dated December 31, 1980, the appellant's motion to dismiss was denied without further hearing or statement of findings or conclusions by the court. ⁵

On January 9, 1981, the defendant was again arraigned, this time on a single count superseding information which charged the defendant with the offense of simple possession of cocaine on October 1, 1981, in violation of 21 U.S.C. § 844(a). Tantalo pleaded guilty to the misdemeanor charged in the information in keeping with a new plea agreement with the Government, which included the Government's consent to the reservation of the appellant's right to appeal from the decision of the district court denying his motion to dismiss the indictment. ⁶

Following the acceptance of the guilty plea,...