US v. Barone
| Decision Date | 13 December 1991 |
| Docket Number | Cr. No. 89-309-01. |
| Citation | 781 F. Supp. 1072 |
| Parties | UNITED STATES of America v. Richard A. BARONE. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
This court has conducted a factfinding inquiry at the request of the defendant into whether the government breached its plea agreement with the defendant, Richard Barone, and, if so, to what remedy the defendant is entitled at this time.
The court's inquiry concerned the circumstances surrounding the defendant's plea agreement to federal charges, his testimony in federal court, and his subsequent indictment by the State of New Jersey on prior unrelated offenses. The hearings were initiated by the court after statements by the defendant implying that he was being tried in the State of New Jersey for crimes for which he was immunized by the federal government.
Counsel was appointed by the court for the investigation and presentation of the defendant's claim. The court conducted an in camera review of the file of the Federal Bureau of Investigation and called the investigative agents as witnesses. The defendant was afforded the opportunity to call witnesses in support of his claim.
After reviewing post-hearing submissions from defendant and the government, the Court makes the following findings and conclusions.
1. Richard Barone entered a plea of guilty to two counts of the indictment, pursuant to a written and signed plea agreement, on November 3, 1989.
2. Under the agreement, Mr. Barone promised, inter alia, "to be fully debriefed concerning his knowledge of, and participation in, the offense charged in this indictment, and any other crimes about which he has knowledge." Para. 6(b)(1).
3. Under the agreement, Mr. Barone also promised "to testify as a witness ... at any ... trials when called upon to do so by the Government." Para. 6(b)(2).
4. Under the agreement, inter alia, the government of the United States promised to "provide Mr. Barone with the opportunity to apply for admission to the federal witness protection program." Para. 6(c)(2)(c).
5. By implication, the government promised in connection with its obligation under Para. 6(c)(2)(c) of the agreement not to do anything that would cause Mr. Barone to lose the benefit of the Witness Protection Program if he were admitted into it.
6. Under this agreement, the government of the United States also promised to "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." Para. 6(c)(2)(e).
7. By implication, the government promised in connection with its obligation under Para. 6(c)(2)(e) not to do anything that would cause additional charges to be brought against Mr. Barone by other authorities on the basis of matters he disclosed during any pre-plea proffer and not to facilitate the successful prosecution of such charges.
8. A proffer session was held on or about November 2, 1989, the day trial began against co-defendants Mssrs. Barone and Merlino, and prior to the entry of Mr. Barone's guilty plea in this case. Agent Rochon of the FBI took notes on a yellow legal pad; however, the notes retained in the FBI's case file do not include information about the crimes that Mr. Barone disclosed that evening other than that for which he was currently on trial. However, the communication from Rochon in connection with the proffer to ascertain Barone's eligibility for the witness protection program stated that Barone would provide information, inter alia, about the Junior Black Mafia. The authorization to offer Barone an opportunity to apply for the witness protection program specifically referred to his giving information about crimes other than the subject of the guilty plea. A memo to file by Agent Rochon also stated:
9. In the proffer session, Mr. Barone disclosed prior criminal activities, including his involvement with Pamela Jo Costello in the June, 1986 theft from the Golden Nugget Casino and in the November, 1985 theft from Harrah's (Trump Casino/Hotel).
10. Prior to November, 1989, both Barone and Costello had been identified as suspects in the 1985 and 1986 casino thefts, but the investigation by New Jersey authorities appears to have been dormant.
11. The otherwise unexplained reactivation of the New Jersey investigation of the casino thefts followed shortly after the time of Mr. Barone's debriefings by the FBI, and preceded his public testimony.
12. While Mr. Barone's guilty plea and cooperation with the government were publicly disclosed in court proceedings and in the press prior to his trial testimony, neither referred to Mr. Barone's involvement in the casino thefts.
13. At the time of signing the agreement and entering his guilty plea, Mr. Barone did not understand that the terms of the plea agreement did not afford him immunity, in the legal sense, from prosecution for other offenses disclosed.
14. Harvey Sernovitz, Esquire, Mr. Barone's retained attorney at the time, did not explain to Mr. Barone the distinctions between a non-prosecution agreement and a grant of immunity. Further, Mr. Sernovitz never considered Mr. Barone's risk of prosecution by the State of New Jersey as a result of his disclosures.
15. In connection with ascertaining the voluntariness of Mr. Barone's plea, this court did not determine that he understood the significance and limitations of the non-prosecution aspect of the plea agreement in any of the respects that have since become a problem. N.T. (Nov. 3, 1989), at 16. While the court discussed the provisions of the plea agreement with Mr. Barone, the court was not informed of the casino thefts and did not discuss possible state prosecution with him.
16. The 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. As a matter of FBI practice, neither in-person contacts nor telephone calls during which such information could have been disclosed are routinely recorded or filed, therefore, the absence of any note of a particular disclosure is not probative as to any dissemination of information revealed in a proffer session.
17. Through his contacts at the Linwood, New Jersey, FBI office, retired FBI agent Jack Tuttle, Director of Surveillance for Bally's Grand casino, successor to the Golden Nugget, made clear his interest in the Barone case and made inquiries about the federal prosecution from the time of Mr. Barone's arrest, long before his court testimony.
18. Around the second week of December, 1989 (after Mr. Barone's proffer and plea agreement, but before his testimony at the Merlino trial), Agent Rochon contacted Mr. Barone who was then living in protective custody and informed him that New Jersey authorities had wished to speak with him about the casino thefts, but that he (Rochon) had prevented them from speaking with Mr. Barone at that time.
19. At about the same time, Inspector Carl Gravel of the New Jersey Division of Criminal Justice, Casino Protections Section, contacted Mr. Tuttle and asked to review surveillance video tapes for the date of the Golden Nugget theft.
20. Shortly thereafter, Pamela Costello learned she was under investigation. She retained counsel (an attorney who had previously represented members of the Merlino family) and negotiated a deal with New Jersey authorities; she obtained immunity from prosecution and became the accusing witness against Mr. Barone in the casino cases.
21. The reactivation of casino theft investigations by New Jersey authorities occurred after Mr. Barone's proffer and plea agreement, but before his Merlino trial testimony or any public disclosure of his culpability.
22. On January 10, 1990, Mr. Barone testified against codefendant Joseph Merlino, in accordance with his plea agreement. Mr. Barone's attorney was not present. On cross-examination by counsel for Mr. Merlino, Mr. Barone was asked about one of the casino thefts. N.T. 5-6 (Jan. 10, 1990). The court did not advise Mr. Barone at that time (or at any other time) of his rights under the Fifth Amendment, and he answered the question, under oath, without understanding that he had no immunity.
23. Mr. Barone testified on cross-examination in open court: there is no evidence of record that his answer to the question about the casino theft was reported in the Philadelphia newspapers, nor that any New Jersey or casino official was present in court to hear that testimony. His admission would not have become known to them unless it were deliberately disclosed to them by a federal law enforcement officer or agent, either before or after the testimony, or by someone else present in court such as a member of the Merlino family.
24. Shortly after Mr. Barone's testimony admitting involvement in the Golden Nugget theft, Mr. Tuttle (of Bally's) received a telephone call from a federal law enforcement agent concerning this testimony. Tuttle shared this information with Inspector Gravel. Inspector Gravel's affidavit is too vague in certain relevant respects to have inherent credibility; he did not appear to testify at the recent hearings.
25. Assistant U.S. Attorney Robert E. Goldman told U.S. Probation Officer Jay Purcell, and Mr. Purcell stated in the Pre-Sentence Investigation Report that at some time between Mr. Barone's...
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