(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 19, 1996 -- Decided March 10, 1997
COLEMAN, J., writing for the Court.
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.
Barone had a romantic relationship with Pamela Costello. According to Costello, Barone coerced
her into stealing over $40,000 from Harrah's and Golden Nugget casinos, where she worked as a cage
cashier on different occasions between 1985 and 1986. During the period between the thefts and November
l989, the New Jersey Division of Criminal Justice considered Costello and Barone as suspects in the thefts.
In an unrelated criminal proceeding, Barone 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 l987 theft of money from an armored truck during and interstate shipment. On November
3, l989, defendant entered into a written plea agreement with the federal prosecutor, whereby he agreed to
plead guilty to two counts of the indictment and to testify against Merlino in exchange for dismissal of the
remaining count and an opportunity to apply for admission to the federal witness protection program.
One day prior to his execution of the plea agreement, Barone and his attorney met with two FBI
agents and an Assistant United States Attorney. The parties identified that meeting as a proffer session.
The extent of the information discussed at the proffer session is disputed, Barone and his attorney
maintaining that Barone had disclosed information regarding the casino thefts.
Barone was sentenced by the federal court to a custodial term for his conviction. While he was
serving that term, he was indicted in November l990 on multiple counts by a New Jersey state grand jury for
charges stemming from the casino thefts. As a result of the state indictment, Barone's enrollment in the
Federal Witness Protection Program was barred. Barone then filed 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,
leading to the state indictment.
The federal court conducted an evidentiary hearing to determine whether the federal plea agreement
had been breached. Although a New Jersey Deputy Attorney General attended a portion of the hearing , he
did not participate or otherwise seek to intervene. Following the hearing, the federal court found that
Barone had disclosed his involvement in the casino thefts during the proffer session and that the federal
government had breached the plea agreement by disclosing defendant's proffered testimony to New Jersey
authorities.
Thereafter, Barone filed a motion to dismiss his state indictment, claiming that federal agents had
breached the plea agreement by disclosing information about the casino thefts to the New Jersey authorities,
and that such disclosures had led to his state indictment. The state trial court conducted and evidentiary
hearing on the matter and disagreed with the federal court's conclusion that Barone had disclosed his
involvement in the casino thefts at the proffer session. The Law Division concluded that the evidence upon
which the federal court relied was not credible and that its conclusion was, therefore, not entitled to any
deference. Moreover, the trial court concluded that the State's evidence was obtained from sources and by
means entirely independent of Barone's alleged disclosure of the casino thefts during the proffer session.
The trial court, therefore, denied Barone's motion to dismiss the state indictment.
After trial, Barone was convicted and sentenced to a custodial term. He appealed his conviction to
the Appellate Division, which reversed the casino theft and conspiracy convictions, holding that principles of
fairness required the New Jersey Attorney General to participate in the federal evidentiary hearing because it
had knowledge of the hearing that resulted in a determination that the plea agreement had been violated.
The Supreme Court granted the State's petition for certification.
HELD: Because the State was not a party to the plea agreement, did not participate in the federal court
evidentiary hearing, did not consent to be bound by the plea agreement and no privity existed between the
state and federal governments, the State was not bound by the outcome of the federal hearing.
1. Absent a grant of immunity, the federal plea agreement does not directly bar derivative use in state courts
of a defendant's testimony given at proffer sessions. (pp. 12-13)
2. Absent consent or participation by state authorities in the plea agreement, federal prosecutors cannot
bind state prosecutors or vice versa. (pp. 13-14)
3. As a corollary of the dual sovereignty doctrine, which allows the state and federal governments to
prosecute separately for the same acts, collateral estoppel does not bar a state prosecutor from using
evidence previously suppressed in a federal proceeding in which the state prosecutor was not a party. (pp.
15-16)
4. Because the federal court found no bad faith violation of the plea agreement, and the violation caused
defendant to suffer no irreparable harm, no basis exists for the State to terminate its prosecution based on
comity. (pp. 16-18)
5. An appellate court's scope of review of the trial court's determination that the State's evidence was
wholly independent of what defendant revealed at the proffer session is limited to “whether the findings
made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the
record.” (pp. 19-20)
Judgment of the Appellate Division reversing the convictions for theft and conspiracy is REVERSED.
JUSTICE HANDLER filed a separate concurring opinion in which he agreed with the Court's
ultimate resolution of the case, but did not subscribe to its “unnecessarily overstated holding regarding the
determination of when a New Jersey court should defer to a federal court's factual findings.” Rather, he
would have reinstated Barone's convictions and sentence solely because the State's indictment was based on
evidence independent of the circumstances surrounding his federal plea agreement and the breach of that
agreement.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI and STEIN join in
JUSTICE COLEMAN'S opinion. JUSTICE HANDLER filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
43 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RICHARD A. BARONE,
Defendant-Respondent.
Argued November 19, 1996 -- Decided March 10, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
288 N.J. Super. 102 (1996).
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
COLEMAN, J.
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 (1996). We granted
certification,
144 N.J. 589 (1996), and now reverse.
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.
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.
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.
Defendant filed a motion to dismiss his state indictment, claiming that federal agents had breached the plea agreement by disclosing information about the casino thefts to the New Jersey authorities, and that such disclosures had led to his state indictment. Six days after the federal court's decision and order were entered on December 13, 1991, the state trial court conducted an evidentiary hearing to determine whether to dismiss defendant's indictment. No transcript of the testimony presented in the federal court hearing was available. The trial court disagreed with the federal court's conclusion that defendant had
disclosed his involvement in the casino thefts at the proffer
session. The court observed that FBI Agent Rochon's notes from
the proffer session made no reference to the casino thefts. That
was significant because Rochon's memorandum to the file
specifically indicated that defendant would later discuss La Cosa
Nostra gambling, the Junior Black Mafia, false accident claims,
and influencing members of the Philadelphia Flyers hockey team.
The trial court concluded that the only reference to
defendant's alleged disclosures of his involvement in the casino
thefts was a certification by defendant's former attorney, dated
approximately twenty months after defendant had testified in the
Merlino trial and twenty-two months after the proffer session.
The court found that the certification was not credible. That
certification, dated August 28, 1991, stated that "[a]mong the
matters disclosed by Mr. Barone during [the proffer session] were
thefts involving large sums of money from casinos in Atlantic
City." The Law Division concluded that because the evidence
relied upon by the federal court was not credible, the federal
court's determination that defendant had disclosed information
about the casino thefts during the proffer session was not
entitled to any deference. The Law Division found that defendant
had first admitted his involvement in the casino thefts on
January 10, 1990, during the federal trial of Joseph Merlino.
Moreover, the trial court concluded that the State's
evidence was obtained from sources and by means entirely
independent of defendant's alleged disclosure of the casino
thefts during the proffer session. That conclusion was based in
part on the testimony of several witnesses, including
Investigator Gravel. He testified that defendant and Costello
had been the only suspects in the investigation of the casino
thefts, and that his supervisor had ordered him to subpoena
Costello's tuition records from the university she was attending
to investigate the possibility that she had used proceeds from
the casino thefts to pay her tuition. After her records were
subpoenaed, Costello became the State's primary witness against
defendant. In her affidavit of September 1991, Costello stated
that having her tuition records subpoenaed had prompted her to
seek legal counsel, and that she had decided to cooperate with
New Jersey authorities to seek protection from defendant and
protect her medical career by clearing her name. Costello
claimed that she had learned of defendant's testimony in the
Merlino trial, in which defendant implicated Costello and himself
in the casino thefts, after she had decided to cooperate with the
New Jersey authorities.
According to Gravel, he also contacted the State Police
Officer who had been in charge of the investigation of the Golden
Nugget theft to discuss the case and to review surveillance tapes
recorded on the day of the Golden Nugget theft. Gravel testified
that during the meeting the officer had called a representative
from the Bally's (formerly the Golden Nugget) Surveillance
Department, who had informed him that defendant had implicated
himself and Costello on cross-examination at the Merlino trial.
According to Gravel, the officer informed him of defendant's
testimony and showed him a newspaper article, which stated that
defendant had testified against Merlino regarding the 1987
armored truck incident. The information about defendant's
testimony in the Merlino trial confirmed his suspicion that
defendant and Costello had participated in the casino thefts.
Deputy Attorney General Smith of the Casino Protections
Section, who served until January 1990, and his successor Deputy
Attorney General Walls, testified that federal authorities had
not directly or indirectly provided their section with
information regarding defendant.
The trial court denied defendant's motion to dismiss,
holding that the information obtained by "the New Jersey
authorities came from either the detailed investigation made by
Investigator Carl Gravel or the investigation that showed that
the defendant Barone made those admissions while under cross-examination at the federal trial" of Merlino.
At the conclusion of a jury trial, defendant was convicted
of third-degree conspiracy to commit theft by unlawful taking;
two counts of third-degree theft by unlawful taking; and several
offenses committed against Costello. The conspiracy count was
merged with the theft counts for sentencing purposes, and
defendant was sentenced to concurrent four-year terms and ordered
to pay $47,313 in restitution and a $30 per count Victims of
Crime Compensation Board assessment.
First we address what, if any, preclusive effect should be
accorded the federal court's determination that there was a good
faith violation of the federal plea agreement. The Appellate
Division reversed defendant's convictions for the casino thefts
and conspiracy because the Attorney General of New Jersey
declined to participate in the federal court hearing that
resulted in a determination that the plea agreement had been
violated. 288 N.J. Super. at 124. The Appellate Division ruled
that because the Attorney General was aware of the federal
hearing and "elected not to directly participate or seek to
participate, either before the federal judge rendered her
findings or by any endeavor to challenge them thereafter," the
state judge was bound to accept the federal court's findings.
Ibid. Consequently, the Appellate Division found that the
federal court's finding totally barred litigating in state court
whether the indictment was based on a violation of the federal
plea agreement. Ibid.
The State argues that the federal court's findings should
have no preclusive effect on the state court criminal
proceedings. It maintains that the State was not obligated to
participate in the federal hearing and that the federal court
lacked jurisdiction to prevent the State from proceeding with the
indictment and trial in state court.
The essence of defendant's argument that the federal court's
finding that the plea agreement was breached requires dismissal
of the indictment, in whole or in part, is the implied premise
that the federal plea agreement was a grant of immunity that was
binding on the State. Both the federal and state courts
considered and rejected interpreting the plea agreement to be a
grant of immunity. Barone, supra, 781 F. Supp. at 1078; 288 N.J.
Super. at 116. Rather than a grant of immunity, the plea
agreement was a promise not to prosecute. Barone, supra, 781 F.
Supp. at 1078. Indeed, the language in the agreement dictates
that conclusion. Paragraph 6(c)(2)(e) of the plea agreement
provides "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." Clearly, that
language creates an agreement not to prosecute, which is not a
grant of immunity. Absent a grant of immunity, the federal plea
agreement does not directly bar derivative use in state courts of
defendant's testimony given at proffer sessions. Murphy v.
Waterfront Comm'n,
378 U.S. 52, 78-79,
84 S. Ct 1594, 1609,
12 L.
Ed.2d 678, 694-95 (1964).
We reject the Appellate Division's implication that the
State was obligated to participate in the federal hearing. The
State was not a party to the plea agreement and did not
participate in the proffer session. Only the United States
Attorney and FBI agents participated in the proffer session.
Paragraph 6(c)(2)(e) of the agreement provides that only the
"government will bring no additional charges against the
defendant" for disclosures made during the proffer session.
(Emphasis added). Thus, the agreement did not purport to bind
any jurisdiction except the federal government.
Furthermore, the United States Attorney for the Eastern
District of Pennsylvania had no authority to bind any state
prosecuting authority in New Jersey. Absent consent or
participation by state authorities in the plea agreement, federal
prosecutors cannot bind state prosecutors and vice versa. The
State did not participate in negotiating defendant's plea
agreement, and there is no evidence of any agency relationship
between the State and the United States Attorney. Nor can it be
said that the State, in bringing its prosecution, was a tool of
the federal government. It has not been asserted that the casino
thefts violated any federal law, and the State's prosecution was
not a sham. Bartkus v. Illinois,
359 U.S. 121, 123-24,
79 S. Ct. 676, 678,
3 L. Ed.2d 684, 687 (1959); see also United States v.
Sparks,
87 F.3d 276, 279 (9th Cir. 1996) (holding that state
prosecutor cannot bind federal government); United States v.
Cordova-Perez,
65 F.3d 1552, 1554 (9th Cir. 1995) (holding that
state prosecutor cannot bind federal government where federal
government is not party to plea agreement), cert. denied, __ U.S.
__,
117 S. Ct. 113,
136 L. Ed.2d 65 (1996); Stephens v. Attorney
Gen.,
23 F.3d 248, 249 (9th Cir. 1994) (holding that state is not
bound by results of federal evidentiary hearing where no privity
between state and federal prosecutors existed); United States v.
Fuzer,
18 F.3d 517, 520 (7th Cir. 1994) (holding that state
prosecutor cannot bind federal prosecutor absent knowledge and
consent); Wisconsin v. Mechtel,
499 N.W.2d 662, 667 (Wis. 1993)
(finding that state and federal governments are separate
sovereigns and that neither can bind other without consent).
Under the doctrine of "dual sovereignty," the state and
federal governments have the power to prosecute separately for
the same acts. United States v. Wheeler,
435 U.S. 313, 316-20,
98 S. Ct. 1079, 1082-84,
55 L. Ed.2d 303, 308-11 (1978); United
States v. Davis,
906 F.2d 829, 832 (2d Cir. 1990). As a
corollary of the dual sovereignty doctrine, collateral estoppel
does not bar a state prosecutor from using evidence previously
suppressed in a federal proceeding in which the state prosecutor
was not a party. Davis, supra, 906 F.
2d at 832; see also 5 Wayne
R. LaFave, Search and Seizure § 11.2(g), at 101 (3d ed. 1996)
(emphasizing that deferring to federal prosecution does not make
state a party to federal proceedings).
In this case, the State was not a party to the agreement, it
did not participate, nor was it obligated to participate, in the
federal hearing, it did not consent to be bound by the agreement,
and no privity existed between the state and federal governments.
For those reasons, we hold that the State was not bound by the
outcome of the federal hearing. To hold otherwise would mean
that federal prosecutors would be able unilaterally to usurp
state prosecutorial discretion.
The Appellate Division also ruled that "as a matter of
comity, the State judge should not have conducted an independent
hearing on the same factual questions." 288 N.J. Super. at 124.
In relying on "comity" as a basis to reverse, the Appellate
Division did not follow the federal court's ruling it purportedly
was upholding. The federal court found that because there was no
evidence that the violation of the plea agreement was in bad
faith, comity prevented that court from enjoining the state court
proceedings. Barone, supra, 781 F. Supp. at 1079.
The Appellate Division overstated the claim of comity:
Comity is not a rule of law, but one of
practice, convenience, and expediency. It is
something more than mere courtesy, which
implies only deference to the opinion of
others, since it has a substantial value in
securing uniformity of decision, and
discouraging repeated litigation of the same
question. But its obligation is not
imperative. . . . Comity persuades; but it
does not command.
[Mast, Foos, & Co. v. Stover Mfg. Co.,
177 U.S. 485, 488,
20 S. Ct. 708, 710,
44 L. Ed. 856, 858 (1900).]
Thus, comity is not "a binding obligation on the forum
state, but a courtesy voluntarily extended to another
[jurisdiction]." City of Philadelphia v. Austin,
86 N.J. 55, 64
(1981). Our policy against duplicative litigation, reflected in
our entire controversy cases, does not require us to create
, in a
de facto sense, a new rule of comity. The Attorney General's
failure to participate in the federal hearing does not evidence
an intent to harass, gain undue influence over defendant, or act
otherwise in bad faith.
Because the federal court found no bad faith violation of
the plea agreement, and the violation caused defendant to suffer
no irreparable harm beyond that attendant to every criminal
prosecution, no basis exists for the State to terminate its
prosecution based on comity. Younger v. Harris,
401 U.S. 37, 43-44,
91 S. Ct. 746, 750,
27 L. Ed.2d 669, 675 (1971); Perez v.
Ledesma,
401 U.S. 82, 85,
91 S. Ct. 674, 677,
27 L. Ed.2d 701,
705 (1971); United States ex rel. Birnbaum v. Dolan,
452 F.2d 1078, 1079 (3d Cir. 1971); Sole v. Grand Jurors,
393 F. Supp. 1322, 1327 (D.N.J. 1975); cf. Breeden v. New Jersey Dep't of
Corrections,
132 N.J. 457, 469 (1993) ("If the sentencing
authority of the State is to yield to that of another state, then
it must be with the concurrence of the sentencing authority of
New Jersey.").
In the present case, the Law Division properly elected not
to defer to the federal court given the fact that the federal
court acknowledged that it could not enjoin the state
prosecution. Barone, supra, 781 F. Supp. at 1079. Moreover,
reversing defendant's convictions on grounds of comity would
contravene the State's public policy, given the Law Division's
conclusion that the indictment was based on evidence obtained
independent of the good faith breach of the federal agreement
found by the federal court. The Law Division undoubtedly was
motivated to apply the independent source rule to make certain
that defendant was not treated unfairly even if a good faith
breach of the federal agreement had occurred.
The finding that the state indictment was based on information obtained independently of the proffer session disclosures provides another compelling reason not to ascribe any preclusive effect to the federal court finding of a good faith breach of the plea agreement. In applying the independent source doctrine, the trial court apparently relied on Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed.2d 212 (1972). Kastigar instructs that a prosecutor may rebut a defendant's claim that the prosecutor impermissibly used the defendant's compelled testimony in breach of a grant of use and derivative use immunity by showing that the disputed evidence was derived from "a legitimate source wholly independent" of the defendant's compelled testimony. Id. at 460, 92 S. Ct. at 1665, 32 L. Ed. 2d at 226; see also Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S. Ct. 407, 415-16, 9 L. Ed.2d 441, 453-54 (1963) (stating that physical and verbal evidence that is "fruit" of illegal government conduct must be excluded); United States v. Quatermain, 613 F.2d 38, 40 (3d Cir. 1980) (explaining that
government may prosecute using evidence derived from source
wholly independent of disputed testimony).
Because a grant of use and derivative use immunity does not
confer upon a defendant a pardon or amnesty, Kastigar, supra, 406
U.S. at 461, 92 S. Ct. at 1665, 32 L. Ed.
2d at 226, surely,
then, a plea agreement that proscribes a prosecution based on a
defendant's testimony disclosed during a proffer session does not
grant the pardon or amnesty that defendant seeks in the present
case. See State v. Strong,
110 N.J. 583, 595-96 (1988) (barring
"prosecutorial use of any and all evidence that would not have
been developed or obtained but for the compelled testimony").
Indeed, the federal judge was moved to find only a good faith
violation of the plea agreement because the state indictment was
not returned until November 1990, which was eleven months after
defendant had testified under oath in a public trial that he had
participated in the casino thefts. That testimony was a
compelling piece of independent evidence. Consequently, even if
there was a good faith violation of the plea agreement, under the
independent source rule, defendant was not prejudiced in the
state prosecution. State v. Sugar,
100 N.J. 214, 241-42 (1985).
An appellate court's scope of review of the trial court's
determination that the State's evidence was wholly independent of
what defendant revealed at the proffer session is limited. We do
not weigh the evidence, assess the credibility of witnesses, or
make conclusions about the evidence. The test is "whether the
findings made [by the trial court] could reasonably have been
reached on sufficient credible evidence present in the record."
State v. Johnson,
42 N.J. 146, 162 (1964). Our review of the
record persuades us that the test was satisfied in this case.
The judgment of the Appellate Division reversing the
convictions for theft and conspiracy is reversed.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI
and STEIN join in JUSTICE COLEMAN'S opinion. JUSTICE HANDLER
filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
43 September Term 1996
STATE OF NEW JERSEY
Plaintiff-Appellant,
v.
RICHARD A. BARONE,
Defendant-Respondent.
___________________________________
HANDLER, J., concurring.
I join the Court in reinstating defendant's convictions and sentence. However, I do so solely because the State indictment was based on evidence independent of the circumstances surrounding defendant's federal plea agreement and the breach of that agreement. New Jersey law enforcement began to investigate Pamela Costello because of a suspicion that she was using funds that she had stolen from a casino to pay for her medical education. This investigation then led to defendant's implication in the crimes for which he was later indicted. Moreover, according to Costello, she began to cooperate with State authorities before she found out about defendant's testimony at the federal trial of Joseph Merlino. Because the State prosecution relating to the casino thefts was based on
information provided by Costello, the information that the State
may have obtained from defendant's federal testimony was not
the source of the prosecution.
Despite my agreement with the Court's ultimate resolution of
the case, however, I do not subscribe to its unnecessarily
overstated holding regarding the determination of when a New
Jersey court should defer to a federal court's factual findings.
The Court, in validating the Law Division's refusal to defer to
the federal findings, implicitly draws the startling conclusion
that, when a criminal conviction is at stake, the only reason to
afford comity to the factual findings of another jurisdiction is
to neutralize bad faith on the part of prosecuting authorities.
Ante at __-__ (slip op. at 16-18). Thus, according to the Court,
because the federal court in this case could not have enjoined
the State prosecution under the principles enunciated in Younger
v. Harris,
401 U.S. 37,
91 S. Ct. 746,
27 L. Ed.2d 669 (1971),
the Law Division had no obligation to defer to that court's
findings. Ante at __-__ (slip op. at 17).
The Court does a disservice by converting the true statement
that comity is not "a binding obligation," City of Philadelphia
v. Austin,
86 N.J. 55, 64 (1981), into a presumption against
comity if no bad faith has been shown. If the State prosecution
in this case were not based on independent evidence (in other
words, if the federal court's findings were relevant to the
disposition of the case), I would hope that the Court would be
truly reluctant to instruct New Jersey courts that they simply
should disregard the findings of the court of another
jurisdiction. I fear that lower courts may be tempted to do just
that in future cases when the factual findings of other courts
are relevant.
In this case, the federal court, after taking the
exceptional step of conducting a plenary hearing into the alleged
prosecutorial breach of defendant's plea agreement, determined
that the government had violated at least the spirit of the
agreement by divulging information to New Jersey authorities.
United States v. Barone,
781 F. Supp. 1072, 1078 (E.D. Pa. 1991).
The court made extensive factual findings to that end. Id. at
1074-77. However, it determined that it lacked power to enjoin
New Jersey from prosecuting defendant. Id. at 1079. This lack
of power stemmed from the principle, as embraced repeatedly by
the United States Supreme Court, that courts of different
jurisdictions should respect each other's ability to decide
issues. E.g., Stone v. Powell,
428 U.S. 465,
96 S. Ct. 3037,
49 L. Ed.2d 1067 (1976) (holding that federal courts hearing
petitions for habeas corpus should defer to state-court Fourth-Amendment exclusionary rulings if state courts provided full and
fair opportunity to raise issue); Younger, supra,
401 U.S. 37,
91 S. Ct. 746,
27 L. Ed.2d 669.
Yet, the federal court's lack of power to enjoin New Jersey
from prosecuting defendant does not translate into a license for
our courts to disregard the federal findings entirely. See State
v. Lueder,
74 N.J. 62, 70 (1977) (stating that, while full faith
and credit did not require deference to foreign criminal
judgments, New Jersey courts ordinarily would defer to such
judgments based on principles of comity).
Although the Law Division was not bound to accept the
federal court's factual determinations, its decision not to
accept them was unsupported by credible reasoning. The federal
court provided thorough analysis, based on first-hand testimony,
of the events surrounding the breach of the plea agreement by
federal authorities, and the Law Division could not conceivably
have done a better fact-finding job. Moreover, the federal court
had the benefit of New Jersey law enforcement officers, who were
present at the federal hearing and who were in an excellent
position to inform the federal court of the adequacy and accuracy
of that court's factual findings and to challenge those findings
that the officers believed to be erroneous.
Considering the federal court's thorough treatment of the
subject and the State's ample opportunity to affect that
treatment, the Law Division simply had no sound reason to rebuff
the federal court's determinations out of hand. Where one court
has this type of advantage in the fact-finding process, deference
is particularly appropriate. Cf. State v. Marshall,
244 N.J.
Super. 60, 69 (Law Div. 1990) ("[W]hile this court is not bound
by the . . . Oklahoma conviction, it recognizes the superior
position of the Oklahoma courts to render an assessment on the
propriety of the judgment.") (emphasis added). Yet, despite its
inferior vantage point, the Law Division forged ahead, evincing
an insensitivity to the very idea of comity and an obtuseness to
the comprehensive factual determinations of another court.
While comity is not always a "binding obligation," nor is it
a doctrine to be brushed aside lightly. We are but one component
of a jurisdictional constellation that must function in unison if
the American jurisprudential theory of multiple sovereignties is
to succeed. We should be mindful of this abstract theory when we
decide concrete cases.
Accordingly, I concur.
NO. A-43 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RICHARD A. BARONE,
Defendant-Respondent.
DECIDED March 10, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY Justice Handler
DISSENTING OPINION BY