The opinion of the court was delivered by: GERRY
Defendant Angelo Lippi has moved to dismiss this indictment against him on the grounds of prosecutorial misconduct asserting that the felony charges contained in it were brought in retaliation for his refusal to waive his right to a trial before a district judge under an earlier misdemeanor complaint filed with a U.S. Magistrate. The parties agreed to a resolution of the issue upon affidavits of both counsel, after a hearing at which neither side presented testimony. For the reasons stated below, the court finds that the appearance of impermissible prosecutorial pressure upon the defendant's exercise of his statutory and constitutional rights requires that the indictment in this action be dismissed.
The affidavits of counsel reveal the following facts. On or about February 24, 1977, the Assistant U.S. Attorney in charge of this case was informed by the Postal Inspection Service of an investigation into the disappearance of mail at the post office in Saddle River, New Jersey. On that date, he authorized a postal inspector to arrest postal employee Angelo Lippi for obstruction of the mail in violation of 18 U.S.C. § 1701,
a misdemeanor offense. A complaint was filed the following day before a U.S. Magistrate, Exhibit attached to Miller Affidavit, charging Lippi with obstruction of the mail on two occasions, February 9 and 14, 1977. The Assistant U.S. Attorney's affidavit states that
[subsequent] to Mr. Lippi's arraignment on February 25, 1977, I discussed this matter on numerous occasions with Postal Inspector Kyanko. It became obvious to me during the course of these discussions that in addition to the charge already filed against Mr. Lippi that there was evidence to support four additional charges against Mr. Lippi. On March 7, 1977, when I received a letter from Gerald D. Miller indicating that he was counsel for Mr. Lippi, I called Mr. Miller and advised him in substance that our office had a policy which favored the handling of postal matters before the U.S. Magistrate. I further advised Mr. Miller that in addition to the charges set forth in the initial complaint filed before [the magistrate] that subsequent to the filing of the complaint information was developed which showed that the defendant had committed other postal violations on other dates, and that based on this fact that a felony prosecution and/or the filing of additional charges would be warranted by the facts. I further advised Mr. Miller that if Mr. Lippi consented to have the matter heard before the Magistrate, the Government would forego its right to file additional charges on these facts and its right to seek an indictment on the felony charges. Mr. Miller specifically advised me that he would consult with his client on this matter, but that he did not know if this could be done prior to March 10, 1977, the date set for election of forum, because defendant was too emotionally upset by the events.
Affidavit of Matthews at para. 2.
On March 10, Lippi appeared before the magistrate to elect the forum in which the complaint was to be tried, as required by the terms of the complaint. Upon the advice of his counsel, he elected to have the matter tried by a district judge pursuant to 18 U.S.C. § 3401(b).
The Assistant U.S. Attorney's affidavit continues in these words:
On or about March 15, 1977, I again contacted Gerald D. Miller, counsel for the defendant, and discussed with him the question of whether or not the defendant would consent to the jurisdiction of the Magistrate. I again specifically told Mr. Miller that the Government was in a position to bring additional charges and my feeling was that the facts in the case would warrant a felony prosecution. Mr. Miller advised me that Mr. Lippi would not consent to the jurisdiction of the U. S. Magistrate because he felt that Judge [X] was a Government Judge who never found any defendant not guilty. He further indicated he felt his chances would be better if he went before a U.S. District Judge where he had an opportunity to have the matter tried by either [of two named judges] who would become irritated with the Government for bringing the charge in the first place.
Mr. Miller specifically stated that if the matter had been assigned to U. S. Magistrate [Y] he would in fact consent to the jurisdiction of the Magistrate. I told Mr. Miller that upon receipt of an investigative report that I would review the matter in its entirety and based on all the evidence would make a decision as to what prospective action would be taken.
On March 15, 1977, I received an investigative report and upon review presented the matter to a Grand Jury on April 6, 1977.
Id. at PP 3, 4. The Grand Jury returned an indictment charging six counts of delay and destruction of mail by a postal employee in violation of U.S.C. § 1703(a),
a felony charge.
Very shortly after the complaint was filed, the Assistant U.S. Attorney learned of statements given by five other witnesses.
Exhibits 9, 15, 16, 17, 18 attached to Supplemental Affidavit of Matthews. The new statements contain circumstantial evidence of two violations not charged in the complaint (set forth in Counts I and II of the indictment) and direct evidence of acts charged in Count III of the indictment that were at least intimated at the time of the complaint. Compare Exhibits 9 and 16 with Exhibit 13. Counts IV, V and VI are based on facts recited in the earlier complaint. The primary impact of the new evidence is that several witnesses actually saw Lippi throwing away mail on several occasions. Exhibits 9 and 16. These accounts would constitute evidence of similar acts in support of all charges. On the other hand, no substantially more serious crimes are revealed in the later statements than were detailed in the earlier statements. The primary difference between the misdemeanor and felony offenses charged is that the latter requires the defendant to be a postal employee, a fact known to the prosecutor at the outset. See notes 1 and 3 supra. Apparently, the substance of these later statements was made known to the prosecutor in conversations with the postal inspector prior to March 7, the date of his first conversation with defense counsel. Affidavit of Matthews at para. 2.
Defendant Lippi contends that the felony indictment was brought in retaliation for his refusal to accede to the prosecutor's demand that he waive his statutory right to trial before a district court in violation of his Fifth Amendment right to due process of law, and ...