On certification to the Superior Court, Appellate Division, whose opinion is reported at 288 N.J. Super. 102 (1996).
The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justices Pollock, O'hern, Garibaldi and Stein join in Justice Coleman's opinion. Justice Handler filed a separate Concurring opinion.
The opinion of the court was delivered by: Coleman
(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).
State of New Jersey v. Richard A. Barone (A-43-96)
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 1989, 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 1987 theft of money from an armored truck during and interstate shipment. On November 3, 1989, 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 1990 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.
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 ...