Thomas Palermo and Sheldon Saltzman v. Warden, Green Haven State Prison, and Russell Oswald
545 F.2d 286
2d Cir.
1976
Check Treatment

*3 MESKILL, Before WATERMAN BARTELS, Judges, and District Circuit Judge.* MESKILL, Judge: Circuit 1970, In Thomas Palermo and Sheldon Saltzman, prisoners, both New York State brought against a multitude of officials suit alia, alleged seeking, damages inter agree negotiated plea of a nonfulfillment prison immediate release from ment and Judge under 42 U.S.C. §§ Mansfield, judge, then a held that complaint against stated a valid claim Russell Commissioners Oswald parole Jones and other Howard commission defendants, as John named Doe ers City York Police Detective against New dis district court John O’Connor. complaint District as missed Assist Attorney Mackell and Chief Thomas Ludwig for Attorney Frederick ant justifications allege sufficiently to failure immunity. Paler abrogate prosecutorial Rockefeller, (S.D.N. F.Supp. 478 mo v. entered Y.1971).1 judgment was No final years Five defendants. to the dismissed as 19,1976,2 later, trial commenced April * interim, Supreme pursuant York, sitting by to the the Eastern Of District of New designation. Rodriguez, in Preiser Court’s decision 36 L.Ed.2d injunctive complaint plaintiffs’ 1. Plaintiffs then filed an relief amended 1983 claim for § defendants, against prison as Judge these was treated Mans- release from the form of July petition. corpus field dismissed on Gener- 1971. The case thus a habeas posture moved for was left in the same York then after the first New al case, alleging aspect decision. dismissal of that Judge against claim claim Ludwig. Palermo’s habeas before Griesa Mackelland For the damage below, plaintiffs on the claim both reasons stated we affirm. against commissioners and De- I. The District Findings. Court’s jury. Upon before a

tective O’Connor April Judge trial’s conclusion on The State contends that the findings of held that there was insufficient evi- Griesa clearly District Court are erroneous be- to submit of the damage dence claims cause it failed to facts, consider critical jury against to the and dismissed the case primarily extraordinary played role Oswald, Jones and Granting O’Connor.3 attorneys, Palermo’s and because it “chose application Palermo’s for a writ of habeas plaintiffs’ to believe all witnesses and none corpus, the district court concluded that the respondent’s witnesses.” The basic chro- prosecuting authorities negotiated nology of events is not dispute. On the bargain in bad faith and failed to fulfill the morning of February several men made. promises The court ordered Paler- robbed the (“Provi- Provident Loan Society *4 mo’s unconditional release parole without as dent”) Queens County of several millions meaningful only form of relief. of dollars worth jewelry which had been appeal, 2,000 pledged by Queens On the State raises seven more claims than resi- (1) findings of error: that the of the district dents to the Provident as collateral for that Palermo plead court was induced to morning, loans. That same Palermo and guilty by representations not carried out Saltzman were scheduled for trial for an erroneous; clearly (2) were that the robbery return previously armed had oc- property of stolen was unlawful considera- curred in County. Richmond The two men tion which could not support plea bargain; appear did not for trial until mid-day. In 1(3) that materially February, 1969, breached his late both men were found Palermo^ obligations by failing to return all of guilty robbery, Richmond after a / (4) property; any parole trial, stolen that prom- jury and custody remanded to pending

ises made were ultra vires and binding sentencing not in that case. After several ad- State; (5) that on the the relief journments, they afforded still awaited sentence in inappropriate; (6) was unlawful and that May, they which time also had Mackell, the dismissal in favor of Ludwig arrested for the Provident robbery. been and should have others been entered nunc admitted his role in the Saltzman Provident tunc; pro (7) and that robbery district court while Palermo maintained he did its discretion in denying robbery. abused in that participate Evidently, defendants Jones and Oswald costs attorney’s although negotiations and there were various fees. addition, Palermo appeal Queens prosecutors and Saltzman between and Paler- Saltzman,4 dismissal of the damage mo and was judgment nonexhaustion of pro- state remedies. Since final Saltz- was entered after the 1976 and, by ceeding. man did not exhaust state remedies July, parole had been released on and had status, 4. Palermo testified that relating parole there were three made no claim to his he imposed party “deals” offered before sentence was was not a in the habeas action. The offer, County robbery. ultimately the Richmond The first State withdrew its nonexhaustion by O’Connor, meeting made at a attended defense as to Palermo and consented to the Attorney Demakos, addition, party defendant, Assistant District Queens as a of the Warden (Palermo’s attorney Prison, Jacob Evseroff at of Green Haven State where Palermo (Saltzman’s time), attorney) William Smith and began. was incarcerated when the trial Saltzman, year and was for a ten Palermo sen- against exchange 3. Plaintiffs consented to the dismissal for return of the tence Queens reply County jewelry. Oswald and Jones. The district court also dis- Palermo’s was that he against nothing missed action all the John Doe and about that crime. Evseroff knew con- defendants, anonymous parole meeting Richard Roe such a was held. firmed that final commissioners. Since no order Assistant District then Richmond against adjournment sentencing entered in when the action Mac- an obtained dismissed, Ludwig day. kell and court was noted for that On the next date set scheduled any right sentencing, accrue for Evseroff communicated County prosecutor’s bearer of a deal from the of- Richmond sen- before reached 27, 1969, fice, following on June imposed Evseroff offered terms: was tence an indetermi- received of the Richmond sen- which time no reduction twenty- with a maximum (from nate sentence months tence but an inde- received original Saltzman years five time incarceration Febru- year a fifteen maxi- term with terminate 1969) ary, prosecutorial due to intercession Palermo and Saltz- July On Board; mum. suspended sen- terms incarceration in their began man discharge on the Pro- unconditional tence or July On Sing Prison. Sing robbery charge; dismissal or uncon- vident Sing brought from inmates the two discharge after a to a ditional for Queens House of Detention Sing charge pending lesser offense for Onei- robbery and about discussions Provident (the offense”) County da “Utica dis- pending in against them charges the related charge against co- missal of Utica two County. defendants; dismissal of an assault Queens. charge pending in Palermo testi- assess the district point, to better At this findings, specifically turn to the testimonial fied asked O’Connorto we court’s attorney’s Palermo testified adduced at trial. how the district office determine evidence Sing Sing, after his return from with the Pa- shortly planned handle interaction conveyed offer, Bobick5 al- attorney County authori- role Board the Oneida office, reducing from Mackell’s legedly received assurances from ties. He O’Con- robbery sentence seven the Richmond proper nor had made the con- years five Palermo and Saltz- years for testimony Evseroff confirmed in his tacts. *5 man, year after one from the parole with Ludwig told him that the Parole Board $100,- Sing Sing, and a they arrived time arrange parole early an for Palermo would from the Provident’s insurers reward recommended; according so to addition, jewels. Paler- for return the Evseroff, “early parole” parole after meant to plead guilty mo and Saltzman Sing Sing. year one Palermo conferred suspend- robbery and receive the Provident Bobick, again who his with reaffirmed bar- discharges. unconditional ed sentences gain told Palermo to check it out with and arrangement indicated that this Palermo Rein, the attorney Norman law acceptable was to him. Rein, Cotton, firm of Mound & which firm the by had been retained Provident its and later, a days A received visit few Palermo 10,1969, insurer. On October two members O’Connor, acting as from Detective liaison firm, Rein Arthur inmates, Eugene the Brook between Mackell’s office and the Leiman, and Caparell, represent- Detective attorney Evseroff.6 Evseroff stated ing Queens Office, Attorney’s misrepresented Bobick had situa- tion, there met with Parole resentencing since could Commissioner Jones. claiming specifics Also the Richmond case. be the of that conversation are While year tencing, second offer of seven for a sentence Paler- refused to consent to less than a seven years exchange and five for Saltzman in year Palermo, mo term for Palermo would jewelry. Again expressed Palermo his lack accept. knowledge again sentencing was ad- journed. By offer, the time of the third Paler- represented 5. Bobick both Palermo and Saltz- robbery been arrested for the Provident mo had robbery in the Provident case. The law man partici- a and had learned that Saltzman was representing the Provident and its insurer firm pant. longer attorney, Evseroff was no his $25,000 promised Bobick a fee if his aid had by having replaced Edward Bobick. Pal- jewelry. in return of resulted accepted ermo deal which entail five would a him, year years for sentence for three Saltz- represented Palermo in the 6. Evseroff $100,000 man, a reward from the Provident’s endeavored case. Evseroff Richmond prosecution insurers and no for the Provident jewelry of a a return of the because effect robbery. This deal was not consummated $50,000 insurer if fee from the Provident’s when Assistant District Gau- jewels delli, replaced were returned. who had Demakos at the sen- unclear, that, appears least, at the Com- Norman Rein also wrote a letter to the Jones Parole indicated missioner pertinent Parole Board which stated in the request early Board would consider part: although no commitment could be

parole, Without active assistance of Thom- meeting made. On October at a Palermo, recovery of this enormous O’Connor, Rein, Bobick, attended property amount of . . . could not he accepted testified that deal day have been On effected. following terms: on the recovery, Mr. Mackell asserted that he Richmond sentence after year; $100,- everything do within power insurers; 000 reward from suspended bring to the attention the Board of or unconditional discharge sentence after a help given that Palermo had guilty to the Provident robbery; effecting and, this recovery since that charge Queens; dismissal assault time, Mr. Mackell repeated has disposition of the charge by Utica Palermo’s promise. misdemeanor, to a and dis- conditional charge jewelry, property entered a his meanor in bery. scribing parked as a Assistant eral ry above described terms. Palermo ed the deal without the reward. insurer. Palermo said that he then Ludwig’s turned to afternoon, Bobick, Rein and O’Connor re- not consent missal as Once was found. After office.” result phone He car ultimately released, Mackell in office; to two guilty plea tell then personally also where of discharge. calls April On “largest “painstaking negotiations Palermo that Mackell would Utica history pleaded co-defendants. he testified that the Chief issued and took $4,000,000 Palermo was taken to was dismissed. After $100,000 case, to the Provident rob- of law enforcement” recovery of stolen guilty 16, press receiving recovery detectives worth of Queens confirmed the payoff to a misde- release de- Later Palermo assault accept- an un- jewel- to a sev- expressed ices, whose duties included investigations of a J. Palermo case. McCarthy division serious offenders under kell, however, ¡ promise of Mr. Mackell and myself that minimum fore or reward of have to serve in recovery. fact that Palermo has we would eration Prior Board earnestly and respectfully urge that the telephone call McCarthy For Palermo’s efforts [*] it. I *6 to of grant and leniency his this parole, possible would call [*] of the Bureau of Special Serv- He has opinion urge your on December apparent support Palermo the utmost consid- from Ludwig about the testified that he received [*] jail. kind for his time that Palermo will received, however, to Ludwig received no Board to your [*] ... stated 15, 1969, aegis attention the appears [*] that Paler- from Mac- that fix money in the John most [*] be- he not merit any type mo did of 3,1970, consideration postponement, on June Palermo agency by any of his before because serious crimi- appeared the Parole Board for his According period McCarthy, nal record. to imprisonment minimum of Lud- hearing. expressed wig agreement Mackell had written a letter with this view- to Russell Os- wald, Board, point Chairman of the and analogized Palermo to Murf the pertinent of Surf, recipient which stated: a of lenient treatment after property, of return stolen who then Solely cooperation because of the of [Pa- a lermo], McCarthy’s committed violent crime. practically of all the property tak- that summarizing en in was this robbery conversa- recovered. In memorandum negotiating the of placed return this tion was property, several institutional files my firmly office committed itself to use various Parole Board circulated to lawfully all possible means to assure le- hearing, members. After the the Parole nient treatment to the offender. set a six minimum year Board term extraordinary mo constituted intercession again before Palermo’s case incarceration only part, his since he took such action parole consideration.7 on receive would J year twice a at most. Attorney Ludwig Assistant Chief Eugene Leiman, attorney was an A. an there testified case, firm, robbery actively participated also in the about the Provident Rein reached plea negotiations. Regarding negotia- were entrance a terms of which charge, charge and a tions about Utica Leiman testi- to a lesser recommendation open increasingly to be court. that he became treatment fied distressed lenient kept he he Although Ludwig getting stated that indicated because different versions negotiators probability this recommendation the same conversations in all from followed, guarantee prosecutor’s expressed did be he from the office. He would concerned, Insofar as was similar reaction to discussions about outcome. promised charge. his Finally, testified that office to Provident he Ludwig privately to obtain maximum le- to about spoke its best efforts whether use suspended At- niency from the Parole Board. District there was commitment in the torney Mackell stated that no one from his Provident case Justice sentence Ludwig replied spoken authorized to that he had was communicate Farrell. staff judge privately Far- “dead commitment from Justice to the was sure.” affirmative spoke impose suspended to in the Leiman to Assistant District At- rell sentence then that, acknowledged torney said as far as he case. He Demakos who Provident knew, promised great to make a there was no commitment hand. effort attempted getting clarify Palermo utmost le- Leiman situation “career” go directly by drafting Parole Board. He noted a letter to Mac- nience from the letter he wrote on behalf of Paler- a memorandum dated March kell.8 In 8. This to that exceed forthrightly serve the minimum Parole Board to an indeterminate County, tion and sentence attorney, partner, Arthur N. with mo was assured of and “make it a career” ic tents of this pertinent part: sive only.” but conditionally discharged before Dear Mr. District case, Saltzman at The first Similarly You Because Mackell assistance five *7 caution — the Queens in state court. particular Palermo moved will also remember letter, signed by Norman Rein and sent end, you imposition [*] years. as a result of which Edward of these concerns Palermo’s convic- years. Saltzman’s minimum term was set stated letter, [*] having and consideration April when Palermo first “met” the criminal would On time County sentencing judge un- sensitive nature of sentence in the Provident Attorney: several With [*] possible to see that Palermo would term in State Prison not to Bobick, am — September Brook, it delivered “for This promised appear before robbery charges. sentence, January perhaps respect [*] that, withdraw times, me, my both motion was reads as sentence and and to Palermo’s he was that [*] 30, 1970, certain Palermo and in Richmond to return, out of exces- to you connection sentenced follows your this, you the [*] specif- denied would to Paler- State that, eyes con- still vised Mr. sion either that, in he had made such a recommendation Farrell, A. fore would so our Board. tence, upon any versations between care turned. Frederick good vident Loan know, of the still County against fulfilled can rest role “taken care of” was the that mo, recovery Board, Leiman, April understanding more time than that effect Board Judge of’ if the office that this suspended second Palermo was in an informal “off the record” discus- Attorney the Mr. to the letter. is scheduled 28-30, 1970, last time on the Just how recommend, was easy Ludwig J. in his open event when it Farrell, an make Palermo’s matter with the Jamaica Branch Ludwig, area of concern is the effected. old Palermo as property favor. indictment would Palermo or would be “time served” so Frank that, that Palermo’s colleague that strong this indictment would meets in your this commitment will given advised Mr. Leiman that charge and I therefore assume he if the District Hogan’s I Judge appear subject many restated We understand that would Chief my fixed very day recommendation assurance pending question robbery. result Sing Sing Judge partner, Eugene guilty, Farrell had ad- Mr. Assistant, before the by impose office. It was have case this to Paler- disposition the Parole Ludwig in be “taken that was to to serve was As Prison a sen- Judge that, your con- Pro- you Mr. Pa- be- re- I 1970, it, reviewing Leiman summarized his negotiating court on the evi- entire with dence left relationship prosecutors about is definite and firm conviction that a mistake Provident sentence as follows: has commit- ted.” Gyp- United States v. United States get difficult is that even if I [sic] Co., 525,542, sum 68 S.Ct. by telephone day, commitment on one 746 (1948). 92 L.Ed. findings Where relate everybody D.A.’s office design, motive to the and intent behind conveniently it forgets the next. I have actions, they depend human especially point to the where I do gotten simply n credibility assessment of witnesses oral any emanating statements believe those who see and hear them. United office. from that Co., Yellow States v. Cab 338 U.S. hearing evidence, After the district (1949); 94 L.Ed. 150 Caputo v. court concluded that Palermo and Saltzman Henderson, (2d 1976); Cir. plead to were induced to the Provi- Wilkins, ex rel. Wissenfeld v. charge by representations dent 1960). (2d Thus, by Ludwig to them and O’Connor appellate court, equipped only with a “cold” they that would receive after one record, appropriately is reject reluctant to prison; that year Mackell knew of the credibility evaluations of the district specific parole; commitments made about court. Ludwig and they that Mackell knew had no challenges The State the district court’s Board; such assurances from the Parole on findings ground to that failed clearly Mackell agree- violated his facts, consider critical primarily the extra- all possible ment to take steps to achieve an ordinary role played by attorneys Palermo’s early parole for Palermo and Saltzman. In Evseroff and essentially Bobick. The State short, the district court concluded contends that because both men would re- plea bargain negotiated was faith by bad ceive a fee from the Provident’s if insurer prosecutors and that it was not carried jewels returned, they had a clear out. representations motive to make whatever Appellate review of findings of inspire jewels. Palermo to return is fact limited to a determination of wheth addition, argues that the attor- findings er those “clearly erroneous,” are neys duty verify independently regard giving “due ... oppor parole promise Board itself. tunity of the trial court judge of the Finally, the “it is State asserts that clear credibility of the witnesses.” Fed.R.Civ.P. hardly Palermo was credible wit- most 52(a). finding “A is ‘clearly erroneous’ worthy ness” of total belief although when there is evidence support court. therefore, plead guilty, were Palermo to urging he extreme consideration for Palermo. “nothing worry would have about”. your County case in has Palermo’s been ad- Recently, however, your Mr. Thomas Dema- journed April again appear will who, strictly speaking, jurisdiction kos has Judge We before Farrell. understand that case, that, over Palermo’s has advised us so far type Ludwig previous- sentence Mr. knows, Judge as he Farrell has indicated no available, ly recommended then Palermo will may impose than more sentence he disposition make a of his indictment. would run “concurrent” with the Rich- you many perhaps have I realize more County is, course, mond sentence —which important matters that make current demands cry from far what we were led to believe would Yet, your time and attention. in the circum- *8 actually happen. matter, stances, sincerely believe that this being slightest Without in the sense critical honoring

n than which involves more a com- either of Mr. or Mr. Demakos —both of helping your to a mitment convicted robber for highest whom we in the hold esteem —it would belonging property office recover stolen to over dichotomy seem that there is somewhat of a in 2,000 is, your County residents of consonant the matter between them. way you dignity have the enhanced apparent You alone can resolve that conflict office, prestige your worthy your of your and, still of your previously staff in line with personal attitude, expressed attention and consideration. can resolve it in favor of 294 Eugene testimony There is also the of Lei- that there was sub conclude

(We negotiation support man, in the participated to the district who evidence stantial finding prosecutorial of bad faith reflected his frustration about which phase, court’s plea any and nonfulfillmeriTof"the oral commitment from negotiations firmness of the spe not there was a Finally, or bargain. attorney’s office. there the district ^Whether year, contradictions, of after guarantee one cific too numerous to the are jewels of for the return the negotiations mention, pros- from testimony between the achieving in minimum certainly included from staff and other and related ecutors for the Richmond carceration of en- After consideration witnesses.9 at through intercession district record, simply cannot fault the cred- tire we parole proceedings; mini torney’s office by ibility assessments made have mum in this case would incarceration findings or its court conclude year term. The evidence a one constituted erroneous, clearly much less erroneous.10 prosecutor’s office did showed that the also its efforts to achieve use even best not Bargain. II. Enforcement of the Plea len¡eñce~from the Parole Board utmost arguments ground- three State raises McCarthy’s John Palermo and Saltzman. dispute in contract law which the validi- ed his Lud testimony about conversation with First, agreement. ty negotiated circu wig, memorialized in a memorandum property contends that cannot State stolen members, cer to several Parole Board lated bargain. as serve consideration for a tainly brings question diligence -into .the... materially also asserts that Palermo State prosecutors to ful with which the intended failing bargain to return breached bargainTT”Although part fill their Finally, claims jewelry. all of Mackell did write a letter to the Parole parole promise any was outside Board, recommendation “lenient prosecutorial authority and not scope of represented only in that treatment” letter binding on the State. to feeble effort fulfill Mackell’s commit achieving ment make a ut Although “career” we noted last term that lenience, contract, especially compared evolving they most do principles of world, Rein’s letter written purpose. “inapposite same the commercial are from Notably, also appear per justice,” Rein offered to to the ends of criminal United sonally Corr., before the While Board. the Board ex rel. Selikoff v. Com. States (2d permit parties appear 1975), does not third Cir. this has F.2d Court itself, hearing special meetings previously can be the extent examined upon request. scheduled Commissioner Os the contractual defenses would Attorney’s plea bargaining wald testified the criminal applied system.11 requested meeting. Guiding office had never such a our justice analysis example, Ludwig For 38 L.Ed.2d 56 the dis- testified that he had not any court the defendant’s motion to communicated commitment from Justice trict denied for two reasons: indictment Farrell as to sentence in Provident case. dismiss Ludwig privately to fulfill his of a defendant had failed had as- Leiman testified bargain Attor- the Assistant United States sured of such him a commitment. only authority ney possessed to bind agreements. appeal, attorneys On conduct 10. We fail to see how the own district ground helps argu- first Evseroff and Bobick State’s this Court affirmed authority ment, might only explicitly rule on the raise a claim did not since further another to bind assistance of can- States ineffective counsel. We United questionable practice remedy nego- proper has for a defendant who not condone the bargains, thereby tiating plea advising 476 F.2d at United deceived. clients been Corr., supra, plead guilty, v. while at the same ex rel. Selikoff Com. time collec- States sentencing ting no unconditional rewards insurers. we found that promises judge the trial Boulier, deprivations F.Supp. process had been States v. due 11. In United Nathan, Finally, by repleading. nom. United States aff’d sub remedied denied, (2d 1976) Cir.), (2d Papa, cert. F.2d 456

295 recognition plea “painstaking[ly] of negotiating]” Court’s cess Supreme component as “an of bargaining essential property. return the stolen justice. Properly ad- administration by appellants support cases cited The ministered, encouraged.” it is to be Santo- argument inapposite, are involving their 260, York, 257, 404 92 bello v. New U.S. negotiated duress, under bargains extreme (1971). 30 L.Ed.2d 427 The Court S.Ct. Gorham, U.S.App.D.C. States v. United 173 however, stated, that the bar- further (1975) (promise F.2d 1088 immu must “attended safe- gaining process by be prosecution nity given hostage from by be insure the defendant what is rea- guards to during riot), ing prison mistreated or civil Id. sonably due the circumstances.” at specific performance lawsuits of a con 262, 92 at 499. by wrongdoer, solicited tract v. Stamatiou The first contractual defense Co., Gypsum F.Supp. States United jewels the return of the is raised is (N.D.Ill.1975) (civil specific per suit for consideration because Palermo unlawful by plaintiff formance who first committed legal right conceal had no or withhold proposed theft under state law and then property. analogizes stolen State with bargain property). owner return of one instant made with kid Thus, by whether notions of fundamental nappers hostages who hold at the time the principles estoppel,12 fairness contract negotiated. We ransom is believe the facts reject we must belated and rath State’s analogy inappropri of this case render the disingenuous challenge er to the considera estopped ate and that should be State support tion used to the bargain. raising this at late defense such a The State’s assertion that Palermo mate- date. rially bargain breached terms of the claims that district court’s returning all jewelry not stolen decision sanctifies the return of some of the unpersuasive. equally We first note that and purpose stolen loot defies the basic evidently the amount and the prop- value of do agree. not It must be law. We remem- was never erty precisely stolen determined. bered that Palermo claimed that he was Moreover, press in both its release and its of the robbery through- innocent Provident Board, to the Parole letter the district at- bargaining. out the That bargaining was office indicated no torney’s dissatisfaction Queens prosecutors initiated the extent of the recovery. and jail Palermo Saltzman were in for an that, finally argues assuming The State Although crime. ex- parties unrelated promise did negotiated tensively what benefits would County Palermo on the Richmond Saltzman, Palermo prose- accrue to sentence, this vires was ultra objective effecting cutors’ at all times was binding Acknowledging on the State. addition, jewels. return general proposition prosecutors that, must remembered keep promises, must the State nevertheless bargain, pleaded guilty to the Pro- contends that it can dissociate itself from a charge. Utica vident Fur- prosecutor if the the author- lacked thermore, negotia- during at no time ity question. make the commitment after tions or Palermo had achieved the disagree. We goods prosecutors return of the did ex- York, press any jewelry supra, dissatisfaction with the Santobello New serving bargain. as consideration for the S.Ct. at established that widely publicized Indeed office suc- degree its rests in significant “when Alessi, equity estoppel prevents 12. The doctrine dis- July (2d 1976), party good our decisions after rested avowal of a contract plea bargain involved, repre- the terms relies detriment on the faith to his own prosecu- we did not bar the contested 1 S. found sentations the other. Williston Con- tracts, (3d Supp.). tion. Ed. 1975 §§ 139-140 *10 296 II, (4th Hammerman F.2d 326 Cir. prosecu- of the 528 agreement or promise

on a Va. Superintendent, v. Harris tor, 1975); to be it can be said so that promise Penitentiary, consideration, (4th 1975); such 518 F.2d 1173 Cir. inducement or States, supra, v. United Resting principles or where Correale be fulfilled.”/ must agreement and securing promised immunity in such an prosecutor fairness one federal accept- in element inherent adjudicative prosecution outside his own federal from Carter, ing plea, Santobello “appro- focused on an United States 454 jurisdiction, 1972) (en banc), recognition pros- of the duties of cert. (4th priate Cir. 426 F.2d promises plea made” in denied, in relation to ecutor 417 94 41 U.S. Id. Neither the inadvertence negotiations. v. United Geisser (1974).14 237 L.Ed.2d possibly nor its harmless ef- the breach States, (5th 1975) 513 F.2d Cir. involved remand fect obviated the need for Department plea of a of Justice breach appropriate relief. court for state entailed, bargain part, which in years imprisonment. three after then, Santobello Clearly, requires Department argued appeal, the that the On prosecutor fails fulfill relief when usurped power district court exclusive negoti power made promises within by ordering of the Parole Board release. plea bargain. United States v. ating Appeals, although The Court of it remand Brown, United (4th 1974); 500 F.2d 375 Cir. ed the case for a determination of what the Ewing, (5th 480 F.2d 1141 Cir. Parole Board would do when informed of 1973). reasoning We believe that un bargain,15 bargain concluded that such Santobello derlying applies no when the less “fits well within the realm of enforceable promises makes unfulfillable prosecutor rights . .” 513 constitutional . . negotiating importantly, Most a plea.") 869 n.11. agree We and hold that where a plea by induced unfulfill voluntariness pleads guilty a defendant because he rea is, course, promises open to grave able sonably promises relies on by prosecu States, In Brady v. United doubt. 397 U.S. unfulfillable, are fact he has a tors which 1463, 25 90 S.Ct. L.Ed.2d 747 right promises have those fulfilled.16 (1970), Supreme Court declared that by misrepresentation, induced guilty plea The district court determined including prom unfulfilled unfulfillable specific performance bar ises, Additionally, not stand. funda could gain only meaningful would constitute public fairness mental confidence of this case. The court relief in context require prosecu officials government been ful found that if the had tors be held to “meticulous standards of filled, Palermo released would have been Correale performance.” both prison August, the five States, v. (1st year parole supervision period have 1973). Thus, would the courts have afforded relief expired in both these time prosecutors have Since specific where made sen unfulfillable, periods passed', the court ordered Paler tencing promises which sentencing unconditional ar totally since lies within the mo’s release. The State discretion, v. H. gues United States I. proper remedy court’s have sentencing judge 13. 15. In the instant case the Parole Board knew stated that had not prosecutor’s been influenced recommen- determining bargain about the before dations. period of incarceration. minimum Long, 14. United States v. (7th 511 F.2d 878 Appellants cite a multitude civil contract denied, Cir,), cert. defense, involving an ultra vires cases is considered a different L.Ed.2d sue. from federal agent. policy totally different considera- cases rest on promises immunity That case involved plea bargaining underlie tions than those which prosecution a state system. justice in the criminal The issue on was whether an agency relationship so that the state existed agent bound the federal authorities. imposed upon been remand to the state petitioner, Palermo, court for vacatur by a robbery plea. of the Provident county, (iii) state court another sub- *11 therefor one year stitute a plus sentence a Santobello, In the Supreme f listed Court period year parole supervision. five of possible specific per- vthe remedies as either predicate for this result is a breach of a agreement formance of the or vacatur of ^' promise or by Queens commitment made plea, discretionary choice be a County district attorney Mackell and his guided by of circumstances each chief assistant carry out that case. at 495. Where U.S. a bargain of promising Palermo appropriate, courts have not hesitated early parole a County Richmond convic- performance specific mandate of the plead tion which induced him to guilty to a agreement. States, Correale su Queens jewelry theft and return million $4 pra; Superintendent, Harris v. Va. State of stolen worth jewelry, over which Paler- Penitentiary, supra. We cannot conclude obviously mo had control. It pro- was also the district court erred in determining agreement in the vided that Palermo would performance specific proper was the a receive discharge suspended or sentence in this case. remedy already Palermo had Queens for County of guilty, a for incarcerated the entire promised of dismissal charge assault pending in prison and sentence term. Remand Queens County, disposition and a of an for withdrawal plea would County charge Oneida which consisted of a meaningless, indeed have been as the court guilty by plea of Palermo and a dismissal found; below two against parts codefendants. All of the performed except pa- III. Other Claims. promised role Palermo one year after incar- contest Appellees the 1971 dismiss under ceration the Richmond County sen- al of action damage against prosecutors tence. Ludwig. Mackell and We find this case to The facts are set forth detail in the purview Supreme fall within the majority opinion, which in turn is based Court’s recent decision in Imbler v. Pacht findings of the district court. man, 47 L.Ed.2d precise From these facts the nature of the (1976) and affirm the dismissal. prosecutor’s commitment is unclear as to Finally, say we cannot that the dis whether it was a or firm “best efforts” trict court its denying abused discretion in parole. commitment to obtain Palermo’s attorney’s fees costs and to Jones and Os events, all it is clear neither the Parole 54(d). wald. Fed.R.Civ.P. Board nor Parole Commissioner Jones made We affirm the decisions of the district any commitment to anyone other than to court on both cross-appeal. give consideration to petition early By parole. releasing Palermo who was BARTELS, Judge (dissenting): a sentence serving to 25 up years im- I respectfully dissent. posed by the County court, Richmond enforces majority promise by Mackell for As Judge stated Chief John R. Brown early parole even though it would seem States, Geisser v. United questionable ordinary, to the reasonable (5th 1975), is an extraordina- “[t]his such man whether when made ry calling case for extraordinary action.” power, authority jurisdic- was within the or corpus In this proceeding, originally habeas attorney Queens tion district action, instituted as a 42 U.S.C. § Indeed, himself, County. was sus- majority expands jurisdiction a dis- picious and asked for assurances that attorney trict of one county (i) bind parole promise performed. would be Board York, of Parole State of New (ii) emasculate an reference, indeterminate sentence join In this frame of in the years of 25 previously maximum majority’s prosecutori- condemnation of the ties making perform failed or refused commitments and misconduct al made. The knowingly they attorney never district that were false representations County operates specified within Ludwig had no Mackell and assur in that boundaries,1 jurisdictional geographic from the Board any time ance justification consequently pro- has parole. prohib Courts regarding Palermo’s scribing authority obligations misconduct from de prosecutorial such attorney elected2 in Richmond of his constitutional a defendant priving nor of York County, the New State Board relief, accordingly possi order rights charged body the sole of Parole ble, specific performance in the nature determining law with who shall be released promise, prosecutor’s the alterna *12 serving indeterminate sen- among inmates tive, of the defendant’s withdrawal tences, and under what There- conditions.3 York, guilty plea. v. New 404 Santobello fore, seerri to it would me instead 257, 92 495, (1971). 30 L.Ed.2d 427 U.S. S.Ct. releasing as the defendant forthwith though placed con- parole, had been Involving Promises Prosecutorial given fashioning a sideration must be Jurisdictions Other in remedy harmony which is more with the kind, however, In of this a case release principles of fundamental structures guise per of specific defendant under a governments. state and federal fact, of an unauthorized and formance Here, permitting the alternative of Paler- by the promise district attor unfulfillable guilty plea mo to withdraw his is under the jus ney disrupts state administration of moreover, meaningless, circumstances governmental agencies out usurps tice and prosecu- under no circumstances could the jurisdiction or authority of the of the side the thief his accessory return to or $4 tor Long, United 511 prosecutor. See States v. Therefore, jewelry. we million worth (7th Cir.), denied, cert. 423 F.2d 878 being are faced dilemma unable 196, 895, (1975); 46 L.Ed.2d 128 specific perform- to effectuate form Boulier, F.Supp. v. States 359 165 promise place or to prosecutor’s ance of the grounds aff'd on sub (E.D.N.Y.1972), other quo, Palermo back the status which to Nathan, v. 476 456 nom. United States say illegality. least was tainted with denied, 823, (2d Cir.), 414 U.S. 94 cert. S.Ct. Mackell, 171, (1973). prosecutors L.Ed.2d 56 it 38 this case unlike usual Palermo, appears testimony that streetwise who knew interest is to obtain case whose pending prosecutions, acting several million the whereabouts of dollars was under jewelry, assuming that jewelry depos- worth of stolen he is to retrieve the stolen duress theft, by was able to extract ited as collateral for loans thousands of prosecutor prom Queens from the an unauthorized In exchange residents. for his independent binding gov jewelry ise not other promise return the suc- agencies jurisdictions extracting ernmental ceeded Mackell ultra thereby believe, government, majority, obtain promises. immediate vires independent because those quickly reasoning release authori- too dismisses Unit- 700(1) County (McKinney’s (3d Dep’t), denied, 1. N.Y. Law § motion for leave to 1972); N.Y. Criminal Procedure Law 20.40 481, 1025, § 27 N.Y.2d 312 N.Y.S.2d 260 N.E.2d v, 1971); (McKinney’s People Dorsey, 176 People Deegan, (1970); rel. 874 ex Smith v. 32 932, (Queens Misc. 29 N.Y.S.2d 637 Co.Ct. (2d Dep’t App.Div.2d 303 N.Y.S.2d 789 Nadjari, 1941); York New State’s Office of 1969). prisoner In order the Board Special Prosecutor: A Creation of Neces Born opinion be of the that "there Is of Parole must sity, (1974). L.Rev. 112-14 2 Hofstra that, probability prisoner if is reasonable such released, liberty with- he will live and remain at (McKin- 13(a) 2. N.Y. Constitution Art. § law, violating his release is not out and that ney’s 1975-76). Supp. society.” incompatible with the welfare of (McKinney’s 3. N.Y. Correction Law 210 § (McKinney’s Supp. § N.Y. Correction Law 213 1975-76); Supp. People Washington ex rel. v. 1975-76). LaVallee, App.Div.2d 34 308 628 N.Y.S.2d Gorham, granted date U.S.App.D.C. 139, the relief here where the pre- ed States (1975), responsibilities prison rogatives in which a of other agen- 523 F.2d hostage by public implicated cies and officials are promised by held inmates ex director post powerless interference reprisals be no or court facto there would action dis- attorney making prom- trict unauthorized against inmates. The Gorham court ises. stated that even had been authority, since, .it made with was voidable I do Similarly, not believe that United reasons, among other was induced Carter, (4th 1972) divulge duress. Palermo’s refusal (en banc), denied, cert. 417 U.S. possessed of those who identity or location L.Ed.2d appo jewelry violated law4 and stolen There, prosecutor site. federal in the subjected prosecutor a form of du- allegedly promised District of Columbia ress, rendering unenforceable charges that no criminal would be brought equitable least as far relief is con- any jurisdiction concerning group Therefore, referring to specific cerned. other stolen checks than a misdemeanor involving release, performance immediate charge for which the plead defendant was stand in same he does not shoes as Nevertheless, ing guilty. a criminal indict those, instance, who, under a bar- brought ment was later in the Eastern Dis *13 cooperate

gain agree testify to and to assist Virginia, appeals trict of and the of court in in government obtaining the convictions of case, decision, its own that determined other defendants. that it would honor promise by the the prosecutor the of District Columbia. prose- It is true the courts do hold a that however, Here, the promise concerned a only promises may cutor not to which be previous conviction for an unrelated crime fulfilled, also to some of those but which the and none of concerned authorities who are unfulfillable. But in all such cases the possessed power grant promised the to the unfulfillable was not specifically promised relief ever the relief. retroactively against enforced other inde- pendent agencies jurisdictions. or The ma- Remedy jority cases relies believe do support not relief of question the immediate release. then is the appropri- what is Though Brady States, v. United ate relief under the circumstances. Other past 25 L.Ed.2d prob- 747 courts in the have similar faced assert, dicta, the proposition States, does lems. supra, Geisser promise by a prosecu- government that an unfulfillable federal entered into a bargain tor which induces a of providing constitu- with defendant that plea, tionally pleaded guilty taints the Court does not if provided she and indis- purport distinguish among pensable against to the several evidence others she would categories promises of unfulfillable nor for years does not be confined more than three specify appropriate grant- to government relief be its and use best ef- Santobello, supra, authority prevent deportation ed. cited as for forts to her to Switz- granting following immediate release this case or France as erland incarceration. inapposite sought specific performance, since then habeas relief since She there outstanding depor- concerned a direct warrant for her Santobello involv- was an Switzerland, ing single juris- criminal conviction and the federal tation govern- did not diction. The Santobello Court man- Board of Parole failed to honor required disgorge divulge appeals 4. or Palermo was 5. The court of a best assumed efforts prior to, jewelry promise, though the whereabouts and court the district found an any agreement apart district from at F.2d at absolute commitment. Property torney. Personal Law § 252 N.Y. 1976); (McKinney’s N.Y. Penal Law §§ 205. 50(1), (4), (5), (McKinney’s 205.55 & 205.60 1975). wholly rate different crimes committed concerning the three and commitment ment’s Depart- Id. the District of Columbia.” at incarceration. outside year limit of Among Judge of were things, the Board Parole other Boreman and ment of State bargain, and when the executive officials informed stated that and not “[t]he Depart- parole the Virginia for petitioner applied the Eastern of courts of seeking disavowed prevented ment of Justice should not be actively opposed parole and the Board victimizing of punish people crimes request. On the habe- of denied an official because elsewhere has granted district court imme- petition, power.” limits Id. overstepped release, appeals the court va- diate remedy as a move suggested He Carter decision and re- lower court’s cated Virginia, reduction sentence manded, stating at 513 at 869: else be considered executive recognize that in a structure inde- clemency. We quasi-adjudicative agencies with- pendent above indicated I do not For the reasons department there is Executive in an wrongs right “zeal that our believe intrusion into be no hierarchical should excess,” Merola, Martin v. prosecutorial of administrative discretion. the exercise 1976) (2d (separate time, agency needs to same At the Gurfein, J.), should induce us statement agree- positive terms of the advised in effect, grant, specific performance made, consequences of which ments and unfulfillable an unauthorized (i) inter- public rich in terms of involving intrusion into exercise consequences (ii) constitutional est and wholly of a inde- administrative discretion honored, bargainee For other pendent agency. such excesses page 871: again of the prosecutor remedies such as removal Sharing as we do the Government’s from office are available. N.Y. Constitu- judicial into intrusion concern about *14 13(a) Supp. (McKinney’s tion Art. § process, we defer until after re- parole 1975-76). property cannot Since the stolen put stamp we our whether would mand a form rescission be returned to Palermo Judge’s approval on the District order I am too impossible. is not disturbed at the in effect releases Bauer end this fact since Palermo had interest in three-year the reconstructed term. obligation re- and had an property place. complete- turn it in first While a court ordered resubmission of The Geisser ly may possible solution equitable to the Board and parole request then circumstances, I would do the under the petitioner if the was not re- provided that thing by permitting Palermo to the district court “shall next best leased Queens County hearings allowing withdraw further after conduct worth, desires, if for whatever it particu- issues he so discovery all fullest the same time I would construe the just has and at question on the what larly early parole as a “best ‘to use our best done with the promise. would direct why, any, steps efforts” and the reasons efforts’ Queens County attorney present why they have been not been taken have every on behalf of make effort Id. 872. ineffectual.” Board to obtain such ear- before the Parole Carter, Judge supra, In United States recognize result ly parole. This ground Boreman dissented probably sovereignty Board and sought not entitled to relief Carter was significant im- Palermo a chance of grant reasoning any theory, that “the Unit- under If fails mediate release. the Parole Board Attorney’s ed office action Palermo's alternative would to take enter could not into valid Columbia clemency. petition for executive be to plea bargaining agreement to bind the dis- prosecutor cross-appeal I would affirm court and federal trict damage against Mac- respect concerning the action jurisdiction sepa- another denial Ludwig and also affirm the kell and attorney’s fees and costs to Jones and

Oswald. America, Appellee, STATES of

UNITED ROBINSON, Defendant-Appellant.

Ronald

No. Docket 76-1214. Appeals, Court of

United States Circuit.

Second

Argued Sept.

Decided Nov.