United States v. Robin

426 F. Supp. 1221, 1976 U.S. Dist. LEXIS 12027
CourtDistrict Court, S.D. New York
DecidedDecember 2, 1976
DocketNo. 74 CR. 622
StatusPublished

This text of 426 F. Supp. 1221 (United States v. Robin) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robin, 426 F. Supp. 1221, 1976 U.S. Dist. LEXIS 12027 (S.D.N.Y. 1976).

Opinion

MOTLEY, District Judge.

OPINION

Defendant was charged in the instant indictment, filed in this court on June 20, 1974, with conspiracy to distribute heroin and with distributing one-half a kilogram of heroin on each of two separate occasions in March of 1974.1 The indictment alleged that he received a total of $27,000 for these two sales. The indictment remained sealed until May 1, 1975 when it was unsealed and assigned to this judge for all purposes. Trial of the indictment was scheduled for November 10, 1975.

On March 28, 1974, prior to the federal indictment, defendant had been indicted by a New York State grand jury, which charged him with violations of the state’s narcotics laws with respect to the same transactions. Immediately upon his arrest on the state charges on April 1, 1974, defendant agreed to cooperate with both state and federal authorities. About 18.months later, the authorities became dissatisfied with defendant’s cooperation. A superseding indictment was returned in the state court on October 3, 1975 charging the same substantive violations but widening the scope of the conspiracy charged. Defendant moved to dismiss the state charges on the ground that he had been promised that in return for his cooperation the state charges would be dismissed and he would be permitted to plead to the federal indictment. The state court held a hearing on the motion in early November 1975.

Defendant appeared on November 10, 1975, the date set for trial of the instant indictment without his counsel and advised the court clerk that he opposed the Government’s motion to dismiss the instant indictment. The Government had advised the clerk that it desired to nolle “prosequi” the indictment. The trial could not proceed on November 10, as scheduled, since this judge was involved in the trial of another criminal case at that time. Defendant was advised to return with his lawyer.

On November 12, 1975 defendant appeared with his counsel, Jack Cohen, who advised that defendant desired to withdraw his previously entered pleas of not guilty to Counts 2 and 3 of the indictment and plead guilty.2 The Government advised that it desired to nolle “prosequi” the entire indictment that day.3 Addressing the court the Government counsel said:

“The background on this case is that in June of 1974 Mr. Robin was indicted here in three counts. About that time he was also indicted by a State Grand Jury for similar crimes. Mr. Robin was indicted by both the State and the Federal Grand Juries and we wanted to give him an opportunity, if he cooperated in good faith, to plead to the Federal charges and the State charges thereupon would have been dismissed.
“Mr. Robin has not cooperated in good-faith with the Federal Government and with the State authorities with respect to narcotic matters about which he has [1223]*1223knowledge and based on the failure to cooperate with us in full and in good faith, we at this time ask your Honor’s permission to grant the Government the right to nolle this indictment so that Mr. Robin may go to trial on November 24 of this year before the State Court, before one of the State Court Judges in connection with a narcotics conspiracy and substantive counts and that is our position in substance.”

In addition, the Government’s counsel charged that defendant was a major heroin violator.4

Defense counsel disputed the Government’s claim that defendant was a major violator and vigorously opposed the motion to dismiss. He requested a factual and legal hearing which was granted.5 The Government’s counsel then inquired what defense counsel intended to do about Count 1, since it was the Government’s intention to try defendant on Count 1 and other charges, even if the plea to Counts 2 and 3 be accepted.6 In reply defense counsel said: “I would say to the Government through the Court if they withdraw their application to nolle pros and permit us to plead we would plead guilty to all three counts.”7 To this the Government replied: “We do not withdraw our application to dismiss this indictment.”8

Each side was allowed 10 days to file briefs and formal motions.

Defense counsel thereafter filed a motion for leave to enter a plea of guilty to all counts of the instant indictment. In connection therewith defendant filed a 48 page brief. A large -envelope, containing the following documents, was submitted and designated Appendix to Brief:

(a) State vs. Ray, indictment no. N529129-74.
(b) United States of America vs. Raymond Robin, indictment no. 74 Cr. 622.
(c) State vs. Robin, indictment no. N1161-594/75.
(d) Federal waiver of speedy arraignment, dated April 1, 1974.
(e) State waiver of speedy arraignment, undated.
(f) United States Attorney’s notice of readiness for trial.
(g) Investigation reports, Drug Enforcement Administration, United States Department of Justice.
(h) Transcript of testimony on ‘Huntley Hearing’, October 27, 1975, State vs. Ray Robin, before Honorable Richard G. Denzer, J.S.C.
(i) State vs. Ray Robin, Defendant’s Memorandum of Law in Support of Motion to Dismiss State Indictment.
(j) United States of America vs. Raymond Robin, transcript of proceedings, November 12, 1975 before the Honorable Constance Baker Motley.

All of these documents were filed in Chambers rather than the Clerk’s office apparently because the Clerk’s office was closed on Saturday at 5:00 P.M. on November 22, 1975, the time when briefs from both sides were due.

The Government’s counsel submitted an affidavit, sworn to November 21, 1975. No brief was submitted. However, the affidavit, in addition to alleging that the Government regarded defendant as a major heroin dealer, contained the Government’s argument and citation of authorities. In its affidavit, the Government argued that defendant’s cooperation with the authorities was not in good faith (at p. 2). The Government also argued that “[djefendant’s true purpose in attempting to plead guilty in federal court is to thereby preclude the state prosecution against him as a disposition in federal court of narcotics criminal charges identical with then pending state [1224]*1224charges is, as a matter of New York State law, a bar to a subsequent state prosecution on those charges.” (at p. 4).

In his brief defendant argued that the only reason for the Government’s desire to dismiss the instant indictment was “a joint decision by federal and state authorities to expose the defendant to a far harsher state penalty scheme which is available under the so-called Rockefeller drug program in New York State.”9

The brief continued: “In this highly un-' usual situation, there is no clear precedent to guide the Court.

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Related

Robert A. Woodring v. United States
311 F.2d 417 (Eighth Circuit, 1963)
United States v. Raymond Robin
545 F.2d 775 (Second Circuit, 1976)
United States v. Cox
342 F.2d 167 (Fifth Circuit, 1965)
Randall v. Commissioner
381 U.S. 935 (Supreme Court, 1965)
Cox v. Hauberg
381 U.S. 935 (Supreme Court, 1965)

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Bluebook (online)
426 F. Supp. 1221, 1976 U.S. Dist. LEXIS 12027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robin-nysd-1976.