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UNITED STATES v. PAIVA

January 4, 1969

UNITED STATES of America
v.
Alfred R. PAIVA



The opinion of the court was delivered by: GASCH

 GASCH, District Judge.

 Defendant Paiva has moved to dismiss this indictment as one brought in breach of an agreement between defendant and the United States Attorney. The motion was argued, testimony taken and briefs submitted. This is a case of first impression.

 It appears that between June 16 and 20, 1967, Paiva allegedly forged and uttered a number of stolen United States Savings Bonds which, in the name of the payee, have been designated the "Fien" bonds. By October 13, 1967, when a Secret Service Agent was assigned to investigate the "Fien" bonds, however, Paiva was already in jail on other charges; indeed, it appears he was facing two cases involving narcotics, one forgery, one interstate transportation of stolen Treasury checks, two other felony cases and seven or eight cases pending in the Court of General Sessions. This series of problems prompted Paiva's counsel to negotiate with the United States Attorney. Defendant admitted his guilt and it was agreed that if he would plead to four felonies and cooperate with the Secret Service and F.B.I. in administratively closing cases against him, the U.S. Attorney would dismiss and drop the remaining counts and pending cases against him and would not authorize prosecution of cases in the future based on paper forged prior to November 7, 1967. Paiva agreed with the caveat that his cooperation would not include informing on others who might have been involved with him. The U.S. Attorney agreed. *fn1"

  On October 24, 1967, the Secret Service Agent visited Paiva at the D.C. Jail. *fn2" As on later occasions, he gave Paiva stacks of bonds which Paiva examined separating out those he had forged. Over thirty bonds were identified in this manner. When the Agent began to question Paiva about other participants, however, Paiva balked. The Agent's continued pressure on Paiva for information outside of the agreement prompted Paiva's counsel to call the U.S. Attorney. As a result, the agreement was reaffirmed as originally described and as understood by Paiva and his attorney.

 On November 7, 1967, Paiva pleaded guilty to four felonies and was sentenced. *fn3" The remaining counts were dismissed. Between this date and December 20, 1967, the Secret Service and F.B.I. made several other visits to Paiva in the Jail. On each of these occasions he gave information concerning his participation but refused to inform on others, particularly his wife. At some point during this period he was asked for handwriting exemplars. While the U.S. Attorney and defense counsel were drafting a protective order, however, the Secret Service withdrew its request, indicating that it had obtained samples of Paiva's handwriting from letters addressed to his wife seized in a raid of his apartment in June, 1967. On January 17, 1968, after several more fruitless attempts to cajole Paiva into informing on other participants, the Secret Service filed the complaint in this case based on the "Fien" bonds. Upon a representation by the Secret Service that Paiva had not cooperated, the U.S. Attorney authorized this prosecution. *fn4"

 I.

 The Government argues that the defendant's position is not judicially cognizable because even assuming arguendo that the defendant fulfilled his part of the bargain, the U.S. Attorney may breach such promises with impunity. As authority the Government cites the 1878 Whiskey Cases from the Supreme Court, the 1942 Buckley case from this Circuit, several cases from other circuits relying on the Whiskey Cases and the Federal Probation Act of 1925. *fn5" Since the Court presumes only the highest standards of fair play and ethical conduct on the part of the U.S. Attorney, *fn6" it interprets the Government's position to be that where there are two or more accomplices in crime and one agrees to testify against the others in return for a promise of leniency or immunity from prosecution, that accomplice may not raise the promise as a bar to a subsequent prosecution. Rather, in the royal traditions of approvement and usage, he must apply for executive pardon or raise it at the time of sentencing as a plea for clemency. *fn7"

 The Court need not dwell on the questionable validity of this ancient doctrine for it is inapposite to the facts now presented for decision. *fn8" This case involves neither codefendants, nor accomplices, nor promises of leniency, nor agreements to testify for the Government, nor unequal treatment for similarly situated defendants nor approvement nor usage.

 If stated more broadly, the Government's position, like the dicta of the cases on which it relies, contradicts more modern decisions of unquestioned validity. *fn9" If, on the other hand, the narrow holding of those cases is subtracted, what remains is simply the statement that the prosecutor must at all times inform the defendant of his rights and must uphold the good faith responsibilities of his office. Accordingly, the Court finds the present situation so dissimilar from that of the Whiskey Cases that they present no barrier to its decision.

 The Government places particular emphasis on District of Columbia v. Buckley. *fn10" The prime issue in that case, however, in which this member of the Court was both trial and appellate counsel was whether jeopardy had attached for the reason that the Government had accepted a plea to driving on the wrong side of the street and thereafter decided to press the more serious traffic charge of driving while intoxicated. Only briefly did our Court of Appeals consider the question of the power of the prosecutor to file the additional traffic charge. The Court observed that no determination could be made on the record before the Court as to this issue. Here, however, the Assistant United States Attorney in charge of the case testified as a witness and confirmed the defense position that an agreement had been made wherein if defendant entered a plea of guilty to four specified felonies, the Government would drop the remaining cases, including those now involved in this motion. It is noted that defendant is now serving time in the cases in which he entered a plea of guilty.

 The Government has also sought to draw from these cases the argument that the relief the defendant here seeks directly violates the doctrine of separation of powers. *fn11" Since this issue underpins both the Court's jurisdiction and the resolution of the merits, it deserves scrutiny.

 
In light of this history I do not believe we are foreclosed from granting immunity from prosecution in order to deter blatant government misconduct. I conclude that in this case our supervisory powers must be used to protect 'the purity of the Government and its ...

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