CORE TERMS: conspiracy,
indictment, heroin, cocaine, plea agreement, prosecutor, narcotics,
network, appealability, distribute, double jeopardy, prior conviction,
pled guilty, wiretap, conspiring, personnel, conspiracy charge,
pretrial, double jeopardy claim, specific performance, appealable,
charging, kilogram, unknown, jeopardy, sentencing, telephones, partners,
interlocutory appeal, evidence presented
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COUNSEL: John L. Pollok, New York, New York (Hoffman Pollok &
Gasthalter, New York, New York, Joseph & Stalonas, New York, New York,
on the brief), for Defendant Appellant O. Abbamonte.
Gerald L. Shargel, New York, New York, for Defendant-Appellant
DelVecchio.
John Nicholas Iannuzzi, New York, New York (Iannuzzi, Russo & Iannuzzi,
New York, New York, on the brief), for Defendant-Appellant DiGirolamo.
Sidney M. Glazer, Atty., Dept. of Justice, Washington, District of
Columbia (Alan H. Nevas, U.S. Atty., William A. Keefer, John H. Durham,
Spec. Attys., Dept. of Justice, New Haven, Connecticut, on the brief),
for Appellee.
JUDGES: Newman, Kearse, and Pratt, Circuit Judges.
OPINIONBY: NEWMAN
OPINION: [*1066] JON
O. NEWMAN, Circuit Judge:
This pretrial appeal in a criminal prosecution concerns primarily a
claim under the Double Jeopardy Clause. Specifically, the issue is
whether defendants have made a sufficient showing to require the
[**2]
Government to prove that the narcotics conspiracy alleged in a pending
indictment is separate from narcotics conspiracies for which the
defendants have previously been convicted and sentenced. Oreste
Abbamonte, Joseph DelVecchio, and Guy DiGirolamo appeal from an order of
the District Court for the District of Connecticut (T.F. Gilroy Daly,
Chief Judge) denying their motions to dismiss charges contained in an
indictment returned by a federal grand jury in Connecticut on July 14,
1983. Abbamonte and DelVecchio base their jeopardy claim on their prior
conviction in the Southern District of New York; DiGirolamo relies on
his prior conviction in the District of Connecticut. Abbamonte and
DelVecchio also claim that all the Connecticut charges against them are
barred by the plea agreement under which they pled guilty to some of the
charges previously brought in the Southern District. We conclude that
the double jeopardy claims of all three defendants directed to the
pending conspiracy charge require further consideration by the District
Court, but that the plea agreement claim of Abbamonte and DelVecchio
directed to all pending charges is unavailing.
Count 1 of the pending Connecticut
[**3]
indictment accuses the three appellants and Frank
Cotroni, Giovanni Marra, and Michael Corcione of conspiring with
each other "and with other persons unknown to the Grand Jury" to
distribute heroin in violation of
21 U.S. C. § 846 (1982). The indictment also charges three counts of
substantive offenses of transporting more than $5,000 from the United
States to Canada without filing required customs reports in violation of
31 U.S.C. §§ 5316, 5322(a) (1982). The conspiracy is alleged to have
existed from April 26, 1982, until May 28, 1982, in the District of
Connecticut "and elsewhere." The conspiracy is alleged to have involved
a scheme whereby
Cotroni and Marra in Canada would
send quantities of heroin to persons "in the New York City area,"
including Abbamonte and DelVecchio, using DiGirolamo and Corcione "as
middlemen." Four overt acts are alleged. Two concern phone calls from
Cotroni to DiGirolamo in Bridgeport, Connecticut, on April 27 and
May 9, 1982. The third alleges that on May 10, 1982, DiGirolamo received
a quantity of heroin from Corcione
[*1067] and
then met with Abbamonte at Port Washington, New York. The fourth alleges
that on May 28, 1982, Corcione sent money to
[**4]
Cotroni and Marra in Canada.
The double jeopardy claim of Abbamonte and DelVecchio rests on their
pleas of guilty to Count 1 of a superseding information filed in the
Southern District of New York on January 7, 1983. That count accused
Abbamonte, DelVecchio, and Lorenzo DiChiara of conspiring with each
other, with Francisco Solimene, Rafael Gonzalez, and Aleida Martinez,
and with "others unknown" to distribute heroin in violation of
21 U.S.C. § 846. The conspiracy was alleged to have existed in the
Southern District of New York from April 1, 1982, until the date of the
information, January 7, 1983. Sixteen overt acts were alleged. They
detailed occurrences "in the Southern District of New York and
elsewhere," including an October 15, 1982, conversation in which
Abbamonte said he had heroin available in kilogram amounts, a sale by
Abbamonte of three kilograms of heroin in New York City on October 20,
1982, and an agreement by Abbamonte on October 28, 1982, to sell an
additional seventeen kilograms of heroin. Abbamonte and DelVecchio pled
guilty to the conspiracy charge and to substantive counts of
distributing heroin, for which they received aggregate sentences of 25
years and 20
[**5] years,
respectively.
DiGirolamo's double jeopardy claim is predicated on his conviction on a
conspiracy charge in an indictment returned in the District of
Connecticut on June 16, 1983. Count 1 of that indictment accused
DiGirolamo, his wife Lucy, and two other members of his family of
conspiring with each other and with "other persons" to distribute
cocaine in violation of
21 U.S.C. § 846. The conspiracy was alleged to have existed from
February 23, 1982, until June 6, 1982, in the District of Connecticut
"and elsewhere." DiGirolamo pled guilty to the conspiracy charge and to
one substantive count of another indictment charging distribution of
cocaine, for which he received an aggregate sentence of 16 years.
Appellants rely on various documents and statements by law enforcement
officials to support their claims that the Southern District conspiracy
to which Abbamonte and DelVecchio pled and the Connecticut conspiracy to
which DiGirolamo pled were distribution phases of the overall
Canada-Bridgeport-New York City network alleged in the pending
Connecticut indictment. Principal reliance is placed on two affidavits
of Special Agent Salute of the Drug Enforcement Administration
submitted
[**6] to the
District Court in Connecticut in support of applications for authority
to wiretap. The first affidavit, dated April 8, 1982, sought authority
to wiretap two telephones at DiGirolamo's residence in Bridgeport for 30
days. The second affidavit, dated May 7, 1982, sought an additional 30
days of wiretapping authority for one of DiGirolamo's home telephones
and new authority to wiretap two nearby public telephones that
DiGirolamo frequently used. Authority was sought to intercept the
conversations of various people including
Cotroni, Abbamonte, DelVecchio,
DiGirolamo, Lucy DiGirolamo, Michael Mahigel, and Victor Riccitelli.
Agent Salute averred that there was probable cause to believe that all
of these persons were conspiring to distribute controlled substances,
including heroin and cocaine, and that all of them were using interstate
wire facilities to conduct an unlawful business enterprise involving
controlled substances.
The affidavits detailed the long-time associations of the alleged
conspirators, apparently starting with a period in the mid-1970's when
Cotroni, Abbamonte, DelVecchio, and DiGirolamo were incarcerated
in Lewisburg Penitentiary. Salute also reported information
[**7] from
informants and surveillance, including the following: As early as 1974
Mahigel was among a group controlling the distribution of large amounts
of heroin and cocaine in Bridgeport; that in March 1982 Mahigel was
distributing cocaine supplied by DiGirolamo and Riccitelli, that
DiGirolamo and his wife had been in contact with
Cotroni in Canada;
[*1068]
that
Cotroni's heroin comes from Italy; that DiGirolamo and Abbamonte
were observed entering Abbamonte's residence in Port Washington, New
York, carrying cardboard boxes; that both were observed entering an
apartment on East 116th Street in East Harlem; that DiGirolamo talks in
code to
Cotroni in Canada and Abbamonte in New York City when speaking
about their heroin and cocaine dealings; that Abbamonte deals in heroin
in the area of East 116th Street in East Harlem; and that Abbamonte is
DiGirolamo's principal source for cocaine.
Appellants also rely on an affidavit of Special Agent Tully of the Drug
Enforcement Administration, which had been presented in support of
arrest warrants on the charges initially brought against Abbamonte and
DelVecchio in the Southern District, prior to the information to which
they pled guilty. In
[**8] this
affidavit, Tully reported that Abbamonte had told an undercover agent
that he, DelVecchio, and DiChiara were partners and that DiChiara had
obtained heroin from an unknown male who had imported it from Italy.
Another pertinent document is an affidavit of Special Agent Hanna of the
Federal Bureau of Investigation, which had been presented in support of
a complaint charging Abbamonte, DelVecchio, and DiGirolamo with a
narcotics conspiracy based on an arrest of all three in New York City on
July 7, 1982. In that incident, which did not result in an indictment,
DiGirolamo handed a large amount of cash to Abbamonte in a car in which
DelVecchio was a passenger. Agent Hanna averred that the money was
exchanged for narcotics.
Appellants also relied on statements made by the prosecutor at their
sentencing on the Southern District charges to the effect that
Abbamonte, DelVecchio, and DiGirolamo had been involved in narcotics
transactions in the New York City area as early as December 1981. In
addition, the Government had alleged in a sentencing memorandum in
connection with the Southern District charges that Abbamonte's
organization "operated at the highest levels" and that one of his
[**9] partners
"was the 'puller,' that is, the person who imported heroin from outside
the country."
DISCUSSION
1.
Jeopardy Claims. Whether a defendant's criminal activities
establish his participation in one large conspiracy or two separate
conspiracies is an issue on which prosecutors and defense counsel have
often changed positions "as nimbly as if dancing a quadrille."
Orloff v. Willoughby, 345 U.S. 83, 87, 97 L. Ed. 842, 73 S. Ct.
534 (1953). When a defendant challenges a conviction on the ground
of variance, he urges that, though the indictment alleged one
conspiracy, the evidence showed at least two; the Government contends
there was only one conspiracy.
See, e.g.,
United States v. Sperling, 506 F.2d 1323, 1340-41 (2d Cir. 1974),
cert. denied,
420 U.S. 962, 43 L. Ed. 2d 439, 95 S. Ct. 1351 (1975);
United States v. Bynum, 485 F.2d 490, 495-97 (2d Cir. 1973),
vacated and remanded on other grounds,
417 U.S. 903, 41 L. Ed. 2d 209, 94 S. Ct. 2593 (1974). However, when
a defendant challenges a conviction on the ground of double jeopardy,
or, as here, seeks to avoid trial on that ground, he contends that only
one conspiracy exists, while the Government insists
[**10] there
are at least two.
See, e.g.,
United States v. Papa, 533 F.2d 815, 820-23 (2d Cir.),
cert. denied,
429 U.S. 961, 50 L. Ed. 2d 329, 97 S. Ct. 387 (1976);
United States v. Mallah, 503 F.2d 971, 982-87 (2d Cir. 1974),
cert. denied,
420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975).
Recognizing the ease with which prosecutors can draft indictments that
allege what appear to be separate conspiracies but that may actually be
parts of an overall conspiracy, we have not resolved double jeopardy
claims involving conspiracy charges solely by the "same evidence" test,
which inquires only whether evidence required to support one charge
would have sufficed to support the other,
see
United States v. McCall, 489 F.2d 359, 362-63 (2d Cir. 1973),
cert. denied,
419 U.S. 849, 42 L. Ed. 2d 79, 95 S. Ct. 88 (1974). Instead, to
[*1069]
guard against subdivision of a single conspiracy we have held that "once
a defendant introduces sufficient evidence that the two conspiracies
alleged were in fact one, the burden shifts to the government to rebut
the inference of unity."
United States v. Papa, supra, 533 F.2d at 821; see
United States v. Bommarito, 524 F.2d [**11] 140, 146
(2d Cir. 1975);
United States v. Mallah, supra, 503 F.2d at 986.
United States v. Mallah, supra, and
United States v. Papa, supra, illustrate our approach to the
issue. In
Mallah, conviction on a count alleging a broad
conspiracy was challenged on the basis of a prior conviction for what
was described as a conspiracy involving "foot soldiers,"
503 F.2d at 986. The dates and geographic areas of the two
conspiracy counts overlapped, circumstances that are significant but, as
we observed in
Papa, "not sufficient indicia of a single
conspiracy,"
533 F.2d at 821. However, in
Mallah, the foot soldier
conspirators were alleged to have conspired with other persons, the
conspiracy could not have operated without a larger organization backing
it up, and there was evidence that those in one conspiracy were
acquainted with personnel in the other. These factors were sufficient to
shift to the prosecution the burden of proving separate conspiracies, a
burden the Government did not sustain. By contrast, the evidence in
Papa established the existence of two distinct conspiracies. Though
the defendant claiming double jeopardy was at the head of two
distribution
[**12]
chains, their separateness was demonstrated by the identification in
each conspiracy of different wholesalers linking the head of a
distribution network to retailers at the bottom.
The distinctions drawn in
Mallah and
Papa are not wholly
satisfactory. They suggest that a principal of a distribution network
will be more likely to defeat the prosecution's effort to subdivide a
large-scale distribution network when the Government indicts a defendant
for participation with a bottom tier of the network and again for
involvement with the entire enterprise then when it alleges separate
chains emanating from a single leadership. This appears to make the
success of a former jeopardy claim turn on whether the prosecutor has
attempted to subdivide the enterprise horizontally or vertically. The
distinctions between the cases also illustrate the somewhat anomalous
point that the less the Government knows about the details of a
defendant's conspiratorial associations, the more difficulty it will
face in rebutting a claim of a single conspiracy. One might have thought
that the Government's unwareness of the connections among those claimed
by the defense to be part of a single conspiracy
[**13] would
inure to the prosecution's benefit. Finally, the cases illustrate that
there is no litmus test for determining whether one conspiracy is part
of another conspiracy and that the answer in each case depends on all of
the pertinent circumstances.
Accepting the standards that emerge from our prior cases, we conclude
that the showing made by Abbamonte and DelVecchio was sufficient to
place on the prosecution the burden of showing that the conspiracy
charged in the Southern District information was not part of the overall
conspiracy charged in the pending Connecticut indictment. Both
conspiracies involve distribution of heroin during 1982 in the New York
City area. The pending Connecticut indictment alleges that DiGirolamo
was a middleman in the Canada-Bridgeport New York distribution network,
and evidence presented at sentencing on the Southern District charge
showed that DiGirolamo had been involved with Abbamonte and his partners
in drug transactions for a considerable period of time in the New York
area. That is a stronger link than the mere friendship that existed
between personnel of the two organizations in
Mallah. In
addition, there is evidence that the heroin in both
[**14]
conspiracies came from a source in Italy. Even though Italy is large
enough to supply two heroin conspiracies, just as New York City was
recognized in
Mallah to be large enough "to harbor two
simultaneous narcotics conspiracies,"
503 F.2d at 983, the indication of a common geographic source is
probative when combined
[*1070]
with the other factors in this case that point toward a single
conspiracy. Finally, of key significance is Agent Salute's averment that
all three defendants are engaged with
Cotroni and others in a business
enterprise to distribute heroin and cocaine.
Of course, it is possible, as the Government suggests, that DiGirolamo's
only involvement with Abbamonte, prior to the relationship detailed in
the pending indictment, was as a purchaser of cocaine from Abbamonte and
that the heroin distributed by Abbamonte during the Southern District
conspiracy did not come from
Cotroni via DiGirolamo. But the
evidence thus far presented of similar times, places, and personnel
suffices to make the jeopardy claim of Abbamonte and DelVecchio more
than a matter of speculation. Even though it may be difficult for the
prosecution to demonstrate that the Southern District conspiracy
[**15] was
separate from the conspiracy charged in the pending Connecticut
indictment, the Government rendered itself liable to assume that burden
when it indicted Abbamonte and DelVecchio for activity that appears to
be the same offense for which they had already been convicted.
DiGirolamo's jeopardy claim is also of sufficient substance to require
the Government to sustain its burden of proof under
Papa and
Mallah. The prior Connecticut conspiracy, to which he pled guilty,
included the entire time period of the conspiracy charged in the pending
indictment. The prior indictment alleged narcotics activity in
Connecticut and elsewhere, and the pending indictment alleges
distribution of narcotics from Canada to New York through Connecticut.
Though the prior conspiracy was alleged to involve cocaine and the
pending charge concerns heroin, the evidence presented by DiGirolamo
amply shows that the Government has reason to believe that there exists
one overall network, headed by
Cotroni, that distributes both
heroin and cocaine through those, including DiGirolamo, who the
Government has previously represented in the District Court are involved
in a narcotics business involving both heroin
[**16] and
cocaine. The wiretap application named DiGirolamo, his wife, and Mahigel
and Riccitelli as members of a conspiracy to operate that overall
business, and the application strongly indicated that these four were
all involved in the cocaine distribution phase in Connecticut, which
resulted in DiGirolamo's prior conviction.
It may be, as the Government contends, that DiGirolamo's prior cocaine
activity was the result of purchases from Abbamonte that were wholly
independent of the
Cotroni organization, and his prior
conviction for his role as a distributor of cocaine is not related to
his currently alleged role as a middleman in the distribution of heroin.
But the overlap of time, place, and personnel points the other way,
especially in light of the averment in the wiretap application of one
overall business among all the key figures to deal in both heroin and
cocaine.
2.
Plea Agreement Claim. The claim of Abbamonte and DelVecchio
that their plea agreement in the Southern District bars trial on any of
the charges in the pending Connecticut indictment encounters an initial
issue of appealability. In
United States v. Alessi, 536 F.2d 978 (2d Cir. 1976) (
Alessi
I), and
[**17] in
United States v. Alessi, 544 F.2d 1139, 1143-52 (2d Cir.)
(Alessi III), n1 cert. denied,
429 U.S. 960, 50 L. Ed. 2d 327, 97 S. Ct. 384 (1976), we held that
an order denying dismissal of an indictment and rejecting a claim that
trial was barred by a prior plea agreement was immediately appealable.
In
Alessi III,
id. at 1152, Judge Friendly expressed considerable doubt as
to the wisdom of any pretrial appeals in criminal cases and expressed
the hope that the Supreme Court's then pending decision in
Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct.
2034 [*1071] (1977),
would reject such appeals. n2
Abney did not realize Judge
Friendly's hopes. On the contrary, the decision upheld the appealability
of pretrial orders rejecting double jeopardy challenges. In subsequent
decisions, however, the Court has made clear that
Abney does not
permit an interlocutory appeal from every pretrial ruling that would end
a criminal proceeding if decided in defendant's favor. The Court has
rejected an interlocutory appeal from an order denying dismissal of an
indictment challenged on speedy trial grounds,
United States v. MacDonald, 435 U.S. 850, 56 L. [**18] Ed. 2d 18,
98 S. Ct. 1547 (1978), and from an order denying dismissal of an
indictment challenged on grounds of vindictive prosecution,
United States v. Hollywood Motor Car Co., 458 U.S. 263, 73 L. Ed.
2d 754, 102 S. Ct. 3081 (1982) (per curiam). n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 An intervening unreported decision on a mandamus petition,
United States v. Alessi, 536 F.2d 978 (2d Cir. 1976), has
been referred to as
Alessi II. See
United States v. Alessi, supra, 544 F.2d at 1142.
n2 These doubts were not shared by then Circuit Judge Feinberg, who
concurred only in the result on the appealability issue.
544 F.2d at 1155.
n3 After
United States v. Hollywood Motor Car Co., supra, we upheld,
somewhat tentatively, the appealability of an order denying dismissal of
an indictment for alleged prosecutorial vindictiveness "to the extent
that that claim relates to the double jeopardy question," which was
fully available for interlocutory review.
United States v. Russotti, 717 F.2d 27, 32 n. 2 (2d Cir. 1983),
cert. denied,
465 U.S. 1022, 104 S. Ct. 1273, 79 L. Ed. 2d 678 (1984). Such
pendent appellate jurisdiction is arguably available in the instant
appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**19]
We are obliged to follow the holding on appealability in
Alessi
unless we have some basis for concluding that that ruling has been
eroded by subsequent decisions of the Supreme Court. We do not think
this has occurred. It is true that
Abney and
Helstoski v. Meanor, 442 U.S. 500, 61 L. Ed. 2d 30, 99 S. Ct.
2445 (1979), which upheld appealability of an order adjudicating a
claim of trial immunity based on the Speech or Debate Clause, both
emphasize that pretrial appeal is available only where the defendant
asserts a right to be free of the burdens of a trial, not simply those
flowing from a conviction. But there is considerable force to
appellants' argument that a plea agreement barring prosecution on
related charges is intended to preclude trial, not merely conviction, on
such charges. Indeed, it is arguable that the whole point of including
such a provision in a plea agreement is not simply to restate the
protection that the Double Jeopardy Clause would provide in any event,
but to secure the added benefits, first, of avoiding the need to
litigate whether the elusive standards of the Double Jeopardy Clause
have been exceeded and, second, of securing broader insulation
[**20] than
the Clause provides. We are satisfied that an order denying a colorable
claim to dismiss an indictment for violation of a prior plea agreement
remains appealable in this Circuit.
But see
United States v. Bird, 709 F.2d 388 (5th Cir. 1983) (order
denying dismissal of indictment on ground of prior plea agreement not
appealable);
United States v. Eggert, 624 F.2d 973 (10th Cir. 1980) (per
curiam) (same).
The Government also contends that, even if the order is appealable, the
remedy for any breach of the plea agreement, if one occurred, is not
dismissal of the subsequent indictment but withdrawal of the plea to the
prior indictment. Reliance is placed on
Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437
(1984), and that decision's discussion of
Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct.
495 (1971). The holding in
Mabry is inapposite. That decision
held unenforceable a plea agreement on which no guilty plea had been
entered. The agreement had been rescinded by the prosecutor before any
plea was entered.
104 S. Ct. at 2546. More pertinent to this appeal is the reference
to
Santobello in
Mabry, in which the Court observed
[**21] that "
Santobello
expressly declined to hold that the Constitution compels specific
performance of a broken prosecutorial promise as the remedy for such a
plea [
i.e., a plea entered upon such a promise]; the Court made
it clear that permitting Santobello to replead was within the range of
constitutionally appropriate remedies."
104 S. Ct. at 2548 n. 11. In
Santobello, which was a habeas
corpus challenge
[*1072] to
a state court sentence imposed in violation of a plea agreement, the
Court returned the case to the state court to decide whether to order
specific performance of the promise or to permit the defendant to
replead.
404 U.S. at 263. However, nothing in
Santobello or
Mabry
precludes a federal court from determining that the appropriate remedy
for breach of a federal prosecutor's plea bargain, on which a plea has
entered, is specific performance of the bargain. It seems obvious that
our Court in
Alessi I and
Alessi III would not have
reached the merits of an appeal from an order denying dismissal of a
subsequent indictment unless it believed that it had authority to
reverse the order and dismiss the indictment had defendant established
breach
[**22] of the
plea agreement. We take the same view of our authority here and
therefore reach the merits of the claim.
On the merits, Abbamonte and DelVecchio contend that the plea agreement
that resulted in their guilty pleas to the 1983 information in the
Southern District of New York included a commitment by the Government
broad enough to preclude prosecution on any of the counts in the pending
Connecticut indictment. The commitment was stated by counsel for
Abbamonte during the plea proceedings in New York in the following
terms:
The government has agreed that as part of this plea, firstly that
this plea will cover all charges that could have come about by the
government arising out of these facts.
No facts were stated at that point in the plea colloquy, though
subsequently, the prosecutor detailed sufficient facts to enable the
District Court to satisfy itself that there was a factual basis for the
plea.
See
Fed. R. Crim. P. 11(f). Appellants contend that the commitment
should be construed to bar a subsequent prosecution based on any facts
that "the Southern District prosecutors knew or should have known" at
the time of the plea. Brief for Appellants Abbamonte
[**23] and
DelVecchio at 27. We disagree.
The sentence from the plea colloquy on which appellants rely immediately
followed this statement by Abbamonte's counsel:
I will state to the Court as the Court is aware, this is a
superseding information. Previously there was a complaint
and then an indictment.
In context, the remarks of defense counsel most likely reflect no more
than the usual Government commitment to consider a plea to a substituted
information to be in satisfaction of all the charges set forth in the
prior charging documents -- in this case both a complaint and an
indictment. Even if the commitment extended to other charges that could
have been brought based on facts alleged in the original charging
documents, here, as in
Alessi, there is no indication that the
plea agreement contemplated any restriction on prosecutions initiated in
any district other than the district in which the plea was entered.
See
Alessi III, 544 F.2d at 1154; see also
United States v. Papa, supra, 533 F.2d at 823-25.
CONCLUSION
The ruling appealed from is affirmed insofar as it denied dismissal of
the indictment against Abbamonte and DelVecchio because of their plea
[**24]
agreement in the Southern District of New York; the ruling is vacated
insofar as it denied dismissal of Count 1 of the indictment against all
three appellants on grounds of former jeopardy, and the cause is
remanded to the District Court for further proceedings on the double
jeopardy claim consistent with this opinion.