author: MUECKE, District Judge.

text:
    Richard S. BERRY, Plaintiff, v. DEPARTMENT OF JUSTICE, United States Parole Commission, United States Bureau of Prisons, Defendants.
    No. Civ. 82-2041 PHX CAM.
    United States District Court, D. Arizona.
    May 9, 1985.

      Michael E. St. George, Tempe, Ariz., for plaintiff.
    Susan Ehrlich, Asst. U.S. Atty., Phoenix, Ariz., for defendants.
   ORDER

MUECKE, District Judge.

Having received and considered the Government’s Motion to Dismiss, filed January 2, 1985; Plaintiff’s Response, filed February 1,1985; the Government’s Reply, filed February 6, 1985; Plaintiff’s Amended Motion for Certification of Class Action, filed January 16, 1985; the Government’s Response, filed January 22, 1985; and Plaintiff’s Reply, this Court finds and concludes as follows:

In 1981, Plaintiff Berry requested copies of his presentence report and Report on Sentenced Offender from Defendants pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976). His request was denied administratively, on grounds that the documents requested were court records and thus exempt from disclosure under the FOIA; alternatively, the Government claimed that the documents could be withheld pursuant to one of the enumerated exemptions in the FOIA, 5 U.S.C. § 552(b)(3). See exhibits attached to Plaintiffs Complaint filed December 8, 1982. Plaintiff then filed this action.

On March 14, 1983, this Court granted the Government’s motion to dismiss on grounds that the documents requested were court records rather than agency records. That decision was reversed in Berry v. Department of Justice, 733 F.2d 1343 (9th Cir.1984), in which the Ninth Circuit held that the court-generated documents requested by Plaintiff are agency records because they are in the possession of an agency and are “prepared substantially to be relied upon in agency decision-making.” Berry, supra, 733 F.2d at 1349. In reaching this decision, the court noted that “[o]ne of the goals of the FOIA is to allow the public to determine how agencies reach decisions,” id., and observed that the Parole Commission and Reorganization Act, 18 U.S.C. § 4201 et seq., now requires the Commission to consider available presentence reports in making parole determinations. The court thus held that presentence reports and the Report on Sentenced Offender are “agency records under the FOIA when they are in the possession of either the Federal Bureau of Prisons or the United States Parole Commission. On remand, the Department of Justice is free to assert any alternative FOIA exemptions that may preclude disclosure.” Berry, supra, 733 F.2d at 1356.

The Government’s pending motion to dismiss claims that both the Parole Commission and Reorganization Act, supra, and Rule 32, Federal Rules of Criminal Procedure, are “withholding statutes” for the purposes of the exemption to the FOIA set forth at 5 U.S.C. § 552(b)(3):

(b) This section does not apply to matters that are—
H< * * * * *
(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

This Court holds that the statutes cited by the Government would authorize an agency to withhold certain portions of the requested documents, but would not constitute a blanket exemption for presentence reports or, under most circumstances, permit the Government to routinely withhold the entire document.

Waiver

Plaintiff first argues that the Government has waived its right to assert the (b)(3) exemption or any other FOIA exemption by its failure to expressly plead such exemption(s) in its Answer. Plaintiff cites Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), and Jordan v. Department of Justice, 591 F.2d 753 (D.C.Cir.1978), for his argument; these cases, however, stand for the proposition that the Government may not assert an exemption for the first time on appeal, without first having raised it in the district court. Neither case requires that the Government specifically identify the exemption(s) upon which it relies in its Answer.

In its initial challenge to Plaintiff’s Complaint, the Government chose to argue that Plaintiff failed to state a claim under the FOIA, because the documents requested were court records and thus not subject to the FOIA. The Ninth Circuit’s ruling on that challenge was the first of its kind in this circuit. The court expressly stated that, on remand, Defendants are “free to assert any alternative FOIA exemptions that may preclude disclosure.” Berry, supra, 733 F.2d at 1356. Although the court did not explicitly invoke its discretion under 28 U.S.C. § 2106, it is apparent that the Ninth Circuit did not intend to preclude the Government from now asserting particular exemptions, now that it has determined that Plaintiff has stated a claim under the FOIA.

Parole Commission and Reorganization Act

Not surprisingly, the Government argues that the Parole Commission and Reorganization Act, 18 U.S.C. § 4201 et seq. (“the Act”), is a withholding statute for the purposes of the (b)(3) exemption to the FOIA. Section 4207(3) of the Act requires the Parole Commission to consider available presentence reports in making parole determinations; and section 4208(b) requires the Commission to provide a prisoner awaiting a parole determination proceeding with “reasonable access” to such reports prior to the proceeding. Section 4208(c) authorizes the Commission to withhold only the following information:

(1) diagnostic opinions which, if made known to the eligible prisoner, could lead to a serious disruption of his institutional program;
(2) any document which reveals sources of information obtained upon a promise of confidentiality; or
(3) any other information which, if disclosed, might result in harm, physical or otherwise, to any person.

If any information is withheld by the Commission under the above-quoted provisions, the Commission must summarize the basic contents of the material withheld and furnish the summary to the prisoner.

The Government’s (b)(3) argument stems from the Ninth Circuit’s holding in Berry, supra, 733 F.2d at 1354, that “the Parole Commission and Reorganization Act is an express nondisclosure statute which affirmatively requires confidentiality to achieve stated goals,” and that “it constitutes a withholding statute under exemption (3).” However, it is clear from the opinion that only “specific portions” of the presentence report (that is, the type of information which falls into the categories described in 18 U.S.C. § 4208(c)(l)-(3)) may be withheld pursuant to the Act and exemption .(b)(3) of the FOIA. The Ninth Circuit’s opinion does not support the Government’s broad argument that the entire presentence report may be withheld; the decision recognizes that only “certain information,” “certain portions,” and/or “potentially harmful parts” of the presentence report may be withheld, Berry, supra, 733 F.2d at 1354, and predicts that “the FOIA will probably entitle defendants to copies of that which they were shown at sentencing and no more.” Id. at n. 17.

Thus, although the Government is correct in its argument that the Act is a withholding statute, it authorizes nondisclosure of only particular types of information; here, the Government has not identified any portions of Plaintiff’s presentence report which fall into the categories set forth in 18 U.S.C. § 4208(c), and the Government’s motion must be denied on this issue.

Rule 32, Federal Rules of Criminal Procedure

The version of Rule 32 in effect at the time Plaintiff was sentenced (which is set forth in Berry, supra, 733 F.2d at 1344 n. 1, and which is not substantially different from the Rule as presently formulated) required the sentencing court to allow the defendant and his counsel to read the presentence report prior to sentencing, “but not to the extent that in the opinion of the court the report contains diagnostic opinions which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons ____”

Plaintiff contends that a rule of criminal procedure is not a “statute” for the purposes of the (b)(3) exemption to the FOIA. This argument was rejected as to Federal Rule of Criminal Procedure 6(e) in Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856 (D.C.Cir.1981), wherein it was found that because Rule 6(e) had been “positively enacted” by Congress (as opposed to become effective through Congressional inaction), it is a “statute” under 5 U.S.C. § 552(b)(3). Similarly, the version of Rule 32 in effect at the time of Plaintiffs sentencing was proposed by the Supreme Court on April 22, 1974. Congress delayed the effective date of the proposed amendments on July 30, 1974. P.L. No. 93- 361, 88 Stat. 397 (1974). Subsequently, Congress affirmatively enacted the version of Rule 32 in effect at the time of Plaintiffs sentencing on July 31,1975. P.L. No. 94- 64, 89 Stat. 370 (1975). Thus, Rule 32 is a “statute” for the purposes of the (b)(3) exemption, under Fund for Constitutional Government, supra.

The Government argues that Rule 32 meets the requirements of a withholding statute under the first prong of the (b)(3) exemption because it leaves no discretion to the agency to release the presentence report. This argument is unpersuasive because Rule 32 is wholly inapplicable to any agency; it guides the exercise of court discretion only. As for the second prong of the (b)(3) exemption, Rule 32 does establish “particular criteria for withholding” and “refers to particular types of matter to be withheld.” But again, Rule 32 applies to courts and not to agencies.

Furthermore, Rule 32 does not permit the court to refuse to disclose the presentence report to the defendant, if the court relies upon it in sentencing. On the contrary, the rule requires the court to provide the report to the defendant, “except with respect to certain materials as to which a factual summary must be given.” Carson v. U.S. Department of Justice, 631 F.2d 1008, 1012 (D.C.Cir.1980). To the extent that the Government relies on Rule 32, the agency could withhold that which the court properly withheld; but again, no support is provided under Rule 32 for withholding the entire presentence report.

Based upon the foregoing, this Court holds that, while both the Parole Commission and Reorganization Act and Rule 32, Federal Rules of Criminal Procedure, provide a basis for the nondisclosure of some information possibly contained within a presentence report or a Report on Sentenced Offender pursuant to 5 U.S.C. § 552(b)(3), neither statute would allow an agency to withhold the entire document, unless the agency properly claimed that the entire contents of the specific document fell within the particular categories of information set forth in the Act or in Rule 32. Because the Government does not contend that any portions of Plaintiffs presentence report or Report on Sentenced Offender fall within those categories, its motion to dismiss must fail.

Plaintiffs Motion for Class Certification

Plaintiff seeks to form a class of all present and future federal inmates in the Ninth Circuit who become eligible for parole and who wish to seek copies of their presentence reports or Reports on Sentenced Offenders to prepare for parole hearings. Although Plaintiff makes an argument on each of the requirements necessary for the certification of a class action, this Court agrees with the Government that this action is not suitable for class certification. As discussed above, the Parole Commission has the statutory obligation and discretion to refuse to disclose the type of information described in 18 U.S.C. § 4208(b)(l)-(3); thus, some individual scrutiny must be given to each presentence report requested. Under these circumstances, Plaintiff’s presentence report cannot possibly be “typical” of every other federal inmate’s presentence report in the Ninth Circuit; questions of fact are simply not common to the proposed class.

Pursuant to the Ninth Circuit Berry opinion and this Order, Defendants may no longer claim that presentence reports are court records or that they are wholly exempt under 5 U.S.C. § 552(b)(3). The Government is surely aware of the sanctions which could result from the taking of a frivolous position; there is no reason to believe that the Government would ignore these mandates in the Ninth Circuit, and no class certification is possible or necessary.

Therefore,

IT IS ORDERED that the Government’s Motion to Dismiss, filed January 2, 1985, is denied.

IT IS FURTHER ORDERED that Plaintiff’s Amended Motion for Certification of Class Action, filed January 16, 1985, is denied.

      . The Parole Commission and Reorganization Act, of course, guides agency discretion in nearly identical language once the agency obtains possession of the presentence report.


source: Caselaw Access Project

author: COHN, District Judge.

license: Public Domain

text:
    George L. SCOTT, Petitioner, v. Dale FOLTZ, Respondent.
    Civ. A. No. 84-CV-0418-DT.
    United States District Court, E.D. Michigan, S.D.
    May 13, 1985.
    As Corrected May 28, 1985.

      Arthur J. Tarnow, Detroit, Mich., for petitioner.
    Thomas J. Kulick, Asst. Atty. Gen., Lansing, Mich., for respondent.
   OPINION

COHN, District Judge.

I

On November 1, 1979, Petitioner was convicted of two counts of armed robbery, Mich.Comp.Laws § 750.529, by a jury in the Monroe County Circuit Court. He is currently serving two concurrent terms of twenty to sixty years at the State Prison of Southern Michigan at Jackson.

On September 23, 1981, with one dissent, the Michigan Court of Appeals affirmed the conviction in an unpublished opinion. (Docket No. 49375). Subsequently, on March 29, 1983, the Michigan Supreme Court issued an order as follows:

The prosecutor is ordered to show cause in writing within 30 days of the date of this order, why the defendant’s conviction should not be reversed because of the failure of the prosecutor to disclose the plea bargain with witness Margaret Murry and his failure to correct the false inference from her testimony that no promise had been made to her in return for her plea of guilty,

and thereafter, rather than deciding the question, inexplicably denied leave to appeal, with one dissent, on September 21, 1983. (Docket No. 68785). Now before the Court is Petitioner’s pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reason which follows a writ of habeas corpus will issue conditionally-

II

A

The only real issue at Petitioner’s trial was Petitioner’s alleged accomplices’ credibility. As stated in the prosecution’s opening statement: “They ... will be the essential witnesses in this case.” (Trial Transcript, p. 64).

Two sisters, Gloria Gentry and Hazel Hodge, testified that they were robbed at knifepoint by two women at a rest stop on southbound Highway 23 in Monroe County ^ After the robbery, they saw the two women go to a car at which a man was standing. The three entered the car and drove away with a fourth person already in the car. The sisters identified the driver as a man but were unable to identify a passenger in the car as either being male or female. The sisters did not see either robber give anything to anyone in the car. Neither sister was able to identify Petitioner.

The only evidence that linked Petitioner to the crime was the testimony of the two robbers themselves, Margaret Murry and Beverly Jordan. They each testified that Petitioner had taken them to the rest stop for purposes of prostitution. When they arrived there, however, Petitioner gave them a knife and told them to rob Gentry and Hodge. After the robbery, Murry and Jordan gave the money they took ($122.00) to Petitioner. The car belonged to Petitioner.

While Petitioner admitted being at the rest stop with Murry, Jordan and Turner, he denied knowing anything about the robbery beforehand. He did admit that Jordan gave him $20.00 after she returned to the car and that his knife had been used. He specifically denied having taken Murry and Jordan to the rest stop for purposes of prostitution.

B

Murry testified for the prosecution at the preliminary examination held May 21,1979. At the preliminary hearing, the following exchange occurred during the direct examination of Murry under questioning by an assistant prosecuting attorney:

Q: Also has the Prosecutor’s Office or I as a member of that office — has anyone promised you anything in order to have you testify here today?
A: No.

(Preliminary Examination Transcript, p. 6). An assistant prosecuting attorney was also present at Petitioner’s arraignment on June 8, 1979. Thereafter, on July 2, 1979, Jack Vitale was appointed as a special prosecutor on the petition of the Monroe County Prosecuting Attorney to handle the trial. The petition for appointment is attached as Appendix A.

At the trial, at which Petitioner was represented by an attorney appointed on June 8, 1979, the following exchange occurred during Murry’s direct examination:

Q: You’ve been charged with the crime of armed robbery have you not?
A: Yes.
Q: And how has that case been disposed of?
A: It haven’t [sic]. I go back the 11th of October.
Q: For what?
A: For my sentence.
Q: Did you have a trial?
A: No.
Q: Did you plead guilty?
A: Yes.
Q: Do you know if you were promised— were you promised anything in return for the plea of guilty.
A: No.
Q: Were you promised anything in return for your testimony here today?
A: No.
Q: Are you telling the truth?
A: Yes.

(Trial Transcript, pp. 97-98).

During closing arguments, the special prosecutor vigorously argued in rebuttal that Murry was to be believed because she had not made a bargain for her testimony: “They [Murry and Jordan] were not promised anything, no one said we’re going to give you this for your testimony, or anything else. They’re here to tell the truth and that’s all.” (Trial Transcript, p. 245).

However, Murry did in fact plea bargain and was promised something. Her plea agreement was summed up by the trial court as follows:

The plea bargain, as set forth in the transcript, is that [Murry] would enter a plea of guilty to the third count; that is assault with intent to rob and steal while armed. The People would make no recommendation regarding Youthful Trainee status and that if the Court decided not to grant Youthful Trainee status the prosecutor would recommend a minimum jail time of two years if the court is going to sentence to jail and reject the Youthful Trainee. That was corrected to a maximum of two years. And further, that she would testify in any further court proceedings against two male subjects believed to have been involved in this who have not yet been charged.

(Motion for New Trial Transcript, p. 38). Murry pleaded guilty on November 11, 1978, a few months before Petitioner was charged. The Monroe County Prosecuting Attorney’s letter dated November 9, 1978, memorializing the plea agreement to Murry’s attorney, L.E. Merman, is attached as Appendix B.

C

Eventually, Petitioner’s trial counsel filed a motion for a new trial based on newly discovered evidence. He told the trial court that he did not know about the plea bargain between the Monroe County Prosecuting Attorney and Murry until he just happened to attend Murry’s sentencing approximately a week before the hearing on the motion. During oral argument, the trial court responded to Petitioner’s counsel by saying that Murry’s plea and sentence was a matter of public record. Petitioner’s trial counsel in turn said that he had been told by the Prosecuting Attorney that there had been no plea bargain with Murry. (Motion for New Trial Transcript, p. 11). To this, the trial court replied, “Well, the Prosecutor is not the horse’s mouth, you know.” (Motion for New Trial Transcript, p. 11). Petitioner’s trial counsel then pointed out that the court files did not contain a transcript of Murry’s plea. To this, the trial court said, “You could have got one easily by requesting it.” (Motion for New Trial Transcript, p. 12). In the end, the trial court denied the motion for a new trial ruling that, through due diligence, Petitioner’s trial counsel could have discovered the plea bargain before trial. (Motion for New Trial Transcript, p. 43).

Ill

A

This case is directly controlled by Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1971). In Napue, the principal state witness testified that he received no consideration in return for his testimony. The Illinois State’s Attorney who prosecuted the case, however, had himself worked out an agreement with the witness. In reversing, a unanimous Supreme Court ruled: “[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment____ The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears____” 360 U.S. at 269, 79 S.Ct. at 1177.

B

Rather than considering either Napue or Giglio, however, the Michigan Court of Appeals addressed the issue as follows:

In light of the discrepancy between the real plea bargain and witness’ testimony, we are not convinced that it was technically perjury, i.e., a willful false statement upon material facts sworn to be true. People v. Hoag, 89 MichApp 611, 617-619; 281 NW2d 137 (1979), lv den, 407 Mich 743 (1979). Indeed the framing of the question leads to various interpretations. Further, the record shows that she was not promised something as an inducement to testify “adversely” to defendant. She easily could have misunderstood the thrust of the question.
Moreover, assuming the witness intentionally lied as to her plea bargain, we find no reversible error in the trial court's denial of defendant’s motion for new trial. Defendant’s motion was based on the ground that the fact of the perjury was newly discovered evidence. The grant of a new trial on the ground of newly discovered evidence is discretionary with the trial court. People v. Howard, 78 MichApp 592; 261 NW2d 15 (1977).
“In order for the defendant to be entitled to a new trial it must be shown that the evidence was newly discovered and not merely cumulative, that the party offering the new evidence could not have discovered and produced it at trial with reasonable diligence, and that its use would probably render a different result on a retrial of the matter. People v. Barbara, 400 Mich 352, 362; 255 NW2d 171 (1977).” People v. Van Dorsten, 96 MichApp 356, 359; 292 NW2d 134 (1979), rev’d on other grounds, 409 Mich 942 [298 N.W.2d 421] (1980).
Generally, where the new evidence is useful only to impeach a witness, it is deemed merely cumulative. People v. Barbara, supra [400 Mich. at], 363 [255 N.W.2d 171]; Kube v. Neuenfeldt, 353 Mich 74; 90 NW2d 642 (1958).
Murry’s plea bargain was useful only to impeach Murry’s testimony. It only might have been pertinent to her motive for testifying, and would not have directly contradicted her testimony as to any of the material facts concerning defendant’s alleged crime. For this reason, it would be difficult to conclude that “its use would probably render a different result on a retrial of the matter.” This is especially so since corroborating testimony was given by another accomplice who had not entered into any plea bargain. Finally, as the court noted in the order, and at several points in the new trial motion hearing, the existence of the plea bargain could have been discovered and produced at trial with reasonable diligence since the files in Murry’s case were available to defense counsel.
In view of the ambiguity in interpreting the above excerpt of testimony, it cannot be said that the prosecutor was under an affirmative duty to correct any misimpressions arising out of the testimony.

(Court of Appeals Op., pp. 8-9).

The dissenting judge in the Michigan Court of Appeals, however, saw the matter quite differently and, as will be seen, correctly:

Technically, perhaps Ms. Murry was not “promised” anything in return for guilty plea or testimony. However, it is plain that her agreement to testify was part and parcel of the plea agreement entered into with the prosecution. Through that agreement, Ms. Murry, a direct participant in these robberies, was able to plead to a single lesser offense.
I believe that under the circumstances of this case the prosecutor had a duty to reveal the plea bargain to the jury. Due process requires that a prosecutor inform a jury of such bargains in certain situations. Giglio v. United States, 405 US 150; 92 SCt 763; 31 LEd2d 104 (1972), People v. Atkins, 397 Mich 163; 243 NW2d 292 (1976), People v Nettles, 41 MichApp [215] 715; 199 NW2d 845 (1972). In People v. Tillman, 85 MichApp 425; 271 NW2d 261 [1978] (1968), rev on other grds, 406 Mich [898] 848; 276 NW2d [456] 450 (1979), this court noted the types of situations calling for disclosure.
“[T]he cases generally fall into three broad categories: (1) a prosecutor’s refusal of a defense request for material, the precise nature of which is unknown to the defense, (2) the prosecutor’s duty to disclose exculpatory evidence unknown to the defense without a request being made, or (3) prosecutorial use of false testimony, knowing it to be false. See, e.g., 360 US 264; 79 SCt 1173; 3 LEd2d 1217 (1959). Brady v. Maryland, 373 US 83; 83 SCt 1194; 10 LEd2d 215 (1963), Giglio v United States, supra, and United States v. Agurs, 427 US 97; 96 SCt 2392; 49 LEd2d 342 (1976).

I believe the present circumstances fit within both categories (1) and (3). As stated in People v. Lytal, 96 MichApp 140, 156; 292 NW2d 498 (1980), the prosecution is under a duty to disclose any deal made in exchange for a witness’s testimony of which the defense does not have specific knowledge. Moreover, at the request of the defense the prosecution must disclose such information to the jury. Even absent a defense request, disclosure must be made when false information is otherwise presented to the jury. Id.

Here, there was no defense request that the jury be informed of Ms. Murry’s plea bargain with the prosecution. The failure of defense counsel in this regard was readily explained in the motion for new trial. Defense counsel stated at the hearing on the motion and in his affidavit supporting the motion that he had asked the prosecutor about plea bargains with the accomplice witnesses and that he had been advised that none had been made. The trial court found this deception to be of little consequence, since defense counsel might have discovered the plea agreement on his own. I disagree. Although we operate in an adversary system of justice, it must be remembered that the prosecutor’s duty is not merely to convict but to see that justice is done. People v. Farrar, 36 MichApp 294, 299; 193 NW2d 363 (1971). I believe defense counsel had a right to rely on the prosecutor’s representation that no plea bargains had been made. Thus, I would view the representation as an improper refusal of a defense request for material producing a corresponding duty to reveal the material to the jury.

The plea bargain should have been revealed by the prosecutor for a second reason, to correct the false impression given to the jury that no deal had been made with Ms. Murry. If Ms. Murry’s testimony that she was not “promised” anything was not directly false, it was only because of the artful phrasing of the prosecutor’s questions. The examination was nevertheless deceptive since it implied that there was no connection between Ms. Murry’s decision to testify and the disposition of the charges against her. Moreover, it is readily apparent that this was the very design of the questioning. It was a means to bolster Ms. Murry’s credibility. I conclude that defendant was denied due process of law by the prosecutor’s failure to apprise the jury of the truth with regard to the witness’ plea bargain.

(Court of Appeals Op., pp. 2-3, dissent).

IY

Respondent raises a number of arguments against Petitioner’s entitlement to a new trial. Each will be addressed along with the arguments raised by the Monroe County Prosecuting Attorney before the Michigan appellate courts.

A

Respondent argues, and the Michigan Court of Appeals agreed that Petitioner was not entitled to a new trial because the evidence that Murry had plea bargained did not, or would not, contradict substantive evidence of guilt. It would merely have impeached credibility. This argument, however, was explicitly rejected in Napue, supra, 360 U.S. at 269, 79 S.Ct. at 1177:

The principal that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may not be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.

B

Both the trial court and the Michigan Court of Appeals placed the burden on Petitioner’s counsel at trial for not having ascertained the existence of the plea bargain before trial. This ruling, however, was incorrect. Napue and Giglio clearly place the burden on the government which should have known about the apparent perjury and prevented it. United States v. Rosner, 516 F.2d 269, 280 (2d Cir.1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976). See also Haber v. Wainwright, 756 F.2d 1520 (11th Cir.,1985). A conviction must fall where the prosecution, although not soliciting it, allows perjured testimony to go uncorrected when it appears even though it is relevant only on the issue of credibility. Giles v. Maryland, 386 U.S. 66, 74, 87 S.Ct. 793, 797, 17 L.Ed.2d 737 (1966).

C

Before the Michigan Supreme Court, the Monroe County Prosecuting Attorney argued that Napue did not apply because the prosecutor who tried the ease had not himself known about the plea bargain. Giglio, however, rejected this argument. In Giglio, the Assistant United States Attorney had not known about the plea bargain with the witness and did not realize that the witness was not being truthful when he denied such a bargain. The plea agreement had been reached with another Assistant United States Attorney in that office. In a 7-0 opinion, the Supreme Court stated:

In the circumstances shown by this record, neither [the] authority [of the Assistant U.S. Attorney who made the agreement] nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is a spokesman for the Government. A promise made by one attorney must be attributed, for these purposes to the Government____ To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.

405 U.S. at 154, 92 S.Ct. at 766.

D

Before the Michigan Supreme Court, the Monroe Prosecuting Attorney argued that Giglio is distinguishable because the special prosecutor was not a member of the Monroe Prosecuting Attorney’s Office and, as such, constituted a separate entity. In Michigan, an appropriate court may appoint a special prosecutor to perform the duties of the county prosecutor. Mich. Comp.Law § 49.160(2). The special prosecuting attorney is “vested with all of the powers of the prosecuting attorney for the purpose of the appointment and during the period of appointment.” Mich.Comp.Law § 49.160(3).

Under certain circumstances, where the prosecutor has no actual knowledge of the perjury, it will not be imputed to him. See United States v. Diecidue, 448 F.Supp. 1011 (M.D.Fla.1978). Here, however, knowledge must be imputed to the special prosecutor.

At the preliminary examination on May 21, 1979, when an assistant Monroe county prosecuting attorney was handling the case, Murry testified that there had been no plea bargain even though one had been arrived at about a half year earlier. After the sentencing of Petitioner the Monroe County Prosecuting Attorney resumed control over the case for the appeals through the state appellate courts.

Mich.Comp.Law § 49.160(1) allows a county prosecutor in Michigan to petition the Circuit Court to appoint a special prosecutor if the prosecuting attorney “is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office.” In the present case, the only reason given for the appointment was that a new assistant, L.E. Merman, had previously represented Murry. The petition did not, however, explain how this amounted to a conflict of interest. First, Murry pleaded guilty even before Petitioner was charged. Second, Merman was at no time assigned to Petitioner’s case. Third, the petition failed to explain why none of the other assistants could not have handled the case. The record (Trial Transcript, p. 10) showed there were eight lawyers in the Monroe County Prosecuting Attorneys’ Office. At oral argument, Respondent acknowledged that the record did not justify the appointment of a special prosecutor.

Furthermore, the special prosecutor was not really independent. Unlike the special prosecutors in cases like Watergate, Vitale apparently had no independent investigative staff. In this case, he, in essence, was merely an assistant prosecutor assigned to a particular trial. The Monroe County Prosecutor himself knew that a deal had been struck with Murry; he struck the deal. He also signed the petition for the appointment of the special prosecutor. He also, under Giglio, constructively knew that Murry had made a false statement at the preliminary examination which an assistant had conducted. Despite this knowledge, he did not see fit, despite Napue, to inform either the special prosecutor specifically appointed to try the case or Petitioner’s trial attorney. In such a situation, under Giglio, he had the duty to inform the special prosecutor of the state of affairs and to correct the record of the preliminary examination.

The special prosecutor was in a far better position to ascertain the truth than Petitioner’s trial counsel. Giglio specifically laid the burden on the “government.” On this record, the special prosecutor was the “government.” Under the circumstances of this case, the knowledge of the Monroe County Prosecuting Attorney must be imputed to the special prosecutor.

E

In its opinion, the Michigan Court of Appeals doubted whether Murry's testimony was even perjury. Respondent makes a similar argument. Respondent concedes, however, that Murry’s testimony misled the jury into believing that she had not entered into an agreement with the prosecution. In fact, the prosecution specifically asked Murry questions for the specific reason to negate any inference of a deal for her testimony as evidenced by his argument in closing rebuttal: “[Murry and Jordan] were not promised anything, no one said we are going to give you this for your testimony or anything else. They’re here to tell the truth and that’s it.” Whether Murry cquld properly be charged with perjury under state law or not, the jury was clearly misled. This “false evidence” is precisely what the rule of Napue and Giglio was designed to prevent. See Hilliard v. Williams, 516 F.2d 1344, 1349 (6th Cir.1975), vacated on other grounds, sub nom. Williams v. Hilliard, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 729 (1976); Armour v. Salisbury, 492 F.2d 1032 (6th Cir.1974); Ray v. Rose, 371 F.Supp. 277 (E.D.Tenn.1974).

F

Citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), Respondent last argues that this Court should deny the writ because, even if the false evidence has been exposed, it could not have created a reasonable doubt that would not otherwise have existed. Agurs, however, is inapposite. In Agurs, the Assistant United States Attorney had failed to provide the defense counsel with a copy of one of the prosecution’s witness’ criminal record. The Supreme Court specifically noted in Agurs that there was no inference of perjury. 427 U.S. at 114, 96 S.Ct. at 2402. In fact, Agurs specifically retained the Napue standard for false testimony cases. 427 U.S. at 103, 96 S.Ct. at 2397. See United States v. Runge, 593 F.2d 66 (8th Cir.1979), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979); United States v. Turner, 490 F.Supp. 583, 598-599 (E.D.Mich.1979). Thus, the standard to be applied in this case is: “A new trial is required if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury____’ Napue, supra [360 U.S.] at 271 [79 S.Ct. at 1178].” Giglio, 405 U.S. at 154, 92 S.Ct. at 766.

At oral argument, Respondent pointed out that Petitioner admitted both ownership of the knife and that he had received $20.00 from Jordan. Respondent further argued that even if Murry’s testimony were completely stricken, the jury would still have convicted. Finally, Respondent argued that Jordan corroborated Murry's testimony.

Although each of these points has some merit, the argument begs the question. The trial was essentially a credibility contest. Jordan against Petitioner is one matter, but Jordan and Murry against Petitioner is another. As noted above, only Jordan and Murry, the robbers themselves, in any way implicated Petitioner. The prosecution presented no other evidence corroborating their testimony. Consequently, the evidence was by no means overwhelming. Furthermore, the trial court did not give the Michigan accomplice jury instruction. Michigan Standard Jury Instruction 5:2:03.

The jury might very well have hesitated if it had known not only that Murry had in fact plea bargained for her testimony but had also falsely denied it at Petitioner’s preliminary examination. Under these circumstances, the Court finds that there was a reasonable likelihood that Murry’s false testimony could have affected the jury’s judgment. If the present case does not require a new trial under Napue, it is hard to conceive of one that does.

In recent years, the availability of the writ of habeas corpus has come under attack. Critics have claimed that habeas review defeats finality and damages federal-state relations. However, as stated in Stone v. Powell, 428 U.S. 465, 491, fn. 31, 96 S.Ct. 3037, 3051, fn. 31, 49 L.Ed.2d 1067 (1976), “those to whom the writ should be granted ‘are persons whom society has grievously wronged.’ ” This case provides ample reason for continuing federal habeas oversight over state convictions. What the record shows is an indifferent trial judge, a divided intermediate appellate court and a vacillating high court. Regretfully, the Michigan state courts failed even to acknowledge the question of a prosecutor’s duty in such a case as this.

For the foregoing reasons, a conditional writ of habeas corpus will issue. Petitioner shall be granted a new trial within sixty days or must be unconditionally released at that time. An appropriate order will be entered.

APPENDIX A

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MONROE

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff, vs. GEORGE LAVELLE SCOTT, Defendant.

File No., 17718 79

PETITION FOR APPOINTMENT OF SPECIAL PROSECUTOR

Now comes Michael W. LaBeau, Prosecuting Attorney in and for said County, and in accordance with the terms of MSA 5.758, hereby requests the Court to appoint a Special Prosecutor in the above entitled matter, as L.E. Merman, who is now an Assistant Prosecuting Attorney for said County, had previously appeared on behalf of the co-defendant in said action prior to his appointment to the Prosecutor’s Office.

WHEREFORE, Your Petitioner requests that JACK VITALI be appointed Special Prosecutor in the above entitled case.

FURTHER, Your Petitioner hereby requests that the Special Prosecutor be paid for his services rendered as Special Prosecutor by the County of Monroe.

DATED: June 28, 1979

Michael W. LaBeau, Prosecutor

ORDER

At a session of said Court, held in the Courthouse, in the City of Monroe, on the 2 day of July, 1979.

Present: HONORABLE JAMES J. KELLEY, Circuit Judge.

Upon the reading and filing of the Petition of Michael W. LaBeau, Monroe County Prosecuting Attorney, requesting that a Special Prosecutor be appointed in and for the County of Monroe to represent the Plaintiff in the above entitled case;

IT IS HEREBY ORDERED, That JACK VITALI is appointed Special Prosecutor in and for said County, to act in the above entitled case, and will be paid for services rendered by the County of Monroe.

/s/ James J. Kelley
James J. Kelley, Circuit Judge

APPENDIX B

November 9, 1978
Mr. L.E. Merman
Attorney at Law
P.O. Box 652
Monroe, Michigan
Re: People v. Margaret Murry
Our file # 12332

Dear Brooks:

The following plea agreement would be agreeable with this office:

1. Your client will plead guilty to a reduced charge of Assault With Intent to Rob While Armed, which carries a maximum of life imprisonment, but she can receive a probation sentence under such a charge. The charge would deal with Gloria Gentry as the victim.
2. In return for such a plea, we will dismiss the present Counts I and II charges of Robbery Armed.
3. In regards to sentencing, we will remain neutral and simply take no position, particularly as to your request for Youthful Trainee Status. However, we will add that our recommendation would be, if the Judge feels that a prison sentence must be imposed, that said sentence be for a term of years and that the minimum set on said term be not more than two (2) years.
4. Also, your client, as part of the agreement, is agreeing to testify against the two (2) male subjects that aided or abetted in this crime, their names which are believed to be Gus Turner and George Scott.
I believe the above fully states the plea agreement we have entered into this date.
Sincerely,
OFFICE OF THE PROSECUTING ATTORNEY
Michael W. LaBeau ■

       Corrected May 28, 1985.

      . Counsel has since been appointed for Petitioner. Neither party has filed briefs.

      . The man standing by the car was identified at trial as Augusta Turner. He drove the car away.

      . The Michigan Court of Appeals erred when it stated that the two victims testified that: "A black man was standing by the car, and another man was inside it.” Op., p. 1. See Trial Transcript, p. 72.

      . The Michigan Court of Appeals incorrectly stated that Petitioner testified that he had come to the rest area for prostitution purposes. Op., p. 2. See Trial Transcript, p. 214.

      . The Prosecuting Attorney himself personally handled Murry's case and signed the letter of November 9, 1978.

      . The prosecutor’s representation is not excused by the fact that Ms. Murry’s case was handled by a second assistant prosecutor. The prosecutor’s office is to be treated as an entity in this regard. People v. Atkins, 397 Mich. 163, 174, 243 N.W.2d 292 (1976).

      . At oral arguments, the Court suggested that an evidentiary hearing be held to determine exactly why a special prosecutor had to be appointed. Both parties declined the offer. The Court will rely on the record as it is and draw reasonable inferences.

      . Neither party has discussed the question of the affirmative obligations of the prosecutor in the circumstances of this case. See American Bar Association Standards for Criminal Justice, Chapter 3: The Prosecution Function and particularly Standard 3-2.8; Relations With the Courts and Bar.

      . Respondent acknowledged this as the proper standard at oral argument.

      . As it was, at one point during deliberations the jury announced that it could not reach a verdict.

      . See footnote 7.


author: ARCENEAUX, District Judge.

text:
    NEW ORLEANS SAINTS and John W. Mecom, Jr. v. Alvin GRIESEDIECK, Jr. and Falstaff Brewing Corporation.
    Civ. A. No. 82-2950.
    United States District Court, E.D. Louisiana.
    May 17, 1985.

      Russell J. Schonekas, Tucker & Schonekas, and Catherine Maureen Blackburn, New Orleans, La., for New Orleans Saints.
    Rutledge C. Clement, Jr., Fred D. Bentley, Jr., Phelps, Dunbar, Marks, Claverie & Sims, C. Scott Jackson, Harry S. Redmon, Jr., New Orleans, La., for defendants.
   OPINION

ARCENEAUX, District Judge.

On February 25, 1982, Alvin (“Buddy”) Griesedieck (Griesedieck), a 2% record partner in the New Orleans Saints professional football team (Saints or partnership) executed an instrument purporting to transfer his interest to Paul Kalmanovitz (Kalmanovitz) as Trustee for Falstaff Brewing Corporation (Falstaff). (P-16). Griesedieck declared in the transfer document that he held the interest as Trustee for Falstaff. Plaintiffs filed this suit alleging that the transfer violated the partnership agreement because Griesedieck did not first offer to sell his interest to the partner owning a 50% interest, John W. Mecom, Jr. (Mecom). Plaintiffs’ claim the violation of the “right of first refusal clause” breached an implied resolutory condition which dissolves the sale of the 2% interest to Griesedieck.

Defendants’ claim Griesedieck at all times held the interest as nominee for Falstaff, which plaintiffs knew, that the “transfer” to Kalmanovitz did not work any change in ownership and therefore did not violate the partnership agreement.

The essential disputes in this case are factual. The critical issue is: did Alvin Griesedieck originally purchase the 2% interest in the Saints for himself or for Falstaff Brewing Corporation with the interest simply placed in his name. If Griesedieck purchased the interest for himself, then his subsequent transfer to Kalmanovitz as “trustee” for Falstaff without first offering the interest to the 50% partner violated the partnership agreement. Of course, if Falstaff in fact owned the interest, there was no subsequent transfer. In order to resolve this issue, the Court determines whether or not the partnership and Mecom knew, as Griesedieck claims, that Griesedieck was only a nominee, and that Falstaff owned the interest at all times.

I — Evidentiary Issues

In formulating its decision on this matter, it is necessary that the Court initially dispose of certain evidentiary objections interposed by the parties.

Plaintiffs sought to introduce portions of the deposition of Walter S. Mcllhenny, (P-18) who did not testify at trial, on the ground that Mr. Mcllhenny was either over 100 miles from the place of the trial, or he was unable to attend because of age, illness or infirmity. Fed.R.Civ.P. 32 (a)(3)(B) and (C). Plaintiffs aver Mr. Mcllhenny lives 150 miles by road, and 102 miles by air from this Court. Whether the 100 miles distance is measured by road or air, as in SCM Corp. v. Xerox Corporation, 76 F.R.D. 214 (D.Conn.1977), Mr. Mcllhenny lives more than 100 miles from the place of trial, and his deposition is admissible in lieu of his testimony. Further, the record reveals both parties have both sought and opposed the perpetuation of his testimony due to illness.

The affidavit of Mr. Mcllhenny, (D-104) which contradicts his deposition, is inadmissible hearsay for which there is no exception to the extent it is used to prove the truth of the matters asserted in the affidavit. The affidavit is admissible to show deponent’s prior inconsistent statement — not as substantive evidence, but to impeach the deponent. Fed.R.Evid. 801. The Court has limited its consideration of this exhibit to that purpose.

Plaintiffs contest the authenticity of exhibit D-96 which is an inter-office memorandum on Falstaff letterhead from Falstaff s president Ferd Gutting to its operations manager. (Griesedieck Tr. 301-304). Although Griesedieck could not identify the handwritten note at the bottom of the memorandum, the Court believes the memorandum is what defendants claim it to be; that is, a memorandum kept in the course of a regularly conducted business activity, and it is admissible. Fed.R.Evid. 803, 901.

Counsel for defendants proffered numerous exhibits subject to plaintiffs’ objections of relevancy and parol evidence. (Tr. 305-307). The Court finds the exhibits are relevant and not barred by the parol evidence rule for the reasons stated below, and therefore admissible.

Plaintiffs object to any testimony indicating Griesedieck held the partnership interest as Falstaff’s nominee as contrary to the Act of Sale and the Articles of Partnership and thus violative of the parol evidence rule. At the time of trial LSA-C.C. art. 2276 provided:

Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.

There are numerous exceptions to the parol evidence rule, one of which is “to show that the writing is only a part of an entire oral contract between the parties”. Gulf States Finance Corporation v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965); Ferace v. Fullerton, 425 So.2d 393 (La.App. 3rd Cir.1982). Plaintiffs and Falstaff orally agreed Falstaff would become a partner in the Saints, with Griesedieck as its representative and evidence directed to this issue is admissible.

Plaintiffs assert the attorney-client privilege with respect to three documents: 1) the minutes of a meeting of the Saints minority partners held on June 21, 1972 (D-2-C); 2) a letter from Kelleher to Me-com dated July 24, 1975 (D-29); and 3) a letter from Kelleher to Mecom dated July 16, 1975 (D-28).

In civil actions where state law supplies the rule of decision, privileges are to be determined in accordance with state law. Fed.R.Evid. 501. Louisiana’s attorney-client privilege in civil matters is expressed in LSA-C.C. art. 2283 (repealed in 1984):

No attorney or counsellor at law shall give evidence of anything that has been confided to him by his client, without the consent of such client____

It has been said that this privilege is similar to that in most states. Pugh and McClelland, Evidence, The Work of the Louisiana Appellate Courts, 1975-1976 Term, 37 La.L.Rev. 575 (1977). Louisiana courts routinely cite common law authorities in discussing the privilege, Succession of Norton, 351 So.2d 107 (La.1977); Tubesales v. Champion Machine Works, Inc., 281 So.2d 459 (La.App. 4th Cir.1973). Accordingly, decisions resting on common law principles are appropriate.

The relevant elements necessary to establish an attorney-client privilege are: 1) the asserted holder of the privilege is or sought to become a client; 2) the communication is made to an attorney or his subordinate, in his professional capacity; 3) the communication is made outside the presence of strangers; 4) for the purpose of obtaining an opinion on the law or legal services and 5) the privilege is not waived. In Re Grand Jury Proceedings, 517 F.2d 666 (5th Cir.1975) (citations omitted). What is “vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.” United States v. El Paso Company, 682 F.2d 530, 538 (5th Cir.1982), cert. denied, - U.S.-, 104 S.Ct. 1927, 80 L.Ed. 2d 473 (1984) (emphasis in original); Tubesales, 281 So.2d 459. The privilege may be waived by the failure to assert it at trial, State v. Schmitt, 354 So.2d 1339 (La.1978), or by the failure to claim it during discovery, Perrignon v. Bergen Brunswig Corporation, 77 F.R.D. 455 (N.D.Calif. 1978).

The minority partners met on June 21, 1972, to discuss an offer to purchase their interests. All of the minority partners attended, as well as representatives for the prospective purchaser. (Griesedieck Tr. 231-233). The minutes reflect the presence of the purchaser representatives, George Gillette and Norman Waite. (D-2-6). Also at the meeting were counsel for the Saints partnership, Harry Kelleher (Kelleher) and Dando Cellini (Cellini). Cellini recorded the events of the meeting. (Cellini Tr. 194-195).

Assuming Kelleher and Cellini attended the partnership meeting for the purpose of rendering legal services, the presence of Gillette and Waite, who were neither partners nor clients, negate the confidential element of the meeting and its minutes. United States v. Gordon Nikkar, 518 F.2d 972 (5th Cir.1975).

Further, as defendants suggest, even if the minutes of the June 21, 1972 meeting were privileged, plaintiff waived the privilege by producing the minutes pursuant to a request for production of documents. Perrignon, 77 F.R.D. 455.

The letter from Kelleher to Mecom dated July 24, 1975 (D-29) reports to Me-com discussions Kelleher had with the minority partners, and a discussion with Griesedieck in which Griesedieck allegedly stated Falstaff had decided not to transfer its interest to another nominee holder. The letter summarizes statements made by third persons to the partnership’s attorney, and neither reveals any confidences of the client (the partnership) nor suggests a legal opinion. In Be Sealed Case, 737 F.2d 94 (D.C.Cir.1984).

The Court has closely examined the letter from Kelleher to Mecom dated July 16, 1975 (D-28) and finds it does not reveal any confidences of the partnership nor any legal opinions which have not already been aired at trial, and is admissible. The portion most damaging to plaintiffs is found in the first paragraph of page two of the letter, in which Kelleher states it is his best recollection the Executive Committee of the partnership knew for some time that Falstaff in fact owned the Griesedieck interest. This is his recollection not a confidential communication of the partnership. The fact that Kelleher may have acquired this information as counsel for the partnership does not make it confidential. Moreover, Falstaff’s ownership was generally known to others besides the client. The rest of the letter concerns facts already in evidence without objection.

II — The Merits

In 1967, Mecom and a number of other persons formed á partnership to operate under the name the New Orleans Saints for the purpose of owning a National Football League (N.F.L.) franchise. (P-1). The partnership agreement was restated and amended several times (P-2 — P-8), but the provisions of the agreement on which plaintiffs rely remained unchanged:

8. a. No partner, other than the partner owning more than 50% interest in the partnership (“50% interest partner”) shall have the right to sell or transfer his interest in the partnership unless he sells his entire interest, and unless and until he shall have first offered it for sale to the 50% interest partner.
12. Any attempted sale of an interest in the partnership in violation of the provisions of these articles shall be null and void____

Since the formation of the Saints, Mecom has been the 50% interest partner, and at present he and his family own a 98% interest in the partnership. (Mecom Tr. 15).

In 1966, while preliminary discussions to introduce N.F.L. football to the New Orleans area were underway, Falstaff began to consider acquiring an interest in the Saints partnership, primarily to secure an advantageous marketing position. (Griesedieck Tr. 239; D-l-A). Griesedieck, then a Falstaff director and its marketing vice-president and later public relations director, sent several memoranda to Falstaff s president, his brother Joseph Griesedieck, concerning Falstaff s possible investment in the new team. (D-32, D-33).

On January 17, 1968, Griesedieck met with Mecom and his representatives to discuss the conditions of Falstaff’s possible purchase of a partnership interest. (Meeom Tr. 79, Griesedieck Tr. 241). Griesedieck memorialized the meeting in notes which reflect “[s]tock would be in my name, but paid for by the Corporation. Any profits or loss would affect Corporate P & L. Purchase of stock interest subject to our Board’s approval.” (D-2-A). At Falstaff’s Board of Directors meeting on January 22, 1968, Griesedieck reported on the January 17 meeting, and the Board authorized an investment in the partnership of up to 4%. (Griesedieck Tr. 243; D-l-B, D-l-C).

At the time of Falstaff’s proposed purchase of the partnership, the N.F.L. had an unwritten rule (sometimes referred to as the “Rozelle Rule”) prohibiting publicly held corporations from owning an interest in an N.F.L. franchise. The rule's purpose was to avoid public disclosure of team financial information (e.g. player contracts) by prohibiting participation of publicly held corporations which filed financial reports with the Securities and Exchange Commission. (Schwenk Tr. 148-150; Griesedieck Tr. 246; Poitevent Tr. 461-463). Because of this rule, when Falstaff earlier acquired an interest in the St. Louis Cardinals football team, it was purchased in the name of Joseph Griesedieck, as nominee or representative for Falstaff. (Griesedieck Tr. 228, 246).

Victor Schwenk, who was associated with the embryonic Saints in 1966, and was the team general manager from 1968 to 1971, attended all of the league meetings and some of the executive committee meetings and heard informal discussions of the rule. Mecom attended some of these meetings. (Mecom Tr. 66-67). When Falstaff expressed an interest in the partnership, Schwenk advised Mecom he should not sell an interest to a corporation. Schwenk believed it was commonly known that the rule caused Falstaff to purchase the Saints’ partnership interest in Griesedieck’s name. (Schwenk Tr. 149-152). Edward Poitevent (Poitevent), a minority partner and at one time counsel for the partnership, learned of the rule directly from Pete Rozelle and he assumed Mecom knew of it. (Poitevent Tr. 461-462). To comply with this rule, Arthur Palmer, Meeom’s financial advisor, suggested Griesedieck purchase the partnership interest in his own name as nominee for Falstaff. (Griesedieck Tr. 246).

On January 23, 1968, the day after the Falstaff Board authorized investment in the partnership, Griesedieck wrote to Pete Rozelle the Commissioner of the N.F.L., requesting his approval of Falstaff’s participation as a minority partner, with Griesedieck “... acting as nominee for the Corporation____” Mr. Rozelle answered he saw “no major problems arising from the proposed Saints stock transfer to Falstaff as you outlined it.” (D-5, D-6).

Mecom testified he did not know of an unwritten rule that publicly held corporations could not own part of a franchise, and he could not recall having any discussions to that effect. (Tr. 67-70). Nor did he recall Victor Schwenk telling him they could comply with the rule by putting Falstaff’s interest in the name of Alvin Griesedieck, Jr. (Mecom Tr. 70). In the face of overwhelming evidence the Court finds Me-com knew of this unwritten rule and the rule corroborates defendants’ claim.

On February 7, 1968, Griesedieck wrote to Mecom’s financial advisor Arthur Palmer that Falstaff would not invest in the Saints, but he would consider a personal investment in a 2% interest. (P-11). Robert McMurrey, attorney for Mecom, responded with an offer to sell to Griesedieck individually and Griesedieck accepted the offer. (P-12). By act of sale dated February 15, 1968, Griesedieck, with no qualifying title to indicate his nominee status, purchased a 2% interest in the partnership (P-13) and the articles of partnership were amended accordingly. (P-4).

Plaintiffs introduced Exhibits P-11 and P-12 to show Griesedieck invested in the Saints on his own behalf. However, the Court finds Griesedieck’s testimony believable, consistent with both prior and subsequent documentation, and accepts his testimony that his February 7 letter was to create the appearance of an individual purchase in compliance with the Rozelle rule. (Griesedieck Tr. 251-255). This finding is further supported by Griesedieck’s letter to Robert McMurrey (and copied to Arthur Palmer) enclosing his acceptance (P-12) dated February 19,1968, stating “I assume you are aware that this interest will be in my name but the ownership will be that of Falstaff Brewing Corporation” (D-7). Neither McMurrey nor Mecom contacted Griesedieck regarding this statement. (Griesedieck Tr. 246-247).

On February 26, 1968, Griesedieck reported to the Falstaff Board of Directors that “we had taken a 2% interest” in the Saints as authorized at the prior meeting. (D-l-D). The initial payment for the partnership and all subsequent partnership “calls” or contributions attributable to the disputed interest were made by Falstaff checks. (Mecom Tr. 86-87; Griesedieck Tr. 255-258; D-8, D-15). The partnership issued checks to Griesedieck which he endorsed to Falstaff. (D-24, D-25, D-25A, D-30; Griesedieck Tr. 286-289). Although the partnership tax returns listed Griesedieck as a partner (P-14), Falstaff, not Griesedieck, claimed the partnership profits and losses. (Griesedieck Tr. 276, 282-286; D-112, D-113, D-4). The many documents introduced by defendants show the partnership, through its then business manager, Eddie J. Jones, and accountants, communicated directly with Falstaff’s tax advisors, accountants and attorneys.

There is specific documentation showing that both the partnership and Mecom were well aware that Griesedieck held the 2% interest as nominee for Falstaff. On April 18, 1972, Mecom, Griesedieck and others held a partnership meeting, at which they discussed which partner should protest an Internal Revenue Service finding relating to player inventory amortization. The minutes state:

Mr. Griesedieck suggested that since Falstaff was audited each year in any case that it might be willing to so file. However, Mr. Kelleher noted that in all likelihood Falstaff has no Louisiana tax jurisdiction and might be examined in another district. Since it is important that the return be examined in this district by the same examiner who reviewed the Atlanta and Miami returns, some other partner would have to be chosen.

(D-2-B). (Emphasis added). Mecom testified he assumed the minutes were accurate but that he could not recall the meeting, or Griesedieck’s statement, and he “doubt[ed] seriously if [he] ever discussed anything with Mr. Griesedieck concerning Falstaff.” (Tr. 30-31).

As counsel for the partnership, Cellini memorialized the events of a meeting held on June 21, 1973, attended by the minority partners, including Poitevent (D-2-C). Cellini and Griesedieck believed the memorandum accurately described the events of the meeting. (Cellini Tr. 190-193, 205-206; Griesedieck Tr. 234). The purpose of the meeting was to discuss an offer to purchase the New Orleans Saints. The memorandum reflects:

Mr. Griesedieck stated that his interest in the Saints partnership is in reality owned by the Falstaff Brewing Company, but he foresaw no difficulty in being able to come to a decision on whether or not the interest should be sold by Monday, since a board meeting of the Falstaff Brewing Company was scheduled for Monday.

The memorandum is addressed to Mecom and Richard Gordon, Jr., the Saints’ general manager, and Cellini assumed he sent the memorandum to Mecom and Gordon as his routine practice. (Cellini Tr. 193, 204-205). Cellini testified Griesedieck’s statement regarding Falstaff’s ownership “did not come as a surprise to me.” (Cellini Tr. 209). Mecom read the memorandum when he received it in 1973. (Mecom Tr. 134).

In 1975 the Griesediecks sold the controlling interest in Falstaff and the new owners asked Griesedieck to resign as representative of Falstaff’s interest. Griesedieck sent a letter to Mecom dated July 7, 1975, stating in part:

Per our conversation, I am writing to advise that, effective immediately, I am resigning from the Executive Committee of the Saints partnership____
The new management of the Falstaff Brewing Corporation desires to have the company interest represented by Lawrence Gregg____

(D-27). Mecom remembered this letter and asked his attorney, Harry Kelleher, to respond and he was “sure there was a communication back to [Griesedieck]”, (Mecom Tr. 22-24, 41-42) but plaintiffs failed to produce a communication disputing Falstaff’s ownership.

To the contrary, on July 16, 1975, Kelleher wrote to Mecom and Richard Gordon referencing Griesedieck’s July 7 letter, and noted that although the documents showed Griesedieck to be the record owner, it was his “best recollection that ... the Executive Committee of the Saints’ partnership has been aware for some while past that the Griesedieck interest was in fact owned by Falstaff Brewing Corporation.” (D-28).

By letter dated July 24, 1975, Mr. Kelleher related his conversation with Griesedieck to Mecom, in which Griesedieck apparently referred to “the minority interest in the New Orleans Saints standing in his name, of which the Falstaff Brewing Company is the beneficial owner.” (D-29).

On September 10, 1976, Russell Schonekas, acting as Mecom’s attorney, advised Griesedieck that Mecom wished to “purchase your minority interest in the New Orleans Saints Partnership that you represent....” Griesedieck responded “we have no interest in selling the 2% minority interest ... as outlined in your letter.” (D-99) At the same time Griesedieck wrote to Mecom explaining that the controlling interest in Falstaff was now owned by Paul Kalmanovitz who had no interest in selling at that time. (D-106).

The Court is unable to accept Mecom’s testimony; the evidence is compelling that he must have known of Falstaff’s ownership. For example, Mecom testified he did not know Griesedieck claimed to be Falstaff’s nominee until the filing of this lawsuit in 1982. He then remembered receiving a letter in 1975 or 1976 (D-27), which he gave to his attorney to answer, in which Griesedieck stated Falstaff wished the company interest to be represented by Lawrence Gregg, “a resident of New Orleans and employee of the company.” (Mecom Tr. 21-24). With regard to Kelleher’s letter of July 16, 1975, in which Kelleher recalled the Executive Committee of the partnership knew Falstaff in fact owned the interest, Mecom testified it did not matter to him that Falstaff claimed to be the owner because he still looked to Griesedieck as his partner. (Mecom Tr. 52-53).

Mecom was at best uncertain in his testimony regarding discussions with Griesedieck about Falstaff becoming a partner (Mecom Tr. 74-80), and regarding the letters from his attorney Russell Schonekas and from Griesedieck, which indicate Falstaff owned the interest (D-99). Mecom did not think he received the letter from Griesedieck stating Kalmanovitz did not wish to sell Falstaff s interest (D-106) or the letter enclosing a request from Kalmanovitz to transfer the stock in the Saints (D-108), even though the letters were addressed to his apartment, where he routinely received other correspondence. (Mecom Tr. 122-124). As previously noted, Mecom also denied knowledge of the “Rozelle Rule”, even though his general manager, attorneys and partners knew the rule.

Two former partners supported Mecom’s claim. Walter S. Mcllhenny stated in his deposition that he thought Griesedieck was purchasing the interest for himself. (Mcllhenny Depo. 9-10) This contradicted his previously executed affidavit (D-104) in which he acknowledged Falstaff was a partner and Griesedieck its nominee. Poitevent testified he never heard Griesedieck’s participation as being other than as an individual partner (Poitevent Tr. 438, 440, 443), and to the extent he heard Griesedieck indicate his nominee status he apparently disregarded such statements as having no significance and contrary to law. (Poitevent Tr. 453, 469).

Considering all of the evidence, the Court concludes Mecom — indeed, all of the Saints partners knew of, and consented to, Falstaff’ s partnership interest and its representation by Griesedieck.

Ill

Plaintiffs seek dissolution of the sale of the partnership interest to Griesedieck on the theory that Griesedieck breached a resolutory condition requiring a partner to first offer to sell his interest to the majority partner when Griesedieck transferred his 2% interest to Kalmanovitz. Because I find Falstaff is and has always been the owner of the 2% interest, the transfer of the Falstaff interest from Griesedieck, as nominee, to Kalmanovitz, as nominee, was not a violation of a condition of the partnership agreement. Blum v. Latter, 163 So.2d 189 (La.App. 4th Cir.1964). Although Blum involved an interest in a corporation, not a partnership, the principle of law enunciated therein is equally applicable to the instant case.

Even if Griesedieck owned the interest and sold it, the provision giving the majority partner a right of first refusal is not a resolutory condition. A resolutory condition is implied in all commutative contracts, such as the articles of partnership herein, “to take effect, in case either of the parties do not comply with his engagements____” LSA-C.C. arts. 2046, 1768. The complaining party must sue for dissolution, or if appropriate, specific performance. LSA-C.C. art 2046. In a suit for dissolution, the Court has discretion to determine “whether the performance not rendered by defendant was the cause of plaintiff's obligation, in which case dissolution must be granted, or whether the failure in defendant’s performance is not so grave as to have deterred plaintiff from entering the contract, had he foreseen it, in which case he will be granted damages or a proportional reduction of his own performance.” S. Litvinoff, 7 Louisiana Civil Law Treatise, 2 Obligations § 272 at 514 (1975); Makofsky v. Cunningham, 576 F.2d 1223, 1232 (5th Cir.1978).

Mecom testified he sold the 2% interest in the partnership in part to raise capital, in part because “[he] didn’t feel [he] needed to be a hundred percent owner at that time” and because “[he] really didn’t mind having local people involved with [him] or whomever else wanted to get involved that was a sportsman____”

The testimony does not justify a conclusion that Mecom’s “cause” or reason for selling the partnership interest to Griesedieck was his right of first refusal. I find this right to be merely an ancillary obligation. Makofsky, 576 F.2d 1223.

Further, the partnership agreement provided that an “attempted sale in violation of the provisions of these articles (the right of first refusal) shall be null and void____” (P-1, P-2, P-8). Counsel for the partnership wrote the articles (Poitevent Tr. 434) with this provision in Mecom’s favor, presumably with Mecom’s approval, or at least with his acquiscence. From the terms of the agreement expressing Me-com’s intent, the Court finds Griesedieck’s alleged violation of the condition was “not so grave as to have deterred plaintiff from entering the contract, had he foreseen it” and thus is not a resolutory condition.

In addition, the partnership articles stipulate the remedy in the event of an attempted transfer. If the Court had found a transfer from Griesedieck to Kalmanovitz, the partnership’s and majority partner’s remedy is to have the transfer declared null and void.

In summary, the Court finds: 1) Griesedieck acquired the interest in the Saints partnership as the nominee of Falstaff; 2) his status as a nominee was known to Mecom, the partnership and the other Saints’ partners, in accordance with prior understandings and arrangements with them; 3) the “transfer” from Griesedieck, as Falstaff nominee, to Kalmanovitz as Falstaff nominee, was not a “sale of an interest”, prohibited by Article 8 of the Saints partnership agreement.

Accordingly,

IT IS ORDERED that judgment be entered in favor of defendants Alvin Griesedieck, Jr. and Falstaff Brewing Corporation, and against plaintiffs the New Orleans Saints and John W. Mecom, Jr., dismissing plaintiffs’ claims, plaintiffs to bear all costs of these proceedings.

      . The foregoing discussion with regard to the admissibility of the allegedly privileged Kelleher-Mecom letter is in response to the evidentiary claims presented by defendants. However, the letter, even if not admissible, would not change the Court’s factual findings in the light of other overwhelming evidence on the issue of Mecom’s knowledge of Falstaff’s ownership.

      . Falstaff was essentially a family corporation at this time. Although publicly traded, the Griesedieck family controlled its stock.


author: BLUMENFELD, Senior District Judge.

text:
    Andrew KONON v. Jay FORNAL, James DiPietro and Allan Thompson.
    Civ. No. H-84-739.
    United States District Court, D. Connecticut.
    May 17, 1985.

      Steven L. Seligman, Lester Katz and James A. Armentano, Katz & Seligman, Hartford, Conn., for plaintiff.
    Grant Miller, Jr., Robert E. Beach, Jr. and Geoffrey Naab, Naab & Danforth, Hartford, Conn., for defendants.
   RULING ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

BLUMENFELD, Senior District Judge.

This is an action brought pursuant to 42 U.S.C. § 1983 in which the plaintiff claims that three East Hartford police officers physically abused him and later preferred false criminal charges against him. The complaint alleges, inter alia, claims of malicious prosecution, false imprisonment, and the use of excessive force by the defendants. The defendants have moved for partial summary judgment, arguing that plaintiff’s claims of malicious prosecution and false imprisonment are barred as a matter of law.

As set forth in the Statement of Material Facts Not In Dispute which was submitted by the defendants in support of this motion, and which was not disputed by the plaintiff, the following facts are accepted as true for purposes of this motion:

1. The plaintiff, Andrew Konon, was charged with the crimes of Assault on a Police Officer (Conn.Gen.St. § 53a-167c) and Breach of Peace (§ 53a-181) following the incident alleged in the complaint.

2. Following his arrest, Andrew Konon was placed in a jail cell for a short time prior to his release on bond.

3. In response to said charges, Andrew Konon applied for, and was granted, accelerated rehabilitation, pursuant to Conn. Gen.Stat. § 54-56e (formerly § 54-76p).

4. As a condition of his accelerated rehabilitation, Andrew Konon was placed on probation for 30 days.

5. The criminal charges against Andrew Konon were dismissed on December 2, 1983, after he successfully completed his period of probation.

Discussion

One of the elements that a plaintiff must show in order to maintain a section 1983 action for malicious prosecution is that the criminal proceeding at issue was terminated in his favor. See Singleton v. City of New York, 632 F.2d 185, 194-95 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Appletree v. City of Hartford, Ruling on Defendants’ Motion for Summary Judgment, No. H-81-992 (D.Conn. February 27, 1984), slip op. at 13. In this case the charges against the plaintiff were disposed of through Connecticut’s accelerated rehabilitation law, Conn.Gen.Stat. § 54-56e (formerly § 54-76p). Disposition of a case through section 54-56e is not a termination favorable to the accused for purposes of bringing a later section 1983 action for malicious prosecution. Singleton v. City of New York, 632 F.2d at 193-94.

In Singleton, the Second Circuit considered New York’s equivalent of Connecticut’s accelerated rehabilitation procedure, N.Y.Crim.Proc. Law § 170.55. There, a plaintiff with a malicious prosecution claim had applied for and received an “adjournment in contemplation of dismissal” pursuant to N.Y.Crim.Proc. Law § 170.55. The Second Circuit held that such an adjournment was not a disposition favorable to the accused as was necessary for purposes of pressing his malicious prosecution claim: Proceedings are “terminated in favor of the accused” only when their final disposition is such as to indicate the accused is not guilty, Restatement (Second) of Torts § 660, Comments a & b (1977). An adjournment in contemplation of dismissal, like a consent decree, involves the consent of both the prosecution and the accused and leaves open the question of the accused’s guilt.
... The fact that it is common for judges granting adjournments in contemplation of dismissal to establish behavioral requirements which the defendant must meet during the adjournment period in order to avoid having the case restored to the calendar, ... confirms that an adjournment in contemplation of dismissal is far from being spects favorable to the defendant.” in all re-
... If an adjournment in contemplation of dismissal were held to be a result favorable to the defendant for purposes of bringing an action for malicious prosecution, fewer prosecutors would be willing to consent to such adjournments. No purpose would be served in dismissing the criminal case if the issue of guilt or innocence were in any event to be litigated in a civil suit.

Singleton v. City of New York, 632 F.2d at 193-94.

The reasoning of the court in Singleton is equally applicable to Connecticut’s accelerated rehabilitation law and is adopted by this court. See id. Summary judgment is therefore granted in favor of the defendants with respect to plaintiff’s claims for malicious prosecution.

Defendants also seek summary judgment with regard to plaintiff’s claims of false imprisonment. It is clear that if the plaintiff had been convicted of either of the crimes with which he was charged, or of any lesser included offenses, this would be conclusive proof of probable cause which would defeat his claim of false imprisonment. See Pouncey v. Ryan, 396 F.Supp. 126, 127 (D.Conn.1975). The defendants argue that this rule should also be extended to the present situation in which the plaintiff applied for and received accelerated rehabilitation and now contends that his temporary incarceration was without probable cause.

The defendants’ argument is well taken. Having decided that the criminal charge at issue in the state court was not disposed of in a manner favorable to the plaintiff, thereby precluding the plaintiff from pressing his malicious prosecution claim in this section 1983 action, it would be anomalous to allow the plaintiff to challenge here the existence of probable cause for his arrest and incarceration for that same criminal charge. If the plaintiff in this case were permitted to go forward with his claim of false imprisonment, “there [c]ould arise the strange situation that ... upon virtually the same facts the defendant would not be liable in an action for malicious prosecution but would be in one for false imprisonment.” Clewley v. Brown Thomson, Inc., 120 Conn. 440, 443, 181 A. 531 (1935).

Further, the policy reasons underlying Judge Newman’s decision in Pouncey v. Ryan, supra, are also applicable here. Judge Newman held that a conviction by guilty plea on a lesser included offense of the one charged, barred a subsequent section 1983 action for false arrest and false imprisonment:

Section 1983 is to be interpreted against the background of common law tort liability, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and defenses available at common law remain available under the Civil Rights Act, cf. Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2d Cir.1972). The present action, as plaintiffs concede, is similar to the common law actions of false arrest and false imprisonment, and in neither of these actions is a plaintiff permitted to challenge probable cause in the face of a valid judgment of conviction. E.g., McMahon v. Florio, 147 Conn. 704, 166 A.2d 204 (1960); Clewley v. Brown Thomson, Inc., 120 Conn. 440, 181 A. 531 (1935). See 1 Harper & James, The Law of Torts § 4.12.
Harsh as this rule may seem, especially where the tort plaintiff alleges that probable cause for his arrest was made to appear only because of police perjury, it nevertheless reflects a policy choice that has survived repeated attack over a period of many years. Society chooses to allow a criminal judgment of conviction to immunize arresting officers from liability in civil litigation for arrest without probable cause, in part because it is so unlikely that a conviction will be obtained in circumstances where the arrest was without probable cause, see Clewley v. Brown Thomson, Inc., supra, 120 Conn, at 444, 181 A. 531, and in part because of the impact, perhaps marginal, that the policy has in furthering the highly-valued goal of apprehending offenders. See 1 Harper & James, The Law of Torts § 4.12. The theory is that some extra number of offenders will be caught if the police officer is willing to arrest, knowing that his arrest, without probable cause, will not subject him to liability if a conviction results.

396 F.Supp. at 127 (1975). While disposition of a criminal charge through a guilty plea requires the court to find that there is a factual basis for the plea, disposition through the accelerated rehabilitation law requires no findings of fact with respect to the defendant’s guilt or innocence. However, it is unlikely that the accused will choose disposition pursuant to section 54-56e if there was no probable cause for his arrest. It would make no sense to allow an accused to bypass the criminal system with its various safeguards concerning probable cause, only to be able to turn around and claim in a subsequent civil action that there was no probable cause for his arrest. If disposition pursuant to the accelerated rehabilitation law were held to leave open the plaintiff’s right to bring a subsequent section 1983 action for false arrest and false imprisonment, fewer prosecutors would be willing to consent to such dispositions. The net result would be that the clear policy behind the accelerated rehabilitation law — to give one accused of a crime not of a serious nature, who would probably not offend in the future, and who is a first-time offender, a one-time chance at personal rehabilitation without incurring the risk of a full trial on the merits of the information— would be thwarted. In light of these policy considerations, the plaintiff’s section 1983 claim for false imprisonment is barred. In reaching this decision, this court has fully considered and recognizes that barring plaintiff’s section 1983 claim for false imprisonment “condones the fact that in the rare case, if there be any, where despite [plaintiff’s application to proceed pursuant to the accelerated rehabilitation law] the plaintiff was not guilty and the defendant had no reasonable ground to believe that he was, the plaintiff must go remediless as far as an action for false imprisonment is concerned.” Clewley v. Brown Thomson, Inc., 120 Conn. 440, 444, 181 A. 531 (1935). Accordingly, summary judgment is granted in favor of the defendants with respect to plaintiff’s claims for false imprisonment.

The court also notes that under Rule 9(a) of the Local Rules of Civil Procedure for the United States District Court, District of Connecticut, failure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion. The plaintiff has submitted no response whatsoever in opposition to this motion for partial summary judgment.

In light of the foregoing, defendants’ motion for partial summary judgment is granted in all respects.

SO ORDERED.

      . Conn.Gen.Stat. § 54-56e provides:
      § 54-56e. Accelerated pretrial rehabilitation
      There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime, not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of crime and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. This section shall not be applicable to any person charged with a violation of section 14-227a, 53a-56b or 53a-60d. Unless good cause is shown, this section shall not be applicable to persons accused of a class A, class B, or class C felony or to any youth who has previously been adjudged a youthful offender under the provisions of sections 54-76b to 54-76n, inclusive. Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of his right to a speedy trial. Any such defendant shall appear in court and shall be released to the custody of the office of adult probation for such period, not exceeding two years, and under such conditions as the court shall order. If the defendant refuses to accept, or, having accepted, violates such conditions, his case shall be brought to trial. If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges. Upon such dismissal all records of such charges shall be erased pursuant to section 54-142a.

      . N.Y.Crim.Proc.Law § 170.55 provides:
      § 170.55 Adjournment in contemplation of dismissal
      1. Upon or after arraignment in a local criminal court upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint, and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court’s own motion with the consent of both the people and the defendant, order that the action be "adjourned in contemplation of dismissal,” as prescribed in subdivision two.
      2. An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice. Upon issuing such an order, the court must release the defendant on his own recognizance. Upon application of the people, made at any time not more than six months after the issuance of such order, the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in furtherance of justice, and the action must thereupon proceed. If the case is not so restored within such six months period, the accusatory instrument is, at the expiration of such period, deemed to have been dismissed by the court in furtherance of justice.
      3. In conjunction with an adjournment in contemplation of dismissal the court may issue a temporary order of protection pursuant to section 530.12 of this chapter, requiring the defendant to observe certain specified conditions of conduct.
      4. The court may grant an adjournment in contemplation of dismissal on condition that the defendant participate in dispute resolution and comply with any award or settlement resulting therefrom.
      5. The court may as a condition of an adjournment in contemplation of dismissal order, require the defendant to perform services for a public or not-for-profit corporation, association, institution or agency. Such condition may only be imposed where the defendant has consented to the amount and conditions of such service. The court may not impose such conditions in excess of the length of the adjournment.
      6. The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.