680 F.

2d 903

UNITED STATES of America, Appellee,

v.
Albert TANTALO, Defendant-Appellant.
No. 628, Docket 81-1411.

United States Court of Appeals,

Second Circuit.
Argued Jan. 26, 1982.
Decided June 3, 1982.

Paul J. Cambria, Jr., Buffalo, N. Y. (Lipsitz, Green, Fahringer, Roll,

Schuller & James, Barbara Davies Eberl, and Stanley J. Sliwa, Buffalo, N.
Y., on the brief), for defendant-appellant.
Rosemary G. Roberts, Asst. U. S. Atty., W. D. N. Y. (Roger P. Williams,
U. S. Atty., David Rothenberg, Asst. U. S. Atty., W. D. N. Y., Rochester,
N. Y., of counsel), for appellee.
Before MESKILL and CARDAMONE, Circuit Judges, and HOLDEN,
District Judge.*
HOLDEN, District Judge:
The defendant Albert Tantalo presents this appeal on two issues reserved
in a negotiated plea agreement at the time he entered a plea of guilty on
January 9, 1981 before the late Judge Harold P. Burke. The guilty plea to
a single count superseding information which charged the defendant with
simple possession of cocaine in violation of 21 U.S.C. 844(a) was
offered and accepted on October 1, 1979. The history of this prosecution
from the time of the defendant's arrest as a fugitive on November 7, 1979
in the Eastern District of Virginia, to the date of his sentencing in the
United States District Court for the Western District of New York by the
Honorable John T. Curtin, Chief Judge,1 is extensive and complicated.
The course of these proceedings has generated the two issues for review:
the right of the defendant to freedom from self-incrimination and his right
to a speedy trial.

History of the Proceedings

On October 31, 1979 a single count sealed indictment was filed in the
United States District Court for the Western District of New York which
charged the appellant and others with conspiracy to distribute cocaine, a
Schedule II controlled substance, in violation of 21 U.S.C. 846.2 Bail in
the arresting district was reduced from $100,000 to $50,000, following the
defendant's indication that he sought to cooperate with federal
enforcement agencies, whereupon he was allowed to return voluntarily to
the Western District of New York.
On November 13, 1979 the appellant and his attorney met with the
Assistant United States Attorney at Rochester and the appellant agreed to
cooperate with federal and state enforcement authorities. The terms of the
agreement were confirmed in a letter written November 15, 1979 by
Assistant United States Attorney David Rothenberg, directed to the
appellant's counsel Werner Lomker, Esquire, who was retained at that
time.3 Briefly stated, the appellant agreed to provide complete and truthful
cooperation concerning his knowledge of criminal activities then under
investigation. He further agreed to forego his right to a prompt
arraignment and trial under the Speedy Trial Act (18 U.S.C. 3161)
pending his cooperation, and to execute a waiver to this effect for a period
of thirty days.
The Government on its part agreed that none of the appellant's statements
made after November 8, 1979 and during the time of his cooperation, nor
any evidence derived from his statements, would be used against him. The
communication concludes: "He will, however, be prosecuted, as originally
anticipated, by this office. No other promises whatsoever have been
made."On December 11, 1979 the Government attempted to have the
appellant personally sign the written waiver of prompt arraignment and
trial indicated in the letter of November 15, 1979 to his attorney. A
written waiver was signed by defense counsel, but the appellant declined.
During the period that followed, the appellant extensively cooperated by
testifying before the grand jury on December 19, 1979, providing
information concerning drug traffic and corruption in the Rochester area
and working undercover in a joint federal-state investigation which
included consensually monitored telephone calls.
At the outset of the appellant's appearance before the federal grand jury on
December 19, 1979, he was advised of his right to have his attorney
present, outside the room where the grand jurors convened, for

consultation during the course of his testimony. The appellant stated he

did not want his attorney to be present. Counsel for the Government
restated the sum and substance of its agreement with defense counsel, that
Tantalo was named in the indictment and that he would be prosecuted
although his testimony "in the Grand Jury cannot and will not be used
against you in a court of law."
The appellant then testified that on October 1, 1979 he met with Michael
Scott. Scott suggested he could repay money which he owed the appellant
if Scott could obtain cocaine for resale to a proposed purchaser. The
appellant agreed to obtain four ounces of cocaine for delivery to Scott.
Accordingly, the appellant contacted Kenneth Allnutt, who arranged for
the delivery of the cocaine by a courier named "Lisa" in the Village of
Honeoye Falls. Scott and the appellant drove to the meeting place in the
appellant's automobile. After meeting the courier, the appellant and Lisa
went for a ride without Scott. Four ounces of cocaine were delivered to the
appellant. The appellant cut the cocaine to make five and a half ounces.
The appellant returned to Scott's home in Rochester. Before Scott left the
car, the appellant observed what he believed to be unmarked police cars
nearby. He cautioned Scott about his observation and cautioned him not to
go through with any deals. He later telephoned Scott to warn him again.
Apparently Scott did not heed the warning. In any event, at a later time
Scott delivered the money for the cocaine to the appellant.
The appellant then proceeded to testify concerning a later purchase of
cocaine from Allnutt toward the end of October, 1979. When one of the
grand jurors inquired of the appellant what he did with the ounce and a
half of cocaine he retained, the appellant refused to answer, stating-"I'm
not going to give you some other evidence that would also incriminate
me, even though you say you're not going to use it."
The appellant was not arraigned on the original indictment until February
22, 1980. The arraignment was conducted in chambers and the record was
sealed.4
The same federal grand jury that returned the original indictment on
October 31, 1979 returned a superseding six count indictment on March 5,
1980, which named six defendants, including Kenneth Allnutt, Michael
Scott and the appellant. Tantalo was accused in counts 1 and 5. The first
count alleged a conspiracy which was substantially the same as that
charged in the original indictment. The fifth count charged the appellant,
Allnutt, Scott and Lisa, a/k/a Lisa McNamee, with distribution of four

ounces of cocaine on October 1, 1979, in violation of 21 U.S.C. 841(a)

(1).
The superseding indictment was sealed; it was unsealed on April 14, 1980,
when Allnutt was arraigned. The appellant was not arraigned until May
16, 1980. The appellant pleaded not guilty to both counts 1 and 5. The
Government moved on July 14 to set the case for trial. Owing to a two
month criminal trial scheduled for September 15, 1980, the district court
scheduled trial on the superseding indictment to start December 1, 1980.
In the interim, as shown in the margin, the appellant retained his present
counsel. On November 3, 1980 the appellant filed an omnibus motion
which included a request for dismissal based on a violation by the
Government of its promise of immunity under the Fifth Amendment. The
appellant also sought dismissal of the original and superseding indictment
under the Speedy Trial Act. The movant requested that a hearing on the
multiple motions be scheduled on November 10. At the hearing on
November 10 the Government requested a continuance because of the
length and complexity of the motion papers. The Government urged, and
Judge Burke ruled, that the ends of justice outweighed the interests of the
public and the defendant in a speedy trial and would be served by the
adjournment. See 18 U.S.C. 3161(h)(8)(A). The court continued the
case to November 24, 1980.
The district court heard oral argument on the combined motions on
November 24, 1980. Defense counsel contended that the Government
intended to use the testimony of one of the indicted co-defendants against
Tantalo; that the co-defendant was motivated to testify at Tantalo's trial
and was inspired by Tantalo's testimony before the grand jury. Defense
counsel urged that since the appellant had provided immunized testimony
before the grand jury, the Government was called upon to present
evidence to the court to establish not only an independent basis for the
indictment, but also for the prosecution itself.
The Government responded by assuring the court and the appellant that
the case would proceed to trial on the original rather than the superseding
indictment. The Government undertook to meet its burden to prove a
wholly independent basis for the prosecution, by filing an in camera
affidavit of the prosecuting attorney dated November 13, 1980.
Defense counsel objected to an in camera affidavit being submitted to the
court in an effort to discharge the burden of demonstrating there is no
taint. By order of Judge Burke, dated December 31, 1980, the appellant's

motion to dismiss was denied without further hearing or statement of

findings or conclusions by the court.5
On January 9, 1981, the defendant was again arraigned, this time on a
single count superseding information which charged the defendant with
the offense of simple possession of cocaine on October 1, 1981, in
violation of 21 U.S.C. 844(a). Tantalo pleaded guilty to the
misdemeanor charged in the information in keeping with a new plea
agreement with the Government, which included the Government's
consent to the reservation of the appellant's right to appeal from the
decision of the district court denying his motion to dismiss the
indictment.6
Following the acceptance of the guilty plea, Tantalo testified for the
Government in the trials of United States v. Scacchetti, Cr. 80-46, and
United States v. Allnutt, Cr. 79-169, in the United States District Court for
the Western District of New York. Due to the intervening death of Judge
Burke, as noted above, the appellant appeared before Chief Judge John T.
Curtin on September 23, 1981 for sentencing. Imposition of sentence was
suspended and the appellant was placed on probation for a period of three
years. The present appeal proceeded in keeping with the plea agreement.
Use of Immunized Testimony
The first question for review is the court's denial of the appellant's motion
to dismiss the indictment by reason of the prosecution's actual or potential
use of immunized testimony contrary to the protection afforded by the
Fifth Amendment. In examining the question the polestar is Kastigar v.
United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The
answer is not provided, as the Government urges, by the mere fact that the
initial indictment was returned prior to appellant's cooperation and before
the immunity grant.
The fact that the appellant testified to matters related to his federal
prosecution cast upon the Government the burden of establishing that the
evidence to be used to prove his guilt was derived from legitimate sources.
Id. at 460-62, 92 S.Ct. at 1664-65. The Court in Kastigar, after referring at
length to its prior opinion in Murphy v. Waterfront Commission, 378 U.S.
52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), went further to explain:
This burden of proof, which we reaffirm as appropriate, is not limited to a
negation of taint; rather, it imposes on the prosecution the affirmative duty
to prove that the evidence it proposes to use is derived from a legitimate
source wholly independent of the compelled testimony.

406 U.S. at 460, 92 S.Ct. at 1664.

The statutory proscription (18 U.S.C. 6002) is analogous to the Fifth
Amendment requirement in cases of coerced confessions.... One raising a
claim under this statute need only show that he testified under a grant of
immunity in order to shift to the government the heavy burden of proving
that all of the evidence it proposes to use was derived from legitimate
independent sources.
Id. at 461-62, 92 S.Ct. at 1665 (footnotes omitted).
The Court's analogy in Kastigar of the use of immunized testimony to
coerced confessions and its reference in the margin to Jackson v. Denno,
378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), is instructive on the
need for a "taint hearing" which the appellant forcefully requested.
In Jackson v. Denno the opinion by Mr. Justice White, in terms of due
process, plainly states:

It is now axiomatic that a defendant in a criminal case is deprived of due

process of law if his conviction is founded, in whole or in part, upon an
involuntary confession, without regard for the truth or falsity of the confession,
Rogers v. Richmond, 365 U.S. 534 (81 S.Ct. 735, 5 L.Ed.2d 760), and even
though there is ample evidence aside from the confession to support the
conviction. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029;
Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v.
Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. Equally clear is the
defendant's constitutional right at some stage in the proceedings to object to the
use of the confession and to have a fair hearing and a reliable determination on
the issue of voluntariness, a determination uninfluenced by the truth or falsity
of the confession. Rogers v. Richmond, supra.

378 U.S. 376-77, 84 S.Ct. 1780.

Thus the heavy burden cast upon the Government to prove independent sources
of the evidence it intends to introduce when it prosecutes a witness who has
testified under use immunity is not satisfied by the prosecution's assertion that
immunized testimony was not used. Such disclaimer provides an inadequate
basis for the denial of a motion to dismiss an indictment. United States v.
Nemes, 555 F.2d 51, 55 (2d Cir. 1977). In our view the affidavit presented to
Judge Burke provides no stronger footing.

We hold that the defendant is entitled to a fair hearing at which the Government
must make an affirmative showing that evidence which the Government
intended to use at trial on the original indictment was derived "from legitimate
independent sources" apart from immunized leads.

The reason for the requirement can be found in this court's opinion in United
States v. Kurzer, 534 F.2d 511, 516 (2d Cir. 1976) (Feinberg, J.).

6 Fifth Amendment, in contrast (to the Fourth), is by its terms an exclusionary

The
rule, and as implemented in the immunity statute it is a very broad one, prohibiting
the use not only of evidence, but of "information", "directly or indirectly derived"
from the immunized testimony. The statute requires not merely that evidence be
excluded when such exclusion would deter wrongful police or prosecution conduct,
but that the witness be left "in substantially the same position as if (he) had claimed
the Fifth Amendment privilege."
7

(Citing Kastigar v. United States ).7

Tantalo's motion to dismiss the first indictment on the strength of his testimony
under a grant of immunity called upon the trial court to conduct the hearing
which the appellant rightfully requested. It was within the district court's
discretion to determine whether the taint hearing should be held before trial as
in Kurzer ; during the course of trial as the evidence was presented; after
verdict by way of a post-trial motion; or as suggested in United States v.
DeDiego, 511 F.2d 818, 824 (D.C.Cir.1975), a combination of these
alternatives. See United States v. Frumento, 552 F.2d 534, 542 n.14 (3rd Cir.
1977) (citing DeDiego, supra ). Of course, all but the first of the options were
precluded by the subsequent negotiated plea to the superseding information; the
mandate of a hearing persisted and the question was renewed by way of the
plea agreement. The denial of the appellant's motion to dismiss without
conducting an evidentiary hearing constitutes error.

The superseding indictment was invalid as a matter of law. It was returned by

the grand jury after hearing the immunized testimony of Tantalo. Such a
showing required its dismissal. United States v. Hinton, 543 F.2d 1002, 1010
(2d Cir. 1976). In Hinton this court, in an opinion by Judge Waterman,
condemned the practice and prescribed the only remedy to be dismissal.

10

We believe that as a matter of fundamental fairness, a Government practice of

using the same grand jury that heard the immunized testimony of a witness to
indict him after he testifies, charging him with criminal participation in the

matters being studied by the grand jury, cannot be countenanced. The

procedure is so fraught with applicable constitutional problems and with the
potential for abuse that in our supervisory power over the administration of
criminal justice in the district courts of this circuit, cf. United States v.
Toscanino, 500 F.2d 267 (2d Cir. 1974), we are compelled to conclude that the
procedure the Government adopted here falls outside the bounds of permissible
prosecutorial conduct. Accordingly, we reverse the conviction of appellant
Hinton and instruct that the indictment be dismissed as to her.
11

Id. (footnote omitted). Thus, it was error to deny the appellant's motion to
dismiss the superseding indictment.

Speedy Trial
12

We turn to the remaining question reserved in the plea agreement, namely that
the appellant's right to a speedy trial was violated under the Speedy Trial Act
and the Sixth Amendment.

13

The appellant's second claim of error based on the Government's alleged

violation of his right to a speedy trial under the Speedy Trial Act (18 U.S.C.
3161-3163 (1976, Supp. III 1979 & Supp. IV 1980)) is again frustrated by the
court's failure to make findings of fact and state the basis for denying dismissal
on this ground. The appellant and the Government presented the district court
with affidavits which were directed to the claimed violation of the Speedy Trial
Act. As to be expected, these documents generated multiple factual issues that
were not resolved by the trial court. They are incapable of resolution within the
framework of this appeal.

14

The appellant concedes that the mandatory sanction of dismissal under 18

U.S.C. 3162 became effective and applies only to cases on informations and
indictments filed on or after July 1, 1980. 18 U.S.C. 3163(c). The indictment
that brought on the appellant's arrest was filed October 31, 1979. "This court
has uniformly declined to apply sanctions during (the Act's) phase-in period."
United States v. McGrath, 622 F.2d 36, 39 (2d Cir. 1980). See also United
States v. New Buffalo Amusement Corp., 600 F.2d 368, 376-77 (2d Cir. 1979).
We find no sufficient reason to depart from that policy in this case.

15

Beyond that, the appellant has failed to demonstrate that the district court
abused its discretion in denying his motion to dismiss under Rule 48(b),
Fed.R.Crim.P. See United States v. DiFrancesco, 604 F.2d 769, 776 (2d Cir.
1979), rev'd on other grounds 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328

(1980). See also United States v. New Buffalo Amusement Corp., supra, 600
F.2d at 376 n.13.
16

Tantalo further requests this court to apply the critical factors in the Sixth
Amendment balancing test prescribed in Barker v. Wingo, 407 U.S. 514, 530,
92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972): "Length of delay, the reason for
the delay, the defendant's assertion of his right, and prejudice to the defendant"
(footnote omitted). The Court went on to state:

17

We regard none of the four factors identified above as either a necessary or

sufficient condition to the finding of a deprivation of the right of speedy trial.
Rather, they are related factors and must be considered together with such other
circumstances as may be relevant. In sum, these factors have no talismanic
qualities; courts must still engage in a difficult and sensitive balancing process.
But, because we are dealing with a fundamental right of the accused, this
process must be carried out with full recognition that the accused's interest in a
speedy trial is specifically affirmed in the Constitution.

18

Id. at 533, 92 S.Ct. at 2193 (footnote omitted).

19

Earlier in the Court's opinion by Mr. Justice Powell, it is written:

20

We reject, therefore, the rule that a defendant who fails to demand a speedy
trial forever waives his right. This does not mean, however, that the defendant
has no responsibility to assert his right. We think the better rule is that the
defendant's assertion of or failure to assert his right to a speedy trial is one of
the factors to be considered in an inquiry into the deprivation of the right. Such
a formulation avoids the rigidities of the demand-waiver rule and the resulting
possible unfairness in its application. It allows the trial court to exercise a
judicial discretion based on the circumstances, including due consideration of
any applicable rule.

21

Id. at 528-29, 92 S.Ct. at 2191 (footnote omitted).

22

More recently, during the pendency of this appeal, the Court has again had
occasion to consider the Sixth Amendment right to a speedy trial.

23 speedy trial guarantee is designed to minimize the possibility of lengthy

The
incarceration prior to trial, to reduce the lesser, but nevertheless substantial,
impairment of liberty imposed on an accused while released on bail, and to shorten
the disruption of life caused by arrest and the presence of unresolved criminal

charges.
24

United States v. MacDonald, --- U.S. ----, ----, 102 S.Ct. 1497, 1502, 71 L.Ed.2d
696 (1982) (Burger, C. J.).

25

It is clear the considerations involved in applying the critical balancing test are
confided to the trial court's discretion. The balancing and counterbalancing
factors can hardly be settled on appeal in the absence of definitive findings by
the trial court. However, enough appears in the record presented to indicate the
"unsatisfactorily severe remedy" of dismissal was not mandated.

26

The path of the prosecution was necessarily slow and winding to allow the
interests of the Government, as well as those of the defendant-"to proceed
cautiously and deliberately" before advancing to the public trial stage. See id. at
----, 102 S.Ct. at 1503 (Stevens, J., concurring). The crime involved a serious,
complex conspiracy charge with multiple defendants; some were in fugitive
status. The appellant was released on bail soon after the appellant's arrest.

27

The delay from the period of his arrest in the Eastern District of Virginia on
November 7, 1979 to the date of the Government's motion to set a trial date on
July 8, 1980, was not excessive. The motion to dismiss was not presented to the
trial court until the following November. During the intervening period the
appellant's cooperation continued concurrently with on-going plea negotiations.
It is clear that these efforts were for the mutual advantage of the prosecution
and the defendant. Similarly, they were shielded from public exposure for
reasons of security that were mutually beneficial to the interests of the
cooperating witness and the Government.

28

Some of the delay is attributable to the change in defense counsel. It appears

that the complexity of the motion papers presented to the court in November
1980, shortly before the scheduled trial date, persuaded Judge Burke to find
that the interests of justice required a further continuance of the trial in accord
with the provisions of 18 U.S.C. 3161(h)(8).

29

In summary, we hold the appellant's assignment of error for violation of his

right to a speedy trial is rejected. The district court's ruling which upheld the
indictments, without calling upon the government to establish that the evidence
it proposed to present at the trial was untainted by the appellant's immunized
testimony, was in error.

30

The cause is remanded to the district court to permit the appellant, if he so

elects, to withdraw his guilty plea to the superseding information in keeping

with the conditions of the plea agreement.8 In the event the plea is withdrawn
and the prosecution proceeds to trial, the district court is directed to conduct a
hearing at the appropriate stage of the proceedings to determine whether the
evidence the Government proposes to use was derived from legitimate sources
wholly independent of his prior immunized statements and testimony in related
federal and state proceedings.

Honorable James S. Holden, Chief Judge of the United States District Court for
the District of Vermont, sitting by designation

Judge Burke deceased after the appellant pleaded guilty on January 9, 1981 and
before sentence was imposed by Chief Judge Curtin on September 23, 1981,
pursuant to Fed.R.Crim.P. 25(b)

The original indictment was dismissed at the time of sentencing on September

23, 1981. A superseding indictment filed March 5, 1980 was subsequently
dismissed as to the appellant on October 5, 1981

Appellant subsequently retained Paul Cambria, Esquire, of Buffalo, New York,

who entered the case sometime after the Government filed a statement of
readiness for trial on July 8, 1980. Mr. Cambria filed an omnibus motion in
behalf of the appellant on November 3, 1980 and has continued his
representation of the appellant since that time. Appellant's Br. p. 2

Brief for Appellant at 7

Judge Burke's written order, as it relates to the appellant's motion to dismiss,

states merely "The defendant's motion to dismiss the indictment is denied."
App. 135

At the arraignment on the superseding information, counsel for the

Government explained the substance of the plea agreement to the court and
went on further to state:
Mr. Rothenberg: Finally, Your Honor, the government's proof with respect to
the plea would simply be that on October 1st, 1979, Mr. Tantalo was in fact in
possession of some cocaine.
The Court: Are you ready to fix the sentencing date now?
Mr. Rothenberg: Not at this time, Your Honor. The government would request

that sentencing be delayed until the completion of Mr. Tantalo's cooperation.

The Court: All right. It is so ordered.
Mr. Cambria: May I address the court, Your Honor? I would like to clarify and
make sure that the record is extremely specific with regard to the plea
agreement since it was given to you in abbreviated form.
The plea is specifically and expressly conditioned upon the defendant reserving
his right with the acquiescence of the government to raise on appeal the
questions, namely, of denial of speedy trial and speedy arraignment and as well
as a violation of his Fifth Amendment rights, namely, that information which he
had given under a promise of immunity was used against him, potentially
would be used against him, in connection with the very transaction which
underlies the current superseding information to which he is pleading, and that
this is specifically and expressly conditioned upon this representation with
regard to appeal and that is as well supplemented in the agreement which is in
the form of a letter dated January 8th, 1981, from Mr. Rothenberg, which was
as well signed and acknowledged by Mr. Chesworth on behalf of the Monroe
County District Attorney's Office, and all of the things stated in that letter
together with the things which I have just indicated and Mr. Chesworth's
acquiescence are part of and are a condition to the defendant taking this plea,
and I would like to have the defendant acknowledge that. Do you acknowledge
that, Mr. Tantalo?
Defendant Tantalo: Yes, sir.
Mr. Cambria: And I believe that would complete the report, and we have the
agreement here for filing, Your Honor.
The Court: All right.
Mr. Rothenberg: Thank you, Your Honor. We will submit this in a sealed
condition to the court.
The Court: Very well.
App. 187-89.
The letter referred to by counsel was written by Mr. Rothenberg and directed to
Mr. Cambria. It bears the signature of the Assistant District Attorney for
Monroe County and the signed acceptance by the appellant and his attorney.
The text of the communication contains the following excerpts:

This letter is written to confirm the agreement between the government and
your client, Albert Tantalo. Mr. Tantalo was named as a defendant in
Indictments No. Cr. 79-169. Mr. Tantalo has agreed to cooperate fully and
truthfully with the government in connection with the prosecution of
Indictments Cr. 79-169, and other matters specified herein. In addition, Mr.
Tantalo has moved to dismiss the indictments against him on the grounds that
the indictments violate his Fifth Amendment rights and his right to a speedy
trial. These motions have been denied. In light of these proceedings, and in
view of Mr. Tantalo's complete and truthful cooperation, the government has
reached the following agreement with him:
3

His motions to dismiss the indictments against him having been denied, Mr.
Tantalo reserves his right to appeal from the decision of United States District
Court denying his motion to dismiss the indictment, and the government so
agrees

Mr. Tantalo agrees to plead guilty to a reduced charge in this case, one-count
misdemeanor information charging possession of cocaine, a Schedule II
narcotic drug controlled substance, in violation of 21 U.S.C. 844(a). In return
for Mr. Tantalo's complete and truthful cooperation, the government agrees to
accept his guilty plea to the misdemeanor information in full satisfaction of any
and all charges arising out of the drug conspiracy charged in Indictments No.
Cr. 79-169. In addition, the government and the Monroe County District
Attorney's Office agree that Mr. Tantalo's guilty plea will be in full satisfaction
of any other criminal charges which might have been brought in connection
with any criminal activity which Mr. Tantalo disclosed to federal and state
officials during the period of his cooperation

In pressing his request for a "taint hearing" in the district court, the affidavit of
appellant's counsel averred that improper and unconstitutional use of Tantalo's
statement was made by the Government "to develop investigatory leads,
especially with respect to interviewing potential governmental witnesses and, in
fact, in persuading co-defendant Robert DeCarolis to testify against the
defendant at trial." App. 118

The written plea agreement referred to in Note 6, supra contains no provision

that should apply in the event Tantalo should prevail on appeal. The court
adopts the procedure proposed by the Advisory Committee on Criminal Rules
of the Judicial Conference of the United States for amendment to
Fed.R.Crim.P. 11 by adding a new subsection (a)(2). The proposed amendment
has been circulated to bench and bar and is fully explained in the Advisory
Committee Note reported in 91 F.R.D. 289, 320-25. The text of the proposed
amendment provides:

Rule 11. Pleas

(a) ALTERNATIVES
(2) Conditional pleas. With the approval of the court and the consent of the
government, a defendant may enter a conditional plea of guilty or nolo
contendere, reserving in writing the right to appeal from the adverse
determination of any specified pretrial motion. If the defendant prevails on
appeal, he shall be afforded the opportunity to withdraw his plea.
91

F.R.D. at 319. This court has expressly approved conditional guilty pleas. See
United States v. Burke, 517 F.2d 377, 379 (2d Cir. 1975). Cf. United States v.
Thibadeau, 671 F.2d 75, 80-81 (2d Cir. 1982) (reaffirming approval of
conditional pleas, but cautioning against acceptance of pleas subject to
numerous conditions, especially conditions raising claims not properly
reviewable absent a full trial record)