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DRUM v. NASUTI

November 25, 1986

JOHN DRUM
v.
CARMEN NASUTI, ET AL.



The opinion of the court was delivered by: KATZ

 KATZ, J.

 Plaintiff's amended complaint sets forth claims under the civil rights statute, 42 U.S.C. § 1983, and its federal counterpart, a Bivens action. *fn1" Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975). It alleges that the private defendants conspired with the federal officials to deprive plaintiff of his right to plead to the plea of his choice. *fn2" Plaintiff seeks compensatory and punitive damages. This court has jurisdiction over such matters. 28 U.S.C. § 1343.

 The three private attorneys and the federal defendants have filed motions for summary judgment. The defendants allege that there are no disputed issues of fact and that they are entitled to judgment as a matter of law.

 The legal grounds asserted in these motions are that collateral estoppel precludes Drum from relitigating issues previously decided adversely to the plaintiff; that the statute of limitations bars Drum's recovery; that the federal defendants are absolutely immune from liability for their testimony in a judicial proceeding; and that plaintiff has not produced evidence to support his claim that the federal defendants conspired with the private attorneys to deprive him of his civil rights.

 For the reasons stated below, the motions for summary judgment will be granted. It is necessary first to review the factual and procedural background.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 The documents submitted outside the pleadings, which are considered in the light most favorable to the plaintiff, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), establish the following facts.

 In May of 1982, federal law enforcement officials arrested plaintiff John Drum and charged him and four others with offenses relating to the manufacture and distribution of a controlled substance, methamphetamine. On September 17, 1982, John Drum entered a guilty plea under an agreement with the government before Judge Fullam in the United States District Court for the Eastern District of Pennsylvania.

 Drum had pled a day later than the other co-defendants, Pearce and Corsetti, because his counsel, Reif, was on trial in another proceeding, hence unavailable. When Drum did plead, Reif told Judge Fullam that Drum understood his plea agreement to be in accordance with that of his co-defendant Pearce's. While Reif was not present at Pearce's hearing, Reif had spoken to Simone, Pearce's attorney about the terms of Pearce's plea. Simone told Reif that in Pearce's change of plea hearing the matter of testifying in other proceedings had been brought to Judge Fullam's attention. Pearce's change of plea hearing, at which Drum was present, included the following exchange:

 
THE COURT: Do you also understand that among the rights you would be giving up would be your privilege against self-incrimination? You could be questioned and made to testify about these events and could be prosecuted for perjury if you lied? Do you understand all that?
 
MR. PEARCE: No, I don't.
 
THE COURT: Well, maybe you had better discuss it with your counsel.
 
THE COURT: Now, are we ready to go back to Mr. Corsetti?
 
THE COURT: Mr. Pearce.
 
MR. SIMONE: Let me state, Your Honor, I spoke with Mr. Pearce about his waiving his Fifth Amendment right -- not actually waiving his right -- yes, he is actually waiving his Fifth Amendment right because he could no longer incriminate himself. He knows that he has to speak to the Probation Office. Mr. Ruch has told me he does not intend to call him as a witness.
 
THE COURT: That is fine and that is binding as far as this United States Attorney's Office is concerned. I just want to make it clear at least technically I am required to advise him that you would be giving up your rights against self-incrimination.
 
MR. SIMONE: Do you understand that,
 
Mr. Pearce?
 
MR. PEARCE: Yes, I do.
 
THE COURT: The important thing is if you are questioned and do testify, you must tell the truth and if you don't, you can be prosecuted for perjury; do you understand that?
 
MR. PEARCE: Yes, sir.

 Change of Plea Transcript at 6-8 United States v. Ronald Pearce, (Crim. No. 82-173-2), (Sept. 16, 1982).

 As Reif had told Judge Fullam, Drum understood his plea agreement to be the same as Pearce's. However, there was no reference to the matter of being called as a witness; on the record, Drum pled guilty to conspiracy and attempting to manufacture methamphetamine, in return for which, the government promised not to prosecute him for his methamphetamine activities in the Middle District of Pennsylvania, but provided that such illegal activities could be presented to the Eastern District Court for consideration in sentencing. The prosecutor said at Drum's change of plea hearing, in response to the court's question as to whether there were any other agreements or understandings, "there are some further agreements but that is the plea." Change of Plea Transcript at 2, United States v. John Drum, (Crim. No 82-173-2) (Sept. 17, 1982).

 The record of Drum's change of plea hearing thus does not directly refer to any plea agreement term regarding testifying in any district, although Reif states that Drum understood his plea to be in accordance with Pearce's, and Pearce's plea did include a reference to Ruch's statement that Ruch did not intend to call Pearce as a witness. However, Drum responded "no" to Judge Fullam's inquiry as to whether anyone made any promises or agreements with him other than the agreement stated by the prosecutor. Id. at 5. The following colloquy then occurred between Judge Fullam and Drum:

 
THE COURT: Now, you understand under that agreement if you plead guilty to Counts 1 and 4 the government would withdraw Count No. 2 and you would not be prosecuted on that and that the government has also agreed that there would be no federal prosecution for anything related to your methamphetamine activities in the Middle District of Pennsylvania?
 
MR. DRUM: Yes, Your Honor.
 
THE COURT: And other than that the government made no commitments; is that correct?
 
MR. DRUM: Excuse me for one minute, Your Honor.
 
MR. DRUM: Yes.
 
(Pause)
 
I understand, Your Honor.

 Id. at 5.

 The subsequent trial for criminal contempt, brought against Drum for his refusal to testify at a Middle District grand jury proceeding, reveals that, despite the above colloquy at his hearing, Drum claims that his plea terms incorporated the statement at Pearce's hearing that Ruch did not intend to call Pearce, and by implication, Drum, as a witness. Additionally, Drum claims to have understood the statement at Pearce's change of plea hearing to mean that the government promised not to call the defendants as witnesses before a grand jury in the Middle District, as well as the Eastern District, of Pennsylvania. The government understood the promise not to call Pearce, and by implication, Drum, as a witness, as limited to grand juries in the Eastern District of Pennsylvania. Drum claims that, during the pause in the record, Drum asked Reif "if he was sure that plaintiff would not be called as a witness before the Middle District grand jury, to which Mr. Reif responded affirmatively." Interrogatories of Defendant, Edward Reif, Addressed to Plaintiff, Answer to Question 2. Reif in response to plaintiff's interrogatories asking whether Reif or anyone he was aware of informed Drum that he would not be called as a witness in any other proceedings involving the investigation of drug related activities in the Middle District of ...


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