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Another conviction in the Abner Louima case was back in play Wednesday, as the 2nd U.S. Circuit Court of Appeals ordered a hearing on whether a police officer convicted of lying about the incident was entitled to immunity from prosecution. The circuit said that the late Eastern District Judge Eugene Nickerson “should not have dismissed so quickly” the claim by former police officer Francisco Rosario that he was entitled to immunity before he went on trial in June 2000. Rosario was convicted for making false statements and conspiring to make false statements about what he saw on the night of Aug. 9, 1997, when Justin Volpe sodomized Louima with a broken stick in a Brooklyn, N.Y., station house bathroom. Wednesday’s ruling came about one month after the court overturned the civil rights conviction of Officer Charles Schwarz for joining Volpe in the assault, as well as the convictions of Schwarz and two other officers in a separate trial for conspiracy to obstruct justice. Meanwhile, Schwarz, who faces a retrial in his civil rights violation case, on Wednesday pleaded not guilty to two counts of perjury, which were brought last week in the Eastern District. At issue during Rosario’s trial were two interviews that the officer gave to federal investigators, the first on Sept. 22, 1997, and the second on Nov. 20, 1997. During the first interview, Rosario denied being nearby when an officer escorted Louima to a holding cell. But during the second interview, Rosario admitted that he had lied, conceding he was present when Louima was taken to the cell. It is the events between those two interviews that concerned the 2nd Circuit. Rosario claimed that Assistant U.S. Attorney Catherine Palmer told his lawyer that if he agreed to a second interview and told the truth, he would not be prosecuted for his initial lie. Rosario also claimed that Palmer promised she would work to help him keep his job if he was forthcoming. But in June 1999, Rosario and a second officer, Rolando Aleman, were indicted on seven counts of making false statements and conspiracy. Aleman went on to plead guilty to a single count in the indictment. Before trial, Rosario asked Judge Nickerson to dismiss the indictment based on the promise of immunity. In the event Nickerson denied that motion, Rosario asked the judge to charge the jury that it “may acquit him on all counts should it find” he told the truth in his second interview with the government. He also asked for a hearing on whether the government promised him immunity, and on whether the government proved by a preponderance of the evidence that he did not tell the truth. Nickerson denied the motions, calling them “more a pure piece of pettifogging than a serious contention.” Writing for the 2nd Circuit, Judge Rosemary Pooler said: “Importantly, the government in opposing the motion offered no evidence denying Rosario’s account of the immunity agreement.” “Instead, the government argued that even if Rosario’s version of the facts were true, he was entitled to no relief because he was not truthful in refusing to identify Volpe as the officer who escorted Louima to the holding cell,” she said. ‘UNSWORN DENIAL’ But in contrast to the government’s “unsworn denial,” Judge Pooler said, Rosario presented “two affirmations,” in support of his claim that an immunity deal existed, one from himself and one from his former attorney. Moreover, the judge said, “his current counsel represented that three other lawyers were prepared to testify that Palmer also told them that the government would not prosecute Rosario if he agreed to a second interview and told the truth.” The problem, Pooler said, is that “interpretation of the alleged immunity agreement is more difficult because it is oral.” “An oral agreement greatly increases the potential for disputes such as this appeal presents, a failure to agree on the existence, let alone the terms, of the deal,” Pooler said. “We must consider the possibility that immunity discussions in this case never progressed to a meeting of the minds and formation of an enforceable bargain.” While Judge Nickerson was correct not to decide whether Rosario told the truth in the second interview, as it was a question for the jury to decide, Pooler said that “the district court failed to make a record that allows us to determine the existence, scope and effect of the immunity agreement.” “We recognize that a district court need not conduct a hearing every time a defendant summarily accuses the government of failing to live up to an alleged bargain, but here Rosario submitted an affirmation from his attorney and appeared to offer other corroborating evidence in the form of other attorneys’ affidavits.” Pooler also said that from the existing record, the 2nd Circuit could not determine whether Rosario met the “alleged second requirement of the immunity agreement, which concerned his willingness to testify.” Immunity or cooperation agreements “normally vest discretion” in the government to determine whether the cooperation is satisfactory, she said, but that discretion does not allow the government to go back on its word or show bad faith. Ordering a remand for a hearing on the issue, Pooler said: “If the district court finds that an agreement existed, it then can determine whether Rosario complied with its terms and the government improperly withheld immunity.” “The district court must take care, however, to avoid deciding the general issue of Rosario’s criminal liability, which may prove impossible in this case because the potential issue of Rosario’s truthfulness directly implicates his guilt,” she said. Should the lower court decide that no agreement existed between Rosario and the prosecution, she said, “defendant’s conviction will remain intact” and the panel would then address the other issues raised by Rosario’s appeal, which include “a substantial challenge” based on Judge Nickerson’s finding that Rosario engaged in the discriminatory use of peremptory strikes during jury selection. U.S. Attorney Alan Vinegrad released a statement saying that the government was prepared to prove that there was no immunity agreement barring the prosecution of Rosario. Senior Judges James L. Oakes and Richard J. Cardamone joined in the appeal. Richard Ware Levitt and Raymond Granger represented Rosario. Chief Assistant U.S. Attorney Barbara D. Underwood and Assistant U.S. Attorney Richard T. Faughnan represented the government.

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