United States District Court, S.D. New York
December 31, 2003.
WILLIAM BONFIGLIO, Petitioner
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
William Bonfiglio ("Bonfiglio") filed this petition for a writ of
habeas corpus pursuant to Title 28, United States Code, Section 2255 on
April 28, 2003. Bonfiglio had pleaded guilty to loansharking and
securities fraud charges, and had been sentenced to 21 months in prison.
The claims in this petition arise principally from his subsequent
indictment in the United States District Court for the Eastern District
of New York ("Eastern District") on charges of loansharking and gambling.
Bonfiglio contends that state and Eastern District prosecutors have dealt
unfairly with him and that he would not have entered his plea to the federal charges at
issue in this petition if he had understood at the time that the state
prosecutors would not abide by their commitments to his attorney. For the
following reasons, the petition is denied.
July 2001: Three Investigations
Bonfiglio was arrested on July 26, 2001. An indictment filed by a grand
jury sitting in this district was unsealed on that same day. Bonfiglio
had been charged in two counts with conspiring from 1996 through 1999 to
use and of using during that same period extortionate means to collect an
extension of credit, in violation of 18 U.S.C. § 894. Both charges
stemmed from Bonfiglio's role in collecting a debt owed by Maria
Caltabiano ("Caltabiano") to Joseph Roperto ("Roperto"). Specifically,
after Roperto had been arrested on unrelated charges in 1998, Bonfiglio
took over Roperto's efforts to collect Caltabiano's debt to Roperto.
Also in July 2001, Bonfiglio was charged in a complaint filed in this
district with two counts of securities fraud in violation of
15 U.S.C. § 77q(a) and (x). The charges stemmed from schemes to defraud
investors in the sale of unregistered securities in two companies,
Offshore Performance, Inc. and Netline Internet Solutions LLC. Bonfiglio
was presented before a Magistrate Judge on the securities fraud charges
on July 27, 2001. Bonfiglio was represented in connection with both
federal matters by privately retained counsel Bradford Martin ("Martin").
Also on July 26, 2001, an investigation conducted by the Suffolk County
District Attorney ("DA") resulted in a search of Bonfiglio's home. Martin
was informed by federal authorities that they were not involved with the
DA's investigation. The DA told Martin that its search was related to an
investigation into bookmaking and loansharking.
The loansharking indictment was assigned to this Court. At a conference
held on September 4, 2001, and with the agreement of the parties, a trial
date of January 7, 2002 was set.
On December 14, Martin wrote to request an adjournment of the trial to
March because he needed additional time to put together a global
settlement of the criminal charges the defendant was facing. The request
was denied at a conference held on December 19.
In late 2001, Bonfiglio's counsel discussed with the United States
Attorney's Office of this district (the "Government") simultaneously
resolving the loansharking indictment and the securities fraud charges
with a single guilty plea. Defense counsel also suggested resolving the
charges of loansharking and illegal gambling that he expected would be
filed against Bonfiglio by the DA. The Government represented that it had
no relationship to the DA's investigation and refused to incorporate that
investigation into its plea discussions with Bonfiglio. Eventually, Martin told the Government that Bonfiglio would only plead
guilty to the loansharking indictment if he were able to plead guilty at
the same time to the securities fraud charges. There was still no
indictment on the securities fraud charges as of that time. The
Government accommodated the request and quickly prepared a superceding
information covering both federal cases.
Martin represents that he had been assured by the DA that Bonfiglio
would be able to plead guilty to the DA's loansharking and bookmaking
charges "in a manner that would not require Mr. Bonfiglio to serve
additional time in jail." As of some time before the federal plea,
however, the DA had stopped returning Martin's calls, and Martin became
concerned. Martin discussed with Bonfiglio "the problems of taking a plea
without having a written agreement" from the DA. Bonfiglio did not want
to enter a plea to the federal charges if he would face additional time
on the DA's charges. Martin advised Bonfiglio that there was a risk
associated with taking the plea, but that Bonfiglio's options were
"extremely limited." Martin advised Bonfiglio of his belief that the DA
would be true to his word.
Plea of Guilty
On January 3, 2002, Bonfiglio pleaded guilty to three counts of a
superceding information that combined the federal charges of loansharking
and securities fraud. Count One charged Bonfiglio with conspiring to use
extortionate means to collect an extension of credit. Counts Two and Three charged him with conspiracy to
commit securities fraud, wire fraud and commercial bribery in connection
with the sale of securities for Offshore Performance and Netline,
Bonfiglio executed a plea agreement ("Agreement") with the Government
on the day of his plea. The Agreement included a stipulated Sentencing
Guidelines range of 21 to 27 months in prison. As calculated in the
Agreement, the offense level was increased by one level due to the
inclusion of the securities fraud counts. In addition, the Government
consented to a two level adjustment down for Bonfiglio's role in the
loansharking scheme. Bonfiglio agreed, among other things, not to appeal
or collaterally attack his conviction on the ground that the Government
had failed to produce discovery, Jencks Act, or exculpatory material.
During the plea allocution, Bonfiglio represented that he had no
agreement with the Government that had been left out of the Agreement. He
also denied that anyone had made any promise apart from what was
contained in the Agreement to induce or convince him to plead guilty.
Sentencing was scheduled for April 12.
Martin advised the Court at the end of the plea proceeding that the
Suffolk County prosecutor had executed a search warrant on the same day
that Bonfiglio was arrested on the extortion charges to which he had just
pleaded guilty. Martin indicated that he did not know if that
investigation would ever result in any charges, but that Bonfiglio might be arrested on those charges
before his sentencing date.
Interval Between Plea and Sentence
According to Martin's affidavit submitted in support of this petition,
in their first conversation after Bonfiglio's plea, the DA advised Martin
that "there was no deal" and that the investigation was now being run by
the Eastern District. In a subsequent conversation, the DA told Martin
that Bonfiglio would have to enter into a cooperation agreement if he
wanted to resolve all charges before being sentenced in the Southern
On April 2, Martin requested in writing that the sentence be adjourned
until sometime in June, or until after the Eastern District Grand Jury
proceedings had been completed. The Government objected to that
adjournment. Bonfiglio had remained at liberty following the entry of his
plea. The Court denied the request for an adjournment.
At the beginning of the sentencing proceeding on April 12, 2002, Martin
renewed his application to adjourn the sentence. He explained that he had
requested an adjournment of Bonfiglio's trial so that he could get a
"more formal" agreement with the DA. When that request was denied,
Bonfiglio had to decide whether to plead guilty without getting a
"formal" agreement from the state prosecutor and before he had gotten discovery material in the
federal securities fraud case.
Martin represented that two weeks earlier he had learned that the
Eastern District was serving subpoenas about the same matters that had
been under investigation by the DA, and the DA was not returning Martin's
calls. Martin wanted an adjournment so that he could work out a "grouping
at sentencing" since the matters are so closely related.
The Government responded that it did not know the details of the
Eastern District's ongoing grand jury investigation, but that it had
described the charges in the Southern District to Eastern District
prosecutors "so that there wouldn't be any double jeopardy concerns." It
added that the extent to which Bonfiglio's Southern District conviction
should be taken into account at the time any Eastern District sentence
was imposed was an issue for the Eastern District judge to address. The
Government observed that any grand jury investigation could last months
Martin responded that he had wanted an adjournment of the trial date,
and when he could not obtain one, had had "no choice" but to decide
whether to do what he could to "group" the charges. He admitted listening
to the tape recordings that underlay the securities fraud charges, but
claimed that he had possessed no discovery on the issue of monetary loss
or other issues. He explained that the victims in the Suffolk County
investigation were the same individuals that drew Bonfiglio into the
securities fraud schemes to which he had pleaded guilty in the Southern
District. These people owed Bonfiglio money and in order to repay him had
"enticed" him into the securities fraud schemes. Martin argued that the
crimes were therefore closely enough related to entitle Bonfiglio "to
some grouping in the Guidelines."
The Court denied the application to adjourn the sentence. It observed
that it would agree to move the sentence for a few weeks if that would
accommodate Bonfiglio's needs, but that the record did not support an
adjournment. The prosecutors were not returning Martin's calls, and the
issues had apparently been percolating since the previous summer.
Moreover, if Bonfiglio received all the sentencing adjustments that he
advocated, the total impact of the securities fraud charges on the
sentence was an increase of one offense level above the level for the
extortion charge standing alone. As a consequence, the securities fraud
charges were having a minimal impact on the sentence, and it was those
charges that were arguably related to the Eastern District case.
The next issue addressed at the sentencing proceeding was whether a
letter written by Martin required a Fatico hearing. It was
agreed that no Fatico hearing was necessary; Martin agreed that
the victim of the extortion felt that she was being threatened.
Although the issue was not "without its difficulty," the Court accepted
the minor role adjustment for the extortion charge. Bonfiglio was sentenced on April 12, 2002, to 21 months in
prison, three years supervised release, $300.00 in mandatory special
assessments, and $3,000.00 in restitution. Bonfiglio was advised of his
right to appeal, but did not appeal.
Eastern District Prosecution
In June 2003, more than a year after his sentencing, an indictment was
unsealed in the Eastern District. It charged Bonfiglio with conspiring to
participate in the affairs of a racketeering enterprise through the
collection of an unlawful debt, in violation of 18 U.S.C. § 1962(d)
and 1963, and of participating in an illegal gambling business and
conspiring to do so, in violation of 18 U.S.C. § 1955 and 371.
Bonfiglio asserts that the DA withdrew its promise that Bonfiglio would
receive a sentence for the offenses being investigated by that office
that was concurrent with the sentence imposed for the crimes for which
Bonfiglio was convicted in the Southern District; that the Government
failed to disclose certain impeachment evidence related to the
loansharking charges before his plea of guilty; that the securities fraud
charges to which he pleaded guilty violated the Double Jeopardy Clause of
the Constitution; that his counsel was ineffective; and that the Court
violated his rights in not granting his requests for an adjournment of
his trial date or sentence. These issues will be addressed in turn.
1. Enforcement of a Commitment to Receive a Concurrent
Bonfiglio requests that this Court enforce an oral agreement between
his attorney and the DA that he would receive a sentence for the state
bookmaking and loansharking crimes that was concurrent with the sentence
imposed in the Southern District. Those charges are now contained in the
federal indictment pending in the Eastern District. This request does not
state a claim that Bonfiglio's Southern District conviction was entered
in violation of his federal constitutional rights.
Bonfiglio does not assert that the Government ever entered into any
agreement with him about the DA's investigation. During his plea
allocution he specifically denied that he had any agreement with the
Government that had been left out of the written plea agreement, or that
any other agreement had induced him to plead guilty.*fn1 To the extent
that the pending Eastern District prosecution violates his rights, that matter must be
pursued within the context of that prosecution.
2. Brady Violation
Bonfiglio asserts that the Government withheld information from him
that severely impeached the credibility of the victim of the extortion.
He asserts that during litigation that occurred over his co-defendant's
restitution obligation, litigation that followed the entry of his own
plea of guilty, information was disclosed that revealed that the victim
had lied to the Government, that she had been found guilty of social
security fraud, that she was a paid government informant, and that she
had left the witness protection program.
On April 4, 2002, the Government produced impeachment materials
regarding Caltabiano to a co-defendant in anticipation of a
Fatico hearing regarding the amount of restitution. That
material revealed that Caltabiano had continued to negotiate her
husband's Social Security checks following his death, that the matter was
under investigation, and that she had received relocation funds from the
FBI. In his plea agreement with the Government, Bonfiglio waived
any and all right to withdraw his plea or to
attack his conviction, either on appeal or
collaterally, on the ground that the Government
has failed to produce any discovery material,
Jencks Act material, exculpatory material pursuant
to Brady v. Maryland, 373 U.S. 83
(1963), and impeachment material pursuant to
Giglio v. United States, 405 U.S. 150
(1972) that has not already been produced as of
the date of the signing of this Agreement. The Constitution "does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a criminal
defendant." United States v. Ruiz, 536 U.S. 622, 633 (2002).
Moreover, by executing the Agreement with the Government, Bonfiglio
explicitly waived his right to collaterally attack his conviction based
on the failure to provide such material.
3. Double Jeopardy Violation based on Securities Fraud
Bonfiglio asserts that his rights against Double Jeopardy are being
violated because of the relationship between the Southern District
securities fraud charges to which he pleaded guilty and the pending
Eastern District indictment charging him with bookmaking and
loansharking. He contends that he did not actually commit securities
fraud in connection with the Southern District charges. Rather, he knew
the brokers on whom the Southern District charges were based because they
owed him money, and they got him involved with others so that he could
earn commissions to reduce the brokers' indebtedness to him. He complains
that the duplicity of the DA and the Eastern District have resulted in
the filing of charges that violate the Double Jeopardy Clause.
To the extent that Bonfiglio is asserting that there was an
insufficient basis for charging him with securities fraud or for his plea
of guilty to securities fraud, that claim must be denied. Bonfiglio's
allocution provided an adequate factual basis for the entry of a judgment of conviction on the securities
fraud counts. He admitted that investors had been lied to, that his role
in the scheme was to pay commissions to the brokers, and that in return
for his participation in the scheme, he was being repaid money owed to
Bonfiglio's real claim, however, is that the pending charges in the
Eastern District violate his rights under the Double Jeopardy Clause. The
Eastern District charges were filed approximately two years after the
complaint in the Southern District charged Bonfiglio with violations of
the federal securities laws. To the extent that the Eastern District
charges violate his constitutional rights, that claim must be addressed
to the judge who is presiding over the Eastern District prosecution.
4. Ineffective Assistance of Counsel
Bonfiglio asserts that he pleaded guilty and did not move to withdraw
his plea because he received ineffective assistance of counsel. He
explains that he had intended to proceed to trial based on his evaluation
of the Government's discovery materials and the absence of any overt
threat on any of the tape recorded conversations between him and the
loansharking victim. He changed his mind and pleaded guilty only because
his attorney told him that the DA had agreed that he would receive a
concurrent sentence. When he learned that the DA had broken his promise,
his attorney incorrectly advised him that he could not withdraw his plea of guilty. He asserts that his attorney told him
that he had given him all of the evidence against him and his
co-defendants. His attorney also led him to believe that he could not
appeal from his plea. Finally, his attorney advised Bonfiglio not to
attempt to amend the stock fraud charges to charges of bookmaking and
loansharking, which would have more accurately described his criminal
conduct. This failure made Bonfiglio more vulnerable to the Eastern
District charges, which have violated his Double Jeopardy rights.
a. Discovery Material
Bonfiglio has not identified any discovery materials provided to Martin
that he did not receive from Martin. The impeachment material regarding
Caltabiano was not produced to any defense attorney until after the time
Bonfiglio had entered his plea. There was no legal obligation to provide
it to Bonfiglio before his plea of guilty. The Government's discovery
obligations in connection with the securities fraud charges had not yet
been triggered since he had not yet been indicted for those crimes. In
short, Bonfiglio has not shown that Martin provided ineffective
assistance of counsel to him by failing to provide him with any discovery
material prior to the entry of his plea.
b. Advice to Plead Guilty and Report of the DA's Agreement
Bonfiglio asserts that he pleaded guilty because Martin had told him that the DA had agreed that Bonfiglio would receive a
concurrent sentence. Bonfiglio has attached to his habeas petition an
affidavit from Martin which reports that Martin advised Bonfiglio prior
to the entry of the plea, inter alia, that there was no written
agreement with the DA and that there were risks associated with entering
a plea to the federal charges without a written agreement with the DA,
but that Bonfiglio's options were limited. Bonfiglio does not dispute
that Martin gave him such a report and advice.
Bonfiglio has not shown that Martin's performance or advice fell below
an objective standard of reasonableness. He has not shown that Martin
misrepresented the state of the negotiations with the DA, or the options
that he faced on the eve of his federal trial. As Bonfiglio admitted
during the entry of his plea, he was aware of his right to go to trial
and to plead not guilty. He had not yet been indicted on the federal
securities fraud charges, and could have waited to see if those charges
would result in an indictment and either plead separately to them or go
to trial separately on them. He chose, however, to plead guilty on the
condition that he be allowed to plead to each of the federal charges
pending against him in the Southern District. As a consequence of that
plea, the securities fraud charges increased his sentencing guidelines
range by just one offense level above what it would have been based on
the extortion charges alone. Bonfiglio has not shown that any advice he
received from Martin to enter such a plea fell below the range of the reasonable professional assistance to which he was
c. Amendment of Securities Fraud Charges
Bonfiglio asserts that his attorney advised him against trying to get
the Southern District prosecutors to charge him with bookmaking and
loansharking instead of securities fraud. Assuming that Martin gave
Bonfiglio such advice, Bonfiglio has not shown that he was prejudiced by
It is the Government, of course, that controls the nature of the charge
asserted against a defendant. The July 25, 2001 Complaint filed in the
Southern District charged Bonfiglio and six other individuals with
securities fraud. The twenty-seven page Complaint described three
fraudulent private placement schemes, including the Offshore Performance
and Netline schemes. As Bonfiglio describes it, his bookmaking and
loansharking activities explained how he came to be associated with the
securities fraud schemes. The bookmaking and loansharking activities are
not the focus, however, of the Complaint, and Bonfiglio has not shown
that the Government would have abandoned its securities fraud charges and substituted charges Bonfiglio
d. Withdrawal of Plea
Bonfiglio asserts that Martin advised him that he could not withdraw
his plea of guilty when he learned that the DA would not honor his oral
commitment to Martin. Assuming that Martin advised Bonfiglio against
making any motion to withdraw his plea, Bonfiglio has not shown that he
was prejudiced by such advice.
Bonfiglio has not shown that a motion to withdraw his plea would have
been successful. As already discussed, Bonfiglio denied during his plea
allocution that he had any agreement with the Government about his plea
or sentence other than the written plea agreement or that there was any
inducement for his plea other than that written plea agreement. There was
no commitment in the written plea agreement regarding the DA's
e. Right to Appeal
Bonfiglio asserts that Martin led him to believe that he could not
appeal. It is not clear what precisely Bonfiglio is conveying in this
portion of his claim. Bonfiglio does not deny that he knew of his right
to appeal. He was advised of that right at the time of his sentence. Nor
does Bonfiglio indicate that he asked Martin to file a notice of appeal
and that Martin failed to do so.
Bonfiglio entered into a plea agreement with the Government through which he largely waived his right to appeal if he was
sentenced to a term of imprisonment of 27 months or less. He was
sentenced to a term of imprisonment of 21 months. Therefore, if he is
referring to Martin's description of that waiver, then there was no
ineffective assistance of counsel.
In any event, Bonfiglio has not identified any claim that he could have
raised on appeal that would have been successful. In the absence of a
showing of prejudice through the failure to file and pursue an appeal,
Bonfiglio's belief based on his conversations with Martin does not state
a violation of his constitutional rights.
5. Denials of Requests for Adjournments
Bonfiglio asserts that his constitutional rights were violated by the
Court's refusal to move his trial date and the date of his sentence.
Bonfiglio implies that those adjournments would have facilitated his
negotiations with the DA and the Eastern District.
The January 2002 trial date was chosen the previous September with the
consent of all counsel. This trial date was almost six months after
Bonfiglio's arrest on the loansharking indictment. This was a sufficient
period in which to prepare for trial, and Bonfiglio does not assert
otherwise. Bonfiglio has not shown that he was entitled to a change in
the trial date, or even that any brief adjournment would have been of use
to him. According to Bonfiglio, the DA was not even returning Martin's telephone calls during the period immediately preceding the federal
The April sentencing date was set at the time the plea was entered in
January. Again, Bonfiglio has not shown that he was entitled to an
adjournment or that any brief adjournment would have been of use to him.
Ultimately, the Eastern District did not return its charges against him
for more than a year after his sentence.
The petition for a writ of habeas corpus is denied. The petitioner has
not made a substantial showing of a denial of a federal right and
appellate review is, therefore, not warranted. See Tankleff v.
Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v.
Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant
to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not
be taken in good faith. See Coppedge v. United States,
369 U.S. 438 (1962). The Clerk of Court shall close the case.