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BONFIGLIO v. U.S.

December 31, 2003.

WILLIAM BONFIGLIO, Petitioner
v.
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.

 Background

 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.

 Pre-Plea Negotiations

  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, respectively.

  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 ...


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