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United States District Court, S.D. New York

December 31, 2003.


The opinion of the court was delivered by: DENISE COTE, District Judge


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.

 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 agreement if he wanted to resolve all charges before being sentenced in the Southern District.

  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 or years.

  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 Sentence

  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 Charges

  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 him.

  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 entitled.*fn2

 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.

  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 preferred.

 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 investigation.

 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 trial date.

  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.


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