United States District Court, E.D. New York
Decided October 29, 2014.
For Michael J. Persico, Defendant: Marc A Fernich, LEAD ATTORNEY, Law Offices of Marc Fernich, New York, NY.
For Thomas Petrizzo, Defendant: Gerald L. Shargel, LEAD ATTORNEY, Winston & Strawn, LLP, New York, NY.
For Anthony Preza, Defendant: Joseph R. Benfante, Joseph R. Benfante, P.C., New York, NY.
For USA, Plaintiff: Allon Lifshitz, LEAD ATTORNEY, Brian D. Morris, Rachel J. Nash, United States Attorneys Office, Brooklyn, NY; Duncan Patrick Levin, LEAD ATTORNEY, U.S. Attorneys Office/EDNY, Brooklyn, NY; Elizabeth Geddes, Michael Tremonte, Nicole M. Argentieri, United States Attorneys Office Eastern District of New York, Brooklyn, NY.
MEMORANDUM AND ORDER
SANDRA L. TOWNES, United States District Judge.
On June 8, 2012, during voir dire to select the jurors to try him on an indictment charging multiple felony offenses, including racketeering conspiracy, defendant Michael J. Persico (" Defendant" or " Persico" ) pled guilty to a superseding information charging him with a single count of conspiracy to commit extortionate extension of credit. Now, more than two years later, Defendant moves to withdraw that plea, arguing (1) that the Government breached the Plea Agreement, (2) that there was no valid factual basis for the plea, and (3) that he was insufficiently informed about the nature of the charge to which he pled guilty. For the reasons set forth below, Defendant's motion is denied.
Defendant was among nine defendants named in a 27-count superseding indictment (S-4) which was filed on February 9, 2012. Six of the nine defendants, including
Persico, were alleged to be members or associates of the Colombo organized crime family of La Cosa Nostra who, collectively, constituted an " enterprise" as defined by 18 U.S.C. § 1961(4). Each of the six defendants were charged in Count One of the indictment with a racketeering conspiracy in violation of 18 U.S.C. § 1962(d) and with at least some of the other 26 offenses charged in the indictment.
Count One of the indictment alleged 25 racketeering acts, including two murders. Defendant was alleged to have been involved in one of these murders--the October 20, 1993, murder of one Joseph Scopo--and in the conspiracy to commit that murder. Defendant was also alleged to have participated in several other racketeering acts and was named in 14 other counts of the indictment. Most of the racketeering acts and counts in which Defendant was named involved extortion or conspiracies involving extortionate activities.
Defendant pled not guilty to this indictment and proceeded to trial with two codefendants: Theodore N. Persico, Jr., and Francis Guerra. However, shortly after jury selection commenced, Defendant entered into a Plea Agreement with the United States Attorney's Office for the Eastern District of New York (the " Office" ), which provided that Defendant would plead guilty to a superseding information (S-6) that was to be filed with the Court. That information, which was filed on June 8, 2012, was similar to the superseding indictment in some respects. Like the superseding indictment, it alleged that Defendant was an associate within the Colombo crime family and that the members and associates of the Colombo crime family constituted an " enterprise" as defined in 18 U.S.C. § 1961(4). In addition, both the enterprise and the methods and means allegedly used by that enterprise were described in the superseding information in the exact same manner as in the superseding indictment. But unlike the indictment, the superseding information contained only one count, which charged Defendant with conspiracy in violation of 18 U.S.C. § 371. That charge read, in pertinent part:
In or about and between May 2009 and February 2010, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant MICHAEL J. PERSICO, together with others, did knowingly and intentionally conspire to make one or more extortionate extensions of credit to John Doe #1 and John Doe #2, individuals whose identities are known to the United States Attorney, contrary to Title 18, United States Code, Section 892(a).
In furtherance of the conspiracy and to effect its objectives, within the Eastern District of New York and elsewhere, the defendant MICHAEL J. PERSICO, together with others, committed and caused to be committed, among others, the following:
(a) in or about June 2009, the defendant MICHAEL J. PERSICO aided in the extension of a $100,000 usurious loan.
In exchange for Defendant's agreement to, among other things, waive indictment and plead guilty to the superseding information, the Office made several promises. First, it agreed not to bring any " further criminal charges" against Defendant for his participation in various offenses, including all of the offenses with which he was charged in the superseding indictment. Plea Agreement, ¶ 11(a). Second, it agreed to " take no position concerning where within the Guidelines range determined
by the Court the sentence should fall." Id., ¶ 11(b). Third, it agreed not to make any " motion for an upward departure under the Sentencing Guidelines." Id., ¶ 11(c).
The Office did not agree, however, to any limitations regarding its communications with the Probation Department. To the contrary, paragraph 2 of the Plea Agreement stated:
The defendant understands that although imposition of a sentence in accordance with the United States Sentencing Guidelines (the " Guidelines" ...) is not mandatory, the Guidelines are advisory and the Court is required to consider any applicable Guidelines provisions as well as other factors enumerated in 18 U.S.C. § 3553(a) to arrive at an appropriate sentence in this case. The Office will advise the Court and the Probation Department of information relevant to sentencing, including criminal activity engaged in by the defendant, and such information may be used by the Court in determining the defendant's sentence.
The Plea Allocution
On the afternoon of June 8, 2012, Defendant appeared before the Court to enter his plea. He was represented by two experienced, retained attorneys: Serita Kedia and Paul Schectman. Ms. Kedia represented that she had discussed the plea with Defendant and believed that Defendant was competent to proceed and understood the rights he was waiving by pleading guilty (T. 4-5). Defendant stated that he was satisfied with his attorneys' representation and did not need more time to discuss with them his decision to plead guilty (T. 6).
After ascertaining that Defendant, then 55, had been to college and was not under the influence of drugs or alcohol (T. 4-5), the Court probed his understanding of the charge contained in the superseding information. Under oath, Defendant stated that he had read and reviewed the superseding information with counsel prior to the proceeding and understood the charge contained therein (T. 6). Nonetheless, the Court read the entire charge to Defendant and summarized those portions of the information which alleged that Defendant was an associate in the Colombo crime family and that the members and associates of the Colombo crime family constituted a criminal enterprise (T. 7-8). The Court then asked again, " [D]o you understand what the charge is?" (T. 8). Defendant answered in the affirmative (T. 8).
The Court then explained the elements which the Government would have to prove in order to establish that he was guilty of conspiracy to violate 18 U.S.C. § 892(a). First, the Court read the provisions of 18 U.S.C. § 371 and laid out the elements which the Government would have to prove beyond a reasonable doubt in order to establish that he was guilty of violating that statute (T. 8-9). In explaining the first of these elements--" [t]hat two or more persons entered into the unlawful agreement charged in the information" --the Court noted that " the government would have to establish beyond a reasonable doubt that two or more persons entered into an unlawful agreement to commit the crime of extortionate extension of credit, in violation of Title 18, Section 892(a) of the United States Code" (T. 9). After reading 18 U.S.C. § 892(a) and explaining the elements of that offense, the
Court asked both the prosecution and the defense if its explanation was consistent with their understanding of the elements (T. 9). Both answered in the affirmative (T. 9).
Several minutes later--after the Court questioned Defendant about the Waiver of Indictment, the Constitutional rights which Defendant was relinquishing by pleading guilty, and the Plea Agreement (T. 10-21)--the Court asked Defendant, " [D]o you have any questions that you would like to ask me about the charge in the superseding Information or about your rights or anything else related to this matter that may not be clear to you?" (T. 21-22). Defendant responded, " Everything is clear. No questions" (T. 22).
Defendant then pled guilty to the charge contained in the superseding information (T. 22). When asked by the Court to briefly describe " what you did in connection with the offense that makes you guilty of the offense charged in the superseding Information," Defendant responded, " I arranged for someone to extend $100,000 loan to the trucking company run by James Bambino [ sic ] and Steve Marcus at a usurious interest rate" (T. 23). At the Government's request, Defendant subsequently clarified that his actions took place between May 2009 and February 2010 in the Eastern District of New York (T. 24). The Assistant United States Attorney then stated:
I'm not going to make him allocute to it, but I will just proffer that the government would prove--be prepared to prove at trial that the extension of credit was made a[t] --not just a usurious rate, but at a rate of interest in excess of the annual rate of 45 percent per year, and that at the time that the loan was made, the two John Does who this defendant identified believed that Mr. Persico and his coconspirators had a reputation for the use of extortionate means to collect extensions of credit (T. 24 (brackets added)).
When asked if there was anything else that the Court should inquire about, Ms. Kedia initially responded, " No, I don't believe so" (T. 25). However, she then added:
The one thing I would say is, Your Honor went through the superseding Information, and it does charge the sole count of this 371 conspiracy, conspiracy to violation the extortionate extension credit. I recognize that it has several pages of extraneous language about the Colombo family that is not a part and parcel of the charge, and it is not something that Mr. Persico agrees to or is allocuting to here today (T. 25).
After some colloquy in which the Government asserted that these allegations were not extraneous and the Court questioned whether it was necessary for Defendant to allocute to his involvement in the Colombo crime family, the Assistant United States Attorney stated:
I don't think he has to allocute to it, Judge. I think it goes to what I said before, which is the perception by the victims that the defendant and his coconspirators--the defendant was an associate in the Colombo crime family. And his coconspirators reasonably believed at the time that they--that they would use--that these individuals would use extortionate means to collect an extension of credit. I don't think he ...