712 F.2d 1532 (2nd Cir. 1983), 1304, United States v. Curcio

Docket Nº:1304, 1307, Dockets 83-1024, 83-1065 to 83-1067.
Citation:712 F.2d 1532
Party Name:UNITED STATES of America, Appellee, v. Francis CURCIO, Gus Curcio, Dahill D'Onofrio and Roberto Garcia, Appellants.
Case Date:June 22, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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712 F.2d 1532 (2nd Cir. 1983)

UNITED STATES of America, Appellee,


Francis CURCIO, Gus Curcio, Dahill D'Onofrio and Roberto

Garcia, Appellants.

Nos. 1304, 1307, Dockets 83-1024, 83-1065 to 83-1067.

United States Court of Appeals, Second Circuit

June 22, 1983

        Argued May 27, 1983.

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        Jacob D. Zeldes, Bridgeport, Conn. (Miriam Berkman, and Zeldes, Needle & Cooper, Bridgeport, Conn.), for appellants Francis Curcio and Gus Curcio.

        Andrew B. Bowman, Westport, Conn., for appellant Dahill D'Onofrio.

        Richard Reeve, Asst. U.S. Public Defender, New Haven, Conn., for appellant Roberto Garcia.

        William C. Bryson, Atty. Dept. of Justice, Washington, D.C., for appellee U.S.

        Before FEINBERG, Chief Judge, FRIENDLY and WINTER, Circuit Judges.

        FRIENDLY, Circuit Judge:

        This is the third time in which appellants Francis and Gus Curcio have been before us in this case, see 680 F.2d 881 (1982); 694 F.2d 14 (1982). They and their codefendants Roberto Garcia and Dahill D'Onofrio now appeal pursuant to conditional pleas of guilty under plea agreements made with the prosecutor and approved by Chief Judge T.F. Gilroy Daly of the District Court for Connecticut, from judgments of conviction entered on their guilty pleas. The appeals extend into new ground the conditional guilty plea, originally a judge-made creation so far as federal courts are concerned but now proposed to be sanctioned as Federal Rule of Criminal Procedure Rule 11(a)(2). 1 We must carefully consider whether the proposed extension is proper.

The Indictment and the Proceedings in the District Court

        The indictment, returned on January 13, 1982, contained seven counts. Count One charged all defendants with a conspiracy 2 wherein Francis Curcio would extend credit and direct the other defendants to extend

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credit with the understanding that delay in repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation and property of the debtors and others, and would demand weekly interest payments known as "vigorish" or "vig" payments which would extend the term of the loans, with the understanding of the defendants and the debtors that delay in repayment or failure to repay would have the described consequences, in violation of 18 U.S.C. § 892(a). The other counts charged substantive offenses in violation of 18 U.S.C. §§ 892 and 2. Count Two charged the Curcios, D'Onofrio and Vagnini with an extortionate extension of credit to John Acabbo; Count Three charged Francis Curcio and Vagnini with such an extension of credit to Richard Alchimio; Count Four charged the Curcios and D'Onofrio with such an extension of credit to Ronald Benedetto; Count Five charged them with such an extension of credit to Norman Ellsworth; Count Six charged them with such an extension to Darryl Hardiman; and Count Seven charged them with such an extension to Donald Brutnell.

        Defendants moved to dismiss the indictment on the grounds, among others, (1) that 18 U.S.C. § 892(a) is void for vagueness; (2) that § 892(b), along with the definition of an extortionate extension of credit in § 891(6), creates an unconstitutional statutory presumption; 3 and (3) that prejudicial pretrial publicity required dismissal. In addition,

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defendant Francis Curcio moved to dismiss substantive counts Three through Seven on the ground that the holding in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), allowing a conspirator to be held liable for reasonably foreseeable substantive offenses of another conspirator in furtherance of the conspiracy, was unconstitutional. Chief Judge Daly denied the motions to dismiss in an opinion filed on September 23, 1982. Later, on December 3, 1982, he denied motions of the Curcios for reconsideration of his ruling with respect to pretrial publicity.

        Three days later, on December 6, 1982, the United States, represented by William A. Keefer, an attorney from the Department of Justice, 4 signed detailed plea agreements with each of the four appellants. Francis Curcio's plea agreement recited that he would enter a guilty plea to Count Three of the indictment pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); 5 that the United States would recommend a sentence of six years imprisonment under 18 U.S.C. § 4205(b)(2) with the understanding that such recommendation would not bind the court; that the parties approved the right of the defendant to seek review of the issues summarized in an attached Exhibit A; 6 and that:

        The parties approve the right of defendant to seek timely review in accordance with the Federal Rules of Appellate Procedure, of the issues summarized in the document attached as Exhibit A, as those issues are more fully set forth in defendant's pretrial motion papers, in the United States Court of Appeals for the Second Circuit. The United States represents that if the case were to proceed to trial it would be necessary to utilize both the provisions of 18 U.S.C. § 892(b) and the Pinkerton doctrine, Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), to establish a prima facie case against defendant Francis Curcio in count three.

        The agreement also contained detailed provisions as to what should happen, both with respect to the remaining counts of the indictment and with respect to prosecutions for violation of other criminal laws, on various contingencies relating to the action of this court on appeal (not, however, including the contingency that we might hold that some or all of the issues listed in Exhibit A were improperly reserved) and of the Supreme Court on petitions for certiorari. The plea agreements with the other defendants were similar except that Gus Curcio and D'Onofrio were to plead guilty to Count Two and Garcia to Count One; that the recommended sentences were to be four years for D'Onofrio and one year for Garcia; and that Exhibit A attached to each agreement was limited to the first two questions listed in Exhibit A to the agreement with Francis Curcio and the representation

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by the United States was limited to its need to utilize 18 U.S.C. § 892(b) and made no reference to Pinkerton v. United States, supra, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489.

        The pleas of the two Curcios and Garcia were taken at a hearing on December 6, 1982; D'Onofrio's at a hearing on December 9. Francis Curcio's plea was taken first. The prosecutor, evidently to comply with F.R.Cr.P. 11(f), stated that the Government's evidence "would consist of testimony of an accomplice and debtor by the name of William Cray as well as at least six additional debtors, John Acabbo, Richard Alchimio, Ronald Benedetto, Norman Ellsworth, Darryl Hartman and Special Agent Donald Brutnell of the Federal Bureau of Investigation, plus testimony of other witnesses and participants to the events charged. All of which is corroborated by consentual [sic] tape recordings and physical evidence." This evidence was to be used to show that Francis Curcio "was in overall charge of the extortion conspiracy and that he had to personally authorize loans of the size over a few thousand dollars". The prosecutor also said that the Government's evidence would establish that Gus Curcio was "second in command of the extortion conspiracy with supervisory responsibility, that Dahill D'Onofrio acted as principal collector of the loans, and that defendants D'Onofrio, Vagnini and Garcia extended and collected loans under the supervision and control of the Curcio brothers", and that the evidence would show that none of the debts would have been legally enforceable in Connecticut.

        Going into further detail, the prosecutor explained that his evidence would show that beginning in 1976, Acabbo began borrowing from Vagnini, who was working for Francis Curcio, with interest at the rate of 3% per week (156% per year); that on one occasion after Acabbo fell behind in his interest payments, Gus Curcio told him "not to mistake kindness for weakness"; that on another occasion when Francis Curcio told Acabbo that he owed $28,000 and Acabbo answered that he had already paid that much in "vigorish", Francis said that was "dead money"; and that on another occasion when Acabbo paid $3000 to Francis Curcio, Francis said Acabbo was not paying enough money on his debt. The prosecutor also described evidence with respect to a loan transaction, again involving 3% weekly interest, between Alchimio and Vagnini, who was acting on behalf of Francis Curcio. The prosecutor represented that Alchimio would have testified that at the time the extensions of credit were made, he believed that physical harm would come to him if he failed to repay the loans, and that this belief was based on his awareness of Francis Curcio's reputation in the community. Ellsworth would have testified that Cray had brought him to Gus Curcio and D'Onofrio for a loan, which was made at 4% interest per week (208% per year), and that he believed that Curcio and D'Onofrio would cause him physical harm if he failed to repay. Hardiman and Cray would have testified to a loan from D'Onofrio at 4% interest per week; Francis Curcio discussed the loan with Cray and when Hardiman left town before repaying the debt, Gus Curcio told Cray that he was "hunting for" Hardiman. The latter would have testified that he was aware of the reputations of Francis Curcio and D'Onofrio for violence and believed he would suffer broken bones in the event of a default. Cray also would have testified with respect to a loan by Gus Curcio and D'Onofrio to Benedetto at 4% per week which Cray guaranteed. Gus Curcio told Cray that he had to collect the interest, no matter what he had...

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