U.S. v. Lovaglia

• Decision Date: 22 January 1992
• Docket Number: 419,421 and 443,D,Nos. 418,310,s. 418
• Parties: UNITED STATES of America, Appellee, v. Michael LOVAGLIA, Martin Clune and Peter Pavlisak, Defendants-Appellants. ockets 91-1211, 91-1212, 91-1331, 91-2262 and 91-2264.
• Court: U.S. Court of Appeals — Second Circuit

Page 811

954 F.2d 811

UNITED STATES of America, Appellee, v. Michael LOVAGLIA, Martin Clune and Peter Pavlisak Defendants-Appellants.

Nos. 418, 419, 310, 421 and 443, Dockets 91-1211, 91-1212,

91-1331, 91-2262 and 91-2264.

United States Court of Appeals Second Circuit.

Argued Nov. 22, 1991.

Decided Jan. 22, 1992.

Paul J. Cambria, Jr., Buffalo, N.Y. (Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Mary Good, of counsel), for defendant-appellant Michael Lovaglia.

Joseph M. LaTona, Buffalo, N.Y. (Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Mary Good, of counsel), for defendant-appellant Martin Clune.

John R. Parrinello, Rochester, N.Y. (Redmond & Parrinello, of counsel), for defendant-appellant Peter Pavlisak (taken on submission).

Gregory A. West, Syracuse, N.Y., Asst. U.S. Atty., N.D.N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., of counsel), for appellee.

Before OAKES, Chief Judge, FEINBERG and MESKILL, Circuit Judges.

FEINBERG, Circuit Judge:

Michael Lovaglia, Martin Clune and Peter Pavlisak appeal from the sentences imposed upon them by the United States District Court for the Northern District of New York, Thomas J. McAvoy, J. Appellants challenge Judge McAvoy's refusal to recuse himself from the sentencing proceedings. Appellants also claim that the inclusion in their presentence reports of allegations to which they did not specifically plead violated their plea agreements. Appellants ask that the case be remanded for resentencing by a different judge, with a direction that the challenged portions of the presentence reports be excised. For the reasons given below, we affirm.

Background

This appeal arises out of a 13-count indictment charging defendants Peter Pavlisak, Martin Clune and Michael Lovaglia, who at the relevant times were union officials with violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 et seq. (RICO). The three defendants were charged with using their influence and union positions to extort illegal favors, to induce fear of economic harm and to allocate job opportunities unfairly and illegally.

Rather than facing trial, appellants in January 1991 pled guilty, pursuant to the terms of similar plea agreements, to Count One of the indictment charging each of them with conspiring to conduct the affairs of an enterprise (Laborers Local 7) through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). Each defendant admitted only the facts set forth in paragraph 3 of their respective agreements and each acknowledged that he could receive a sentence of up to 20 years in prison if convicted after a trial. Paragraph 6 of the plea agreements, pursuant to Fed.R.Crim.P. 11(e)(1)(C), included sentencing limits of five years, three years and two and a half years in prison, respectively, for Pavlisak, Lovaglia, and Clune. Limited fines were also permitted. Paragraphs 7 and 8, which dealt primarily with the evidence that could be presented to the sentencing court by the parties, provided:

7. The parties agree that the Court will independently determine an appropriate sentence in accordance with the terms of this Agreement. Furthermore, nothing contained in this Agreement shall prevent the Government or the Defendant from offering evidence relevant to this determination, nor shall anything contained in this Agreement be construed as any limitation on the right of either the Government or the Defendant to advocate a particular sentence within the limits of Paragraph 6A. and 6B. above. Any recommendation by the Government for a particular sentence shall be done in a separate sentencing memorandum and/or in oral advocacy at the time of sentencing.

8. The Government reserves the right to respond to any information or statements made by [the defendant] or on [the defendant's] behalf which are inconsistent with evidence developed during the course of the Government's investigation. It is further understood that the United States Attorney's Office will provide the United States Probation Office and the United States District Court with all information in its possession which the Government deems relevant with respect to [the defendant's] background, character, and involvement in the crime to which he enters a plea of guilty.

The Government gave up its right to participate in the defendants' parole hearings and recommend a specific parole determination. Thus, paragraph 8 went on to provide: "The United States Attorney will not, however, advocate a parole determination and will not make any sentencing memorandum or transcript of oral advocacy available to the United States Parole Commission."

In February 1991, the government filed a sentencing memorandum with the district court supporting its recommendation that the defendants receive the maximum terms of incarceration allowed by their plea agreements. All three defendants filed replies denying the government's allegations, and submitted their own sentencing memoranda recommending probation or community service in lieu of incarceration.

The sentencing of all three defendants was initially scheduled for March 27, 1991, but Pavlisak's sentencing was rescheduled for April 11, 1991 due to his attorney's unavailability. At the sentencing of Lovaglia and Clune, Judge McAvoy gave counsel for each defendant an opportunity to challenge the presentence reports. Both defendants challenged the reports as containing unsubstantiated allegations. Defendants also sought to limit the scope of the reports by arguing that since the defendants had admitted involvement in only two incidents, the government had breached its plea agreements by offering to prove misconduct other than that involved in those two incidents. The two defendants therefore asked the court to strike from the presentence reports the government's version of the offense beyond those parts pertaining to the admitted incidents of misconduct.

Judge McAvoy ruled that "what the Government submitted certainly was in keeping with the parameters of the agreement" but that "I was sentencing Mr. Lovaglia and Mr. Clune in connection with their plea to the RICO conspiracy based on two overt acts that they admitted to. Not other overt acts that they contest. I am not going to consider those other contested overt acts that have been set forth in the indictment and in the Government's submissions." Judge McAvoy also stated that he would not make any decisions for the parole commission and directed the transmittal to the parole board of everything that had been filed. After a request from the government, however, the judge agreed not to forward the government's sentencing memorandum to the parole board. After hearing from the parties, the judge imposed the maximum sentences allowed under the plea agreement, ordering Lovaglia and Clune to serve, respectively, 36 and 30 months in prison.

One week later, the attorney for Pavlisak (who had not yet been sentenced) sent Judge McAvoy a letter asking him to recuse himself and requesting that the case be reassigned to another judge. Pavlisak's counsel asserted in the letter that there was "a potential conflict of interest and/or appearance of impropriety on [the judge's] part which must be addressed prior to" the sentencing of Pavlisak. The bases for this assertion were that the judge's former law firm had represented one of the construction companies victimized by defendants (the Nick Anthony Construction Company) and that the judge had been involved in an unrelated restaurant business with one of the Nick Anthony shareholders, Ralph Cerretani. Thereafter, based upon the same allegations, Lovaglia and Clune moved to vacate their sentences, to stay the commencement of their prison terms in the meantime and to transfer the resentencing to another judge.

The judge rescheduled Pavlisak's sentencing and heard oral argument from Lovaglia and Clune on April 16, 1991, at which time he explored the disqualification issue with their counsel. On April 25, 1991, the judge issued a memorandum decision and order which denied their applications for a stay. In this opinion, the judge emphasized that his relationship with the Cerretanis, alleged victims of defendants' misconduct, had ended "about seven or eight years ago" and that it had nothing to do with the events underlying the criminal prosecution. He concluded that a reasonable, objective and disinterested observer, knowing all the facts, would not question his impartiality.

The judge subsequently rescheduled the Pavlisak sentencing for May 6, 1991 and at the sentencing hearing he discussed the disqualification question with Pavlisak's attorney. Pavlisak made the same "appearance of impropriety" argument that his co-defendants had made on their motion to vacate. In addition to the facts presented by his co-defendants, Pavlisak noted that the judge had socialized with the Cerretani family when they were in the restaurant business together. In response, the judge emphasized again that any relationship he had had with the Cerretani family "drifted away and ceased" when the restaurant business "ground to a halt." He checked to be sure that neither he nor his former law firm had ever investigated the vandalism allegedly committed by defendants against the Cerretanis or assisted the company in pursuing an insurance claim. He ultimately denied the recusal motion and, upon Pavlisak's motion to have the contested allegations stricken from the presentence report, denied this request, as he had when the other two defendants made the same request at their sentencing hearing.

These appeals followed.

Discussion

Recusal

Subsection (a) of 28 U.S.C. § 455 provides that judges "shall disqualify [themselves] in any proceeding in which [their] impartiality might reasonably be questioned." The legislative history of this statutory section reveals that it was intended to establish an objective standard designed to promote public confidence in the impartiality of...