Benigno v. U.S.
| Decision Date | 16 September 2003 |
| Docket Number | No. 03-CV-1603 (ADS).,03-CV-1603 (ADS). |
| Citation | 285 F.Supp.2d 286 |
| Parties | Salvatore BENIGNO, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Sarita Kedia, Esq., New York, NY, for Petitioner.
Ralph T. Giordano, Chief, New York Office, United States Department of Justice, Antitrust Division, New York, NY, By Debra C. Brookes and John W. McReynolds, Attorneys for the United States.
Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Central Islip, NY, By Tanya Y. Hill, Assistant United States Attorney.
This case involves charges that the petitioner Salvatore Benigno (the "petitioner") took part in a bid-rigging conspiracy in violation of 15 U.S.C. § 1 (the "Sherman Act"). Presently before the Court is a motion by the petitioner to withdraw his plea of guilty and vacate his conviction pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure ("Rule 32(e)") and 28 U.S.C. § 2255 ("Section 2255"), or alternatively to set aside his sentence pursuant to Section 2255.
In late February 2001, the petitioner received a "target" letter from the government notifying him that he was the subject of an investigation involving bid-rigging, conspiracy, mail fraud, tax violations and other crimes allegedly committed by individuals who attended Sheriff's auctions in Nassau and Suffolk Counties. After receiving the letter, petitioner retained an attorney and met with the government twice. Thereafter, he pleaded guilty to conspiracy to commit bid-rigging in violation of the Sherman Act.
The government's investigation revealed that between August 1996 and January 2001, the petitioner, along with several other individuals, regularly attended public auctions run by the Nassau and Suffolk County Sheriffs' Offices. At these auctions, various debtors' property was sold in order to satisfy their debts to judgment creditors. According to the government, while in attendance at these auctions, the petitioner and his co-conspirators engaged in a bid-rigging scheme in which they designated one individual from the group to bid on the auctioned property on the group's behalf, as opposed to each member of the group bidding competitively against each other. This scheme allowed the group to obtain auctioned property at a lower price than it would have had they bid competitively against each other.
The investigation further revealed that after the official auction ended, the co-conspirators would then hold a second, private auction known as a "knock-out" auction. These "knock-out" auctions were held outside the presence of the Sheriffs and were open only to the co-conspirators. During the "knock-out" auctions, the co-conspirators would bid competitively against each other to acquire the property at a price higher than the price paid at the official auction. The winner of the "knockout" auction would then reimburse the winner of the official auction as well as pay off the other co-conspirators based on the bid price of the property at the time they dropped out of the "knock-out" auction.
In addition to this scheme, the investigation revealed that the co-conspirators on several occasions discouraged third-party bidders from bidding at the Sheriffs' auctions by aggressively approaching them prior to the commencement of the bidding. As a result of this conspiracy, the government asserts that the prices of the properties sold at the Sheriffs' auctions were artificially low, thereby depriving debtors of the satisfaction of their debts and depriving them of obtainment of the full value of the auctioned property.
After receiving notification of the investigation, the petitioner and coconspirator Joseph Benigno, the petitioner's cousin, retained Steven Heller, Esq., to represent them in this matter. Despite a lack of any federal criminal defense experience, Heller agreed to represent the cousins based on his twenty-year relationship with them and their inability to afford an attorney familiar with federal criminal law.
The petitioner and Heller met with the government twice to discuss the investigation. After hearing the evidence against him, the petitioner indicated that he did not believe that he had committed any antitrust violation and informed Heller that he did not wish to plead guilty to any crimes. Heller advised the petitioner that the government believed that it was in his best interest to plead guilty. In addition, according to the petitioner, the government represented to both Heller and himself that a guilty plea would ensure a sentence without any term of imprisonment. The government contends that no such assurances were given, but instead it simply discussed with the petitioner and Heller previous experiences with similarly situated defendants.
Based on the advise of his counsel and the alleged representations by the government, the petitioner signed a plea agreement which Heller mailed to the government on January 4, 2002. Included in the agreement was a signed signature line affirming that the petitioner entered the agreement knowingly and voluntary.
On March 21, 2002, the government informed Heller that it would request a Curcio hearing based on his dual representation of the petitioner and Joseph Benigno. During the Curcio hearing, which commenced on April 30, 2002, United States Magistrate Judge Arlene R. Lindsay explained the seriousness of the charges against the petitioner, commenting that a conviction could result in a term of imprisonment. The hearing concluded with a request by the petitioner and Joseph Benigno for advice from an independent counsel on the hazards of dual representation. After receiving such advice, the hearing reconvened on June 28, 2002, at which time the petitioner informed Judge Lindsay that he desired to continue with Heller as his attorney.
After a brief adjournment, the petitioner appeared for his plea allocation. Pursuant to Rule 11 of the Federal Rules of Criminal Procedure ("Rule 11"), Judge Lindsay reviewed with the petitioner his rights, including a detailed account of the potential punishment he faced. During this account, the petitioner affirmed that he understood that he faced a potential range of four to ten months' imprisonment and that the ultimate decision concerning his sentence was up to this Court, which was not bound by the government's estimate. Later in the proceeding, the petitioner affirmed that he was satisfied with his legal representation and that he entered the plea voluntarily and of his own free will. Finally, the petitioner affirmed that no one had made any promises to cause him to plead guilty or as to what his sentence would be.
On October 3, 2002, a Presentence Report ("PSR") was issued. The PSR noted the petitioner's acceptance of responsibility and his eligibility for a sentence of probation, but also noted that Application Note 5 of the Commentary to Guideline 2R1.1 stated, "[i]t is the intent of the Commission that alternatives such as community confinement not be used to avoid imprisonment of antitrust offenders." The petitioner claims that although he received a copy of the PSR, neither he nor Heller noticed or discussed this statement prior to sentencing.
On October 18, 2003, the petitioner appeared for sentencing at which time he indicated that he had reviewed the PSR. During this proceeding, Heller requested leniency based on the petitioner's lack of criminal history and his dedication to his family. This request supplemented a letter submitted by Heller two days earlier with annexed letters from the petitioner's family and friends. The Court then sentenced the petitioner to a term of four months' incarceration with a surrender date of January 15, 2003.
A day prior to his scheduled surrender, the petitioner, appearing pro se, moved by order to show cause pursuant to Section 2255 seeking to vacate his guilty plea and stay his surrender date on the ground that his guilty plea flowed from a jurisdictionally defective Information. At that time, the Court denied the petition. Later that day, the petitioner requested reconsideration of his application. The court granted the application in part, staying the petitioner's surrender date, and appointed a new attorney to represent the petitioner.
On March 24, 2003, the petitioner, then represented by his third counsel, filed the instant motion seeking to withdraw his guilty plea and vacate his sentence on the ground that his plea was not voluntary and intelligent as required by Rule 11. Alternatively, the petitioner moved for his sentence to be set aside because of the alleged ineffectiveness of his original counsel.
The government contends that the petitioner is barred from collaterally attacking his conviction based on an express waiver term in the plea agreement. Paragraph 4 of the plea agreement reads in part,
The defendant will not file an appeal or otherwise challenge the conviction or sentence in the event that the court imposes a term of imprisonment of 10 months or below. This waiver is binding on the defendant even if the Court employs a Guidelines analysis different from that set forth in Paragraph 2.
"There is no general bar to a waiver of collateral attack rights in a plea agreement." Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir.2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001) (per curiam)). "However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement." Id. (citations omitted).
Where, as here, a petitioner claims a...
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