Perna v. U.S.
| Citation | 975 F.Supp. 657 |
| Decision Date | 21 July 1997 |
| Docket Number | Criminal No. 93-45-01 (JEI).,Criminal No. 92-723-05 (AJL).,Civil Action No. 97-2111 (AJL). |
| Parties | Michael PERNA, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Lawrence S. Lustberg, Anthony P. Callaghan, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for Plaintiff.
Faith S. Hochberg, United States Attorney, Colette R. Buchanan, Assistant United States Attorney, Office of the United States Attorney, Newark, NJ, for Defendant.
Petitioner Michael Perna ("Perna"), presently incarcerated at the Lewisburg Federal Penitentiary in Pennsylvania, brings this action for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 ("Section 2255").1 For the reasons set forth below, the Habeas Petition is denied; there is no probable cause for appeal.
On 3 October 1992, Perna was arrested on gambling charges. See Perna Brief at 1. On 26 January 1993, a Federal grand jury indicted Perna on illegal gambling and related charges (the "Gambling Indictment"). See Government Brief at 1. The case, United States v. Perna, Criminal No. 93-45-01(JEI) (the "Gambling Case"), was assigned to the Hon. Joseph E. Irenas, U.S.D.J. for trial.
On 26 July 1993, Perna pleaded guilty before Judge Irenas (the "Gambling Plea") to count two of the Gambling Case charging a violation of 18 U.S.C. § 1955 ("Section 1955").2 See transcript of plea hearing (the "Gambling Plea Hearing") before Judge Izenas (the "Gambling Plea Tr.") at 18-19. At that time, as will be discussed, Perna was specifically advised by Judge Irenas the maximum statutory sentence for violation of Section 1955 was five years with a fine of $20,000. See Gambling Plea Tr. at 20. Perna was also advised "it may be impossible for [his] attorney to make a completely accurate assessment as to the guidelines range which will apply in [his] case...." Gambling Plea Tr. at 23. Perna was represented by John Tiffany, Esq., of the Law Offices of Michael Critchley & Associates at the Gambling Plea Hearing. See Gambling Plea Tr. at 5; Habeas Petition at 8. The case was scheduled for sentencing before Judge Irenas on 24 September 1993. See Gambling Plea Tr. at 41.
On 29 December 1992, a Federal grand jury indicted Perna and eight others in an eighty-four count indictment charging them with violations of the Racketeer Influenced and Corrupt Organizations Act (the "RICO Act"), 18 U.S.C. § 1961 et seq., and related offenses (the "RICO Case"). See Indictment in United States v. Juliano, Criminal No. 92-723(AJL) (the "RICO Indictment"); see also United States v. Juliano, 947 F.Supp. 777, 779 (D.N.J.1996). The RICO Indictment detailed a fraudulent billing and kickback scheme involving the City of Newark, Division of Sanitation. See RICO Indictment.
On 20 September 1993, pursuant to a written plea agreement (the "RICO Plea Agreement"), Perna entered a plea of guilty to a RICO Act charge (the "RICO Plea") contained in a superseding information charging him with participation in the affairs of an enterprise, the New Jersey Faction of the Lucchese crime family, through a pattern of racketeering. See transcript of plea hearing (the "RICO Plea Hearing"), held 20 September 1993 (the "RICO Plea Tr.") at 26-38, attached as Exhibit B to the Government Brief; Plea Agreement at 1, attached as Exhibit A to the Government Brief. Perna admitted to membership in the Lucchese crime family, a decade of extortion of an air freight company, operating an illegal video gambling business, jury tampering and multiple murder conspiracies resulting in the deaths of seven individuals:
[THE GOVERNMENT] Mr. Perna, during the time period covered by the information, that is during the period of approximately January 1st, 1976 through today, were you employed by or associated with the New Jersey Faction of the Lucchese crime family?
[PERNA] Yes.
[THE GOVERNMENT] During the same time period, in the District of New Jersey, did you conduct and participate in the conduct of the affairs of the New Jersey Faction through a pattern of racketeering, which included bribery, extortion, conspiracy to commit murder and obstruction of justice?
[PERNA] Yes.
* * * * * *
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction, in approximately 1976 in New Jersey, did you conspire and agree with other members of the New Jersey Faction to commit murder by purposefully causing the death of Richard DeMary?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of this conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction, in approximately October, 1977, in New Jersey, did you conspire and agree with other members of the New Jersey Faction to commit murder by purposely causing the death of Gregory Minichino?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of the conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction, in approximately August, 1980, in New Jersey, did you conspire and agree with other members of the New Jersey Faction to commit murder by purposefully causing the death of Pat Morran?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of this conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction, in approximately December, 1980, in New Jersey, did you conspire and agree with other members of the New Jersey Faction to commit murder by purposefully causing the death of a white male, named Ray, whose last name is unknown?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of the conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction, in approximately 1982 or 1983, in Newark, New Jersey, did you conspire and agree with other members of the New Jersey Faction to commit murder by purposefully causing the death of an unidentified black male numbers writer?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of this conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction in approximately July, 1990, in New Jersey, did you conspire and agree with other members of the New Jersey Faction to commit murder by purposefully causing the death of John Redman?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of this conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction, during the time period of approximately September, 1990 through September, 1993, in New Jersey, did you conspire and agree with other members of the New Jersey Faction to murder Thomas Ricciardi, Daniel Ricciardi, Anthony Accetturo, Anthony Accetturo, [Jr.], Joseph LaMorte, Joseph Ricciardi, Daniel Miano and Nicholas Stefanelli?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of this conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] In furtherance of the affairs of the New Jersey Faction, in approximately January, 1992, in New Jersey, did you conspire and agree with other persons to commit murder by purposefully causing the death of Anthony Cuozzo?
[PERNA] Yes.
[THE GOVERNMENT] Did you, thereafter, commit an overt act in furtherance of this conspiracy?
[PERNA] Yes.
[THE GOVERNMENT] During the time period of approximately June through July, 1990 in the District of New Jersey, were you aware of a proceeding in a court of the United States, specifically the district court for the District of New Jersey, namely the trial of United States v. John Riggi, et al?
[PERNA] Yes.
[THE GOVERNMENT] During that time period, in furtherance of the affairs of the New Jersey Faction, did you corruptly endeavor to influence and impede a juror in that trial?
[PERNA] Yes.
[THE GOVERNMENT] In that juror's discharge of his duties?
[PERNA] Yes.
[THE GOVERNMENT] Of his or her duties?
[PERNA] Yes.
[THE GOVERNMENT] During the time period of approximately November, 1986 through November, 1988, did you participate in a proceeding in the district court for the District of New Jersey, namely the trial of United States v. Anthony Accetturo, et al?
[PERNA] Yes.
[THE GOVERNMENT] During the same time period, in furtherance of the affairs of the New Jersey Faction, did you aid and abet the corrupt endeavor to influence and impede a juror in that trial, and that juror's discharge of his or her duties in that manner through the payment of bribes to that juror?
[PERNA] Yes.
[THE GOVERNMENT] Did you do all of these acts willingly and willfully?
[PERNA] Yes.
See RICO Plea Tr. at 26-34.
Despite the horrific nature of Perna's crimes, pursuant to the RICO Plea Agreement, Perna faced a maximum of twenty years in prison on the RICO Plea. RICO Plea Agreement at 2. As will be discussed, however, the RICO Plea Agreement also provided the Government would move to transfer the Gambling Case to this court for sentencing. RICO Plea Agreement at 4. Significantly, the RICO Plea Agreement specifically stated the Government's intention to move to have Perna sentenced to the maximum five year sentence pursuant to the Gambling Plea and the maximum twenty year sentence pursuant to the RICO Plea and to have the sentences run consecutively. See id. Subsequently, the two cases were consolidated for sentencing. See transcript of sentencing hearing for the Gambling Case and the RICO Case (the "Consolidated Sentencing Hearing") held 25 July 1994 (the "Consolidated Sentencing Tr.") at 5-6, attached as Exhibit C to the Callaghan Cert.
On 25 July 1994, Perna was sentenced to consecutive terms of five years on the Gambling Plea and twenty years on the RICO Plea. See Consolidated...
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