U.S. v. Loschiavo

• Citation: 531 F.2d 659
• Decision Date: 03 March 1976
• Docket Number: No. 498,D,498
• Parties: UNITED STATES of America, Appellant, v. Anthony LOSCHIAVO, Defendant-Appellee. ocket 75--1310.
• Court: U.S. Court of Appeals — Second Circuit

Page 659

531 F.2d 659

UNITED STATES of America, Appellant, v. Anthony LOSCHIAVO, Defendant-Appellee.

No. 498, Docket 75--1310.

United States Court of Appeals, Second Circuit.

Argued Jan. 7, 1976.

Decided March 3, 1976.

John C. Sabetta, New York City (Paul J. Curran, U.S. Atty., S.D.N.Y., Edward J. Kuriansky and Lawrence Iason, Asst. U.S. Attys., New York City, on the brief), for appellant.

Mortimer Todel, New York City, for defendant-appellee.

Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.

ROBERT P. ANDERSON, Circuit Judge:

Anthony Loschiavo was convicted on October 30, 1973, after a jury trial, of bribing one Pedro Morales, in violation of 18 U.S.C. § 201. ¹ Morales had been the Deputy Director of the Harlem-East Harlem Office of the New York Model Cities Administration. At trial, the Government's evidence showed that Loschiavo had paid a total of $15,000 to Morales and one John Sanders, Acting Director of the Harlem-East Harlem Model Cities Program, in order to obtain from Model Cities a lease for a building he owned.

Loschiavo initially claimed that Morales and Sanders were not public officials as defined by 18 U.S.C. § 201(a). He subsequently conceded the issue, however, and the trial court charged the jury that:

'Since the proof shows without dispute that the United States paid 80 per cent of Sanders' and Morales' salary and paid 100 per cent of the cost of the program which they were administering, they are public officials of the United States and were acting in their official capacities in connection with this lease.'

Loschiavo was sentenced to imprisonment for one year and was fined $5,000. He appealed to this court, but did not squarely raise a point as to the 'federal official' question, although he did argue that there was no basis for prosecution under a federal statute because the lease was executed, and the rent paid, by the City of New York, and thus the federal government was not directly affected by the bribes. The conviction was affirmed without opinion, 493 F.2d 1399 (2 Cir. 1974). Loschiavo then filed a petition for certiorari, in which he claimed that Morales and Sanders were not 'agent(s) or employee(s) of the federal government' so that 'no transaction with them could properly be regarded as coming within the scope' of 18 U.S.C. § 201(b). The Supreme Court denied certiorari, 419 U.S. 872, 95 S.Ct. 133, 42 L.Ed.2d 111 (1974).

Loschiavo commenced serving his sentence on May 6, 1974, and was released on parole on October 29, 1974. On May 5, 1975, the last day of his parole, ² he filed the present petition under § 2255 based upon this court's decision in United States v. Del Toro, 513 F.2d 656 (2 Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975).

In Del Toro, the Government proved that William Del Toro, William Kaufman, and Ralph Ruocco had bribed the same Pedro Morales, who was bribed by Loschiavo, to get Morales' help in obtaining a lease on a building owned by Ruocco, and for which Kaufman was rental agent. Consequently Del Toro and Kaufman were convicted of violating 18 U.S.C. § 201(b). The convictions were reversed by this court on the ground that the person bribed, Morales, was an employee of New York City, rather than of the federal government, and was not, therefore, a federal official as required under § 201. ³

The district court granted Loschiavo's § 2255 motion, and said:

'There is no valid distinction between the Del Toro case and movant's case on the key issue of the nature of Morales' employment. Since this court did not have jurisdiction over the crime charged, the conviction must be vacated. The charge on the jurisdictional element was, in light of Del Toro, a plain error which clearly affected substantial rights of the movant. It may therefore be considered at this juncture even though not raised at trial. Fed.R.Crim.P. 52(b).'

The Government has appealed.

On the merits of the present case, this panel is bound by the holding in Del Toro on 'the key issue of the nature of Morales' employment.' The Government has emphasized factual distinctions between the Loschiavo and Del Toro cases, particularly the different points in time at which the two schemes for bribery unfolded, and the different leases they involved. It stresses the fact that federal funds had been authorized for the project, including the Loschiavo lease, which contrasts with the court's finding in Del Toro, 513 F.2d at 662, that 'There were no existing committed federal funds for (the Del Toro lease).' These distinctions are, however, not determinative in this case. The type of public project involved, or the amount of federal funding entailed, may be important in applying other parts of the statute, such as the 'official act' requirement of § 201(b)(1) or the 'fraud . . . on the United States' requirement of § 201(b)(2), but for the purpose of deciding Morales' status as a 'public official' under § 201(a), it is not the aspects of the particular project which are of the greatest significance, but the character and attributes of his employment relationship, if any, with the federal government. In Del Toro the court rested its conclusion that Morales was not a federal 'public official' on the fact that he was not acting 'under or by authority of any . . . department, agency or branch of (the federal) Government.' Morales was found to be 'a city employee, carrying out a task delegated to him by his superior (Sanders), another city employee'; and his powers and duties were the same at all times relevant to the present case as they were in Del Toro. There was testimony in both the Del Toro and Loschiavo trials that the Housing and Urban Development agency could not hire or fire persons in the positions of Morales and Sanders. These were the crucial factors pertaining to Morales' employment status, which was in no way changed by the fact that federal funding had been already authorized for the project involved herein, though it had not been authorized in the Del Toro case. As the district court noted, in the present case, the jury, in finding Loschiavo guilty of bribing a public official necessarily found that Loschiavo's bribe was received by Morales. Inasmuch as this court held that Morales was not a federal 'public official' within the meaning of 18 U.S.C. § 201(a), Loschiavo should not have been convicted of bribing him in violation of that federal statute.

The more difficult issues on this appeal are procedural. The principal question is whether Loschiavo is barred from collaterally attacking his conviction. The Government argues that he is barred from proceeding under 28 U.S.C. § 2255, because that statute is expressly limited to '(a) prisoner in custody'; but Loschiavo filed his motion on the last day of his parole. State prisoners on parole have been held to satisfy the 'in custody' requirement of 28 U.S.C. § 2241, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); and, similarly, those released on their own recognizances pending execution of sentence, Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). Section 2255 gives federal prisoners the same collateral remedy as is available to state prisoners under 28 U.S.C. §§ 2241--2254. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Loschiavo's claim is not mooted by the fact that he has now completed his sentence. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); cf. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Even if § 2255 were unavailable to Loschiavo, in view of the fact that he had fully served his sentence under a federal felony conviction, he could simply bring a petition for coram nobis under the 'All Writs' statute, 28 U.S.C. § 1651(a), because such relief is available from the sentencing court even after release from custody, United States v. Morgan, 346 U.S. 502, 511--513, 74 S.Ct. 247, 252, 98 L.Ed. 248, 256 (1954); United States v. Travers, 514 F.,2d 1171, 1172 (2 Cir. 1974); United States v. Garguilo, 324 F.2d 795, 796 (2 Cir. 1963), and it was that court in which Loschiavo brought his § 2255 motion. Where the litigant has exhausted other avenues of review, coram nobis may be sought but relief 'should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.' United States v. Morgan, supra, 346 U.S. at 511, 74 S.Ct. at 252, 98 L.Ed. at 257. This case however, does present such circumstances, as will appear infra. Section 2255 and coram nobis are similar, see United States v. Travers, supra, 514 F.2d at 1173 n. 1; Strauss v. United States, 516 F.2d 980, 985 n. 9 (7 Cir. 1975). It would 'be a futile gesture,' therefore, to force Loschiavo to return to the district court and file a coram nobis petition.

Between the completion of Loschiavo's direct appeal from his conviction and the filing of this application under § 2255, this court in Del Toro had determined that Morales was an employee of the City of New York and not a federal public official. So that at the time the district court ruled on Loschiavo's motion, therefore, it was apparent on the face of the record that the Government had not established an essential element of the statutory offense of § 201(b), because Morales, whom Loschiavo was alleged to have bribed, was not a federal public official. The district court granted Loschiavo's § 2255 application because, as a consequence of the Del Toro decision, no federal offense was charged, and the district court declared that it did not have subject matter jurisdiction over a charge of bribing a city officer or employee.

The Government contends that, because Loschiavo failed to raise his 'federal official' claim on direct appeal, he is precluded from raising it now in a collateral attack. As a general proposition, of course, claims based upon constitutional errors or on a lack of jurisdiction, in the broad sense of ...