09-3705-cr
USA v. Prisco

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUM ENT FILED W ITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day
of September, two thousand ten.

Present:
         ROBERT A. KATZMANN,
         PETER W. HALL,
         DENNY CHIN,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            No. 09-3705-cr

ANGELO PRISCO,

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                 ROGER L. STAVIS, Gallet Dreyer & Berkey, LLP, New
                                         York, NY

For Appellee:                            ELIE HONIG , Assistant United States Attorney
                                         (Katherine Polk Failla, Assistant United States
                                         Attorney, on the brief), for Preet Bharara, United States
                                         Attorney for the Southern District of New York, New,
                                         York, NY
      Appeal from the United States District Court for the Southern District of New York
(Buchwald, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Angelo Prisco appeals from a judgment of conviction entered on

August 20, 2009, following a jury trial on a nine-count superseding indictment, S2 08 Cr. 885

(NRB), for racketeering conspiracy, the substantive racketeering offense (and specific

racketeering acts), conspiracy to commit home invasion robberies, possession of firearms in the

furtherance of the robberies, extortion conspiracy, substantive extortion, interstate transportation

of stolen property, and the operation of an illegal gambling business. On appeal, Prisco argues

that: (1) a previous plea agreement in the District of New Jersey should have precluded the

prosecution of certain charges in the Southern District of New York that were “covered” under

the District of New Jersey plea agreement; (2) the district court erred in declining to suppress the

defendant’s statements to a jailhouse informant and in declining to hold an evidentiary hearing

thereon; and (3) the district court violated the defendant’s right to confrontation in admitting an

expert report by a medical examiner who had not performed the autopsy of the murder victim.

We assume the parties’ familiarity with the facts and procedural history of the case.

       On February 15, 2007, the defendant entered into a plea agreement in the District of New

Jersey, which stated, in relevant part, that the “agreement is limited to the United States

Attorney’s Office for the District of New Jersey and cannot bind other federal, state, or local

authorities.” Though Prisco encourages this Court to turn a blind eye to this language, it is the

law of this Circuit that a plea agreement in one U.S. Attorney’s office does not, unless otherwise


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stated, bind another. See United States v. Annabi, 

, 672 (2d Cir. 1985) (per curiam)

(“A plea agreement binds only the office of the United States Attorney for the district in which

the plea is entered unless it affirmatively appears that the agreement contemplates a broader

restriction.”); see also United States v. Salameh, 

, 120 (2d Cir. 1998) (per curiam)

(stating that reference to the “the Government” in a plea agreement binds only the office in

which the agreement was made unless “there [is] evidence to show that [a prosecutor] [i]s

attempting to evade its own obligations . . . by transferring a prosecution to another office”)

(alterations in original) (internal quotation marks omitted). In the absence of any language in the

New Jersey plea agreement to suggest otherwise, and with no compelling reason to infer any

intent to the contrary, see United States v. Russo, 

, 626 (2d Cir. 1986), we decline to

extend the New Jersey plea agreement beyond its clearly stated terms.

       The defendant also moved pursuant to Massiah v. United States, 

(1964), to

suppress certain testimony by a jailhouse informant, Michael Sparfven, with whom Prisco had

conversations about his offense conduct while incarcerated. In accordance with the holding in

that case, it is undisputed that there is no Sixth Amendment violation of the right to counsel to

the extent that none of Sparfven’s notes written on or after September 17, 2008 (the date of the

indictment) was admitted. Upon our review of Sparfven’s notes, and in light of the fact that

Prisco failed to raise any objection to the accuracy or authenticity of the notes or their dating, we

are satisfied that the district court did not commit clear error in admitting notes taken before

September 17, 2008. Accordingly, the district court also appropriately declined to hold an

evidentiary hearing. See Puglisi v. United States, 

, 215 (2d Cir. 2009).

       Finally, the defendant challenges the admission of the autopsy report of the murder

victim, Angelo Sanguilo, pursuant to Melendez-Diaz v. Massachusetts, 

(2009).

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We need not reach that question here because the admission of the report was harmless error in

any event. The government’s case against the defendant was very strong, and the minor factual

discrepancies upon which the defendant seizes are readily reconcilable upon closer inspection of

the record.

       We have considered the defendant’s remaining arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                FOR THE COURT:
                                                CATHERINE O’HAGAN WOLFE, CLERK




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