Filed: Oct. 20, 2011
Latest Update: Feb. 22, 2020
Summary: 10-0677 United States v. Delgiudice 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 DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY O
Summary: 10-0677 United States v. Delgiudice 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 DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY OR..
More
10-0677
United States v. Delgiudice
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
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of October, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JON O. NEWMAN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-0677
17
18 RICHARD DELGIUDICE,
19 Defendant-Appellant.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Laurie S. Hershey, Manhasset,
23 New York.
24
25 FOR APPELLEES: Michael D. Maimin, Katherine
26 Polk Failla, Assistant United
27 State Attorneys for Preet
28 Bharara, United States Attorney
29 for the Southern District of New
30 York, New York, New York.
1
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Daniels, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Richard Delgiudice appeals from a judgment of
9 conviction, following a guilty plea to one count of
10 conspiracy to distribute and possess with intent to
11 distribute one kilogram or more of heroin. We assume the
12 parties’ familiarity with the underlying facts, the
13 procedural history, and the issues presented for review.
14
15 Delgiudice argues that the district court violated
16 Federal Rule of Criminal Procedure 11 and that the
17 forfeiture amount is without evidentiary basis. Delgiudice
18 brought neither objection to the attention of the district
19 court and therefore must show plain error. See United
20 States v. Vonn, 535 U.S. 55 (2002) (discussing Rule 11
21 error); United States v. Uddin,
551 F.3d 176, 181 (2d Cir.
22 2009) (discussing forfeiture). He does not.
23
24 [1] Delgiudice argues that the district court violated
25 Rule 11(b)(3) by accepting his plea without a factual basis.
26 To comply with the Rule, the court must “‘assure itself
27 simply that the conduct to which the defendant admits is in
28 fact an offense under the statutory provision under which he
29 is pleading guilty.’” United States v. Garcia,
587 F.3d
30 509, 514 (2d Cir. 2009) (quoting United States v. Maher, 108
31 F.3d 1513, 1524 (2d Cir. 1997)). “The court may rely on
32 defendant's own admissions, information from the government,
33 or other information appropriate to the specific case.”
34 United States v Andrades,
169 F.3d 131, 136 (2d Cir. 1999).
35
36 Delgiudice pled guilty to one count of conspiracy to
37 distribute and possess with intent to distribute one
38 kilogram or more of heroin. The elements of such a
39 conspiracy are “the existence of a conspiracy[,] the
40 defendant’s willful joining it,” United States v. Story,
41
891 F.2d 988, 992 (2d Cir. 1989), and the quantity of
42 narcotics involved, United States v. Gonzalez,
420 F.3d 111,
43 129 (2d Cir. 2005). There must be at least one person in
44 the conspiracy (apart from the defendant) not acting as an
45 agent for the government. United States v. Goldberg, 756
46 F.2d 949, 958 (2d Cir. 1985).
47
2
1 Notwithstanding initial confusion in Delgiudice’s
2 allocution as to the date of the conspiracy, the parties
3 provided facts sufficient to substantiate each element of
4 the offense. Delgiudice admitted to entering an agreement
5 with others in July of 2005 to purchase and distribute two
6 kilograms of heroin. Defense counsel clarified that the
7 transaction to which Delgiudice was pleading guilty actually
8 occurred in June of 2005. As the prosecutor explained,
9 Delgiudice’s co-conspirator was acting as a government agent
10 in July but not in June. Delgiudice then admitted to
11 arranging to purchase and distribute one kilogram of heroin
12 in June. Given these statements, there is no plain error.
13
14 [2] Based on the street-value of two kilograms of
15 heroin, the court ordered Delgiudice to pay $96,000 in
16 forfeiture. Delgiudice asserts that there was only
17 evidentiary basis for his having possessed and distributed
18 one kilogram of heroin.
19
20 Delgiudice waived this argument. “[W]aiver is the
21 ‘intentional relinquishment or abandonment of a known
22 right.’” United States v. Olano, 507 U.S. 725, 733 (1993)
23 (internal citations omitted); see also United States v.
24 Polouizzi,
564 F.3d 142, 153 (2d Cir. 2009) (finding that
25 the defendant waived his right to appeal when the court
26 presented the defendant with a proposed jury instruction and
27 the defendant agreed that it was satisfactory). When the
28 court indicated that it would order forfeiture of $96,000,
29 defense counsel was told, “[i]f you think that there is
30 something that might demonstrate that I have some authority
31 or basis to order something different, I’ll give you that
32 opportunity.” After conferring with Delgiudice, counsel
33 replied, “[y]our honor, we will accept your judgment on it.”
34
35 Finding no merit in Delgiudice’s remaining arguments,
36 we hereby AFFIRM the judgment of the district court.
37
38 FOR THE COURT:
39 CATHERINE O’HAGAN WOLFE, CLERK
40
3
