United States v. Zuber
Opinion of the Court
OPINION
Appellants present one common issue: whether a “strike force” prosecutor appointed under the special provisions of 28 U.S.C. § 515(a), is properly an “attorney for the government” within the meaning of Fed.R.Crim.P. 6(d).
Appellants rely on the reasoning of United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y. 1975). We are not persuaded that this is the correct view of the law; nor, apparently, is the Second Circuit which has recently reversed the district court, 517 F.2d 1395 (2d Cir. 1975), and rejected the Crispino rationale in In re Subpoena of Persico, 522 F.2d 41 (2d Cir. 1975). Therefore, we reject appellants’ contention and affirm their convictions.
One of the appellants, San Filippo, raises another issue: whether, in his case, the court followed Fed.R.Crim.P. 11 in accepting his guilty plea. Rule 11, among other things, requires the presiding judge to determine that there is a factual basis for a guilty plea before entering judgment. Our reading of the transcript convinces us that the plea was voluntarily and intelligently made, but that there was a serious question about the factual basis for the plea. San Filippo denied the truth of the prosecutor’s summary of the “facts” of the case. He
Count One of the indictment, the one here at issue, alleges conspiracy to violate 18 U.S.C. § 2314 (interstate transportation of stolen goods). Especially in light of San Filippo’s denial of “going down with this group of individuals”, there does not appear to be a factual basis for a guilty plea. The court apparently was satisfied that if defendant San Filippo loaned the junket $10,-000, knowing that the participants were impostors, he was part of the conspiracy; but defendant’s admission of that fact is ambiguous to say the least, since he also claimed, “What I gave them and what I signed for, actually they owed me $500.” There is serious question about the natu i of the $10,000 transaction and about defendant’s actually admitting facts which would have supported a conviction.
Tue convictions of all defendants except San Filippo are affirmed. San Filippo's judgment is vacated and remanded for further proceedings consistent with Rule 11.
Reference
- Full Case Name
- United States v. Edward Alfred ZUBER, Appellant UNITED STATES of America v. Howard FINKELSTEIN, Appellant UNITED STATES of America v. Dino GIAMBRONE, Appellant UNITED STATES of America v. Charles \Lamb Chop\" SAN FILIPPO"
- Cited By
- 6 cases
- Status
- Published