1

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

New York, on the 20th 4 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.

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 10-0677

17

18 RICHARD DELGIUDICE, 

19 Defendant-Appellant.

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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.
2

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
3

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

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