Government appeal from an order of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, prohibiting introduction of hearsay evidence in a sentencing proceeding on Due Process and Confrontation Clause grounds. Reversed on the basis that use in sentencing of information supplied by an unidentified informant where there is good cause for nondisclosure of his identity and the information he furnishes is subject to corroboration by other means does not infringe either constitutional guarantee.
Feinberg, Mansfield and Oakes, Circuit Judges.
This is an unusual interlocutory appeal by the United States from a unique order excluding evidence sought to be introduced at a sentencing hearing. The evidence, which revealed that the convicted defendants were connected to organized crime, was to be presented principally by an FBI agent's testimony. The offer was made that he would testify that a reliable but confidential informant who is a member of the Carlo Gambino crime family told the agent that the defendants are members of that family. The testimony was excluded by the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, as hearsay involving Due Process and Confrontation Clause limitations. United States v. Fatico, 441 F. Supp. 1285 (E.D.N.Y. 1977). Our jurisdiction is invoked under 18 U.S.C. § 3731. We reverse, holding that the case is appealable and that neither the Confrontation nor the Due Process Clause is violated by use in sentencing of information supplied by an unidentified informant where there is good cause for not disclosing his identity, and the information he furnishes is subject to corroboration by other means.
Carmine and Daniel Fatico were indicted in connection with a series of truck hijackings. After a mistrial was declared due to a jury deadlock,*fn1 they pleaded guilty to and were convicted of one count of conspiracy to possess a quantity of furs stolen from a foreign shipment.*fn2 They face maximum sentences of five years' imprisonment and $10,000 fines. 18 U.S.C. § 371. Prior to sentencing, defendants objected to statements in the presentence reports identifying them as "made" members of the Gambino organized crime family and important figures in the upper echelon of organized crime activity. The Government then offered to support its allegations at a sentencing hearing by the testimony of the former head of the FBI's Organized Crime section in the New York office, based upon information furnished to him by a reliable confidential informant, allegedly a member of the Gambino Family. The Government objected to disclosure of the confidential source for the obvious reasons that both his life and usefulness as an informant would be jeopardized. However, the Government proffered additional evidence to corroborate the informant, consisting of the testimony of two coconspirators who turned Government's evidence in the trial and who are under the Government witness protection program,*fn3 as well as other evidence set forth in the margin.*fn4
The district court took judicial notice, Fed. R. Evid. 201, that major hijacking gangs have been preying on Kennedy Airport, and acknowledged that there was substantial evidence of organized crime's involvement because sophisticated fencing techniques are utilized in these operations. It stated that membership in and ties to professional criminal groups are material facts that should be considered in sentencing,*fn5 and it noted that the rules of evidence, other than those involving privileges, do not apply in sentencing proceedings. Fed. R. Evid. 1101(d)(3). The district court further recognized that the Government cannot and will not reveal informers' identities because of past murders of informants who implicated organized crime members. Nevertheless, Judge Weinstein concluded that the Fifth Amendment right to due process and the Sixth Amendment right of confrontation would both be violated by introduction of the FBI agent's testimony since the credibility of the informant and the reliability of his information could not be meaningfully attacked through extrinsic evidence or cross-examination.
Appeals by the United States from the suppression of evidence at a sentencing hearing are permissible within the constraints of 18 U.S.C. § 3731, as amended in 1971.*fn6 Pub. L. No. 91-644, Tit. III, § 14(a), 84 Stat. 1890 (1971). The language of the statute appears to permit the present interlocutory appeal. The "decision or order" below was one "suppressing or excluding evidence" and it was "not made after the defendant [had] been put in jeopardy and before the verdict";*fn7 construing the statute to permit only appeals of pretrial suppression or exclusion orders would render the language "and before the verdict" superfluous. Additionally, § 3731 calls for liberal construction in effectuating its purposes.*fn8 Although the statute itself does not delineate these purposes, the Senate Report accompanying the 1971 amendments clearly indicates that an appeal such as is here involved was within the contemplation of Congress:
On occasion a Federal court requires the suppression of evidence in connection with a probation revocation hearing, a hearing on a motion for a new trial based on newly discovered evidence, a sentencing proceeding, or other criminal proceeding. While there are sound reasons for believing that any judge making such an order may be acting ultra vires in terms of the purposes of such a hearing, and thus may be subject to a petition for a writ of mandamus to correct his action, S. 3132 is designed to obviate any such problems by affording the Government a certain and efficient remedy through the right to appeal.
S. Rep. No. 91-1296, 91st Cong., 2d Sess., at 12 (1970) (footnotes omitted) (emphasis added). The report continues:
The amended Criminal Appeal Act is intended to be liberally construed so as to effectuate its purpose of permitting the Government to appeal from dismissals of criminal prosecutions by district courts in all cases where the Constitution permits, and from all suppressions and exclusions of evidence in criminal proceedings, except those ordered during trial of an indictment or information. S. 3132 places on the face of section 3731 an explicit expression of this intent, in view of the restrictive judicial interpretations of congressional intent which have resulted from the histories of the earlier versions of section 3731 despite strong indications in the debate on the 1907 act that it should be broadly interpreted.
Id. at 18 (footnotes omitted).
Accordingly, we hold that the order is ...