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United States v. Fatico

decided: August 13, 1979.


Appeal from a sentence imposed under 18 U.S.C. § 371 in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, following appellant's plea of guilty to charges of conspiring to receive goods stolen from interstate commerce. Held, the sentence is affirmed because reliance in sentencing on information from undisclosed informers was not a violation of due process, because there was sufficient corroboration of their information and sufficient evidence that appellant was a member of organized crime, and because the Government was not required under 18 U.S.C. § 3500 to disclose in the sentencing proceeding prior statements of law enforcement officers.

Before Oakes and Meskill, Circuit Judges, and Stewart, District Judge.*fn*

Author: Oakes

This is the second appeal in connection with appellant's sentencing. The court imposed the sentence, four years' imprisonment to be served consecutively to another sentence imposed for a different crime, appeal as to which is pending, after a plea of guilty in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge. The plea was to a conspiracy charge under 18 U.S.C. § 371 as a result of the hijacking of three trucks and their contents from John F. Kennedy Airport in violation of 18 U.S.C. § 659. Both appeals have arisen out of challenges by appellant's counsel to statements or suggestions in the presentence reports that appellant has strong ties to organized crime and is a "made" member of the Gambino organized crime family.


Precipitating the first appeal, which was by the Government, was Judge Weinstein's holding that, although membership in and ties to organized crime are material facts to be considered in sentencing,*fn1 he would exclude as hearsay involving Due Process and Confrontation Clause limitations any evidence presented through an agent of the Federal Bureau of Investigation (FBI) from a reliable but confidential informer who was allegedly a member of the same New York organized crime "family." United States v. Fatico, 441 F. Supp. 1285 (E.D.N.Y.1977). This court agreed that "(t)he Due Process Clause is plainly implicated at sentencing," United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978) (Fatico I ), but noted generally that it did not necessarily follow that Due Process required all the procedural safeguards and strict evidentiary limitations of the criminal trial itself. And we held specifically that Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949), permitting reliance on hearsay information even though the defendant could not confront or cross-examine the witnesses who supplied the information, was still viable despite Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (plurality opinion), which held that Due Process guaranteed against the imposition of the death penalty on the basis of information not disclosed at all.*fn2 Thus we stated that

Due Process does not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. Thus, the trial court erred in excluding the agent's testimony about the informer's declaration once the Government represented that it would produce the specified corroboration.

579 F.2d at 713 (footnotes omitted). Accordingly, we reversed the district court's exclusion of the evidence and remanded the cause for sentencing proceedings, but at the same time specifically stated that "the weight given to the informer's declarations and the assessment of credibility are matters for the sentencing court." Id. at 713 n.14.*fn3

On remand, the district court held an evidentiary sentencing hearing at which the Government called ten witnesses, seven of whom were law enforcement agents (four with the FBI). The law enforcement officers' testimony indicated that seventeen different informers had told them that appellant and his brother were long-time, active members of the Gambino family. The Gambino family is one of the five active organized crime families operating in the greater New York City metropolitan area. There was also information to the effect that appellant was a "made" member, that is, one who has officially been initiated as a full-fledged member of the family, not born into it but not merely associated with it. Largely on the strength of this testimony,*fn4 which the court found "highly probative," United States v. Fatico, 458 F. Supp. 388, 412 (E.D.N.Y.1978), the court, after numerous holdings of law,*fn5 said: "While we must remain dubious of any conclusions based upon hearsay, the Government's proof here meets the rigorous burden of "clear, unequivocal and convincing evidence.' The probability is at least 80% That defendant is an active member of an organized crime family." Id.

The court then sentenced appellant to four years' imprisonment out of a maximum of five, 18 U.S.C. § 371, to run consecutive to a three-year sentence imposed in the Eastern District on a federal gambling charge, 78 Cr. 19-1 (E.D.N.Y.), a conviction now on appeal. Doing so, however, the court stated that "(w)ere it not for the organized crime issue, defendant would have been sentenced in the hijacking case to no more than a three year term, concurrent with the gambling sentence." 458 F. Supp. at 412. The court went to some length to point out how the organized crime characterization was very likely to have a number of serious ramifications for appellant in prison, including designation as a "special offender"*fn6 under Correction Authority and Parole Board decisions, with resultant confinement in a high security facility and ineligibility for certain rehabilitative programs, early parole,*fn7 and other privileges.*fn8 See generally Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975).

We affirm the decision below imposing sentence by no means, however, endorsing all the rules of the district court.


Appellant raises five points on appeal:

1. The court's admission of evidence based on information derived from undisclosed informers coupled with the Government's refusal to provide counsel with "3500" material, 18 U.S.C. § 3500, denied appellant due process.

2. Under Fatico I, supra, there was insufficient evidence to corroborate the information that the ...

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