603 F.2d 1053 (2nd Cir. 1979), 1092-93, United States v. Fatico

Docket Nº:1092-93, Dockets 79-1100, 79-2042.
Citation:603 F.2d 1053
Party Name:UNITED STATES of America, Appellee, v. Daniel FATICO, Appellant.
Case Date:August 13, 1979
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1053

603 F.2d 1053 (2nd Cir. 1979)

UNITED STATES of America, Appellee,

v.

Daniel FATICO, Appellant.

Nos. 1092-93, Dockets 79-1100, 79-2042.

United States Court of Appeals, Second Circuit

August 13, 1979

Argued June 5, 1979.

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Michael Rosen, Saxe, Bacon & Bolan, P. C., New York City (Roy M. Cohn and Howard F. Husum, New York City, of counsel), for appellant.

Paul F. Corcoran, Sp. Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. New York, and Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before OAKES and MESKILL, Circuit Judges, and STEWART, District Judge. [*]

OAKES, Circuit Judge:

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.

THE FACTS

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, 1 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. 2 Thus we stated that

Due Process does not prevent use in sentencing of out-of-court declarations by an

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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. 3

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, 4 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, 5 said: "While we must remain dubious of any conclusions based

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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...

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