U.S. v. Fatico

• Decision Date: 13 August 1979
• Docket Number: Nos. 1092-93,D,s. 1092-93
• Citation: 603 F.2d 1053
• Parties: UNITED STATES of America, Appellee, v. Daniel FATICO, Appellant. ockets 79-1100, 79-2042.
• Court: U.S. Court of Appeals — Second Circuit

Page 1053

603 F.2d 1053

UNITED STATES of America, Appellee, v. Daniel FATICO, Appellant.

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

United States Court of Appeals, Second Circuit.

Argued June 5, 1979.

Decided Aug. 13, 1979.

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 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

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.

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 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" ⁶ under Correction Authority and Parole Board decisions, with resultant confinement in a high security facility and ineligibility for certain rehabilitative programs, early parole, ⁷ and other privileges. ⁸ See generally Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975).

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.

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

DISCUSSION

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 undisclosed informers supplied.

3. Under the trial court's "clear, unequivocal and convincing evidence" standard, there was insufficient evidence that appellant was a "made" member or an important figure in the upper echelons of the Gambino family.

4. The proper burden of proof was upon the Government and in any event was "beyond a reasonable doubt."

5. Appellant was entitled to Jencks Act or "3500" material, Viz., prior statements of the law enforcement agents testifying at the sentencing hearing.

The first point has been answered adversely to appellant in Fatico I, supra, and by the line of cases in note 8 Supra.

On the second point there was more than ample evidence to corroborate under Fatico I, supra, 579 F.2d at 713, the information that the undisclosed informers supplied. We suggested in Fatico I that sufficient reliability was apparent from corroboration by testimony of the two coconspirators, the nature of the crime itself (armed hijacking of valuable truck loads requiring sophisticated fencing through quasi-legitimate and criminal business groups, of which Judge Weinstein had earlier taken judicial notice, 441 F.Supp. at 1288), and in-court testimony of those who observed appellant and his brother associating with members of the Gambino family. Although Judge Weinstein rejected the testimony of the coconspirators as essentially unreliable, 458 F.Supp. at 412, and did not refer at all to the nature of the crime itself, he found "highly probative" the testimony of "seven different government agents, four of them from the FBI, relying on a total of seventeen independent informants." As he put it so well, "Even if one or several of these experienced agents miscalculated the reliability of an informant, the large number of agents and informants . . . greatly reduces the margin for error." Id. Appellant argues that quantity may not make up for quality of evidence. But under Williams v. New York, supra, as well as Fatico I, hearsay evidence is admissible if reliable. And although it is also possible that ten persons who have heard the same rumor may each be wrong, here we recognize that there are other independent facts, including personal observations and the nature of the crime itself, that go to corroborate the informers' statements.

The third argument is somewhat more pointed. Appellant argues that the evidence did not show that he was a "made" member of the Gambino family. According to the testimony appellant was one of some 1,100 "made" "soldiers" or "buttons" in the Gambino family. One of the informers, who a retired FBI agent testified was himself a "reliable, long active and highly placed member of the Gambino family," 458 F.Supp. at 392, told the agent on Easter Sunday 1978 that the Fatico brothers had been such members for over twenty years. There was much other testimony to the same effect as well as testimony that the Fatico brothers, operating with a crew of associates out of the Bergen Hunt and Fish Club in Ozone Park, New York, ran gambling, loan sharking, truck hijacking, and other illegal enterprises which are frequently a hallmark of organized crime.

On the fourth point, we do not agree that the burden of proof on the Government should be "beyond a reasonable doubt." Such a standard would turn sentencing hearings into second trials. As Judge Friendly said of sentencing hearings in Hollis v. Smith, 571 F.2d 685, 693 (2d Cir. 1978), although expressly noting Judge Weinstein's opinion leading to Fatico I, 441 F.Supp. 1285, "(t)here is no authority binding upon us which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to...