U.S. v. Gambino

• Decision Date: 11 February 1997
• Docket Number: No. 197,D,197
• Citation: 106 F.3d 1105
• Parties: UNITED STATES of America, Appellee, v. Matteo GAMBINO; Giuseppe Troia, also known as Joe; Francesco Stabile, also known as Frank; Francesco Mussotto, also known as Franco, also known as Ciccio, and Salvatore Cortesiano, Defendants, Vincenzo Catalano, also known as Sal, Defendant-Appellant. ocket 96-1125.
• Court: U.S. Court of Appeals — Second Circuit

Page 1105

106 F.3d 1105

UNITED STATES of America, Appellee, v. Matteo GAMBINO; Giuseppe Troia, also known as Joe Francesco Stabile, also known as Frank; Francesco Mussotto, also known as Franco, also known as Ciccio, and Salvatore Cortesiano, Defendants Vincenzo Catalano, also known as Sal, Defendant-Appellant.

No. 197, Docket 96-1125.

United States Court of Appeals Second Circuit.

Argued Sept. 12, 1996.

Decided Feb. 11, 1997.

Richard Jasper, New York City (James E. Neuman, New York City, of counsel), for Defendant-Appellant.

Thomas M. Finnegan, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Southern District of New York, Morris J. Panner, Guy Petrillo, Assistant United States Attorneys, New York City, of counsel), for Appellee.

Before: MINER, ALTIMARI, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Defendant Vincenzo Catalano appeals from an order entered in the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge ) sentencing him to sixty months imprisonment for his role in a conspiracy to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846. Catalano contends that the district court erred in refusing to apply the so-called "safety valve" provisions of 18 U.S.C. § 3553(f), which would have allowed Catalano to be sentenced beneath the otherwise applicable sixty-month mandatory minimum for his offense. ¹ The district judge determined that the "safety valve" did not apply because Catalano failed to satisfy the statutory requirement that he "truthfully provide[ ] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." Id. § 3553(f)(5). Finding no error, we affirm.

I. BACKGROUND

Catalano and five codefendants were indicted on September 26, 1994, for heroin trafficking, including conspiracy and money laundering. Nearly a year later, Catalano pleaded guilty to a one-count superseding information charging him and two codefendants with conspiracy to distribute 100 grams or more of heroin. In his plea agreement, Catalano stipulated with the government that the mandatory minimum sentence for his offense was sixty months but that his sentencing range under the United States Sentencing Guidelines (absent the mandatory minimum) would be less. ² Catalano further stipulated with the government that he satisfied the first four elements of the "safety valve" provisions, 18 U.S.C. § 3553(f)(1)-(4), which apply to defendants with minimal criminal history, who did not use violence in the offense or cause death or injury, and who did not play an organizing role in the offense or participate in an ongoing conspiracy. The government and Catalano agreed that Catalano would be eligible for a sentence below the mandatory minimum and within the range set by the Sentencing Guidelines provided he satisfied the final element of the "safety valve," requiring him to render truthful information and evidence regarding his offense and offenses that were part of a common scheme or plan.

The evidence against Catalano led the government to believe that he was involved in a heroin trafficking conspiracy centering around Ray's Pizzeria, a restaurant in New York City formerly operated by Aniello Ambrosio, who was indicted on narcotics charges. The government claimed that Catalano participated in two negotiations for the sale of heroin, one in June of 1992 and another in November of 1992.

As to the June transaction, the evidence against Catalano consisted of conversations between Matteo Gambino and a government informant, Calogero Lore. Gambino met with Catalano one evening at Gambino's pizzeria in Queens, New York, after Gambino told Lore that Gambino would meet with his heroin supplier that night. Gambino also made numerous calls to Catalano's pager after discussing the heroin sale with Lore. Gambino ultimately provided Lore with two heroin samples.

The evidence also pointed to Catalano's involvement in a second heroin negotiation. During October and November of 1992, codefendant Francesco Stabile promised to introduce Lore to his heroin supplier so that Lore could make a purchase. Lore thereafter met with Catalano at a diner in Queens, New York, where Catalano offered to sell Lore 350 grams of heroin for $59,500 and to give Lore the opportunity to purchase additional heroin in the future. Before completing the deal, however, Catalano began to suspect that Lore was working with the police. He did not complete the sale.

At his plea allocution on August 18, 1995, Catalano admitted that between November and December of 1992 he agreed to sell Lore heroin. He did not admit involvement in the June Gambino transaction. Catalano contended that he was not a heroin supplier. He admitted only that he found a supplier for Lore and initially agreed to act as a go-between before declining to complete the sale.

Catalano later attended a proffer meeting on November 8, 1995, with his attorney, the prosecutors, and agents of the Federal Bureau of Investigation. The government questioned Catalano about his heroin trafficking activities, including his role in the June and November transactions; his sources for heroin; his dealings with Ambrosio, his employer at Ray's Pizzeria; and Catalano's dealings with other heroin distributors, including evidence of Catalano making a deal in a wiretap. Catalano claimed to have no involvement in heroin trafficking until late 1992, claimed that he could not recall the name of his heroin supplier, and refused to admit any wrongdoing beyond what he testified to at his plea allocution. When the government questioned him about the calls placed to Catalano's number by Gambino, he asserted that he had no idea what the calls were about. Catalano claimed ignorance of any heroin trafficking at Ambrosio's pizzeria. He also insisted that he had no heroin sources other than a person who once agreed to sell him 350 grams of heroin at a nightclub, whom he could not identify in any detail.

Unsatisfied with Catalano's proffer, the government gave Catalano the opportunity to proffer again. Catalano refused. Accordingly, on January 29, 1996, the government submitted a letter to Judge Baer opposing application of the "safety valve." With respect to each area of Catalano's proffer, the government detailed why it believed Catalano did not tell the truth in light of the evidence against him. The district court granted Catalano a continuance of the sentencing date to allow him to respond to the government's allegations. The court instructed Catalano to "look at the last eight or ten lines on the second page" of the government's letter, where the government stated that Catalano claimed no involvement in heroin trafficking beyond late 1992 and denied any narcotics-related involvement with Gambino.

On February 1, Catalano responded to the government's letter, claiming that he did not regularly deal heroin. He claimed that codefendant Guiseppe Troia was Gambino's supplier, not Catalano. He pointed out that Lore dealt with Gambino directly, that Catalano never completed a sale, and that the substance of conversations between Catalano and Gambino were not recorded by the government. He also denied participating in narcotics trafficking at Ray's Pizzeria. Catalano also challenged the scope of the government's questioning during the proffer, arguing that many of the questions went beyond the scope of the offense to which Catalano pleaded guilty. Although Catalano indicated in a preliminary response to the government's letter that he would seek a hearing "if necessary," ultimately he never did request an evidentiary hearing.

At the February 6 sentencing proceeding, Judge Baer heard further argument from the government and Catalano. For the most part, Catalano reiterated the points made in his February 1 response. At one point in the proceeding, Judge Baer indicated his inclination to believe the government: "They have an understanding of who is telling them the truth. That's essentially their business." Catalano responded: "Yes, judge, but with all due respect, it is part of their business, but they are human and they make mistakes too. Judge, that's why we have a court. That's why we have you. We have a dispute here." In refusing to apply the safety valve, the district judge stated that he had listened to the arguments, reread the probation report and "looked carefully at [Catalano's] letters and th[e] seven page letter from the government." The district judge somewhat ambiguously concluded that "there may be a lot more that you [Catalano] know and there may not be but it does seem to me fairly difficult for you to sustain the position that you are telling us now in light of what the safety valve provision requires.... So I am sentencing you to 60 months without the advantage of the safety valve provision...." This appeal followed.

II. DISCUSSION

A. The Sentencing Proceedings: The District Court's Findings and Catalano's Burden of Proof.

Catalano's argument for reversal turns in large part upon the question of which party shoulders the burden of proving the applicability of the "safety valve," the government or the defendant. This is so because, as Catalano argues, Judge Baer did not make a clear finding that Catalano had been untruthful in his proffer. We agree that the district court's finding is not a model of clarity. However, the district court's finding--"there may be a lot more that you know and there may not be but it does seem to me fairly difficult for you to sustain the position that you are telling us now in light of what the safety valve provision requires"--can be fairly read as an indication by the court that Catalano failed to satisfy the burden of proving the applicability of the safety valve, in light of the government's detailed submission recounting the various ways the government believed that...