U.S. v. Lee

• Decision Date: 18 May 1987
• Docket Number: No. 537,D,537
• Citation: 818 F.2d 1052
• Parties: UNITED STATES of America, Appellee, v. Daniel LEE, a/k/a "Monkey", Appellant. ocket 86-1346.
• Court: U.S. Court of Appeals — Second Circuit

Page 1052

818 F.2d 1052

55 USLW 2691

UNITED STATES of America, Appellee, v. Daniel LEE, a/k/a "Monkey", Appellant.

No. 537, Docket 86-1346.

United States Court of Appeals, Second Circuit.

Argued Dec. 9, 1986.

Decided May 18, 1987.

David Gordon, New York City, for appellant.

Steven A. Standiford, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y.; Bruce A. Green, Asst. U.S. Atty.; Nancy E. Ryan and Ellen M. Corcella, Sp. Asst. U.S. Attys., New York City, of counsel), for appellee.

Before OAKES, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge:

On this appeal we are called upon to decide for the first time whether there should be a burden of proof established--and, if so, what burden--for disputed allegations in presentence reports. This is a matter of some significance since the great majority of defendants plead guilty and are sentenced based upon information contained in such reports. To decide these questions we must take into account and fairly resolve the tension between due process, which stands like a tower guarding the boundaries of individual rights at sentencing, and broad judicial discretion that tends on occasion to encroach on those boundaries. In concluding that there should be a definite standard of proof and that the standard should be preponderance of the evidence, we believe the differing interests these concepts signify--protection of individual rights versus the prompt and efficient administration of criminal justice--have been fairly reconciled.

Daniel Lee appeals from a judgment of conviction of July 31, 1986 insofar as it imposed sentence on him after his guilty plea entered in the Southern District of New York before District Court Judge Robert W. Sweet. Appellant was charged in an indictment together with 24 co-defendants for violations of the Racketeer Influenced and Corrupt Organization Act

(RICO), 18 U.S.C. Secs. 1961, 1962(c), (d) (1982). The principal claim raised on appeal is that when the district court sentenced appellant it relied on a finding that he participated in a particular racketeering act that he had denied committing. Such finding, Lee argues, was predicated on inadmissible hearsay statements in a presentence report without proof beyond a reasonable doubt or by clear and convincing evidence. Because a 20-year sentence was imposed based on that finding, appellant contends that his right to due process of law was thereby violated. For the reasons stated below, we find no such deprivation. Hence we affirm.

I BACKGROUND

From 1971 to late 1982 a violent Chinese youth gang known as the "Ghost Shadows" terrorized the inhabitants and business people in Manhattan's Chinatown. During that 11-year period the Ghost Shadows were charged with committing 13 murders and numerous other violent acts including robbery, kidnapping and extortion. As a result of intense police and prosecutorial effort, an indictment was filed in April 1986 charging numerous Ghost Shadows including appellant Lee with RICO violations. The indictment consisted of 12 counts. Count one set forth 85 separate acts of racketeering that identified--as part of the pattern of racketeering activity--each substantive crime and the individual defendants charged with committing it. Count two charged all 25 defendants with being members of the enterprise (Ghost Shadows) and, as such, conspiring to conduct the affairs of the enterprise through a pattern of racketeering activity. The other counts of the indictment related to various other defendants, not including Lee.

In count one appellant was charged with being a "senior member" of the Ghost Shadows and committing five racketeering acts as follows: Act I charged Lee and all of his co-defendants with extortion and conspiracy to extort money, goods and services from stores, businesses and restaurants in and around Chinatown in Manhattan between 1977 and 1982; Act 2 charged that Lee and his co-defendants conducted, managed and supervised illegal gambling businesses in Chinatown between 1975 and 1982; Act 25 charged Lee and other defendants with extortion and conspiracy to extort money from the Golden Boat restaurant and nightclub in 1978 and 1979; Act 37 charged Lee and other members of the Ghost Shadows with conspiracy to kill members of a rival Chinatown gang; Act 53 charged that in January 1980 Lee and three other Ghost Shadows, acting on instructions from a gang leader, kidnapped two young men from Manhattan's Chinatown, drove them to Brooklyn and there murdered them.

Lee plead guilty before Judge Sweet on April 30, 1986 to counts one and two of the indictment. In his plea Lee admitted committing only two of the five acts with which he was charged in count one. He stated that he had supervised illegal gambling as charged in Act 2 and had extorted money from the Golden Boat restaurant as alleged in Act 25. Lee was sentenced on July 31, 1986. Prior to that date, the government submitted a letter to the sentencing court in which it recommended that appellant be given a 40-year sentence. The reasons advanced for this heavy penalty were Lee's status as a "senior" member of the organization, his prior record of felony convictions, and the five racketeering acts charged in the indictment, "one of which was a double murder." The government also furnished the court and defense counsel with an extensive 46-page sentencing memorandum. The first half of that report describes the history, structure and operation of the Ghost Shadows generally. The second half dealt with appellant specifically. The latter portion of this memorandum described the nature and extent of Lee's involvement with the Ghost Shadows, his prior criminal record, and gave details concerning the particular racketeering acts charged against him in the present indictment.

The district court concluded at the sentencing hearing that Lee had participated in the double murder charged in Act 53 of count one and--acknowledging that "this major consideration does affect the punishment

to be meted out"--imposed the maximum 20-year sentence following appellant's guilty plea to count one. The four-year consecutive sentence resulted from appellant's guilty plea to conspiracy charged in count two.

II GENERAL CONCEPTS AT SENTENCING

On appeal, Lee contends that the district court violated his due process rights by setting a sentence predicated on the insufficiently proven finding that he participated in a double murder. Appellant argues that a sentencing court cannot make a finding from information contained in a presentence report unless there is before it proof beyond a reasonable doubt or at least by clear and convincing evidence. In this case, he asserts, his participation was not even demonstrated by a preponderance of the evidence. Thus, the issue is whether the district court had before it sufficient evidence to justify its finding that Lee participated in a crime infinitely more serious than those to which he admitted in his guilty plea.

A. Judicial Discretion and Due Process Concerns

Within the frame of procedural due process, a district court judge's discretion when imposing sentence is "largely unlimited either as to the kind of information he may consider, or the source from which it may come." See United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Any circumstance that aids the sentencing court in deriving a more complete and true picture regarding the convicted person's background, history, or behavior is properly considered. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976). For that reason, hearsay statements, other crimes for which the defendant was neither tried nor convicted, and crimes charged that resulted in acquittal may be used by the sentencing court in determining sentence. See United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir.1986). Thus, for the sentencing court to consider such unlimited kinds of information--clearly including Lee's unadmitted participation in a double murder--does not in and of itself offend a defendant's due process rights.

Yet, because sentencing is a critical stage in a criminal proceeding a convicted defendant standing before a sentencing judge still remains wrapped in his right to procedural due process, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and may question the procedure leading to the imposition of his sentence. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (plurality opinion). Due process is violated when the information on which the defendant is sentenced is "materially untrue" or is, in fact, "misinformation." See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). Congress has recently made it plain that since district courts rely heavily on presentence reports, they must "be completely accurate in every material respect." H.R.Rep. No. 247, 94th Cong., 1st Sess. 18, reprinted in 1975 U.S. Code Cong. & Ad. News 674, 690. From this it follows that a sentencing court is required to assure itself that the information upon which it relies when fixing sentence is reliable and accurate. United States v. Pugliese, 805 F.2d at 1124.

B. What Process is Due

Having briefly explored a defendant's right to question the procedure used at his sentencing and the broad discretion of the sentencing court, we consider what process is due a guilty defendant at sentencing. To answer that question we must balance (1) the nature of the individual interest, (2) the risk of an erroneous deprivation of that interest through the procedure used, (3) the value of additional safeguards, and (4) the government's interest, including fiscal and administrative burdens. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Obviously, appellant Lee's interest in his sentence...