U.S. v. Romano
| Decision Date | 07 August 1987 |
| Docket Number | D,No. 1121,1121 |
| Citation | 825 F.2d 725 |
| Parties | UNITED STATES of America, Appellee, v. Richard ROMANO, a/k/a "Richard Dione," a/k/a "Eddie," Defendant-Appellant, Angelo Amen, Mark A. Deleonardis, Patricia Torn, Richard Romano, Michael Paradiso, Edward Margiotta, Oreste Abbamonte, Jr., Defendants. ocket 87-1038. |
| Court | U.S. Court of Appeals — Second Circuit |
Victoria Morgan, Brooklyn, N.Y. (Farber & Miller, Brooklyn, N.Y., of counsel), for defendant-appellant.
Annmarie Levins, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., Steven A. Standiford and Kenneth Roth, Asst. U.S. Attys., S.D.N.Y., New York City, of counsel), for appellee.
Before OAKES, MESKILL and PRATT, Circuit Judges.
This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, Carter, J., following a guilty plea by Richard Romano to one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. Secs. 812 and 841 (1982). Judge Carter denied defendant Romano's request for a hearing to contest portions of the pre-sentence report and sentenced Romano to the maximum term of twenty years imprisonment. The district court based its sentencing decision on evidence developed in a related trial, over which Judge Carter presided, United States v. Vasta, 649 F.Supp. 974 (S.D.N.Y.1986), which showed Romano's involvement with Oreste Abbamonte, Jr. and Michael Paradiso in a heroin distribution ring operating from the Lewisburg penitentiary in Lewisburg, Pennsylvania (Lewisburg). Romano now claims that the district court violated due process by denying his request for a hearing to challenge the report and by imposing the maximum term of imprisonment following his guilty plea. We disagree and affirm the judgment of the district court.
The trial of Abbamonte and Paradiso (the conspiracy trial) developed the following facts. In the summer of 1984, the Drug Enforcement Agency (DEA) began an undercover operation which culminated in the prosecution of several individuals, including defendant Romano, for narcotics violations. The DEA investigation revealed an extensive drug distribution ring operating from Lewisburg. Two participants in the heroin distribution network, Abbamonte and Paradiso, inmates at Lewisburg, controlled the entire operation by using coded language to communicate with operatives outside of the prison. DEA undercover agents, posing as drug purchasers, managed to infiltrate the ring and expose its principals and several of its "foot soldiers."
On August 26, 1986, the government filed an indictment charging fourteen defendants with various counts of conspiracy to distribute, possession and distribution of narcotics. Romano was named in Count One, charging a conspiracy to distribute controlled substances in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A) and 841(b)(1)(B) (1982) (), 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A) and 841(b)(1)(B) (1982 & Supp. III 1985) (subsequent to such amendment), and Count Ten, charging possession with intent to distribute and distribution of controlled substances in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. Sec. 2 (1982). Romano pleaded guilty to Count One. Count Ten was dismissed for lack of jurisdiction.
Prior to Romano's sentencing, the government submitted a pre-sentence report which detailed Romano's involvement in the heroin distribution conspiracy. The pre-sentence report was based in part on evidence adduced at the conspiracy trial before Judge Carter.
The evidence in the conspiracy trial, in which Romano did not participate as a result of his guilty plea, established that Romano was a close criminal associate of Paradiso. Romano, in fact, had been characterized as the "eyes and ears" of Paradiso, carrying out various orders and reporting to Paradiso at Lewisburg. Testimony further established that, at Paradiso's request, Romano began associating with Mark Deleonardis, who was a "lieutenant" in the Abbamonte organization. Romano became deeply involved in Abbamonte's distribution activities, conducting heroin transactions and running other criminal "errands" for both Paradiso and Abbamonte. In one instance, as detailed in the pre-sentence report, Romano was assigned to administer a "beating" to one of Abbamonte's recalcitrant employees, Angelo Amen. The assault never took place, however, because Amen, who had been warned of the plot, avoided returning to his apartment where Romano had been waiting. The government also alleged during trial that Romano played a leading role in the sale of 450 grams of heroin to an undercover agent in mid-August 1985.
In addition to Romano's involvement in the substantive charges of the heroin indictment, the government alleged that Romano had been engaged in other criminal activity. Specifically, the government alleged that Romano had been involved in the hijacking of ten trucks in 1978. According to the pre-sentence report, the hijackings were planned at the Villa Egea, a social club in the Bensonhurst section of Brooklyn, where agents had observed Romano reporting on a daily basis for meetings with Paradiso. Previously, in 1976, Romano pleaded guilty to robbery in the third degree for the hijacking of a pork products truck and was sentenced to five years probation.
The pre-sentence report also contained allegations that Romano was involved in Paradiso's extortion business in 1980 and 1981. According to the report, Romano had been present during the planning of an extortion scheme targeted at an eighty year old businessman. The conspirators apparently contemplated the use of a propane torch to secure acceptance of their extortionate demands. In 1981, Paradiso was convicted for his extortion activities but Romano was never prosecuted.
At sentencing, Romano's attorney indicated that portions of the pre-sentence report were disputed and that Romano denied several of the allegations. Specifically, Romano denied the beating attempt involving Angelo Amen, denied all participation in hijacking activities and denied the extortion and planned attack on the elderly businessman. Counsel for Romano requested a hearing at which evidence could be presented to refute the government's allegations. Judge Carter summarily denied Romano's request, stating "[a]gain, the matter that I'm considering with Mr. Romano is what I have learned at this trial in regard to his participation in this crime." App. at 92-93. The court then sentenced Romano to the maximum term of twenty years imprisonment. This appeal followed.
Romano's principal claim is that Judge Carter erred in denying him an opportunity to contest the evidence of his involvement in the heroin conspiracy. This evidence was presented at the conspiracy trial itself and was contained in the pre-sentence report. According to Romano, the evidence was inherently unreliable because he was not present at the earlier trial and thus did not have an opportunity to cross-examine witnesses or otherwise participate in the trial. Romano, therefore, claims that the sentencing procedures utilized by Judge Carter in this case violated procedural due process. We disagree.
As a general rule, a district judge has discretion to consider a wide range of information concerning a defendant's background in arriving at an appropriate sentence. See United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir.1987); United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir.1986). Thus, a district judge may consider hearsay statements, evidence of uncharged crimes, dropped counts of an indictment and criminal activity resulting in an acquittal in determining sentence. See Pugliese, 805 F.2d at 1122 (citing cases). Evidence of Romano's participation in the conspiracy ring was directly relevant to Judge Carter's sentencing determination. Consideration of such evidence "does not in and of itself offend a defendant's due process rights." Lee, 818 F.2d at 1055.
However, a defendant does have "a due process right to question the procedure leading to the imposition of his sentence." United States v. Pugliese, 805 F.2d at 1122 (citing Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977)). Due process requires that a defendant be given an opportunity to assure the accurate presentation of reliable sentencing information to the district court. A defendant, therefore, may not be sentenced on the basis of "materially untrue" statements or "misinformation." Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). Congress, for example, has provided in Fed.R.Crim.P. 32(c)(3)(A) that a defendant and his counsel must be given an opportunity to review a pre-sentence report and provide comment to ensure that the "report [is] completely accurate in every material respect." H.R.Rep. No. 247, 94th Cong., 1st Sess. 18, reprinted in 1975 U.S.Code Cong. & Admin.News 674, 690. Thus, to the extent that Judge Carter relied on information presented at the trial of Abbamonte and Paradiso and other information contained in the pre-sentence report, Romano was entitled to contest the accuracy of that information under the Due Process Clause.
The question of what process is due in sentencing is separate and distinct from the question of whether due process is required. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Due process does not require the observance of rigid procedures in every case where a defendant seeks to challenge pre-sentence information. See Pugliese, 805 F.2d at 1123. It is well established, for instance, that a defendant has no right to a...
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