United States v. Fatico, 76-CR-81.

Citation458 F. Supp. 388
Decision Date27 July 1978
Docket NumberNo. 76-CR-81.,76-CR-81.
PartiesUNITED STATES of America, Plaintiff, v. Daniel FATICO, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

COPYRIGHT MATERIAL OMITTED

David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Robert J. Lynn, Sp. Atty., U. S. Dept. of Justice, Organized Crime Task Force, Paul F. Corcoran, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for plaintiff.

Saxe, Bacon & Bolan, New York City (Roy M. Cohn, Michael Rosen, Ronald F. Poepplein, New York City, of counsel), for defendant.

                              TABLE OF CONTENTS                 Page
                    Introduction                                 390
                I.   Facts                                       391
                     A. Prior Proceedings                        391
                     B. Sentencing Hearing                       391
                     C. Daniel Fatico                            394
                     D. Judicial Notice—Organized Crime          395
                II.  Law                                         396
                     A. Sentencing                               396
                        1. Critical Stage of Criminal Process    396
                        2. Presentence Report                    396
                        3. Due Process Limitations on
                           Sentencing                            397
                        4. Protections Not Afforded the
                           Defendant                             398
                           a. The Right of Confrontation         398
                           b. Unavailability of Prior
                              Statements                         399
                     B. Liberty Interest of Defendant at
                        Sentencing                               400
                        1. In General                            400
                        2. "Special Offender" Status             401
                     C. Burden of Proof                          402
                        1. The Continuum                         402
                           a. Burdens in General                 402
                           b. Preponderance of the Evidence      403
                           c. Clear and Convincing Evidence      404
                           d. Clear, Unequivocal and Convincing
                              Evidence                           405
                           e. Proof Beyond a Reasonable
                              Doubt                              405
                        2. Preponderance Standard of the
                           "Dangerous Special Offenders"
                           Act                                   406
                        3. Higher Sentence Based on Proof
                           of a Fact Not Established in
                           Criminal Trial                        408
                III. Facts Applied to Law                        412
                     Conclusion                                  412
                
MEMORANDUM

WEINSTEIN, District Judge.

In view of prior proceedings, see United States v. Fatico, 441 F.Supp. 1285, 1287 (E.D.N.Y.1977), reversed, 579 F.2d 707 (2d Cir. 1978), the key question of law now presented is what burden of proof must the government meet in establishing a critical fact not proved at a criminal trial that may substantially enhance the sentence to be imposed upon a defendant. There are no precedents directly on point.

The critical factual issue is whether the defendant was a "made" member of an organized crime family. Clear, unequivocal and convincing evidence adduced by the government at the sentencing hearing establishes this proposition of fact.

I. FACTS
A. Prior Proceedings

Defendant was indicted with others for receiving goods stolen from interstate commerce during three hijackings of trucks from Kennedy Airport. 76-CR-80, 76-CR-81 and 76-CR-218 (E.D.N.Y.). At his initial trial on indictment 76-CR-218 the jury failed to agree. Defendant then entered a guilty plea to the conspiracy charge in indictment 76-CR-81 in satisfaction of all charges in the three pending cases. He now faces a maximum penalty of five years imprisonment and a $10,000 fine. 18 U.S.C. § 371.

Prior to sentencing, the defendant objected to suggestions in the presentence reports that he has strong ties to organized crime and is a "made" member of the "Gambino Family," reputedly a mafia-like group. The United States offered to support the allegation at a sentencing hearing. It proposed to rely on the testimony of an FBI agent based upon information furnished to him by a confidential informant whose identity would not be revealed.

Agreeing with the government that disclosure would imperil the life of the informer, this court nevertheless refused to hear the FBI agent's testimony, noting that "for the court, without disclosure, to rely upon such untested evidence in a situation such as the one before us would violate the Fifth Amendment right to Due Process and the Sixth Amendment right of Confrontation." United States v. Fatico, 441 F.Supp. 1285, 1289 (E.D.N.Y.1977). The Court of Appeals reversed, "holding that . . . neither the Confrontation nor the Due Process Clause is violated by use in sentencing of information supplied by an unidentified informant where there is good cause for not disclosing his identity, and the information he furnishes is subject to corroboration by other means." United States v. Fatico, 579 F.2d 707 at 708 (2d Cir. 1978). The additional evidence proffered by the Government to corroborate the informant consisted of the testimony of two unindicted co-conspirators, Salvatore Montello and Manuel Llauget, independent observations of police officers, and the defendant's criminal record. 579 F.2d at 709-710 & nn. 3, 4. In view of the Government's corroborative evidence, the Court of Appeals held that "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." Id. at 713.

The Court of Appeals accepted, and neither party challenges, this court's judgment that "membership in and ties to professional criminal groups are material facts that should be considered in sentencing." 579 F.2d at 710 & n. 5. It expressed "no views on the sentence ultimately to be imposed," id. at 714 n. 17, and indicated 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.

B. Sentencing Hearing

Pursuant to the Court of Appeals' directive, an evidentiary sentencing hearing was held to determine whether, as reported in the pre-sentence report, the defendant was a "made" member of the Gambino family or otherwise involved in organized crime. The Government called ten witnesses. The defendant did not call any. In its original proffer, the Government had stated that one FBI agent would testify about information supplied to him by one reliable informant. At the hearing, the Government produced seven law enforcement agents— both federal and state—who testified that seventeen different informants had independently told them that the defendant and his brother, Carmine Fatico, a codefendant, were "made" members of the Gambino family.

Government witnesses painted a composite portrait of extensive organized crime activity in the New York City area. Briefly summarized, the following general conclusions of law enforcement agencies emerged during the course of the hearing. There are five active organized crime families operating in the greater metropolitan area: The Colombo family; the Lucchese family; the Genovese family; the old Bonana family and the Gambino family. Transcript at pp. 32-33, 177-78. At the top of each family is the Boss. Directly underneath the Boss is the Underboss, or executive officer. Next in line is the Counselor, or "Consiglier," who helps "keep the peace." Transcript at pp. 29-30, 176, 183. The organization then branches out with tens of "Capos," or "lieutenants," at the next level. The Capos, in turn, direct a substantial network of "soldiers"—numbering in the hundreds, depending upon the size of the family. The soldiers, all of whom are officially initiated, full-fledged members of the crime family, are variously referred to as "buttons," "made-men," "nice fellows," or "good guys." Transcript at pp. 29-32, 89-92, 176. Beneath the "soldiers" are the "non-member associates," affiliated with the family, but not "made"—that is, initiated into the family. Transcript at pp. 31-32, 176-77. Each capo has a social club or headquarters which serves as a meeting place for family members and associates in a particular territory. Transcript at p. 181.

According to one witness, Aniello Dellacroce is now the boss of the Gambino family; Paul Castellano is the underboss and Joseph N. Gallo is the consiglier. The Gambino family now has at least twenty capos, including Carmine Fatico. Spread across the Eastern seaboard from Rhode Island to Florida and inland as far as Detroit there are allegedly some 1100 soldiers. Defendant is a "made" soldier. Transcript at pp. 177-85. The principal activities of the Gambino family are said to be loan sharking, hijacking, narcotics, gambling and extortion. Transcript at p. 32.

The first Government witness, Joseph Fanning, is a recently retired FBI agent with 27 years experience. Mr. Fanning spent the past sixteen or seventeen years on organized crime matters, most recently as a member of the Long Island Special Task Force on Organized Crime. For the past two years, he worked with someone who had informed since 1966-67. Fanning described the informant as a reliable, long active and highly placed member of the Gambino family. Transcript at pp. 9, 11, 20. On Easter Sunday 1978 the informant told him that both Daniel and Carmine Fatico had been members of the Gambino family for over twenty years. Transcript at pp. 12-13.

Martin Boland, an FBI agent for some fifteen years, had spent almost ten years in the New York Organized Crime Division. He had contact with another informant. First developed in 1971-72 and considered reliable by Boland (Transcript at pp. 26-27), the informant told this agent that Daniel Fatico was the brother of Carmine Fatico and worked under him as a "button." Transcript at p. 35. The two brothers reportedly specialized in hijacking and gambling. Transcript at p. 38.

Another FBI agent, Joseph F. Keating, testified that he...

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