United States v. Inendino

Decision Date21 September 1978
Docket NumberNo. 78 CR 70.,78 CR 70.
Citation463 F. Supp. 252
PartiesUNITED STATES of America v. James INENDINO.
CourtU.S. District Court — Northern District of Illinois

Robert D. Rose, Asst. U. S. Atty., Chicago, Ill., for the Government.

Julius Echeles, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

DECKER, District Judge.

On June 12, 1978, the defendant, James Inendino, was found guilty by a jury of violation of 18 U.S.C. § 371 and 18 U.S.C. § 2313. On June 13, 1978, the court was informed that a petition for dangerous special offender sentencing under 18 U.S.C. § 3575 had been filed by the government on May 19, 1978. Chief Judge Parsons ordered the petition suppressed until a judgment was entered.

The defendant filed various motions in response to the petition: motion to dismiss the petition; motion to strike certain portions of the petition; motion to transfer to the presiding judge for reassignment; and motion to strike and dismiss for improper disclosure of the petition. These motions were denied for the reasons stated at the time of ruling. However, inasmuch as the first two motions raised constitutional challenges to the dangerous special offender sentencing procedure, the court indicated that the objections were preserved and would be the subject of a later written opinion. This memorandum opinion and order fulfill that promise—the constitutional issues will be discussed in Part A.

In accordance with § 3575(b), a hearing was held on July 14 and 19, 1978. The defendant was present with counsel, and fully participated in the hearing through cross-examination and the opportunity to present witnesses or any other evidence. The defendant has moved to suppress evidence presented at the hearing which was secured from wiretaps. This motion will be discussed in Part B herein. In Part C, the court will set forth the findings and reasons as required by § 3575(b).

A. Constitutional Objections.

The defendant has raised numerous constitutional objections. First, he argues that § 3575 is constitutionally defective because it provides that the court is to make findings of fact based on a "preponderance of the information". Next, he contends that a finding of "dangerous special offender" may not be based on allegations of indictable criminal activity because this would violate his rights to grand jury indictment and to proof beyond a reasonable doubt. Third, he complains that the degree of discretion given to a prosecutor under § 3575 is unconstitutionally broad. Finally, the defendant urges that the definition of "dangerousness" under § 3575(f) is fatally overbroad and vague. These objections will be separately discussed.

(1) Findings of Fact by the Court on a Preponderance of the Information.

Three courts of appeals have upheld § 3575 over objections based on the standard of proof and the lack of a jury trial, United States v. Williamson, 567 F.2d 610 (4th Cir. 1977); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). As the Fifth Circuit held:

"It is argued that a defendant should be provided with the same due process protections afforded an accused in an ordinary criminal trial . . . While this view has some merit, we feel that the Due Process Clause does not mandate that all these procedural protections be present when a defendant is sentenced under the recidivist part of § 3575, and, consequently, the protections provided for in the statute are adequate." (Emphasis in original.) 561 F.2d at 1172.

These courts have found that the rights of the defendant are adequately protected by the safeguards provided in the statute, which include notice, counsel, compulsory process, and cross-examination. Moreover, the government must carry the burden of proof, and there is a broad review of the trial court's decision, see United States v. Stewart, supra at 331.

Nevertheless, the defendant argues that the Seventh Circuit has indicated that there may be serious constitutional problems with § 3575(b) and (e). In United States v. Neary, 552 F.2d 1184 (7th Cir. 1977), the court of appeals held that the determination of "dangerousness" on only a preponderance of the information and without a jury was constitutional, but suggested in dicta that the finding of "serious offender" may require proof beyond a reasonable doubt, 552 F.2d at 1192-93. The court of appeals suggested a possible ground for distinction:

"We note a marked difference between the type of issue to be decided by a finding of special offender status under § 3575(e) and the type of issue decided by a finding of dangerousness under § 3575(f). The former involves historical facts, either prior convictions (under (e)(1) or the character and concomitants of the offensive conduct (under (e)(2) and (3)). The latter essentially involves both evaluation of the character of the defendant and a prediction of future conduct, matters which are traditionally left to wide discretion of a sentencing court. Because of this difference, we conclude that the essential function of a finding of special offender, under (e), is to expose the defendant to a sentence of imprisonment longer than the maximum prescribed by the statute under which he has been charged and convicted, but not exceeding twenty-five years, and that the essential functions of a finding of dangerousness, under (f), is to determine whether and to what extent a sentence in excess of the maximum for the particular offense is appropriate." 552 F.2d at 1193-94.

Later in the opinion, the court reiterated its concern:

"Although noting the existence of serious due process questions as to the determination under (e) by the procedure described in (b), we do not reach these questions because of defendant's concession as to the adequacy of the finding that he is a special offender." 552 F.2d at 1195.

In view of these observations, it is necessary to take a closer look at the constitutional questions surrounding § 3575(b) and (e). First, there can be no doubt that application of § 3575 may result in a deprivation of liberty within the meaning of the due process clause, see Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (Stevens, J., concurring). Upon a determination that the defendant is a "dangerous special offender" within the meaning of subsections (e) and (f),1 he is exposed to a longer maximum sentence than otherwise authorized, see United States v. Neary, supra. In the instant case, the two felonies of which Inendino was convicted carry maximum sentences of five years each; if he is found to be a dangerous special offender, he could receive up to twenty-five years for each offense. The statute does mandate that the term not be "disproportionate in severity to the maximum term otherwise authorized by law." One court of appeals has upheld a sentence of four times the normal maximum, United States v. Williamson, supra; see also United States v. Warme, 572 F.2d 57 (2d Cir. 1978) (two times normal maximum upheld).

However, the determination that due process applies does not, of course, complete the analysis of what procedural safeguards are required, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Due process is a flexible concept which must be adjusted according to the situation involved.

Much of the debate over § 3575 has focused on the proper interpretation and application of the Supreme Court's decision in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).2 In that case, the Court considered a Colorado statute which provided that if a defendant is convicted of certain sex offenses, then the court may determine if he "constitutes a threat of bodily harm to members of the public, or is a habitual offender and mentally ill."3 If the court made such a finding, then the defendant could be sentenced to an indeterminate term of from one day to life. The statute did not provide any procedural safeguards for the defendant. The court held that this proceeding violated the defendant's due process rights, and directed that:

"Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own." 386 U.S. at 610, 87 S.Ct. at 122.

Some courts and commentators have interpreted Specht to mean that if a sentencing or other post-conviction proceeding involves new charges of criminal conduct, and results in increased imprisonment, then it must be conducted in accordance with the procedures of a normal criminal trial, see, e. g. United States v. Duardi, 384 F.Supp. 874 (W.D.Mo.1974), affirmed on other grounds 529 F.2d 123 (8th Cir. 1975). Dicta in the Specht case does support this view; for example, the Court points out that the statute requires a "new finding of fact" which results in "criminal punishment", and quotes from a lower court case holding that the defendant is entitled to "the full panoply" of criminal trial rights. Relying on this dicta, the court in Duardi concluded that the list of procedures set out in Specht (as quoted above) must be enlarged to encompass recent additions to the "full panoply" of trial rights, including the right to proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

However, a closer examination of related Supreme Court cases leads to the conclusion that the Court has drawn a line between pre-conviction and post-conviction proceedings, and has approved post-conviction proceedings which provide less than the full panoply of trial rights. The widest discretion and informality is permitted in the normal sentencing procedure. In the leading case of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the...

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    • October 29, 1984
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