United States v. Marshall, 81-CR-23.

• Decision Date: 04 August 1981
• Docket Number: No. 81-CR-23.,81-CR-23.
• Citation: 519 F. Supp. 751
• Parties: UNITED STATES of America, Plaintiff, v. David Michael MARSHALL, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

519 F. Supp. 751

UNITED STATES of America, Plaintiff, v. David Michael MARSHALL, Defendant.

No. 81-CR-23.

United States District Court, E. D. Wisconsin.

August 4, 1981.

Joseph P. Stadtmueller, U. S. Atty. by Lawrence O. Anderson and William E. Callahan, Asst. U. S. Attys., Milwaukee, Wis., for plaintiff.

Nikola Kostich, Milwaukee, Wis., for defendant.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This decision constitutes the written record of a decision issued orally during the sentencing proceeding held in this action on July 29, 1981.

On May 19, 1981, following a jury trial, a verdict was returned finding the defendant David Michael Marshall guilty on Counts 1 and 3 and not guilty on Count 2 of a three-count indictment charging the defendant with violations of the National Firearms Control Act, 18 U.S.C. §§ 922(g)(1) and 922(h)(1). Each count on which the defendant was convicted carries a maximum penalty of a $5,000 fine and/or up to five years' imprisonment.

Sentencing was scheduled for June 30, 1981. The proceeding was continued at the defendant's request to July 23, 1981, to allow him an opportunity to gather evidence and present testimony in his own behalf. At the hearing on July 23, 1981, the defendant presented testimony by four persons who testified to the defendant's reformed character and his active participation in an alcoholics rehabilitation program. He requested that he be sentenced to a period of probation as opposed to incarceration.

The Government recommended a period of several years incarceration. It based its recommendation upon the defendant's past criminal record, its belief that the defendant perjured himself during the trial of this action, and its belief that the defendant had been in the past a national enforcer for the Outlaws Motorcycle Club and had been responsible for at least one murder of a rival club member in Canada. The Government's counsel stated during the sentencing proceeding that the sources of information regarding the defendant's activities as an enforcer included a former associate of Mr. Marshall's who was identified by name and had provided information to the Drug Enforcement Administration, a former Outlaws member who identified himself and Mr. Marshall as "hit men" in the Outlaws "death squad," and interviews with various law enforcement officers, in particular members of the Canadian Mounted Police and Ontario Provincial Police, regarding Mr. Marshall's role in a 1978 gang war between the Outlaws Motorcycle Club and the Hell's Angels Motorcycle Club in the United States and Canada. The Government's counsel read into the record a teletype dated July 23, 1981, from Detective Sergeant Terry L. Hall of the Ontario Provincial Police, stating that he first came into contact with the defendant in February 1978 during an investigation following the murder in Montreal of Robert Cote, an Outlaws club member, by the Hell's Angels Motorcycle Club. At that time Hall accused the defendant of being an enforcer brought in to avenge Cote's death. Marshall denied the charge. Hall states that he came into contact with Marshall again in Florida in March 1978, and at that time Marshall admitted to Hall that he was an enforcer for the Outlaws and stated that he had killed before. Hall states that he later confirmed the information given to him by Marshall from other "reliable sources."

The defendant was offered an opportunity to reply to the Government's statement. After consultation with his counsel, his counsel stated that in order to reply to the statement, Mr. Marshall would be required to waive his rights under the Fifth Amendment, which he preferred not to do, and therefore he requested that the Court proceed to sentencing.

I declined to proceed at that time in order to study the record prior to sentencing and to decide what information I could properly consider and rely upon in passing sentence. The sentencing proceeding was continued to July 29, 1981. Having now considered the record and reviewed the case authority, I am satisfied that the hearsay information presented by the Government was reliable, that it was the type of information which a Court may properly consider in evaluating the character of a defendant prior to sentencing him for a crime of which he has been found guilty, and that the information presented by the Government, coupled with the defendant's felony record and history of firearms misuse and his untruthful testimony at trial, justify the imposition of a substantial period of incarceration.

Section 3577 of Title 18, U.S.C., provides:

"No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."

The Supreme Court has also held on many occasions that receipt and consideration of non-testamentary information by the sentencing judge does not offend the Constitution. For example, the judge may consider his own belief through observation of the defendant that the defendant perjured himself during trial. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). See also United States v. Levine, 372 F.2d 70 (7th Cir. 1967); United States v. Martinez-Navarro, 604 F.2d 1184 (9th Cir. 1979). He may also consider hearsay evidence of criminal activity for which the defendant has been neither prosecuted nor convicted. United States v. Cardi, 519 F.2d 309, 313-314 (7th Cir. 1975); United States v. Johnson, 507 F.2d 826, 829-830 (7th Cir. 1974), cert. denied 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975); United States v. Haygood, 502 F.2d 166, 171 n. 16 (7th Cir. 1974), cert. denied 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 812; United States v. Sweig, 454 F.2d 181, 183-184 (2d Cir. 1972).

In United States v. Grayson, supra, 438 U.S. at 49-50, 98 S.Ct. at 2615, quoting from Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court stated:

"* * * Traditionally `a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.' Id., at 246 69 S.Ct. at 1082. `And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information,' id., at 247 69 S.Ct. at 1083; indeed, `to deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation.' Id., at 249-250 69 S.Ct. at 1084. Accordingly, the sentencing judge was held not to have acted unconstitutionally in considering either the defendant's participation in criminal conduct for which he had not been convicted or information secured by the probation investigator that the defendant was a `menace to society.' See id., at 244 69 S.Ct. at 1081.

"Of course, a sentencing judge is not limited to the often far-ranging material compiled in a presentence report. `Before making the sentencing determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.' United States v. Tucker, 404 U.S. 443, 446 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). * * *"

The Seventh Circuit in United States v. Cardi, 519 F.2d 309, 313 (7th Cir. 1975), described the...