United States v. Schipani

• Decision Date: 04 June 1970
• Docket Number: No. 63 CR 237.,63 CR 237.
• Parties: UNITED STATES of America, Plaintiff, v. Joseph F. SCHIPANI, Defendant.
• Court: U.S. District Court — Eastern District of New York

315 F. Supp. 253

UNITED STATES of America, Plaintiff, v. Joseph F. SCHIPANI, Defendant.

No. 63 CR 237.

United States District Court, E. D. New York.

June 4, 1970.

Edward Neaher, U. S. Atty. for Eastern District of New York, Brooklyn, N. Y., for plaintiff; David G. Trager, New York City, of counsel.

Jacob P. Lefkowitz, New York City, for defendant.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

The defendant has moved, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, for reduction of the sentence imposed by this Court upon his conviction for tax evasion. 26 U.S.C. § 7201. On the facts, and in the exercise of discretion, this motion would have been denied out of hand were a troublesome question of law not posed: In imposing sentence may the court consider facts and inferences drawn from illegally obtained evidence suppressed at trial? For the reasons below, we hold that in some cases, including this one, such evidence may be utilized in sentencing.

I. FACTS

Following reversal of the defendant's first conviction (Schipani v. United States, 385 U.S. 372, 87 S.Ct. 533, 17 L.Ed.2d 428 (1966)), a motion to suppress illegally obtained wiretap evidence was granted. United States v. Schipani, 289 F.Supp. 43 (E.D.N.Y.1968). After a second trial, the defendant was convicted on the basis of untainted evidence. 293 F.Supp. 156 (E.D.N.Y.1968), aff'd, 414 F.2d 1262 (2d Cir. 1969), cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970). The same judge who presided at the suppression hearing imposed sentence.

In deciding upon a sentence the Court considered data introduced at the hearing on the motion to suppress but excluded at the trial. Illegal wiretapping of conversations involving the defendant and his associates established that the defendant was a criminal figure, and that his undeclared income was the proceeds of organized crime. United States v. Schipani, 289 F.Supp. 43, 46-48 (E.D.N.Y.1968).

Defendant was sentenced to three years' imprisonment on each count, to run concurrently. 18 U.S.C. § 4208(a) (2). In addition, a committed fine of $2,500.00 was imposed on each of the five counts, for a total of $12,500.00.

This sentence was near the maximum that could be imposed consistent with due process after the second trial. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969). The jail term was far longer than would be expected in a routine tax case. See, e.g., Craig, Sentencing in Federal Tax Fraud Cases, 49 F.R.D. 97 (1970). A primary reason for severity was the court's conclusion that the defendant was a "professional criminal." ALI, Model Penal Code § 7.03(2) (b) (P.O.D.1962). See Wechsler, Sentencing, Correction, and the Model Penal Code, 109 U.Pa.L. Rev. 465, 480-83 (1961); Turnbladh, A Critique of the Model Penal Code Sentencing Proposals, 23 Law & Contemp. Problems 544, 546-547 (1958).

II. NECESSITY OF INFORMATION FOR SENTENCING PURPOSES

In deciding upon a sentence appropriate to an individual defendant, a variety of needs must be considered. Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1969); United States v. Mitchell, 392 F.2d 214 (2d Cir. 1968). Among them are the possibilities of rehabilitation, general or specific deterrence, protection of potential victims by incapacitating socially dangerous offenders, and maintenance of respect for legal norms. See ABA, Standards Relating To Sentencing Alternatives and Procedures, 62-63 (Approved Draft, 1968); L. Empey, Alternatives to Incarceration, 1-6, 70 (1967); Advisory Council of Judges of the National Probation and Parole Association, Guides for Sentencing, 1-5 (1957); Ohlin & Remington, Sentencing Structure: Its Effect Upon Systems for the Administration of Criminal Justice, 23 Law & Contemp. Problems, 495, 496-499 (1958); Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L. Rev. 821-825 (1968). A sentence reflects a prediction of future events based largely upon the defendant's past and the court's sociological conceptions.

As much reliable data as possible on the background of the individual defendant is essential to any intelligent choice among the many available alternatives. "The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it." United States v. Doyle, 348 F.2d 715, 721 (2d Cir. 1965). Any information which may lead to a better understanding of the needs of the defendant and of society may, and should, within the limitations of due process, be considered. ABA, Standards Relating to Probation, 34-39 (Tent. Draft, 1970); Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Gollaher v. United States, 419 F.2d 520, 530 (9th Cir. 1969); Heidrich v. United States, 373 F.2d 540 (5th Cir. 1966).

Recognizing the necessity for unfettered access to information by the sentencing judge, courts have regularly upheld the propriety of wide-ranging presentence investigations and reports. As the Supreme Court has remarked, "there are no formal limitations on presentence reports' contents and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged." Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L. Ed.2d 442 (1969). See also, e.g., Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Doyle, 348 F.2d 715 (2d Cir. 1965); Committee on Rules of Practice and Procedure, Preliminary Draft of Proposed Rules of Evidence for United States District Courts and Magistrates, Rule 11-01(d) (3), 46 F.R.D. 161, 417 (1969) (rules do not apply to sentencing).

Fairness, accuracy, and procedural due process do limit the sources which may be considered by the sentencing judge. See, e.g., Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Scott v. United States, 419 F.2d 264 (D.C.Cir. 1969); Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969). See generally Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821 (1968). But such restrictions are designed to protect the integrity of the sentencing procedure rather than the legality of earlier stages of the prosecution.

The broad acceptance of hearsay presents a striking example of the scope of presentence investigations and the quality of materials which may be considered by the sentencing judge. See, e.g., Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Taylor v. United States, 179 F.2d 640 (9th Cir. 1950). Limits on the use of hearsay at sentencing depend solely upon assessment of probative force. United States v. Doyle, 348 F.2d 715, 720 (2d Cir. 1965). But cf. United States v. Rao, 296 F.Supp. 1145, 1148 (S.D.N.Y. 1969) (hearsay indicating defendant's underworld connections does not constitute a predicate for punishment).

In the instant case the questioned evidence consists largely of admissions by the defendant and declarations against penal interest by his associates; its probative value is high, and even its status as excludable hearsay is questionable. See, e. g., 4 J. Wigmore, Evidence § 1048 (3d ed. 1940); 5 Id. §§ 1361, 1476, 1477; 6 Id. § 1766; Committee on Rules of Practice and Procedure, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, 46 F.R.D. 161, 331-334, 339-343, 385-387 (1969); C. McCormick, Handbook of the Law of Evidence §§ 239, 255 (1954); Donnelly v. United States, 228 U.S. 243, 277, 33 S.Ct. 449, 57 L.Ed. 820 (1913) (Holmes, J., dissenting). The accuracy of these out-of-court statements, and of the inferences which may readily be drawn from them, was not questioned either at allocution or at the hearing on the motion to reduce sentence. Unless they should not have been considered because of factor unrelated to probative force, it was therefore appropriate to accord them substantial weight in the sentencing decision.

III. APPLICATION OF EXCLUSIONARY RULE

A. Purposes of Exclusionary Rule in Fourth Amendment Cases

The primary purpose of the exclusionary rule in the case of Fourth Amendment violations is to discourage unconstitutional acts outside the courtroom by law enforcement officials. It is assumed that illegal searches and seizures will not be undertaken if they will have no meaningful effect. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L. Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Pizzarello v. United States, 408 F.2d 579, 586 (2d Cir. 1969) (civil case); J. Maguire, Evidence of Guilt § 5.02 (1959); B. J. George, Constitutional Limitations on Evidence in Criminal Cases, 39-42 (1966).

Since the exclusionary rule has a pragmatic orientation, it is to be expected that it will not be unnecessarily applied. And, in fact, there are a number of well recognized instances permitting reliance upon evidence obtained in violation of the Fourth Amendment.

Illegally seized evidence may be considered by a parole board in deciding to revoke parole. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970). The similarity of functions between a sentencing court and a parole board is apparent. As is the case with the parole board, "to apply the exclusionary rule would tend to obstruct * * * accomplishing * * * remedial purposes" of the sentencing procedure. Id. at 1163. A court, as well as a parole board, needs all possible information that may lead to insights into the character of the defendant. Both are vested with "the broadest discretion consistent with due process to act upon reliable evidence" in determining treatment. Id. at 1163.

Grand jury proceedings constitute a second area in which the use of illegally obtained evidence is not absolutely forbidden by the exclusionary rule. United States v. Blue, 384 U.S. 251, 255, n. 3, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Lawn v. United States, 355 U. S. 339, 348-350, 78...