US v. Angiulo
| Decision Date | 25 April 1994 |
| Docket Number | Crim. No. 83-235-WGY. |
| Parties | UNITED STATES of America v. Gennaro J. ANGIULO, Donato F. Angiulo, Francesco F. Angiulo and Ilario M.A. Zannino. |
| Court | U.S. District Court — District of Massachusetts |
Joseph Balliro, Balliro, Modano, & Balliro, Boston, MA.
Paul Smith, Nahant, MA.
Robert Shehetoff, Shehetoff & Homan, Boston, MA.
Henry Katz, Chelsea, MA.
Eliot Weinstein, Boston, MA.
Anthony Cardinale, Boston, MA.
Ernie DiNisco, Asst. U.S. Atty., U.S. Attys. Office, Boston, MA.
In 1986, after one of the longest criminal trials on record, three organized crime figures, Mafia members Gennaro J. Angiulo, Donato F. Angiulo, and Francesco F. Angiulo were convicted, inter alia, of racketeering and racketeering conspiracy.1 After an exhaustive and meticulously careful sentencing proceeding, one of my most distinguished colleagues, The Honorable David S. Nelson, sentenced Gennaro Angiulo to an aggregate of forty-five years in prison, Donato Angiulo to twenty years in prison, and Francesco Angiulo to twenty-five years in prison. Another defendant in the same indictment, Ilario M.A. Zannino ("Zannino") was tried separately due to the precarious state of his health and, in 1987, was convicted of loan sharking and gambling offenses. After equally careful consideration, Judge Nelson sentenced him to thirty years in prison. The First Circuit has upheld these convictions. United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990); United States v. Zannino, 895 F.2d 1 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).
Each of the defendants has remained in custody since his conviction. Pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure as then in effect, each defendant duly moved for a reduction of sentence in 1990. The government opposed the motions of Gennaro Angiulo, Donato Angiulo and Francesco Angiulo in 1991, and the motion of Ilario Zannino in March, 1992. By the time the detailed submissions related to these individual motions had been amassed, however, Judge Nelson had taken senior status and was unavailable to hear the issues presented.
The pending motions having been redrawn to this Court, I determined that an oral hearing was in order as I had not been the judge presiding over the actual trial and was, of necessity, dealing with a cold record. The order for such hearing issued on April 14, 1992, and the hearing was duly held on May 14, 1992. The final post-hearing submission was filed on May 24, 1993. The Court has taken the time to read and review each of the various submissions, together with so much of the trial record as has been laid before it and all related decisions in both the federal and state courts in order to render a fully informed and reflective decision.
While the Court has carefully considered the situation of each individual defendant separately, its analysis proceeds at a level of generality such that each point applies to all the defendants equally with but two qualifications. These are as follows:
Gennaro Angiulo treated the oral hearing as an outing from prison, an opportunity to meet and greet supporters. Choosing to represent himself, his argument consisted of nothing but puerile ranting against a decision of the First Circuit Court of Appeals. Were this all the record before the Court on his behalf, I would have little hesitancy about dismissing it out of hand and denying his motion peremptorily as unworthy of analysis.
But there is more. On June 22, 1992, Gennaro Angiulo submitted on his own behalf a thoughtful, well-reasoned brief that appears to demonstrate the mediating and guiding hand of skilled counsel. In fairness to Gennaro Angiulo, therefore, the Court will analyze his motion based on this brief.
Second, the Court proceeds in full recognition of the most precarious state of Mr. Zannino's health. The Court accepts as factually accurate each of the references to his present state of health set forth in his brief and proffered at oral argument. It is fair to say that Mr. Zannino is a sick man with but a limited life expectancy.
Having made these individual observations, the Court turns to the relevant general considerations.
This Court's role.
The underlying objective of Rule 35, ... is to "give every convicted defendant a second round before the sentencing judge, and afford the judge an opportunity to reconsider the sentence in light of any further information about the defendant or the case which may have been presented to him in the interim." United States v. Ellenbogan Ellenbogen, 390 F.2d 537, 543 (2d Cir.1968).
Fed.R.Crim.P. 35(b) advisory committee's notes (as amended through 1983).2
Of course, I am not the sentencing judge. I did not preside over this complex and lengthy trial. Nonetheless, the trial judge is presently unavailable and the defendants, as is their right, have each made a motion then permitted by the Federal Rules of Criminal Procedure. It thus falls to this Court to rule upon these motions.
As a threshold matter, what weight ought I give to the careful and considered judgment of Judge Nelson? No one here argues that his sentences are "law of the case." See United States v. Rosnow, 9 F.3d 728, 730 (8th Cir.1993). Indeed, this is self evident since the very existence of the 1983 version of Rule 35(b) posits a "second round" before the sentencing judge.
Instead, the government argues that the appropriate standard ought be one of "great deference," given the masterful job by Judge Nelson in presiding over the actual case and recognizing his great familiarity with the impact of the live witnesses and the conduct — including the improper outbursts — of certain of the defendants. Alternatively, defense counsel argue that I ought adopt something akin to the "substituted judgment" standard, see Rogers v. Okin, 738 F.2d 1, 6-7 (1st Cir.1984), and do what Judge Nelson would do in the circumstances. This, they assure me, would result in a substantial reduction of the sentences of the defendants in view of what they posit was Judge Nelson's misapprehension of the defendants' parole eligibility and his general track record of solicitude for, and careful review of, the status of those he incarcerated.
This Court rejects both approaches. Rather, to give full effect to the language of the then-applicable Rule 35(b), this Court rules that the defendants are entitled to a genuine "second round" here. Thus, I have read and reread so much of the primary materials — transcripts, court records, medical records, and the like — as have been made available to me, but I also have read with care each of the secondary materials — such as opinions, memoranda, trial rulings, and orders of the trial judge as well as the appellate decisions of both federal and state courts concerning this case and these defendants — and have used them as a gloss on the cold trial record to arrive at what, in my judgment, are appropriate sentences in the circumstances. Let me be clear: in the unique circumstances of this case, it seems to me I must bear the responsibility for the sentences ultimately to be served. That is why I have taken the time and care to peruse the record at length. While my reading of the opinions of other judges is, of course, deferential to the immediacy of their judicial involvement with this case, the ultimate judgment on these motions is my own. I have not tried to see the case through Judge Nelson's eyes.3
If this Court is itself to take responsibility for these sentences, what principles guide the decision?
For any trial judge with the responsibility to exercise the criminal jurisdiction of a court, the duty to consider the appropriate penal sentence that may be passed upon another human being is an ever-present reality.4 Through the imposition of a penal sentence, a judge expresses the considered and reflective views of the society of which the judicial system is a part. Through the sentence of the court, the judge is teaching the law in one of its most practical, immediate, and individualized expressions. This is the very essence of the judicial role.
What then does a judge actually do? In short, he or she explains the law and, in so doing, declares publicly held values. This is the essence of the judicial role. It is, perhaps, more easily understood at the appellate level where carefully written opinions, collegially arrived at, address the nuances of law as we understand it, explaining and giving guidance for the future. Far more common, although perhaps not appreciated as such,5 is the teaching done on a daily basis by the judges of our various trial courts. When these judges instruct juries or write opinions in jury waived cases they are, quite simply and directly, teaching how the generalized sweep of the law applies in particular cases. Less obvious, but equally instructive is the teaching done by our judges every time an individualized penal sentence is handed down or an evidentiary ruling is made. In these things, too, the judge is acting as a teacher, explaining through his or her very demeanor and conduct of the judicial proceeding precisely how the law works its way out in individual cases. The trial judge thus is seen as more than a mere conduit of the generalized standards to the litigants involved in a particular case. Every legal decision depends upon a melding of the generalized standard with the particular facts at hand. It is the judge who teaches how the melding is to take place in each individualized instance. The judicial role is thus defined as that of a teacher, declaring in an institutional setting our publicly held values.
William G. Young, John R. Pollets & Christopher Poreda, 1993 Supplement to Kenneth B. Hughes, Evidence at 6 (Massachusetts Practice Series Volume 19).
While this teaching is in no sense vindictive and while the judge ought necessarily consider...
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