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UNITED STATES v. SCHIPANI

June 4, 1970

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


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

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, 135 U.S. App. D.C. 377, 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. ...


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