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December 1, 1977


The opinion of the court was delivered by: WEINSTEIN



 This case presents, in one of its many aspects, the perpetual dilemma of a free society: shall it ignore fundamental rights in protecting itself against those convicted of preying on its members? Specifically, in determining an appropriate sentence, may the court rely upon testimony of an F.B.I. agent that an undisclosed informant told him that the defendant is a member of an organized crime syndicate? Under the circumstances of this case the answer is no. It is a violation of the Due Process and Confrontation clauses of the Constitution to base a critical decision affecting liberty on information from a person the government prevents the defendant from examining.


 Carmine Fatico and Daniel Fatico were indicted in connection with a series of armed hijackings of trucks from Kennedy airport. In indictments 76-CR-80, 76-CR-81 and 76-CR-218 the government charged the defendants with conspiracy to receive, and with receiving, goods stolen from interstate commerce during three hijackings which occurred in February and March of 1971. After their initial trial on indictment 76-CR-218 was aborted because the jury failed to agree, the defendants entered guilty pleas to the conspiracy charge contained in indictment 76-CR-81 in satisfaction of all charges in the three pending cases. As a result of their guilty pleas, each defendant faces a maximum penalty of five years imprisonment and a $10,000 fine. 18 U.S.C. § 371.

 Defendants object to suggestions in the presentence reports that they have strong ties to organized crime, that they are members of the "Gambino Family," reputedly a mafia-like group. The United States has offered to support the allegation at a sentencing hearing. It proposes to rely heavily on the testimony of an F.B.I. agent who was the former head of the Bureau's Organized Crime section in the New York office. His knowledge is based upon information furnished to him by a confidential informant who allegedly is a member of the Gambino Family and who has previously supplied reliable information. The government objects to the defendants' proposed cross-examination of the F.B.I. agent about matters that might lead to the disclosure of the confidential source. It contends that revelation of the informer's identity would jeopardize his life and compromise his position as an essential font of information.

 On the basis of cases tried here, the court takes judicial notice of the fact that there have been major hijacking gangs preying on Kennedy Airport in the Eastern District of New York. Federal Rules of Evidence, Rule 201. These criminal rings present a grave threat to both interstate and international commerce. The court further recognizes that there is substantial evidence that organized crime is involved in these operations which require sophisticated fencing through quasi-legitimate and criminal business groups.

 Membership in an organized crime family and other ties to professional criminal groups are material facts that would and should influence the court's sentencing decision. Criminal associations enhance dangers to society and require a sentence predicated primarily on incapacitation and general deterrence. See A.L.I., Model Penal Code § 7.03; A.B.A. Proj. on Standards for Criminal Justice, Sentencing Alternatives and Procedures 86 (1968). Cf. United States v. Neary, 552 F.2d 1184 (7th Cir. 1977); 18 U.S.C. § 3575 (special and dangerous offenders). But cf. United States v. Rao, 296 F. Supp. 1145, 1149 (S.D.N.Y. 1969).

 Congress has recognized the need for a wide-ranging inquiry about a defendant's criminal associations. As part of the Organized Crime Control Act of 1970, for example, it provided:

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.

 18 U.S.C. § 3577.

 Courts are reluctant to deny themselves relevant data that might assist them in exercising sentencing responsibilities more effectively. We know, from cases we have tried, that fear of reprisal shuts off sources of vital evidence. Terror is particularly acute when cruel mobs, such as those defendants are accused of consorting with, are threatened. As noted in the testimony of former Attorney General Katzenbach, between 1961 and 1965 twenty-five of the government's informers in the organized crime field were murdered. Testimony at Hearings Before the Senate Subcommittee on Administrative Practice and Procedure of the Committee of the Judiciary on Invasions of Privacy, 89th Cong., 1st Sess., pt. 3, p. 1158 (1965). Since 1965 these incidents have persisted; they present a real and continuing problem. See, e.g., United States v. Skeens, 145 U.S. App. D.C. 404, 449 F.2d 1066, 1068 (D.C. Cir. 1971). United States v. Long, 533 F.2d 505, 508 (9th Cir. 1976). To require revelation of informers' names is to choke off this vital source of information to the court. The government, to protect its sources, will not reveal them.

 Nevertheless, for the court, without disclosure, to rely upon such untested evidence in a situation such as the one before us would violate the Fifth Amendment right to Due Process and the Sixth Amendment right of Confrontation. Cross-examination to determine the credibility of information relied upon by the government is not possible if the source is not known. Here, neither an indirect impeachment of the information through extrinsic evidence showing lack of credibility of the informer (cf. Federal Rules of Evidence, Rule 806), nor direct attack by calling him as a hostile witness (cf. Federal Rules of Evidence, Rule 607), is possible.


 A. Rules of Evidence Not Applicable in Sentencing

 The Federal Rules of Evidence, other than privileges, do not apply to sentencing proceedings. Rule 1101(d)(3) provides:

(d) Rules inapplicable. The rules (other than with respect to privileges) do not apply in the following situations:
. . .
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

 (Emphasis added.)

 As finally enacted these Rules were the joint product of (1) the rulemaking process of the Judicial Conference, its Committees and the Supreme Court, and (2) the legislative process of Congress and the President. Even the joint effort of all three branches of government cannot eliminate constitutional imperatives.

 Obviously, although the Rules of Evidence may be ignored in sentencing proceedings, the Constitution may not be. The Advisory Committee's Note to Rule 1101(d) states: "[The] rule is not intended as an expression as to when due process or other constitutional provisions may require an evidentiary hearing." 56 F.R.D. 183, 351 (1972).

 Enactment of a Rule by the joint efforts of the Supreme Court and the Congress does, nevertheless, constitute a "prima facie judgment that the Rule in question transgresses neither the Enabling Act nor constitutional restrictions." Hanna v. Plumer, 380 U.S. 460, 471, 85 S. Ct. 1136, 1144, 14 L. Ed. 2d 8 (1965). When constitutionality is in doubt, some deference may be paid to the pronouncements of the Congress and the Supreme Court in its rulemaking function. The absence of such statements respecting Rule 1101 by the Advisory Committee which drafted the Rule, the Supreme Court itself, or by Congress or its Committees, suggests that legal principles and the case law, and not any Hanna v. Plumer presumption, are the proper guide to the constitutionality of the sentencing procedures at issue.

 B. Due Process Limitations On Sentencing

 Historically, the sentencing process has been less subject to due process scrutiny than other postconviction stages of the criminal trial process where lesser or comparable liberty interests are at stake. This approach was embodied in the teaching of Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). Williams discussed at length the practical and historical basis for different evidentiary rules governing trial and sentencing procedures. "The due process clause," the Court concluded, "should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure." Id. at 251, 69 S. Ct. at 1085. It relied chiefly on the breadth of the considerations of defendant's character and background required in sentencing as compared to the narrower factual and legal issues resolved in the usual criminal trial.

In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time-consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant -- if not essential -- to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. 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 by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.

 Id. at 246-47, 69 S. Ct. at 1083 (footnote omitted).

 Considerations relating to the accuracy and reliability of the information supplied to a sentencing judge were de-emphasized in Williams. Instead, it relied upon the need to provide the judge with the broadest possible spectrum of information. It therefore rejected cross-examination as critical at this stage of the criminal process.

We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to crossexamination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.

 Id. at 250, 69 S. Ct. at 1084-85 (footnote omitted). The Court was aware that probation reports "have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information." Id. at 249, 69 S. Ct. at 1084 (footnote omitted).

 There has been a clear drift away from the absolute no-due-process-at-sentence position some have read into Williams. One critic has observed that

The Court ignored the issue whether such a high degree of arbitrary power at a critical stage in the criminal process is tolerable. Society ought to have as much interest in seeing that the prisoner is protected from arbitrary sentencing as in seeing that he is protected from arbitrary conviction, even if in the two processes the content of "fairness" is different. The Court took the view that the only available alternatives were virtually uncontrolled judicial discretion concerning sentencing procedure and the full panoply of specific procedural rights associated with the conduct of a trial of guilt. The Court failed to examine the particular rights claimed by Williams to ascertain which could be recognized at sentencing without too great a loss of other values.

 Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv. L. Rev. 821, 827 (1968). Procedural due process cannot be eliminated from the sentencing stage.

Where the stakes for society and individuals are as high as they are at sentencing, where there is no adequate body of substantive criteria, where there is little review of sentencing decisions, and where the results of the present "administrative" system are generally admitted to be unsatisfactory, there is a strong case ...

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