The opinion of the court was delivered by: WEINSTEIN
In view of prior proceedings, See United States v. Fatico, 441 F.Supp. 1285, 1287 (E.D.N.Y.1977), Reversed, 579 F.2d 707 (2d Cir. 1978), the key question of law now presented is what burden of proof must the government meet in establishing a critical fact not proved at a criminal trial that may substantially enhance the sentence to be imposed upon a defendant. There are no precedents directly on point.
The critical factual issue is whether the defendant was a "made" member of an organized crime family. Clear, unequivocal and convincing evidence adduced by the government at the sentencing hearing establishes this proposition of fact.
Defendant was indicted with others for receiving goods stolen from interstate commerce during three hijackings of trucks from Kennedy Airport. 76-CR-80, 76-CR-81 and 76-CR-218 (E.D.N.Y.). At his initial trial on indictment 76-CR-218 the jury failed to agree. Defendant then entered a guilty plea to the conspiracy charge in indictment 76-CR-81 in satisfaction of all charges in the three pending cases. He now faces a maximum penalty of five years imprisonment and a $ 10,000 fine. 18 U.S.C. § 371.
Prior to sentencing, the defendant objected to suggestions in the presentence reports that he has strong ties to organized crime and is a "made" member of the "Gambino Family," reputedly a mafia-like group. The United States offered to support the allegation at a sentencing hearing. It proposed to rely on the testimony of an FBI agent based upon information furnished to him by a confidential informant whose identity would not be revealed.
Agreeing with the government that disclosure would imperil the life of the informer, this court nevertheless refused to hear the FBI agent's testimony, noting that "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." United States v. Fatico, 441 F.Supp. 1285, 1289 (E.D.N.Y.1977). The Court of Appeals reversed, "holding that . . . neither the Confrontation nor the Due Process Clause is violated by use in sentencing of information supplied by an unidentified informant where there is good cause for not disclosing his identity, and the information he furnishes is subject to corroboration by other means." United States v. Fatico, 579 F.2d 707 at 708 (2d Cir. 1978). The additional evidence proffered by the Government to corroborate the informant consisted of the testimony of two unindicted co-conspirators, Salvatore Montello and Manuel Llauget, independent observations of police officers, and the defendant's criminal record. 579 F.2d at 709-710 & nn. 3, 4. In view of the Government's corroborative evidence, the Court of Appeals held that "the trial court erred in excluding the agent's testimony about the informer's declaration once the Government represented that it would produce the specified corroboration." Id. at 713.
The Court of Appeals accepted, and neither party challenges, this court's judgment that "membership in and ties to professional criminal groups are material facts that should be considered in sentencing." 579 F.2d at 710 & n. 5. It expressed "no views on the sentence ultimately to be imposed," Id. at 714 n. 17, and indicated that "the weight given to the informer's declarations and the assessment of credibility are matters for the sentencing court." Id. at 713 n. 14.
Pursuant to the Court of Appeals' directive, an evidentiary sentencing hearing was held to determine whether, as reported in the pre-sentence report, the defendant was a "made" member of the Gambino family or otherwise involved in organized crime. The Government called ten witnesses. The defendant did not call any. In its original proffer, the Government had stated that one FBI agent would testify about information supplied to him by one reliable informant. At the hearing, the Government produced seven law enforcement agents both federal and state who testified that seventeen different informants had independently told them that the defendant and his brother, Carmine Fatico, a codefendant, were "made" members of the Gambino family.
Government witnesses painted a composite portrait of extensive organized crime activity in the New York City area. Briefly summarized, the following general conclusions of law enforcement agencies emerged during the course of the hearing. There are five active organized crime families operating in the greater metropolitan area: The Colombo family; the Lucchese family; the Genovese family; the old Bonana family and the Gambino family. Transcript at pp. 32-33, 177-78. At the top of each family is the Boss. Directly underneath the Boss is the Underboss, or executive officer. Next in line is the Counselor, or "Consiglier," who helps "keep the peace." Transcript at pp. 29-30, 176, 183. The organization then branches out with tens of "Capos," or "lieutenants," at the next level. The Capos, in turn, direct a substantial network of "soldiers" numbering in the hundreds, depending upon the size of the family. The soldiers, all of whom are officially initiated, full-fledged members of the crime family, are variously referred to as "buttons," "made-men," "nice fellows," or "good guys." Transcript at pp. 29-32, 89-92, 176. Beneath the "soldiers" are the "non-member associates," affiliated with the family, but not "made" that is, initiated into the family. Transcript at pp. 31-32, 176-77. Each capo has a social club or headquarters which serves as a meeting place for family members and associates in a particular territory. Transcript at p. 181.
According to one witness, Aniello Dellacroce is now the boss of the Gambino family; Paul Castellano is the underboss and Joseph N. Gallo is the consiglier. The Gambino family now has at least twenty capos, including Carmine Fatico. Spread across the Eastern seaboard from Rhode Island to Florida and inland as far as Detroit there are allegedly some 1100 soldiers. Defendant is a "made" soldier. Transcript at pp. 177-85. The principal activities of the Gambino family are said to be loan sharking, hijacking, narcotics, gambling and extortion. Transcript at p. 32.
The first Government witness, Joseph Fanning, is a recently retired FBI agent with 27 years experience. Mr. Fanning spent the past sixteen or seventeen years on organized crime matters, most recently as a member of the Long Island Special Task Force on Organized Crime. For the past two years, he worked with someone who had informed since 1966-67. Fanning described the informant as a reliable, long active and highly placed member of the Gambino family. Transcript at pp. 9, 11, 20. On Easter Sunday 1978 the informant told him that both Daniel and Carmine Fatico had been members of the Gambino family for over twenty years. Transcript at pp. 12-13.
Martin Boland, an FBI agent for some fifteen years, had spent almost ten years in the New York Organized Crime Division. He had contact with another informant. First developed in 1971-72 and considered reliable by Boland (Transcript at pp. 26-27), the informant told this agent that Daniel Fatico was the brother of Carmine Fatico and worked under him as a "button." Transcript at p. 35. The two brothers reportedly specialized in hijacking and gambling. Transcript at p. 38.
Another FBI agent, Joseph F. Keating, testified that he had worked with a third informant for more than three years (Transcript at p. 61) and that the informant had proved reliable over time. Transcript at p. 63. Keating, an FBI agent for nine years and now with the New Rochelle Organized Crime Division, testified that his informant told him that he believed the Fatico brothers were members of the Gambino family. Transcript at pp. 65-66. He also testified that according to his information Danny Fatico had paid off police for gambling protection. Transcript at pp. 65, 72-73.
The next FBI agent, Charles Boling, had spent eight years with the Bureau and now works for its New York City Hijacking Squad. For the past five years he had cultivated a fourth informant, who, he said, consistently supplied reliable information. Transcript at pp. 77-81. Boling's informant reported that both Faticos were members of the Gambino family and that they operated a "crew" of associates. Transcript at pp. 79-80. According to this informant, Danny and Carmine Fatico engaged principally in gambling, loan sharking and hijacking. Transcript at p. 80.
Robert John, a detective investigator in the Suffolk County District Attorney's Office for eight years and a member of the Organized Crime Task Force in the Eastern District of New York, testified that on March 25, 1971 he observed Carmine Fatico walking with Salvatore Montello for forty-five minutes in the vicinity of the Bergen Hunt and Fish Club in Ozone Park, New York. Transcript at p. 155. This confirmed Montello's testimony about a meeting with Carmine Fatico. Transcript at p. 106. It also supported testimony at trials before this court and testimony at the sentencing hearing suggesting that the Hunt and Fish Club was the Faticos' criminal base. John further testified that a fifth informant he had worked with since 1974 had told him that Carmine Fatico would mediate disputes between different factions in Suffolk County engaged in gambling, loan sharking and labor disputes. Transcript at pp. 160-61. This detective declared that in early 1974, he saw the informant, who at that time was not yet cooperating with the government, in the presence of Daniel and Carmine Fatico. Transcript at pp. 161-62.
The most far-ranging of all the testimony was that of Detective John P. Capobianco of the Brooklyn County District Attorney's Office. Capobianco, who coordinates organized crime investigations, has been on the police force for twenty-four years, nineteen of which were devoted to organized crime matters. His experience in the field dates back to his early days in Brooklyn where he grew up with various organized crime members including Vincent Napoli, recently sentenced by this court on separate heroin and gun convictions, and others like Sonny Francese, who was sentenced by the Chief Judge of this court to a long term for masterminding a series of bank robberies. Transcript at pp. 174-75. He testified that he personally worked with eight different informants, most of them since 1969-1970, and that they had proved reliable. Transcript at p. 187. Two, he noted, were no longer active one was dead, the other has been missing since April. Transcript at p. 185. Only two of the informants knew each other. Transcript at p. 187. None of the informants were "made" members of the Gambino family. Transcript at pp. 203-04. The informants reported that Carmine Fatico was a "capo" and Daniel was a "button." Transcript at p. 188.
Capobianco also stated that in 1971-72 he had personally observed Carmine Fatico in front of the Ravenite Social Club on Mulberry Street talking with Joseph N. Gallo and Aniello Dellacroce. The Ravenite Social Club was reputedly the criminal headquarters of Dellacroce. The three men were doing a "walk and talk" to make sure they were not being bugged. Transcript at pp. 189-92. This confirmed testimony of Llauget and Montello respecting "sit downs," or arbitration conferences, conducted by the then underboss of the Gambino family, Dellacroce. See Government Exhibit 3, Hearings before the Permanent Subcommittee on Investigation, Committee on Government Operations, U.S. Senate, Eighty-Eighth Cong., First Sess., Chart C, p. 294. The detective also testified that on another occasion he had observed various other purported members of organized crime entering and leaving the Bergen Hunt and Fish Club when Daniel and Carmine Fatico were on the premises. Transcript at p. 192.
Kenneth McCabe, Detective Capobianco's partner, also testified. McCabe, with ten years in the New York City Police Department, has spent nine years working in the Kings County Organized Crime Unit. He stated that much of his information indicating Daniel and Carmine Fatico's criminal activities came from four additional confidential informants.
Detective McCabe authenticated a police arrest blotter for November 24, 1966 that showed that Carmine Fatico had been arrested for consorting with known criminals at the Ravenite Social Club. Transcript at p. 218. Also arrested were Dellacroce, Joseph N. Gallo and nine other reputed major criminals. The charges were dismissed. Transcript at pp. 218-23. McCabe stated that in 1970-71 he had observed Carmine Fatico with Dellacroce and Gallo at the Ravenite Social Club (Transcript at pp. 223-24) and that he has also observed Daniel Fatico with various other members of organized crime. Transcript at p. 224.
In addition, McCabe testified that he had personally maintained surveillance for three days in October or November 1976 at Carlo Gambino's wake. McCabe had information that the wake would be restricted to family, business associates and criminal associates. Transcript at p. 234. McCabe stood at the door of the funeral home, where he observed that both Carmine and Daniel Fatico were admitted to pay their respects. Transcript at pp. 225-27, 235. The Fatico brothers were also observed by McCabe at the wakes of Carlo Gambino's brother and Leonard Vario, the son of Paul Vario, Jr., the alleged consiglier in the Lucchese family. Transcript at p. 227.
It was established on cross-examination that McCabe had no recollection of Mr. Michael Rosen, Carmine Fatico's attorney, although Mr. Rosen stated that he, too, had attended the Gambino wake. It was suggested that this fact cast doubt on McCabe's credibility, a conclusion this court rejected since, given the crowded conditions at the wake, it was hard to observe or identify all the mourners. Transcript at pp. 237-39.
Finally, both Salvatore Montello and Manuel Llauget, unindicted co-conspirators in the fur hijackings, testified. They had also been called as key witnesses in prior cases tried by the court where, after devastating attacks on their credibility, the juries had failed to convict. Both men have extensive criminal records running back over more than twenty years. See Government Exhibits 1 and 2, FBI record sheets. Llauget's record includes a conviction for murdering his wife. For the past three years both men and their families have been supported by the public under the Government's witness protection program.
Montello admitted that he had been an associate, but not a "made" member of the Colombo crime family and had worked for the Faticos whom he knew, through other organized crime sources, to be "made" members of the Gambino family. Transcript at pp. 92, 94-95, 114-15. He testified that in 1971 he had known the Faticos for several years, having first met them at social clubs which the Faticos ran in the early 1960s. According to Montello and Llauget, these clubs, such as the Bergen Hunt and Fish Club in Queens, were centers for gambling and other organized crime activities. Transcript at pp. 96, 138. In 1969 Carmine Fatico offered Montello a "piece" of his gambling operation in Suffolk County, and put Montello on notice that he, Fatico, was in the market for truckloads of stolen goods. Transcript at pp. 103-06. In 1971, when Montello and Llauget began working with the Faticos, it was clear to Montello from the demeanor of the Faticos and from the respect they received in the criminal community that they were "made" members of an organized crime family. Transcript at pp. 95, 110.
In addition, Montello (Transcript at pp. 107-08) and Llauget both testified that in March of 1971, when a dispute arose concerning the quantity and quality of some 7,000 hijacked furs delivered to the Faticos, a "sit-down" was arranged with Underboss Aniello Dellacroce. Llauget was taken by Daniel Fatico to a "social club" on Mulberry Street in Manhattan where Fatico and Llauget met with Dellacroce and the disgruntled "buyer" of the furs. Dellacroce arbitrated the dispute and, after questioning Llauget about furs, decided that Llauget was telling the truth and would be paid the agreed price for the stolen furs. Transcript at pp. 107-08, 140-46; Cf. Testimony of Detective Capobianco, Supra.
The presentence report reveals that the defendant Daniel Fatico was born in Brooklyn, New York in 1920, the youngest of seventeen children of Carmine and Libera Fatico, his Italian born immigrant parents. Only three of his siblings survived beyond childbirth or infancy. Two of the brothers followed their father into the Sanitation Department and two went into crime.
The defendant was raised in the then predominantly Italian working class neighborhood of East New York in Brooklyn. After his father was killed in a fall from a roof in 1923, his mother kept the family intact, supplementing her $ 50 monthly widow's pension by employment as a school matron and by family contributions. In 1937, having completed the tenth grade, the defendant left school. He had an average IQ.
At age twenty-one, defendant married his present wife. They have three grown children, all productively and legally employed. The couple live in a two-family home, located in the middle class residential neighborhood of Sheepshead Bay, Brooklyn and jointly owned and occupied by the families of the defendant and his son-in-law.
The defendant's extensive criminal record spanning the past 36 years began in 1941 when, at twenty, he was placed on probation for three years after being convicted of unlawful entry. Thereafter followed, at regular intervals, more than twenty convictions for assaults, bookmaking and operating an illicit still and some fifteen dismissals or acquittals for gambling offenses. Almost all of the convictions were in the state court and they resulted in small fines or probation. After a jury trial this year defendant was convicted in this court of operating a high stakes crap game and was sentenced to three years. 78 CR 19 (E.D.N.Y.). He is appealing that conviction.
The defendant's present physical health is fair. He has been hospitalized a number of times recently for various physical problems. His wife has high blood pressure and recently had heart surgery. Neither he nor any member of his family has ever experienced mental or emotional difficulties. He is polite in court and responds to questions in a low-keyed, calm fashion.
He lists his occupation as a salesman-manager for a firm which sews parts of garments; his weekly gross salary is $ 185.00. Income tax forms reflect his gross earnings of $ 9,600 for 1976, and joint earnings of $ 12,470 in 1975 and $ 15,595 in 1974. The only substantial asset he is known to have is an equity of some $ 30,000 in his home. He claims no bank accounts or automobiles.
D. Judicial Notice Organized Crime
As we did in our prior decision in this case, 441 F.Supp. at 1288, we take judicial notice of the fact that, based on our own court records, there have been major hijacking gangs preying on interstate and international commerce at Kennedy Airport. Federal Rules of Evidence, Rule 201. There is substantial evidence that organized crime is involved in these operations which require extensive and rapid fencing. The instant hijacking falls into this general pattern.
Somewhat less clear is the connection between defendant's gambling activities and organized crime. In 1974 the Department of Justice asserted:
It is the unanimous conclusion of the President, the Congress and law enforcement officials that illegal organized gambling is the largest single source of revenue for organized crime . . . . (It) provides the initial investment for narcotic trafficking, hijacking operations, prostitution rings, and loan-shark schemes.
Statement before the Commission on the Review of the National Policy Toward Gambling, May 15, 1974 (N.T.I.S., Springfield, Va.) PB.253610, p. 5 Cited in Reuter and Rubinstein, "Imaginary Numbers" (1978), at p. 4 (research paper funded by grants from the National Institute for Law Enforcement and Criminal Justice of the Law Enforcement Assistance Agency). See Kihss, "Mob's Role Discounted in Gambling," New York Times, June 26, 1978, p. 1, at cols. 1-2. The recently released Reuter-Rubinstein report, based on several years of study of the "structure and operation of the gambling rackets in metropolitan New York since 1965," Reuter and Rubinstein, Supra, at p. 6, sharply disputes the Justice Department's "standard account." Id. at p. 8. "Most bookmakers," it concludes:
are just that, bookmakers; perhaps not the worthiest of citizens but certainly not the terrifying mobsters of whom we are told. They have few involvements in other criminal activities such as narcotics trafficking and fencing. Id.
We need not now mediate this disagreement about the place of gambling in the annals of crime and the significance of defendants' gambling convictions. It is sufficient for our present purposes to note that details about gambling activities of defendant attributed to the unnamed informants were confirmed in this court by the evidence in the recent gambling trial of the defendant and some of his associates. This corroborative information is useful in evaluating the probative force of the Government's evidence.
1. Critical Stage of Criminal Process
Sentencing is a critical, often the most critical, stage of criminal proceedings. See Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205, 51 L. Ed. 2d 393 (1977); Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257, 19 L. Ed. 2d 336 (1967); United States v. Pinkney, 179 U.S.App.D.C. 282, 290, 551 F.2d 1241, 1249 (1976); 8A Moore, Federal Practice, 32.04(4) at 32-59. In the vast majority of cases which result in a plea of guilt, it is, for the defendant, the only critical stage. Id. 32.04(1) at 32-50.1. See generally, Note, Rule 11 and Collateral Attack on Guilty Pleas, 86 Yale L.J. 1395, 1395 at n. 1 (1977); Note, The Oath in Rule 11 Proceedings, 46 Fordham 1242, 1243 n. 14 (1978) (80-95% Of all criminal cases are disposed of by guilty pleas). Nevertheless, we continue to
weave the most elaborate procedures to safeguard the rights of those who stand trial, but then treat as a casual anti-climax the perfunctory process of deciding whether, and for how long, the defendant will be locked away or otherwise "treated".
M. Frankel, "Criminal Sentences: Law Without Order," vii (1972). See Coffee, The Future of Sentencing Reform: Emerging Legal Issues in the Individualization of Justice, 73 Mich.L.Rev. 1361 (1975); Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821 (1968).
The 1975 amendments to the Rules of Criminal Procedure reflect an increasing awareness of the importance of reliable information as a predicate for proper sentencing. Prior to 1966 the practice was not to reveal presentence reports to the defendant or counsel. In 1966, disclosure was made permissive. In 1975, it became mandatory. Rules of Criminal Procedure, Rule 32(c)(3)(A).
It is significant that Congress, by legislation expressing national policy, added a final sentence to the Supreme Court's proposed draft of Rule 32(c)(3) (A). It provides that, at the discretion of the court, the defendant is to be afforded the opportunity to introduce testimony or other information relating to "any factual inaccuracy contained in the presentence report." See 8A Moore, Federal Practice, 32.03(4), at 32-42-43, & 32.01(5), at 32-14-15 (summary of legislative history).
The Advisory Committee to the Supreme Court stated that the purpose of mandatory disclosure was to assure factual accuracy.
The Advisory Committee is of the view that accuracy of sentencing information is important not only to the defendant but also to effective correctional treatment of a convicted offender. The best way of insuring accuracy is disclosure with an opportunity for the defendant and counsel to point out to the court information thought by the defense to be inaccurate, incomplete, or otherwise misleading. Experience in jurisdictions which require disclosure does not lend support to the argument that disclosure will result in less complete presentence reports or the argument that sentencing procedures will become unnecessarily protracted. It is not intended that the probation officer would be subjected to any rigorous examination by defense counsel, or that he will even be sworn to testify. The proceedings may be very informal in nature Unless the court orders a full hearing.
Proposed amendments to Federal Rules of Criminal Procedure for the United States District Courts, 62 F.R.D. 271, 325 (1974) (emphasis added). In explaining the rights of a defendant to contest the accuracy of the Government's contentions, the House Judiciary Committee wrote:
The Committee added language to subdivision (c)(3)(A) that permits a defendant to offer testimony or information to rebut alleged factual inaccuracies in the presentence report. Since the presentence report is to be used by the court in imposing sentence and since The consequence of any significant inaccuracy can be very serious to the defendant, the Committee believes that It is essential that the presentence report be completely accurate in every material respect. The Committee's addition to subdivision (c)(3)(A) will help insure the accuracy of the present report.
Report No. 94-247 (to accompany H.R. 6799) 94th Cong., 1st Sess. 18 (1975), U.S.Code Cong. & Admin.News 1975, pp. 674, 689 (emphasis added). Cf. Swisher v. Brady, -- - U.S. -- , -- , 98 S. Ct. 2699, 2714, 57 L. Ed. 2d 705 (1978) (noting "the importance to a reliable factfinding process of hearing live witnesses.").
The typical presentence report "contains a fairly superficial summary of the biographical facts of a defendant's life." 8A Moore, Federal Practice, Op. cit. supra, 32.03(3) at 32-39-40. The probation officer has a brief period to make his investigation, and, burdened by a heavy caseload, can devote limited time to each report. Id. at 32-40. As a result, for information on the defendant's crime and criminal background, the probation officer is "likely to rely uncritically on reports supplied by the prosecutor, who cannot be expected to be disinterested." Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 837 (1968) (footnote omitted); Moore, Supra, at 32.03(3), at 32-39. This limitation
places an obligation on the sentencing judge, either to supplement the information in the report from other sources, a task for which judges have neither the time nor the techniques available, or else to subject the information in the report to verification or correction.
Id. at 32-40 (footnote omitted).
3. Due Process Limitations on ...