The opinion of the court was delivered by: COOPER
The defendant Pallatta, now serving a sentence of thirty years which we imposed almost five years ago (December 3, 1975) following his trial before us (which resulted in his conviction by jury on four counts of conspiracy to violate the narcotics laws and the distribution of heroin and cocaine), now applies for an order setting aside the sentence imposed and directing that he be re-sentenced before "a different judge." We deny the application in all respects.
His present counsel on the instant application maintains "there is a constitutional infirmity in the sentencing process requiring the vacatur of the sentence (and) A gross Constitutional Violation" (affidavit of Frank A. Lopez, Esq., verified July 22, 1980, pp. 1, 11) in that, before sentence was imposed, his presentence report (commonly referred to as the probation officer's report submitted to us in strict confidence) was not disclosed to him or his counsel, pursuant to Fed.R.Crim.P. 32(c)(3)(A) effective December 1, 1975 (3 days before sentencing) which reads:
Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.
Another vital section of Rule 32, (c)(3)(B), is not mentioned. We shall deal with it hereinafter.
From Pallatta's presentence investigation we learned he was 43 when we imposed sentence; good upbringing in a closely knit family; no schooling beyond 8th grade; no verifiable work record; stable marriage, one child. We distinctly recall this particular case and the elements that precipitated the sentence we imposed. Not a single item in his presentence report influenced or entered into the total sentence we pronounced upon him. After studying and reflecting upon Pallatta's presentence report in full, we resolved to (and ultimately did) predicate the sentence imposed exclusively upon the vast extent of defendant's nefarious practices which he constantly pursued with impunity over a substantial period of time, his long-standing anti-social behavior and his character as revealed in great detail at trial. Further, we concluded that his presentence report "might result in harm" as set forth in (A) of Rule 32 cited above.
The jury rendered its verdict on October 24, 1975 (the trial started September 24, 1975). The defendant Pallatta and six of his co-defendants (Bolella, DeLutro, Gwynn, Lucas, Magnano, Soldano) were found guilty of various counts of a seventeen count indictment which in essence charged: Count 1: Conspiracy to Violate the Narcotics Laws (21 U.S.C. 846); Counts 2-17: Distribution and Possession With Intent to Distribute Heroin and Cocaine (21 U.S.C. 812, 841(a) (1) and 841(b)(1)(A); 18 U.S.C. 2.) Maximum penalties provided: 15 years and/or $ 25,000 fine on each count; minimum 3 years Special Parole Term if imprisoned.
We commented briefly on the scope of the evidence adduced at trial when six
of these defendants appeared before us for sentence on December 3, 1975:
The convicted defendants were part of a tremendous network in this metropolitan area. Indeed, so far as our personal observations are concerned, this case is one of the largest domestic heroin cases in the history of narcotics law enforcement. Although the identities of the foreign importers and the initial domestic recipients of the heroin in this case remain concealed, the convicted defendants represent a chain of distribution.
The prosecution of Magnano, Pallatta, DeLutro, Soldano and Lucas was the culmination of literally thousands of hours of intensive investigation by representatives of the United States Drug Enforcement Administration over a very ... substantial period of time. Magnano, Pallatta and Bolella have been engaged in distributing heroin, says the evidence, from the beginning of the previous decade.
The trial proof established that Magnano, Pallatta, and Bolella were receiving during the course of the conspiracy highly confidential information relating to Federal narcotics law enforcement activities which was channeled to them from or through a law enforcement official. To date the identity of this corrupted official remains unknown.
We have presided over trials involving the sale of substantial quantities of narcotics. Never, however, on a scale as extraordinary as this with its enormous quantities of heroin bought and sold on an almost daily basis. The activities of this group emphasize the overlord and regimental tiers of organization, all governed by tight maneuvers and bold enough to successfully avoid governmental detection of which they were constantly apprehensive and aware. Nor have the important operational details of their cruel exercise come to light even at this late date. Let's face it, so inhuman, ruthless and cold-blooded was their approach to the execution of their nefarious schemes that we sat aghast at the unfolding of the enormity of their horrifying indifference to life's values. The holocaust of misery, the dreadful terminus of life for legions following the vast narcotic operations revealed herein (are) too horrifying even to contemplate.
Although the heroin sold by this large narcotic drug organization to Perna and his partners was diluted heroin, the proof clearly shows that Magnano, Pallatta, Bolella and their partners were regularly receiving large shipments of pure heroin which they in turn diluted and resold to Perna and his partners.... They have been in that business a great number of years.... The evidence (at) trial ... showed that this defendant (DeLutro) sold Verzino, Perna and Malizia over ten pounds of pure heroin in November of 1973, and was paid a quarter of a million dollars in cash. It also showed that DeLutro had access to even greater amounts of pure heroin at the time and that he was active all the way back to the early 60s.
At sentence we did our utmost to follow the mandate of Fed.R.Crim.P. 32(c)(3) (B) (not mentioned in the moving papers now before us):
If the court is of the view that there is information in the presentence report which should not be disclosed under subdivision (c)(3)(A) of this rule, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or his counsel an ...