Giuseppe and Pietro Pugliese appeal from the sentences imposed in judgments of conviction by the United States District Court for the Eastern District of New York (Bramwell, J.) for counterfeiting in violation of 18 U.S.C. §§ 2, 371 et seq. The appeal questions the propriety of the sentencing judge using information developed at a Fatico hearing before another district court judge.
These appeals from judgments imposing in each case 30 year terms of imprisonment question whether the sentencing court's consideration of testimony regarding Pietro Pugliese at a sentencing proceeding before another judge comports with due process. Recognizing the long held necessity for a sentencing court to have vast discretion in order to individualize punishment, the Supreme Court, in Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949), cautioned lower courts not to treat the due process clause as a reason to abandon the widely accepted practice of considering out-of-court material, generally contained in a probation report, in order to reach a just sentence. Id. at 250-51. Yet, the Supreme Court has also stated that due process concerns are implicated at sentencing. See Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948). Because these divergent views as to where the emphasis should be placed when imposing a sentence make the footing unsure, one cannot tread too confidently in this area of the law. Yet, we must decide whether the district court here heeded the admonishment of Williams, without foregoing the due process rights noted in Townsend.
Pietro and Giuseppe Pugliese appeal form the sentences imposed in a judgment of the United States District Court for the Eastern District of New York (Bramwell, J.), following a jury trial at which both were found guilty of having violated 18 U.S.C. §§ 2, 371, 472, and 473 through their participation in a large-scale organized conspiracy to counterfeit fifty dollar bills. Pietro Pugliese was also convicted of aiding and abetting another sale of counterfeit money in violation of 18 U.S.C. §§ 472, 473. Based on these convictions, the district court sentenced each appellant to identical cumulative 30 year terms of imprisonment. In addition, both appellants were fined $20,000 and Pietro Pugliese was given a concurrent 10-year term on his separate conviction.
Appellants were first indicted in February 1982. When the government was unable to proceed to trial because its principal witness refused to testify, Judge Bramwell denied a motion for a continuance and dismissed the indictment under Fed. R. Crim. P. Rule 48(a), stating:
I will tell you one thing, I have a great deal of resentment for people like these who are foreigners and come here and are involved in crime. I did this thing because this is what the situation called for. But these people are foreigners who come here and are involved in crime and they think we are supposed to give them special consideration. This type of people [sic] are the worst things we have and I am telling you that for you to tell it to each of the defendants.
On April 2, 1985, after appellants were reindicted, a motion for the trial judge to recuse himself based on the above statements was denied. The case then proceeded to trial on October 3, 1985 and resulted in guilty verdicts. Judge Bramwell sentenced the Puglieses on December 3, 1985.
During the sentencing proceedings the district court judge said that he would consider allegations that appellants had sanctioned an attempt to murder an adverse federal witness. In considering these allegations the sentencing court further stated that it would review the transcript of a hearing being held before another district court judge pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978) (Fatico I). Appellants assert that the sentencing proceedings violated their rights to due process and that the sentencing judge should have recused himself based upon his pretrial remarks.
We examine first the facts relevant to the due process challenge. Both Puglieses' presentence reports contained identical allegations that appellants were involved in an attempted murder of a government witness who was shot while enroute to the courthouse to testify against them. When defense counsel questioned the propriety of the sentencing judge considering this information, the following colloquy took place on November 14, 1985 at the first of two sentencing hearings held before Judge Bramwell.
THE COURT: You know, I would say this to you as to the shooting of Mr. Quagliata at the time the witness was on his way to Court, he was driving and I can't say that either of these two defendants actually did the shooting or anything of that nature, that, I can't say but in some way, this Court must believe that these defendants are somehow involved in this, the Court must believe that. Of course, it would be -- other than that, it would be utterly ridiculous, the Court must believe that.
MR. FISHER [DEFENSE]: Well, your Honor, in that regard, first, as I understand it, the government does not even allege the involvement in anyway at all by Pietro Pugliese in that incident, that's the first thing.
THE COURT: Let me say this to you, the history of what has happened with this case would almost dictate to this Court that these defendants were involved in some way in that shooting and I'm standing on that statement, I'm not going to change it.
MR. FISHER: Your Honor, the defendants, each of them deny [sic] categorically any involvement whatsoever in the shooting.
THE COURT: I will let you say that as long as you want to stand there and as long as you want to say it and I will listen to you but my statement, I stand by it and it's not going to change.
The history mentioned by the sentencing judge refers to the disappearance and intimidation of prior witnesses. Specifically, one government witness who disappeared in violation of his bail conditions stated when he was apprehended that the Puglieses had told him to flee and had financed his flight. Later, this same witness was again asked to cooperate with the prosecution. While awaiting an interview with an Assistant United States Attorney (AUSA), he was detained in the same facility as Giuseppe Pugliese. Ultimately, he declined to testify. A second government witness also refused to testify. ...