Appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Joseph M. McLaughlin, Judge, after a plea of guilty to violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c). Affirmed.
Timbers, Meskill, and Kearse, Circuit Judges.
Defendant Samuel Weinberg appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Joseph M. McLaughlin, Judge, following a plea of guilty to one count of violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (1982). Weinberg was fined $25,000 and sentenced to a term of eight years in prison. In addition, pursuant to his plea bargain, Weinberg, inter alia, forfeited $150,000 and resigned his position as a judge of the New York City Civil Court. On appeal, Weinberg contends principally that the proceedings at the sentencing hearing violated his Fifth Amendment right to due process and his Sixth Amendment right to the effective assistance of counsel. For the reasons below, we affirm the judgment of conviction.
Weinberg was named in a 16-count superseding indictment ("indictment") charging him with racketeering and mail fraud in connection with his ownership, management, and control of several real properties in New York City. Count 1 charged him with conducting a pattern of racketeering activity through the enterprise of his real estate business, in violation of 18 U.S.C. §§ 1962(c) and 2. That count charged several predicate acts of arson in violation of state law, mail fraud in violation of 18 U.S.C. §§ 1341 and 2 (1982), and extortion in violation of 18 U.S.C. §§ 1951 and 2 (1982). These acts included using fraudulent and extortionate means to cause elderly and other low-paying tenants to vacate their apartments so that Weinberg could lease their apartments to higher-paying tenants; defrauding the purchaser of one of his buildings (the "82nd Avenue building") by bribing the superintendent to misrepresent the condition of the building; causing arson and vandalism at two of his other buildings (the "Fulton Street" and "Hawthorne Street" buildings, respectively); and filing false insurance claims with respect to the resulting damage. Counts 2-15 charged Weinberg with substantive offenses of mail fraud in connection with the acts charged as predicates for the RICO count. Count 16 charged him with mail fraud in connection with a false personal injury claim.
Following 10 months of discovery and preliminary proceedings, Weinberg and the government entered into a plea bargain in which Weinberg agreed principally to (a) plead guilty to the RICO count, (b) forfeit $150,000, (c) resign his position as a Civil Court judge, and (d) forfeit his judicial pension. The government agreed to move for dismissal of counts 2-16. The agreement further provided as follows:
The Government, prior to sentencing, will advise the sentencing court of the nature and extent of Samuel Weinberg's criminal activities. The Government, however, will make no specific recommendations with respect to sentencing, such matters being solely within the province of the sentencing court.
Following the entry of Weinberg's plea of guilty, the parties exchanged a number of letters and memoranda relating to sentencing. The government detailed the information it planned to give the court with regard to the nature and extent of Weinberg's activities; Weinberg disputed a number of the government's factual contentions and requested a hearing. The submissions disclosed that the government intended to rely in part on grand jury testimony and other hearsay statements of tenants of the 82nd Avenue building; it advised the court and defense counsel that if the defense wished to cross-examine any of the hearsay declarants, the government would attempt to produce them at the hearing. Weinberg's attorney did not request the production of any of the tenants; he identified three other witnesses he characterized as "vital," and those witnesses were produced at the hearing.
At the sentencing hearing, the government introduced the testimony of several witnesses, including former employees of Weinberg's business and a government agent who had interviewed numerous Weinberg tenants, and introduced the testimony these tenants had given to the grand jury. After hearing the evidence, described in greater detail in Part II.B.2. below, the district court found that the government had proven eight of 19 disputed factal allegations by a preponderance of the evidence. The court found, inter alia, that Weinberg had arranged for two arsons at the Fulton Street building, had engaged in an ongoing scheme to charge unlawful rents to tenants in the 82nd Avenue building, had filed false eviction proceedings against tenants in that building, had encouraged alcoholics to loiter in the building and harass the tenants, had asked employees to arrange for tenants to be assaulted, and had asked an employee to arrange to have one elderly tenant raped.
In addition to the penalties provided for in the plea agreement, the court sentenced Weinberg to pay a $25,000 fine and to serve eight years in prison. This appeal followed.
Weinberg's principal arguments on appeal are (1) that the sentencing court should have excluded hearsay evidence, (2) that it should have required the government to prove its factual contentions by more than a mere preponderance of the evidence, and (3) that the evidence was insufficient to meet even the preponderance standard. In addition, he contends that count 1 of the indictment was defective because it failed adequately to charge the existence of a RICO enterprise; that the court's refusal to allow his attorney to withdraw from the case denied Weinberg the effective assistance of counsel; and that the government's submissions at sentencing detailed his criminal activities with such ferocity that they constituted a recommendation of a heavy ...