The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
Defendants Joseph John Chilli, Jr., Joseph Macaluso, and Alan Taglianetti each move pursuant to Rule 35 of the Federal Rules of Criminal Procedure ("Rule 35") for a reduction in their respective sentences imposed by this Court on July 2, 1990. For the reasons set forth below, the motion of defendant Chilli is denied, the motion of defendant Macaluso is granted in part, and the motion of defendant Taglianetti is denied.
In 1989, Joseph John Chilli, Jr., Joseph Macaluso, Alan Taglianetti, and other defendants were charged in an eighteen count indictment with, among other things, Racketeering Conspiracy in violation of 18 U.S.C. § 1961 and Engaging in a Racketeering Enterprise in violation of 18 U.S.C. § 1962. The object of the conspiracy and the conduct engaged in by the enterprise as charged by the indictment involved the following activities: conduct of an illegal gambling business, transmission of gambling information, interstate transportation of wagering paraphernalia, financing extortionate extensions of credit, conspiracy to make extortionate extensions of credit, conspiracy to collect extortionate extensions of credit, wire fraud in connection with counterfeit credit cards, wire fraud in connection with stolen checks, wire fraud in connection with stolen securities, narcotics conspiracy, laundering of monetary instruments, currency transaction violations, and conspiracy to murder Anthony O'Connor, Jr. and Anthony Bonaventura. Several of the defendants were also charged with unlawful gun possession.
On December 19, 1989, eight of the nine defendants, the ninth being seriously ill, entered pleas to count two of the indictment, the substantive RICO count, pursuant to a plea agreement reached with the United States Attorney's Office. The plea agreement provided that the defendants be permitted to allocute to conduct that took place prior to the effective date of the United States Sentencing Guidelines ("the Guidelines") of November 1, 1987.
It was understood by all parties that the defendants would therefore not be sentenced under the Guidelines, but rather would be sentenced pursuant to the law as it existed prior to November 1, 1987. The pre-Guidelines law provided for a maximum sentence of 20 years, did not require the Court to impose sentence of any minimum term, and permitted the release of a defendant to parole after serving one third of the Court's sentence.
On January 2, 1991, the Court granted a Rule 35 motion brought on behalf of defendant Joseph Giddio and reduced his sentence from five to four years.
Thereafter, on January 11, 1991, the Court heard a Rule 35 motion brought by counsel for Joseph John Chilli, Jr. on papers filed on October 25, 1990. The motion was based on the argument that the sentence imposed by this Court was greater than the sentence which was required by the Guidelines for the acts to which the defendant had allocuted. The Government opposed the motion, taking the position that it would never have entered into the plea agreement, but would have proceeded to trial, had it understood that the maximum to which the defendant could have been sentenced would have been a sentence as calculated under the Guidelines for acts to which the defendant allocuted. The Court agrees that the Government would not have entered into the plea agreement under such circumstances.
Counsel for defendant Chilli acknowledged that it was he who had suggested a non-Guidelines plea to the Government. He argued, however, that the sentence was unfair because if the defendant had gone to trial and been convicted of the charge to which he had allocuted he would have secured, in effect, a lesser sentence due to the policy of the Bureau of Prisons not to consider organized crime figures eligible for release until they have served two-thirds of their sentences. Thus, he argued that defendant Chilli found himself in a worse position under the plea agreement than if he had gone to trial.
The Court indicated that it did not believe that defendant Chilli necessarily found himself in a worse position than if he had gone to trial, but that it would reconsider the sentence in light of the alternative of going to trial faced by the defendant at the time of his plea. All counsel agreed that had the case gone to trial and had the defendant been convicted, he would have been sentenced in accordance with the Sentencing Reform Act of 1984,
because allegations in the indictment straddled the effective date of the Guidelines promulgated under that Act, November 1, 1987. Over the Government's objection to any further reconsideration of the sentence, the Court ordered the United States Probation Office to furnish a calculation of the Guideline "points" which Chilli would have faced had he been convicted at trial of all counts with which he was charged in the indictment. The Court also gave the Government time to file a brief in opposition to the argument presented by Chilli's counsel. The Court indicated that it would reconsider the sentences of any other defendants on the same basis.
Thereafter, counsel for Macaluso and Taglianetti made Rule 35 motions based on similar grounds. A supplemental memorandum was received from defendant Chilli on October 23, 1991. An addendum to the motion of defendant Taglianetti was received on October 2, 1991, and a letter from defendant Macaluso was received on January 13, 1992. A letter brief from the Government as to defendants Chilli and Macaluso was received on December 17, 1991, and a similar letter as to Defendant Taglianetti was received on January 21, 1992.