departed from life imprisonment to ten years, it focused on Gangi as a discrete and, indeed, unique individual. It was at that time convinced that his cooperation was not merely opportunistic, as is so often the case with cooperators, but based on genuine remorse and, indeed, shame for his life of crime. That was why the cooperation was, from its inception, full and complete, and not presented to the prosecutors piecemeal or with strings attached. Thus, the court sentenced Gangi assuming that he had told -- and would continue to tell -- appropriate authorities everything he knew of past criminal conduct. The court emphasizes again: the original sentence was intended to give Gangi maximum consideration for full and complete cooperation on all past criminal activities. Justice is not served by further reducing a sentence that has already taken such extraordinary conduct fully into account.
In its letter, the defense also details the adverse effects cooperation has had on Gangi and his family. Numerous documents relevant to this point are attached. In essence, the problems are (1) that, as a result of budget difficulties, the U.S. Marshals Service has cancelled all family visits for prisoners and family in protective custody, thereby preventing Gangi and his family from seeing each other once or twice a year as originally expected; (2) that Gangi's wife, who cares for young children, has been terminated from funding by the Marshals Service for failure to obtain either her high school equivalency diploma or a job, and, as a result, is endeavoring to support herself and her children on $ 1,000 a month in public assistance benefits; and (3) that because Gangi is in protective custody, he has not had the same opportunities to earn money for his family as prisoners in general population who could seek to participate in UNICOR programs, or who could work with private authors on books.
It is appropriate to consider any adverse effects suffered by a defendant and his family as a result of substantial assistance to the government in ruling on an application for a reduction in sentence. United States v. Gangi, 45 F.3d at 31. But the effects that generally concern a court most are those outside threats posing a "danger or risk of injury to the defendant or his family resulting from his assistance." See U.S.S.G. § 5K1.1(a)(4); see also United States v. Agu, 949 F.2d 63, 66 (2d Cir. 1991), cert denied, 504 U.S. 942, 112 S. Ct. 2279, 119 L. Ed. 2d 205 (1992). For example, in United States v. Lara, 905 F.2d 599 (2d Cir. 1990), a case cited by the defense, a court downwardly departed from the sentencing guidelines because of its concern that a defendant would be a likely target for prison violence and could not adequately be protected by the government.
But this case is not at all akin to Lara. Nothing before this court suggests that the United States is not adequately protecting Gangi and his family from threats of violence or harm attributable to those against whom he cooperated. The adverse effects of cooperation cited by the defense all relate to perceived deficiencies in the Witness Protection Program's handling of Gangi's domestic situation. While the court continues to be sympathetic to these concerns, they are not of the same magnitude as threats of death or violence. The propriety of dealing with such matters through a reduction in sentence seems highly questionable.
The Witness Protection Program is, after all, administered by the United States Marshals Service, an agency answerable to the Attorney General, in whose custody Gangi has been placed. The United States Attorney, the movant in this action, has direct access to the Attorney General. Yet, at oral argument, this court was advised that the United States Attorney for this district has never directly communicated concerns about Gangi's situation to the Attorney General nor sought her intervention. This task has been left to subordinates, or to Gangi himself, who have received little assistance. This scenario is perplexing. Everyone before the court concedes that Gangi's cooperation was extraordinary, and that his treatment and that of his family while in protective custody has been problematic, if not insensitive. Certainly, justice is best served by having these domestic concerns dealt with directly and, if necessary, at high levels within the Department of Justice before court action is sought, particularly action that would reduce a criminal sentence for multiple murders.
This court's task is not to administer the Witness Protection Program or to deal with its budgetary and bureaucratic problems. This court's task is to fashion a sentence that is fair to Frank Gangi, to the victims of his crimes, and to the public at large in light of all relevant circumstances. Unquestionably, Gangi has rendered, and continues to render, significant cooperation to the United States in its investigation and prosecution of individuals with whom he came into contact in his life of crime. He deserves credit for these efforts. His cooperation has put him and his family at significant risk, requiring their placement in protective custody, action which has split them from one another and worked real emotional and financial hardships. This is properly considered in fixing sentence and in ruling on a motion for reduction. But the court returns, as it must, to the crimes of conviction, heinous acts for which society's total intolerance must be expressed. The court remains convinced that a ten-year term of incarceration gives Gangi full consideration for his cooperation and its consequences, while imposing that punishment for his crimes necessary to do justice in the case.
The motion for a reduction of sentence is denied.
Dated: Brooklyn, New York
March 27, 1995
UNITED STATES DISTRICT JUDGE