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UNITED STATES v. GANGI

March 27, 1995

UNITED STATES OF AMERICA, against FRANK GANGI, Defendant.


The opinion of the court was delivered by: REENA RAGGI

 RAGGI, District Judge:

 On October 31, 1990, Frank Gangi pleaded guilty before this court to racketeering and drug trafficking. On February 26, 1993 he was sentenced to ten-years' incarceration, a significant departure from his guideline range of life imprisonment. The departure was made possible by Gangi's substantial assistance to the United States in various criminal prosecutions. U.S.S.G. § 5K1.1. On January 31, 1994, the United States moved for further reduction in Gangi's sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. *fn1" The court denied the motion the same day it was filed without inviting a response from the defendant.

 Gangi appealed, his counsel arguing that the court's denial violated Rule 35(b), deprived him of due process, and constituted an abuse of discretion. The Court of Appeals remanded the case directing that Gangi be afforded an opportunity to respond directly to the government's motion for reduction of sentence. United States v. Gangi, 45 F.3d 28 (2d Cir. 1995). This court has complied with the Circuit's directive. Having given careful consideration to all submissions, including those of the defendant, it concludes that no further reduction of sentence is warranted. The court bases this decision on the totality of circumstances involving Gangi and his crimes of conviction.

 1. The Crimes of Conviction

 Frank Gangi was a professional criminal for most of his adult life. At his guilty plea, he admitted being a member of an organized crime racketeering enterprise known as the "Pitera Crew," a vicious arm of the Bonanno Organized Crime Family. Indeed, Gangi was a close confidante and confederate of the crew leader, Thomas Pitera.

 During the period between 1987 and January 1989, Gangi and Pitera routinely earned money by dealing in cocaine. Indeed, during those years they distributed approximately fifty kilograms of cocaine.

 At his plea allocution, and again at the trial of Thomas Pitera, Gangi admitted direct involvement in horrific crimes of violence, specifically the murders of Talal Siksik, Phyllis Burdi, Marek Kucharsky, Joseph Balzano, and Andrew Jakakas. The calculating and depraved manner in which Gangi, Pitera, and other confederates committed these murders and then disposed of the victims' bodies must be noted, even if only briefly. *fn2"

 Phyllis Burdi, a drug addict, was shot at point blank range by Pitera because he held her responsible for the death of his wife from a drug overdose. Although she had been hiding from Pitera, it was Gangi who located her and kept her at a particular site so that Pitera could come and kill her.

 Marek Kucharsky, another criminal, was stabbed by Pitera and his throat slit by Gangi as the result of a petty dispute during which Gangi perceived Kucharsky to have insulted Pitera.

 After each of these murders, the victims' bodies were stripped of any jewelry and put into a bathtub. There they were cut into pieces with a hacksaw. Gangi participated directly in this butchery. When the bloody business was done, the body parts were transported, usually in suitcases, to a bird sanctuary on Staten Island and buried randomly throughout the site.

 Joseph Balzano, a crew member, was killed when Pitera lost trust in him. Pitera and Gangi pretended they were taking him out to dinner to discuss various problems. Instead Gangi stabbed Balzano with an ice pick, whereupon Pitera shot him in the back of the head and slit his throat. Balzano's body was dumped in an alley near a gas station.

 Pitera planned to torture and kill Andrew Jakakas because of Jakakas' insulting behavior toward himself and other organized crime members. Gangi, a close friend of Jakakas, decided to kill him first, purportedly to spare him Pitera's torture. Gangi and a confederate took Jakakas for a drive whereupon the confederate shot Jakakas in the back of the head. His body was left in a vacant lot in Brooklyn.

 The Sentencing Guidelines applicable to the conduct just described yielded a total offense level for Frank Gangi of 44, a level so high as to be "off the chart." Moreover, because of Gangi's extensive criminal record, the guidelines assigned him 27 criminal history points. Anything over 12 points yields a criminal history category of VI, the highest category recognized by the Sentencing Commission. The combination of these factors resulted in a guideline range offering no flexibility. Gangi faced a sentence of life imprisonment. *fn3"

 2. Gangi's Cooperation with Authorities

 In fact, the court was not obliged to impose a lifetime prison sentence on Gangi because his substantial assistance to the government prompted a downward departure motion pursuant to U.S.S.G. § 5K1.1. The court granted this application. Because factors relevant to the original sentencing departure bear on the present decision not to grant any further reduction, the court outlines them briefly here.

 Frank Gangi began cooperating with the authorities some six months before his guilty plea. In April 1990, when he was stopped by New York City police officers for a traffic violation, Gangi asked to speak to a homicide detective and voluntarily confessed the brutal crimes in which he had participated. Whether Gangi's extraordinary confession was prompted by the mental torture of his own conscience (which this court believes to be genuine), or the suspicion that federal authorities were closing in on their investigation of Pitera and his crew (which was also true), or some combination thereof (which seems likely), the court cannot say with certainty. But there can be no doubt that Gangi's full and complete cooperation with the authorities from the moment of his traffic arrest was invaluable to the United States Attorney in the successful prosecution of Pitera and his crew. But for Gangi, federal authorities might never have learned the terrible scope of Thomas Pitera's depraved criminal activities. It was Gangi who told them of the numerous bodies buried in the Staten Island bird sanctuary and who made possible the exhumations which provided devastating evidence against Pitera. Gangi's testimony at the Pitera trial -- detailed, candid, and courageous -- was crucial to that conviction. His subsequent testimony against Vincent Giattino was similarly valuable, as was that of his wife, who also testified for the prosecution against Giattino, at no small risk to herself and her children. Gangi's willingness to testify against various other members of the Pitera Crew was an important factor leading to their guilty pleas.

 3. Gangi's Sentencing

 This court gave careful consideration to Gangi's sentence. Viewed in isolation, the crimes of conviction fully warranted a sentence of life imprisonment. But, as the court noted at the time of sentence, Gangi's "cooperation [was] extraordinary, more than any other person who's ever appeared before me." Indeed, that statement remains true two years later. The court has never had before it a defendant whose candor about his own criminal conduct and whose cooperation in the prosecution of others was as full and complete as that of Frank Gangi.

 This court's purpose in originally sentencing Frank Gangi was to impose a term of incarceration that gave him the maximum consideration for his assistance without trivializing his own horrible crimes. Toward this end, the court imposed a ten-year term of imprisonment, a considerable departure from the lifetime incarceration mandated by the guidelines. Mindful that Gangi -- and perhaps even the prosecutor who spoke on his behalf -- had hoped for more leniency, the court noted that the ten-year sentence could ...


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