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UNITED STATES v. MARSHALL

December 20, 1997

UNITED STATES OF AMERICA,
v.
MITCHELL MARSHALL, Defendant.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 On May 2, 1997, the defendant, Mitchell G. Marshall ("Marshall" or the "defendant"), pled guilty to one count each of conspiracy to commit credit card fraud and credit card fraud in violation of 18 U.S.C. §§ 1029(a)(2), (b)(2) and (c)(1). On February 28, 1997, Mark Henderson ("Henderson") pled guilty to one count of knowingly and intentionally trafficking in one or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2) and (c)(1). According to the pre-sentence report prepared by the United States Probation Department, Henderson was approached by Mitchell and asked to provide credit card numbers from First Card Credit Services ("FCCS") for a fee. Presentence Investigation Report dated June 26, 1997 ("PSI") P 3. Henderson was an employee of FCCS, located in Uniondale, New York, which provides credit card services for First Chicago Bank, located in Chicago, Illinois. Id. P 2. From May 1996 through December 1996, Henderson illegally obtained approximately 2,000 credit card numbers from FCCS and gave them to Marshall for which Marshall paid Henderson between $ 15 and $ 25 per card number. Id. P 4. According to the presentence report, the illegal use of the credit card numbers provided by Henderson to Marshall has resulted in an actual loss of $ 1,386,361.03, and an additional attempted fraud of $ 357,836.49. Id. P 9. As a result, according to the presentence report, for sentencing guideline purposes, Henderson and Marshall are held accountable for an intended loss of $ 1,744,197.52. Id. Henderson is scheduled to be sentenced on January 23, 1998.

 By letter dated August 8, 1997, Marshall objected, among others, to the calculation of the intended loss, maintaining that he was only one of a number of people to whom Henderson illegally provided credit card numbers. Marshall estimated the amount of loss for which he is responsible at less than $ 300,000.00.

 Subsequently, Marshall identified Damon Hayes ("Hayes"), an incarcerated defendant in a federal correctional facility in North Carolina, as an alleged purchaser of the credit card numbers. Hayes submitted to a polygraph test proposed by the government on the subject of purchasing credit card numbers from Henderson. The government alleges that the polygraph examiner's report indicates that Hayes "was deceptive when he stated he had purchased credit card numbers from Mark Henderson." Government's letter dated November 14, 1997. Presently before the Court are the following two issues: (1) whether the Court may consider the results of Hayes' polygraph examination in sentencing Marshall to rebut Hayes' assertion that he had purchased credit card numbers from Henderson and to rebut Marshall's assertion that there were other purchasers of stolen credit card numbers; and (2) whether the Court can compel the polygraph examination of Henderson.

 I. DISCUSSION

 A. Hayes polygraph examination

 The issue of the admissibility of polygraph evidence has been controversial. Until recently, the Second Circuit, interpreting Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), has suggested that such evidence is inadmissible. See United States v. Kwong, 69 F.3d 663, 668 (2d Cir. 1995) (citing cases); cert. denied, 517 U.S. 1115, 116 S. Ct. 1343, 134 L. Ed. 2d 491 (1996). Under Frye, 293 F. at 1014, scientific testimony was required to be generally accepted in the relevant scientific community to be admissible at trial. However, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2794-95, 125 L. Ed. 2d 469 (1993), the Supreme Court, effectively overruling Frye, held that the Federal Rules of Evidence now govern the admissibility of scientific evidence at trial.

 Since Daubert, the Second Circuit has yet to squarely address the issue of admissibility of polygraph evidence. In Kwong, 69 F.3d at 667-69, the Second Circuit affirmed the district court's refusal to admit the results of a polygraph examination in a criminal trial. The Second Circuit agreed with the district court that the examiner's questions were "inherently ambiguous" and that there was a "substantial possibility that the admission of the polygraph results would mislead and confuse the jury, outweighing any probative value they may have." Kwong, 69 F.3d at 668. Hence, the Second Circuit held that even if the polygraph evidence was admissible under Fed. R. Evid. 702, the evidence should have been excluded under Fed. R. Evid. 403. Id. The Second Circuit did note that "the record before us simply does not provide the proper opportunity to explore the validity of polygraph evidence under Rule 702." 69 F.3d at 669.

 However, the standards of admissibility of evidence at a criminal trial is inapplicable to sentencing proceedings. It is a well-settled principle that "a sentencing judge . . . [may] exercise wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed." Williams v. New York, 337 U.S. 241, 246, 69 S. Ct. 1079, 1082, 93 L. Ed. 1337 (1949). See also United States v. Watts, 519 U.S. 148, , 117 S. Ct. 633, 635, 136 L. Ed. 2d 554 (1997). Because "[a] sentence reflects a prediction of future events based largely upon the defendant's past," United States v. Schipani, 315 F. Supp. 253, 255 (E.D.N.Y.), aff'd, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1198, 28 L. Ed. 2d 334 (1971), a sentencing court's inquiry traditionally has been "largely unlimited either as to the kind of information . . . considered, or the source from which it may come," United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591, 30 L. Ed. 2d 592 (1972).

 "The Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, codified the traditional purposes of sentencing, both recognizing the importance of imposing individual sentences, see 18 U.S.C. § 3553(a)(1)-(2), and displaying a desire to allow a broad inquiry into relevant information concerning a defendant. See 18 U.S.C. § 3661." United States v. Tejada, 956 F.2d 1256, 1262 (2d Cir.), cert. denied, 506 U.S. 841, 113 S. Ct. 124, 121 L. Ed. 2d 80 (1992). It is permissible to consider information in sentencing that would be inadmissible for the purpose of determining guilt. See United States v. Reese, 33 F.3d 166, 174 (2d Cir. 1994) ("when determining sentence, a sentencing court is free to consider hearsay evidence, evidence of uncharged crimes, dropped counts of an indictment and criminal activity resulting in an acquittal"), cert. denied, 513 U.S. 1092, 115 S. Ct. 756, 130 L. Ed. 2d 655 (1995). Indeed, 18 U.S.C. § 3661 provides that "no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." In addition, the Federal Rules of Evidence, by their own terms, do not apply to sentencing hearings. See Fed. R. Evid. 1101(d)(3); see also United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978) ("the Federal Rules of Evidence, except those relating to privileges, do not apply to sentencing proceedings"), cert. denied, 444 U.S. 1073, 99 S. Ct. 1221 (1980).

 This principle is echoed in the United States Sentencing Guideline § 6A1.3, which provides that "in resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." Thus, "the tradition of providing complete information at sentencing blossomed in a judicial system that granted a district judge enormous flexibility in assessing a suitable penalty." Tejada, 956 F.2d at 1263. Hence, these principles do not suggest "any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing." Watts, 117 S. Ct. at 635.

 Several circuit courts, including the Second Circuit, have addressed on a case-by-case basis the issue of the admissibility of polygraph testimony at sentencing. In United States v. Messina, 131 F.3d 36, 1997 U.S. App. LEXIS 28600 (2d Cir. 1997) (slip op.), the defendant submitted polygraph evidence in an attempt to persuade the district court not to impose the "related conduct" sentencing enhancements. After hearing testimony from the polygraph examiner on his qualifications, the testing procedure and his opinion that the defendant had answered the questions truthfully, the district court stated as follows:

 
It was interesting to meet [the polygrapher] and hear his views. I still don't believe - let me put it this way, I believe that the rule of law which ...

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