United States District Court, S.D. New York
MEMORANDUM & OPINION
S. BRODERICK, United States District Judge.
1988, Mark Reiter was convicted after a jury trial of
racketeering (with predicate acts including three murder
conspiracies, three murders, narcotics conspiracy, and the
distribution and possession with intent to distribute
heroin), racketeering conspiracy, operating a continuing
criminal enterprise, distribution of heroin, using a
telephone to facilitate heroin distribution, and conspiring
to defraud the Internal Revenue Service. Judge Richard Owen,
who presided over the trial, sentenced Reiter to two life
terms of imprisonment plus sixty years, followed by a life
term of special parole, and fines totaling $4 million. Reiter
now moves under former Federal Rule of Criminal Procedure
35(a) to correct his allegedly illegal sentence on the basis
that neither the jury nor the judge made particularized
findings that his heroin distribution involved more than 100
grams, and therefore his life sentence was illegal. For the
reasons that follow, the motion is DENIED.
The Trial and Conviction
and four of his co-defendants were tried on a thirteen-count
twelfth superseding indictment, (12S) 87 Cr. 132 (the
“12S Indictment”), returned on February 23, 1988,
that charged seven defendants with, among other things,
participation in and conspiracy to participate in a
racketeering enterprise. The 12S Indictment charged that from
approximately January 1, 1980, to October 31, 1987,
“the Jackson Organization” constituted an
enterprise “associated in fact” within the
meaning of 18 U.S.C. § 1961(4). The Jackson Organization
had as its purpose the obtaining of income for the members of
the enterprise through a large-scale scheme to distribute
heroin in Manhattan, the Bronx, Bridgeport, Connecticut,
Washington, D.C., and Boston, Massachusetts. From
approximately late 1983 through 1987, the Jackson
organization was headed by James Jackson, who eventually
became the government's chief witness at trial. The
indictment also charged that to protect and preserve the
enterprise, its members resorted to fraud and violence,
United States v. Reiter, 897 F.2d 639, 640-41 (2d
August 25, 1988, Reiter and four co-defendants were convicted
on all counts and every predicate act of racketeering after a
four-month jury trial. Reiter v. United States, 371
F.Supp.2d 417, 420 (S.D.N.Y. 2005). Reiter was convicted of
racketeering (with predicate acts including three murders,
three murder conspiracies, conspiracy to distribute
narcotics, heroin distribution, and using a telephone to
facilitate a narcotics violation), racketeering conspiracy,
operating a continuing criminal enterprise, distribution of
heroin, using a telephone to facilitate heroin distribution,
and conspiring to defraud the Internal Revenue Service.
See Id. at 419-20; 12S Indictment.
The Sentencing Hearing and Sentence
October 24, 1988, Judge Richard Owen sentenced Reiter to two
life terms of imprisonment, plus sixty years. See
Reiter, 371 F.Supp.2d at 419-20. During the sentencing
proceeding, Reiter's attorney sought a Fatico
hearing to contest certain facts contained in the presentence
report (the “PSR”). Judge Owen denied the request
in the following exchanges:
The Court: . . . I don't see anything that I am going to
be giving consideration to that requires a Fatico hearing. I
heard the trial and frankly beyond that the only things that
are of consequence to me are the prior record here and,
frankly, that's about it. I don't know of anything in
this report from your letter that you want to contest that,
frankly, place any part in the court's consideration.
Mr. Slotnick: Then I would ask your Honor to strike it from
the probation report as is our right in the circuit. We do
contest the organized crime allegation. We do contest the
allegation that it was large scale narcotic trafficking and
we would ask if we do not have a Fatico hearing that those
matters be stricken from the probation report.
The Court: What's the government's position on that?
Ms. Galeno: If I may have a moment, your Honor.
The Court: Let me defer this excision question to hereafter.
It doesn't have to be resolved at this second. I made it
clear on the record I am not going to consider those matters.
Whether they come out as another matter entirely, that's
something we can deal with later.
Ms. Galeno: A quick reading of this section, the court can
make a finding of those areas contested and append it to the
sentence. I do not believe there is anything under Rule 32
that takes for excision.
The Court: I am not relying on those.
Mr. Slotnick: Under U.S. against Fatico with regard to
matters in contest, we have a right to a hearing before your
Honor -- The Court: Only if there is a contested issue that I
want to consider and then you have the right to a hearing,
but I am not.
Mr. Slotnick: Then I will ask your Honor to excise them from