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United States v. Jackson

United States District Court, S.D. New York

January 9, 2018

UNITED STATES,
v.
MARK REITER, Defendant.

          MEMORANDUM & OPINION

          VERNON S. BRODERICK, United States District Judge.

         In 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.

         I. Background

         A. The Trial and Conviction

         Reiter 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, including murder.

United States v. Reiter, 897 F.2d 639, 640-41 (2d Cir. 1990).

         On 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.

         B. The Sentencing Hearing and Sentence

         On 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.
(Pause)
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 the ...

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