TABLE OF CONTENTS PageIntroduction 390 I. Facts 391 A. Prior Proceedings 391 B. Sentencing Hearing 391 C. Daniel Fatico 394 D. Judicial Notice—Organized Crime 395 II. Law 396 A. Sentencing 396 1. Critical Stage of Criminal Process 396 2. Presentence Report 396 3. Due Process Limitations on Sentencing 397 4. Protections Not Afforded the Defendant 398 a. The Right of Confrontation 398 b. Unavailability of Prior Statements 399 B. Liberty Interest of Defendant at Sentencing 400 1. In General 400 2. "Special Offender" Status 401 C. Burden of Proof 402 1. The Continuum 402 a. Burdens in General 402 b. Preponderance of the Evidence 403 c. Clear and Convincing Evidence 404 d. Clear, Unequivocal and Convincing Evidence 405 e. Proof Beyond a Reasonable Doubt 405 2. Preponderance Standard of the "Dangerous Special Offenders" Act 406 3. Higher Sentence Based on Proof of a Fact Not Established in Criminal Trial 408 III. Facts Applied to Law 412 Conclusion 412
WEINSTEIN, District Judge.
In view of prior proceedings, see United States v. Fatico, 441 F.Supp. 1285, 1287 (E.D.N.Y.1977), reversed, 579 F.2d 707 (2d Cir. 1978), the key question of law now presented is what burden of proof must the government meet in establishing a critical fact not proved at a criminal trial that may substantially enhance the sentence to be imposed upon a defendant. There are no precedents directly on point.
The critical factual issue is whether the defendant was a "made" member of an organized crime family. Clear, unequivocal and convincing evidence adduced by the government at the sentencing hearing establishes this proposition of fact.
A. Prior Proceedings
Defendant was indicted with others for receiving goods stolen from interstate commerce during three hijackings of trucks from Kennedy Airport. 76-CR-80, 76-CR-81 and 76-CR-218 (E.D.N.Y.). At his initial trial on indictment 76-CR-218 the jury failed to agree. Defendant then entered a guilty plea to the conspiracy charge in indictment 76-CR-81 in satisfaction of all charges in the three pending cases. He now faces a maximum penalty of five years imprisonment and a $10,000 fine. 18 U.S.C. § 371.
Prior to sentencing, the defendant objected to suggestions in the presentence reports that he has strong ties to organized crime and is a "made" member of the "Gambino Family," reputedly a mafia-like group. The United States offered to support the allegation at a sentencing hearing. It proposed to rely on the testimony of an FBI agent based upon information furnished to him by a confidential informant whose identity would not be revealed.
Agreeing with the government that disclosure would imperil the life of the informer, this court nevertheless refused to hear the FBI agent's testimony, noting that "for the court, without disclosure, to rely upon such untested evidence in a situation such as the one before us would violate the Fifth Amendment right to Due Process and the Sixth Amendment right of Confrontation." United States v. Fatico, 441 F.Supp. 1285, 1289 (E.D.N.Y.1977). The Court of Appeals reversed, "holding that . . . neither the Confrontation nor the Due Process Clause is violated by use in sentencing of information supplied by an unidentified informant where there is good cause for not disclosing his identity, and the information he furnishes is subject to corroboration by other means." United States v. Fatico, 579 F.2d 707 at 708 (2d Cir. 1978). The additional evidence proffered by the Government to corroborate the informant consisted of the testimony of two unindicted co-conspirators, Salvatore Montello and Manuel Llauget, independent observations of police officers, and the defendant's criminal record. 579 F.2d at 709-710 & nn. 3, 4. In view of the Government's corroborative evidence, the Court of Appeals held that "the trial court erred in excluding the agent's testimony about the informer's declaration once the Government represented that it would produce the specified corroboration." Id. at 713.
The Court of Appeals accepted, and neither party challenges, this court's judgment that "membership in and ties to professional criminal groups are material facts that should be considered in sentencing." 579 F.2d at 710 & n. 5. It expressed "no views on the sentence ultimately to be imposed," id. at 714 n. 17, and indicated that "the weight given to the informer's declarations and the assessment of credibility are matters for the sentencing court." Id. at 713 n. 14.
B. Sentencing Hearing
Pursuant to the Court of Appeals' directive, an evidentiary sentencing hearing was held to determine whether, as reported in the pre-sentence report, the defendant was a "made" member of the Gambino family or otherwise involved in organized crime. The Government called ten witnesses. The defendant did not call any. In its original proffer, the Government had stated that one FBI agent would testify about information supplied to him by one reliable informant. At the hearing, the Government produced seven law enforcement agents— both federal and state—who testified that seventeen different informants had independently told them that the defendant and his brother, Carmine Fatico, a codefendant, were "made" members of the Gambino family.
Government witnesses painted a composite portrait of extensive organized crime activity in the New York City area. Briefly summarized, the following general conclusions of law enforcement agencies emerged during the course of the hearing. There are five active organized crime families operating in the greater metropolitan area: The Colombo family; the Lucchese family;
According to one witness, Aniello Dellacroce is now the boss of the Gambino family; Paul Castellano is the underboss and Joseph N. Gallo is the consiglier. The Gambino family now has at least twenty capos, including Carmine Fatico. Spread across the Eastern seaboard from Rhode Island to Florida and inland as far as Detroit there are allegedly some 1100 soldiers. Defendant is a "made" soldier. Transcript at pp. 177-85. The principal activities of the Gambino family are said to be loan sharking, hijacking, narcotics, gambling and extortion. Transcript at p. 32.
The first Government witness, Joseph Fanning, is a recently retired FBI agent with 27 years experience. Mr. Fanning spent the past sixteen or seventeen years on organized crime matters, most recently as a member of the Long Island Special Task Force on Organized Crime. For the past two years, he worked with someone who had informed since 1966-67. Fanning described the informant as a reliable, long active and highly placed member of the Gambino family. Transcript at pp. 9, 11, 20. On Easter Sunday 1978 the informant told him that both Daniel and Carmine Fatico had been members of the Gambino family for over twenty years. Transcript at pp. 12-13.
Martin Boland, an FBI agent for some fifteen years, had spent almost ten years in the New York Organized Crime Division. He had contact with another informant. First developed in 1971-72 and considered reliable by Boland (Transcript at pp. 26-27), the informant told this agent that Daniel Fatico was the brother of Carmine Fatico and worked under him as a "button." Transcript at p. 35. The two brothers reportedly specialized in hijacking and gambling. Transcript at p. 38.
Another FBI agent, Joseph F. Keating, testified that he had worked with a third informant for more than three years (Transcript at p. 61) and that the informant had proved reliable over time. Transcript at p. 63. Keating, an FBI agent for nine years and now with the New Rochelle Organized Crime Division, testified that his informant told him that he believed the Fatico brothers were members of the Gambino family. Transcript at pp. 65-66. He also testified that according to his information Danny Fatico had paid off police for gambling protection. Transcript at pp. 65, 72-73.
The next FBI agent, Charles Boling, had spent eight years with the Bureau and now works for its New York City Hijacking Squad. For the past five years he had cultivated a fourth informant, who, he said, consistently supplied reliable information. Transcript at pp. 77-81. Boling's informant reported that both Faticos were members of the Gambino family and that they operated a "crew" of associates. Transcript at pp. 79-80. According to this informant, Danny and Carmine Fatico engaged principally in gambling, loan sharking and hijacking. Transcript at p. 80.
Robert John, a detective investigator in the Suffolk County District Attorney's Office for eight years and a member of the Organized Crime Task Force in the Eastern District of New York, testified that on
The most far-ranging of all the testimony was that of Detective John P. Capobianco of the Brooklyn County District Attorney's Office. Capobianco, who coordinates organized crime investigations, has been on the police force for twenty-four years, nineteen of which were devoted to organized crime matters. His experience in the field dates back to his early days in Brooklyn where he grew up with various organized crime members including Vincent Napoli, recently sentenced by this court on separate heroin and gun convictions, and others like Sonny Francese, who was sentenced by the Chief Judge of this court to a long term for masterminding a series of bank robberies. Transcript at pp. 174-75. He testified that he personally worked with eight different informants, most of them since 1969-1970, and that they had proved reliable. Transcript at p. 187. Two, he noted, were no longer active — one was dead, the other has been missing since April. Transcript at p. 185. Only two of the informants knew each other. Transcript at p. 187. None of the informants were "made" members of the Gambino family. Transcript at pp. 203-04. The informants reported that Carmine Fatico was a "capo" and Daniel was a "button." Transcript at p. 188.
Capobianco also stated that in 1971-72 he had personally observed Carmine Fatico in front of the Ravenite Social Club on Mulberry Street talking with Joseph N. Gallo and Aniello Dellacroce. The Ravenite Social Club was reputedly the criminal headquarters of Dellacroce. The three men were doing a "walk and talk" to make sure they were not being bugged. Transcript at pp. 189-92. This confirmed testimony of Llauget and Montello respecting "sit downs," or arbitration conferences, conducted by the then underboss of the Gambino family, Dellacroce. See Government Exhibit 3, Hearings before the Permanent Subcommittee on Investigation, Committee on Government Operations, U.S. Senate, Eighty-Eighth Cong., First Sess., Chart C, p. 294. The detective also testified that on another occasion he had observed various other purported members of organized crime entering and leaving the Bergen Hunt and Fish Club when Daniel and Carmine Fatico were on the premises. Transcript at p. 192.
Kenneth McCabe, Detective Capobianco's partner, also testified. McCabe, with ten years in the New York City Police Department, has spent nine years working in the Kings County Organized Crime Unit. He stated that much of his information indicating Daniel and Carmine Fatico's criminal activities came from four additional confidential informants.
Detective McCabe authenticated a police arrest blotter for November 24, 1966 that showed that Carmine Fatico had been arrested for consorting with known criminals at the Ravenite Social Club. Transcript at p. 218. Also arrested were Dellacroce, Joseph N. Gallo and nine other reputed major criminals. The charges were dismissed. Transcript at pp. 218-23. McCabe stated that in 1970-71 he had observed Carmine Fatico with Dellacroce and Gallo at the Ravenite Social Club (Transcript at pp. 223-24) and that he has also observed Daniel Fatico with various other members of organized crime. Transcript at p. 224.
It was established on cross-examination that McCabe had no recollection of Mr. Michael Rosen, Carmine Fatico's attorney, although Mr. Rosen stated that he, too, had attended the Gambino wake. It was suggested that this fact cast doubt on McCabe's credibility, a conclusion this court rejected since, given the crowded conditions at the wake, it was hard to observe or identify all the mourners. Transcript at pp. 237-39.
Finally, both Salvatore Montello and Manuel Llauget, unindicted co-conspirators in the fur hijackings, testified. They had also been called as key witnesses in prior cases tried by the court where, after devastating attacks on their credibility, the juries had failed to convict. Both men have extensive criminal records running back over more than twenty years. See Government Exhibits 1 and 2, FBI record sheets. Llauget's record includes a conviction for murdering his wife. For the past three years both men and their families have been supported by the public under the Government's witness protection program.
Montello admitted that he had been an associate, but not a "made" member of the Colombo crime family and had worked for the Faticos whom he knew, through other organized crime sources, to be "made" members of the Gambino family. Transcript at pp. 92, 94-95, 114-15. He testified that in 1971 he had known the Faticos for several years, having first met them at social clubs which the Faticos ran in the early 1960s. According to Montello and Llauget, these clubs, such as the Bergen Hunt and Fish Club in Queens, were centers for gambling and other organized crime activities. Transcript at pp. 96, 138. In 1969 Carmine Fatico offered Montello a "piece" of his gambling operation in Suffolk County, and put Montello on notice that he, Fatico, was in the market for truckloads of stolen goods. Transcript at pp. 103-06. In 1971, when Montello and Llauget began working with the Faticos, it was clear to Montello from the demeanor of the Faticos and from the respect they received in the criminal community that they were "made" members of an organized crime family. Transcript at pp. 95, 110.
In addition, Montello (Transcript at pp. 107-08) and Llauget both testified that in March of 1971, when a dispute arose concerning the quantity and quality of some 7,000 hijacked furs delivered to the Faticos, a "sit-down" was arranged with Underboss Aniello Dellacroce. Llauget was taken by Daniel Fatico to a "social club" on Mulberry Street in Manhattan where Fatico and Llauget met with Dellacroce and the disgruntled "buyer" of the furs. Dellacroce arbitrated the dispute and, after questioning Llauget about furs, decided that Llauget was telling the truth and would be paid the agreed price for the stolen furs. Transcript at pp. 107-08, 140-46; cf. Testimony of Detective Capobianco, supra.
C. Daniel Fatico
The presentence report reveals that the defendant Daniel Fatico was born in Brooklyn, New York in 1920, the youngest of seventeen children of Carmine and Libera Fatico, his Italian born immigrant parents. Only three of his siblings survived beyond childbirth or infancy. Two of the brothers followed their father into the Sanitation Department and two went into crime.
The defendant was raised in the then predominantly Italian working class neighborhood of East New York in Brooklyn. After his father was killed in a fall from a roof in 1923, his mother kept the family
At age twenty-one, defendant married his present wife. They have three grown children, all productively and legally employed. The couple live in a two-family home, located in the middle class residential neighborhood of Sheepshead Bay, Brooklyn and jointly owned and occupied by the families of the defendant and his son-in-law.
The defendant's extensive criminal record spanning the past 36 years began in 1941 when, at twenty, he was placed on probation for three years after being convicted of unlawful entry. Thereafter followed, at regular intervals, more than twenty convictions for assaults, bookmaking and operating an illicit still and some fifteen dismissals or acquittals for gambling offenses. Almost all of the convictions were in the state court and they resulted in small fines or probation. After a jury trial this year defendant was convicted in this court of operating a high stakes crap game and was sentenced to three years. 78 CR 19 (E.D.N. Y.). He is appealing that conviction.
The defendant's present physical health is fair. He has been hospitalized a number of times recently for various physical problems. His wife has high blood pressure and recently had heart surgery. Neither he nor any member of his family has ever experienced mental or emotional difficulties. He is polite in court and responds to questions in a low-keyed, calm fashion.
He lists his occupation as a salesman-manager for a firm which sews parts of garments; his weekly gross salary is $185.00. Income tax forms reflect his gross earnings of $9,600 for 1976, and joint earnings of $12,470 in 1975 and $15,595 in 1974. The only substantial asset he is known to have is an equity of some $30,000 in his home. He claims no bank accounts or automobiles.
D. Judicial Notice—Organized Crime
As we did in our prior decision in this case, 441 F.Supp. at 1288, we take judicial notice of the fact that, based on our own court records, there have been major hijacking gangs preying on interstate and international commerce at Kennedy Airport. Federal Rules of Evidence, Rule 201. There is substantial evidence that organized crime is involved in these operations which require extensive and rapid fencing. The instant hijacking falls into this general pattern.
Somewhat less clear is the connection between defendant's gambling activities and organized crime. In 1974 the Department of Justice asserted:
Statement before the Commission on the Review of the National Policy Toward Gambling, May 15, 1974 (N.T.I.S., Springfield, Va.) PB.253610, p. 5 cited in Reuter and Rubinstein, "Imaginary Numbers" (1978), at p. 4 (research paper funded by grants from the National Institute for Law Enforcement and Criminal Justice of the Law Enforcement Assistance Agency). See Kihss, "Mob's Role Discounted in Gambling," New York Times, June 26, 1978, p. 1, at cols. 1-2. The recently released Reuter-Rubinstein report, based on several years of study of the "structure and operation of the gambling rackets in metropolitan New York since 1965," Reuter and Rubinstein, supra, at p. 6, sharply disputes the Justice Department's "standard account." Id. at p. 8. "Most bookmakers," it concludes:
1. Critical Stage of Criminal Process
Sentencing is a critical, often the most critical, stage of criminal proceedings. See Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977); Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967); United States v. Pinkney, 179 U.S.App.D.C. 282, 290, 551 F.2d 1241, 1249 (1976); 8A Moore, Federal Practice, 32.04 at 32-59. In the vast majority of cases which result in a plea of guilt, it is, for the defendant, the only critical stage. Id. 32.04 at 32-50.1. See generally, Note, Rule 11 and Collateral Attack on Guilty Pleas, 86 Yale L.J. 1395, 1395 at n. 1 (1977); Note, The Oath in Rule 11 Proceedings, 46 Fordham 1242, 1243 n. 14 (1978) (80-95% of all criminal cases are disposed of by guilty pleas). Nevertheless, we continue to
M. Frankel, "Criminal Sentences: Law Without Order," vii (1972). See Coffee, The Future of Sentencing Reform: Emerging Legal Issues in the Individualization of Justice, 73 Mich.L.Rev. 1361 (1975); Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821 (1968).
2. Presentence Report
The 1975 amendments to the Rules of Criminal Procedure reflect an increasing awareness of the importance of reliable information as a predicate for proper sentencing. Prior to 1966 the practice was not to reveal presentence reports to the defendant or counsel. In 1966, disclosure was made permissive. In 1975, it became mandatory. Rules of Criminal Procedure, Rule 32(c)(3)(A).
It is significant that Congress, by legislation expressing national policy, added a final sentence to the Supreme Court's proposed draft of Rule 32(c)(3)(A). It provides that, at the discretion of the court, the defendant is to be afforded the opportunity to introduce testimony or other information relating to "any factual inaccuracy contained in the presentence report." See 8A Moore, Federal Practice, 32.03, at 32-42-43, & 32.01, at 32-14-15 (summary of legislative history).
The Advisory Committee to the Supreme Court stated that the purpose of mandatory disclosure was to assure factual accuracy.
Proposed amendments to Federal Rules of Criminal Procedure for the United States
Report No. 94-247 [to accompany H.R. 6799] 94th Cong., 1st Sess. 18 (1975), U.S. Code Cong. & Admin.News 1975, pp. 674, 689 (emphasis added). Cf. Swisher v. Brady, ___ U.S. ___, ___, 98 S.Ct. 2699, 2714, 57 L.Ed.2d 705 (1978) (noting "the importance to a reliable factfinding process of hearing live witnesses.").
The typical presentence report "contains a fairly superficial summary of the biographical facts of a defendant's life." 8A Moore, Federal Practice, op. cit. supra, 32.03 at 32-39-40. The probation officer has a brief period to make his investigation, and, burdened by a heavy caseload, can devote limited time to each report. Id. at 32-40. As a result, for information on the defendant's crime and criminal background, the probation officer is "likely to rely uncritcally on reports supplied by the prosecutor, who cannot be expected to be disinterested." Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L. Rev. 821, 837 (1968) (footnote omitted); Moore, supra, at 32.03, at 32-39. This limitation
Id. at 32-40 (footnote omitted).
3. Due Process Limitations on Sentencing
The history of current due process applications to sentencing is described in this court's prior opinion. See United States v. Fatico, 441 F.Supp. 1285, 1289-95 (E.D.N.Y. 1977). Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), which permits wide scope to a sentencing court in obtaining information through hearsay, has not been overruled by Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Although the "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed," Lockett v. Ohio, ___ U.S. ___, ___, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), Williams, as Judge Friendly has pointed out, should not be overread to "mean that the due process clause [has] no application to mere sentencing." Hollis v. Smith, 571 F.2d 685, 693 (2d Cir. 1978). Reliability, though literally of vital importance in capital cases, is significant in all sentencings. It is relevant that in Gardner the Court relied upon due process analysis.
Note, Gardner v. Florida: The Application of Due Process to Sentencing Procedures, 63 Va.L.Rev. 1281, 1297 (1977) (footnote omitted).
The Circuit Courts are in fundamental agreement that:
United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970) (emphasis added); United States v. Fatico, 579 F.2d 707 at 712 (2d Cir. 1978); United States v. Needles, 472 F.2d 652, 657 (2d Cir. 1973); United States v. Bass, 175 U.S.App.D.C. 282, 290, 292-293, 535 F.2d 110, 118, 120-21 (1976) (Bazelon, C. J.); United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). "Additionally, a significant possibility of misinformation justifies the sentencing court in requiring the Government to verify the information." United States v. Fatico, supra, 579 F.2d at 712-713; United States v. Weston, supra, 448 F.2d at 634, United States v. Bass, supra, 175 U.S.App.D.C. at 293, 535 F.2d at 121; United States v. Needles, supra, 472 F.2d at 658. In such instances, "it is impermissible to place the burden of refutation on defendants." United States v. Bass, supra, 175 U.S.App.D.C. at 292, 535 F.2d at 120, relying on United States v. Weston, supra, 448 F.2d at 634; United States v. Perri, 513 F.2d at 572, 574 (9th Cir. 1975); United States v. Stein, 544 F.2d 96, 102 (2d Cir. 1976). Decisions about appropriate procedures to insure reliable information are left largely to the discretion of the sentencing judge. Needles, supra, 472 F.2d at 658; United States v. Rosner, 485 F.2d 1213, 1230 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974).
In Weston the Court vacated the sentence and instructed the District Court that, on resentencing, it could not rely upon the information in the presentence report "unless it is amplified by information such as to be persuasive of the validity of the charge there made." Supra, 448 F.2d at 634. See United States v. Fatico, supra, 579 F.2d at 713 n. 12; Nickens v. State, 17 Md.App. 284, 301 A.2d 49, 52 (Ct.Spec.App.1973) (the use of hearsay allegations at sentencing required the prosecution to establish "informational reliability" to the satisfaction of the sentencing judge and to make "some showing of the credibility of the source;" the court looked in part to fourth amendment "probable cause" cases in evaluating the degree of corroboration necessary to rely on hearsay allegations); Coffee, the Future of Sentencing Reform: Emerging Legal Issues in the Individualization of Justice, 73 Mich.L.Rev. 1361, 1425-29 (1975); Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 846 (1968).
4. Protections Not Afforded the Defendant
a. The Right of Confrontation
The Court of Appeals determined that defendant does not have the right to confront key informants whose statements will be used against him at sentencing. United States v. Fatico, supra, 579 F.2d at 713. The inability of the defendant to cross-examine any of the seventeen informants relied upon by the Government made it difficult for him to defend against serious charges. The bias and lack of reliability, if any, of an informant could not be explored by asking specific questions about the basis for his belief, his capacity to make the observations he reported, the accuracy of his memory, his ability to communicate what he observed, and his desire and capacity to tell the truth — in short, his credibility. Under such circumstances it is difficult to assess the probative force of the information relied upon by the prosecution. The Government was able to do exactly what it was excoriated for doing in United States v. Check, 582 F.2d 668 at 683 (2d Cir. 1978):
The law enforcement officers testified that the informers were independent of each other, yet gave consistent information. This corroboration increases the probability of reliability of the hearsay. Cf. Silver v. New York Cent. R. Co., 329 Mass. 14, 105 N.E.2d 923
b. Unavailability of Prior Statements
The problems of defense counsel in probing for chinks in the armor of the prosecution's witnesses was compounded by his inability to obtain prior statements of the law enforcement officials. The Court was bound by the Second Circuit's rulings that the Jencks Act — 18 U.S.C. § 3500 — allows the Court to order revelation of only a trial witness' statement. See, e.g., United States v. Sebastian, 497 F.2d 1267 (2d Cir. 1974); United States v. Percevault, 490 F.2d 126 (2d Cir. 1974); United States v. Covello, 410 F.2d 536 (2d Cir. 1969), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969). Following the direct testimony of each of the Government's witnesses, the court rejected the defendant's demand to inspect redacted copies of the witness' relevant statements.
It is well known to trial judges that the most effective cross-examination of prosecution witnesses in criminal cases is usually based upon such statements. Denied this critical tool, defense counsel was unable to cross-examine effectively the FBI agents and detectives who relied on the informants. As the record demonstrates, he could make only the most perfunctory inquiries of the Government's witnesses. Not only did this severely disadvantage the defendant, but it diminished the court's ability to assess the credibility of both the witnesses and the extra-judicial declarants, the informants.
The questionable nature of the Second Circuit's rigidly narrow construction of the Jencks Act has been noted. See, e.g., United States v. Covello, 410 F.2d 536 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969); United States v. Sebastian, 497 F.2d 1267 (2d Cir. 1974); United States v. Percevault, 61 F.R.D. 338 (E.D.N. Y.1973), rev'd, 490 F.2d 126 (2d Cir. 1974). The Court of Appeals for the Second Circuit concedes that the legislative history of the Act provides little guidance about the extent of its application beyond the trial stage.
United States v. Covello, supra, 410 F.2d at 544 (2d Cir.). See United States v. Sebastian, supra, 497 F.2d at 1269 (2d Cir. 1974). In addition, the Court of Appeals has noted the various policy considerations that argue in favor of inspection at a pretrial suppression hearing. These include the fact that the findings at such a hearing "will often determine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact . . .." United States v. Sebastian, supra, 497 F.2d at 1270. Moreover, "a government witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefit of Jencks Act material." Id. Reliance by the Court of Appeals on possible "intimidation of witnesses," United States v. Percevault, supra, 490 F.2d at 131, has, of course, no bearing on a sentencing hearing where the witnesses are law enforcement officers.
United States v. Sebastian, supra, 497 F.2d at 1270. While the Court of Appeals has not considered the application of the Jencks Act to sentencing proceedings, its rationale limiting the Act solely to trials would, necessarily, apply to sentencing. But see United States v. Murphy, 569 F.2d 771, 774 n. 11 (3d Cir. 1978) (leaving issue open, but collecting cases suggesting "some authority for requiring Jencks material at post-trial hearings").
In spite of this narrow construction of the Act, the language of the original Jencks decision cannot be ignored. That decision, which led to the passage of the Act, suggests that the need for Jencks discovery is just as great at a sentencing hearing to determine a critical fact not established at trial that directly affects the defendant's liberty, as it would be at trial.
Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103 (1957). This rationale pervades the Jencks decision and warrants a holding that the Jencks case protections should apply at the sentencing hearing in this case.
Unable to cross-examine the informants, the defendant's only hope was to attack the credibility of the Government agents by attempting to impeach them with their prior statements and reports. Without this limited weapon, the defendant remained virtually defenseless. Nor could the defendant rely on a subsequent trial to rectify any inaccurate findings. Unlike a pre-trial hearing, which may be followed by a trial at which the defendant is afforded full procedural protections, sentencing is the end of the line. The defendant has no opportunity to relitigate factual issues resolved against him. Where the facts relied upon at sentencing have already been determined at trial, this is of little, if any, consequence. But in this case, where, after a guilty plea, the critical fact was litigated for the first time at the sentencing hearing, the defendant is irreparably disadvantaged. This case suggests the wisdom of the dissenting Justices —Chief Justice Warren, Mr. Justice Brennan, Mr. Justice Black and Mr. Justice Douglas — in Palermo v. United States, 360 U.S. 343, 361, 79 S.Ct. 1217, 1229, 3 L.Ed.2d 1287 (1959). They wrote:
The absence of the basic protections (1) of confronting and cross-examining key extra-judicial witnesses, and (2) of obtaining material necessary to examine properly the live witnesses who reported the informants' extra-judicial statements, underscores the importance of the burden of proof protection. Before we turn to this matter it is necessary to consider the liberty interest of defendant.
B. Liberty Interest of Defendant at Sentencing
1. In General
A substantial liberty interest is at stake in sentencing. United States v. Fatico, 441 F.Supp. 1285, 1292-93 (E.D.N.Y.
2. "Special Offender" Status
Although there is loss of present liberty, and the "Due Process Clause is plainly implicated at sentencing," it "does not necessarily follow . . . that all of the procedural safeguards and strict evidentiary limitations of a criminal trial proper are required." United States v. Fatico, supra, 579 F.2d at 711 (citations omitted). How much protection is mandated depends in large part on the precise nature of the liberty at stake. "[E]ach stage of the criminal trial and post-conviction process must be examined independently in determining a defendant's due process rights." Id. at 711 n. 10 (citations omitted).
Courts of Appeals in this and other circuits have recognized the serious ramifications of labeling a convicted, sentenced and incarcerated defendant a "special offender." A prisoner suffers serious additional penalties when, as the result of Correction Authority and Parole Board decisions, he is so characterized because he was a participant in organized crime. Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975); Holmes v. United States Board of Parole, 541 F.2d 1243 (7th Cir. 1976); Polizzi v. Sigler, 564 F.2d 792 (8th Cir. 1977). All agree that:
Cardaropoli v. Norton, supra, 523 F.2d at 994. See Holmes v. United States Board of Parole, supra, 541 F.2d at 1250-51; Polizzi v. Sigler, supra, 564 F.2d at 796-97. Social furloughs, work release, transfer to Community Treatment Centers and the opportunity for early parole have been held to be "cognizable benefits extended to all prisoners," Cardaropoli v. Norton, supra, 523 F.2d at 994-95, which may not be denied in the absence of due process.
Id. at 995 (citations and footnotes omitted). See, Holmes v. United States Board of Parole, supra, 541 F.2d at 1251; Polizzi v. Sigler, supra, 564 F.2d at 796-97.
In mandating appropriate procedures the courts have attempted to "strike a reasonable equipoise between inmate and institutional needs." Cardaropoli v. Norton, supra, 523 F.2d at 997.
Id. at 995-96 (footnote omitted). The Court of Appeals in Cardaropoli endorsed the detailed protective procedures outlined in the district court decision by Judge Zampano. Id. at 996-97. But, in spite of its overriding concern about the accuracy of
A powerful argument can be made that it is the sentencing judge, not prison authorities, who should have the primary responsibility for characterizing the defendant as a special offender when the decision is predicated on events that took place prior to incarceration. The judge is certainly far more expert at evaluating the evidence and applying a legal standard governing the burden of proof. Moreover, the courtroom setting makes it relatively simple to guarantee basic procedural protections.
Whether or not the drafters intended this result, the newly amended Rule 32, which in most instances requires disclosure of the presentence report, will operate to shift much of this responsibility back to the sentencing judge. Disclosure of the presentence report prior to the imposition of sentence should, in many instances, result in challenge to, and resolution of, the special offender status of the defendant before imprisonment, thus obviating the need for prison authorities to make this determination. Defense counsel have an obligation to request that presentence reports be corrected lest serious errors in them be relied upon by prison or parole authorities as well as by the court to defendant's detriment. See Sentencing Standards for Eastern District of New York, I A 4 a, N.Y.L.J., October 15, 1977, p. 1.
If we utilize the balancing factors suggested by Judge Friendly and approved in Cardaropoli, we note that there is in one pan of the scale but a slight burden on the sentencing judge who must supply the defendant with additional procedural protections. In the other pan, the defendant's need for such protections prior to the imposition of sentence is great. A defendant not yet sentenced has a liberty interest even stronger than that of a parolee or of a sentenced and incarcerated defendant about to be classified as a special offender.
Note, Gardner v. Florida: The Application of Due Process to Sentencing Procedures, 63 Va.L.Rev. 1281, 1290 (1977) (footnotes omitted). Courts recognize this stronger interest by requiring counsel at all initial sentencings but not at all parole revocations. Compare Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256-57, 19 L.Ed.2d 336 (1967), with Gagnon v. Scarpelli, 411 U.S. 778, 783-91, 93 S.Ct. 1756, 1760-64, 36 L.Ed.2d 656 (1973). See In re Ballay, 157 U.S.App.D.C. 59, 67, 482 F.2d 648, 656 (1973).
In the instant case, the defendant, like all other defendants convicted of a crime but not yet sentenced, has this strong liberty interest at stake. Should the court determine that he is a member of organized crime, he will endure not only the "grievous loss" suffered by special offenders already incarcerated, but he will receive a substantially longer prison term.
C. Burden of Proof
1. The Continuum
a. Burdens in General
We begin with the caution of Justice Brennan in Speiser v. Randall, 357 U.S. 513, 520-21, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460 (1958), about the crucial nature of fact finding procedures:
The "question of what degree of proof is required . . . is the kind of question which has traditionally been left to the judiciary to resolve . . .." Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966).
In re Ballay, 157 U.S.App.D.C. 59, 73, 482 F.2d 648, 662 (1973).
As Justice Harlan explained in his concurrence in In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075-76, 25 L.Ed.2d 368 (1970), the choice of an appropriate burden of proof depends in large measure on society's assessment of the stakes involved in a judicial proceeding.
Thus, the burden of proof in any particular class of cases lies along a continuum from low probability to very high probability. See, e.g., United States v. Schipani, 289 F.Supp. 43, 56-57 (E.D.N.Y.1968), aff'd, 414 F.2d 1262 (2d Cir. 1969); Maguire et al., Cases and Materials on Evidence 1034-40 (6th ed. 1973).
b. Preponderance of the Evidence
As a general rule, a "preponderance of the evidence" — more probable than not — standard is relied upon in civil suits where the law is indifferent as between plaintiffs and defendants, but seeks to minimize the probability of error.
In re Winship, 397 U.S. 358, 371-72, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan concurring) (footnotes omitted). Quantified, the preponderance standard would be 50 + % probable. United States v. Schipani, 289 F.Supp. 43, 56 (E.D.N.Y. 1968), aff'd, 414 F.2d 1262 (2d Cir. 1969); Maguire et al., Cases and Materials on Evidence, 871-73 (6th ed. 1973). But cf. M. Finkelstein, Quantitative Methods in Law, 59-78 (1978) (equalization of errors between parties may
The preponderance of the evidence test has also been used to determine the admissibility of evidence under the constitutional exclusionary rules. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (plurality opinion) (voluntariness of a confession); United States v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 996 n. 14, 39 L.Ed.2d 242 (1974) (fourth amendment suppression). Cf. Franks v. Delaware, ___ U.S. ___, ___, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (preponderance standard used used to challenge affidavit supporting a search warrant). In Lego, the Court explained that the procedures to determine the validity of a confession are "designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances." 404 U.S. at 486, 92 S.Ct. at 625. The jury must still determine the "accuracy or weight of confessions admitted into evidence." Id. The Court thus concluded that:
Id. See, e. g., Tanner v. Vincent, 541 F.2d 932, 937 n. 6 (2d Cir. 1976), cert. denied, 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d 782 (1977) (under New York State law the judge at the Huntley hearing must find voluntariness beyond a reasonable doubt); United States v. Miley, 513 F.2d 1191, 1201 (2d Cir. 1975), cert. denied sub nom., Goldstein v. United States, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975) (voluntariness of consent for search). See generally, Saltzburg, Standard of Proof and Preliminary Questions of Fact, 27 Stan.L.Rev. 271, 305 (1975) (suggesting that the Court's Lego rule be altered to provide that the beyond a reasonable doubt standard be substituted for the preponderance standard "whenever the defendant can demonstrate a need for protection that overrides any countervailing concerns of the criminal justice system.").
After sentencing, the defendant does not retain the opportunity to relitigate some questions that he has after an adverse pre-trial determination. In addition, in the case before us, the facts critical to sentencing are hardly collateral; they cut to the heart of the defendant's liberty. Cf. Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957); McCray v. Illinois, 386 U.S. 300, 313-14, 87 S.Ct. 1056, 1064, 18 L.Ed.2d 62 (1967); Cooper v. California, 386 U.S. 58, 62 n. 2, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967) (informer may not be immunized from effective attack by defendant if this information is crucial to a "substantive" rather than a "procedural" decision); Rule 510 of the proposed Rules of Evidence promulgated by the Supreme Court, but not adopted by Congress. Since the factual determination of the sentencing judge is final, the defendant deserves substantial protection, including a burden of proof higher than that used in negligence cases.
c. Clear and Convincing Evidence
In some civil proceedings where moral turpitude is implied the courts utilize the standard of "clear and convincing evidence" — a test somewhat stricter than preponderance of the evidence. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 331-32, 94 S.Ct. 2997, 3003, 41 L.Ed.2d 789 (1974) (libel); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 50-52, 91 S.Ct. 1811, 1823-24, 29 L.Ed.2d 296 (1971) (libel); Tippett v. State of Maryland, 436 F.2d 1153, 1165-66 (4th Cir. 1971) (Delinquency Act) (Sobeloff, J., concurring and dissenting in part); Collins Securities Corp. v. SEC, 562 F.2d 820, 824-26 (D.C. Cir. 1977) (securities fraud); 9 Wigmore, Evidence § 2498, p. 329 (3d ed. 1940) (fraud, undue influence, parol or constructive trust). See also civil commitment cases cited in section II (C)(e), infra.
Where proof of another crime is being used as relevant evidence pursuant to
Quantified, the probabilities might be in the order of above 70% under a clear and convincing evidence burden.
d. Clear, Unequivocal and Convincing Evidence
"[I]n situations where the various interests of society are pitted against restrictions on the liberty of the individual, a more demanding standard is frequently imposed, such as proof by clear, unequivocal and convincing evidence." In re Ballay, 157 U.S.App.D.C. 59, 73, 482 F.2d 648, 662 (1973). The Supreme Court has applied this stricter standard to deportation proceedings, see Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 285-86, 87 S.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966), denaturalization cases, see Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944); Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960), and expatriation cases, see Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806 (1955); Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659 (1958). In Woodby, the Court explained:
Supra, 385 U.S. at 285, 87 S.Ct. at 487-88 (citations omitted). See Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1296-97 (1975). In terms of percentages, the probabilities for clear, unequivocal and convincing evidence might be in the order of above 80% under this standard. See section II(C)(3) infra.
e. Proof Beyond a Reasonable Doubt
The standard of "proof beyond a reasonable doubt" is constitutionally mandated for elements of a criminal offense. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Cf. Gagnon v. Scarpelli, 411 U.S. 778, 789 n. 12, 93 S.Ct. 1756, 1763 n. 12, 36 L.Ed.2d 656 (1973) (because a probationer or parolee is "already-convicted," proof beyond a reasonable doubt standard not needed in revocation hearing). Writing for the majority in Winship, Justice Brennan enumerated the "cogent reasons" why the "`reasonable-doubt' standard plays a vital role in the American scheme of criminal
Id. at 363-64, 90 S.Ct. at 1072-73. See generally, Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299 (1977).
In capital cases, the beyond a reasonable doubt standard has been utilized for findings of fact necessary to impose the death penalty after a finding of guilt. See Gregg v. Georgia, 428 U.S. 153, 164, 96 S.Ct. 2909, 2921, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 269, 96 S.Ct. 2950, 2955, 49 L.Ed.2d 929 (1976).
Many state courts, in interpreting state recidivism statutes, have held that proof of past crimes must be established beyond a reasonable doubt. See, e.g., Smith v. State, 243 Ind. 74, 181 N.E.2d 520, 522 (1962); State v. Martin, 336 S.W.2d 394, 397 (Mo. 1960); People v. Reese, 258 N.Y. 89, 179 N.E. 305, 308 (1932) (Cardozo, C. J.); see also In re Yurko, 10 Cal.3d 857, 862, 112 Cal.Rptr. 513, 516, 519 P.2d 561, 564 (1974) (en banc) (dictum); Note, Recidivist Procedures, 40 N.Y.U.L.Rev. 332, 341-42 & n. 59 (1965); Note, The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals, 89 Harv. L.Rev. 356, 383 n. 140 (1975) (citing these and other cases).
In civil commitment cases, where the stakes most resemble those at risk in a criminal trial, some courts have held that the beyond a reasonable doubt standard is required. See In re Ballay, 157 U.S.App. D.C. 59, 482 F.2d 648 (1973); Suzuki v. Quisenberry, 411 F.Supp. 1113 (D.Hawaii 1976); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974). Others indicate a clear and convincing test will suffice. See, French v. Blackburn, 428 F.Supp. 1351 (M.D.N.C.1977); Doremus v. Farrell, 407 F.Supp. 509 (D.Neb. 1975); Stamus v. Leonhardt, 414 F.Supp. 439 (S.D.Iowa 1976); Hollis v. Smith, 571 F.2d 685, 695 n. 9 (2d Cir. 1978) (citing these cases); Note, The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals, 89 Harv. L.Rev. 356, 383 n. 140 (1975) (citing additional cases).
If quantified, the beyond a reasonable doubt standard might be in the range of 95 + % probable. United States v. Schipani, 289 F.Supp. 43, 57 (E.D.N.Y. 1968), aff'd, 414 F.2d 1262 (2d Cir. 1969). See further discussion in section II(C)(3), infra.
2. Preponderance Standard of the "Dangerous Special Offenders" Act.
Only "a preponderance of the information" produced at a hearing after a plea or finding of guilt is needed to prove that a
The statute provides three categories of factual predicates.
18 U.S.C. § 3575(e). The facts required to be proved are technically defined. A substantial source of income is, for example, the minimum wage for a forty-hour, fifty-week year.
One reason this statute probably was not relied upon by the Government is that it is doubtful that it could demonstrate that the defendant fits within any of the three precise categories the statute prescribes. A more important reason is that notice must be given "a reasonable time" before trial or plea. 18 U.S.C. § 3575(a). This requirement is designed to advise defendant of the risk he runs should he plead guilty. See Federal Rules of Criminal Procedure, Rule 11(c)(1). Given the evidence against him and the prior hung jury, had he been faced with a twenty-five year sentence it is doubtful that this defendant would have pled guilty. This conclusion is suggested by eleventh-hour motions defendant, Daniel Fatico, and his brother, Carmine, have made to withdraw their pleas of guilt on the ground that,
These motions were denied. More than a year, an appeal, and a full evidentiary hearing followed the original pleas. Under these circumstances, disappointment over the extent of a sentence that is within statutory limits is not a proper ground for setting aside a plea of guilt. See United States v. Michaelson, 552 F.2d 472, 475 (2d Cir. 1977); United States v. Needles, 472 F.2d 652, 655-656 (2d Cir. 1973); United States v. Barker, 168 U.S.App.D.C. 312, 323, 514 F.2d 208, 219 (1975), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975).
By not proceeding under the statute, the Government has also deprived the defendant of the considerable procedural protections it affords. See United States v. Stewart, 531 F.2d 326, 332 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). "[T]he Act provides far more due process protection for a convicted offender at a hearing on an enhanced sentence than is required in normal criminal prosecutions in either state or federal jurisdictions . . .." United States v. Ilaqua, 562 F.2d 399, 403 n.7 (6th Cir. 1977). We need not, therefore, consider the constitutional validity of the portion of the statute that might apply to defendant. See United States v. Neary, 552 F.2d 1184, 1193 (7th Cir. 1977), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1978) (refusing to consider constitutionality of subdivision (e)); United States v. Williamson, 567 F.2d 610, 613 (4th Cir. 1977) (same); and United States v. Bowdach, 561 F.2d 1160, 1174-75 (5th Cir. 1977) (considering constitutionality of § 3575(e)(1) and (f) only); United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49
3. Higher Sentence Based on Proof of a Fact Not Established in Criminal Trial
In 1967 the Supreme Court decided Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. Specht had been convicted for taking indecent liberties, under a Colorado statute that carried a maximum sentence of 10 years. A separate statute, the Sex Offenders Act, provided that if the trial court was "of the opinion that [a] . . . person (convicted of specified sex offenses), if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill," he might receive an indeterminate sentence of from one day to life. Characterizing the invocation of the Colorado Sex Offenders Act as "the making of a new charge leading to criminal punishment," the Court held that the defendant must be afforded substantial due process. Id. at 610, 87 S.Ct. at 1212.
More recently, the Second Circuit in an opinion by Judge Friendly, decided a case similar to Specht involving a New York sex offender statute. Hollis v. Smith, 571 F.2d 685, 688 (2nd Cir. 1978). Unlike the Colorado statute, New York's did not, on its face, require proof of a new fact before imposition of the indeterminate sentence. Rather, it "simply enlarged the court's sentencing discretion without any standards whatever . . ." from a maximum of five years to a maximum of life. Id. at 688. The state courts, however, had interpreted the statute to require a psychiatric study and finding that the defendant is a danger to society or is capable of benefiting from confinement.
In Hollis v. Smith, the Second Circuit determined that due process requires proof of the critical fact at issue by "clear, unequivocal and convincing evidence." 571 F.2d 685, 695-96 (2d Cir. 1978). It found the evidence relied upon for the longer sentence did not measure up to that standard and granted a writ of habeas corpus.
In the instant case, proof by the Government that the defendant is a member of organized crime was not established in the criminal trial. As in Hollis, proof of this critical fact will result in a substantially longer period of incarceration. But, unlike Hollis, proof of the fact is not a previously defined prerequisite to a longer sentence. This difference, however, is of little consequence and Judge Friendly did not base his holding on it.
Note, The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals, 89 Harv.L.Rev. 356, 375 (1975).
Following what we believe to be the letter and spirit of Hollis, and the need to protect critical rights of liberty, we hold that when the fact of membership in organized crime will result in a much longer and harsher sentence, it must be established by "clear, unequivocal and convincing evidence." Cf. Note, Burdens of Proof at Sentencing, 66 Geo.L.J. 1515 (1978) (clear and convincing). Since this is a federal conviction, not a habeas corpus proceeding, we need not determine whether this holding rests on due process, as Judge Friendly suggests, or upon the judicial responsibility to properly administer litigation. Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966).
Flexibility is even reflected in the standard charge on reasonable doubt — "a doubt sufficient to cause a prudent person to hesitate to act in the most important affairs of his life." Holt v. United States, 218 U.S. 245, 254, 31 S.Ct. 2, 6-7, 54 L.Ed. 1021 (1910); 1 E.J. Devitt and C.B. Blackmar, Federal Jury Practice and Instructions § 11.14, p. 310 (4th ed. 1977). The charge gives the trier considerable freedom to require greater probability for more important issues. As Professor Friedman sensibly observed, confirming what judges see happening in the courtroom:
Friedman, Standards of Proof, 33 Can.Bar Rev. 665, 670 (1955).
The issue of membership in an organized crime family may be even more important than a prior conviction — and problems of proof are much more difficult. Considering the need to avoid extended sentencing hearings, the standard suggested by the Second Circuit in Hollis is appropriate. As indicated below, most judges in this district would place the probabilities of a "beyond a reasonable doubt" standard lower than would this court and would not find the Hollis test particularly high. For this and other reasons, this court believes a "beyond a reasonable doubt" burden more consonant with the tradition of American due process. Based on cases in this Circuit, however, Hollis probably articulates the highest burden acceptable to the Court of Appeals. Any lower standard under the circumstances would be imprudent. Kadish, Legal Norm and Discretion in the Police and Sentencing Process, 75 Harv.L.Rev. 904, 923 (1962). "The moral force of the criminal law [should] not be diluted by a standard of proof that leaves men in doubt whether innocent men are being condemned." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). As Chief Judge Cardozo so aptly put the matter: "[T]he genius of our criminal law is violated when punishment is enhanced in the face of a reasonable doubt as to the facts leading to enhancement." People v. Reese, 258 N.Y. 89, 179 N.E. 305, 308 (1932).
Professor Underwood, in a recent article cites a number of studies suggesting that judges, as well as laymen, will not always make the fine distinctions between preponderance, clear and convincing, clear unequivocal and convincing, and beyond a reasonable doubt described in this and other opinions. The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1311 (1977). Those interviewed placed the probability standard higher than would be expected on theoretical grounds for a preponderance and somewhat lower than might be expected for
(Footnotes omitted). But cf. H. Kalven, Jr. and H. Zeisel, The American Jury, 187 (1966) ("the jury takes more generously than the judge the law's admonition not to convict unless guilt is proved beyond a reasonable doubt"); W. B. Fairley and F. Mosteller, Statistics and Public Policy, 182 (1977) (Harvard Business School students; "very high probability" and "practically certain" have median quantitative meaning of 90%, but distributions show "practically certain" "is generally a higher number.").
A survey of district judges in the Eastern District of New York indicates the following assessment of probabilities:
Probabilities Associated with Standards of Proof Judges Eastern District of New York Judge Preponderance Clear and Clear, Unequivocal Beyond a Convincing and Convincing Reasonable Doubt 1 50+ % 60-70% 65-75% 80% 2 50+ % 67% 70% 76% 3 50+ % 60% 70% 85% 4 51% 65% 67% 90% 5 50+ % Standard is Elusive 90% and Unhelpful 6 50+ % 70+ % 70+ % 85% 7 50+ % 70+ % 80+ % 95% 8 50.1% 75% 75% 85% 9 50+ % 60% 90% 85% 10 51% Cannot Estimate Numerically
This wide variation confirms the wisdom of Maimonides, who justified the high probability requirement in criminal cases partly on the ground that some triers would tend to shave the barriers to a finding of guilt. He wrote:
Maimonides, Safer HaMitzvot, Negative Commandment 290, quoted in N. L. Rabinovich, Probability and Statistical Inference in Ancient and Medieval Jewish Literature,
Justinian, Digest, 48.19.5 (collected in 9 S. P. Scott, The Civil Law 110 (1932) (Trajan ruled A.D. 98-117)).
If, as suggested earlier in discussing the standard of "clear, unequivocal and convincing evidence," the probability is about 80%, it means we would rather have four cases decided in error against the Government than more than one against the defendant. If, in the case of proof "beyond a reasonable doubt," the figure of 95% or 99% is used, it means that we would rather have, respectively, twenty or one hundred guilty persons go free than more than one innocent person be convicted. Blackstone would have put the probability standard for proof "beyond a reasonable doubt" at somewhat more than 90%, for he declared: "It is better that ten guilty persons escape than one innocent suffer." W. Blackstone, The Law of England, Book the Fourth, Chapter 27, p. 358 (T. Wait and Co., Portland 1807). Undoubtedly both Blackstone and Maimonides had capital offenses in mind — where a mistake was generally not correctable.
The high probability required in criminal cases, however, does not mean that most guilty people who are tried are acquitted. In almost all cases the guilt is so clear or the doubt so great that precise quantification is of no moment. In some few instances — which this court would roughly estimate on the basis of experience as no more than one in ten cases — it may make a difference whether the trier's perception of the standard is 80, 90, 95, or 99%.
The standard can never be set at certainty or 100% probability, because
Maguire, et al., Cases and Materials on Evidence 1 (6th ed. 1973). Setting the standard at 100% in order to avoid any chance of convicting the innocent would thus result in a zero conviction rate and acquittal of all the guilty. As Professor Posner points out:
Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. of Legal Studies 399, 411 (1973).
Quantification of these standards has not been well developed for reasons not now relevant. See Maguire et al., Cases and Materials on Evidence, 871-73 (6th ed. 1973) (collection of the literature). Cf. 9 J. H. Wigmore, Evidence (3rd Ed. 1940), § 2497, p. 325 ("no one has yet invented or discovered a mode of measurement for the intensity of human belief"). But cf. 1 J. Bentham, Rationale of Judicial Evidence, ch. VI, 71 ff (1827) (importance of quantitative numerical scale in expressing degrees of persuasion); T. Starkie, Law of Evidence, 753-54 (9th Am.ed. by G. Sharswood 1869 (notion that "moral probabilities could ever be represented by numbers . . . and thus subjected to arithmetical analysis, cannot but be regarded as visionary and chimerical;" but analysis developed at p. 756; adopts "maxim of law . . . that it is better that ninety-nine (i.e. an indefinite number of) offenders should escape, than that one innocent person should be condemned"); 1 W. M. Best, Law of Evidence, 97 (1st Am.Ed. by J. A. Morgan, 1878) (Bentham's suggestion "fantastic," quoting criticism by Dumont, French translator of Bentham). Nevertheless, there is little doubt that utilizing one rather than the other of
III. FACTS APPLIED TO LAW
The testimony originally proffered by the Government would not have proved by a preponderance, and certainly not by "clear, unequivocal and convincing evidence," that defendant is a "made" member of the Gambino family. Montello and Llauget are hardly model witnesses. They have extensive criminal records, long histories of association with organized crime, and for some years they have been supported by the Government in its witness protection program. All of this leaves their credibility in doubt. Moreover, even if believed, much of their testimony is equivocal. The bulk of their specific testimony centered on the Fatico-Llauget-Dellacroce "sit-down." Montello was not a party to this meeting. Even if the "sit-down" occurred just as Llauget indicated, it is hardly conclusive of membership in the Gambino family. Attendance at the Gambino wake is also of little probative value. Nor is the 1966 arrest of Carmine Fatico for consorting with known criminals highly probative of his brother's alleged membership in the Gambino family. Finally, Daniel Fatico's arrest record for such activities as burglary, bookmaking, policy, illicit manufacture of alcohol and running a disorderly house is ambiguous on the issue of organized crime; it is often the hallmark of an incompetent individual hoodlum.
When viewed with the other evidence introduced at the sentencing hearing, however, a much more compelling case is made out. The fact that seven different government agents, four of them from the FBI, relying on a total of seventeen independent informants, testified that Daniel Fatico was a member of the Gambino family, is, in the court's view, highly probative. Even if one or several of these experienced agents miscalculated the reliability of an informant, the large number of agents and informants, greatly reduces the margin for error. There are also the independent police observations of the defendant and his associates consorting with criminals. The sheer magnitude of this proof offsets to some extent the enormous handicap placed upon the defendant by the Government's nonproduction of any of the informants and its withholding of material crucial to effective cross-examination. While we must remain dubious of any conclusions based upon hearsay, the Government's proof here meets the rigorous burden of "clear, unequivocal and convincing evidence." The probability is at least 80% that defendant is an active member of an organized crime family.
For the reasons stated in this opinion, the court is not satisfied that sentencing procedures in this case — denying the production of informants and prior statements of prosecution witnesses — used to make the critical finding of fact, comport with the high standards of due process expected from this country's courts. The court believes itself bound by applicable decisions and directions of the Court of Appeals of this Circuit to follow these procedures.
Defendant has recently been sentenced to three years on a federal gambling charge independent of the instant hijacking case. 78 CR 19-1 (E.D.N.Y.). He is appealing from the conviction and the sentence has been stayed.
Were it not for the organized crime issue, defendant would have been sentenced in the hijacking case to no more than a three year term, concurrent with the gambling sentence. This is in conformity with standard practice favoring concurrency. See A.B.A. Proj. on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 3.4 (iv) at pp. 171-72 (1968). A three year concurrent sentence would take into account defendant's age, health problems, close and stable family relationships, and the fact that because his prior convictions in the state courts have almost without exception been punished by relatively small fines and probations, this is his first major taste of incarceration. In addition, the maximum penalty is five years and defendant is entitled to some consideration for his plea of guilty.
Under normal Parole Board practice, without a finding of organized crime, the Probation Department estimated that defendant would have been subject to Parole Guidelines of twelve to sixteen months for the gambling conviction. See Guideline Application Manual, United States Parole Commission Research Unit Report Sixteen (November 1977) (Adopted by the Commission as Appendix 4 United States Parole Commission Manual — May 1, 1978). He probably would have been kept in a medium or low security prison in Danbury, Connecticut or Allenwood, Pennsylvania, where he could be conveniently visited by his family. In about a year he probably would have been released to a half-way house in New York City where he would have been able to work during the day, see his family each evening, and spend weekends at home.
Given the finding of organized crime and the consecutive sentences, the chances of early parole are reduced to the vanishing point. Defendant will probably spend some six years in a penitentiary even with time off for good behavior. He will probably be sent to a secure facility such as Atlanta. Within the prison he will be treated as a person with dangerous potential, probably finding it more difficult to obtain furloughs and other privileges. In short, the result of the finding of organized crime membership will probably be five extra years of hard service in a high security prison far from his family.