OAKES, Circuit Judge:
This is the second appeal in connection with appellant's sentencing. The court imposed the sentence, four years' imprisonment to be served consecutively to another sentence imposed for a different crime, appeal as to which is pending, after a plea of guilty in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge. The plea was to a conspiracy charge under 18 U.S.C. § 371 as a result of the hijacking of three trucks and their contents from John F. Kennedy Airport in violation of 18 U.S.C. § 659. Both appeals have arisen out of challenges by appellant's counsel to statements or suggestions in the presentence reports that appellant has strong ties to organized crime and is a "made" member of the Gambino organized crime family.
Precipitating the first appeal, which was by the Government, was Judge Weinstein's holding that, although membership in and ties to organized crime are material facts to be considered in sentencing,
579 F.2d at 713 (footnotes omitted). Accordingly, we reversed the district court's exclusion of the evidence and remanded the cause for sentencing proceedings, but at the same time specifically stated 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.
On remand, the district court held an evidentiary sentencing hearing at which the Government called ten witnesses, seven of whom were law enforcement agents (four with the FBI). The law enforcement officers' testimony indicated that seventeen different informers had told them that appellant and his brother were long-time, active members of the Gambino family. The Gambino family is one of the five active organized crime families operating in the greater New York City metropolitan area. There was also information to the effect that appellant was a "made" member, that is, one who has officially been initiated as a full-fledged member of the family, not born into it but not merely associated with it. Largely on the strength of this testimony,
The court then sentenced appellant to four years' imprisonment out of a maximum of five, 18 U.S.C. § 371, to run consecutive to a three-year sentence imposed in the Eastern District on a federal gambling charge, 78 Cr. 19-1 (E.D.N.Y.), a conviction now on appeal. Doing so, however, the court stated that "[w]ere 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." 458 F.Supp. at 412. The court went to some length to point out how the organized crime characterization was very likely to have a number of serious ramifications for appellant in prison, including designation as a "special offender"
We affirm the decision below imposing sentence by no means, however, endorsing all the rules of the district court.
Appellant raises five points on appeal:
1. The court's admission of evidence based on information derived from undisclosed informers coupled with the Government's refusal to provide counsel with "3500" material, 18 U.S.C. § 3500, denied appellant due process.
2. Under Fatico I, supra, there was insufficient evidence to corroborate the information that the undisclosed informers supplied.
3. Under the trial court's "clear, unequivocal and convincing evidence" standard, there was insufficient evidence that appellant was a "made" member or an important figure in the upper echelons of the Gambino family.
4. The proper burden of proof was upon the Government and in any event was "beyond a reasonable doubt."
5. Appellant was entitled to Jencks Act or "3500" material, viz., prior statements of the law enforcement agents testifying at the sentencing hearing.
The first point has been answered adversely to appellant in Fatico I, supra, and by the line of cases in note 8 supra.
On the second point there was more than ample evidence to corroborate under Fatico I, supra, 579 F.2d at 713, the information that the undisclosed informers
The third argument is somewhat more pointed. Appellant argues that the evidence did not show that he was a "made" member of the Gambino family. According to the testimony appellant was one of some 1,100 "made" "soldiers" or "buttons" in the Gambino family. One of the informers, who a retired FBI agent testified was himself a "reliable, long active and highly placed member of the Gambino family," 458 F.Supp. at 392, told the agent on Easter Sunday 1978 that the Fatico brothers had been such members for over twenty years. There was much other testimony to the same effect as well as testimony that the Fatico brothers, operating with a crew of associates out of the Bergen Hunt and Fish Club in Ozone Park, New York, ran gambling, loan sharking, truck hijacking, and other illegal enterprises which are frequently a hallmark of organized crime.
On the fourth point, we do not agree that the burden of proof on the Government should be "beyond a reasonable doubt." Such a standard would turn sentencing hearings into second trials. As Judge Friendly said of sentencing hearings in Hollis v. Smith, 571 F.2d 685, 693 (2d Cir. 1978), although expressly noting Judge Weinstein's opinion leading to Fatico I, 441 F.Supp. 1285, "[t]here is no authority binding upon us which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to guilt, and we see no basis in principle for so holding." We believe that Fatico I, supra, is a sufficient answer to appellant's fourth point.
We also relied upon various cases in the circuit courts sustaining the admission of hearsay where the defendant did not dispute the information, United States v. Bass, 175 U.S. App.D.C. 282, 292-293, 535 F.2d 110, 120-21 (1976), or other evidence "sufficiently corroborated" the hearsay information, United States v. Needles, 472 F.2d 652, 659 (2d Cir. 1973). See also 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). Fatico I, supra, 579 F.2d at 712-13.
(1) Sentencing is a critical stage of the criminal process. 458 F.Supp. at 396.
(2) The purpose of the 1975 amendments to Fed.R.Crim.P. 32(c)(3)(A) (mandatory disclosure to defendant or his counsel of presentence reports) reflects the importance of reliable information as a basis for proper sentencing. 458 F.Supp. at 396-97.
(3) Due process does apply to sentencing, and the reliability of factual information is important to sentencing determinations. Id. at 397-98.
(4) Defendants lack protection because (a) Fatico I, supra, held that they cannot confront informers and (b) a line of cases in the Second Circuit, see note 8 infra, has held that defendants cannot obtain under 18 U.S.C. § 3500 prior statements of the law enforcement officials. Id. at 399-400.
(5) Defendants have an important liberty interest at sentencing, id. at 400, especially if they are treated as "special offenders" in the prison system, see text at notes 6-8 infra. Id. at 401-02.
(6) The burden of proof in these proceedings could run a continuum from a "preponderance" of the evidence, to "clear and convincing" evidence, to "clear, unequivocal and convincing evidence," to "proof beyond a reasonable doubt," id. at 402-05, all of which may be numerically quantified in terms of probabilities.
(7) Although the provisions in the Organized Crime Control Act of 1970 for sentencing "dangerous special offenders," note 6 infra, require proof of status only by a preponderance of the evidence, 458 F.Supp. at 406-07, where, as here, a higher sentence is based on proof of a fact not established in a criminal trial, proof should be by "clear, unequivocal and convincing evidence," which on a quantifiable scale of probability is "above 80%," id. at 408-12.