UNITED STATES v. FATICO, 579 F.2d 707 (2nd Cir. 1978)

UNITED STATES OF AMERICA, APPELLANT, v. CARMINE FATICO, AND DANIEL FATICO, APPELLEES.

No. 758, Docket 78-1003.United States Court of Appeals, Second Circuit.Argued March 29, 1978.
Decided June 12, 1978.

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Lawrence H. Sharf, New York City (David G. Trager, U.S. Atty. for the Eastern District of New York, Thomas P. Puccio, Department of Justice Organized Crime Strike Force, Eastern District of New York, Brooklyn, N.Y., of counsel), for appellant.

Roy M. Cohn, New York City (Michael Rosen, Saxe, Bacon Bolan, P. C., New York City, of counsel), for appellees.

Appeal from the United States District Court for the Eastern District of New York.

Before FEINBERG, MANSFIELD and OAKES, Circuit Judges.

OAKES, Circuit Judge:

[1] This is an unusual interlocutory appeal by the United States from a unique order excluding evidence sought to be introduced at a sentencing hearing. The evidence, which revealed that the convicted defendants were connected to organized crime, was to be presented principally by an FBI agent’s testimony. The offer was made that he would testify that a reliable but confidential informant who is a member of the Carlo Gambino crime family told the agent that the defendants are members of that family. The testimony was excluded by the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, as hearsay involving Due Process and Confrontation Clause limitations. United States v. Fatico, 441 F.Supp. 1285 (E.D.N.Y. 1977). Our jurisdiction is invoked under 18 U.S.C. § 3731. We reverse, holding that the case is appealable and that neither the Confrontation nor the Due

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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.

[2] I. FACTS
[3] Carmine and Daniel Fatico were indicted in connection with a series of truck hijackings. After a mistrial was declared due to a jury deadlock,[1] they pleaded guilty to and were convicted of one count of conspiracy to possess a quantity of furs stolen from a foreign shipment.[2] They face maximum sentences of five years’ imprisonment and $10,000 fines. 18 U.S.C. § 371. Prior to sentencing, defendants objected to statements in the presentence reports identifying them as “made” members of the Gambino organized crime family and important figures in the upper echelon of organized crime activity. The Government then offered to support its allegations at a sentencing hearing by the testimony of the former head of the FBI’s Organized Crime section in the New York office, based upon information furnished to him by a reliable confidential informant, allegedly a member of the Gambino Family. The Government objected to disclosure of the confidential source for the obvious reasons that both his life and usefulness as an informant would be jeopardized. However, the Government proffered additional evidence to corroborate the informant, consisting of the testimony of two coconspirators who turned Government’s evidence in the trial and who are under the Government witness protection program,[3] as well as other evidence set forth in the margin.[4]

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[4] The district court took judicial notice, Fed.R.Evid. 201, that major hijacking gangs have been preying on Kennedy Airport, and acknowledged that there was substantial evidence of organized crime’s involvement because sophisticated fencing techniques are utilized in these operations. It stated that membership in and ties to professional criminal groups are material facts that should be considered in sentencing,[5] and it noted that the rules of evidence, other than those involving privileges, do not apply in sentencing proceedings. Fed.R.Evid. 1101(d)(3). The district court further recognized that the Government cannot and will not reveal informers’ identities because of past murders of informants who implicated organized crime members. Nevertheless, Judge Weinstein concluded that the Fifth Amendment right to due process and the Sixth Amendment right of confrontation would both be violated by introduction of the FBI agent’s testimony since the credibility of the informant and the reliability of his information could not be meaningfully attacked through extrinsic evidence or cross-examination.

[5] II. APPEALABILITY
[6] Appeals by the United States from the suppression of evidence at a sentencing hearing are permissible within the constraints of 18 U.S.C. § 3731, as amended in 1971.[6] Pub.L. No. 91-644, Tit. III, § 14(a), 84 Stat. 1890 (1971). The language of the statute appears to permit the present interlocutory appeal. The “decision or order” below was one “suppressing or excluding evidence” and it was “not made after the defendant [had] been put in jeopardy and before the verdict”;[7] construing the statute to permit only appeals of pretrial suppression or exclusion orders would render the language “and before the verdict” superfluous. Additionally, § 3731 calls for liberal construction in effectuating its purposes.[8] Although the statute itself does not delineate these purposes, the Senate Report accompanying the 1971 amendments clearly

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indicates that an appeal such as is here involved was within the contemplation of Congress:

On occasion a Federal court requires the suppression of evidence in connection with a probation revocation hearing, a hearing on a motion for a new trial based on newly discovered evidence, a sentencing proceeding, or other criminal proceeding. While there are sound reasons for believing that any judge making such an order may be acting ultra vires in terms of the purposes of such a hearing, and thus may be subject to a petition for a writ of mandamus to correct his action, S. 3132 is designed to obviate any such problems by affording the Government a certain and efficient remedy through the right to appeal.

[7] S.Rep. No. 91-1296, 91st Cong., 2d Sess., at 12 (1970) (footnotes omitted) (emphasis added). The report continues:

The amended Criminal Appeal Act is intended to be liberally construed so as to effectuate its purpose of permitting the Government to appeal from dismissals of criminal prosecutions by district courts in all cases where the Constitution permits, and from all suppressions and exclusions of evidence in criminal proceedings, except those ordered during trial of an indictment or information. S. 3132 places on the face of section 3731 an explicit expression of this intent, in view of the restrictive judicial interpretations of congressional intent which have resulted from the histories of the earlier versions of section 3731 despite strong indications in the debate on the 1907 act that it should be broadly interpreted.

[8] Id. at 18 (footnotes omitted).

[9] Accordingly, we hold that the order is appealable.

[10] III. THE MERITS
[11] As the court below correctly stated, the Federal Rules of Evidence, except those relating to privileges, do not apply to sentencing proceedings. Fed.R.Evid. 1101(d)(3). The statute, 18 U.S.C. § 3577, moreover, requires that “[n]o limitation” be placed on “the information concerning the background, character, and conduct of a person convicted of an offense . . . for the purpose of imposing an appropriate sentence.” See note supra. Thus any exclusion must be based not merely upon the hearsay nature of the evidence but on its Due Process or Confrontation Clause implications.[9]

[12] The Due Process Clause is plainly implicated at sentencing. E. g., Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality); Williams v. New York, 337 U.S. 241, 252 n. 18, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); see Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 825, 826 (1968). It does not necessarily follow, however, that all of the procedural safeguards and strict evidentiary limitations of a criminal trial proper are required. Gardner v. Florida, supra, 430 U.S. at 358 n. 9, 97 S.Ct. 1197, 51 L.Ed.2d 393. The Supreme Court has held quite to the contrary, specifically on the issue of hearsay in a presentence report. Williams v. New York, supra, held that it was not a denial of due process in sentencing to rely on information supplied by witnesses whom the accused could neither confront nor cross-examine.[10]

We must recognize that most of the information now relied upon by judges to

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guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to crossexamination. And the modern probation report draws on information concerning every aspect of a defendant’s life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.
The considerations we have set out admonish us against treating the due process clause as a uniform command that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence. . . . The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts — state and federal — from making progressive efforts to improve the administration of criminal justice.[11]

[13] Id. 337 U.S. at 250-51, 69 S.Ct. at 1084-1085 (footnote omitted).

[14] Williams does not hold that all hearsay information must be considered. See United States v. Bass, 175 U.S.App.D.C. 282, 292, 535 F.2d 110, 120 (1976) (Bazelon, C. J.). Indeed, it is well recognized that materially false information used in sentencing may invalidate the sentence imposed. E. g., United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, supra; United States v. Stein, 544 F.2d 96, 102-03 (2d Cir. 1976); United States v. Bass, supra, 535 F.2d at 118; United States v. Needles, 472 F.2d 652, 657-58 (2d Cir. 1973). Additionally, a significant possibility of misinformation

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justifies the sentencing court in requiring the Government to verify the information. See 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); United States v. Bass, supra, 535 F.2d at 121; United States v. Needles, supra, 472 F.2d at 658. But when the defendant does not dispute the truth of the statements sought to be introduced United States v. Bass, supra, 535 F.2d at 120-21, or the statements are sufficiently corroborated by other evidence, see United States v. Needles, supra, 472 F.2d at 659, hearsay is admissible in sentencing proceedings.[12]

[15] The thrust of Bass, Needles and Weston is that the reliability of evidence that is difficult to challenge must be ensured through cross-examination or otherwise, by demanding certain guarantees of reliability. Here, once the defendants challenged the truth of the hearsay statement, the district court correctly called for additional corroboration by the Government United States v. Needles, supra, 472 F.2d at 658. But such corroboration was available by testimony of two coconspirators see note 3 accompanying text supra, the nature of the crime itself, see ante at p. 709, and the testimony of those who observed appellees with members of the Gambino family. See note 4 supra. Sufficient reliability is apparent; the proffered corroborating evidence was adequate.

[16] We hold, therefore, that Due Process does not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity[13] and there is sufficient corroboration by other means. Thus, 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.[14]

[17] While it is not clear whether, or to what extent, the Confrontation Clause of the Sixth Amendment[15] is implicated at sentencing, compare United States v. Fischer, 381 F.2d 509, 511 (2d Cir. 1967), with Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (right to counsel); see generally
Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Texas L.Rev. 1, 2-6, 8 n. 33, 12-16, 20-22 (1968), or to what extent that Clause overlaps with the hearsay rule and Due Process guarantees when statements of out-of-court declarants cannot be refuted by cross-examination,[16]

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for present purposes it is unnecessary to differentiate between the requirements of the Due Process Clause of the Fifth Amendment and the Confrontation Clause of the Sixth. Both constitutional safeguards, as applied in this context, are directed at ensuring the fairness of criminal proceedings by defining the situations in which confrontation by cross-examination must be afforded a defendant. And for the same reasons which counsel rejection of a due process attack, we conclude that admission of an unidentified informant’s corroborated declarations in a sentencing proceeding where there is good cause for not disclosing his identity is not barred by the Confrontation Clause.

[18] Judgment reversed.[17]