United States v. Daniel Lee, A/K/A "Monkey"

OAKES, Before CARDAMONE WINTER, Judges. Circuit CARDAMONE, Judge: Circuit we are appeal On this called first time there decide for the established— be a burden should alle- and, so, if burden —for what is a reports. This gations in great significance since of some matter majority plead guilty and are of defendants con- based sentenced these reports. tained in such To decide questions we must take into account fairly pro- resolve the tension between cess, guarding like a which stands tower at sen- boundaries individual tencing, judicial discretion and broad those to encroach on tends on occasion concluding boundaries. proof and should be a definite standard of that the standard should be evidence, differing we believe concepts signify protection interests these — prompt and rights versus the of individual justice— of criminal administration efficient fairly reconciled. have been appeals judgment from a Daniel Lee it July insofar as conviction of him after District in the Southern entered before District Court New York charged Appellant was Robert W. Sweet. 24 co-de- together with in an indictment of the Racketeer for violations fendants Act Corrupt Organization Influenced and 1961, 1962(c), (RICO), (d) conducted, Lee and his 18 U.S.C. co-defendants §§ managed supervised principal ap- illegal raised on gambling claim businesses in Chinatown between peal is that when sen- 1975 and 1982; Lee and other finding de- tenced relied on fendants with extortion conspiracy particular he money extort from the Boat Golden restau- committing. denied act that he had Such nightclub 1979; rant and and Act finding, argues, predicated on in- Lee was charged Lee and other members of the hearsay presen- admissible statements Ghost conspiracy Shadows with to kill proof beyond report tence without a rea- members of a rival gang; Chinatown Act sonable doubt clear and charged that in January 1980 Lee and 20-year evidence. Because a sentence was Shadows, three other acting Ghost on in- finding, appellant on that based leader, structions from a kidnapped right his to contends that due young two men from Manhattan’s China- thereby law was violated. For the reasons town, them Brooklyn drove to and there below, deprivation. stated we find no such murdered them. Hence we affirm. plead guilty Lee before Sweet on April to and counts one two of the I BACKGROUND plea indictment. In his Lee admitted com- to From 1971 late 1982 a violent Chinese mitting only two of the five acts with which youth gang known as the “Ghost Shadows” charged he was in count one. He stated peo- terrorized inhabitants and business supervised that illegal he had gambling as ple in During Manhattan’s Chinatown. charged in 2Act and had money extorted period 11-year that the Ghost Shadows from the alleged Golden Boat restaurant as charged committing were with 13 murders Act 25. Lee was July sentenced on including and numerous other violent acts date, government 1986. Prior to that robbery, kidnapping and extortion. As a submitted a letter to the court police prosecutorial result of intense and in which appellant it recommended that effort, an indictment filed in April was given a 40-year sentence. The reasons charging numerous Ghost Shadows advanced this heavy penalty for were Lee’s including appellant Lee RICO with viola- status as a “senior” orga- member tions. The indictment consisted of 12 nization, prior felony his record of convic- one 85 separate counts. Count set forth tions, and racketeering the five acts racketeering acts of that identified—as charged indictment, “one of which part pattern racketeering activi- was murder.” double The ty substantive crime individ- —each also furnished court and defense coun- charged ual committing defendants with it. sel with 46-page sentencing an extensive charged Count all two 25 defendants with memorandum. The first report half being (Ghost enterprise members history, opera- describes the structure and Shadows) and, such, conspiring as to con- tion of the generally. Ghost Shadows The duct the enterprise through affairs second appellant specifical- half dealt with pattern racketeering activity. The other ly. portion The latter of this memorandum counts of the indictment related various described the nature and extent of Lee’s defendants, including Lee. Shadows, involvement with the Ghost prior record, gave details con- charged In count one was with cerning particular racketeering acts being a “senior member” of Ghost charged against him in present indict- committing Shadows and five ment. acts as Act I charged follows: Lee and all of his co-defendants with extortion con- court at the concluded sen- spiracy money, goods to extort and services tencing that Lee had stores, from and restaurants in in charged businesses murder double and around in Manhattan acknowledging Chinatown be- count one “this and— 1982; major punish- tween 1977 Act consideration does affect (2d Cir.1986). Thus, imposed the maxi- to be meted ment out” — to consider such un- following appel- 20-year mum sentence clearly The four- limited kinds of includ- guilty plea to count one. lant’s information — in dou- ing unadmitted resulted from Lee’s year consecutive of- conspiracy ble murder —does not and of itself appellant’s process rights. fend a defendant’s due charged in count two. Yet, sentencing is a crit because AT II GENERAL CONCEPTS stage proceeding ical in a criminal a con SENTENCING standing victed defendant ing wrapped judge Lee that the district still remains appeal, On contends Mempa Rhay, process rights by procedural process, his due court violated setting predicated on the insuf- 19 L.Ed.2d 336 a sentence question procedure ficiently finding may that he the proven Appellant argues imposition the leading murder. that to of his sentence. in a double Florida, 349, 358, Gardner v. finding a 430 97 sentencing court cannot make U.S. a presen- 1197, 1204, (1977) (plu in a 51 L.Ed.2d 393 from information contained S.Ct. is it report rality opinion). Due is violated tence unless by at least on the beyond reasonable doubt or when the information which defend In “materially evidence. this ant is untrue” or clear and is sentenced asserts, is, fact, Town case, See was not in “misinformation." he Burke, 736, 741, send v. of by demonstrated 334 U.S. Thus, (1948). Congress is 92 1690 the issue L.Ed. the evidence. recently plain before it sufficient has it dis the district court had made since finding par- rely heavily trict on re justify evidence to its courts infinitely ticipated ports, they completely more serious “be accurate in crime must respect.” he in his every H.R.Rep. than to which admitted material those Sess, 247, 18, reprinted in Cong., plea. 1st guilty 94th 674, Cong. & Ad. News 1975 U.S. Code Due Discretion and sentencing A. Judicial From this it follows that a court Process Concerns is itself that the infor assure fixing when mation which relies procedural frame Within the accurate. United sentence is reliable process, judge’s court discre Pugliese, 805 F.2d at 1124. States v. “largely is imposing tion when informa either as to the kind of unlimited Due What Process is B. consider, may he or the source from tion v. Having briefly explored a defendant’s come.” See United States may which it Tucker, 446, 589, right question procedure the used at his 92 404 U.S. S.Ct. sentencing and broad discretion of the Any 30 circum L.Ed.2d 592 court, sentencing what we consider that aids the court stance sentencing. at picture is due a defendant deriving complete a more and true must person’s question To balance back answer convicted (2) (1) interest, history, properly is the nature of the individual ground, or behavior York, New deprivation an erroneous of that considered. v. risk of Williams used, (3) through procedure L.Ed. 1337 interest S.Ct. (4) safeguards, v. States Board (1949); of additional Billiteri value interest, Parole, Cir.1976). government’s including (2d fiscal and v. statements, administrative burdens. See Mathews reason, hearsay For that Eld-ridge, was neither crimes for which the defendant (1976). Obviously, ap- convicted, crimes tried nor could pellant Lee’s interest his sentence acquittal may by be used that resulted greater deter- determining because his sentence sen court liberty. large future Pugliese, mines in measure his tence. See United States challenged. extent This is balanced to some is Nor first factor does convicted de- in- by right fourth factor—the fendant have an absolute to demand particularly hearing. record that kind terest. this case Id. 1123. We are appro- satisfied that here supplies ample imposing for the district court afford- reason opportunity ed a full through ar- priately heavy sentences on the most'vio- gument addressed to the to rebut the lent of those Shadows who Ghost members government’s allegations. plead guilty which terrorized an to acts question entire section Manhattan. The Ill BURDEN OF PROOF FOR that remains resolved from sec- to be DISPUTED ALLEGATIONS ond and third factors be summarized: procedures Did the used the district A. Need a Standard for of Proof enhancing appellant’s court in sentence ad- Underlying any finding district court’s equately insure that there was no errone- impos- that the information it relies deprivation liberty ous interest? We ing accurate, sentence is is the conclusion question “yes”— think the answer to that the information satisfied some stan- procedures adequate. used here were proof. years dard Although courts begin by analyzing proce We those have sentences the basis of dures. A convicted defendant at sentenc facts without any prescribed found burden — ing challenge accuracy has proof, Pennsylvania, McMillan v. U.S.-, government’s proffered the facts 106 S.Ct. 91 L.Ed.2d participation (1986), sentence-enhancing in the there good are nevertheless rea- crime. why This derives from an interest sons such a standard should be set. in ensuring reliability of information used Without a definite and burden of sentencing. reliability proof To insure that there can be no real assurance that 32(c)(3)(A) Rule of the Federal Rules of the information relied is accurate. requires Criminal defend intelligible Procedure that a Nor can there be review of a ant challenge government’s appeal be able to the sentencing proce- claim on that at proffer, Further, which it submits to the corroborate dural due was denied. proof information before the court. of standard will increase the fairness previously We the sentencing process promote have observed that de of the the challenge may fendant’s form of development take the of rational criteria. affidavits, letters, countering Note, or other writ Hidden Sentencing: A Issue Bur- submissions; may ten consist of the de Disputed Allegations dens in Proof for counsel, fendant and/or as in instant Reports, the Presentence 66 Geo.L.J. case, directing argument significant, having and comment to Most court; may simply the go be a cross-ex definite standard will far towards elimi- witnesses, amination of or a evi nating deprivation full-blown the risk of an erroneous dentiary hearing. Pugliese, See F.2d of a liberty defendant’s interest and thus at 1123. rights. his or satisfies her due v. Eldridge, Mathews 424 U.S. at form Whatever the defendant’s S.Ct. at 903. challenge government’s proffer to the takes, Appellant urges govern the district court must ensure and the the an opportunity persua defendant has effective ment that the concedes burden allegations likely rebut fall government. affect sion must Sev sentence. In this support Id. case eral reasons the correctness of perhaps Lee— first, as a strategy proposition: presump matter of there is a —declined repeated Sweet’s offers to a full conduct tion that defendant who denies commit innocent; second, put govern ting that would have acts is these Moreover, ment proof. greater to its has resources to mar- duty allegations; court is under proof support no to conduct a full- shall of these third, evidentiary hearing in blown each instance the defendant should not have to presentence report difficulty proving where face the inherent is, sentence after his to count did not commit that he negative—that acts. See 66 Geo.LJ. at 1537. part on its belief one based Act 53. Preponderance B. Hence, proffer that court must Evidence Standard light analyzed for a stan- recognized the need Having standard. identify one that satis- dard, must still that Lee and two Process Due Amendment fies the Fifth Shadows, defendant Ghost Peter named assuring prompt adminis- while Clause Yau, others, acting and Steven Chin does and which justice, tration of kidnapped from a leader instructions overly circumscribe argues that Appellant men, discretion. Man Kam Piu young court’s Sze Wei and two govern- require process concerns Manhattan, Lui, Brooklyn drove them to pre-sen- the facts ment to establish January there murdered them on “beyond a reasonable tencing report either Attor- The Assistant United States convincing evi- “by clear and doubt” responded to the comments made ney dence.” government’s prof- counsel on the defense “rea already rejected the haveWe by placing in the record of the sentenc- fer in federal criminal standard doubt” sonable ing proceeding States sentencing proceedings, Lee’s in this double murder. (2d Fatico, n. 9 1057 & 603 F.2d spoke knowledge. her The AUSA own denied, cert. Cir.1979), present others in the car stated that She and the 62 L.Ed.2d Brooklyn scene in and who were at the prepon held that the has Supreme Court January with the victims on 1980 had satisfies the evidence standard derance of said he had named Lee—two of the Fourteenth Process Clause the Due night. of the car that been the driver in the context of state Amendment McMillan, “every to the court that represented Be AUSA at 2419-20. ing. reason to distin principled see no cause we unearth includ- other detail we were able to from respect a state sentence guish in this by the homicide ing statements made after court, we hold that imposed in federal one participants to other members corrob- process federal defendant’s had the versions of events that we orated by preponderance also satisfied are by cooperating wit- given these two been Having found due evidence standard. nesses.” satisfied, policy concerns ar addition, stated that In the AUSA higher against adopting any standard gue government prepared was to call witnesses presentence report proof requires. than due allegations put proof in this detail. When long history of include the These concerns appellant’s invited counsel to district court sentencing, strong discretion judicial proof, counsel put government to its fact economy, and the judicial interest assuming “I am and conceded that declined trial courts already over-burdened government that the if we had a by the time-con greatly disserved would be give who would produce witnesses would constantly hearings would be suming waiving By version of this offense.” this any higher standard. for under called hearing, appellant abandoned right to a his Therefore, preponderance of adopt the opportunity to attack the for federal evidence standard Moreover, credibility. the dis- witnesses’ ing fact-finding. was entitled to credit trict version of Lee’s government’s APPLICATION OF IV murder, though the PREPONDERANCE in the double accomplice STANDARD was of uncorroborated proffer v. United See Caminetti testimony. in the record. to the facts We turn now States, 242 U.S. 20-year imposed Lee’s district court (1917); States v. Ber- 61 L.Ed. 89, (2d Cir.1975), mudez, Virginia MADDOX, cert. Carole

denied, Plaintiff-Appellant, LORD, Superintendent

Elaine Bedford V CONCLUSION Facility, Hills Correctional Defendant-Appellee. sum, there was sufficient Docket 86-2297. prepon to find for the district court partici derance of the evidence Appeals, United States Court January pated in murder on the double Second Circuit. finding by district court’s 1980. Since the Argued Dec. 1986. the evidence that the proffer May Decided clearly accurate was not was reliable and

erroneous, imposition 20-year guilty plea

sentence on

to count one was not an abuse of its discre

tion.

Accordingly, judgment appealed from

is affirmed.

OAKES, Judge (concurring): Circuit

I concur in the result. opinion

I go do not think this should

beyond holding pro- that all that the due requires proof by prepon-

cess clause I

derance of the evidence. think we

very well want to hold at some future time proof by some other context that clear evidence is as a See, Note, policy. e.g.,

matter of A Pro-

posal Accuracy to Ensure in Presentence

Investigation Reports, 91 Yale L.J. points

1245 nn. 115-17 As note 117

out, proof required this is the standard of analogous Supreme situations Texas, Addington

Court. See 60 L.Ed.2d (1979) (involuntary civil commitment

hearing).

Case Details

Case Name: United States v. Daniel Lee, A/K/A "Monkey"

Court Name: Court of Appeals for the Second Circuit

Date Published: May 18, 1987

Citation: 818 F.2d 1052

Docket Number: 537, Docket 86-1346

Court Abbreviation: 2d Cir.