The court, however, fails to see how defendants' ties to organized crime, even if true, justify upward departure in this case. Defendants' connections to organized crime are allegedly related to their illegal gambling operation. The government concedes that there is no evidence at all in this case of any violence, extortion, or other criminality normally associated with mob activities. Since defendants have already been charged with and have pled guilty to conducting illegal gambling activities, their gambling connection to organized crime has already been taken into consideration by the Guidelines. Therefore, any upward departure based on defendants' alleged mob connections would amount to punishing defendants merely for their alleged associations with certain individuals. The court finds no basis for such a departure under the Guidelines.
Moreover, the government's evidence of defendants' connection to organized crime is hearsay upon hearsay upon hearsay from questionable sources. The witnesses' statements allegedly connecting defendants to organized crime are so vague and general that they do not, in the view of this court, constitute sufficiently reliable or credible evidence to support the conclusion that defendants were connected to organized crime. Therefore, the court rejects defendants' alleged organized crime associations as a basis for upward departure.
C. Defendants' Prior Similar Criminal Conduct
The government acknowledges that since the Guidelines do consider prior criminal conduct in assessing the criminal history category of each defendant, prior criminal conduct normally does not constitute a factor "not adequately taken into consideration by . . . the Guidelines" which warrants departure. Nevertheless, the government argues that the Guidelines do not take into account the similarity of defendants' prior criminal acts. The government claims that since the defendants in this case are life-long bookmakers who have repeatedly broken the same federal laws prohibiting gambling, they should receive enhanced punishments.
As the defendants have pointed out, the government's argument on this point is based largely on proceedings which occurred before Judge Grady in a 1976 case in which an expungement was later entered due to misconduct on the government's part. The government argues that the expungement does not preclude this court from considering the prior charges because the expungement order refers only to probation reports and arrest, fingerprint, and photograph records, not to the transcript of court proceedings which the government wishes to use in this case. However, that interpretation of the expungement order does little justice, if any, to the spirit of Judge Grady's ruling. In fact, the transcript of the proceedings where Judge Grady dismissed the 1976 case clearly indicates that Judge Grady was completely appalled at the government's conduct in the case. Therefore, this court finds that Judge Grady intended to expunge the entire record in the case.
The court notes that even if Judge Grady intended to expunge the entire record, an argument can be made that pursuant to § 4A1.2(j) of the Guidelines this court may still consider the expunged proceedings in sentencing defendants. Section 4A1.2(j) authorizes the court to consider expunged convictions in determining the adequacy of defendants' criminal history category. This court, however, sees a distinct difference between expunged convictions and the expunged proceedings before Judge Grady. Whatever may be the reasoning behind expunging a particular criminal conviction, it is obvious that Judge Grady's justification for expunging the 1976 proceedings was that it would be unfair to hold those charges against a defendant in any way where there turned out to be no legally justifiable basis for maintaining the charges. Therefore, in order not to undermine Judge Grady's expungement order, this court will not consider the 1976 charges against defendants or the proceedings related thereto.
Absent those charges, Spadavecchio has no prior criminal record, so there is no foundation for arguing that the court should depart upward due to any prior similar criminal conduct on Spadavecchio's part. While Cortina and Angelini both have been the subject of other past criminal charges relating to gambling, the court finds that those charges, by themselves, do not constitute sufficiently egregious circumstances to justify an upward departure. Instead, the court finds that the similarity of Angelini's and Cortina's prior criminal conduct is more properly taken into account in selecting the appropriate sentence for these defendants from within the Guideline range applicable to each of them.
D. Duration of the Operation
The facts clearly establish, and indeed defendants have admitted at the sentencing hearing and in their plea agreements, that their bookmaking business began no later than 1983 and lasted until their arrest in June 1989. The government argues that upward departure is warranted on the basis that the operation lasted at least six years because the Guidelines do not take into account that type of extended criminal activity. The court agrees with the government that in some circumstances upward departure may be appropriate on the grounds that a defendant has engaged in criminal activity for an extended period. For example, in United States v. Burns, 282 U.S. App. D.C. 194, 893 F.2d 1343 (D.C.Cir. 1990), the court held that the district court was justified in departing upward on the basis that defendant's criminal activities were "prolonged and repetitive in nature." Id. at 1346. Noting that defendant had committed fifty-three separate acts of theft over a six-year period, the court stated:
The trial judge could have reasonably concluded that the duration of the execution, then, warranted enhancement. We note that a defendant who persists in his criminal activity over a period of years may deserve a harsher sentence than a defendant whose crime was limited in duration because the former has arguably had more opportunities to renounce his illegal schemes. Accordingly, the trial court's finding that the duration of [defendant's] crime justified upward departure . . . was not unreasonable.
The court finds that in the instant case, however, departure is not warranted based on the duration of defendants' criminal activity. The government's other arguments for upward departure have already been rejected, and this court is reluctant to depart upward based solely on the duration of the crime. Even in Burns, the trial court did not depart upward based solely on the duration of the defendant's criminal conduct; the court expounded two other strong reasons for its enhancement of the defendant's sentence. Id. at 1345. In addition, despite extensive monitoring of defendants' operation, the government did not unearth any criminality on the part of defendants except that with which they are charged in this case -- illegal bookmaking and tax fraud. Finally, the court gives some weight to the fact that the defendants have pled guilty. By doing so, defendants have readily admitted their crimes and have saved the government the large amount of expense and time which a lengthy trial of this case would have consumed. Therefore, rather than depart upward based on the length of defendants' operation, this court will consider the duration of the criminal activity in selecting the appropriate sentence for defendants from within the Guideline range applicable to each of them.
As the foregoing discussion indicates, the government has raised several aggravating circumstances of defendants' crimes. Specifically, defendants' operation lasted over six years, and at no time during that period did defendants renounce their criminal activity despite having ample opportunity to do so. Defendants' involvement in bookmaking is particularly unsettling in the cases of Angelini and Cortina, since they had previously been found guilty of gambling-related crimes in the past. Defendants' operation also took in large amounts of money and involved numerous employees and patrons. Although the court has rejected these factors as a basis for upward departure, the court finds that these circumstances clearly indicate that a sentence at the upper end of each defendant's Guideline range is appropriate in this case.
Accordingly, the court imposes the following terms of imprisonment: Cortina, 21 months; Angelini, 21 months; Spadavecchio, 18 months. The court further orders that each defendant's term of incarceration shall be followed by a 3-year period of supervised release. As a condition of his supervised release, each defendant shall refrain from engaging in gambling activities in connection with sporting events any place where it is unlawful to do so. Specifically, defendants shall not participate in any way in bookmaking, placing or accepting wagers, or paying or collecting gambling monies.
Each defendant's conduct also subjects him to a fine. Section 5E1.2 of the Guidelines provides that the court must impose a fine unless the defendant is unable to pay and it is unlikely that he will become unable to pay, or unless imposition of a fine would unduly burden defendant's dependents. In this case, after examining the compendiums of defendants' financial circumstances contained in the presentence investigation reports of the defendants' respective probation officers, the court finds that each defendant has the ability to pay a substantial fine and that payment of such a fine would not unduly burden the defendants' families. Moreover, the court finds that in light of the considerable income each defendant derived from his participation in the gambling operation, payment of a substantial fine is clearly appropriate in this case.
Under § 5E1.2 of the Guidelines, the fine can be as high as "three times the gross pecuniary gain to all participants in the offense."
In this case, the evidence shows that defendants profited considerably from their bookmaking operation. Wiretap evidence contains conversations of defendants and their employees accepting extremely large amounts of wagers. For example, evidence shows that one of defendants' four offices took in close to $ 200,000 in football bets over the Thanksgiving weekend in 1984. Other intercepted communications show that defendants' employees routinely accepted wagers for tens of thousands of dollars on single days, and that defendants personally accepted thousands of dollars in cash and cashier's checks from losing bettors on a regular basis.
Defendants argue that their actual net income was not very great. This argument loses its credibility when viewed in light of the fact that defendants had numerous salaried employees in several offices. One of those employees -- Leonard Zullo admits that by 1989 he was making almost $ 34,000 per year. It would be wholly implausible to believe that defendants were profiting less than they were paying their employees -- for six years. Moreover, the court finds that defendants' net income is irrelevant. Section 5E1.2 speaks to gross pecuniary gain. Thus, even if defendants had huge losses which offset their substantial gains, they are still subject to a fine based on the amount of their gross gains. As discussed above, the evidence clearly shows that defendants received large gains.
Therefore, the court imposes the following fines on defendants: Cortina, $ 75,000; Angelini, $ 75,000; Spadavecchio, $ 50,000. Under § 5E1.2 of the Guidelines, each defendant must also pay for the cost of his imprisonment, $ 1,210.05 per month, and the cost of his supervised release, $ 1,100 per year. Finally, pursuant to § 5E1.3 of the Guidelines, each defendant must pay a special assessment of $ 25 for each misdemeanor count and $ 50 for each felony count on which he is convicted. Since defendants have pled guilty to one misdemeanor count and one felony count, each defendant is ordered to pay an additional $ 75.
IT IS SO ORDERED.
Dated: March 21, 1990