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UNITED STATES v. INFELISE

August 17, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
ROCCO ERNEST INFELISE, ROBERT BELLAVIA, and LOUIS MARINO, Defendants.


WILLIAMS


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

On March 1, 1992, the jury in this five defendant trial reached its verdict. The jury found defendant Rocco Ernest Infelise guilty on Counts 1-2, 6-7, 12-17, and 33-42 of the superseding indictment. With respect to Count 1, the jury found Infelise guilty of all charged unlawful debts and Racketeering Acts 5(a)-(c), 6-7, 10(a)-(b), 11(a)-(b), 17(a), 24, and 26. The jury found Infelise not guilty of Racketeering Acts 8 and 9(a), and could not reach a verdict on Racketeering Act 17(b). The jury also could not reach verdicts on Counts 8-9.

 The jury found defendant Robert Bellavia guilty on Counts 1-2 and 6 of the superseding indictment. With respect to Count 1, the jury found Bellavia guilty of Unlawful Debt 4 and Racketeering Acts 5(a, 17(a), and 24. The jury could not reach verdicts on Racketeering Act 17(b) and Counts 8-9.

 The jury found defendant Louis Marino guilty on Counts 1-2 and 18 of the superseding indictment. With respect to Count 1, the jury found Marino guilty of Unlawful Debts 2 and 5, and Racketeering Acts 5(a)-(b), 6-7, 9(a), 10(a)-(b), and 11(a)-(b). The jury could not reach verdicts on Racketeering Acts 17(a)-(b) and Counts 8-9. *fn1"

 After receiving defendants' presentence investigation reports ("PSI") in late August 1992, this court took extensive briefing on Infelise's, Bellavia's, Marino's, and the government's objections to the PSIs and related motions. *fn2" After these motions became fully briefed and the final trial transcript was completed, *fn3" this court issued extremely detailed opinions explaining the court's rulings on all sentencing issues, including objections to the PSIs and the government's motion for upward departures. *fn4"

 This case is currently before the court on defendants Infelise's, Bellavia's, and Marino's motions to reconsider this court's sentencing opinions. For the reasons stated below, defendants' motions are denied.

 Defendants' Motions to Reconsider

 Infelise, Bellavia, and Marino raise several objections to this court's rulings on their sentencings, the majority of which relate to this court's determination that they should be held accountable for Hal Smith's murder and should be assigned offense levels of 43 to account for this crime. Defendants argue that they did not receive notice prior to trial that they would have to defend against the possibility of this court making factual findings under a preponderance of the evidence standard. According to defendants, making factual findings at sentencing by a preponderance of the evidence violates their right to trial by jury and their right to confront witnesses. Defendants further argue that credibility determinations must be made by the jury, and not this court. And, for those charges on which the jury could not reach a verdict, defendants claim that the burden remains on the government to prove defendants' guilt beyond a reasonable doubt, and not only by a preponderance of the evidence as this court permitted in this case.

 As this court explained in its July 15 and July 22, 1993 opinions on defendants' sentences, it is well established in this circuit that a defendant can be held accountable for relevant conduct of which he was not convicted at trial. United States v. Masters, 978 F.2d 281, 286-87 (7th Cir. 1992); United States v. Villasenor, 977 F.2d 331, 336 (7th Cir. 1992); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991); United States v. Fonner, 920 F.2d 1330, 1332-34 (7th Cir. 1990); United States v. Franklin, 902 F.2d 501, 504 (7th Cir.), cert. denied, 111 S. Ct. 274 (1990); see also United States v. Jewel, 947 F.2d 224 (7th Cir. 1991); United States v. Edwards, 945 F.2d 1387 (7th Cir. 1991); United States v. Morrison, 946 F.2d 484 (7th Cir. 1991). It is also well established in this circuit that facts at sentencing need only be proven by a preponderance of the evidence. Masters, 978 F.2d at 286-87; Duarte, 950 F.2d at 1263; United States v. White, 888 F.2d 490, 499 (7th Cir. 1989).

 Making factual findings under the preponderance standard does not violate defendants' constitutional rights as they suggest. As the government points out, Congress has expressly provided that "no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. ┬ž 3661. Making credibility determinations also does not violate defendants' constitutional rights. It is well within this court's province to make credibility determinations for sentencing purposes. See United States v. Johnson, 997 F.2d 248, 1993 U.S. App. LEXIS 14319 (7th Cir. June 16, 1993); United States v. Beal, 960 F.2d 629, 634 (7th), cert. denied, 121 L. Ed. 2d 166, 113 S. Ct. 230 (1992). As the Seventh Circuit explained in Beal:

 
a sentencing jude is free to consider "a wide variety of information that would be inadmissible at trial, including hearsay." United States v. Agyemang, 876 F.2d 1264, 1271 (7th Cir. 1989). This district court is empowered to consider this broad range of information so that it may impose the sentence most appropriate to the defendant's circumstances.

 960 F.2d at 634. *fn5"

 Moreover, relying on the preponderance standard at sentencing does not violate defendants' right to confront witnesses. It is well established that the confrontation clause does not apply to sentencings and defendants have failed to provide this court with any evidence or caselaw to the contrary. See, e.g., United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992); United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992)(en banc); United States v. Kikumura, 918 F.2d 1084, 1102-03 (3d Cir. 1990); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir. 1990), cert. denied, 498 U.S. 1097, 111 S. Ct. 990, 112 L. Ed. 2d 1074 (1991); United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir. 1990), cert. denied, 498 U.S. 1092, 111 S. Ct. 976, 112 L. Ed. 2d 1061 (1991). And, as explained above, the Seventh Circuit has clearly established that it is appropriate to apply the preponderance standard to factual findings at sentencing. See, e.g., Masters, 978 F.2d at 286-87; Duarte, 950 F.2d at 1263.

 Defendants also attack this court's determination that Jahoda's testimony regarding Smith's murder was credible. Defendants argue that the government did not present adequate evidence of defendants' participation in Smith's murder "except for the uncorroborated and often impeached and contradicted word of ...


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