## Facts

- Daniel Fatico was indicted for conduct arising from three truck hijackings at John F. Kennedy Airport involving stolen goods moving in interstate commerce.
- After a jury failed to reach a verdict at his first trial, Fatico pled guilty to conspiracy under 18 U.S.C. § 371.
- The presentence report alleged Fatico was a “made” member of the Gambino organized crime family, a characterization expected to materially increase the severity of the sentence.
- Following an appellate remand, the district court held an evidentiary sentencing hearing focused on the disputed affiliation allegation.
- The government presented testimony from multiple law enforcement agents who relayed information from confidential informants; the informants were not produced for cross-examination.
- The government also offered corroboration, including surveillance-type observations of Fatico’s associations and testimony from two unindicted co-conspirators.
- Fatico objected to both the organized-crime allegation and the use of informant-based hearsay as a basis for a harsher sentence.

## Issues

1. What burden of proof applies when the government seeks at sentencing to establish a critical fact not proved at trial that would substantially enhance the defendant’s sentence.
2. Whether, and under what safeguards, a sentencing court may rely on informant-based hearsay communicated through law enforcement testimony to prove such a fact.

## Decision

- The court held that when an unadjudicated sentencing fact is critical and would substantially enhance the sentence, the government must prove the fact by clear, unequivocal, and convincing evidence.
- The court ruled that reliable hearsay, including informant information relayed by agents, may be considered at sentencing if closely tested for reliability and the defendant is given a meaningful opportunity to contest it.
- Applying the heightened standard, the court found the government proved by clear, unequivocal, and convincing evidence that Fatico was a “made” member of an organized crime family.
- The court concluded that this finding justified a more severe sentence than would be imposed based solely on the conspiracy conviction.

## Legal Principles

- Sentencing is a critical stage of the criminal process, and due process constrains factfinding procedures when liberty interests are significantly affected.
- Ordinary sentencing factfinding may proceed without strict application of trial evidentiary rules, and the court may consider hearsay with sufficient indicia of reliability.
- When a sentencing determination functions like a major enhancement—because it concerns a critical fact not proved at trial and substantially increases punishment—due process requires a heightened burden of proof.
- The Confrontation Clause and trial-style disclosure rules do not fully apply at sentencing, but the court must carefully evaluate reliability, corroboration, and consistency before relying on informant-based hearsay for major enhancements.

## Conclusion

The court required the government to prove, by clear, unequivocal, and convincing evidence, any untried sentencing fact that would substantially increase punishment, and it upheld reliance on scrutinized, corroborated hearsay to find that Fatico was a “made” organized-crime member warranting a harsher sentence.


United States v. Fatico, 458 F. Supp. 388 (E.D.N.Y. 1978)