United States v. Persico

266 F. Supp. 3d 632
CourtDistrict Court, E.D. New York
DecidedJuly 19, 2017
Docket10-CR-147 (DLI)
StatusPublished
Cited by1 cases

This text of 266 F. Supp. 3d 632 (United States v. Persico) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Persico, 266 F. Supp. 3d 632 (E.D.N.Y. 2017).

Opinion

OPINION AND ORDER

DORA L. IRIZARRY, Chief United States District Judge:

On June 8, 2012, Michael Pérsico (“Defendant”) pled guilty to the Sixth Superseding Information, which charged him with a single count of conspiracy to engage in an extortionate extension of credit, in violation of 18 U.S.C. §§ 371, 892. See Superseding Info., Dkt. Entry No. 565; Change of Plea Hr’g, Dkt. Entry No. 566 at 1. On October 30, 2014, the Court ordered a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979) (the “Fatico Hearing”) as “to those acts that the [Gjovernment allege[d] they can prove by a preponderance of the evidence ... in order to make an informed decision” for sentencing. Oct. 30, 2014 Tr. of Crim. Cause for Sent’g (“Oct. 2014 Tr.”), Dkt. Entry No. 823-1 at 4. At the time of his guilty plea and that pre-sentence conference, this case was assigned to the Hon. Sandra L. Townes, U.S.D.J. This matter was reassigned to this Court on November 24, 2015. See Nov. 24, 2015 Min. Entry.1

Upon reassignment to this Court, both the Government and Defendant claimed that no Fatico hearing was necessary. However, as Defendant continued to dispute that the Government could prove certain facts by a preponderance of the evidence, this Court determined that a Fatico hearing was necessary. Specifically, Defendant contested the Government’s assertions that it could prove, by a preponderance of the evidence, that he participated in: (1) the 1993 murder of Joseph Scopo; (2) loansharking; (3) exto'rtion; (4) a conspiracy to buy and sell stolen video games; and (5) racketeering. See Gov’t Jan. 19, 2015 Ltr., Dkt. Entry No. 823, at 3; Def. Jan. 21, 2015 Ltr., Dkt. Entry No. 803, at 6-7.2

The Fatico Hearing was held on August 10 and 24, 2016. See Gov’t Ex. A (“Hr’g Tr.”).3 During the Fatico Hearing, the Government presented testimony from Anthony Russo (“Russo”), an acting captain of the Colombo Crime Family (“Colombo Family”) in New York City at the time of his arrest and indictment in 2011 in this District for, inter alia, participating in the murder of Joseph Scopo, receiving stolen video games, and conspiracies to commit extortionate extensions and collections of credit, illegal sports betting, and marijuana distribution. See Def. Ex. H; Hr’g Tr. at 12, 114. Defendant attempted to introduce testimony from Ronald Dwyer, a private investigator, pertaining to the physical condition of Joseph Scopo’s former residence in Brooklyn at the time Scopo was murdered. Hr’g Tr. at 311-14. The Court precluded this testimony after [635]*635determining that Mr. Dwyer would have no knowledge of the condition of the structure at the time of the murder over two decades ago. Id. at 314.

' After the Fatico Hearing, the Court accepted additional briefing and evidence from the parties on the alleged acts. See Gov’t Fatico Hr’g Br. (“Gov’t Br.”), Dkt. Entry No. 846; Def. Fatico Hr’g Br. (“Def. Br.”), Dkt. Entry No. 849; Gov’t Resp. to Def. Fatico Hr’g Br. (“Gov’t Resp.”), Dkt. Entry No. 853; Def. Resp. to Gov’t Fatico Hr’g Br. (“Def. Resp.”), Dkt. Entry No. 854; Def. May 9, 2017 Ltr., Dkt. Entry No. 863; Gov’t May 31, 2017 Ltr., Dkt. Entry No. 865.

For the reasons set forth below, based upon Russo’s testimony, which the Court finds credible, and upon due consideration of all the parties’ submissions, the Court finds, by more than a preponderance of the evidence, that Michael Pérsico did participate in the five alleged activities. Accordingly, the Court shall consider all five activities in fashioning a reasonable sentence.

DISCUSSION

“[A] district court should begin all sentencing proceedings by correctly calculating the applicable [United States Sentencing Guidelines (“U.S.S.G.”) ] range.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (internal citations omitted). This calculation provides “the starting point and initial benchmark.” Id. However, the range provided by the U.S.S.G. is only advisory. See United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Court “may not presume that the Guidelines range is reasonable” for the facts and circumstances in every case. Gall, 552 U.S. at 50, 128 S.Ct. 586 (internal citations omitted). Rather, the Court must assess and consider, among other things, “the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).

To this end, sentencing- courts are permitted “to consider the widest possible breadth of information about a defendant [to] ‘ensure[] that the punishment will suit not merely the offense but the individual defendant.’” Pepper v. United States, 562 U.S. 476, 488, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (quoting Wasman v. United States, 468 U.S. 559, 564, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)); See also United States v. Broxmeyer, 708 F.3d 132, 135 (2d Cir. 2013). This inquiry is “largely unlimited ... as to the kind of information ... considered], or the source from which it may come.” Witte v. United States, 515 U.S. 389, 398, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (internal citations and quotation marks omitted). Indeed, the Court “may consider hearsay statements, evidence of uncharged crimes, dropped counts of an indictment[,] and criminal activity resulting in an acquittal in determining sentence.” United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987) (citing United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir. 1986)). “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. § 3661.

Any conduct 'considered must be proven by a preponderance of the evidence. See Witte, 515 U.S. at 401, 115 S.Ct. 2199. In this-Circuit,- courts may conduct this inquiry by way of a Fatico hearing, during which, “the prosecution and the defense may introduce evidence relating to the appropriate sentence.” United States v. Lohan, 945 F.2d 1214, 1216 (2d Cir. 1991) (citing Fatico, 603 F.2d at 1053).

I. Findings of Fact

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Bluebook (online)
266 F. Supp. 3d 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-persico-nyed-2017.