Opinion
S3 84 Cr. 63 (JGK)
November 26, 2003
OPINION AND ORDER
The defendant Douglas Rega has moved to reduce his sentence pursuant to Federal Rule of Criminal Procedure 35, as it existed before the Sentencing Reform Act of 1987, Pub.L. No. 100-182. For the reasons explained below, the application is denied.
I.
Following a sixteen month trial and conviction on counts charging violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962(c)-(d), and substantive offenses, Rega was sentenced in October 1989 by Judge Broderick of this Court to forty years imprisonment. That conviction was affirmed on appeal. United States v. DiNome, 956 F.2d 1160 (2d Cir. 1992) (unpublished summary order);United States v. DiNome, 954 F.2d 839 (2d Cir. 1992). The Supreme Court denied Rega's petition for a writ of certiorari on October 5, 1992. Rega v. United States, 506 U.S. 830 (1992). By letter dated November 2, 1992, Rega asked Judge Broderick to appoint counsel "in regard to a Rule 35 motion before the Court." He discussed why the charges against him were unfounded and how they had affected his family, and he asked the Court for guidance. That letter was apparently never acted on by Judge Broderick before his death.
In 1996, Rega brought a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction. He argued that the Government had improperly withheld material evidence under Brady v. Maryland, 373 U.S. 83 (1963), and that his attorney, by refusing to let him testify at trial, provided ineffective assistance of counsel. Judge Stanton initially denied the application, finding no violation of Brady but allowing Rega to supplement his motion to establish how his proposed testimony would have affected the result of the trial. Rega v. United States, No. 84 Cr. 63, 1999 WL 20889 (S.D.N.Y. Jan. 19, 1999). After further submissions, Judge Stanton granted the motion and vacated the judgment of conviction and sentence, finding that Rega's testimony "might have been of prime importance to his defense."Rega v. United States, No. 96 Civ. 2728, 2000 WL 356403, at *3 (S.D.N.Y. Apr. 6, 2000).
The Court of Appeals stayed the order and thereafter reversed.Rega v. United States, 263 F.3d 18 (2d Cir. 2001), cert. denied, 534 U.S. 1096 (2002). The Court of Appeals carefully analyzed the proposed testimony by Rega against evidence at trial and held "that there is no reasonable probability that Rega's testimony would have altered the outcome of his trial."Id. at 19. In particular, the Court rejected Rega's contentions that his proposed testimony would have undercut the Government's evidence that he was involved in supplying pornographic films to a racketeering enterprise known as the DeMeo Crew and that he was involved in the murder of his uncle, Fred Todaro. The Court concluded that Rega's denials, coupled with impeachment evidence that would have been introduced, "would lead a jury to conclude that his unsupported contradictions of the ample evidence against him were lies and probative of guilt rather than innocence." Id. at 25.
Shortly after the Court of Appeals decision reversing the order vacating Rega's conviction, Rega wrote to Judge Stanton asking for a decision on his Rule 35 motion, which had been submitted to Judge Broderick in 1992. (Letter from Douglas Rega to Louis I. Stanton, U.S.D.J., dated Sept. 4, 2001.) In that letter Rega stated: "I respectfully request this Honorable Court to consider a reduction of my sentence under Rule J5(b)." That application was thereafter assigned to this Court and the parties submitted further briefs. In the course of that briefing, Rega's counsel requested that Rega's application be considered as an application to correct an illegal sentence under Rule 35(a) because the sentence was allegedly based on inaccurate information, as well as a plea for leniency for the reduction of the sentence under Rule 35(b).
II. A.
Rule 35f as it existed at the time of the defendant's sentence, prior to the Sentencing Reform Act of 1987, provided as follows:
(a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
Fed.R. Grim. P. 35, amended by the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 215(b), 98 Stat. 1837, 2015-16 (effective Nov. 1, 1987, Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985)).
Under former Rule 35(a), a court could vacate or modify a sentence on the grounds that it was premised on unreliable or inaccurate information. According to the Court of Appeals for the Second Circuit, a "sentence imposed in an illegal manner" includes one that falls within the statutory limits set by Congress but which "violated the defendant's due process right not to be sentenced on the basis of inaccurate information." United States v. Mescaine-Perez, 849 F.2d 53, 58 (2d Cir. 1988) (citing United States v. Madonna, 582 F.2d 704, 705 (2d Cir. 1978)); see also Townsend v. Burke, 334 U.S. 736, 740-41 (1948) (declaring, in context of habeas review, that defendant has due process right not to be sentenced on basis of "materially untrue" statements or "misinformation").
While the defendant was required to show that there had been a legal or constitutional defect under Rule 35(a), Rule 35(b) allowed a court "to reduce a valid sentence that has been imposed in a legal manner."Mescaine-Perez, 849 F.2d at 58. A motion under Rule 35(b), the Court of Appeals explained, was effectively a "postsentence plea for leniency and was addressed to the discretion of the sentencing court."Id.; United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968). The purpose of subsection (b) was to give a defendant "a second round before the sentencing judge," while also giving "the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case."Ellenbogen, 390 F.2d at 543.
While there was an initial question over whether the defendant's application was timely submitted to Judge Broderick, the defendant submitted an affidavit indicating that he did submit the November 2, 1992 letter to Judge Broderick at or about the time it was dated, and there is no evidence to the contrary. Therefore, it was submitted in sufficient time after the Supreme Court denied the defendant's petition for a writ of certiorari.
B.
There is a substantial question whether the defendant's application is a proper Rule 35(a) motion. The letter itself did not purport to be a Rule 35 motion of any sort but a request to Judge Broderick for the appointment of counsel and a plea for guidance. Moreover, in his September 4, 2001 letter to Judge Stanton, the defendant described his letter to Judge Broderick as a request for a reduction of his sentence under Rule 35(b). Finally, the defendant's application for relief under 28U.S.C. § 2255 indicated that he had not previously filed any petitions, applications, or motions with respect to the judgment in any federal court. This response would have been inaccurate if he had a motion pending to correct his sentence on the grounds that the evidence against him was inaccurate.
In any event, the motion does not present any reasonable basis to correct an allegedly illegal sentence. The thrust of the defendant's argument is that he was not involved in the pornography business and that he was not involved in the murder of Fred Todaro. These are the same assertions that the defendant previously made on his motion pursuant to Section 2255. As the Court of Appeals pointed out, there was more than sufficient evidence for the jury to convict. See Rega, 263 F.3d at 21-23. After presenting additional evidence, including his proffer of his own testimony, the Court of Appeals found that there was ample evidence on these issues for the conviction, and that the defendant's testimony would not have been credible and would not have changed the result of the trial in any way.
Moreover, the defendant was unsuccessful on his direct appeal, in which he contested his convictions for violation of the Hobbs Act and mail fraud but did not dispute that he had his uncle murdered. See United States v. DiNome, No. 89-1458, slip op. at 5-14 (2d Cir. Jan 22, 1992). In a summary order, the Court of Appeals found ample evidence to establish that the defendant attempted to extort his uncle with threats of violence prior to having him killed. Id. at 5-6. In finding the evidence sufficient to sustain a conviction for mail fraud, and in dismissing other grounds for appeal raised by the defendant, the Court of Appeals elaborated on the evidence as to the defendant's motive and involvement in his uncle's murder, as well as his involvement with the DeMeo crew in the pornography trade.Id. at 7-11.
If the Court construes the defendant's letter as a Rule 35(a) motion, the defendant would be arguing that the "inaccurate information" used at sentencing was the same information presented to the jury and used to prove the defendant guilty of the charges. These are the same arguments that have been rejected before particularly by the Court of Appeals with its recent decision reversing the grant of Rega's § 2255 motion.See Rega, 263 F.3d at 19-25. The defendant's similar denials in his November 2, 1992 letter are no more persuasive. There is no basis to correct the defendant's sentence based on his allegations that the jury reached an incorrect result. The defendant's Rule 35(a) motion is therefore denied.
C.
The defendant also asks that this Court consider his November 2, 1992 letter as a request for a reduction of his sentence pursuant to Rule 35(b) on the grounds of leniency. Defense counsel has supplemented the letter with information particularly about the health problems of members of the defendant's family. The Court has carefully considered the information presented by the defendant, but there is nothing in the submissions that suggests that the Court should reduce the sentence originally imposed. The sentence was imposed by Judge Broderick following a sixteen-month trial. The evidence, which was presented and found persuasive by the jury and twice found sufficient by the Court of Appeals, supported the conclusion that the defendant was involved in the murder of his uncle as well as being involved in a criminal enterprise. While the defendant points to the impact on his family as a result of his conviction, that is the unavoidable consequence of his participation in the serious crimes for which he was convicted. There is nothing about the defendant's personal or family situation that leads the Court to exercise its discretion to reduce the defendant's sentence.
The Government points out that the defendant is now eligible for parole. Nothing in this decision is intended to interfere in any way with the decision of the parole authorities and the defendant is of course free to apply for parole.
CONCLUSION
The defendant's application to reduce or vacate his — sentence pursuant to Rule 35 is denied.
SO ORDERED