Case 1:08-cr RJH Document 408 Filed 01/04/11 Page 1 of 13 SENTENCING MEMORANDUM

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1 Case 108-cr RJH Document 408 Filed 01/04/11 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X UNITED STATES OF AMERICA - v. - ANTHONY PALUMBO, Defendant X S8 08 Cr. 874 (RJH) SENTENCING MEMORANDUM PREET BHARARA United States Attorney for the Southern District of New York Attorney for the United States of America AVI WEITZMAN DAVID B. MASSEY Assistant United States Attorneys, Of Counsel.

2 Case 108-cr RJH Document 408 Filed 01/04/11 Page 2 of 13 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew s Plaza New York, New York BY FAX AND ECF The Honorable Richard J. Holwell United States District Court Southern District of New York 500 Pearl Street New York, New York Fax Re United States v. Anthony Palumbo S8 08 Cr. 874 (RJH) Dear Judge Holwell The Government respectfully submits this letter in connection with the sentencing of the defendant Anthony Palumbo, currently scheduled for January 27, Palumbo is a lifelong member of the Genovese Organized Crime Family, and to that end, like all members of La Cosa Nostra, Palumbo swore a blood oath to protect the Genovese Crime Family. That oath led him to conspire with others to murder a member of Russian Organized Crime ( Victim-1 ), as he admitted in his plea allocution. Furthermore, as argued below, that blood oath was what caused him to instigate the murder of Angelo Sangiuolo, a crime to which he has not admitted his own involvement despite ample proof that he indeed instigated Sangiuolo s homicide. His involvement in a conspiracy to murder Victim-1 and the actual murder of Sangiuolo, which the Government submits is relevant conduct for sentencing purposes, must be punished severely. For the reasons stated below, the Government respectfully submits that the statutory maximum sentence of 120 months imprisonment is the minimum sentence necessary to achieve the goals of 18 U.S.C. 3553(a). I. BACKGROUND A. Procedural Background On or about June 14, 2010, a Grand Jury in the Southern District of New York returned superseding indictment S6 08 Cr. 874 (RJH), which charged Palumbo with participating in a racketeering conspiracy through a pattern that included acts and threats involving murder, loansharking, extortion, and gambling, as well as two counts of loansharking, one count of

3 Case 108-cr RJH Document 408 Filed 01/04/11 Page 3 of 13 Page 3 extortion, and one count of illegal gambling. The indictment identified as overt acts to the racketeering conspiracy Palumbo s involvement in a mob cartel to extort members of Russian organized crime who were evading the payment of motor fuel excise taxes, his involvement in a conspiracy to murder a hitman associated with Russian organized crime, and his involvement in the murder of Angelo Sangiuolo. (S6 Indict. at 9). On or about August 30, 2010, superseding information S8 08 Cr. 874 (RJH) was filed in this case, charging Palumbo with participating, in or about late 1992 or early 1993, in a conspiracy to murder an individual associated with Russian organized crime, in furtherance of the Genovese Organized Crime Family, in violation of 18 U.S.C. 1959(a)(5). That same day, Palumbo pled guilty to the S8 Information, admitting that in or about late 1992 or early 1993,... I was a member of an enterprise which engaged in racketeering activity. During that time I knowingly conspired with others to murder an individual of Russian descent. (Plea Tr. at 15-16). The defendant acknowledged that he participated in this murder conspiracy as part of his involvement in the enterprise and to maintain his position in the enterprise. (Plea Tr. at 20, 21). The plea agreement pursuant to which Palumbo pled guilty included a stipulation that the applicable Guidelines range for that murder conspiracy is 151 to 188 months, but since the statutory maximum sentence that can be imposed under 18 U.S.C. 1959(a)(5) is 10 years imprisonment, the Stipulated Guidelines Sentence is 120 months imprisonment. The plea agreement further immunized the defendant for both the murder conspiracy charged in the S8 Information and any of the conduct charged in the S6 Indictment, including, for example, the murder of Angelo Sangiuolo. B. Background On The Genovese Crime Family As this Court is aware, the Genovese Family is one of the oldest and most entrenched of the traditional Organized Crime Families operating in the New York area. See United States v. Salerno et al., 794 F.2d 64, 71 (2d Cir.1986), rev'd. on other grounds, 481 U.S. 739 (1987); United States v. Bellomo, 944 F. Supp. 1160, 1166 (S.D.N.Y. 1996). For decades, the Genovese Family has committed numerous acts of violence, including murders and attempted murders, in order to protect its interests and to protect its members and associates from prosecution. In addition to murders, the Genovese Family has historically engaged in a wide range of other criminal activity, including violent extortions of businesses, witnesstampering, loansharking, receipt of stolen property, and illegal gambling. The Genovese Family s pattern of crime is well-established and long-standing and need not be rehashed here. C. Anthony Palumbo s Involvement In The Genovese Organized Crime Family As alleged in this case, Palumbo has been a long-time and powerful Soldier and Acting Capo in the Genovese Organized Crime Family. If the Government had proceeded to trial, multiple cooperating witnesses would have testified to Palumbo s involvement in the Genovese Crime Family dating back to at least the late 1980s and early 1990s. The evidence would have established that Palumbo was allied closely with the powerful Westside of the Genovese Crime Family. The Westside crew was the power hub of the Crime Family, and was

4 Case 108-cr RJH Document 408 Filed 01/04/11 Page 4 of 13 Page 4 comprised of captains who were loyal to and reported directly to Vincent The Chin Gigante, the then boss of the Genovese family. These captains effectively ran the administration of the Genovese family and represented the Genovese Family at meetings withcother LCN families in Gigante s absence. Former Acting Boss Dominick Quiet Dom Cirillo was one of the Westside captains to whom Palumbo was particularly close. As a result of his relationship to the leadership of the Genovese Crime Family, in or about 1992, following the death of Genovese Capo James Napoli, a/k/a Jimmy Nap, Palumbo was placed in charge of Napoli s crew in Brooklyn, which included mobsters such as James Tenaglia, a/k/a Jimmy T, who operated a highly profitable loansharking, gambling, and numbers business in Brooklyn, and Felice Masullo, who was one of Tenaglia s right-hand men. In supervising that crew, Palumbo oversaw its members criminal activities, including loansharking, extortion and gambling. In the years prior to Masullo and Palumbo s arrest in this case, Palumbo had Masullo function as his driver, accompanying Palumbo to meetings with other high ranking members of the Genovese Crime Family, and as an intermediary, delivering messages between Palumbo and other members of the Genovese Family. This not only revealed Masullo s rising star in the Genovese Crime Family, it confirmed Palumbo s status as a powerful player as well. Further confirming Palumbo s position in the Genovese Family are the other mobsters with whom Palumbo frequently met, including in an approximately one month period, leaders in the New Jersey and New York wings of the Genovese Family, such as Frank Punchy Illiano, a powerful Genovese Capo formerly on the ruling panel of the Genovese Family; Daniel Leo, an Acting Boss of the Genovese Crime Family; as well as Silvio Devita and Joseph Gatto, both Genovese Captains in New Jersey. Importantly, since his arrest, Felice Masullo has admitted his own involvement in the Genovese Crime Family, as well as his involvement in loansharking, gambling, and narcotics activities. On or about November 6, 2009, Felice Masullo pled guilty to the S2 Information in this case, which charged Masullo with being an associate of the Genovese Organized Crime Family, who has been proposed to be made a Soldier in the Genovese Family, and further alleged that Masullo was in the crew of Anthony Palumbo, that he typically functioned as Palumbo s driver, accompanying him to meetings with other members and associates of the Genovese Family, and that he delivered messages between Palumbo and other members and associates of the Genovese Family. It also alleged that Masullo operated loansharking and gambling businesses... [and] financed narcotics transactions by providing cash to an individual so that he could purchase cocaine for distribution to other individuals. Masullo admitted to engaging in these crimes to promote the Genovese Family s criminal activities Palumbo s Involvement In The Gas Tax Mob Cartel In or about the 1980s, members of Russian organized crime, including Victor Zilber, engaged in an illegal motor fuel tax evasion scheme that involved fake transactions of 1 On or about May 21, 2010, this Court sentenced Felice Masullo to a term of imprisonment of 41 months.

5 Case 108-cr RJH Document 408 Filed 01/04/11 Page 5 of 13 Page 5 large quantities of gasoline that were designed to defraud the State of New Jersey out of excise taxes. The scam employed a daisy-chain, through which the co-conspirators, many of whom were affiliated with Russian organized crime, would record multiple fraudulent sale transactions that would make it appear as though motor fuel passed through a series of wholesale distributors before reaching the retail pump. Each wholesale distributor in the scheme would also appear to be invoiced by the company above it in the chain, with each invoice reflecting a slightly higher price per gallon than the price paid by the seller due to the payment of taxes on the fuel. In this way, the price of the motor fuel seemed to increase incrementally, thus giving the appearance of a series of legitimate, arms-length transactions. In reality, though, the sales transactions were merely paper transactions with sham companies, and the fuel itself never moved from the initial storage facility until the last participant in the daisy chain sold to a retail outlet. Under New York and New Jersey law, the excise tax on motor fuel was paid by the last seller of motor fuel. Through this daisy chain, the co-conspirators in this scheme were able to avoid paying any excise taxes on the motor fuel because there was no company from which the state could recover the fuel s excise taxes, effectively avoiding the payment of $100 million in federal and state taxes. PRS 67. The players in the scheme called this daisy chain the Program. When the New York LCN families discovered the gas tax evasion scheme, the four major LCN families the Genovese, Gambino, Colombo, and Lucchese Families forced the Russians to pay them a cut of their illegal profits. Because the amount of money in the Program was so large, the LCN families coordinated their efforts and together exerted extortionate control over the illegal motor fuel industry. The four LCN families called themselves the Association. The Association extorted fees essentially a mob tax of one cent per gallon on gasoline sales by the fuel merchants involved in the Program. In exchange for the mob tax, the Association protected the Program s members, limited competition from outsiders, and maintained order and discipline within the bootleg motor fuel business. The fee typically amounted to tens of thousands of dollars per month, and sometimes as much as $100,000 or more a month to be split up among the members of the Association. Daniel Pagano represented the Genovese Crime Family in the Association. In or about June 1989, Pagano was indicted on state charges of illegal gambling, loansharking and extortion unrelated to the gas tax cartel. Thereafter, Pagano brought Palumbo in to represent the Genovese Family s interests in the Association. In that capacity, Palumbo often received the Genovese Crime Family s weekly share of the criminal proceeds from one or more members of the Program, such as Victor Zilber. In or about September 1996, Palumbo, along with Pagano and others, were arrested by the FBI and charged in a racketeering indictment filed in the United States District Court, District of New Jersey for their role in the gas tax mob cartel. The Indictment charged that Palumbo served as the Genovese Crime Family s representative in the Family s efforts to extort the bootleg motor fuel industry by, among other methods, charging petroleum companies a mob tax and using violence and threats of violence to exclude and intimidate competitors and exert control over the illegal fuel market. Palumbo repeatedly accepted on behalf of the

6 Case 108-cr RJH Document 408 Filed 01/04/11 Page 6 of 13 Page 6 Genovese Family hundreds of thousands of dollars in mob-tax kickbacks, and he repeatedly exercised control over the illegal bootlegging business. As charged in the Indictment, under the direction of defendant Anthony Palumbo and others, two Russian fuel distributors were assaulted in an effort to protect the mob s illegal fuel-tax scheme and profits. On or about December 18, 1998, Palumbo pled guilty to a superseding information that charged him with conspiring, between January 6, 1992 and January 10, 1993, to conduct and participate in the affairs of an enterprise through a pattern of racketeering activity namely, extortion and interstate travel in aid of racketeering, in violation of 18 U.S.C. 1962(d). 2 In his plea allocution, Palumbo admitted that he participated in a racketeering enterprise (identified in the superseding information as the Association ), that he extorted a monthly fee from regional participants in the motor fuel industry, and that he threatened others with economic harm and physical violence to exert control over the illegal motor fuel industry. Palumbo was ultimately sentenced to 46 months imprisonment followed by a term of 3 years supervised release. Palumbo was released from federal prison in or about February 7, The Charged Conduct Palumbo s Involvement In A Conspiracy to Murder Victim-1. As a result of Palumbo s involvement in the gas tax cartel, Palumbo met Victor Zilber, a powerful member of the Russian mob, who desired to have Victim-1, a hitman associated with Russian organized crime killed, apparently because Zilber no longer trusted Victim-1. Zilber asked Palumbo and a co-conspirator in the gas tax cartel ( CC-1 ) to murder Victim-1. Palumbo and CC-1 agreed to commit the murder. Their plan was for Palumbo and CC-1 to lure Victim-1 to a social club/restaurant in New York City, where Palumbo would have others kill Victim-1. Given that Palumbo reported to Daniel Pagano, Palumbo and CC-1 went to visit Pagano in the state prison where he was serving his state sentence. When Palumbo sought permission to kill Victim-1, Pagano refused, contending that they would eventually have to kill Victor Zilber as well since he would be a witness to the murder. Because Pagano would not authorize the murder, Palumbo and CC-1 abandoned the plan. As stated above, Palumbo has now acknowledged that this conspiracy to murder in fact occurred. In his plea allocution on August 30, 2010, Palumbo admitted in or about late 1992 or early 1993,.... I knowingly conspired with others to murder an individual of Russian descent. (Plea Tr. at 15-16). 2 Unlike the indictment that charged Palumbo in the gas tax mob cartel, which identified the racketeering enterprise as the Genovese Crime Family, the superseding information did not do so and instead identified the racketeering enterprise as the Association. The superseding information did, however, identify Palumbo as an associate of Pagano and stated that he acted as a representative of the Genovese Crime Family in its efforts to exert extortionate control over the bootleg motor fuel industry.

7 Case 108-cr RJH Document 408 Filed 01/04/11 Page 7 of 13 Page 7 3. Relevant Conduct The Murder of Angelo Sangiuolo In addition to his involvement in a conspiracy to murder Victim-1, to which Palumbo has pled guilty, Palumbo was involved at around the same time in another murder conspiracy -- this time, though, it was sanctioned by the leadership of the Genovese Crime Family and carried out. Specifically, on June 2, 1992, Angelo Sangiuolo, a Genovese associate, was shot and killed in the Bronx. The murder was ordered by Vincent the Chin Gigante because Palumbo had been getting ripped off by Sangiuolo. After Palumbo complained to Gigante, Gigante ordered Angelo Prisco, a Genovese Capo, to murder his own cousin Sangiuolo. Prisco recruited two of his associates -- John Leto and Paul Doc Gaccione -- to commit the murder and directed Leto to be the shooter. On the night of the murder, Prisco lured Sangiuolo to a social club in the Bronx, telling Sangiuolo that Leto and Gaccione were going to help Sangiuolo resolve a problem he was having with someone in the neighborhood. Leto was in the front passenger seat, while Sangiuolo was in the back seat, and Gaccione was driving the van along a street in the Bronx under an elevated train track. As the train passed by overhead, Leto shot Sangiuolo multiple times. As arranged, Gaccione and Leto then abandoned the van with Sangiuolo s dead body in it in a McDonald s parking lot located at 1515 Williamsbridge Road in the Bronx. Prisco, who had followed in another car, subsequently picked up Leto and drove from the scene, stopping at sewers so Leto could dispose of the gun and unused bullets. Sangiuolo s dead body was discovered by a McDonald s employee on the afternoon of June 3, 1992 still in the van in the parking lot. 3 After the homicide, Leto and Gaccione worked for several days as bodyguards for Victor Zilber, one of the owners of Rasputin s, a Russian nightclub in Brighton Beach, Brooklyn. Prisco had asked Leto and Gaccione to act as bodyguards for this Russian mobster, who Leto understood was involved in the same illegal gas tax scam that Palumbo had been convicted of. On the first night of his work as a bodyguard at Rasputin s, Prisco came to the club. Prisco told Leto that someone wants to meet Sangiuolo s shooter and to thank him. Prisco then introduced Leto to PALUMBO as the shooter. Overjoyed, Palumbo hugged and kissed Leto, thanking him for helping Palumbo by murdering Sangiuolo. Palumbo then proceeded to celebrate the night away with Leto, Gaccione, Prisco, and the Russian mobsters. Prisco later confirmed to Leto that the murder occurred because the murder victim (Sangiuolo) was robbing from Palumbo. The proof of Palumbo s involvement in, instigation of, and sanctioning of Sangiuolo s homicide was established at the trial of Angelo Prisco. There, two separate cooperating witnesses John Leto and Michael Sparfven -- neither of whom ever met each other, testified about key events that prove Palumbo s involvement in the murder. A copy of Leto s and Sparfven s testimony from the Prisco trial are attached herein as Exhibits A and B. 3 On or about April 27, 2009, Angelo Prisco was convicted on federal charges of murder, racketeering, racketeering conspiracy, and other crimes, the most serious of which was his involvement in the murder of Angelo Sangiuolo. On or about August 19, 2009, Judge Naomi Reice Buchwald sentenced Prisco to life imprisonment.

8 Case 108-cr RJH Document 408 Filed 01/04/11 Page 8 of 13 Page 8 During his trial testimony, Leto testified to the essential facts summarized above, including the fact that Sangiuolo was ordered killed because he had robbed from Tony Palumbo... a soldier in the Genovese Crime Family (Ex. A, Tr. at ), and that he met Palumbo at Rasputin night club in Brooklyn after Sangiuolo s murder when Prisco came up to Leto and told him that someone wants to meet you... to meet the shooter of the situation, at which point Leto was introduced to Palumbo; Palumbo then hugged and kissed Leto and they all danced, drank and celebrated the night away. (Id. at 474, 475). In addition, Sparfven, a friend of Prisco s from FCI-Edgefield in South Carolina, testified about admissions Prisco made in jail before Prisco was ever charged with the Sangiuolo homicide, which admissions confirmed Palumbo s role in the homicide. Specifically, from early 2008 until October 2008, Prisco was incarcerated at FCI-Edgefield in South Carolina. In early September 2008, two FBI agents visited Prisco in prison at FCI-Edgefield. The agents informed Prisco that he was likely to be indicted within a few weeks on a new RICO case, and that he was being investigated in connection with the 1992 murder of Angelo Sangiuolo. Sparfven testified that, following that visit by the FBI, Prisco confided in Sparfven about his role in the murder, telling Sparfven that the order to murder Sangiuolo had come from the Chin -- meaning Genovese Family Boss Vincent Gigante -- because Prisco s cousin was skimming money from another Genovese soldier. Prisco further told Sparfven that he had Leto and Doc commit the murder for him. After Prisco made these statements to Sparfven, Sparfven made written notes of Prisco s statements, and alerted the prison authorities of the facts he learned. The information he provided had never been reported publicly and thus could not have been learned by Sparfven other than from Prisco. Sparfven did not know who Leto or Doc were and had never met either. While Sparfven did not learn the name of the particular soldier who Sangiuolo had robbed, his testimony strongly corroborates Leto s testimony that Palumbo was being ripped off by Sangiuolo, which is why Palumbo was so pleased that Sangiuolo had been murdered. The jury convicted Prisco of the murder of Angelo Sangiuolo largely based on the testimony of Leto and Sparfven. There was no DNA testimony or other eyewitness testimony implicating Prisco in the murder of Sangiuolo. The conviction thus shows that the jury clearly credited Leto s and Sparfven s testimony at the Prisco trial; the Government submits that this Court should do so as well. Leto s and Sparfven s testimony shows that Palumbo was a fullfledged member of the Genovese Crime Family who engaged in conspiracies to murder to further his own and the Genovese Family s criminal businesses. His sentence in this case should therefore reflect not just the conspiracy to murder Victim-1, but also the murder of Angelo Sangiuolo.

9 Case 108-cr RJH Document 408 Filed 01/04/11 Page 9 of 13 Page 9 II. DISCUSSION A. Applicable Law Section 3553(a) of Title 18, United States Code, provides that the sentencing court shall impose a sentence sufficient but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection, and then sets forth specific considerations, including the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant; the defendant s need for rehabilitation; the kinds of sentences available; and the sentencing range under the Guidelines. 18 U.S.C. 3553(a). The Guidelines range itself continues to be an important sentencing factor. Because the Guidelines are the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions, Gall v. United States, 128 S. Ct. 586, 594 (2007), the Court must treat the Guidelines as the starting point and the initial benchmark in sentencing proceeds. Id. at 596; see also United States v. Rattoballi, 452 F.3d 127, 133 (2d Cir. 2006) (the Guidelines cannot be called just another factor in the statutory list, 18 U.S.C. 3553(a), because they are the only integration of the multiple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges. ) (quoting United States v. Jiminez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc)); Kimbrough v. United States, 128 S. Ct. 558, 574 (2007); United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005) ( [I]t is important to bear in mind that Booker/Fanfan and Section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge. ). Although the Second Circuit has not adopted a presumption that a guideline-range sentence is reasonable, it has consistently recognized that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances. United States v. Fernandez, 443 F.3d at 27. This is because by the time an appeals court is considering a within-guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one. Rita v. United States, 551 U.S. 338, 347 (2007) (emphases in original); see also Kimbrough v. United States, 128 S. Ct. at 574 ( We have accordingly recognized that, in the ordinary case, the Commission s recommendation of a sentencing range will reflect a rough approximation of sentences that might achieve 3553(a) s objectives. ) (quoting Rita v. United States, 127 S. Ct.

10 Case 108-cr RJH Document 408 Filed 01/04/11 Page 10 of 13 Page , (2007)). The Sentencing Guidelines provide that in calculating a defendant s specific offense characteristics, the district court is to, among other things, take into account relevant conduct. United States v. Maaraki, 328 F.3d 73, 75 (2d Cir. 2003); see also United States v. Shumard, 120 F.3d 339, 340 (2d Cir. 1997) ( The Sentencing Guidelines recognize that a defendant should be held accountable for both the conduct underlying the specific count of which he is convicted, and also any other relevant conduct. ) Section 1B1.3(a) of the United States Sentencing Guidelines defines relevant conduct as (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, U.S.S.G. 1B1.3(a). that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; [and] (2) solely with respect to offenses of a character for which 3D1.2(d) would require grouping of multiple counts [i.e., when the offense level is determined largely on the basis of the total amount of harm or loss], all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction; (3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions[.] Relevant conduct may include conduct for which the defendant was never charged or convicted. Cf. United States v. Bove, 155 F.3d 44, 48 (2d Cir. 1998) (holding that a district court properly include tax losses resulting from uncharged conduct in its Guidelines calculation as a defendant need not have been charged or convicted of those related acts or omissions for them to qualify as relevant conduct. ). Relevant conduct for sentencing purposes may even include acquitted conduct. United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005),

11 Case 108-cr RJH Document 408 Filed 01/04/11 Page 11 of 13 Page 11 cert. denied, 547 U.S (2006) (holding that post-booker, a district court may take acquitted conduct into account when sentencing a defendant); see also United States v. Juwa, F.3d, 2007 WL , *6 (2d Cir. Nov. 28, 2007) ( A sentencing court is not limited to considering only evidence of the convicted offense; it may take into account other relevant conduct, and even acquitted conduct[.] ) (citations to U.S.S.G. 1B1.3, Vaughn, and other authority omitted). With respect to any fact finding at a sentencing proceeding, the standard of proof is a preponderance of the evidence. United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir.2005); United States v. Gaskin, 364 F.3d 438, 464 (2d Cir. 2004). When making sentencing determinations, a district court may rely on any facts available to it, including information contained in the Pre-Sentence Report. Further, a sentencing court, like a jury, may base its factfinding on circumstantial evidence and on reasonable inferences drawn therefrom. Gaskin, 364 F.3d at 464 (citations omitted). In making its factual findings, a sentencing court remains entitled to rely on any type of information known to it. United States v. Concepcion, 983 F.2d 369, 387 (2d Cir. 1992) (citing United States v. Carmona, 873 F.2d 569, 574 (2d Cir. 1989)). For this reason, the Federal Rules of Evidence do not apply at sentencing, see Fed. R. Evid. 1101(d)(3), and, by law, [n]o 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 U.S.C In sentencing a defendant, the District Court may rely on reliable hearsay evidence, without regard to the Federal Rules of Evidence or any Confrontation Clause objections. See United States v. Wise, 976 F.2d at 402 ( [T]he Guidelines standard for the consideration of hearsay testimony at sentencing meets the appropriate constitutional test and fulfills the Confrontation Clause s basic purpose of promoting the integrity of the factfinding process. ); United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005) (Booker did not modify the long-standing rule that hearsay testimony may be considered at sentencing). Thus, facts relevant to sentencing need not be established through a live witness. See Williams v. Oklahoma, 358 U.S. 576, 584 (1959) ( [O]nce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the 4 The admission of evidence at sentencing on disputed issues is not, however, entirely unconstrained. The Sentencing Guidelines impose a straightforward reliability inquiry governing the admissibility of evidence at sentencing. In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. 6A1.3(a). Reliable hearsay evidence may be considered. Id. 6A1.3, comment.

12 Case 108-cr RJH Document 408 Filed 01/04/11 Page 12 of 13 Page 12 convicted person s life and characteristics. ). 5 B. Applying the Section 3553(a) Factors, Palumbo Should Be Sentenced to the Statutory Maximum of 10 years in prison As the Probation Department concluded, and consistent with the plea negotiated between the parties, the applicable guidelines range for Anthony Palumbo s conduct in conspiring to murder Victim-1 is 151 to 188 months imprisonment. PSR 2(g), 112. However, because the statutory maximum sentence is 10 years under 18 U.S.C. 1959(a)(5), Palumbo can only be sentenced up to 120 months in prison. Palumbo should receive such a sentence to reflect the seriousness of his offense, given the history and characteristics of the defendant, to promote respect for the law, to afford adequate deterrence to criminal conduct, to protect the public from further crimes, and to avoid unwarranted sentencing disparities between similarly situated defendants. See 18 U.S.C. 3553(a). Palumbo is an admitted and twice convicted member of a criminal racketeering enterprise whose principal purpose is to enrich its members at the expense of society and innocent victims. Despite his refusal to name the racketeering enterprise at his plea a fact that speaks volumes about the likelihood that Palumbo will give up his allegiance to the Genovese Crime Family as a result of this conviction the evidence clearly reflects his membership in the Genovese Crime Family. More than just a member of the Genovese Crime Family, Palumbo is a leader in that family, and as such, has supervised the criminal activities of several Genovese soldiers and associates below him. The Genovese Crime Family serves no positive societal purpose other than to make money for its members through illegal activities, including loansharking, extortion, and gambling. As alleged in the Information, and as Palumbo s guilty pleas confirm, members and associates of the Genovese Crime Family, including Palumbo, engage in acts of violence to protect and expand the enterprise s business and criminal operations, and to promote a climate of fear in the community that, in turn, allows their criminal operations to continue. In this case, Palumbo has pled guilty to conspiring to murder Victim-1. While no one was killed as a result of that conspiracy, such criminal conduct, on its own, warrants the maximum sentence of 10 years in prison. That sentence is even more necessary given Palumbo s involvement in the murder of Angelo Sangiuolo. The Government submits that the evidence is quite strong surpassing a preponderance of the evidence that Palumbo suborned, 5 See also United States v. Streich, 987 F.2d 104 (2d Cir. 1993) (District Court may rely on PSR at sentencing over defendant s Confrontation Clause objection); United States v. Orozco-Prada, 732 F.2d 1076, 1085 (2d Cir. 1984) (defendant s argument that trial court s reliance on hearsay evidence on the issue of fraud at sentencing violated the due process and confrontation clauses is without merit there is no question that hearsay evidence may be used at sentencing ); Tineo v. United States, 977 F. Supp. 245, 261 (S.D.N.Y. 1996) ( a sentencing judge may rely on hearsay statements or information from out-of-court witnesses whom the defendant could neither confront nor cross-examine, provided those statements are sufficiently reliable).

13 Case 108-cr RJH Document 408 Filed 01/04/11 Page 13 of 13 Page 13 encouraged, and celebrated Sangiuolo s murder with his killers. While Palumbo has not pled guilty to his involvement in the murder of Angelo Sangiuolo, he has been immunized for that conduct in his plea agreement. 6 Palumbo has obtained all of the benefits and obligations associated with membership in the Genovese Crime Family, and to that end, like all members of La Cosa Nostra, Palumbo swore a blood oath to protect the Genovese Family, including the oath of omerta (code of silence), which he continues to obey to this very day. As a Captain in the Genovese Crime Family, Palumbo was responsible for supervising his crew s criminal activities, as well as providing the crew s soldiers and associates with support and protection. In return, Palumbo, typically received a share of the illegal earnings, or tribute, from each of the members of his crew, which helps explain how Palumbo has lived an apparently comfortable life in Manhattan over the years despite declaring in his tax returns income approaching, if not below, the poverty level. (PSR 82, 110). Given his involvement in two separate murder conspiracies, one which resulted in the death of Angelo Sangiuolo, anything less than the maximum sentence of 10 years imprisonment would not adequately deter Palumbo or others, promote the respect for the law, reflect the seriousness of Palumbo s offenses, or provide just punishment for Palumbo s offenses. Respectfully submitted, PREET BHARARA United States Attorney Southern District of New York By /s/ Avi Weitzman Avi Weitzman/David B. Massey Assistant United States Attorneys (212) /2283 cc Steven Frankel, Esq. (By & ECF) 6 To the extent the Sangiuolo homicide is relevant to Your Honor s sentencing determination, the Government is prepared to call witnesses at a Fatico hearing should Palumbo dispute his involvement in the Sangiuolo homicide. The Government, though, submits that no such Fatico hearing is necessary because both Leto and Sparfven have already testified in court and have been cross-examined by co-conspirator Angelo Prisco; the Court thus may rely on their prior testimony to make its factual findings.